Olson v. Prosoco, Inc.

• Decision Date: 21 September 1994
• Docket Number: No. 93-228,93-228
• Citation: 522 N.W.2d 284
• Parties: David OLSON and Gayle Olson, Individually and as Next Friends of Courtney Ann Olson, Robert Blaine Olson, and Stacy Marie Olson, Minor Children, Appellees, v. PROSOCO, INC., Appellant.
• Court: Iowa Supreme Court

Page 284

522 N.W.2d 284

David OLSON and Gayle Olson, Individually and as Next Friends of Courtney Ann Olson, Robert Blaine Olson, and Stacy Marie Olson, Minor Children, Appellees, v. PROSOCO, INC., Appellant.

No. 93-228.

Supreme Court of Iowa.

Sept. 21, 1994.

James F. Pickens, Minor Barnes and Kevin S. Cavanaugh of Pickens, Barnes & Abernathy, Cedar Rapids, for appellant.

Gerald T. Sullivan and James L. Sines of Crawford, Sullivan, Read, Roemerman & Brady, P.C., Cedar Rapids, for appellees.

Considered en banc.

SNELL, Justice.

Appellant, Prosoco, Inc. (Prosoco) appeals from a jury verdict and judgment entered against it in a products liability action brought by David Olson and members of his family (Olson). The district court entered judgment against Prosoco in an amount exceeding $735,000, including $42,000 in consortium damages. Olson based his claim for damages on theories of strict liability and negligence. We affirm.

Numerous errors are assigned by Prosoco as grounds for reversal. Our standard of review in this case is for errors of law. Iowa R.App.P. 4.

I. Facts

David Olson is a bricklayer foreman employed by Seedorf Masonry Company (Seedorf). Late on the afternoon of December 15, 1988, Olson spotted a fifteen gallon drum of mortar cleaner sitting on the ground. To prevent the cleaner drum from freezing to the ground, he picked it up and moved it onto a nearby pallet. When Olson dropped the drum on the pallet, the bung closure popped out of the drum, splashing hydrochloric acid based cleaner into his right eye. Despite extensive medical care, Olson eventually lost sight in his right eye. In April 1991 doctors fitted Olson with an artificial eye.

The mortar cleaner, called "Sure Klean 600," is manufactured and packaged by Prosoco. The fifteen gallon drum into which Prosoco packages the cleaner is manufactured by Delta Drum Corporation (Delta Drum). The bung closures used in the fifteen gallon drums are manufactured by Rieke Corporation (Rieke). Olson initially named Rieke and Delta Drum in this lawsuit. Rieke and Delta Drum settled their cases with Olson. Olson sued Prosoco under several theories of strict liability and negligence. ¹ Prosoco requested a state-of-the-art defense jury instruction with regard to Olson's strict liability and negligence theories. The jury found Prosoco one-hundred percent at fault for Olson's injuries under both theories.

II. Strict Liability and Negligence Claims

Prosoco claims the court erred by submitting the case on both strict liability and negligence theories. We have said that courts must give requested jury instructions when they correctly state the law applicable to the facts of the case and if the legal concept is not embodied in other instructions. Stover v. Lakeland Square Owners Ass'n, 434 N.W.2d 866, 868 (Iowa 1989). However, even instructions correctly stating the law should not give undue emphasis to any particular theory, defense, stipulation, burden of proof, or piece of evidence. Dickman v. Truck Transp., Inc., 224 N.W.2d 459, 464 (Iowa 1974). Error in giving or refusing to give instructions is reversible, only if prejudicial. Stover, 434 N.W.2d at 868.

Prosoco contends the submission of instructions on both strict liability and negligence theories was duplicative and confusing, resulting in prejudicial error. Prosoco asks this court to build on our holding in Hillrichs v. Avco Corp. in which we held that a plaintiff's strict liability claim depended on the same elements of proof as his negligence claim. See Hillrichs v. Avco Corp., 478 N.W.2d 70, 75-76 (Iowa 1991). On remand, we held that only the negligence claim should be retried. Id.

Olson contends the submission of a strict liability instruction does not preclude liability based on a negligence theory. He stresses that our decision in Hillrichs was limited strictly to the facts of that case and claims that in the case at bar the strict liability and negligence instructions submitted do not depend on the same elements of proof.

In Hawkeye-Security Insurance Co. v. Ford Motor Co., 174 N.W.2d 672, 684 (Iowa 1970), we adopted section 402A of the Restatement (Second) of Torts, recognizing a strict liability cause of action in products liability cases. We distinguished strict liability/design defect claims from negligence claims in Aller v. Rodgers Machinery Manufacturing Co., 268 N.W.2d 830, 835 (Iowa 1978). In Aller the alleged design defect involved a saw which the plaintiff claimed was unreasonably dangerous when used in the normal, anticipated manner intended by the seller. Id. at 832. We held the presence of the "unreasonably dangerous" element in our strict liability/design defect analysis did not inject considerations of negligence into the strict liability case. Id. at 835. We noted that in strict liability, the plaintiff's proof concerns the condition of the product which is designed or manufactured in a particular manner. Id. In contrast, negligence concerns the reasonableness of the manufacturer's conduct in designing and selling the product as it did. Id.

Some courts have held that a product may be unreasonably dangerous and thus "defective," triggering strict liability, if the seller fails to give adequate directions or warning regarding its use. See Tucson Indus., Inc. v. Schwartz, 108 Ariz. 464, 501 P.2d 936, 940-41 (1972); Anderson v. Owens-Corning Fiberglas Corp., 53 Cal.3d 987, 281 Cal.Rptr. 528, 536-38, 810 P.2d 549, 557-59 (1991); Woodill v. Parke Davis & Co., 79 Ill.2d 26, 37 Ill.Dec. 304, 306, 402 N.E.2d 194, 196 (1980); Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633, 641 (1992); Mauch v. Manufacturers Sales & Serv., Inc., 345 N.W.2d 338, 346 (N.D.1984); Phillips v. Kimwood Mach. Co., 269 Or. 485, 525 P.2d 1033, 1038 (1974). Our court has never explicitly adopted this principle. See Iowa Civil Jury Instruction 1000.6 cmt. (1991). In Cooley v. Quick Supply Co., 221 N.W.2d 763, 765 (Iowa 1974), a case involving a prematurely exploding dynamite fuse, the jury considered both a strict liability count and a negligence count. In the strict liability count the only product defect submitted was that the fuse did not appear to be ignited when it was in fact ignited. Id. The sole count of negligence alleged that the defendant failed to warn as to the safe and proper use of the product. Id. We affirmed the jury's verdict for the plaintiff. Id. at 773.

Generally, there are two competing views regarding the failure to warn/strict liability question. The first is that there is little, if any, difference between strict liability and negligence in failure to warn cases. Flaminio v. Honda Motor Co., 733 F.2d 463, 467 (7th Cir.1984) (Wisconsin); Standhardt v. Flintkote Co., 84 N.M. 796, 803-04, 508 P.2d 1283, 1290-91 (1973); Opera v. Hyva, Inc., 86 A.D.2d 373, 450 N.Y.S.2d 615, 618 (1982); Hardiman v. Zep Mfg. Co., 14 Ohio App.3d 222, 470 N.E.2d 941, 944 (1984); Castrignano v. E.R. Squibb & Sons, Inc., 546 A.2d 775, 782 (R.I.1988). Opposing this view are cases that apply varying forms of a strict liability analysis in failure to warn cases. Some jurisdictions impose strict liability by imputing knowledge of a product's propensity to injure as it did to a defendant-manufacturer, and then asking the jury: With such knowledge would the defendant have been negligent in selling the product without a warning? See Tucson Indus., 501 P.2d at 941; Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197, 200 (Ky.1976); Phillips, 525 P.2d at 1039; Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893, 902-03 (1975); Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wash.2d 747, 818 P.2d 1337, 1343-46 (1991).

Other jurisdictions apply strict liability by requiring plaintiffs to prove defendants knew or should have known of the danger. See Anderson, 281 Cal.Rptr. at 537-38, 810 P.2d at 558-59; Woodill, 37 Ill.Dec. at 308, 402 N.E.2d at 198; Zenobia, 601 A.2d at 641; Mauch, 345 N.W.2d at 345. Usually, these courts require plaintiffs to prove that the defendant, "because of the 'present state of human knowledge,' knew or should have known of the danger presented by the use or consumption of a product." Woodill, 37 Ill.Dec. at 308, 402 N.E.2d at 198 (citing Restatement (Second) of Torts, § 402A cmt. k (1965)); see also Zenobia, 601 A.2d at 641; Anderson, 281 Cal.Rptr. at 537, 810 P.2d at 558 (To prove strict liability in failing to warn, plaintiffs must prove that defendant did not adequately warn of risk "known or knowable in light of the generally recognized and prevailing best scientific knowledge at the time of manufacture and distribution.").

A different analysis is made in some cases to distinguish strict liability from negligence concepts in failure to warn cases on the ground that in negligence the focus is on the defendant's conduct, while in strict liability, the focus is on the condition of the product. See Anderson, 281 Cal.Rptr. at 537, 810 P.2d at 558; Woodill, 37 Ill.Dec. at 308, 402 N.E.2d at 198; Mauch, 345 N.W.2d at 346; Ayers, 818 P.2d at 1345.

After reviewing the authorities and comments on the failure to warn question, we believe any posited distinction between strict liability and negligence principles is illusory. We fail to see any distinction between negligence and strict liability in the analyses of those jurisdictions injecting a knowledge requirement into their strict liability/failure to warn equation. See, e.g., Woodill, 37 Ill.Dec. at 308, 402 N.E.2d at 198. The standard applied by these "strict liability" jurisdictions is exactly the same in practice as holding defendants to an expert standard of care under a negligence theory. The burden on plaintiffs is the same. They must prove a defendant knew or should have known of potential risks associated with the use of its product, yet failed to provide adequate directions or warnings to users. With regard to those jurisdictions imputing to defendants knowledge of its product's propensity to injure as it...