Tiderman v. Fleetwood Homes of Washington

• Decision Date: 09 August 1984
• Docket Number: No. 50251-0,50251-0
• Citation: 102 Wn.2d 334,684 P.2d 1302
• Parties: , 45 A.L.R.4th 743, 39 UCC Rep.Serv. 442 Maureen R. TIDERMAN, a married woman, Petitioner, v. FLEETWOOD HOMES OF WASHINGTON, a Washington corporation, and Olympic Auto and Trailer Sales, a Washington corporation, Respondents, Willamette Industries, a foreign corporation, and Van Ply, Inc., a foreign corporation, Defendants.
• Court: Washington Supreme Court

Page 334

102 Wn.2d 334

684 P.2d 1302, 45 A.L.R.4th 743, 39

UCC Rep.Serv. 442

Maureen R. TIDERMAN, a married woman, Petitioner, v. FLEETWOOD HOMES OF WASHINGTON, a Washington corporation, and Olympic Auto and Trailer Sales, a Washington

corporation, Respondents,

Willamette Industries, a foreign corporation, and Van Ply,

Inc., a foreign corporation, Defendants.

No. 50251-0.

Supreme Court of Washington,

En Banc.

Aug. 9, 1984.

Taylor, Taylor & Gay, S. Brooke Taylor, Carl Lloyd Gay, Port Angeles, for petitioner.

Edwards & Barbieri, Malcolm L. Edwards, Seattle, for respondents.

DOLLIVER, Justice.

Plaintiff alleged she suffered injuries caused by exposure to formaldehyde fumes emitted by particle board in her new mobile home. She was awarded $566,500 in damages by the jury. The Court of Appeals, finding erroneous and prejudicial jury instructions, reversed and remanded for new trial. Tiderman v. Fleetwood Homes, 35 Wash.App. 872, 670 P.2d 685 (1983). We reverse the decision of the Court of Appeals and reinstate the judgment of the trial court.

In May 1977, plaintiff and a girl friend (not a party to this suit) bought a new mobile home from defendant Olympic Auto and Trailer Sales. The home was manufactured by defendant Fleetwood Homes of Washington. Both buyers experienced eye and throat irritation shortly after occupying their new home. The plaintiff's condition worsened and she suffered asthma attacks beginning in July 1977. She consulted an allergist who suggested formaldehyde fumes in her new home might be causing her asthma. The plaintiff moved out of her home but continued to suffer the attacks. Subsequently, she was diagnosed as asthmatic and on occasion suffered from a supra cord obstruction, a collapse of the airway in her throat.

In July 1979, plaintiff, alleging she had developed a severe and permanent case of asthma, sued for rescission of contract and damages for her personal injuries under theories of negligence, breach of warranties, breach of contract, strict liability, and RCW 19.86. The evidence at trial established her as a person in excellent health who regularly engaged in strenuous physical activity and made her living as a physical education teacher. Plaintiff's allergist experts diagnosed her as suffering from asthma caused by exposure to formaldehyde fumes in her mobile home. Expert testimony indicated 20 to 25 percent of the population is allergic or potentially sensitive to various substances, e.g., formaldehyde. The defense experts diagnosed Tiderman as having a genetic predisposition to asthma.

The jury found defendants liable without specifying its reliance on a theory of liability. While it also found Tiderman to have been negligent, it found this was not a proximate cause of her injury. On appeal, 2 of the 24 jury instructions are alleged by defendants to be erroneous.

Instruction 16 states:

The builder or distributor of a mobile home impliedly warrants to the buyer that the mobile home is merchantable. This warranty of merchantability means that the mobile home is fit for the purchaser to live in.

(Italics ours.) The defense objected to the italicized phrase and claimed "the purchaser" could be read to refer to a specific individual, i.e., the plaintiff. Defendants assert this is an incorrect statement of the law, misleading, and prevented the jury from fairly considering their argument that the plaintiff was peculiarly sensitive and thus not protected by an implied warranty of merchantability. They propound as a substitute the phrase "fit for its intended use as a residence".

In Esborg v. Bailey Drug Co., 61 Wash.2d 347, 378 P.2d 298 (1963), we held where, in an action for dermatitis allegedly caused by defendant's hair tint product, the defendant raised the defense of allergy, the trial court on remand had to determine whether the product was "harmful to a reasonably foreseeable and appreciable class or number of potential users." Esborg, at 358, 378 P.2d 298. We noted what constitutes a class "is incapable of precise or quantitative definition." However, "[i]n the absence of proof to the contrary, upon which the minds of reasonable men could not differ, it would appear to present a question of fact for the trier of the facts ..." Esborg, at 358, 378 P.2d 298. Liability may be found when plaintiff is "a member of an identifiable and significant class or number of consumers, composed of the innocently allergic." Esborg, at 357, 378 P.2d 298. In contrast, liability is denied when plaintiff is "peculiarly unique in susceptibility to the content of the product involved ..." Esborg, at 357, 378 P.2d 298. See also Annot., Seller's or Manufacturer's Liability for Injuries as Affected by Buyer's or User's Allergy or Unusual Susceptibility to Injury from Article, 26 A.L.R.2d 963 (1952 & Supp.1981).

The Court of Appeals reversed plaintiff's verdict because it found the implied warranty jury instruction misleading under Esborg principles. The court determined Tiderman to have presented ample evidence from which the jury could have found formaldehyde was harmful to a reasonably foreseeable and appreciable number of potential consumers. However, because there was also "ample evidence to the contrary", the instruction was erroneous. Tiderman, 35 Wash.App. at 875, 670 P.2d 685.

Jury instructions are sufficient if they "(1) permit each party to argue his theory of the case, (2) are not misleading and (3) when read as a whole, properly inform the trier of fact of the applicable law." Brown v. Spokane Cy. Fire Protec. Dist. 1, 100 Wash.2d 188, 194, 668 P.2d 571 (1983). The challenged jury instruction did not foreclose defendants from arguing their defense theory to the jury. Only on appeal do defendants stress the allergy defense. At trial, their main contention was that Tiderman was genetically predisposed to acquire asthma. It appears the jury did not accept defendants' genetic predisposition theory but believed the formaldehyde in fact caused plaintiff's injuries.

Moreover, the instruction is not misleading. The "ordinary purpose" for which mobile homes are used should obviously be "fit for the purchaser to live in." Tiderman was consistently referred to throughout the instruction only as "the plaintiff". Additionally, the preceding instruction given the jury informed it plaintiff had the burden of proving "that the defendants ... breached implied warranties that the mobile home was safe and fit for its intended use as a residence". Defendants' proposition that "the purchaser" specifically referred to the plaintiff is without merit.

The trial evidence does not support the Court of Appeals' decision. Tiderman presented evidence that exposure to certain concentrations of formaldehyde is harmful to persons. Her doctors, moreover, unequivocally testified she was harmed by the gas. The defense medical experts did not refute this evidence and...