Bennett v. Pilot Products Co., Inc. , 120 Utah 474 ( 1951 )

WADE, Justice

(concurring in part).

I concur on the ground that prior to plaintiff’s injury there is no evidence that respondent had reason to believe -that its product would be harmful even to the allergic. Such being the case, we are not called upon to determine the extent of a seller’s duty to warn of dangers to the abnormal user of its product because under these facts it could not be reasonably foreseen that such dangers exist. I therefore express no opinion on that question.

It seems clear, however, that if respondent had reason to believe that one out of every thousand of its owners would be harmed as plaintiff was by the use of its products, then it could foresee, and therefore must reasonably anticipate that such would be the result. Many negligently maintained dangerous instrumentalities actually harm less than one person in a thousand of those who come in contact with them. To hold that such result could not be reasonably anticipated is to give to such expression a meaning not ordinarily intended and will lead to confusion rather than clear thinking. Whether the producer of a product owes its allergic customers a duty to warn them against its possible ill effects is another question which has nothing to do with reasonable anticipation or foreseeability and to confuse these two concepts does not add to clarity. It may be that to place the duty on the producer to warn the allergic of possible dangers would be to overburden business. The answer to that problem might be varied by the circumstances of the individual case but whatever the answer it should be determined on a consideration of the various elements which should have a bearing on the determination of public policy and not on the erroneous ground of non-foreseeability.