Morningstar v. Black and Decker Mfg. Co.

• Citation: 162 W.Va. 857,253 S.E.2d 666
• Decision Date: 13 April 1979
• Docket Number: No. CC905,CC905
• Parties: Dean V. MORNINGSTAR et al. v. The BLACK AND DECKER MANUFACTURING COMPANY.
• Court: Supreme Court of West Virginia

Page 666

253 S.E.2d 666

162 W.Va. 857

Dean V. MORNINGSTAR et al. v. The BLACK AND DECKER MANUFACTURING COMPANY.

No. CC905.

Supreme Court of Appeals of West Virginia.

April 13, 1979.

Syllabus by the Court

1. From the language of W.Va.Code, 51-1A-1, together with the conventional construction placed by other courts on similar certification statutes, this Court, in answering a certified question, must of necessity determine the present law bearing on the issue certified.

2. Article VIII, Section 13 of the West Virginia Constitution and W.Va.Code, 2-1-1, were not intended to operate as a bar to this Court's evolution of common law principles, including its historic power to alter or amend the common law.

3. The cause of action covered by the term "strict liability in tort" is designed to relieve the plaintiff from proving that the manufacturer was negligent in some particular fashion during the manufacturing process and to permit proof of the defective condition of the product as the principal basis of liability.

4. In this jurisdiction the general test for establishing strict liability in tort is whether the involved product is defective in the sense that it is not reasonably safe for its intended use. The standard of reasonable safeness is determined not by the particular manufacturer, but by what a reasonably prudent manufacturer's standards should have been at the time the product was made.

5. The term "unsafe" imparts a standard that the product is to be tested by what the reasonably prudent manufacturer would accomplish in regard to the safety of the product, having in mind the general state of the art of the manufacturing process, including design, labels and warnings, as it relates to economic costs, at the time the product was made.

6. The question of what is an intended use of a product carries with it the concept of all those uses a reasonably prudent person might make of the product, having in mind its characteristics, warnings and labels.

7. We find that the rule expressed in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963), permitting recovery in a tort product liability case, where a defective product causes personal injury, is a more appropriate rule than Section 402A of the Restatement, Second, Torts (1965), which requires the defective condition to be unreasonably dangerous.

8. We decline to adopt the Rylands v. Fletcher Doctrine into our tort product liability law.

Preiser & Wilson, Stanley E. Preiser, Donald R. Wilson, Monty L. Preiser, R. Joseph Zak, Ted M. Kanner, Charleston, for plaintiffs.

Jackson, Kelly, Holt & O'Farrell, W. T. Shaffer, James A. Yates, Charleston, for defendant.

James M. Sprouse, Charleston, G. Charles Hughes, Moundsville, amicus curiae for WV Trial Lawyers Ass'n.

MILLER, Justice:

This case presents the question of the extent to which a manufacturer of a defective product is liable in tort in this State to a person injured by such product.

The question comes to us from the United States District Court for the Southern District of West Virginia under the Uniform Certification of Questions of Law Act. ¹ The plaintiffs, the Morningstars, filed a personal injury action in the District Court based on diversity of citizenship against the defendant, Black and Decker Manufacturing Company. The basis for their action is the allegation that Black and Decker manufactured an "8-Inch Builders Sawcat" and Mr. Morningstar was injured when the saw's safety guard failed to close. Mrs. Morningstar sued for loss of consortium.

The Morningstars' complaint set out multiple theories for the defendant's liability, all based on tort concepts. We will discuss these various theories in some detail in the latter portion of this opinion. For our present purposes, they may be identified as the rule of the Restatement, Second, Torts § 402A (1965), the principles set out in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049 (1963), and the rule of the Restatement, Second, Torts § 519 (1977), commonly known as the Rylands v. Fletcher ² Doctrine.

The Federal District Court, perceiving there was some lack of clarity in the decisions of this Court on this subject, and recognizing under Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (1938), that it was required to apply the substantive tort law of this State to the Morningstars' case, sought this certification.

Black and Decker initially raises two procedural issues of which we must dispose before addressing the substantive law. It contends that upon such a certification, we are bound to determine the manufacturer's liability based on our past law and not on what we may conceive it to be at the present. Second, we are reminded that as a result of W.Va.Code, 2-1-1, and the provision found in Article VIII, Section 13 of the West Virginia Constitution, we are not empowered to alter the common law as it existed in 1863.

I THE CERTIFICATION QUESTION

This case presents the first occasion for this Court to accept a certification under W.Va.Code, 51-1A-1, Et seq. We begin by noting that the provisions of this statute are not mandatory. Section 1 provides: "The supreme court of appeals of West Virginia may answer questions of law certified to it . . . ." In the Commissioners' Comment to Section 1 of the Uniform Certification of Questions of Law Act, the following statement is made "This section provides that the highest court of the state has the right to answer questions certified to it; it is not mandatory. Under some circumstances it is possible that the court might decide not to answer a certified question. . . ." (Uniform Certification of Questions of Law Act (U.L.A.) § 1, Comment, at 52)

Cf., In re Richards, 223 A.2d 827 (Me.1966).

The growth of the Uniform Certification of Questions of Law Act has largely been a response to the Abstention Doctrine, which was a necessary outgrowth of Erie Railroad v. Tompkins, supra. ³ In Erie, the Court held that in diversity cases federal courts were no longer "free to exercise an independent judgment as to what the common law of the State is or should be; . . ." but must apply the substantive law as evolved by the state either through its statutes or its court decisions. 304 U.S. at 71, 58 S.Ct. at 819, 82 L.Ed. at 1190, 114 A.L.R. at 1489. Erie in effect overruled Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842), which held that in diversity cases the federal courts could declare the substantive law independently of that evolved by the state courts except in purely local matters.

It is rather apparent that where our State's substantive law is clear, there is no need to obtain certification under W.Va.Code, 51-1A-1, Et seq. The language of this provision makes this manifest, since the certification is limited to those questions "which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of appeals of this State." W.Va.Code, 51-1A-1.

For a considerable period of time, we have had an internal statutory certification procedure whereby the circuit courts may obtain from this Court a definitive statement of the law. W.Va.Code, 58-5-2. Historically, we have treated this procedure as a means of clarifying the current state of our law, so that the trial courts may proceed to try a case on the correct legal principles. ⁴

In states having external certification statutes similar to W.Va.Code, 51-1A-1, courts have generally recognized that the certification is designed to resolve ambiguities or unanswered questions about the receiving state's law. See, e. g., Wansor v. George Hantscho Co., 570 F.2d 1202 (5th Cir. 1978); Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970); West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976); Pierce v. Secretary of H.E.W., 254 A.2d 46 (Me.1969); Norton v. Benjamin, 220 A.2d 248 (Me.1966); Irion v. Glens Falls Insurance Co., 154 Mont. 156, 461 P.2d 199 (1969); Ford v. Black Mountain Tramways, 110 N.H. 20, 259 A.2d 129 (1969); In re Elliott, 74 Wash.2d 600, 446 P.2d 347 (1968).

We conclude, therefore, that from the language of W.Va.Code, 51-1A-1, together with the conventional construction placed by other courts on similar certification statutes, this Court, in answering a certified question, must of necessity determine the present law bearing on the issue certified.

II

THE EFFECT OF ARTICLE VIII, SECTION 13

, AND W. VA. CODE, 2-1-1

ON THIS COURT'S ABILITY TO MODIFY THE COMMON LAW

Black and Decker urges that Article VIII, Section 13 of our Constitution and W.Va.Code, 2-1-1, ⁵ operate as a bar to this Court's ability to change the common law. These two provisions have led to some confusion in the opinions of this Court and have brought into existence two conflicting responses.

The first is a line of cases which suggest that this Court cannot alter the common law and that such alterations must come from the Legislature. See, e. g., Seagraves v. Legg, 147 W.Va. 331, 127 S.E.2d 605 (1962) (absence of wife's right to sue for loss of consortium resulting from personal injury to husband); Walker v. Robertson, 141 W.Va. 563, 91 S.E.2d 468 (1956) (bar to women serving on petit jury); State v. Arbogast, 133 W.Va. 672, 57 S.E.2d 715 (1950) (rule that dogs cannot be subject of larceny); Shifflette v. Lilly, 130 W.Va. 297, 43 S.E.2d 289 (1947) (strict liability of innkeeper to guest for personal injury or property damage); Poling v. Poling, 116 W.Va. 187, 179 S.E. 604 (1935) (interspousal tort immunity), Overruled, Coffindaffer v. Coffindaffer, W.Va., 244 S.E.2d 338 (1978); Cunningham v. Dorsey, 3 W.Va. 293 (1869) (applying English common law rule that easement of "ancient lights" can arise only by adverse enjoyment from time immemorial.)

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