West v. Sonke ( 1998 )

Chief Justice TROUT,

concurring in part and dissenting in part V.

Because I believe the Court’s opinion wrongly permits a defense of useful safe life to be proven by evidence of only the particular product in question, I must respectfully dissent.

While Idaho has not adopted the factors from the MUPLA for determining whether a product’s useful safe life has expired, this Court has previously made reference to them. In Olsen v. J.A. Freeman Co., 117 Idaho 706, 713 & n. 6, 791 P.2d 1285, 1292 & n. 6 (1990) the Court noted that Idaho deleted the examples of useful safe life and mentioned them in a footnote in Olsen simply to illustrate what those factors are. I agree that those factors are helpful in determining what was intended by the use of the term “useful safe life” within the MUPLA, as adopted by Idaho. Those examples clearly indicate that in order to determine how long a product “would normally be likely to perform,” an examination must be made not only of the particular product in question, but also of the type of product in general. I don’t know how a determination can be made of what is “normal” for a product without looking at other products of its type for comparison.

Indeed, one of the factors to consider under the MUPLA is “[t]he normal practices of the user, similar users, and the product seller with respect to the circumstances, frequency, and purposes of the product’s use.” MUPLA § 110(A)(1)(c). Calling for an examination of the product’s use by other users clearly contemplates a comparison with other similar products. And if, as the Court’s opinion asserts, the Court has adopted the examples of useful safe life, those examples would require the Court to examine both the product in question and the product in general.

I agree with the Court’s determination that Chronic was not qualified as an expert to testify with respect to an assessment of the useful safe life of agricultural tractors in general. While Barson and Sonke were qualified to opine as to the useful safe life of this particular, tractor, they likewise could not offer opinions about these tractors in general. Thus, there was insufficient evidence in the record to create a material issue of fact about the useful safe life of this tractor and the district judge was correct in granting summary judgment for the defendant Ford Motor Company.