Thompson v. Rockford Mach. Tool Co.

• Decision Date: 20 October 1987
• Docket Number: No. 7816-7-III,7816-7-III
• Citation: 744 P.2d 357,49 Wn.App. 482
• Parties: , 56 USLW 2308, 4 UCC Rep.Serv.2d 1418, Prod.Liab.Rep. (CCH) P 11,629 Kendel S. THOMPSON and Lynn J. Thompson, Appellants, v. ROCKFORD MACHINE TOOL CO., an Illinois Corporation, and Hallidie Machine, Inc., a Washington Corporation, Defendants, The Boeing Company, a Delaware Corporation, Respondent.
• Court: Washington Court of Appeals

Page 482

49 Wn.App. 482

744 P.2d 357, 56 USLW 2308, 4 UCC

Rep.Serv.2d 1418,

Prod.Liab.Rep. (CCH) P 11,629

Kendel S. THOMPSON and Lynn J. Thompson, Appellants, v. ROCKFORD MACHINE TOOL CO., an Illinois Corporation, and Hallidie Machine, Inc., a Washington Corporation, Defendants The Boeing Company, a Delaware Corporation, Respondent.

No. 7816-7-III.

Court of Appeals of Washington Division 3.

Oct. 20, 1987.

R. Bruce Owens, Coeur d'Alene, Ind., for appellants.

Robert P. Hailey, Spokane, for respondent.

McINTURFF, Chief Judge.

Kendel S. Thompson and his former wife brought this action for damages sounding in strict liability, negligence and breach of warranty against Rockford Machine Tool Co., the Boeing Co. and Hallidie Machine, Inc. (Rockford, Boeing and Hallidie, respectively.) The Thompsons appeal the Superior Court's summary dismissal only as to Boeing. ¹ We reverse the dismissal of the Thompsons' strict liability claim, but affirm the dismissal of the remaining two claims.

The complaint alleges Mr. Thompson was injured operating an hydraulic planer in March 1980 ² while employed by Allied Safe & Vault Co. Rockford manufactured the planer and sold it to Boeing sometime prior to the end of 1957. Boeing used the planer in its Renton tooling/jig shop until early 1970. Boeing employees Jose Rosas and Clarence Colsrud attested that no accidents occurred in connection with the planer during that time.

In 1968, Boeing's rebuild shop reconditioned the machine. In their affidavits, Boeing employees Edward Rommel and Ronald Henkel stated that Boeing's purpose in rebuilding equipment was to continue using it in its business, not to resell it, and that the planer was in fact returned to the tooling/jig shop. Both employees gave detailed descriptions of the reconditioning procedure. They stated Boeing does not make any changes in the design of machines it rebuilds but, rather, reassembles and realigns the machines in accordance with factory specifications. In response, the Thompsons relied on a portion of Mr. Rommel's deposition in which he says that machines were rebuilt according to machine tool standards and OSHA standards in effect at that time. ³

Due to a downturn in business in 1970, Boeing sold much of its equipment to alleviate cash flow problems. On May 13, 1971, it sold the planer to Allied Safe & Vault Co. through Hallidie. At the time of the sale the planer bore a tag indicating it had been rebuilt by Boeing, Inc. Mr. Thompson cited the superior court to the portions of Mr. Rommel's and Mr. Keaster's depositions which state Boeing has a special ongoing department that disposes of surplus equipment. ⁴

According to Mr. Thompson the accident occurred when he was loading some vault doors onto the planer. Because the doors extended past the edge of the planer's table, a coworker used a forklift to hold up the overhang. One of the forks hit the control lever on the left side of the planer, opposite the side on which the operator usually stands, and the machine started, injuring Mr. Thompson who was then working on top of the table. The lever on the left side of the machine did not have a safety detent (notch) but relied on the safety detent which exited on the operator's side of the machine.

In opposition to Boeing's motion for summary judgment, the Thompsons submitted the affidavit of Vaughn P. Adams, an industrial engineer, who inspected the machine, reviewed safety engineering standards, and attested:

7. The [machine's] transfer table actuation lever was placed within a region of foreseeable, inadvertent contact. Inadvertent contact will cause the transfer table to advance into the machine resulting in serious personnel injury.

8. The activation control lever was not guarded or otherwise designed to prevent against inadvertent activation.

* * *

11. There was no "status" indicator light on the subject machine to warn or alert an operator that the equipment was in an operating mode ("on").

12. There was no guard enclosing the planer bed to protect operators/users of the hazards associated with the reciprocating table.

* * *

15. Without a means to prevent against inadvertent actuation of the reciprocating table and a status indicator display, the machine is unreasonably hazardous for operation. ⁵

First, we consider the Thompsons' strict liability claim. Restatement (Second) of Torts § 402A (1965) provides in part:

(1) 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 ... 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 ... without substantial change in the condition in which it is sold.

(Italics ours.) Washington adopted section 402A in Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 149, 542 P.2d 774 (1975); and Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969).

The initial question we address is whether strict liability under section 402A for design and manufacturing defects should be imposed on a dealer of used goods. ⁶ This question has produced a split of authority. See, Annot.,Strict Liability and Tort: Liability of Seller of Used Product, 53 A.L.R.3d 337 (1973); W. Kimble & R. Lesher, Products Liability § 64, at 112 (1979); and 1 American Law of Products Liability 3d § 5:8, at 20 (1987).

In holding such dealers strictly liable, the New Jersey court reasoned:

An economic analysis of enterprise liability, which includes direct as well as indirect costs, would charge those in the business of selling a defective product with responsibility for all harms, physical and economic, which result from its use. To a considerable extent--with respect to new goods--the manufacturer bases the cost of his product on his expenses, which include damages caused by the product and insurance to cover those damages. This cost is spread among all the customers for that product; it reflects the justifiable expectations of customers regarding safety, quality and durability of new goods. Sellers of used goods may similarly distribute their costs of doing business which, in turn, will reflect what is considered by the public to be justifiable expectations regarding safety, quality and durability of used goods.

... [R]ealistic expectations of quality and durability will be lower for used goods, commensurate with their age, appearance and price.

However, safety of the general public demands that when a used motor vehicle, for example, is sold for use as a serviceable motor vehicle (and not as junk parts), absent special circumstances, the seller be responsible for safety defects whether known or unknown at time of sale, present while the machine was under his control. Otherwise, the buyer and the general public are bearing the enterprise liability stemming from introduction of the dangerously defective used vehicle onto the public highways....

* * * It is conceded that a buyer of a used car, for example, cannot expect it to last as long as a new one. But it can be argued that he is entitled to expect that there is no latent defect in the brakes or other parts of the car. (2 Frumer & Friedman, Products Liability § 19.03, at 5-129).

(Citations omitted. Italics ours.) Turner v. International Harvester Co., 133 N.J.Super. 277, 336 A.2d 62, 69 (1975). ⁷

Washington looks at similar policy considerations in applying section 402A:

The paramount policy to be promoted by the rules of strict liability is the protection of otherwise defenseless victims of manufacturing defects and the spreading throughout society of the cost of compensating them. The theoretical foundation of strict liability is that manufacturers who place their products in the stream of commerce impliedly represent their goods as safe for intended use.

Hall v. Armstrong Cork, Inc., 103 Wash.2d 258, 265, 692 P.2d 787 (1984) (citing inter alia, Seattle-First Nat'l Bank v. Tabert, supra ). See also Zamora v. Mobil Oil Corp., 104 Wash.2d 199, 206-07, 704 P.2d 584 (1985). These objectives are furthered by holding a dealer of used products strictly liable. Nothing in section 402A requires the seller to be in the "initial" chain of distribution, and there is no justification for finding that dealers of used goods as a class cannot shift losses, distribute costs, or insure against losses. Thus, we hold that section 402A applies to a dealer of used products. ⁸

In so holding, we have considered and rejected the rationale of the Oregon and California courts which have reached the opposite result. In Tillman v. Vance Equip. Co., 286 Or. 747, 596 P.2d 1299 (1979), ⁹ the court noted that in Oregon imposition of strict liability is justified, in part, on the theory that a seller makes an implied representation of safety to the consumer. The Tillman court reasoned that the sale of a used product does not generate the kind of safety expectations created when a product is first put on the market.

We do not find this distinction persuasive. Consumers of used products have reasonable safety expectations also. Liability is imposed under section 402A if the product is not reasonably safe, i.e., if it is unsafe to an extent beyond that which would be reasonably contemplated by the ordinary consumer. Tabert, 86 Wash.2d at 154, 542 P.2d 774. Under Tabert:

In determining the reasonable expectations of the ordinary consumer, a number of factors must be considered. The relative cost of the product, the gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk may be relevant in a particular case. In other instances the nature of the product or the nature of the claimed defect may make other factors relevant to the issue.

Tabert, at 154, 542 P.2d 774. This standard allows inquiry into matters such as age and condition of a used product and provides sufficient protection to a dealer...