Soproni v. Polygon Apartment Partners

Alexander, J.

The broad issue presented by this appeal is whether the Court of Appeals correctly affirmed the trial court’s conclusion that no material factual issue precluded entry of a summary judgment in favor of Alpine Windows in a suit brought against Alpine for negligent design of a window and for failing to provide warnings of the danger presented by the window. We conclude that the trial court correctly granted a summary judgment foreclosing the plaintiffs’ claim for a failure to warn but erred in concluding that the window, as designed, was not unreasonably dangerous. We, therefore, reverse the decision of the Court of Appeals in part.

The suit against Alpine had its genesis in 1993, when 20-month-old Daniel Soproni fell from a second story window of an apartment complex onto a concrete patio. Just prior to the fall, Daniel had been playing on a bed in the bedroom in an apartment belonging to his mother’s boyfriend. During his play Daniel would open and shut a window, which was accessible from the bed. This activity attracted the attention of the child’s mother and her boyfriend and caused them on more than one occasion to close the window and warn Daniel to stay away from it. Unfortunately, the child climbed back onto the window ledge where he again opened the window. Daniel’s mother saw Daniel do this and stood up with the intention of retrieving him. Before she was able to do so, however, the child leaned back against the window screen. The screen dislodged and Daniel fell onto the patio below. As a result of the fall, Daniel sustained head injuries resulting in long-term neurological deficits.

The window through which the child fell was marketed under the name “Alpine 220,” and was manufactured by Alpine Windows. This window was sold by Alpine, along with others, to Polygon Apartment Partners and was installed at an apartment complex owned by Polygon, which was known as “Campus Grove.” According to the record, Alpine had sold windows to Polygon for several other apartment complexes that were owned by Polygon.

The window was in a “pop-out configuration.” (See diagram.) This resulted in there being a 16V2-half inch interior window ledge. The window, which was 34 inches above the floor, slid open horizontally from left to right. It was secured by a “detent mechanism” or “drop bolt” which was designed to drop vertically by gravity into a slot in the window track when the window was closed or at a three-inch opening. Clerk’s Papers (CP) at 264. The window could be opened with minimal effort merely by lifting the detent and applying horizontal pressure. The window did not have a locking device for the detent. The screen, which was not manufactured by Alpine but was sold to Polygon as a unit, was held in place by plastic clips. The Alpine 220 was designed to meet or exceed standards set forth in the Uniform Building Code, the National Fire Protection Association Codes, and various building association codes. These standards provide that the window should be able to be opened from the inside without the use of separate tools in order to allow egress in the case of fire.

Daniel’s mother and a guardian ad litem for the child, Bruce A. Wolf, sued Alpine, Polygon, and the architect who designed the Campus Grove apartment complex. The defendants all moved for summary judgment. In opposition to these motions, the plaintiffs filed affidavits from an architect, a human factors engineer, and the managing agent of Polygon.

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The architect and human factors engineer both said that the detent mechanism could be easily manipulated by an infant and that the window was not safe without a device to deter or prevent a small child from opening it. Both experts also indicated that the safety hazard presented by this window could have easily been designed out of it without compromising compliance with applicable codes and standards. The architect opined that feasibly safe alternatives would include a “casement window which is opened by a hand crank, a keyless locking barrier, a thumb screw locking detent and/or a double hung window which only opened from the top down.” CP at 265-66. He indicated, in addition, that “[a] well-designed detent can be child-proofed through use of a simple thumb screw device.” CP at 264. These alternatives, he indicated, would have been safer and would “probably have prevented this accident.” CP at 266. The human factors engineer indicated that the “window should have been able to be secured with a child-proof barrier or lockout to prevent opening more than 4.5 inches.” CP at 225.

The apartment complex managing agent discussed two alternative window designs. One included a spring-loaded clip that had to be squeezed before the window could be opened and the other had a furled knob that could be hand tightened to prevent opening. He indicated that the developer would have bought a window with a safer design if it had been offered at the same price. Alpine acknowledged that it makes different types of windows.

The trial court granted summary judgment to the defendants on all claims. The plaintiffs appealed only the summary judgment in favor of Alpine. The Court of Appeals affirmed, concluding that Daniel’s mother and the guardian ad litem could not establish that the window was not reasonably safe in design or that the damage was caused by Alpine’s failure to include warnings. The plaintiffs sought review of that decision and we granted it.

“When reviewing an order granting summary judgment, the appellate court engages in the same inquiry as the trial court.” Barr v. Day, 124 Wn.2d 318, 324, 879 P.2d 912 (1994). It must consider the facts and all reasonable inference from those facts in the light most favorable to the nonmoving party. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992). The appellate court must reverse summary judgment if the evidence could lead reasonable persons to reach more than one conclusion. On the other hand, it must affirm if there is no genuine issue as to any material fact and the moving party is entitled to judgment as matter of law. CR 56(c).

In a product liability action, the plaintiff must prove that his or her injuries were proximately caused¹ by a product that is “not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided.” RCW 7.72.030(1). The plaintiffs contend that there are material factual issues under both of their theories, failure to adequately warn and defective design, that preclude summary judgment. We will discuss each theory.

A. Failure to Adequately Warn

A plaintiff establishes that a product is not reasonably safe by showing that “at the time of manufacture, the likelihood that the product would cause the claimant’s harm or similar harms, and the seriousness of those harms, rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings or instructions which . . . would have been adequate.” RCW 7.72.030(l)(b). A plaintiff must show that a product was “unsafe to an extent beyond that which would be contemplated by the ordinary consumer” based on the failure to warn as an alternative. RCW 7.72.030(3).

Even assuming that no warnings were provided by Alpine, or that the warnings it gave were inadequate, we are satisfied that the Court of Appeals correctly upheld the trial court’s determination that Alpine was without liability for its failure to adequately warn. We reach this conclusion because the record established that the lack of warnings did not contribute to the accident in any way. It shows, rather, that Daniel’s mother was aware that the child had easily opened the window just prior to the incident that caused the injury and that she was aware that this presented a danger. In short, there are no facts that contradict the trial court’s holding that the manufacturer’s failure to give adequate warnings was not a proximate cause of the child’s injury. Summary judgment in favor of Alpine on that issue was proper and the Court of Appeals, therefore, did not err in affirming the trial court’s ruling in that regard.

B. Design Defect

Washington’s product liability statute provides that “[a] product manufacturer is subject to liability to a claimant if the claimant’s harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed.” RCW 7.72.030(1). In Falk v. Keene Corp., 113 Wn.2d 645, 653, 782 P.2d 974 (1989), this court held that strict liability is the applicable standard for a design defect product liability claim maintained under RCW 7.72.030(2). We also determined that a plaintiff who seeks to establish liability on the part of a manufacturer under RCW 7.72.030 may do so in two distinct ways. See Falk, 113 Wn.2d at 654. On the one hand, a plaintiff may attempt to establish liability by showing that, at time of manufacture, the likelihood that the product would cause the plaintiffs harm or similar harms, and the seriousness of those harms, outweighed the manufacturer’s burden to design a product that would have prevented those harms and any adverse effect a practical, feasible alternative would have on the product’s usefulness. See Falk, 113 Wn.2d at 654; RCW 7.72.030(l)(a). This is the so-called “risk utility test.” Alternatively, a plaintiff may employ the “consumer expectations” test, which requires the plaintiff to show that the product was “unsafe to an extent beyond that which would be contemplated by the ordinary consumer.” Falk, 113 Wn.2d at 654; RCW 7.72.030(3).²

Under the latter test, expectations are judged against the reasonable expectations of the ordinary consumer. This court has suggested that “it may be unreasonable for a consumer to expect product design to depart from legislative or administrative regulatory standards, even if to do so would result in a safer product.” Falk, 113 Wn.2d at 655.³

Here, the Court of Appeals held that the affidavit evidence presented by the plaintiffs could not establish that the window was not reasonably safe. It noted in this regard that the window complied with all codes and standards applicable to its design, manufacture, and use and that in this instance a reasonable consumer could expect no more. It also emphasized that product safety must be considered in light of the product’s ordinary use, and reasoned that because a “window is for light, air, and egress in case of fire,” establishing that an alternative window design would deter a 20-month-old child from opening a window could not establish that the design of the window was unsafe. Soproni v. Polygon Apartment Partners, 88 Wn. App. 416, 421, 941 P.2d 707 (1997), review granted, 134 Wn.2d 1019, 958 P.2d 318 (1998).

In our view, the Court of Appeals placed too much emphasis on Alpine’s compliance with codes and standards. Although, as we have noted above, we indicated in Falk that conformity with codes may satisfy consumer expectations, evidence of compliance with codes should not foreclose the plaintiffs’ claims. Rather, evidence of whether or not a product was in compliance with legislative or administrative regulatory standards is merely relevant evidence that may be considered by the trier of fact.⁴ RCW 7.72-.050(1). Fundamentally, it is for the trier of fact to determine if the product was unsafe to an extent beyond that which would be expected by an ordinary consumer. RCW 7.72.030(3). In making that determination it may consider code compliance as well as the evidence of the plaintiffs’ experts. Although the Court of Appeals discounted the opinions of plaintiffs’ experts as speculative and conjectural, when their submissions are viewed in the light most favorable to the plaintiffs they establish that feasible alternative designs were available which would have prevented the accident here without violating applicable codes. Indeed, this court has considered affidavits such as these in concluding that a material factual issue was present in product liability cases. See Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 588 P.2d 1346 (1979).⁵

The dissent suggests that the majority erroneously relies upon Lamon because:

In Lamon, the expert opinion was relevant because it addressed what created the dangerous condition in that case .... Here, expert opinion regarding alternative safer designs is irrelevant because it addresses the wrong issue. What created the dangerous condition here was not Alpine’s decisions regarding the design of its window, which met all code requirements, but the developer’s decision to use such window, which met code requirements but had no childproof features.

See Concurring/Dissenting op. at 336 n.ll. The dissent goes on to indicate that the opinions of the plaintiffs’ experts regarding the design of the window are irrelevant because the window design met all code requirements and, thus, could not have created the dangerous condition that resulted in the injury to Daniel Soproni. We disagree. As previously discussed, compliance with code requirements does not mandate a finding that a product is reasonably safe as designed. As a result, a factual question exists as to whether the design of the window created an unreasonably dangerous condition. The opinions of the plaintiffs experts are relevant on this question. See ER 401. Accordingly, our reference to Lamon is appropriate.

We are also concerned that the Court of Appeals did not engage in any overt balancing of the risk of Alpine’s product against its utility. It simply concluded, in essence, that á product is not unsafe merely because safer designs exist for a given application, and it did so without discussing design utility beyond reference to fire and building codes. Although codes and standards implicitly reflect a consideration of the balance between the likelihood and seriousness of harm on the one hand, and the impact that an alternative design would have on a product’s usefulness on the other, the fact that there is compliance with codes does not, as we have stated, trump the declarations of expert witnesses.⁶ These declarations, at the very least, create an issue of fact on the point.

Finally, we note that, in upholding the trial court, the Court of Appeals emphasized that Daniel’s injuries did not result from an intended or foreseeable use of the window. It also cited to a case in which a plaintiff alleged negligent road maintenance, Ruff v. King County, 125 Wn.2d 697, 707, 887 P.2d 886 (1995), for the proposition that there is no duty to make a safe product safer. This discussion is not appropriate to a product liability claim because strict liability rather than negligence is the standard for design defect claims.⁷ Falk, 113 Wn.2d at 654.

C. Conclusion

We conclude that although the Court of Appeals correctly affirmed the trial court’s summary judgment dismissing the plaintiffs’ claim for failure to warn, it erred in affirming the summary judgment insofar as it dismissed plaintiffs’ design defect claim. We, therefore, reverse the decision, in part, and remand for trial.

Smith, Johnson, Madsen, and Sanders, JJ., concur.

1 While neither party has focused specifically upon causation, one could argue that the Alpine 220 did not present a safety hazard if its use was confined to the ground level floor of a building and that, therefore, the architect’s or owner’s decision to use that window above the ground floor was a superseding cause of the child’s injury. Even if such an argument had been advanced, we believe that there would still be a factual question about whether such a window, even if installed on the ground floor, presents an unreasonable danger to a small child.

2 RCW 7.72.030(3) provides:

“In determining whether a product was not reasonably safe under this section, the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.”

3 Justice Talmadge indicates in dissent that “the majority again applies the erroneous interpretation of RCW 7.72.030(l)(a) we first articulated in Falk v. Keene Corp., 113 Wn.2d 645, 782 P.2d 974 (1989),” suggesting that the approach we took in Falk was “simply wrong.” Concurring/Dissenting op. at 333. In our view, the dissent pays insufficient homage to the principle of stare decisis which declares that once we have “decided an issue of state law, that interpretation is binding until we overrule it.” Hamilton v. Department of Labor & Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988). Not only did Falk issue in 1989, four years before this case arose, but we relied there on our holding in Seattle-First Nat’l Bank v. Tabert, 86 Wn.2d 145, 149, 542 P.2d 774 (1975), a case in which we held that a manufacturer is strictly liable for manufacturing an unreasonably dangerous and therefore defective product. Although this court decided Tabert prior to the enactment of Washington’s product liability statute, Tabert remains “widely recognized as a leading case in setting forth standards for imposing strict liability for a defective product.” Baughn v. Honda Motor Co., 107 Wn.2d 127, 133-134, 727 P.2d 655 (1986). In addition, “The Tabert ‘consumer expectations’ test has been consistently applied by Washington courts in determining whether a manufacturer is strictly hable for manufacturing an unreasonably dangerous and therefore defective product.” Baughn, 107 Wn.2d at 133 (emphasis added). The dissent’s impeachment of Falk, based only upon citations to two law review articles, does not persuade us to overrule an established line of precedent.

The dissent also overlooks the principle that the Legislature is presumed to be aware of judicial interpretations of its enactments and that its failure to amend a statute following a judicial decision interpreting it indicates legislative acquiescence in that decision. See Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 Wn.2d 488, 496-97, 825 P.2d 300 (1992); Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 789, 719 P.2d 531 (1986). Significantly, the Legislature has not seen fit to amend RCW 7.72.030 since we decided Falk. See Laws of 1988, ch. 94, § 1. The fact that it has not done so reinforces our conclusion that we should not deviate from that decision.

4 The dissent asserts that applying “the proper standard to the present facts requires us to determine if Alpine was negligent in designing the window at issue in this case.” Concurring/Dissenting op. at 334-35. As we have observed in this opinion, this court has held that strict liability, rather than negligence, is the applicable standard under RCW 7.72.030. See Falk, 113 Wn.2d at 654. Even assuming, however, that negligence is the appropriate standard, Alpine would not be entitled to summary judgment in its favor on the basis that Alpine was not negligent because its window complied with nongovernmental, legislative, or administrative standards. Compliance with such standards does not preclude a finding of negligence, however, but is rather a factor that may be considered by the trier of fact. See RCW 7.72.050(1); Falk, 113 Wn.2d at 653-54.

5 In Lamon, an airline stewardess fell through an escape hatch connecting the passenger compartment of a McDonnell Douglas DC-10 to the galley below it. In an affidavit, an engineer opined that the DC-10 hatch cover, as designed, was not reasonably safe. The engineer went on to describe the hatch cover that was installed in an airplane designed and built by the Boeing Company and observed that the dangerous features of the DC-10 hatch cover were not present in the Boeing airplane. We concluded that the opinion on the ultimate issue and the comparison between two existing hatches created an issue of material fact that precluded summary judgment. Although this case predates the enactment of Washington’s product liability statute, we see no reason why this ruling should not have continuing vitality.

6 In concluding that the window complied with all codes and standards applicable to its design, manufacture, and use and performed as a reasonable consumer would expect it to perform, the Court of Appeals indicated that the ordinary use of a window was for “light, air, and egress in case of fire.” Soproni, 88 Wn. App. at 421. This strikes us as a rather limited view of a window’s utility. A window also serves as a barrier to intruders, insects, heat and cold, and, in addition, can be expected to serve to keep people, particularly children, within a building.

7 The Court of Appeals relied in part on a Minnesota case with somewhat similar facts, Drager v. Aluminum Indus. Corp., 495 N.W.2d 879, 883 (Minn. Ct. App.), review denied (1993). In Drager, the court upheld summary judgment in favor of a screen manufacturer, holding that screens are intended to keep insects out of buildings, and that keeping children from falling from a window was neither an intended nor a foreseeable use as a matter of law. In Minnesota, however, a design defect is proved based on a standard of reasonable care. See Drager, 495 N.W.2d at 882. Moreover, as we have observed, Alpine supplied the entire windows and not merely the clip-on screens.