Lead Opinion
In this strict product liability case, a jury awarded plaintiff, a baker and cake decorator, compensatory damages for the serious back injuries she sustained when she slipped and fell on a floor that was sold and installed by defendant at the bakery where plaintiff worked. Defendant appeals, asserting four assignments of error. We write to address two of those assignments and affirm.
Birnbach, the owner of the bakery in which plaintiff worked, received several citations from the Oregon Department of Agriculture for the unsanitary condition of the bakery’s concrete floor. Over the years the floor had absorbed spilled oils and other baking ingredients and had become very “punky” (soft) and “rubbly” (resembling rubble) in places. Birnbach contacted defendant about having a new floor installed. Defendant, “a dealer in new flooring systems,” offered floors of several types, including epoxy, acrylic, polyurethane and polyester. Birnbach selected acrylic, because the state inspector had told him to purchase an acrylic floor. Defendant showed Birnbach several product samples of Silical acrylic floors that varied in color and texture. According to Birnbach, he selected the sample that met his criteria for cleanliness and a nonskid surface.
On August 7,1991, Birnbach and defendant entered into a contract for the sale and installation in the bakery of a “Silical acrylic floor system” like the sample Birnbach had selected, to be finished with two coats of clear sealer. On August 25, defendant commenced work. The bakery equipment was moved out and the existing concrete floor was “shot blasted” with a specialized machine that removed the loose and decaying concrete from the surface of the old floor, leaving a “sound,” abraded surface to which the new floor could adhere. Defendant applied a low-viscosity prime coat and allowed it to soak into the abraded concrete, to serve as an anchor for the new floor. Defendant then spread a thicker coat of a viscous resin that filled in contours to create a uniformly flat surface. While the resin coat was still wet, defendant broadcast acrylic flakes over the entire area. In order to match the color and texture of the sample that Birnbach had
Almost immediately after its completion, several bakery employees complained to Birnbach that the new floor differed considerably from the sample. They described it as “very slippery,” “extremely slick” and “like walking on ice.” A few employees reported that they had fallen and most attempted to adapt to the smooth surface by walking in a manner that they dubbed the “bakery shuffle.” Birnbach complained to defendant. Defendant responded by patching several areas where the new floor had not bonded properly to the underlying concrete, but it did nothing to alter the floor’s smooth, slippery surface.
On January 11, 1993, plaintiff slipped, fell and severely injured her back while carrying a 50-pound lug of whipping cream from a walk-in cooler. She subsequently underwent four surgeries and was unable to return to her former bakery job. She brought this action, alleging in her amended complaint that defendant is strictly liable for her injuries under ORS 30.920:
“At all times mentioned herein, defendant was a seller of a product as defined by ORS 30.920, said product being the installation of the overlay of the floor. The product was in a defective condition, unreasonably dangerous to the plaintiff, who was a user of said product. The floor reached the ultimate users without substantial change in the condition in which it was sold.”
The trial court entered judgment for plaintiff after a jury found that “the floor installed by defendant [was] unreasonably dangerous for its intended use in the production bakery” and awarded her almost $430,000 in economic damages,
Defendant assigns error to the trial court’s denial of its motion for a directed verdict, arguing that “defendant’s installation of flooring was not a ‘product’ ” under ORS 30.920. It first argues that the floor it installed should not be considered a product, because it is permanently affixed to real property. It asks us to adopt a per se rule that “improvements to realty do not constitute ‘products’ for purposes of strict liability in tort.” We decline to do so. Defendant’s argument relies on several cases from other jurisdictions that are distinguishable or that fail to adopt such a per se rule. See, e.g.,Menendez v. Paddock Pool Const. Co., 172 Ariz 258,
Defendant next argues that the “trial court erred in reviewing this case as involving a ‘product’ rather than a service.”
The cases cited by defendant for the proposition that its installation of the floor constituted a service rather than the sale of a product also involve hybrid transactions but have significant factual differences. In Watts, the plaintiff was seriously injured when the driver of his employer’s truck, in which the plaintiff was riding, lost control when a recapped tire blew out. The tire had failed because of a defective casing that was supplied by the plaintiffs employer. We observed that
“[the] problem with the failed tire was that, before it was recapped, it had a separation between the two steel belts that were encased in a rubber sheet at the edge of the casing. The separation, in conjunction with improper adhesion, caused the tire to blow out.” Watts,118 Or App at 559 .
We held that the tire recapper was not strictly liable under ORS 30.920, because it did not sell the defective casing. It
The dissent contends that Watts is analogous to this case.
The other case on which defendant relies is Hoover. There, the plaintiff was injured in a one-car accident after she purchased new tires from the defendant. She alleged that in mounting the wheels on her car, the defendant had failed to properly tighten the lug nuts on one of the wheels.
In this case, as we have previously stated, defendant, a dealer in new floors, both sold the acrylic floor and performed the service of installing it in Birnbach’s bakery. For plaintiff to prevail, her injury must have resulted from a
In Jamison, the defendant had sold and installed a trailer hitch on the plaintiffs truck. Installation consisted of assembly, which included welding the component parts of the hitch.
Similarly, in this case, defendant was required to customize each Silical acrylic floor that it sold by applying the proper mix of acrylic flakes to the wet resin along with a finish coat of sealer to provide the desired combination of color, texture and surface. The process of making the acrylic floor need not be distinguished from its installation, because defendant’s role was to manufacture on site the floor that it sold to Birnbach. It was the floor itself that was dangerously
The dissent maintains that defendant merely resurfaced the bakery’s concrete floor, and that therefore plaintiffs only basis for recovery is in negligence.
Furthermore, the dissent simply assumes that the floor that defendant manufactured and installed was not defective. It then poses a variety of hypothetical examples,
Defendant also argues that the trial court erred in failing to strike plaintiffs claim for impaired future earning capacity for lack of evidence about how the jury was to reduce that award to present value. Plaintiff presented testimony by a vocational expert about plaintiffs life expectancy, work years until retirement, projected lifetime earnings had she not been injured and expected earnings after injury based on her mental and physical abilities. The trial court instructed the jury, using Uniform Civil Jury Instruction 70.01, to reduce any award for future loss of earnings to present value. Defendant argued to the trial court that plaintiff was required to present some evidence of “discount rates or interest rates * * * [to] make a determination what amount invested today would return to the plaintiff the same
As noted at the outset, we affirm without discussion defendant’s remaining assignments of error.
Affirmed.
Notes
Plaintiff contends that defendant’s argument “that it provided a ‘service’ rather than a ‘product’ ” was not raised below. However, defendant’s motion for a directed verdict was grounded on the theory that this is “a contract case and not a defective product case,” and the trial court considered the question of whether the installation of the floor constituted the sale of a product.
ORS 30.920 enacted Restatement (Second) of Torts, section 402A, with only minor changes that are not relevant here, and expressly states the legislature’s intent that the statute be construed in accordance with Comments a to m of that section. ORS 30.920(3).
In Jamison, although the plaintiff did not plead strict liability, the court reasoned that a product liability civil action, as defined in ORS 30.900, embraces all theories in an action based on a product defect, including negligence, and examined the meaning of “product defect” under 30.900 et seq.
In its brief, defendant calculated present value of plaintiffs loss of future earnings as the amount of money that, if invested today at an assumed interest rate, would grow to the total projected loss predicted by the vocational expert after 25 years. That is not the proper method. The correct procedure requires a determination of the amount that, if invested today at the assumed interest rate, would produce a stream of income over 25 years that compensates plaintiff annually for her reduced earning capacity.
Dissenting Opinion
dissenting.
Defendant was asked to install an acrylic surface on an existing concrete floor located in a bakery. Defendant did so, applying off-the-shelf products, each of which performed as manufactured. The problem was that defendant either selected the wrong materials or misapplied them, and the surface that resulted was too slippery for safe use in a bakery. Plaintiff slipped on the acrylic surface and injured her
Four decisions provide the universe of relevant Oregon precedents from which we may derive principles to control the disposition of this case. The first is Markle v. Mulholland’s, Inc.,
The second decision is Hoover v. Montgomery Ward & Co.,
“This case presents the question of whether the definition of ‘dangerously defective product’ should be expanded to include within the scope of strict liability the negligent installation of a nondefective product. We have found no court which has stretched the doctrine of strict liability in tort to this extreme, and we decline to do so.
“In the instant case it is obvious that the product sold to plaintiff was not dangerously defective. Even if we accepted plaintiffs version of the cause of the accident, it was not a*566 dangerously defective tire which caused plaintiffs injuries, but rather the installation of the wheel on the hub and axle of the auto.”
Id. at 501-02.
The third relevant decision is this court’s in Jamison v. Spencer R.V. Center, Inc.,
“[w]e do not distinguish defects created in the assembly of the trailer hitch from those made in the installation. The * * * ‘instructional guide,’ included in the summary judgment record, required the installer to customize each installation to the make and model of each car. The seller’s role in assembling the hitch is comparable to that of a manufacturer.”
Id. at 533 n 1.
The final decision is Watts v. Rubber Tree, Inc.,
“In Markle, the defendant, a tire recapper, sold the plaintiff a recapped tire. * * * At issue was whether the defendants were strictly liable for injuries caused by a sold recapped tire. The Supreme Court adopted the theories of enterprise liability and representational liability as the basis for the law of strict product liability, and concluded that there was sufficient evidence to permit a jury to infer that the recapped tire was unreasonably dangerous.
“This case is different. Defendant did not sell the defective casing. [The owner of the tire] asked defendant to recap the tires it supplied. Defendant merely provided a service when it affixed the new tread to the casing.”
Watts,
The plaintiff nonetheless argued that the recapper had, in fact, sold a product, which she identified as a recapped tire, including “the sale of labor,” technical “know-how” and “a process that is beyond the consumer’s ability to duplicate.” Id. at 563. We rejected that argument, too, citing the Supreme Court’s decision in Hoover, and concluded that the trial court had correctly refused to submit the claim to the jury. Id. at 563-64.
From the foregoing authorities, I derive a basic rule: Strict product liability will lie only for sale of a defective product; negligent installation of an otherwise nondefective product does not suffice. The key is the determination of whether the product itself, as opposed to its installation, is the source of the injury. Thus, in Markle, the plaintiff purchased a product, a tire, which was defective, and the court held that a claim for strict liability for defects in the tire could be sent to a jury. In contrast, in Hoover and in Watts, the defendants provided only services, installing and recapping tires respectively, and the courts held that strict liability could not be asserted.
In my view, the facts of this case are analogous to those in Hoover and Watts. The bakery owned a concrete
The majority concludes otherwise, on the basis of Jamison, in which we said that an assembler of a trailer hitch may be held liable as if a manufacturer. The decision, however, offers support for the majority’s position only if it is assumed at the outset that what the bakery in this case purchased was a product. In Jamison, the plaintiff purchased a product, an assembled trailer hitch, which the defendant improperly welded. What the plaintiff then received was a product, a trailer hitch, which was defective. The majority apparently assumes that what the bakery purchased also was a product: a new floor. I disagree. The bakery already had a floor, a concrete one, the same concrete one that it had used for many years. What the bakery purchased from defendant was the selection and application of a new surface on the existing floor. That constituted the provision of a service, as in Watts, where the defendant applied a new surface on an existing tire casing. Indeed, if the majority is correct, then Watts was probably incorrectly decided, for if the bakery purchased a “new floor” in this case, it stands to reason that the owner of the bald tire in Watts purchased a “newly-recapped tire” as well, an argument that we explicitly rejected in that case. Watts,
That the resurfacing of the bakery’s concrete floor cannot be considered a product is borne out by the consequences of the majority’s view. For example, if the negligent resurfacing of a concrete floor in this case gives rise to strict liability, will the negligent refinishing of an oak floor— because, say, the refinisher selects the wrong finish, which otherwise performs as specified — give rise to such liability as
In short, I disagree with the majority’s asserted analogy to Jamison as a basis for extending strict product liability to the negligent installation of a product. I read that decision to be distinguishable and find more persuasive an analogy to Hoover and to Watts. I would hold that the trial court erred in allowing plaintiffs strict product liability claim to go to the jury in this case and respectfully dissent from the majority’s decision to the contrary on that issue.