Wights v. Staff Jennings, Inc.

• Decision Date: 10 September 1965
• Citation: 241 Or. 301,405 P.2d 624
• Parties: , 2 UCC Rep.Serv. 1061 Gwenn J. WIGHTS, Appellant, v. STAFF JENNINGS, INC., Respondent.
• Court: Oregon Supreme Court

Page 624

405 P.2d 624

241 Or. 301, 2 UCC Rep.Serv. 1061

Gwenn J. WIGHTS, Appellant, v. STAFF JENNINGS, INC., Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted April 9, 1965.

Decided Sept. 10, 1965.

Robert L. Dressler, Portland, argued the cause for appellant. On the brief were Buhlinger & Dressler, Portland.

Howard K. Beebe, Portland, argued the cause for respondent. With him on the brief were Maguire, Shelds, Morrison, Bailey & Kester, David C. Landis, Koerner, Young, McColloch & Dezendorf, and John Gordon Gearin, Portland.

Before McALLISTER, C. J., and PERRY, O'CONNELL and DENECKE, JJ.

O'CONNELL, Justice.

This is an action to recover damages for personal injuries suffered by plaintiff in the explosion and burning of a pleasure boat sold by defendant to plaintiff's husband. The jury returned a verdict for defendant. Plaintiff appeals from a judgment dismissing her complaint.

Plaintiff's husband purchased a 'Chris Craft Constellation' motor boat from defendant. He installed a butane fuel system for the purpose of supplying fuel to cooking and heating units in the boat. Two butane tanks were mounted in the stern of the boat below the decks. Fuel lines ran from each of the tanks to the center of the boat where they were attached to a pressure valve which controlled the supply of fuel from the tanks. A single fuel line ran along the bottom of the boat from the pressure valve to the stove and heater. Soon after the boat was purchased it exploded and burned.

Plaintiff's case is based upon the theory that the explosion was caused by the ignition of gasoline vapor discharged from a rupturned fuel line or connection between the gasoline fuel pump and the carburetor of the port engine.

It is defendant's theory that the explosion was caused by a defect in the butane system. Defendant contends that the judgment should be affirmed because there was no evidence that the explosion was caused by any defective part of the gasoline fuel system.

A marine salvage expert called as a witness by plaintiff testified that 'the fire was caused by gasoline discharging from a rupture or a malfunction between the fuel pump and/or within the carburetor of the port enging.'

We are of the opinion that the jury reasonably could have drawn this this inference with the aid of the expert's opinion. The objections interposed to the testimony of plaintiff's expert witness were properly overruled by the trial judge.

Since plaintiff was not the purchaser of the boat we must decide as a preliminary matter whether a person not in privity with the seller of a defective product may recover for breach of an implied warranty of merchantability.

A majority of the courts have held that there can be no liability for the breach of an implied warranty unless there is privity between the plaintiff and the defedant. ¹ An increasing number of courts have taken the contrary view. ² The majority view is predicated upon the theory that liability for the breach of an implied warranty in the sale of goods arises solely out of a contractual relationship of the plaintiff and defendant. It has been pointed out, however, that 'the obligation is imposed upon the seller, not because he has assumed it voluntarily, but because the law attaches such consequences to his conduct irrespective of any agreement; and in many cases, at least, to hold that a warranty 'is a contract is to speak the language of pure fiction.'' ³

The word 'warranty,' with its connotation of contract has tended to obscure the fact that the liability imposed upon the seller for harm resulting from defective goods sold by him may rest entirely upon principles of tort law. Courts which see this have discarded the language of warranty and have described the seller's obligation to furnish goods of merchantable quality in terms of the tort principle of strict liability. ⁴ With the seller's liability so identified as a part of the law of torts it is apparent that privity of contract is as irrelevant in determining the scope of the seller's strict liability as it is in determining his liability for negligent or intentional conduct. It is now firmly established by our previous cases that where a seller or supplier of chattels is charged with negligent conduct privity is not essential to plaintiff's cause of action. ⁵ We see no reason for requiring privity if it is assumed that the defendant seller should be strictly liable. The important inquiry is whether the seller not in privity should ever be held strictly liable and if so, under what circumstances.

Until recently the cases have contained little explanation for the imposition of liability upon a seller of goods who is free from fault in the usual legal sense. ⁶ Usually liability has been predicated on a breach of an implied warranty without explaining why the warranty was judicially implied. When the action was brought by the buyer against his immediate seller, it seemed enough that the plaintiff and defendant were parties to a contract, the warranty being born in some mysterious way out of the contractual relationship even in the absence of any promise express or implied in fact made by the seller. When the action was brought by a purchaser against a remote seller, the absence of a contractual relationship was usually regarded as a sufficient explanation for non-liability.

The clearer recognition of the seller's obligation as a species of strict liability in tort has brought with it the effort to analyze more carefully the basis for imposing such liability. The various explanations, both by courts and text writers, for imposing strict liability are concisely summarized by Prosser. ⁷ Mr. Justice Traynor in a concurring opinion in Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453, 150 P.2d 436, 440-441 (1944), explains the principle as follows:

'* * * Even if there is no negligence * * * public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.'

Substantially the same reasons for imposing strict liability upon sellers of defective chattels have been advanced in several other cases and in various texts and articles. ⁸ Summarized, the thesis is that a loss resulting from the use of defendant's defective goods 'is a casualty produced by the hazards of defendant's enterprise, so that the risk of loss is properly a risk of that enterprise.' ⁹ a view commonly described as the theory of enterprise liability. ¹⁰ The theory is a corollary of the broader thesis urged by some writers, particularly Harper and James on Torts, that compensation of the victim rather than fault of the defendant should be the objective in the adjudication of accident cases. ¹¹ The broad proposition is stated by Professor Fleming James, Jr., as follows:

'* * * Strict liability is to be preferred over a system of liability based on fault wherever you have an enterprise or activity, beneficial to many, which takes a more or less inevitable accident toll of human life and limb. This is true at least where the accident victims are as a class economically illequipped to carry the burden of serious accident losses. The impact of such losses on the individual in terms of human hardship is often crushing and the repercussions of this blow reach far beyond the individual and pose a significant social problem.' James, General Products--Should Manufacturers be Liable Without Negligence?, 24 Tenn.L.Rev. 923 (1957). ¹²

The rationale of risk spreading and compensating the victim has no special relevancy to cases involving injuries resulting from the use of defective goods. The reasoning would seem to apply not only in cases involving personal injuries arising from the sale of defective goods, but equally to any case where an injury results from the risk creating conduct of the seller in any stage of the production and distribution of goods. Thus a manufacturer would be strictly liable even in the absence of fault for an injury to a person struck by one of the manufacturer's trucks being used in transporting his goods to market. It seems to us that the enterprise liability rationale employed in the Escola case proves too much and that if adopted would compel us to apply the principle of strict liability in all future cases where the loss could be distributed. ¹³

Although we believe that it is the function of the judiciary to modify the law of torts to fit the changing needs of society, we feel that the judicial extension of the theory of strict liability to all cases where it is convenient for those engaged in commerce to spread the risk would not be advisable. If enterprise liability is to be so extended, there is a strong argument for limiting the victim's measure of recovery to some ...