*1 Affirmed.
Munson, C.J., concurs. J., in the result.
McInturff, concurs 19, 1978. April denied rehearing Petition 20, 1978. Court October by Supreme Review denied 20, 1978.] March 4228-1. Division One. [No. Douglas L. Appellant, Lamon, McDonnell
Vicki Respondent. Corporation, *2 Jerry Schumm, appellant. for
Lane, Powell, Tollefson, Moss & Miller and G. Val respondent. stewardess, J.
Callow, The plaintiff, stepped an airline into open emergency airplane. hatch of a DC-10 She from appeals a summary judgment dismissing personal her injury against action the aircraft manufacturer. in question
The hatch is an integral part of the aircraft. put only It was area where it could be located for safety and design variety It considerations. is described "emergency exits" section of the DC-10 Cabin Familiarization Manual as follows: Attendants Galley Escape Ladder Hatch and right escape corner hatch, the forward An located ceiling opening galley cabin the forward into the lower provides right from of exit floor, means an alternate aisle perma- during galley A abnormal conditions. the lower nently the floor may galley floor to from the attached ladder extends carpet escape is flush with cover hatch. hatch place its frame with velcro. within and held by pushing galley opened lower opened from the cover can also be under side. The hatch cabin. The position covering carpet with velcro held expose hatch handle and can be lifted to cover. a recessed plaintiff, attendants, was cabin familiar as one stepped just into Furthermore, before she with hatch. up through it, it, come she had seen another stewardess necessitating power failure announce that there had been go plaintiff filed use, its back down into it. The and then engineer which that he the affidavit of a California stated analysis specialized in of industrial the reconstruction and traffic accidents and that: *3 escape April galley 1975,1 On the hatches examined Boeing airplane. on a DC-10 and a was made at the Seattle-Tacoma The examination airport air- and the
planes part on of the United Airlines fleet. Based were design my the of this examination it is escape ably dangerous condition was DC-10 on created an unreason- hatch cover the DC-10 for The condition the cabin attendants. on the close the the hatch cover created because panel, to of a order consists loose manually hatch cover has to be hatch after use the loose opening. using into If after the hatch the fitted the hatch open forget replace to cover the user were to hatch hazard to cabin atten- hatch would constitute a serious perfor- walk backward dants who often have to replaced hatch cover of If when mance were not their duties. opening properly into it could fitted the hatch endanger person stepping trap on a door and act as dangerous of the DC-10 hatch cover are it. The not features Boeing galley present hatch of the Boeing quite respects, cover. similar other While equipped hinged to floor and is cover is hatch spring with a automatically device which keeps closes and the hatch cover closed when the hatch is not in use. (1) The following issues are presented: What is quantum proof of that must be presented plaintiff before (2) submit a strict tort liability case to a Is a jury? case, tort liability based on a manufacturer's failure warn, made out where the in question condition is known (3) In plaintiff? case, liability a strict tort issue on liability presented when witness states that, defective, opinion, his a product or unsafe?
A products liability case involves the claimed liabil ity manufacturer, of a processor nonmanufacturing or seller injury for person buyer of property per or third son caused a product which has been 1 R. & sold. Hursh (2d H. American Law Bailey, Products 1:1 Liability § of 1974); (1972). ed. 63 Am. Jur. Products Liability 2d § Products liability ordinarily cases are on predicated one more three legal liability, theories: strict tort negligence warranty. Here, and breach of plaintiff is relying pri marily theory liability. of strict tort lia Strict tort bility liability. is not absolute is "strict" the sense that unnecessary for a proceeding under that the ory prove negligent, defendant was and the defendant does not have available the defenses lack privity, lack notice and 1 R. H. disclaimer. Hursh & (2d Bailey, American Law Liability Products 4:10 ed. § 1974); (1972). 63 Am. Jur. 2d Products Liability § doctrine of strict was enunciated Ulmer v. Ford Motor 75 Wn.2d opinion adopted Restatement (1965), Torts 402A which states: § Special Liability Phys- 402A. of Product Seller *4 ical Harm to or User Consumer (1) One in product who sells a defective condi- unreasonably tion dangerous to user or consumer or to his property subject liability physical
519 consumer, user or to the ultimate thereby caused harm property, to his selling (a) in the business engaged the seller and product, such or con- (b) reach the user and does expected it is condition change without substantial sumer which sold. (1) (2) applies The stated Subsection rule although in the (a) possible care all has exercised seller and product, and sale of his preparation (b) bought product not the user or consumer has with the any contractual relation from or entered into seller. of cases in a number applicable
The doctrine has been held Co., 149, Wn.2d v. Porter Fischer & including Teagle Tabert, v. Bank (1977); Seattle-Frist Nat'l v. 145, (1975); Baumgardner American 542 P.2d (1974); P.2d and Corp., Motors 83 Wn.2d App. 15 Wn. Mining & Haugen Mfg. v. Minnesota P.2d 71 duty was owed whether a inquire We must first and whether party injured the manufacturer v. Baumgardner American See duty breached. was involves a case supra at 756. instant Corp., Motors manufactured, was well product, although claim that to be determine defectively designed. applied The test enun liability defect cases liability design strict at 149- supra Nat'l Bank ciated Seattle-First follows: as . . defect. liability design does encompass [S]trict capable of product may just A arises from injury whether its condition producing manufacturing or from a defect design defect process. eas- manufacturing defect more While a may produce defect ily proved, identified or same—a result is the product. end equally dangerous defective liability should attach. for which strict legal impose does The doctrine of harm. causes because a simply responsibility *5 Such a embody result would liability absolute which is not the import liability. of strict . . . . . . language The literal liability the section creates product
for a in a condition which is unreason- defective ably dangerous. The Restatement add comments flesh these g bare bone words. Under comment entitled condition" it is stated: "Defective The rule only stated Section applies where is, the product hands, it at the time the leaves seller's in a by condition not contemplated the ultimate con- sumer, which will be unreasonably dangerous to him. (Italics ours.) i,
Comment dangerous" entitled "Unreasonably states: The article sold must be to an extent beyond that which would be the contemplated it, ordinary consumer who purchases ordinary with the common knowledge as to its community characteristics. (Italics ours.)
Continuing, at page states 154:
If product unreasonably a necessarily is dangerous, is defective. The plaintiff may, required but should not be prove separate as defectiveness matter. Likewise, unreasonably dangerous implies higher different than standard what we conceive be the intended emphasis 402A liability. thrust of section upon expectation
is the consumer's reasonable of buying product which is reasonably safe. The ordi- nary product consumer of safety, evaluates a terms recognizing virtually product no is or can be made absolutely Certainly safe. the case with the auto- mobile potential and all of for injury. its Thus, hold we under section imposed if product reasonably 402A a it must safe. This means that beyond an
be unsafe to extent that which would reasonably contemplated ordinary consumer. This expectations evaluation of the terms the reasonable ordinary consumer allows trier fact to take into account the intrinsic of the nature product. The purchaser Volkswagen cannot reason- ably expect degree safety buyer same would the of the expensive much more Cadillac. It must be borne relative, mind concept. dealing that we are with a absolute In determining the reasonable expectations of the ordinary consumer, a number of factors must be consid- ered. The relative product, cost gravity of the potential harm from the claimed defect and the cost and feasibility of eliminating or minimizing the risk relevant nature of a particular case. In other instances or the nature of the claimed defect may make other factors relevant to the issue.
It cannot be said as a matter of law that of the *6 escape hatch was defect free when the evidence is viewed (a) in light (b) the most favorable to the plaintiff, with the testimony (c) expert mind, the and taking the reason- able expectations of the consumer along with the intrinsic nature of the product into consideration.
In
prove
order to
liability,
must
(1)
prove
(2)
defect,
there was a
which existed at the
time
product
the
left
the
manufacturer,
hands of the
(3) which
not
(4)
was
contemplated
user,
the
which
renders
product
the
(5)
unreasonably dangerous, and
which
proximate
the
plaintiff's
cause
Ulmer v.
injury.
Ford
Co.,
Motor
supra;
v. Koeteeuw,
Simmons
5 Wn. App.
572, 489
(1971);
P.2d 364
(1970).
L.
45 Wash
Rev. 431
A
product
is unreasonably
if
it is dangerous to an
extent beyond that which would be contemplated
by ordinary consumer who purchases
the product. Restate
ment
402A,
(1965).
Torts
comment
i
A
product has been called "inherently and imminently dan
gerous" to human safety when substantial harm is to be
anticipated
it is defective. Dipangrazio
Salamonsen,
v.
64
(1964).
393 P.2d
Likewise,
936
in Pass
waters v. General
(8th
Motors Corp.,
522 plaintiff, but con general each definition reaches same cept of which the hazards must exist user would not be to be aware and which would expected ordinarily experienced user contemplated Indus., Inc., 507, product. Royal Sherrill v. 526 F.2d (8th Co., 1975); 512 Cir. v. International Harvester Orfield (E.D. 404, 1975), aff'd, F. F.2d Supp. 415 406 Tenn. 535 959 (6th 1976). only Cir. The obviousness of thé defect is a fac in determining tor to be considered whether a defect Riddell, Inc., v. Ariz. unreasonably dangerous, Byrns 113 264, (1976); and whether a is unrea sonably dangerous depends possible also on the seriousness harm, as the foresee preventing the cost of well Co., Du ability Hall v. E.I. Pont De Nemours & thereof. 1972). (E.D.N.Y. 353, F. Supp. 345 368 A contemplated by defective condition is a condition not presents which he ultimate user and a hazard would Bunn v. Tractor F. expect. Caterpillar 415 (W.D. (3d 286, 1976), Supp. aff'd, F.2d Cir. Pa. 1977); Indus., Inc., Casrell v. Altec 335 So. 2d (Ala. 1976); Ford, Inc., Snider Bob Thibodeau Mich. App. 202 N.W.2d "unreasonably terms "defective condition" and dan-
gerous" essentially synonymous. have been defined as (5th 252, Welch v. Outboard Marine 481 F.2d 255 Corp., Co., F. 1973); Supp. Cir. Matthews v. Campbell Soup 380 (S.D. 1974). 1061, 1063 Tex. upon plaintiff alleging injury
The burden of
proof
to
the
was
product
product
a defective
show that
of the manufac-
defective condition when it left the hands
YMCA,
(1973);
v.
Seattle-First Nat'l Bank v.
supra,
states that
product must be evaluated
the terms of
reason-
able
expectation
the consumer
the trier of the fact
light
the intrinsic
product.
nature
The defendant
had
duty
to exercise
in designing
reasonable
care
escape hatch
did not
involve an unreasonable
risk of
harm
personnel
to cabin
who would
working
vicinity
Spellmeyer Weyerhaeuser,
of the hatch.
14 Wn.
(1975).
642, 647,
App.
We that there is no part give of a warning product-connected dan ger person where the who claims to be entitled warning danger. product-con knows of the Where the known, danger nected is obvious or the manufacturer duty Haysom seller no v. Coleman Lantern has warn. Co., 474, 479, (1978); 89 Wn.2d P.2d Ewer v. Good year Co., Tire & Rubber 4 Wn. P.2d App. (Second)
(1971); 402A, j Restatement of Torts comment § (1965). to warn or giving inadequate failure of an warn-
ing may cause a to a give be unsafe and thus rise Teagle strict tort v. Fischer & Por- cause action. (1977); ter 89 Wn.2d Restatement 402A, h j of Torts comments How- ever, awareness of the existence of an obvious not, itself, condition the manufacturer does absolve *8 524 design. for a defective As noted Seattle-First supra
Nat'l Bank v.
at 155:
[DJefendant
.,
. .
contends that
and
open
recovery.
precluding
defect,
obvious,
was
and
It is
recognizes
n,
true that comment
402A
section
assumption
the risk
be a defense
a strict liabil
ity
proceeding
voluntarily
unreasonably
case when it consists of
and
danger, i.e.,
to encounter a known
would a
to use a
reasonably prudent
product
voluntarily
person continue
open
known,
in the face of a
and obvious dan
ger?
75 Wn.2d
acknowledged in
This was
Brown v. Quick Mix
(1969):
833, 836,
Opinion testimony otherwise admissible is not objectionable because embraces an ultimate issue to be ley, decided Gerard v. the trier of the fact. Peas 66 (1965); Massey- 449, 454, Palmer v. Ferguson, (1970). App. Inc., 508, 510, 3 Wn. P.2d Washington Proposed 704, 156, See Fed. R. Evid. at and Rules of Evidence at 41-42. The evidence admitted upon support opinion trial must of the that is expressed YMCA, See the trier the fact. Curtiss supra Bailey, 466; at 1 R. Hursh & H. American Law (2d 1974). Liability 1:24, Products § Likewise, at 82 ed. Cleary, in E. noted McCormick's Handbook the Law (2d 1972): § Evidence at 31 ed. expert opinion Nor will court be admitted believes upon that an be based the facts evidence cannot reasonably grounded upon those facts. Expert Opinion Accord, Am. Jur. 2d Evidence (1967); Prinzing, at 538 Crowe v. 77 Wn.2d question presented P.2d This must be say judge it to trial at the time of the trial. Suffice that at presented. juncture question for the *9 summary judg- upon The dismissal of the cause of action for trial. ment is reversed and the cause is remanded Swanson, J., concurs.
Andersen, pro- in this (dissenting)—The J. defendant liability large manufacturing corporation. ducts action is a liability of law which principles expressed The strict are case, however, who equally important everyone are is This is engaged selling products. business manufacturer, wholesaler, every because distributor small, retailer, not, liability large insured subject for sold which are to not be rea- products later determined sonably safe. See Seattle-First Nat'l Bank v. 145, 147-49,
I respectfully dissent majority opinion on two grounds:
1. There is a legal threshold which must be crossed plaintiff before a legally liability has a sufficient strict tort case. I would hold plaintiff's proof that did not cross that threshold. case,
2. In liability a strict tort issue on automatically presented whenever an witness opines defective, that a dangerous or unsafe regardless of the basis of that I would hold opinion. that plaintiff's expert was not sufficient to get past summary her case the defendant's motion judgment. Briefly
Facts Case Restated plaintiff The is an airline stepped stewardess who into an open emergency hatch of the airplane DC-10 on which she working. brought products liability was She against action primarily aircraft manufacturer based tort lia- bility. It escape is uncontroverted hatch was pre- cisely where it had to be and plaintiff completely familiar with it. stepped Just before she into the hatch, open had seen another stewardess come hatch, up through say heard her there had been a power failure its necessitating use and then saw her back go down it. into summary judgment dismissing the trial court
plaintiff's personal injury action should be affirmed.
Ground plaintiff's proof did not reach the threshold as to what constitutes a legally sufficient strict tort liability cause of action.
The law of strict liability is court-made law. has been the law of this state since 1969 when the State Supreme Court adopted Restatement of Torts § 402A. Having adopted Restatement, this doctrine from the our courts in interpreting understandably have relied *10 heavily on the official comments thereto and on the writ- of ings Restatement, the reporters particularly of the Dean Wade, John M. Torts, Reporter, Restatement of Prosser, and Dean William L. predecessor. his The case before us requires that a delineation be made between respective the functions of court and in jury strict liability this, design defect cases. As to Dean Wade's analysis should very eruditely be followed. As he expresses it: Jury
Judge and In an action for negligence normally it is the function of the jury to determine whether neg the defendant was ligent, course, of subject, authority to judge the defendant, direct a verdict for the if he finds that the On the jury could not reasonably find for the plaintiff. hand, in other an action liability based of the (Ex. Rylands Fletcher, v. 1 Ex. type, [Rylands L.R. 1866), Ch. aff'd, (1868)] L.R. 3 H.L. 339 for an abnor mally whether strict activity, the determination as to
liability activity will imposed for the held to be one for the judge, jury—for not the the reason that the of general policy. decision involves issues social In the cases courts seem not to have products the Instead, in approached problem they the this fashion. seem to have that strict is like products assumed in order to negligence respect, plaintiff, so that a recover, must convince was jury the that the duly or "not "unreasonably dangerous" "defective" or quite works safe," used. This generally or whatever test is is whether the satisfactorily question when the pro manufacturing because of an error was unsafe it in which cess so that intended to be. kind the comes when classed as making it was not the condition factual, of the issue then seems more difficulty jury handling. is accustomed to which is to be just single it is not article something wrong unsafe because went it, group type but a whole class design. nature of the may be unsafe because very important issues become policy here that the factors which were enumerated
above must be col carefully weighed. expec lected and the "reasonable [See in Seattle-First Nat'l Bank tations" enumerated factors (1975)]. P.2d 774 It is here 86 Wn.2d consider appellate—does the court—whether trial or to the case to the deciding these issues whether submit butcher jury. If a sues the manufacturer ground knife he cut on the sole finger, because his likely cut human sharp the knife was so flesh, it was court would out of the probably take case to find jury give opportunity hands that and not Similarly aspirin the knife was unsafe. with an man ufacturer, ordinary lining when an tablet stuck to the stomach and caused or the plaintiff's hemorrhage, rabies, of the Pasteur treatment when problem there were untoward reactions. The cases is court. these likely one of and decided be called law control of action is more extensive here Court ordinary yet, action. And negligence than course, if the court decides that it would be reasonable *11 to find for the the issue of lack of jury plaintiff, allow the safety will be to the even these due cases. submitted (Footnotes omitted.) Wade, Tort J. On the Nature Strict of (1973). Products, 44 Liability Miss. L.J. 838-39 liability tort a rapidly
The doctrine strict has been such, doctrine as developing this state elsewhere. As many subject of the on the emphasis decisions and articles of the expansion has been on the course and nature of the however, case, presented present doctrine. The issues of the be examined— require spectrum the other end 528 liability tort case must cross
the threshold which a strict be which is sufficient legally to constitute a case order jury. submitted
This, repeatedly have enunciated jurisdictions, and all not liability does mean tort proposition manufacturer, processor liability absolute and that circum- any that no one under is not an insurer other seller manufactured injury from the stances will ever sustain Law Pro- Bailey, American & H. product. R. Hursh (2d 1974); Am. Jur. Productsl 2d Liability ducts 4:6 ed. § Tabert, Nat'l Bank v. (1972); Seattle-First Liability question P.2d 774 exists a strict legal whether a threshold therefore is not case, but where. whether or not there has been In the issue of addressing reasonably safe as duty to furnish a a breach of the user, ordinary consumer or the test by the contemplated supra, Nat'l Bank v. in Seattle-First enunciated to what pro quite specific guidelines not without we are reasonably as a matter to be safe ducts are considered law. the Cit- work, The Fall landmark
Dean Prosser his adel, states: absolutely Any
Few, course, safe. any if are products, will mash cut, unskillfully any knife will hammer wielded no one thumb, cause indigestion; a supposes food can things is to be held such producer is hurt. liable when someone (1965-66). L.
50 Minn. Rev. writes:
Dean Wade require per- liability clearly does products Strict hammer, like a simple A instrument fectly for product. safe finger infrequently smash example, will designed It could unskillfully. probably thumb used likely, but at the cost possibility less to make which the dangers Despite the its usefulness. impairing Or con- reasonably safe. creates, treated as hammer involved occasionally automobile. sider an *12 any- part no fault on in which there is an accident if an to so fast example, go designed, one. It is obstacle it, in front of looms suddenly and unexpectedly in time to or swerve stop be unable to the driver will is not held liable avoid a collision. Yet if manufacturer airplane Nor the manufacturer happens. this is if Take an plane held crashes. automatically object liable aspirin, consumption—e.g., for internal human or bleeding internal may occasionally cause serious which penicillin, to which the produce complications, other is drastic. Yet there should be persons quite reactions of some no are held to an contention liability. insurer's
(Footnote omitted.) Wade, Man- Liability Tort J. Strict L.J. ufacturers, 19 Sw. 16-17 "unreasonably is not dangerous" term
Although the Bank v. supra, Seattle-First Nat'l included test, such, its definition instructive. as is nonetheless 402A, comment i states: Restatement of Torts § Unreasonably dangerous. i. The rule stated applies only defective condition of the Section product where the it unreasonably dangerous
makes to user Many possibly cannot be made products consumer. entirely or drug safe for all food consumption, necessarily harm, if only involves some risk of over- Ordinary is to consumption. sugar deadly poison diabetics, and castor oil found use under as an Mussolini what instrument of torture. That is not is meant "unreasonably in this article dangerous" Section. The beyond dangerous sold must be an extent ordinary be contemplated would consumer who it, with purchases community ordinary knowledge common to the whiskey Good its characteristics. dangerous merely it will make unreasonably because drunk, people especially dangerous some and is alco- dangerous amount holics; of whiskey, containing but bad oil, unreasonably dangerous. Good tobacco is fusel merely unreasonably because the effects of harmful; containing tobacco some- smoking may but unreasonably dangerous. marijuana like thing unreasonably dangerous merely is not Good butter case, because, deposits such be the cholesterol arteries and attacks; leads to heart butter, but bad con- oil, taminated with poisonous unreasonably fish dangerous. In considering the hatch in question, Dean Wade teaches *13 us that in certain classes of cases involving claims of design defect, the decision of whether strict liability should be imposed should be decided as an issue of law the courts "for the reason that the decision involves general issues of policy." Wade, social J. On the Nature Strict Tort Lia- bility, above). supra (quoted Furthermore, Seattle-First Tabert, Nat'l Bank v. supra at instructs that deter- mining the reasonable expectations ordinary the con- sumer, the nature of product may the itself make unique factors relevant.
Here the product involved is itself a safety device—an emergency escape hatch. Its whole reason for existence is to protect people, not injure them. What ordinary users (consumers) of escape reasonably hatch expect of it is possible fastest escape route from the enclosed aircraft compartment, are, where their work stations in the event of an emergency. It is uncontroverted the hatch in the present case was located where it had to be. At the time of accident, an emergency had occurred and the hatch was functioning as an escape purpose hatch—the exact for which it was designed and intended. There was no patent defect product part it, nor was there a latent defect as- Seattle-First Nat'l Bank v. supra, where the product lacked structural integrity. should be held as a matter of law that the emergency escape hatch here involved was reasonably safe as contem plated by the ordinary user. public policy The behind the concept whole strict tort is to encourage the protection of consumers—not to discourage it. Restatement 402A, of Torts comment f.
Ground product witness' expert opinion basis of an safe, reasonably defective, unreasonably dangerous itself. deduced or conclusion cannot be inferred does not on the ultimate issue opinion necessary sup- proof itself of the facts constitute either a case to port or sufficient evidence take opin- facts in the record which jury, unless there are predicated. ion reasonably can particular not of the if the question
Even reasonably safe as a kind should be determined to be which law, hold, showing I still plaintiff's as would matter did an issue of fact as not establish safety devices
being reasonably proper safe. The lack of may defective in some instances constitute recovery there under doctrine A.2d liability. Billinger, Bartkewich v. 432 Pa. *14 (1968). hand, commentator On " other as one it, airplane possibly has which could expressed safest [t]he be would never leave because would designed ground, safety be so it would be unable to laden with devices that (1966-67). fly." L. In order have 42 Wash. Rev. to however, jury product, a issue to unsafeness of must appropriate proof presented. be engineer of to plaintiff
Here the relied on affidavit an in expert products supply proof. that use witnesses and, indeed, helpful cases often is sometimes is In day practice, essential. modern trial such witnesses are frequently Advertising expert legal used. witnesses practice. is now also common Hundreds periodicals who, fee, testify for will in most expert witnesses a fields H. expertise publication, are at least one national listed Goodman, Lawyers Desk Philo, D. Robb & R. Reference: Injury a Conducting Sources Personal Technical 1975). (5th Action ed. others, many testimony opinion
In as in jurisdiction, just not objectionable which otherwise admissible is is decided it embraces an ultimate issue be because trier mean, however, of fact. This does jury not that a case automatically is every made out time an witness defective, states an that given danger- ous or reasonably so, If might very safe. that were there well be as a practical matter which the law otherwise denies, every manufacturer, processor and seller absolutely would be and an liable insurer that no one under circumstances would ever damage sustain least, be injured by product—or, at that a issue always could made be out to that effect. only portions evidentiary of an affidavit which can
be summary considered judgment proceeding are those parts which made on personal are knowledge affiant, set forth facts which would admissible evi- dence, and affirmatively show the affiant competent testify to the matters v. State, stated therein. Jacobsen 89 Wn.2d The affidavit must indicate on its face that the information contained therein upon personal knowledge and this requirement cannot be Echaide v. inferred. Canada Confederation Ins., (5th 1972). F.2d Cir. Examined Life this light, plaintiff's says what the affidavit of the engineer is only this: aisleway had use the where located; the hatch was that a different aircraft manufac- turer uses a hinged escape automatically hatch cover that closes; cover, opinion, and that his the defendant's hatch close, did automatically unreasonably dangerous.
In bring focus, order to into this issue some rhetorical questions posed. should
If person into open walks door and is edge *15 injured, jury engineer is a case made out if an testifies that injured had to room door was person use the where the located, automatically some doors close and his which opinion automatically the door did not close was not reasonably safe?
If person particular a who has to use room where a square located into the corner of table table is walks 533 if case out an and is is a made injured, jury room in his some are round and engineer out that tables points reasonably not to safe? Or use opinion square table converse, if is then square room table table, off of the replaced by object a round and an falls from probably round table that would not have fallen foot, square jury case made injures table and someone's testifying square are engineer out an that some tables reasonably and in the round table was safe? opinion his It not be that a case is out should held made of these illustrative situations. supports expert record an
Unless factual evidence opinion, legally witness' itself should expressed it was get past sufficient to issue an appropriate challenge. facts,
An opinion upon of an must be based assumed, proved opin- sufficient to form a basis for an ion, supply invoked and cannot be to the substantial necessary opin- conclusion. support Expert facts ion if is inadmissible its factual foundation is nebulous. (Footnotes omitted.) Expert Opinion Am. 2d 31 Jur. 36, (1967). Accord, E. Cleary, Evidence at 538 § 13, the Law at McCormick's Handbook Evidence § (2d 1972); 1 & Law Bailey, ed. R. Hursh H. American (2d Liability 1:24, 1974); Curtiss v. Products at 82 ed. 466, (1973); Crowe YMCA, Wn.2d P.2d 450 Priming, rule, 56(e), summary our CR policy judgment is the which, evidentiary contain all allow affidavits to matter testifying were in court and on the witness affiant stand, part there as a of his or her tes- would be admissible ¶ Moore, Prac., pt. 56.22[1], J. Fed. at 56-1321 timony. 6 Co. v. Hamilton Glass (1976); American Securit (7th 1958). no reason F.2d Cir. There is therefore hearing, why summary judgment trial court at a court, in just not here be as appellate court should sufficiency of what legal on the good position pass (as perhaps distinguished in his expert said affidavit *16 listening would be a trial court qualifications) his by witness at a trial. thing being same testified hatch witness did not attest expert Plaintiffs safety He question violating any industry or standards. the hatch was unreason- essentially based his aircraft manufac- ably dangerous on the fact that another As the witness' affidavit design. turer used a different hatch notes, to the floor hinged the other manufacturer's hatch is automatically closes spring and has a device it closed. That fact was sufficient keeps hatch and opinion. which to base his stated industry or custom general
While evidence a standard admissible, contrary would be evidence of the of a practices Haysom other is not.1 v. Coleman Lantern single business P.2d The defendant opted simpler for the hatch well have likely design it used because of a belief that it was less delay a of seconds jam emergency—and an where well mean the difference between exiting the aircraft could in the enclosed working life and death for the stewardesses compartment. galley passenger below the per- that would nothing There is the record before us mit to determine which of these either the court or a two aircraft manufacturers had the better competing hatch, or to determine that designed emergency escape defective. defendant's hatch In wit- analysis, fallacy letting its final in a case is unsupported opinion create a fact issue ness' logic legal precedent. better answered than perhaps dur- story of this told of Abraham Lincoln Illustrative days. Lincoln to have cross- lawyer his trial is said ing follows: examined a witness as many
"How does a horse have?" legs "Four," said the witness.
"Right," said Abe. feasibility present in this case. that no issue 1It is to be noted many does legs how leg, "Now, you call the tail have?" horse witness.
"Five," answered it a don't make Abe, leg tail a "callin' a said "Nope,"] leg."[2 unreasonably merely calling
So is here more, make it so. not, without does doc- the strict stretches case plaintiff's *17 has Neither go. intended it was ever further than trine negli- established It was warranty. any it breached respect gent motion for the manufacturer's grant error to therefore not CR 56. summary judgment.
I would affirm. June 1978. rehearing denied Petition Court June 1978. Supreme Appealed 4720-1; March Division One. 1978.] 5402-1. [Nos. v. Appellant,
Simpson Inc., Company, Timber Casualty Surety Company, & Aetna al, Respondents.
et appeared story, apocryphal, in 55 A.B.A.J. 818 possibly 2This