Perkins v. Fit-Well Artificial Limb Co., FIT-WELL

• Decision Date: 04 October 1973
• Docket Number: FIT-WELL,No. 13089,13089
• Citation: 30 Utah 2d 151,514 P.2d 811
• Parties: d 151 Lyla PERKINS, Plaintiff and Appellant, v.ARTIFICIAL LIMB CO. et al., Defendants and Respondents.
• Court: Utah Supreme Court

Page 811

514 P.2d 811

30 Utah 2d 151

Lyla PERKINS, Plaintiff and Appellant, v. FIT-WELL ARTIFICIAL LIMB CO. et al., Defendants and Respondents.

No. 13089.

Supreme Court of Utah.

Oct. 4, 1973.

E. Earl Greenwood, Jr., Anthony M. Thurber, Salt Lake City, for plaintiff and appellant.

H. Wayne Wadsworth, Salt Lake City, for Fit-Well Artificial Limb.

Ray R. Christensen, Salt Lake City, for New York Wire Co.

ELLETT, Justice:

The plaintiff, appellant herein, appeals from a judgment based on an adverse jury verdict.

The assignments of error may be grouped under two headings, viz.:

1. The refusal of the trial court to submit the case to the jury under a theory of strict liability in tort, and

2. The curtailment of the examination of plaintiff's expert witness.

The plaintiff, a victim of polio, requires crutches to assist her in walking. She fell and received grievous injuries when a crutch manufactured by the predecessor of New York Wire Company broke as she was descending some steps. She based her claim against the manufacturer on negligence in the design of the crutch and on a claim of defective weakness in the shaft of the crutch. She sued the partnership, claiming that the partners or their employees sold her the defective crutch and not only negligently failed to warn her of the defective condition but instead advised and assured her that the crutch was in a safe and proper condition for use.

At the beginning of the trial the court ruled that strict liability in tort for defective products was not permitted in Utah, and the appellant claims this was an erroneous statement of the law.

This court has not had an occasion to decide that question heretofore, and we need not now decide it because we do not believe the facts of the case would warrant the application of that doctrine even if we should hold that it was applicable in a proper case.

There is no question but that the crutch broke because of the wearing of a loose sleeve by which the handle was affixed to the shaft of the crutch. While the plaintiff denies there was ever a change made in the pin through the sleeve, it can hardly be doubted that the original aluminum pin had been replaced by one of steel and that the steel pin caused a greater amount of wear on the shaft than the original pin would have caused.

The crutch was used for some five years after purchase and after the plaintiff knew the handle was loose. When the user of a defective product knows, or in the exercise of ordinary care should know, of the defect in a product and of the danger inherent therein, the doctrine of strict liability in tort should not apply to harm occurring to the purchaser after such knowledge. Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461, 298 N.E.2d 622 (1973). However, it cannot be said as a matter of law that plaintiff assumed the risk before the crutch broke or that she was guilty of contributory negligence because she claims that on two occasions she took it to the Fit-Well Artificial Limb Company's office to inquire about the loose handle and that upon each occasion she was assured that it was safe and proper to use.

As to her claim of curtailment of examination of her expert witness, we see no error. The trial judge is allowed a wide...