Midgley v. S. S. Kresge Co.

• Decision Date: 04 February 1976
• Docket Number: K-M
• Citation: 127 Cal.Rptr. 217,55 Cal.App.3d 67
• Court: California Court of Appeals Court of Appeals
• Parties: Walter C. MIDGLEY, as guardian ad litem of Thomas Midgley, Plaintiff and Appellant, v. S. S. KRESGE COMPANY, a corporation, doing business asart Discount Stores, Defendant and Respondent. Civ. 13828.

Page 217

127 Cal.Rptr. 217

55 Cal.App.3d 67

Walter C. MIDGLEY, as guardian ad litem of Thomas Midgley, Plaintiff and Appellant, v. S. S. KRESGE COMPANY, a corporation, doing business as K-Mart Discount Stores, Defendant and Respondent.

Civ. 13828.

Court of Appeal, Third District, California.

Feb. 4, 1976.

Klein, Garbutt & Simmons, Sacramento, for plaintiff and appellant.

Fitzwilliam, Memering, Stumbos & DeMers, Sacramento, for defendant and respondent.

PUGLIA, Presiding Justice.

This appeal presents the perplexing question whether liability for failure to warn of dangerous properties of a product is measured by the doctrine of strict liability in its generally understood sense or, alternatively, by traditional negligence concepts imposing a duty of care requiring warning of danger only when there is actual or constructive knowledge of the danger.

The complaint for damages in this product liability action is framed upon four theories of substantive liability: negligence, express warranty, implied warranty and strict liability. At the conclusion of his case, and without moving to amend his complaint, plaintiff (appellant herein) requested that the trial court limit jury consideration of the case to the theory of strict liability in order to obviate defense reliance on contributory negligence. Ultimately the trial court instructed on strict liability for injury from products defective in manufacture or design but refused plaintiff's proffered instruction that failure to warn of dangerous propensities likewise rendered a product defective. ¹ Instead, the trial court instructed on failure to warn only in the context of negligence. The jury was instructed that contributory negligence is not a defense to a cause of action in strict liability but that a plaintiff's contributory negligence bars recovery for a defendant's negligence.

Plaintiff contends the trial court's instructional choices created error compelling reversal. For the reasons which follow we have determined that the jury should have been instructed on the theory of failure to warn in the context of strict liability in tort. The omission so to instruct was prejudicial to plaintiff's case and requires reversal.

Plaintiff, Thomas Midgley, was 13 years old when he purchased from defendant Kresge a refracting telescope manufactured in Japan. When purchased the telescope was dismantled, its components in a cardboard box accompanied by a booklet of instructions on assembly, use and maintenance. The box bore the legend 'Manufactured in Japan for S. S. Kresge Company . . ..' The telescope itself bore a label 'K-Mart' accompanied by the phrase 'Quality Guaranteed.' Kresge, owner of K-Mart Discount Stores, the retailer, was the only named defendant. The Japanese manufacturer was not a party.

Among the components of the telescope, is a sun filter consisting of a dark lens labeled 'Sun.' The only instructions or warnings received by plaintiff relative to use of the telescope to view the sun are contained in the instruction booklet which provides: 'Sun and moon glasses are deposited in the eyepieces cases; screwed into the eyepiece bottom. Be sure to use sun glass for solar observation and moon glass for moon observation. CAUTION: Please refrain from looking up the sun (sic) without attaching the sun glass. Also the sun should not be seen through the finderscope.' The instruction book contains no diagramatic or pictorial illustrations of the proper installation of the sun filter. Upon reading the warning, plaintiff knew he should view the sun only through the sun filter. He also knew before purchasing the telescope that it was dangerous to look at the sun with the naked eye.

The telescope eyepiece consists of a hollow cylinder approximately three-quarters inch in length, one inch in diameter and open on each end. Screw threads on the inner aspect of each end are of identical size. The eyepiece lens, of clear glass, can be screwed into either end of the cylinder as may be the sun filter. When so joined together, the circumferences of the sun filter and the cylinder are flush. The eyepiece lens, however, is flanged so that when joined to the cylinder the flange projects beyond the circumference of the cylinder.

In the first two months that he had the telescope, plaintiff used it to view the sun 15 to 20 times, always through the sun filter. In preparing to do so, plaintiff would remove the eyepiece lens and replace it with the sun filter. Properly assembled for sun viewing, the eyepiece lens should remain in place and the sun filter be screwed into the opposite or bottom end of the cylinder. When properly assembled the system is safe for sun viewing. As assembled by plaintiff, however, harmful sunlight could leak around the sun filter into the eye of the viewer. Plaintiff's evidence, including expert testimony, tended to show that in so using the telescope he sustained a solar burn on the retina of his eye, irreparably impairing his vision.

I.

A retailer engaged in the business of distributing goods to the public is strictly liable in tort for personal injuries caused by defects in the products it sells. (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 263, 37 Cal.Rptr. 896, 391 P.2d 168.) The retailer's liability is coextensive with that of the manufacturer of the product. (Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 250, 85 Cal.Rptr. 178, 466 P.2d 722.) The genesis of the rule of strict liability in products cases is found in Greenman v. Yuba Power Products Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 377 P.2d 897. It is repeated substantially in the same form, with modifications not important here, in section 402A of the Restatement Second of Torts. In comment j to that section (p. 353), it is said: 'In order to prevent the product from being unreasonably dangerous, the seller may be required to give direction or warning, on the container, as to its use.' In the case of a product with dangerous characteristics not generally known or, if known, not reasonably expected by a consumer to be found in the product, comment j requires the seller to give warning against the dangers 'if (the seller) has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the . . . danger . . .. ( ) (A) product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.'

Citing Restatement, section 402A, California courts have held that a product faultlessly made may nevertheless be deemed defective within the general strict liability rule if it is unreasonably dangerous to place the product in the hands of a user without adequate warning. (Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 53, 46 Cal.Rptr. 552; Gherna v. Ford Motor Co. (1966) 246 Cal.App.2d 639 651, 55 Cal.Rptr. 94; Barth v. B. F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 244--245, 71 Cal.Rptr. 306; see also Johnson v. Standard Brands Paint Co. (1969) 274 Cal.App.2d 331, 340, 79 Cal.Rptr. 194.) As a result it has been assumed that liability for failure to warn is subsumed under the doctrine of strict liability for injury caused by defects in product manufacture or design. That assumption, however, has not been universally indulged. In Oakes v. E. I. Du Pont de Nemours & Co., Inc. (1969) 272 Cal.App.2d 645, this court observed (at pp. 650--651, 77 Cal.Rptr. 709, at p. 713): 'The rule of comment j of the Restatement antedates the rule of strict liability and is, as we have shown, carried over by the Restatement into the new law. The rationale of the strict liability rule is that the injured person is helpless to protect himself from the Actually defective product. It is only reasonable therefore that as between the injured user and the one who places the product on the market the latter should bear the loss. The same rationale would apply to the marketing of a product which contains an ingredient which the manufacturer knows or should know 'by the application of reasonable developed human skill and foresight' is dangerous. But, in the view of this court, that is where the reason for the rule ceases and the rule of 'strict' liability itself should stop. To exact an obligation to warn the user of unknown and unknowable allergies, sensitivities and idiosyncracies would be for the courts to recast the manufacturer in the role of an insurer beyond any reasonable application of the rationale expressed above. (Citations.)' (Fn. omitted; emphasis in original.) In further explication of the rule expressed in comment j, we there said (at p. 650, fn. 4, 77 Cal.Rptr. at p. 713): 'A rule imposing an obligation upon a manufacturer (or seller) to give a suitable warning and a rule conditioning liability upon the fact of knowledge or reason to acquire knowledge are rules fixing duties of care. Since violation of a duty of care has always been an element in the definition of negligence, the rules expressed in comment j...