Bailey v. Montgomery Ward and Company ( 1967 )

HATHAWAY, Chief Judge.

David W. Bailey, a minor age 11, is the plaintiff in this personal injury action filed in superior court by his guardian ad litem. The action based on implied warranty and on tort was tried to a jury. The plaintiff has appealed from the superior court’s granting the defendant’s motion for a directed verdict and the plaintiff appeals from the judgment thereon.

The plaintiff’s mother had seen advertisements of a pogo stick in the defendant’s catalog. It was manufactured by Rapaport Brothers Incorporated. She ordered the toy through the catalog. It was purchased as a Christmas gift for the plaintiff’s younger brother.

The pogo stick was obtained in a sealed box from the defendant and before Christmas was opened only once by the father, Charles G. Bailey, who looked at it and replaced it in the box. It was not opened again until Christmas morning when the younger child, Ricky, for whom the gift was intended then opened it.

Ricky took the stick outside and tried to use it a couple of times and brought it back into the house. The pogo stick remained in the house until the plaintiff’s mother, Margaret P. Bailey, a few minutes later told the children that the pogo stick could not be used in the house. Shortly thereafter the plaintiff took the stick outside and jumped on it “for a little bit of time.” He then went into the house bleeding profusely from his eye saying that the pogo stick had injured him.

The plaintiff, apparently the only witness to the accident, testified:

“* * * I was out riding it [the pogo stick] and it had only been rode on about six times and then about the seventh, the spring got loose or something and the cap hit me along the eye, and cut me right there. I was bleeding real bad.”

Following the accident, the Baileys were unable to find the black rubber cap that fit on top of the stick. The spring was found on the other side of their house about sixty feet away.

No part of the pogo stick was offered in evidence, but an advertisement from the Montgomery Ward catalog was introduced in evidence showing that the pogo stick was not recommended for use by children over 90 pounds. Both the plaintiff and his younger brother Ricky were well under this weight.

Although A.R.S. § 44-215 of the Uniform Sales Act, relating to implied warranties of quality arising under the law of contract, is pleaded, we feel it is not applicable. Since the pogo stick was purchased by the plaintiff’s mother for her son Ricky, no privity exists between plaintiff and defendant.

Liability for product inflicted injuries in many jurisdictions has undergone an exodus from its involvement in contract law and has returned to rest upon its logical basis, tort law. Breach of warranty liability for personal injuries caused by defective products evolved from action on the case in the nature of deceit. See Shippen v. Bowen, 122 U.S. 575, 7 S.Ct. 1283, 30 L.Ed. 1172 (1887). Dean Prosser has commented:

“All this [talk of contract] is pernicious and entirely unnecessary. No one doubts that, unless there is privity, liability to the consumer must be in tort and not in contract. There is no need to borrow a concept from the contract law of sales; and it is ‘only by some violent pounding and twisting’ that ‘warranty’ can be made to serve the purpose at all. Why talk of it? If there is to be strict liability in tort, declare it outright, without an illusory-contract mask. Such strict liability is familiar enough in the law of animals, abnormally dangerous activities, nuisance, workmen’s compensation, and respondeat superior.” 69 Yale Law Journal 1099, 1134 (1960).

We agree that personal injuries caused by defective products should be based upon tort law. We deem it unnecessary to trace the historical development of tort liability in product liability cases. See Prosser, The Implied Warranty of Merchantable Quality, 27 Minn.Law Rev. 117 (1943); Restatement (Second), Torts § 402A, Comment b; and, Greenman v. Yuba Power Products Co., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962).

The Restatement (Second), Torts exposition on the subject of strict liability in relation to the sales of defective products, we believe states the correct rule with concision :

“1. One who sells any product in a defective condition unreasonably dangerous to the usW or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, 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 or consumer without substantial change in the condition in which it is sold.

* ‡ * * *

“2. The rule stated in subsection one applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.” Restatement (Second), Torts § 402A.

Prior involvement of personal injury-product liability cases with the law of' warranty, is recognized in Restatement-(Second), Torts § 402A, Comment m:

“ * * * there is nothing in this: section which would prevent any court from treating the rules stated as a. matter of ‘warranty’ to the user or consumer. But if this is done, it should be-recognized and understood that the-‘warranty’ is a very different kind of' warranty from those usually found in. the sale of goods and that it is not subject to the various contract rules which have grown up to surround such sales.”'

The Restatement rule applies to all' persons engaged in the business of selling-products for use or consumption-—manufacturers, wholesalers, or retailers. The-rule is founded in the special responsibility-for public safety assumed by those who-carry on the business of supplying products that may endanger person or property,, coupled with a forced public reliance upon the suppliers. Restatement (Second), Torts. § 402A, Comment f.

Although not the law of the majority of jurisdictions the trend today is towards, the Restatement view. Dean Prosser cites, the following jurisdictions as being in apparent accord with the Restatement rule: California, Connecticut, District of Columbia, Florida (as to manufacturers and partially as to retailers), Iowa, Michigan, Minnesota, Missouri (as to manufacturers), New Jersey, New York, Pennsylvania (as-to ultimate purchasers, their households,. and their guests), and Tennessee. According to the federal courts Kansas, Oregon, Texas, and Vermont are also in accord. Statutes in Virginia and Wyoming - are considered as to have adopted the rule. Products Liability, 16 U. of Fla.L.Rev. 421,. 429 (1964).¹

California was the first jurisdiction to specifically adopt strict liability in tort. The California Supreme Court, in Green-man v. Yuba Power Products Co., supra, • affirmed the lower court’s decision holding the manufacturer of a shopsmith tool liable for personal injuries to the plaintiff. However, basis for affirmance was strict liability in tort and not breach of an implied warranty of merchantability or breach of :a warranty of fitness under the Uniform Sales Act. After citing numerous cases Chief Justice Traynor said:

“Although in these cases strict liability 'has usually been based on the theory of •an express or implied warranty running from the manufacturer to the plaintiff, the abandonment of the requirement of ■a contract between them, the recognition that the liability is not assumed by agreement but imposed by law * * * make ■clear that the liability is not one governed by the law of contract warranties but by the law of strict liability in tort.

“ * * * ‘The remedies of injured onsumers ought not to be made to depend upon the intricacies of the law of sales.’” 27 Cal.Rptr. at 701, 377 P.2d at 901.

In accord, see, Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y. S.2d 592, 191 N.E.2d 81 (1963).

We find no Arizona Supreme Court case specifically holding that strict tort liability applies in Arizona, but language in the recent case of Shannon v. Butler Homes, Inc., 102 Ariz. 312, 428 P.2d 990 (filed June 14, 1967) indicates that the Supreme Court approves this doctrine. The court said:

“The allegation of implied warranty adds nothing to appellant’s case. The liability of a manufacturer of an article is in tort (see Phillips v. Anchor Hocking Glass Corp., 100 Ariz. 251, 413 P.2d 732, and concurring opinion of Justice Lockwood in Nalbandian v. Byron Jackson Pumps, 97 Ariz. 280, 399 P.2d 681), and it is not assumed by agreement but imposed by law. Crystal Coca-Cola Bottling Co. v. Cathey, 83 Ariz. 163, 317 P.2d 1094.”

See also O. S. Stapley Co. v. Miller, 6 Ariz.App. 122, 430 P.2d 701 (filed July 27, 1967) specifically applying the strict liability in tort doctrine.

This rule in no way relieves the plaintiff of his burden of proof. The plaintiff in a product liability action against a manufacturer or a retailer must prove both that his injury has been caused by a defect in the product and that the defect existed when the product left the hands of the manufacturer or retailer. See Restatement (Second), Torts § 402A, Comment g.

Our concern in the instant case is with the sufficiency of the evidence presented. If, when viewed most favorably to the plaintiff, it warranted submission to a jury on any of the theories presented, the superior court’s directing the verdict against the plaintiff and the judgment thereon must be reversed. Rhodes v. El Rancho Markets, 4 Ariz.App. 183, 418 P.2d 613 (1966); Campbell v. City of Tucson, 4 Ariz.App. 155, 418 P.2d 401 (1966); Revels v. Phole, 101 Ariz. 208, 418 P.2d 364 (1966). Also:

“ * * * whatever competent evidence appellants have introduced, including all inferences that can reasonably be drawn therefrom, is assumed to be true, and, if the evidence is of such character that reasonable minds may differ on the inferences to be drawn therefrom, the case must be submitted to the jury.”

Sturm v. Heim, 95 Ariz. 300, 304, 389 P.2d 702, 705 (1964).

See also, Heth v. Del Webb’s Highway Inn, 102 Ariz. 330, 429 P.2d 442 (No. 8206, filed June 22, 1967).

The defendant maintains that the plaintiff in all products liability cases based on breach of implied warranty must prove that he was injured because there was something wrong with the product at the time it was sold and that such defect caused the injury. It contends that the trial court correctly directed the verdict in its favor because no evidence was offered that the product was defective in manufacture or design at the time it was sold or at any time. Defendant asserts that submission of the question of liability to the jury would have invited conjecture.

We recognize the correctness of defendant’s statement of the plaintiff’s burden of proof whether the action is based on breach of an implied warranty or tort. However, the defendant’s contentions overlook evidentiary problems involved in the plaintiff’s establishing his prima facie case.

We will consider first, whether the plaintiff established a prima facie case of injury caused by a defect in the pogo stick, while being used in the manner for which it was intended. The facts are provable by direct or circumstantial evidence, or by both. If sufficient evidence is presented upon which the jury may reasonably infer the true facts directly resulting in the injury to the plaintiff, he has established his prima facie case and the defendant then must go forward with any rebuttal evidence it may have. A “defective” article has been defined as one that is “not reasonably fit for the ordinary purposes for which such articles are sold and used * * Santor v. A and M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305, 313 (1965). See also Patterson v. George H. Weyer, Inc., 189 Kan. 501, 370 P.2d 116 (1962); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960); and, Marathon Battery Company v. Kilpatrick, Okl., 418 P.2d 900 (1966).

Nalbandian v. Byron Jackson Pumps, Inc., 97 Ariz. 280, at page 283, 399 P.2d 681, at page 683 (1965), the Supreme Court of Arizona said:

“In contract, the failure of a product to be reasonably fit for the purpose for which it was to be used within the guaranteed time is all the plaintiff need prove to establish a prima facie case. The plaintiff need not prove negligence in the manufacture of the warranted product.”

Although Nalbandian dealt with an implied warranty of fitness based on A.R.S. § 44-215 of the Uniform Sales Act, we recognize the definitions of warranties in this Act as providing appropriate standards for this court to look to for determining defectiveness of a product.

The jury may have reasonably inferred from the facts that the injury resulted from a defect in the pogo stick. The plaintiff testified that he was well acquainted with the use of a pogo stick; that he had used one in the past; and that he was able to use the pogo stick on Christmas morning. We take judicial notice that a pogo stick is expected to be used in a rugged manner. The manufacturer must expect that a pogo stick will be subjected to harsh contact with pavement, dirt, and asphalt; and that it may on occasion be dropped or, the rider falling or tossed off, it may be thrown into a tree or a wall or knocked violently to ' the ground. We conclude that since the plaintiff was acquainted with the use of the pogo stick and had merely jumped on it “about six times” the jury may reasonably have 'inferred that the direct result of the pogo stick’s flying apart and injuring the plaintiff was due to a defect in the design or manufacture of the stick.

The jury could also have reasonably concluded from the facts that the pogo stick was in substantially the same condition on Christmas morning when the injury occurred, as it was when it left the hands of the defendant retailer. The pogo stick arrived at the plaintiff’s house in a sealed package, having been ordered from the defendant’s catalog. The plaintiff’s mother, Margaret Bailey, did not open the package upon its arrival or before it was opened by the plaintiff’s brother Ricky. The plaintiff’s father testified that he did open the package before Christmas morning and “I think I just slipped it out of the box and looked at it. I never pulled it out or dropped it or anything like that.” The pogo stick was then gift wrapped and so remained until Christmas morning when it was opened and played with by the children for a few minutes before the mother came down. She told the children they could not play with it in the house. The plaintiff then took it outside and played with it for a short period of time. He testified that he had jumped on it about six times and “the spring got loose or something and the cap hit me along the eye.” Due to the rugged use expected of a pogo stick, we conclude that the evidence was sufficient to go to the jury.

The judgment in favor of the defendant is reversed and the cause is remanded for a new trial in accordance with the foregoing.

GORDON FARLEY, Superior Court Judge, concurs.

NOTE: Judge HERBERT F. KRUCKER having requested that he be relieved from consideration of this matter, Judge GORDON FARLEY was called to sit in his stead and participate in the determination of this decision.

1 . Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1 (1960) a landmark decision involved an action by the wife of a purchaser of a new car who was injured while driving on a smooth highway when suddenly and unexplainedly the automobile went out of control. The action was brought against the manufacturer and the dealer and was based upon an implied warranty of merchantability. Judgment for the plaintiff was affirmed by the Supreme Court of New Jersey holding that justice requires that both defendants be charged with an implied warranty in favor of the ultimate purchaser, regardless of lacle of privity or existence of express warranty. This case is noted by both Dean Prosser and Page Keeton as adopting the specific idea of the Restatement (Second), Torts § 402A and using the term of implied warranty as expressed in Comment m.

Many other cases can be found where strict liability has been based upon the warranty theory as discussed in § 402A, Comment m. See Thompson v. Reedman, 199 F.Supp. 120 (E.D.Penn.1961); Picker X-Ray Corporation v. General Motors Corporation, 185 A.2d 919 (D. C. Municipal Court Appeals 1962); Peterson v. Lamb Rubber Company, 54 Cal.2d 339, 5 Cal.Rptr. 863, 353 P.2d 575 (1959); and, McBurnette v. Playground Equipment Corp., 137 So.2d 563 (Fla.1962).