McCormack v. Hankscraft Co.

• Citation: 278 Minn. 322,154 N.W.2d 488
• Decision Date: 17 November 1967
• Docket Number: No. 39627,39627
• Parties: Andrea Marie McCORMACK, by Donald McCormack, her father and natural guardian, Appellant, v. HANKSCRAFT COMPANY, Inc., Respondent.
• Court: Supreme Court of Minnesota (US)

Page 488

154 N.W.2d 488

278 Minn. 322

Andrea Marie McCORMACK, by Donald McCormack, her father and natural guardian, Appellant, v. HANKSCRAFT COMPANY, Inc., Respondent.

No. 39627.

Supreme Court of Minnesota.

Nov. 17, 1967.

Rehearing Denied Dec. 12, 1967.

Syllabus by the Court

1. A manufacturer is subject to liability for failure to exercise reasonable care in designing its product to protect users or those endangered by its probable use from unreasonable risk of physical harm while its product is being used for its intended purpose. Liability also may be predicated upon failure to exercise reasonable care in the adequacy of its instructions as to the use of its product and a warning as to any dangers reasonably foreseeable in its intended use.

2. Where the evidence permitted the jury to find that plaintiff, a 3-year-old child, sustained third-degree burns by contact with the undisclosed presence and rapid discharge of near-boiling water from an electric steam vaporizer manufactured by defendant which plaintiff upset while it was being used in the manner prescribed and for the purpose intended by defendant, and that defendant, who knew or should have reasonably foreseen that a child might be severely burned by scalding water upon upset, failed to warn of such danger, which it should have realized was neither obvious nor likely to be apprehended by users, or failed to protect against the danger by exercising due care in adopting a safe, althernative design to make the vaporizer safe for use unattended in a child's room, the evidence justified the verdict finding that defendant's negligent lack of warning and defective design caused plaintiff's injuries.

3. In an action for personal injuries caused by a defective product, a manufacturer also may be subject to liability for breach of an express warranty despite the nonexistence of privity between the manufacturer and the injured person and the failure to give notice of the breach. Held, the evidence justified the verdict finding defendant liable to plaintiff for breach of an express warranty.

4. Abolishing the requirements of privity and notice in personal injury actions sounding in breach of warranty is only a transparent device to eliminate bars to recovery imposed by the law of sales. Preferably, a manufacturer of a defective product should be held liable to a user or those endangered by its probable use under the now tested and developing rule of strict tort liability, imposed by law, as a matter of policy, without the limitations of any illusory contract defenses.

5. Where, pursuant to a blended motion for judgment notwithstanding the verdict or a new trial, a conditional order granting a new trial is based in whole or in part upon the insufficiency of the evidence and such issue is also raised and determined on review of the order granting judgment notwithstanding the verdict, the order granting a new trial is subject to discretionary review by this court.

Robins, Davis & Lyons, and John F. Eisberg, St. Paul, for appellant.

Murnane, Murnane, Battis & DeLambert, St. Paul, for respondent.

OPINION

ROGOSHESKE, Justice.

Plaintiff appeals from the judgment entered upon an order of the district court granting judgment n.o.v. and a conditional new trial in favor of defendant, Hankscraft Company, Inc.

Plaintiff, Andrea McCormack, brought this action for damages by Donald McCormack, her father and natural guardian, alleging that defendant's negligence and breach of implied and express warranties in the manufacture and sale of a steam vaporizer caused her to suffer substantial personal injuries. During the 3-week trial, defendant's motions for a directed verdict following the submission of plaintiff's evidence and at the close of all the evidence were denied. The court submitted the case to the jury on the questions of negligence and breach of express warranties, refusing to instruct on implied warranties. The jury returned a verdict against defendant, awarding plaintiff $150,000 damages.

Defendant's motion for judgment n.o.v. and in the alternative for a new trial was granted. The motion alleged multiple grounds, including that the verdict was 'not justified by the evidence,' was 'contrary to law,' and that there were 'excessive damages,' but the court in its order merely declared that the motion 'is in all things granted' without expressly specifying the grounds upon which the relief was granted.

Understandably, the briefs comprehensively attack or seek to justify the court's order; but, as the parties apparently agree and as we view it, the primary issue is whether the evidence is sufficient to sustain the jury's verdict of liability upon a theory either of negligence or breach of express warranty.

Viewing, as we must, the evidence and all permissible inferences most favorably to the sustaining of the verdict, the jury reasonably could have found the following facts.

In October 1957, Andrea's father, Donald McCormack, purchased from a retail drugstore an electric Hankscraft steam vaporizer manufactured by defendant. It was purchased pursuant to the advice of a doctor to be used as a humidifier for Andrea, then 8 months old, who had just returned from being hospitalized for croup and pneumonia. After unpacking the vaporizer, Andrea's parents read the instruction booklet accompanying the unit from 'cover to cover.' Then, following defendant's printed instructions, they put the vaporizer to use in the treatment of Andrea. Thereafter, from time to time as the need arose, it was used for the young children of the family in the prescribed manner, including the use of it unattended throughout the might, without any problem.

The vaporizer was used exclusively in the treatment of the children of the family. After its initial use, Andrea's mother invariably took charge of filling it, setting it up, plugging in the electric cord, replenishing the water in the glass, jar, and occasionally, as directed by the booklet, cleaning the heating unit. In using the vaporizer, she relied upon defendant's printed representations that the unit, except for cleaning, needed no attention, could be left unattended in a child's room, would 'run all night on one filling of water,' and was 'safe' and 'practically foolproof.'

In the spring of 1960, the children had colds and Mrs. McCormack desired to use the vaporizer but found it 'wasn't working.' She went to the same self-service drugstore and purchased another Hankscraft vaporizer similar to the first unit. She personally selected it without the aid or recommendation of any clerk because it was a Hankscraft, knowing defendant to be a manufacturer of a number of products for children and relying upon defendant's prior representations contained in the booklet accompanying the first vaporizer that its vaporizers were 'safe' and 'practically foolproof,' as well as advertisements representing them to be 'tip-proof.' This second vaporizer, purchased in a sealed carton, was known as Model 202A, and its general appearance as to size and shape and its method of operation were identical with the first unit. It was accompanied by an instruction booklet substantially identical to that furnished with the first vaporizer, which Mrs. McCormack again completely read.

This second vaporizer had been used about a half dozen times without incident when, on November 20, 1960, it was again set up for use in a small bedroom in the northwest corner of the house, occupied by Andrea, then 3 years and 9 months old, and her baby sister, Alison, 1 year and 10 months old. Andrea slept in a regular single bed and Alison in a crib. To the east of the doorway of this bedroom is an adjoining bathroom, which Andrea frequently used during the night. The doors of the bedrooms and bathroom were habitually left open and a light was usually burning in the bathroom. Andrea's bed was located in what might be described as the southwest corner of the room with the headboard against the doorway wall. The crib was in the northeast corner. A chifforobe stood next to the crib against the north wall. Andrea's mother set up the vaporizer at about 8 p.m. on a seat-step-type metal kitchen stool about 2 1/2 feet high. She placed the stool in front of and against the chifforobe. The electric cord was extended behind the chifforobe and plugged into an outlet located there. The stool was about 4 feet from the foot of Andrea's bed. When steam started coming from the hole in the top of the unit, Mrs. McCormack left the room. After visiting a neighbor until about 11 p.m., she did some ironing, and at about 1:30 a.m., she returned to the room to replenish the water supply in the vaporizer. Using some type of 'mitt,' she lifted the cap and poured water from a milk bottle into the jar. She then went to bed.

At about 2:30 a.m., Mrs. McCormack heard a terrible scream and got out of bed. She found Andrea lying on the floor of her bedroom, screaming. The metal stool was upright, but the vaporizer was on the floor and the water had come out of the jar. The vaporizer had separated into its three component parts--a glass jar, a metal pan, and a plastic top-heating unit. The electric cord was still plugged into the electric outlet. In some manner, Andrea, while intending to go to the bathroom, had tipped over the vaporizer and caused the water in the jar to spill upon her body.

Andrea was rushed to the hospital for treatment. More than 30 percent of her body had severe burns; she was suffering from shock; and her condition was critical for some time. She had third-degree burns on her chest, shouldres, and back. Skingraft surgery was performed on her twice. She was hospitalized for 74 1/2 days. Ten days later she was admitted to the Kenny Institute for treatment. She remained there 102 days and thereafter was taken to the Mayo Clinic, where she had further surgery in August 1961. At the time of the trial, Andrea had heavy scar tissue on her chest, stomach, legs, arms, and neck; a...