Seattle-First Nat. Bank v. Tabert

• Citation: 542 P.2d 774,86 Wn.2d 145
• Decision Date: 26 November 1975
• Docket Number: No. 43492,SEATTLE-FIRST,43492
• Parties: NATIONAL BANK, as Administrator of the Estate of William R. Oaklund and Susan L. Oaklund, his wife, both Deceased, Respondent, v. T. E. TABERT, a single man, and Jerry B. Allen, et ux., Defendants, and Volkswagen of America, Inc., a New Jersey Corporation, Appellant, and Evald Leaf, doing business as Leaf's Automotive Service, Defendant.
• Court: United States State Supreme Court of Washington

Page 145

86 Wn.2d 145

542 P.2d 774

SEATTLE-FIRST NATIONAL BANK, as Administrator of the Estate of William R. Oaklund and Susan L. Oaklund, his wife, both Deceased, Respondent, v. T. E. TABERT, a single man, and Jerry B. Allen, et ux., Defendants and Volkswagen of America, Inc., a New Jersey Corporation, Appellant and Evald Leaf, doing business as Leaf's Automotive Service, Defendant.

No. 43492.

Supreme Court of Washington, En Banc.

Nov. 26, 1975.

Hackett, Beecher & Hart, A. R. Hart, Seattle, for appellant.

Ken Earl, Charles T. Schillberg, Moses Lake, for respondent.

BRACHTENBACH, Associate Justice.

Plaintiff alleges a claim against the importer of a Volkswagen microbus, founded solely on strict liability, contending that a design defect either caused or enhanced the injuries to the driver and passenger, resulting in their deaths. The trial court granted a summary judgment for defendant. The Court of Appeals reversed, Seattle-First Nat'l Bank v. Volkswagen of America, Inc., 11 Wash.App. 929, 525 P.2d 286 (1974). We affirm the Court of Appeals.

Plaintiff sues as administrator of the estates of a husband and wife who were killed when the Volkswagen microbus, being driven by the husband in which the wife was a passenger, collided with the rear of a flatbed truck. The microbus is a snub-nosed type van with the driver and passenger sitting very close to the front panel of the vehicle. By affidavit in opposition to the summary judgment motion, plaintiff's expert concluded that the collision occurred at a relative speed of less than 20 miles per hour. That affidavit alleged that the defect was the lack of structural integrity in the front panel so that if the vehicle collided with a solid object at 10 miles per hour or faster the passenger compartment would be invaded. Thus it is not the snub-nose design per se which is claimed to be defective, but rather the lack of structural strength in the front panel.

Before discussing the propriety of granting a summary judgment, we need to address four controlling issues:

(1) Does strict liability extend beyond a manufacturer to others in the chain of product distribution such as the defendant importer?

(2) Does such liability encompass a design defect of the nature alleged here?

(3) If so, what are the boundaries of that liability?

(4) Was the alleged defect so open and obvious as to preclude recovery, I.e., is assumption of the risk present?

Preliminary to the first issue, we note that the courts have struggled for a long time in their efforts to fit into traditional legal concepts the potential liability of sellers or suppliers of defective, injury-producing products. The notions of privity, implied warranties, inherently dangerous defects and ordinary negligence all crossed paths in these judicial efforts. Prosser, The Assault Upon the Citadel, 69 Yale L.J. 1099 (1960), and Prosser, Strict Liability to the Consumer, 18 Hastings L.J. 9 (1966).

Ultimately the legal fictions, traditional concepts and tortured reasoning were cast aside in Justice Traynor's landmark opinion in Greenman v. Yuba Power Prods., Inc., 59 Cal.2d 57, 62, 64, 27 Cal.Rptr. 697, 700, 377 P.2d 897, 900 (1963). The essence of the holding is contained in two sentences:

A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. . . .

* * *

* * *

To establish the manufacturer's liability it was sufficient that plaintiff proved that he was injured while using the (product) in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the (product) unsafe for its intended use.

About the time of the Greenman opinion, the American Law Institute was drafting the Second Restatement of Torts. The rapidity of change in this area of the law is shown by the Institute's expansion of the strict liability theory while it had various drafts under consideration. Tentative Draft No. 6 (1961) limited strict liability to food for human consumption. The theory was expanded the next year in Tentative Draft No. 7 (1962), to include any product intended for intimate bodily use. The final version, adopted in 1964, encompassed all products. It is contained in Restatement (Second) of Torts § 402A (1965), which provides in part:

One who sells any product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to liability for physical harm thereby caused to the ultimate user . . .

While the influence of Greenman on the Restatement is apparent, Greenman appears to encompass a stricter degree of liability than section 402A. Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972); Clary v. Fifth Avenue Chrysler Center, Inc., 454 P.2d 244 (Alaska 1969).

We adopted the theory of section 402A in Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969), as to a manufacturer, but expressly reserved the question whether it should apply to others in the chain of product distribution.

According to the Restatement, strict liability is applicable if 'the seller is engaged in the business of selling such a product' even though 'the user or consumer has not bought the product from or entered into any contractual relation with the seller.' (Italics ours.) Restatement (Second) of Torts § 402A(1)(a) and (2)(b). Comment f states that the rule is intended to apply to any manufacturer, wholesale or retail dealer or Distributor. Thus, such liability is extended to those in the chain of distribution.

Imposition of liability upon those in the business of selling or distributing a product, aside from the manufacturer, has been grounded upon several policy considerations. They are summarized and analyzed in 45 Wash.L.Rev. 431 (1970). Wholesalers and distributors have been held responsible under a strict liability doctrine in a number of cases. Barth v. B. F. Goodrich Tire Co., 265 Cal.App.2d 228, 250, 71 Cal.Rptr. 306 (1968); Dunham v. Vaughan & Bushnell Mfg. Co., 42 Ill.2d 339, 247 N.E.2d 401 (1969); Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362 (Mo.1969); Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Dean Prosser concludes that

Except in a state or two, there is now general agreement that it (strict liability) applies to a wholesale dealer, and to one at retail. All of the valid arguments supporting the strict liability would appear to have no less force in the case of the dealers . . . to justify giving the consumer the maximum of protection, and requiring the dealer to argue out with the manufacturer any questions as to their respective liability.

(Footnotes omitted.) W. Prosser, Torts § 100, at 665 (4th ed. 1971).

Clearly the defendant importer is within the chain of distribution and within the scope of liability under section 402A. We so hold.

The second issue is whether strict liability extends to a design defect. In holding that strict liability does encompass a design defect we join the prevailing, well reasoned majority of cases. See for example, Wright v. Massey-Harris, Inc., 68 Ill.App.2d 70, 215 N.E.2d 465 (1966); Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943 (Mo.C.A.1970); Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970); Pizza Inn, Inc. v. Tiffany, 454 S.W.2d 420 (Tex.Civ.App.1970); W. Prosser, Torts § 99, at 659 (4th ed. 1971); Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229 (1970); Thomas v. General Motors Corp., 13 Cal.App.3d 81, 88, 91 Cal.Rptr. 301 (1970): 'Strict liability encompasses both design and manufacture.'

A product may be just as dangerous and capable of producing injury whether its condition arises from a defect in design or from a defect in the manufacturing process. While a manufacturing defect may be more easily identified or proved, a design defect may produce an equally dangerous product. The end result is the same--a defective product for which strict liability should attach.

The third and more difficult issue is a determination of the limits and boundaries of liability in a case like this. Plaintiff's action is premised upon an allegation that the claimed defect did not cause or contribute to the original collision, but caused enhanced injuries. Recovery for such theory was approved in principle in Baumgardner v. American Motors Corp., 83 Wash.2d 751, 522 P.2d 829 (1974). Defendant contends, and correctly so, that Baumgardner did not answer all the problems which arise in a design defect case. In Baumgardnder, the record had not reached a stage which disclosed to us whether the claimed defect was one of manufacture or design. Therefore we did not reach the matters raised by defendant which in essence require us to provide the criteria, definitions and limitations of liability raised by this record.

The doctrine of strict liability does not impose legal responsibility simply because a product causes harm. Such a result would embody absolute liability which is not the import of strict liability. Lascher, Strict Liability in Tort for Defective Products . . ., 38 S.Cal.L.Rev. 30 (1965); Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J. 5, 13 (1965).

Since we have adopted the theory of section 402A, it is the starting point for our analysis. The literal language of the section creates liability for a product in a Defective condition which is Unreasonably dangerous. The Restatement comments add flesh to these bare bone words. Under comment g entitled 'Defective condition' it is stated:

The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, In a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.

(Italics ours.)

Comment i, entitled 'Unreasonably dangerous' states:

The article sold must be dangerous to an extent beyond that Which would be contemplated by the...