*1 (1977). N.J. 47 Assuming the record prior convictions had been properly evidence, admitted perceive into I of no adequate reason require unnecessary relitigation where a defendant has had a fair trial on all the right issues and his confrontation has been adequately protected.
I would reverse and remand for a new trial because of the erroneous admission into evidence prior convictions.
SCHREIBER, J., concurring in the result.
For reversal and remandment —Chief Justice WILENTZ and SULLIVAN, PASHMAN, Justices CLIFFORD, SCHREIBER, HANDLER and POLLOCK-7.
For affirmance —None. ELMER FREUND, WIFE, AND FREUND CAROL HIS PLAINTIFFS- APPELLANTS, PROPERTIES, INC., v. CELLOFILM A BODY CORPORATE; COMPANY, INC., “U” VAULT A BODY CORPO RATE; COMPANY, CORPORATE; VINING BROOM A BODY COMPANY; HANOVER INSURANCE STATE OF NEW JER SEY, MUNICIPAL; A BODY AND BOROUGH OF WOOD RIDGE, MUNICIPAL, A BODY DEFENDANTS.
HERCULES, INC., CORPORATE, A BODY
DEFENDANT-RESPONDENT.
Argued 24, July March 1981 Decided 1981. *3 (Budd, argued appellants the cause for Lar- Mark D. Lamer Rosenbaum, ner, Kent, Gross, attorneys). Picillo & argued respondent (Car- Morrissey Thomas L. the cause for penter, Morrissey, attorneys; Rosemary J. Bennett & Bruno and brief). Dwyer, P. John on the opinion of the Court was delivered *4 HANDLER, J. Freund,
Plaintiff, Elmer suffered extensive and third second degree employer’s paint burns in an industrial accident at his accident, manufacturing plant. At of the time the Freund was assisting employees preparing large paint two fellow in a mixer cleaning. swept As one of the workers commercial chemi- dust, nitrocellulose, mixer, cal from the area of the the chemicals suddenly ignited. wife, Carol,
Plaintiff brought claiming and his this action compensatory punitive damages against and several individuals Hercules, Inc., corporations, including and the manufacturer of fire, Inc., Properties, the chemical that the caused Cellofilm the property owner of the which was the site of industrial the accident, Corp., plaintiff’s employer. and Cellofilm the As a motions, only result of the in trial defendant left the case was manufacturer, Hercules, the Inc. Hercules, charged (Hercules)
Plaintiffs negli- Inc. acted adequate in gently failing give dangers of of its addition, product, In they sought recovery nitrocellulose. on liability strict of warranty grounds, alleging and breach placed inherently dangerous Hercules an into the proper warnings. stream of commerce without The case was ultimately presented the jury theory negligence. on the of specific (1) The in presented appeal issues are whether there a meaningful between distinction a cause of action based on products design and one on strict based in involving product’s dangers; defect case a failure to warn of the whether, (2) under the circumstances of this it was reversi- error for presented ble the trial court to have question jury grounds to the of negligence on rather than (3) strict liability; whether should have been charged employer, on as to concurrent who was trial, longer no involved and the defendant manufacturer.
I plant employed Corporation’s Plaintiff was at Cellofilm from 25, 11, July March 1974 until date of his accident 1974. mainly unloading His work consisted maintenance and drums nitrocellulose, extremely liquid flammable chemical used the mixing paints lacquers. July On slow-speed 1974 a chemical mixture was in a made plant. mixing process pumping mixer at the consists storage large mixing chemicals from outside areas into the *5 liquid nitrocellulose mechanically dumping machine and then to a mixer an is added When nitrocellulose into the mixer. prevent hatch to the mixer’s placed is around aluminum shield However, amount of nitrocel- a small the chemical. spillage of during mixer spilled outside the inevitably lulose dust extremely flammable even dumping process. Nitrocellulose dust becomes form, dry the chemical when allowed liquid but dangerous. even more assigned 11,1974 workers were Freund and two other July
On cleaning. They opened mixer for prepare the chute on the co-workers, plaintiff’s to the mixer and one hatch around the Krowska, nitrocellulose dust from began sweeping flames, resulting suddenly erupted into The entire area mixer. Krowska, ultimately who plaintiff to both in severe burns injuries. died from his case were the exact cause major disputed issues in the warning provided adequacy of the
the fire and the nitrocellulose, plaintiffs’ Hercules. One manufacturer of the Braidech, in the at- that electrostatic effects experts, testified had formed dust cloud that mosphere ignited the nitrocellulose Dunning, con- sweeping. expert, Another while Krowska was “big of fire” however, eruption of a ball cluded that the sudden just-opened hatch. vapor ignition from the was the result of of the fire was a combination Dunning believed that the cause sweeping before and the to wet down the area failure by filling inert it with water mixing render the vessel failure to blowing it or out. Williams, testified that experts, Doyle
Hercules’ presence highly flamma- sweeping probably done in the Doyle recently opened mixer. vapors escaping from the ble vapors was still readily ignitable least testified that the dry nitrocellulose than twenty ten to times more flammable ignited vapors from the mixer opinion, the dust. In Williams’ first, setting off the fire. warning, viz: of nitrocellulose contained
The drums *6 damaged if container is or Fire result punctured severely may —Handle increases if material is allowed to not or slide —Hazard carefully drop —Do tightly soak closed when not in use—In case of or fire container spill dry Keep— Data Sheet with further information refer to MCA Chemical Safety water —For DS-96. letters, large appeared the words warning, in Below “DANGER—FLAMMABLE” “warning” he was aware of the on the Plaintiff testified that expert, drums but had never bothered to read it. Plaintiffs’ Braidech, warnings stated that while the contained on the adequate dangers nitrocellulose drums were to warn of the nitrocellulose, transporting they involved in were not sufficient cross-examination, however, warnings job. he for the On admit- warnings ted occurred had the contained that no fire would have on the drums of nitrocellulose been heeded. company plant superintendent
Cellofilm’s testified that cleanup procedure dealing for with nitrocel- long-standing had a spills. Employees up spills were instructed to clean as lulose spills with possible they soon as after occurred and to soak all up. poster provided by A the manu- picking water before them facturer, Hercules, displayed employee in the locker room dangers dry warned of the nitrocellulose and instructed that spill, should be wet with water before case of a the chemical cleanup. requests jury charges
Plaintiffs on the law of submitted negligence liability, as well as the issue of concurrent and strict objections, negligence. Despite plaintiffs’ the trial court refused negligence. or concurrent jury to instruct the on strict liability request to was that a The essence of the strict if strictly manufacturer of a liable warnings by inadequate defective virtue of and the “defect” consumer proximately injury reasonably causes to a foreseeable “[pjroof Additionally, request or user. stated handling making in the or manufacturer’s Addressing plaintiffs’ objections to the required.” article is not made, ruled that a strict the trial court any in the inappropriate as a matter of law since “defect” was negli- from necessarily would result adequacy of the gence the defendant. negligence, the question of the relevance of concurrent
On the charge. simply proposed He judge trial chose not to follow if Hercules was jury that it was to determine informed the and, so, proximate if whether that negligent charge, if injuries. proposed cause of Elmer Freund’s find given, expressly permitted would have defend- ant, Hercules, Corp. negligent even if it concluded Cellofilm negligent failing provide adequate warnings to its was also dangers of Plaintiffs did not employees on the nitrocellulose. *7 objection upon raise a further the trial court’s failure to submit error, negligence charge jury. alleged to the The concurrent however, appeal. was raised at the motion for a new trial and on negli- jury unanimously
The
concluded that Hercules was not
gent
judgment
subsequently
and
entered in its favor.
trial,
brought motion for a new
which was denied.
Plaintiffs
appeal,
Appellate
On
Division affirmed the trial court’s
opinion
plaintiffs petitioned
without
and
this Court for
decision
certification,
(1980).
granted.
which was
II noted, personal injury case involves a manufac As product tured claimed to be defective because a failure provide adequate warning dangers. primary to its The judge presenting issue is whether the trial committed error in negligence theory the case to the rather than principles liability. of strict perception involving of this case as one
The trial court’s negligence problem large stems in meas- not uncommon. historically terminology ure from the has been used to purposes. liability define a defective for strict In instructing juries product, as to what constitutes a defective judges warranty routinely terminology borrow from the law of
237 Angelo Foundry Machine v. & negligence. See Suter San Wade, 150, 168-171 (1979); Nature of “On the Company, 81 N.J. 825, Products,” 834-835 44 Miss.L.J. Liability Tort Strict and, particular, improper (1973). In the case of defects, terminology virtually warning the use of design warning adequacy of a or necessar unavoidable since the Wade, 836-837. supra, at depends upon its “reasonableness.” ily to confusion over terminology has led Hence the use of this differences, any, if exist between the precise what recovery defective and strict theories inadequate cases, consists of an especially where the defect warning. struggled with these con- leading have
Courts and
scholars
applica-
compared the
courts have examined and
cepts. Some
inadequate
negligence theories in
tion of strict
little,
any,
if
differ-
there is
warning area and concluded
Sterling
g.,E.
in this context.
ence between the two theories
(8
1969);
v.
Yarrow,
Cir.
Rainbow
Drug, Inc. v.
408 F.2d
250,
Co., Inc.,
49 A.D.2d
373 N.Y.S.2A
Building
Albert Elia
been that
(1975).
by these courts has
The conclusion reached
ultimately depends upon “[ujnder
theory,
recovery
either
the facts of what
subjective
by the trier of
determination
all of the circumstances.”
under
constitutes reasonable
Co., Inc., supra,
A.D.2d at
Building
Rainbow v. Albert Elia
931.
373 N.Y.S.2A at
however,
*8
per
has
authority,
and
growing
A
trend
cases
liability, as
of strict
between the utilization
ceived
difference
g.,
warning
E.
inadequate
area.
negligence,
to
in the
opposed
(9
Co.,
A
to determine
propensity
product’s
to
culpability,
seller knew of the
is to assume the
seller’s
whether,
did,
knowledge, he would have
injure
with such
then to ask
as it
[Phillips
selling
warning.
Machine
negligent
v. Kim wood
it without a
been
Company,supra,
There is one however, Phillips under highlighted by the discussion: proaches, knowledge presumed; it is “as- liability, seller’s is strict injure product’s propensity to as the seller knew of the sume[d] cases, knowledge must be In such it did.” Id. “knew or should proved; the standard is what the manufacturer have known.” with conclusion.
Scholarly opinion generally is in accord Keeton, liability prominent Professor advocate of the strict cases, although kind approach opined in these has that the same dangerous required is to hold one liable under strict conduct excusably liability negligence, or “the fact that the maker was danger any and had not committed unaware of the extent danger caused the would be negligent act or omission that Keeton, R. “Prod- entirely irrelevant strict [in cases].” Information,” 48 Tex.L.Rev. Liability Inadequacy ucts — (1970). 407—408 Likewise, suggests separate strict Professor Wade perceived by recognizes the same distinctions which following analysis be proposes He that Professor Keeton. First, that the defendant knew of applied. it should be assumed conditions, proven at any, plaintiff if that the has dangerous trial; the manufacturer as a knowledge imputed such Second, the defendant matter of law. it must be shown might be harmed negligent people who Wade, supra, 44 at dangerous a result of its condition. Miss.LJ. Thus, weight authority agrees proposi- 834-835. on one liability, strict there is no plaintiff tion: that when a sues under have prove need to the manufacturer knew or should of its any dangerous propensities known of —such knowledge imputed to the manufacturer. negligence. utility,
impairing This constitute its failure to do so would why, inadequate warning product-oriented explains and con- in an approaches appear similar. duct-oriented *10 Although precise question has never the Court considered any proofs of whether there exists true difference in the neces- sary negligence, opposed liability, to establish as to strict in an case,2 inadequate warning products liability principles illumi- the basically nated our above are consistent with recent decisional Angelo Foundry law. The Court in v. & Machine Suter San case, Company, supra, discussing pointed a in defect out charging jury liability applica- that in the as to the standards of manufacturer, the ble to it must be that the manu- “assum[ed] propensity product.” facturer knew of the harmful 81 N.J. at 171. We further concluded in that case that where the self-evident, design defect was not “the trial court should also manufacturer, jury being on whether the it deemed to have known propensity product, of the harmful acted reasonably prudent a one.” 81 at N.J. 177. To the same effect, Cepeda Inc., see Engineering Company, v. Cumberland 76 (1978). N.J. agree weight
We
with
authority
signifi-
of
that there is a
cant distinction
liability theory,
between
and strict
at
imputing
least in terms of
knowledge
the manufacturer
of
dangers
Thus,
product.
given
inherent
in the
impor-
protection
tance of user
and the
for uniformity
need
and consist-
ency
cases,3
products liability
generally
in
we
in
hold
Division,
dicta,
Appellate
however,
2The
noted in one
case
it viewed
gist
alleged inadequate warning
“the
of the cause of action
on
based
[as]
liability.
the same” under
and strict
Torsiello v. Whitehall Labora-
tories,
N.J.Super. 311, 320-321,
den.,
(App.Div.1979),
n.2
certif.
Ill significance the trial question remains as to the still upon negli- jury solely based charging court’s insistence inquiry gence. next entails an as to To evaluate this issue appropriate charge to must be included in an elements that inadequate alleged of an jury in a case where the defect consists product safety. would, at a to a case this sort A *11 minimum, general charge products liability a normally consist of charge include defects—such to non-self-evident applicable to cause, foreseeability, and proximate reasonable the elements of duty to charge concerning the explicit well as an the like—as case, in Thus, this evaluating appropriate in warn. Angelo v. San to our recent case Suter we must first turn Foundry Company, supra. & Machine Suter, a design in a defect case observed that
In the Court product’s safety, jury should be instructed in terms suitability for its intended or foreseeable well as its fitness and proper to adopting approach at In purposes. 81 N.J. 176. case, that the design the Court concluded jury in a defect dangerous,” that unreasonably terminology condition “defective Engineering Com- Cepeda in v. had been advocated Cumberland imposing Inc., for a dual burden pany, supra, potential had the and that the defect created plaintiff show both a defect on a —to dangerous condition. unreasonably an language view that We to adhere to the continue potential unreasonably dangerous” has condition “defective rejected. R. misunderstanding, apt should be See is not usage. adequate provided To with the insure safe deal instructions are basis the second first on the basis of strict very 403.] Tex.L.Rev. at [48 make much sense. cannot Epstein, Liability (1980). Modern Products We do so not because the Phraseology unreasonably “defective condition dan- gerous” legally may impres- unsound but because it create an sion in jury the mind of the that a present. double burden is
We must
apply
therefore
to the
Suter
instant
bear
ing in mind its admonition that while
jury
design
in a
defect
case should
charged generally
be
“in terms of whether the
fit,
reasonably
suitable and safe for its intended or
purposes
foreseeable
. . .
instruction should be tailored to
[t]he
the factual situation
jury
to assist the
in performing its fact-
finding responsibility.”
Accordingly, carefully we must structure the applicable best presented the context here. As we Suter, noted in warning situation, the instruction or safety is predominant determining factor in the adequacy of the manufacturer’s efforts. The reason for this is that where the inadequate defect consists of use, as to safe utility product, against as counterbalanced the risks *12 use, of its is rarely at Consequently, issue. the elements of product suitability, fitness or relating utility, to particu are not larly germane. sense, Ante at Though, n.l. in a inade quate warning is related to fitness suitability, and appears it preferable to the in terms of safety, for fitness and suitability by are subsumed concept the of safety where the inadequate defect consists of an involving safety product.
Hence, products a liability charge in inadequate warning case safety must focus on emphasize and that a manu facturer, marketing product a with an inadequate warning as warn, if duty to even the dangers, has satisfied its to its not inspected, designed, and manufactured. product perfectly Moreover, the must make clear that importantly, and imputed product the to dangerous the trait of knowledge of the that also include notion the the It must manufacturer. any and all foresee- adequately protect warning be sufficient to presented by product. This dangers the able users from hidden regard to indus- duty prevailing to without must be said attach short, adequate explained must that an try standards. In it be communications, directions, that the and warning is one includes product of a safe. essential to make the use information IV by Hercules that it despite In this the admission product, its we conclude propensities knew of the harmful of difference between the strict that there is a sufficient negligence charge actually developed, and the we have by terminology employed the given, justify a to reversal. knowledge negligence, with references to judge trial was riddled industry part manufacturer and and care on the of a reasonable While the actual standards, well terms of limitation.4 as following language: example, jury charge 4For the the included sued, being recover, party party suing that To the must the establish defendant, negligent was a and that this whom we call the term, By proximate happening the of the accident ... cause the of defendant, negligent proximate conduct of cause the law means producing sued, party being cause of the must have been the efficient course, plain- who, parties suing damages we call the claimed determining going apply you the issue The test are to ... tiff[s] exercised under circum- not the defendant is whether or involved, forth, degree place care and so stances the time products reasonably prudent ... of chemical which a manufacturer care, party then defend- If the exercised would have exercised. duty to exercise is under ant would not be liable. manufacturer [T]he packaging labeling production, of its care in the reasonable expected protect may reasonably in the area of the who be those be being harm it is used use unreasonable risk of while from course, every This, purpose mean not it ... does was intended *13 legal in present parsed, standards this if charge, minutely may broadly be with consistent strict when the standards removed, knowledge element of we must be concerned with judge’s the upon effect the trial articulation the jury’s processes. deliberative The charge may utilized below have jury’s affected the of the nature and view extent of the burden by plaintiffs. jury might shouldered the The well have been led wording to believe the of the that if most manufac- placed warnings product turers similar on their and the defend- ant careful formulating displaying was about warnings, the the defendant culpably negligent, was not even the warning if inadequate Moreover, was and the was still unsafe. the warning might adequacy as to the of the have misled the believing into proper that such a would be if or product, confined related to the intended use notwith- standing its inadequacy addressing upon risks attendant all foreseeable uses.
Furthermore, charge may this well have been viewed as placing plaintiff a burden on the to show the conventional practice industry. of the liability theory, Under a strict plaintiffs would not be may so. Since the have been induced to prove they a fact under that would not have been required prove liability, under strict this also would lead to judge conclusion and the trial committed reversible error submitting jury only case to on the theory.
Finally, though even knowledge defendant Hercules admitted dangers nitrocellulose, plaintiffs were never re- Moreover, knowledge. lieved of the proving burden of the jury expressly never informed of this concession in terms of the proof. burden of plaintiffs were entitled to a strict clearly imputed unmistakenly knowledge dangers to the defendant. may possible
conceivable risk. That not even be in all circumstances. You must bear in mind the circumstances. *14 the noted deficiencies completely confident that cannot be We not, cumulatively, or charge separately did trial court’s in the liability. of We jury’s and assessment the deliberations affect then, of conclude, this the use the under the facts of that negligence charge was not harmless error.
V to in- judge’s the trial failure allege Plaintiffs that further charge on requested the substance of their struct the prejudicial justifying a negligence error concurrent constituted charge specifically stated that the requested trial. The new defendant, Hercules, marketing for negligent jury could find the plaintiff’s product even if it concluded that a defective adequate failing provide to employer negligent was also dangers employees. to Such warnings its on the essence necessary, plaintiffs argue, because the was Cellofilm, negligence of defense was that the the defendant’s of the fire. We need not co-employees caused plaintiff’s Inc. and of determination that the verdict in view our consider issue and the matter remanded favor defendant is to be reversed retried, however, must be it a new trial. Since the case parties and the clarify point for the benefit well to judge. trial is, course, principle negligence juris
It basic more and may that be two or concurrent prudence “there inju proximate causes of an directly cooperative and efficient 428, Inc., (1950); 4 442 Corporation, v. N.J. ry.” Menth Breeze 356, Co., N.J.Super. 367 Andreoli v. Natural Gas accord occurs, tortfeasors are liable When that both (App.Div.1959). negli negligence “was not the sole though individual even their cause, although party’s] and proximate gence, or the sole [each cause, independent intervening other negligence, without such Thies, injury.” v. Robbins produced would not have 1937). (E. 394 & A. N.J.L. developed. been following model has
Accordingly, the injury of two or combines When more to persons produce damages concurring and to the in such and plaintiff, parties bringing jointly injury are about the result liable for the severally damages regardless degree negligent caused of their proximately thereby, participation. The trial judge in this case refused to consider this equivalent, or its believing charge, required that his which proximate the defendant’s behavior be a cause of the attach, requiring accident in order for rather than proximate it be the injury, adequate cause of the *15 convey the jury. law to the support approach
Some
for
is found in Panas v. N. J.
Co.,
(1971),
Natural Gas
the other ruling the Division’s in Post v. Eng. Manitowoc Corp., N.J.Super. (App.Div.1965). Post wrongful involved a death action in which the defendant-manu negligence facturer was sued for in the and construction of a crane that collapsed, killing two construction workers. At trial, counsel plaintiffs requested charge for the submitted a on possible the law concurrent since it was for the jury to conclude that both the employ defendant and deceased’s negligent. er were judge The trial refused to deliver the a verdict jury subsequently returned requested and the Id. at in favor the defendant. 202-205. Sullivan, court,
Judge (now Justice) writing for the found jury the on concurrent error in the failure to instruction, the of such an and ordered a new trial. In absence ruled, its own conclusionsas jury “the was left to draw court was it that both defendant to what law should determine 207. The [plaintiff’s employer] negligent.” were Id. at that, jury charge given noted based court also —which plaintiffs must .. . prove stated “the that [that defendant’s] jury negligen[ce] proximate was the cause” of accident—the felt to return a verdict for the defendant might well have bound negligence. if it Id. found concurrent dispositive present- We case is the context find that neither Post, here. utilized talked in terms ed In Thus, charge, cause. that proximate proximate cause and not a Panas, egregious than was far more illustrated proffered in this trial. case,
Nonetheless, Panas, was no unlike this there claim Thus, in against gas company. than the any party other trapped no to be into potential there weigh compare party’s it one believing that needed *16 particular another to determine if negligence against that of A concurrent should held liable. defendant be have had no additional effect charge in Panas context would the beyond proximate of “a cause” upon jury the that the by actually explicit attempt here Hercu- given. Because others, negligence of we by emphasizing les to defend itself the negligence charge cannot sure that concurrent would be a clear not made a difference in this case. have the in where conduct that situations are satisfied
We in causation of an implicated of more one tortfeasor is the than negligence, as reflected accident, on concurrent based given, particularly when jury charges, in the should be model and the retrial this requested. Accordingly, on remand matter, the concurrent trial court should plaintiffs suitably to take into account that negligence, adjusted design the basis of contending Hercules is liable on are that liability.5 defect strict
VI The judgment below is reversed and the matter remanded for a new trial.
CLIFFORD, J., concurring in result. Neither passage of time nor the changing composition of improved Court has my chances persuading the Court to recognize the error of its ways in Suter v. San Angelo Foundry Co., & Machine (1978). 81 N.J. However, not even with a two-year respite my pertinacious since but unsuccessful effort in that case am I about to launch another full-scale assault on the majority’s perpetuation of one the basic in products flaws our law, namely, rejection of the widely-accepted defini- tion of strict liability found in (Second) Torts, Restatement (1965). 402A § Today’s effort limited protest amiable against majority’s continued distortion of the risk-utility ingredient of its strict-liability-in-tort analysis.
I would adhere to the Restatement Second standard that a subject manufacturer personal strict injury by plaintiff caused its if proves injury was caused a defective condition that rendered it unreasonably dangerous for use. The “defective condition un reasonably dangerous” language comprises concept an essential incorporated that must be proper into the risk/utility analysis in cases, Cepeda Co., Inc., defect see Eng’r v. Cumberland (1978). N.J. 171-75 For today’s purposes simply point I twenty- out that since the seven twenty-five cases selected from the at jurisdictions least adopted Second, that had the Restatement section 402A lan- guage as of down, the date Suter handed see 81 N.J. at jury charge adjusted 5We would also note that the should be to reflect joint liability, fact the doctrine of concurrent or several
249
swelled
(concurring opinion), additional decisions have
191-92
nobody’s favorite
Although string citations are
the numbers.
by
material,
following may profitably be consulted
reading
modern, enlightened
up with the
keeping
those interested in
subject: Needham v. White Laborato
trend of the law on this
ries,
394,
1981)
law);
Inc.,
(7th
(applying Illinois
639 F.2d
400
Cir.
1242,
Service,
Breeding
624 F.2d
1250
Two Rivers Co. v. Curtiss
402A,
is
(5th
1980) (applying Texas’ view of
held that “it
Cir.
§
enough
finding
not
to find a defect without also
that the defect
unreasonably dangerous”);
Goodyear
is
LeBouef v.
Tire & Rub
Co.,
985,
law,
(5th
1980) (under
ber
623 F.2d
988
Cir.
Louisiana
product may
strictly
personal injury
maker of
be held
liable for
unreasonably
product
product
due to defect
renders
Piper
Corp., 506
dangerous);
Corp.
Trust
of Montana v.
Aircraft
1093, 1094
law,
(D.Mont.1981) (under Montana
manufac
F.Supp.
product
subject
liability where it can be
turer of
to strict
designed
it was
product
defectively
shown that his
so that
consumer; plaintiff must
unreasonably dangerous to user or
“defect,
dangerous”); Len
prove injury
by
unreasonably
caused
165,
(D.Kan.1980) (under
172
Corp.,
F.Supp.
herr v. NRM
504
law, plaintiff
prove product
Kansas
must
was in a defective
unreasonably dangerous);
condition
Kellar v. Inductotherm
172,
aff’d,
Corp.,
F.Supp.
(E.D.Tenn.1978),
176
(applying 83 Hospital, v. Michael Reese dangerous”); Dubin unreasonably 350, 345, 346-48, 351-53 415 N.E.2d 277, 280, 47 Ill.Dec. Ill.2d strictly liable for product (seller (Ill.1980) or manufacturer condition which resulting “defective from injury to consumer dangerous,” treating “defec- unreasonably product renders separate proofs); “unreasonably dangerous” as two tive” and 377, 211, 215, Ill.Dec. Corp., 82 Ill.2d 45 Palmer v. Avco Distr. 402A, 959, (Ill.1980) held 379-80, (applying § N.E.2d 961-62 412 condition, dangerous); unreasonably product to be in defective 304, 26, 35, Co., Ill.Dec. 79 Ill.2d 37 Davis & Woodhill v. Parke “unreasonably dan treating 194, (same; 402 200 (Ill.1980) N.E.2d danger posed by the whether the risk of gerous” inquiry as any apparent usefulness of the outweighs condition defective Commonwealth, Ill.App.3d Elgin Airport Inn v. 88 product); 620, 620, (plaintiff 477, (App.Ct.1980) 623 43 Ill.Dec. 410 N.E.2d in a defective condition mak- must establish that “was user”); Ryan Blakely, v. 71 ing unreasonably dangerous to the it 540, 547, 604, 339, 348, 611 Ill.Dec. 389 N.E.2d Ill.App.3d 27 (strict imposed prod- on manufacturer of (App.Ct.1979) consumer unreasonably dangerous to user or uct that design); Lukowski v. Vecta or virtue of a defective condition 781, (Ct.App.1980) (strict Ind.App., 401 N.E.2d 786 Corp., Educ. unreasonably dangerous product is in an liability imposed when Co., Rubush, condition); Ind.App., Inc. v. 401 Bemis defective liability under 48, (Ct.App.1980) (question of strict N.E.2d 57 condition unreasona- is whether is in a defective 402A§ unreasonably product may be defective and not bly dangerous; 545, 551, Sawyer, Kan.App. 4 608 P.2d Kennedy v. dangerous); Inc., 1379, 204 Neb. (Ct.App.1980); Hancock v. Paccar 1384-85 25, (Neb.1979); 468, 484, v. United 283 N.W.2d 37 Smith States S.D., Smith, Co., 251, (Okl.1980); v. 612 253 Smith Gypsum P.2d 402A, 155, (under plain (S.D.1979) burden 278 N. W.2d 159 § unreasonably dangerous”); which is prove tiff “a defect 152, Co., Hahn, 601 P.2d Ernest W. Inc. v. Armco Steel toto, plaintiff nothing 1979) 402A (Utah (adopting § danger unreasonably product is the defective prove must 672, 681, 280 N.W.2d Wis.2d Corp., 90 ous); Roberts v. Shawver Co., 89 Wis.2d Elec. Black v. General 226, (Wis.1979); 230-31 (citing Cepeda, (Ct.App.1979) 195, 209, 278 N.W.2d language condition unreasona noted that 402A of “defective § standard). in strict bly dangerous” should remain *19 inadequate warning or agree I with the that “in Court cases, given,” ante at a strict should be defect 240-241, judgment reversing and remand- join in the and hence Second, However, section ing. I would make the Restatement charge. language integral part such a 402A opinion. joins in this Justice SULLIVAN JJ., CLIFFORD, concurring result. in the SULLIVAN WILENTZ and remandment —Chief Justice For REVERSAL SULLIVAN, PASHMAN, CLIFFORD, SCHREIB- and Justice ER and HANDLER —6.
For —None. affirmance