Nichols v. Union Underwear Co., Inc.
| Decision Date | 24 June 1980 |
| Citation | 602 S.W.2d 429 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Richard NICHOLS, by his next friend, Carl M. Nichols, movant, v. UNION UNDERWEAR COMPANY, INC., respondent. |
Edward M. Post, Robert J. Brand, Louisville, for movant.
Charles Landrum, Jr., Lexington, for respondent.
*
This is a products liability case. Four-year-old Richard Nichols was badly burned while playing with matches when his T-shirt caught fire. Through his father, as next friend, he sued Union Underwear Company, Inc., the manufacturer and seller of the shirt. The basis of the suit was strict liability for design defect. Following a jury trial in the Franklin Circuit Court, a verdict was returned for Union Underwear and judgment was entered on the verdict.
Nichols appealed to the Court of Appeals, which affirmed the judgment. Because of the importance of the question presented, we granted discretionary review. The sole issue to be determined is whether the trial court erred in instructing the jury on the definition of "unreasonably dangerous" which appears in comment i of section 402A of the second Restatement of Torts.
Because we are concerned with the instruction given, we need not burden this opinion with an extensive description of the evidence presented to the jury. Nichols concedes that the evidence was of such a nature that the jury had a right to believe that presented by Union Underwear. However, it is relevant here that the proof presented concerned itself with the following major areas: (1) the flammability of the fabric of the shirt; (2) the risk of clothing-inflicted burns to children; (3) the availability of commercially feasible, alternative designs and fabrics for this particular article of clothing; (4) the extent of consumer awareness of the danger inherent in flammable children's clothing; (5) the alleged lack of such awareness of danger by this child and his mother; and (6) the significance of the fact that the fabric complies with applicable federal statutory standards for flammability. It is clear that the jury was given ample evidence on which to base its decision.
The doctrine of strict liability was adopted in this state in the case of Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441 (1966). While the court recognized that strict liability had obtained "substantial acceptance" throughout the country, it hung its judicial hat on the American Law Institute's revised restatement of the law of torts. The court adopted section 402A, which provides:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Restatement, Second, Torts § 402A (1965) (emphasis added).
Since the Dealers Transport case, there have been a substantial number of products liability cases before us. In Jones v. Hutchinson Manufacturing, Inc., Ky., 502 S.W.2d 66 (1973), we specifically applied the rule to liability for defective product design. In every case, however, the golden thread that holds the rule together is the Restatement, Second, Torts § 402A, quoted above.
A careful reading of section 402A reveals that, as a condition precedent to strict liability becoming operative in a particular case, the product sold must be "unreasonably dangerous" to the user or consumer or to his property. This court has never specifically addressed the question of how that concept should be presented in the instructions to the jury in a defective design case. Because the trial judge chose to present it in the form of a definition in the instructions in this case and because Nichols claims prejudicial error resulted, we are now faced with that problem.
The instructions given were based on section 402A of the Restatement, as follows:
Instruction # 1
If you believe from the evidence that an ordinarily prudent manufacturer of children's T-shirts should have foreseen that a child wearing its T-shirts substantially in the manner it was being worn at the time of the accident and that a child, while wearing one of its T-shirts might expose it to fire and in that event suffer injury from the shirt burning, either because of the composition of the shirt and/or because of his manner of wearing it, then the Court instructs you that the defendant had these duties:
A. Not to manufacture and sell a product that was unreasonably dangerous for children, including Ricky Nichols; and
B. To exercise that degree of care as would be expected of an ordinarily prudent manufacturer to manufacture and sell a product that would be reasonably safe for children including Ricky Nichols.
If you believe the defendant failed to perform either of the duties set out in Instruction # 1 hereof, and such failure or failures was a substantial factor in bringing about the injury to the Plaintiff, then you will find for the plaintiff; but unless you so believe, you will find for the defendant.
No objection was raised by Nichols to these instructions which simply set out the doctrine of strict liability provided in section 402A as applied to the facts developed in the present case. Then, over the strenuous and continuing objection of Nichols, the court gave an instruction defining "unreasonably dangerous."
A product is 'unreasonably dangerous' only if it is dangerous to an extent beyond that which would be contemplated by an ordinary adult purchaser thereof, with ordinary knowledge as to its inherent characteristics.
Nichols contends that this instruction was erroneous and prejudicial. He claims that danger beyond an ordinary purchaser's contemplation is only one of several factors to be considered in determining if a product is, in fact, unreasonably dangerous. Further, he argues that a product's danger does not become reasonable simply because it is within the contemplation or actual awareness of the average consumer. Finally, he contends that no definition of the term "unreasonably dangerous" should have been given, but, as one was given, it should not have singled out one factor (consumer awareness) but, instead, should have brought all factors relevant to that determination to the attention of the jury.
The issue of what constitutes unreasonable dangerousness has been the subject of growing controversy. Much has been written by courts and legal scholars. See, e.g., Darling, The Patent Danger Rule: An Analysis and A Survey of its Vitality, 29 Mercer L.Rev. 583 (1978); Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825 (1973); W. Prosser, Handbook of the Law of Torts ch. 17 (4th ed.1971); and cases cited therein.
The instruction given was based on comment i to section 402A of the Restatement, which provides, in pertinent part: "The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics."
It is clear that instruction four limited the jury to finding the product unreasonably if, and only if, it was more dangerous than an ordinary adult would expect it to be. In effect, the product cannot be unreasonably dangerous if the omnipresent and elusive "reasonable man" ordinary adult knows about the danger. Under this instruction, the obviousness of the danger becomes the sole determinant of the reasonableness of a danger, rather than simply being one of many factors.
The effect of this instruction is to insulate a product from liability simply because it is patently dangerous, or because it is no more dangerous than would be anticipated by the ordinary person. Some seventeen jurisdictions adhere to this rule, eighteen have repudiated it, and sixteen, including Kentucky, have not addressed the issue. See Darling, supra, at 604-09. We now join those which have considered and rejected "patent danger" or "consumer expectation" as an absolute defense to strict liability for defective design. As Dean Wade, Reporter for the Restatement, Second, Torts, put it:
In many situations, particularly involving design matters, the consumer would not know what to expect, because he would have no idea how safe the product could be made.
We are immediately met with the difficult problem 1 of describing the standard to which the fact finder should compare the product to decide whether it was in a "defective condition unreasonably dangerous" when sold. In Ulrich v. Kasco Abrasives Company, Ky., 532 S.W.2d 197, 200 (1976), we pointed out that the inquiry is to be made from the perspective of a "prudent manufacturer of similar products fully apprised of the...
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