Peterson v. Idaho First Nat. Bank

• Decision Date: 10 May 1990
• Docket Number: No. 17991,17991
• Citation: 117 Idaho 724,791 P.2d 1303
• Parties: , Prod.Liab.Rep. (CCH) P 12,480 Kenneth M. PETERSON, Plaintiff-Appellant, v. The IDAHO FIRST NATIONAL BANK, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1303

791 P.2d 1303

117 Idaho 724, Prod.Liab.Rep. (CCH) P 12,480

Kenneth M. PETERSON, Plaintiff-Appellant, v. The IDAHO FIRST NATIONAL BANK, Defendant-Respondent.

No. 17991.

Supreme Court of Idaho.

May 10, 1990.

Ringert, Clark, Harrington, Reid, Christenson & Kaufman, Boise, for plaintiff-appellant. Andrew M. Harrington, argued.

Hall, Farley, Oberrecht & Blanton, Boise, for defendant-respondent. Phillip S. Oberrecht, argued.

BAKES, Chief Justice.

This is a products liability action. The appellant (Peterson) brought suit against respondent Idaho First National Bank (IFNB), claiming that the used mobile home he had purchased from IFNB was in a defective condition and unreasonably dangerous and, as such, caused Peterson and his wife to suffer illness (the illness stemmed from an alleged emission of a high formaldehyde concentration from the mobile home). The district court entered summary judgment in favor of IFNB on the grounds that a commercial seller of used products is not subject to strict liability in tort.

In March of 1984, the plaintiff, Kenneth M. Peterson, and his wife purchased on credit from IFNB a used mobile home which IFNB had financed and then repossessed. Prior to selling the repossessed mobile home to Peterson, the bank repaired the exterior skirting, cleaned the interior, and checked and winterized the water pipes. There is no evidence that it performed any repair, reconditioning or modification which would affect the level of formaldehyde emissions in the home. There also is no evidence to show that the bank was aware that the home had an unacceptable level of formaldehyde emissions or that the bank performed any inspection or tests that would show the presence of formaldehyde emissions.

After paying for two years, Peterson defaulted on the payments on the note he gave to purchase the mobile home, and the bank sued on Peterson's note and foreclosed its security interest in the mobile home. In defending that action, Peterson alleged failure of consideration due to alleged high formaldehyde levels in the mobile home which made it uninhabitable. The district court entered judgment in the court trial for the bank in the foreclosure action, finding that the contractual defenses of revocation of acceptance and failure of consideration were not proven by Peterson. No appeal was taken by Peterson from the judgment entered in that case.

On August 11, 1987, the plaintiff filed the instant action, alleging various physical ailments which were caused by the "uninhabitable condition of the mobile home purchased from defendant." The plaintiff alleged the mobile home had been tested and found to contain a high concentration of formaldehyde. The plaintiff alleged he suffered "illness, lingering weakness, and emotional distress caused by the uninhabitable condition of the mobile home purchased from defendant."

On May 12, 1988, the district court granted partial summary judgment in favor of the bank on the plaintiff's claims for breach of implied warranties and denied summary judgment with respect to the plaintiff's remaining tort theory of strict product liability. The bank subsequently renewed its motion for summary judgment on the strict liability theory, and the district court granted the bank's renewed motion for summary judgment on the grounds that a commercial seller of used products is not subject to strict liability in tort in Idaho. The district court predicated its decision upon decisions from California and Oregon which hold that the relevant policy considerations do not justify imposition of strict liability for dangerously defective products on dealers in used goods. Wilkinson v. Hicks, 126 Cal.App.3d 515, 179 Cal.Rptr. 5 (1981); Tillman v. Vance Equipment Co., 286 Or. 747, 596 P.2d 1299 (1979).

The single issue in this appeal is whether under either the statutes or the common law in Idaho a commercial seller of used products is subject to strict liability for the products it sells. This is the first occasion for this Court to address this question.

Respondent Idaho First National Bank argues, in support of the trial court's judgment in its favor, that both the common law of Idaho, and the statutes of the State of Idaho preclude the imposition of strict liability in tort upon the seller of used products. Respondent particularly points to the Idaho Product Liability Reform Act, I.C. § 6-1402(1), which specifically provides that, "The term 'product seller' does not include: ... (b) a commercial seller of used products...." The appellant, on the other hand, argues that common law liability should be extended to commercial sellers of used products and that the statute is inapplicable.

We look first to the common law claim. In Shields v. Morton Chemical Co., 95 Idaho 674, 518 P.2d 857 (1974), this Court first applied the concept of strict liability adopted in the Restatement (Second) of Torts, Section 402A. In Shields, a seed company brought suit against the manufacturer of a defectively manufactured pesticide it had used to treat seeds. Recognizing that strict liability applied to the manufacturer of the pesticide, our holding did not go on to discuss the applicability of strict liability of a non-manufacturer-seller of a used product.

In Rindlisbaker v. Wilson, 95 Idaho 752, 519 P.2d 421 (1974), we extended the concept of strict liability in tort to the defective design of a product, as distinguished from the defective manufacturer claims in Shields. However, as in Shields, we did not address in Rindlisbaker the application of 402A beyond the confines of the facts of that case, which was the liability for defective design of a product. Since Shields and Rindlisbaker were decided, no subsequent case in Idaho has raised the issue of whether strict liability extends to the sellers of used products.

Not having addressed this issue in Idaho, we turn to the rulings of our sister states for guidance. There is currently a split of authority on the question. On the one hand, some jurisdictions have imposed strict liability on sellers of used products. See, e.g., Turner v. International Harvester Co., 133 N.J.Super. 277, 336 A.2d 62 (1975); Hovenden v. Tenbush, 529 S.W.2d 302 (Tex.App.1975); Jordan v. Sunnyslope Appliance Propane & Plumbing Supplies Co., 135 Ariz. 309, 660 P.2d 1236 (App.1983); and Thompson v. Rockford Machine Tool Co., 49 Wash.App. 482, 744 P.2d 357 (Wash.1987). Conversely, other courts have refused to extend strict liability to sellers of used products. See, e.g., Wilkinson v. Hicks, 126 Cal.App.3d 515, 179 Cal.Rptr. 5 (1981); Tillman v. Vance Equipment Co., 286 Or. 747, 596 P.2d 1299 (1979).

Despite the conflicting results obtained by the various jurisdictions, most states generally concur that, in the absence of a statute resolving the issue, the resolution of this question hinges upon a common law analysis of the policies that underpin the doctrine of strict liability and whether those policies are promoted by applying the doctrine to sellers of used products. In Tillman v. Vance Equipment Co., 596 P.2d 1299 (Or.1979), the Oregon Supreme Court identified three justifications for adoption of strict liability. They are: (1) compensation or ability to spread the risk (enterprise liability); (2) satisfaction of the reasonable expectations of the purchaser or user (implied representational aspect); and (3) overall risk reduction (the impetus to manufacture a better product). With respect to the concept of spreading the risk, the Tillman court stated:

While dealers in used goods are, as a class, capable like other businesses of providing for the compensation of injured parties and the allocation of the cost of injuries caused by the products they sell, we are not convinced that the other two considerations ... weigh sufficiently in this class of cases to justify imposing strict liability on sellers of used goods generally.

596 P.2d at 1303. Appellant argues that the concept of spreading the risk expressed in comment c to Section 402A, Restatement (Second) of Torts, is the primary policy behind strict liability, and that this Court, in applying Section 402A in Shields and Rindlisbaker necessarily adopted comment c. We disagree. The application or adoption of any section of the Restatement in a given case does not necessarily include all the comments thereto. As pointed out in Toner v. Lederle Laboratories, 112 Idaho 328, 732 P.2d 297 (1987), we will review each comment on a case by case basis, as the occasion arises, to determine if such comment warrants incorporation into the common law of Idaho. We have expressly rejected portions of the Restatement when it did not fit the needs of Idaho jurisprudence. Idaho Bank & Trust v. First Bancorp, 115 Idaho 1082, 1084, 772 P.2d 720, 722 (1989) ("We decline to adopt the Restatement standard," [regarding liability of a professional for negligent misrepresentation].). Moreover, while spreading the risk may have been one of the policy considerations in the Restatement Second's adoption of strict liability, we did not declare that to be our reason for adopting strict liability in Shields and Rindlisbaker.

With respect to the implied representational aspect of strict liability, we think it apparent that, unlike the market for new products, the prevailing custom in the used product industry is that the seller does not offer, and the buyer does not expect, either express or implied representations of quality. As the Oregon court in Tillman explained:

Those markets, generally speaking, operate on the apparent understanding that the seller, even though he is in the business of selling such goods, makes no particular representation about their quality simply by offering them for sale. If a buyer wants some assurance of quality, he typically either bargains for it in the specific transaction or seeks out a dealer who routinely offers it....

596 P.2d at 1303. Appellant urges us to find fault in the aforementioned analysis, and...