Butaud v. Suburban Marine & Sporting Goods, Inc.
555 P.2d 42
Alaska
1976
Check Treatment

*1 patrons it did invite to sit portantly, rather, area; exposed linger in an protect expedite

provided a sidewalk entry building, into the store

customers’ they would transact their business.5 aspect

An Robin additional Cock That case

case deserves consideration. appeal by on the Illinois Su-

was affirmed Court,

preme N.E.2d 9 I11.2d that the

(1974). There the court indicated plaintiffs

prior were occurrence which into was it-

seeking to introduce evidence question

self what made the incident

foreseeable, required hence go jury.

case to the 310 N.E.2d at 12. In bar, is no

the case at there evidence occurrence,

prior customers other utility pole

backing their cars into

they parking lot. left the Steese Market foregoing, view of we hold

that on the record in this case

no failure the defendant to exercise pa safety its

reasonable care for the genuine

trons. There was no issue as to fact,

any material and defendant was enti

tled judgment as a matter of law. Alas

ka superior R.Civ.Proc. 56(c). court

correctly granted summary judgment to de

fendant.

AFFIRMED. Jr., BUTAUD, Appellant, W.

James

SUBURBAN MARINE & SPORTING GOODS, INC., Appellee.

No. 2055.

Supreme Court Alaska.

Oct. they ing Here be delivered. their food to cases, Low and' Wall drive-in restaurant along their merely on the sidewalk distinguishable walked Hatoum, for a similar rea- building. ,the way the store into stood son. In those cases customers placing their and wait- orders while sidewalk *2 Miller, Jr., Timothy

Lester M. W. Lynch, Anchorage, appellant. Gerety, Anchorage, for appel- Daniel A. lee. BOOCHEVER,

Before Justice, Chief RABINOWITZ, ERWIN BURKE, Justices.

OPINION ERWIN, Justice. previous

In our decision in this jury’s we reversed the verdict and re manded the case for a new trial. We stat ed that the “. issue of the . . effect of the doctrine .,”1 liability cases . an impression Alaska, issue of first resolved. now resolve issue holding comparative negli gence apply shall suits personal injuries.2 In approving the use of the doctrine in products cases, we mindful of the theoretical ar- gument that the the de- compare fendant is difficult with the plaintiff. problem is a measuring par- There ties’ contribution because little no evidence of the actual compare conduct the seller plaintiff. evidence of the conduct of the This comparison easily theoretical is more understood after a brief review of de- velopment theory imposing bility upon manufacturers for the harm Suburban, Sporting Somes, 1. Butaud Marine & 2. See Moon Morrow New Goods, (Alaska 1976). 1975). Law Insti- receptive re- ears of the American fairly cause is

which their The Institute in the Second developed out tute. concept in the law. cent 402A, section, barriers to Restatement of Torts new down the the need to break neg- warranty the term as the which discarded placed before the recovery liability. warranty basis seller actions. ligence and breach of set forth section is “. new based on an action *3 liability, making one the seller difficulty proving plaintiff encountered posi- subject liability a to to user or consumer not in negligence; normally he was possible led he has exercised though to even all negligence tion to isolate preparation and sale of the he not familiar care the defect since 8 imposing product.” process.3 justification a war- The for manufacturing Under liability upon public pol- con- theory recovery, strict rests a basic of ranty disclaimer, icy reasoning notice that manufacturers should such as fronted defenses resulting from injury also inherent bear the costs of privity of breach and lack of marketing recognition their of rath- process.4 In defective in the distribution injured essentially party er than is problems, Dean Prosser wrote: who of these powerless protect himself. to tort, let If be strict there to tort, declared be strict Recently adopted several states which illusory outright, without an contract liability, strict as set out in 402A section mask.5 the Restatement of Torts 2d Cali- decisions,9 concept tort fornia also strict rule This recogni- comparative products quickly negligence.10 ap- gained How to defective ap- comparative ply negligence to prominence. The first case to strict lia- tion and it case suit has ply was the 1963 California been discussed two cases. Inc,6 Products, Sciano,11 Dippel In v. Yuba Power v. the Wisconsin Greenman Su- preme court it clear that a manufactur- Court The made reasoned equivalent per strictly finding “. .is liable when se er tort to market, therefore, places and, subject ap- know- an article he to the defenses inspection ing plicable negligence. Hagenbuch that it to be used without v. defects, proves Corp.,12 a defect Dis- Snap-in to have Tools the Federal being.”7 Hampshire’s Two causes human reasoned that New trict Court later, upon years proposal applied fell comparative Prosser’s statute 402A, Clary Chrysler (Second) Center, 3. v. Avenue § 8. Restatement Torts Fifth Inc., (Alaska 1969) ; (1965). 244 Escola atA 348 Comment Bottling Fresno, v. Cola Co. Cola 24 Cal. Greenman, v. Cronin 9. See 453, (Traynor, J., (1944) 150 P.2d 436 121, Corp., 104 Olson 8 Cal. J.B.E. Cal.3d ; concurring) Co., v. Glass Ford Motor (1972) ; Luque Rptr. 433, 501 P.2d 1153 N.J.Super. (1973) ; 123 562 304 A.2d Cal.Rptr. McLean, 1136, 104 v. Cal.3d 8 Prosser, (4th 1971), Law Sec of Torts ed. (1972). P.2d 1163 501 Going Ashe, at So 97 650: You’re tion states, Feinberg, Try Liability Case, see 10. Por a list of these a Products 13 Hast.L.J. Negligence Applicability Comparative (1961). 66 Liability Suit in a Strict Products Defense Homes, 4. Morrow v. New Moon 548 P.2d 279 Restatement 402A of the Based on Section (Alaska ; 1976) Greenman v. Yuba Power 2d, Journal 63 Insurance Counsel of Torts Products, P.2d 897 377 Alaska, (1975). and Florida California Prosser, The Assault the Cita Kaatz this list. be added to must del, (1960) Yale L.J. 1127 Pros 1975) ; State, Li 540 P.2d 1037 ser, supra note 2 at 655-56. Cal.Rptr. Yellow Cab Jones, Citadel, 5. The Assault P.2d Hoffman (Fla.1973). note 4 at 1134. So.2d Greenman, note 4. 155 N.W.2d 55 Wis.2d (N.H.1972). F.Supp. Id. required comparative cases for no other reason under than that stat- when defendant’s responsibility is based ute—construed as a defense to strict on strict liability. Nevertheless, liabili- this ob- ty completely replaced by been conceptual stacle more practical. —had jury The court always capable, statute. should when adopt declined negligence per se rea- objectively has been soning fault, Wisconsin court because of taking into account how much presume would not Hamp- bearing that the New that fault had on the amount of Supreme shire damage Court would follow adjusting suffered and of same reducing rationale. the award accordingly. Triers apparently fact are this, able to do We find it unnecessary conceptualize and the approach benefits from sug- theory of the action which strict liabili gest applied that it be all ty creates in order for apply compar us to *4 negligence jurisdictions.15 negligence ative principles prod to strict liability ucts personal cases which in Comparative result negligence systems have injuries. long Whether the action is employed jurisdictions, character been in other ized negligence, warranty, as tort, or in the experience has argu not borne out the plaintiff prove must essentially the same ment system that the is for difficult courts Further, elements to recover.13 juries Noteworthy most to administer.16 in the cases liability for regard admiralty defective this cases in which products recognized have a defense comparative based the negligence rule of has on the conduct plaintiff, of the applied courts been to problems without serious have unwilling disregard plain been to arising the cases under the doctrine of unsea tiff’s interpret conduct and worthiness, to strict liabili is which a form of strict liabil ty to mean liability14 See, absolute though even ity. Pope Talbot, g., e. & Inc. v. they may have differed as defense to the Hawn.17 itself The seller has not been converted1 State,18 In Kaatz v. we into an product respect insurer of his with comparative the standard negligence, generated to all harm its use. applied will be in strict Although it is theoretically difficult for pure compara feel that We legal purist the to balance the seller’s strict predicate tive provide can

liability against the user’s to fairness in liability cases which problem is apparent more than real. Pro- the and defendant contribute to fessor Schwartz has stated that injury. the strictly The defendant is liable due to the existence of a defective condi might true that the jury hand, product.19 tion in difficulty

some the On the other in making the calculation Prosser, supra 412, 671; Epstein 13. 259 Minn. note 107 N.W.2d 647 3 at Liability: Wheaton, 375, Products Heidemann S.D. 34 N.W. Defenses Based (S.D.1948) supra Conduct, 267, Plaintiff’s 2d 492 see also 1968 Utah L.R. A 522-524. note action under the strict requirements rule must adhere the to Schwartz, Comparative Negligence, V. Butaud, set forth in note 1. (1974). Pearson, Bachner v. 329-330 State, (Alas- 16. Kaatz (Alaska 1970) ; McDevitt v. Standard Oil 1975). ka Texas, (5th Co. 391 F.2d Cir. 406, 409, 1968) ; Dippel, 17. 346 U.S. 74 S.Ct. 98 L.Ed. note 10 at Suvada (1953). v. White Motor 32 Ill.2d 210 N.E. carry Even before its (Alaska 1975). 18. 540 P.2d 1037 cases, over to was Baohner, plain Liability not akin to absolute when the causing tiff’s predicated conduct was a factor the in is not the seller’s or user’s jury. Sandy Bushey, but of a defect. Me. conduct the existence Anderson, 128 A. 513 Anderson v. require to the manu- quire foreseeability is a result liability attaches as plaintiff’s

the However, in due care. It is facturers use using product.20 of his conduct is liable manufacturer parties’ appropriate, therefore, due operation exercises of law even he apportioned. be contribution to care; concept is thus, difficult for the strictly liable The defendant apply. product, from his defective harm caused damages be shall except that award of as contributory abandoning plaintiff’s proportion to

reduced claims, plaintiff’s we complete bar injury. contribution his serve negligence can feel that de comparative negligence substantially the harshness ameliorate applied manner balancing fense would be the same contributory negligence while major with as in public responsibility to the seller’s products liability being injury. difference contributing to his user’s conduct necessary prove be it would not cases again holding, our reiterate negligence. It that a defect caused our we wish to make clear that decision anticipated will that the trier fact not holding expands upon pre herein made per setting have serious difficulties viously in this The defense of com case. centage damages reduced would be parative negligence limited to those result of product cases uses Further, plaintiff. condition, of the defective case to anomalous *5 the but also extends to those cases where damages mitigated plaintiff if the product mis misuses the and that in him to re sues but allow proximate his injuries. use is a cause damages full strict cover he sues in complaint the bility, particularly where breaking ground In in this new recovery in contains alternate counts law, public area of the we that feel liability, negligence, strict breach and/or policy strict do product reasons for warranty.21 incompatible compara not seem to with dispute realize that some tive negligence. The is still manufacturer concerning foresee- among commentators accountable for all the harm from a defec products it affects ability of misuse of product, except tive part caused liability.22 How- products the doctrine of consumer’sown conduct. ever, are not the doc- we convinced that foreseeability provides viable trine of a appellee In this case the below conceptual predicate basis which raised the issue of ap- cases. general defense based ma- on misuse of the snow pears than chine; rather focus on we reversed the decision because pri- cause, upon proximate which is the such a defense “. .is limited those liability.23 To re- mary issue in occasions where the use concurs Butaud, Copeland Findlay (Okl.1974) ; Lum note 1 at v. 1353 ; (1972) Co., ber P.2d 28 265 Or. 509 Compara- Draft, Tentative Uniform (Strict Lia The Fall of Citadel Act, (August, 1976). 1 tive § Fault Consumer), 791 50 Minn.L.R. Cronin, McDevitt, 14; v. J.B.E. Noel, (1966) ; Ab Defective Products: Corp., Cal.Rptr. 433, Negligence, Olson Use, Contributory Cal.3d 104 8 normal Assumption (1972) ; ; (1972) Bendix- Risk, 1153 94 Vand.L.R. 93 Bradford Westinghouse Air Brake Schwartz, Auto. 33 Colo. Annots. V. note 15 App. 99, (1974) ; P.2d 406 517 Williams v. 13 A.L.R.3d A.L.R.3d 240 Manufacturing Co., Brown 45 Ill.2d (1970) N.E.2d 305 Electric Co. General Bush, Brandly Helicopter Corp., Nev. 498 P.2d 366 23.Berkebile Corp., (Pa.1975). Kirkland v. Gen. Motor A.2d particular failing defect.” machine, to maintain the driving herein, opinion line with our we modi- now with worn belt and racing the ma- fy original opinion hold the de- chine sufficient to establish contribu- applica- fense tory negligence in prod- the use of the appellee ble to this case if the can We disagree. establish uct. is limit- defense appellant’s racing of the snow ed ma- to those occasions where the me con- chine lack of maintenance of curs with knowledge particular de- and/or was comparative fect, machine general not which injuries. contributed to his user as established in this (em- phasis added)

The mandate as previously issued this case is permit Today, ordered apparent face, amended to an retrial about the ma- of this jority cause conformity of action in “general concludes that negli- such opinion. will, gence” however, permit a reduction of injured an award might consumer oth-

CONNOR, J., participating. action, erwise recover. my opin- Such ion, represents significant backward, step RABINOWITZ, J., concurs. ignores that it policy fundamental BURKE, J., dissents. gave considerations that rise to the doc- trine of strict cases. RABINOWITZ, (concurring). Justice As articulated in Greenman v. Yuba I generally agree with the court’s treat Products, Inc., Power P. ment of the situa issues arise (1962): tion negli who himself purpose of such to in- gent asserts a claim founded injuries sure that costs resulting liability. Perhaps only it is a semantic dif from defective are borne ference rather than reflective a true put manufacturers that such adoption prefer functional distinction but I the market rather injured of a analysis causation persons powerless who are protect Thus, I re *6 themselves. quire compare the trier fact the harm Clearly, this underlyng policy giv- will be by product’s caused defect en little if a effect is to be held harm by negli caused claimant’s own responsible injuries, for his own to the ex- gence. See Solet v. Capt. H.V. M/V Duf injuries tent that those his caused rene, F.Supp. (E.D.La.1969). own ordinary negligence, when he is not Adoption of ap causation dangers aware of the defect and the asso- proach prob would avoid the theoretical ciated Accordingly, defect. I attempt lems compare inherent in plaintiff’s would hold negli- that a own degrees relative of fault where the defend gence is relevant only in those cases where fault, ant’s is determined specific he is aware of a defect and volun- principles of liability. tarily proceeds to encounter a dan- known BURKE, (dissenting). ger. Luque McLean, Justice Cal.Rptr. respectfully I dissent. decision, In our earlier Butaud Subur- In this case there is no evidence Goods,

ban Marine & Sporting had any the defec- P.2d 1975),we said: product. Hence, tive condition of the I am appellee believe that opinion misconceives of care, that his lack of due type necessary any, evidence maintaining estab- operating the vehi- lish a cle, defense to a jury should not be considered Appellee claim. strenuously argues determining damages. its award Butaud, supra