*1 53,000 No.
Tammy Lester, minor, Lester, Linda her mother and next Magic Appellant-Cross Appellee, Appel friend, Chef, Inc., Appellant.
lee-Cross
(
Eventually Chef, Inc., the case to trial against Magic liability on the theories Basically of strict in tort and negligence. plaintiff claims defendant was at fault stove defectively as the designed, controls for the gas burners were not of a two-step or self-latching variety and accordingly could be accidently by years. turned on child of appears tender It that Tammy attempted to stove, climb from a top chair to the of the one of the burner accidently controls was Tammy turned on and was immediately engulfed in flames. The case was to submitted jury theory (K.S.A. under the of comparative 60-258a) fault $300,000.00 and the returned a verdict for actual damages comparative assessed the Lester, fault 50% to Melvin father, Tammy’s mother, to her Lester, 50% Linda 0% to Chef, defendant Inc. Magic also found that the mobile mаnufacturer, home Roanna Gordman, Togs, Richman Spring Mills, the mobile home retailer gas valve manufacturer were without points fault. Numerous are raised plaintiff on appeal.
At the
outset
contends it was error to submit
case
on the
comparative
basis of
negligence
comparative fault
plaintiff,
because the
due to her tender
was free
age,
of negligence
as a matter of law and the
when
legislature,
it
K.S.A.
enacted
60-258a,
joint
liability
did not intend to abolish
and several
when
part
plaintiff.
there is no fault or
negligence it
it
comparative
alternative
that was error
submit the
argued
parents
they
parties
fault of the
because
were not named
beyond
action. This court has now
question
established
that
subject
actions based
in tort
are
K.S.A.
Forsythe
Co.,
553,
v.
(1982);
60-258a.
Coats
230 Kan.
639 P.2d
v.
368,
Albertson Volkswagenwerk
230 Kan.
Aktiengesellschaft,
(1981);
Kennedy City
In Brown v. we Keill stated: provisions concept joint hold “[W]e under the K.S.A. 60-258a and several joint previously existing longer between tort-feasors in this state no applies comparative negligеnce p. actions.” 204. October, 1981, recently Albertson, As as we stated in comparative parties “Under the doctrine of fault all to an occurrence must have action, though parties formally their fault determined one even some be cannot joined legally responsible.” p. or held 374. decline previous which, We to overrule our decisions in our accurately opinion, legislative reflect the intent behind K.S.A. interpretation 60-258a. If our of the intent of legislature is not correct, legislature power has the further to address issue. plaintiff alleges
Next it was error to submit the negligence Tammy’s parents jury, contending there was insufficient any duty evidence of by parents, breach of that the instruction duty such was error and that the was allowed to consider parents’ evidence of the lack alleged Tammy of care of after the homе in the present was not Melvin Lester accident. unfortunate days. Mrs. several had not been there for fire and time of the at the Tammy burned and at the time was bathroom was in the Lester to her and scream, immediately rushed her she heard when that on several admitted parents flames. Both extinguished by brushing burner on accidently turned the had they occasions testimony that expert knob. There some the control against old, and lacked repairs stove, years needed being several more which, done, have made the control would maintenance parents cookies above It was clear that the stored to turn. difficult was, Tammy they knew where were stored and and that the stove when she climbed fact, reach the cookies attempting also con- developed were which could Other facts the stove. supervision by parents the cоntrol and negligence sidered support if believed would Tammy which verdict. complained read:
The instruction
duty
management and
over their children
have a
to exercise
control
“Parents
safety
protection.
fulfill
care for their
Failure to
and must exercise reasonable
duty
negligence.”
this
constitutes
of the law
was not an incorrect statement
The instruction
instruction,
requested
no
although
objected
presented
that if
argues
instruction was
court. Plaintiff now
an
give
instruction it should have been a
going
the court specific
the lines
along
more detailed
one
discussed
166 Kan.
Next to two the admis- of Dr. Watkins and the testimony sion certain of Robert pictures persons exclusion of of two other who had been burned Watkins, in similar accidents. Dr. in general psychiatry, resident allowed, objection, was over to testify as what him Tammy told about the accident even he though did not her of believe version the by event and felt it was colored her fantasies. The doctor’s accuracy about the Tammy’s reservations of fully statements were brought out cross-examination and the definitely attempted made aware of them. Plaintiff pictures to introduce of two other individuals who were allegedly burned in similar totally accidents unrelated to one before the court. The court questions allowed evidence of the other events on the of notice Inc., Chef, of Magic design defect in the alleged stove and the possible punitive award of damages. The court admit declined to pictures showing injuries the extent victims overly inflammatory other cases as being being as not injuries relevant to the issue of the Tammy. suffered evidentiary by the court lie rulings discretionary within power of court and we find no abuse of discretion. major point appeal court, in this in-
Plaintiff’s is that liability tort, on the of strict structing doctrine failed to give requested application pertaining instruction (cid:127) concept “unreasonably dangerous” to a defect.
It until this specifically adopted was not 1976 that court liability. Dietz, 698, 545 doctrine Brooks v. Kan. P.2d of strict a plumber brought against In Brooks suit the manu injuries facturer furnace when an gas explosion received working alleged occurred as on the furnace. It was gas that defective valve allowed to leak from the furnace and injured explosion seriously plaintiff. resulted in the explicitly After had pointing adopted out that this court never tort the doctrine of strict court stated: adopt come “We have concluded the time has for this court the rule of Restatement, supra, we hold.” 402A therefore so set out § added.) p. (Emphasis 702. 402A, (Second) provides: of Torts Section Restatement the Law Physical Liability Special Harm 402A. of Seller of Product for to User “§ Consumer. “(1) unreasonably danger- any product a defective One who sells condition *5 property subject physical user or or to his to the consumer to ous consumer, property, thereby to his ultimate user or or caused to the harm product, (a) selling such a and engaged in the business the seller (b) expected the user without substantial reach or consumer it is and does change which it is sold. in the condition in (1) applies “(2) although rule stated The in Subsection (a) possible preparation care in and sale his seller has all exercised product, and (b) product any bought the entered or has not from or into the user pp. relation with the seller.” 347-348. contractual states, in part: i Comment to 402A§ applies only where the defective “The rule stated this Section condition unreasonably dangerous product makes it or consumer. user beyond that . . . The articlе must be to an extent sold it, contemplated purchases by the consumer who with the would be community p. ordinary knowledge as to its characteristics.” 352. common trial court on strict as follows: instructed “No. “Plaintiff, defendant, Chef, against Magic as one her claims relies Likewise, theory liability. Magic defendant its of strict Chef as one of claims sellers, garment as well contends fabric and manufacturers seller, theory liability. are liable of strict mobile home manufacturer and under product “You are instructed that a manufacturer or seller of a is at fault under you theory liability, provided following strict five find the elements necessary prove liability: engaged producing “1. That the or seller was in the business of manufacturer product. selling a product “2. That the manufactured or sold was in a defective condition and unreasonably dangerous persons reasonably who it was foreseeable would use product. product in a defective at it left the “3. That the was condition the time control the manufacturer or seller. purchaser product expected to reach “4. That the and did reach change in the condition which it was sold. without substantial injuries product caused or “5. That the defect in the contributed to plaintiff. damages of possible although it fault all “A manufacturer or seller is at has exercised care product preparation although bought his the user has not sale of any contractual with the seller. from or entered into relation ‘defective’, ‘unreasonably the terms need to be defined are: “Some of ” ‘reasonably dangerous’ and foreseeable.’ “No. when it leaves the “A is in a condition at the time manufac- ‘defective’ hands, purpose for which when used for a it wаs turer or seller’s it is unsafe reasonably may A purpose used. foreseeable it defect intended or for product. arise from the of a *6 “No. 17 objectively ‘reasonably it must be a use which is a to be foreseeable’ “For use conceivably expect, merely might one that occur. reasonable to “No. dangerous beyond product unreasonably dangerous an extent if it is “A is it, purchases contemplated by ordinary with consumer who be the would community its characteristics.” knowledge common to the as to the No. 18 which is based objects Plaintiff to instruction as the which has come to be known Comment i to 402A and § expectation test. PIK Civ. 2d recommends: OF OF MANUFACTURER OR SELLER “PIK 13.21 SPECIAL LIABILITY OR CONSUMER —STRICT LIABILITY PRODUCT TO USER (manufacturer) (seller) product a in a defective condition unrea- “A who sells (user) (consumer) subject physical sonably harm dangerous is for to the (user) (consumer), (or thereby property dаmage) the if caused to ultimate (manufacturer) (seller) (selling) (1) (making) is in the business of such The product; and (con- (user) (2) expected product the that the will reach and does reach It is sumer) change in the in which it is sold. substantial condition without (seller) possible (manufacturer) applies although all has exercised “This rule (user) (consumer) product although preparation and care in the and sale of his any property with the bought entered into contractual relation has not from or seller. (manufac- if, product the time it leaves the “A is in a defective condition at hands, unreasonably dangerous turer’s) (seller’s) in a condition which is is ordinary user. way unreasonably in the dangerous it is when used “A condition usage. product’s ordinarily considering and common used characteristics it is added.) (Emphasis (in (in preparation) product’s product’s container or “The defect be use). necessary product’s (in warning safe packaging) for the the instructions or IN- LIABILITY—STRICT LIABILITY—ISSUE “PIK PRODUCTS 13.22. STRUCTION. for ... plaintiff ... is entitled to recover from defendant “The following injuries provided you from the evidence: find the his (manufacturing) “(1) engaged ... in the business The defendant defective). (describe product product claimed to be (selling) here unreasonably dangerous to “(2) product in a condition defective The expected product. might persons to use who “(3) product at the time it left control was in a defective condition The .... defendant expected hands of the “(4) product and did reach the to reach The (sold). (manufactured) change in the in which it was condition without substantial plaintiff’s cause “(5) product contributed to was the cause or defect injuries damages.” require- the court covers all of 15
Instruction No.
portions
ments set forth
PIK Civ. 2d 13.22 and
of 13.21. When
conjunction
read in
with the other instructions
concedes
substantially comply
that the instructions as a whole
with the two
Plaintiff, however,
recommended PIK instructions.
takes issue
“unreasonably
with both the use of the term
dangerous”
definition thereof as set forth in PIK Civ. 2d 13.21
court’s
18. Plaintiff
requested
instruction No.
submitted
instruction
following
form:
subject
“A manufacturer who sells a
in a defective condition is
thereby
(1)
physical
harm
caused to the ultimate user if:
the manu-
product;
making
expected
facturer is in the
business of
such
it is
product will
change
reach and does reach the consumer without substantial
in the
applies
although
condition which it is sold. This rule
the manufacturer has
possible
preparation
exercised all
although
care
and sale of his
bought
property
any
*7
the consumer has
the
from or entered into
contractual
product
with
relations
the seller. A
is in a defectivе condition if
either one of
product
following
design
(a)
the
tests the
is found to be defective:
Consumer
Expectation
product
A
dangerous
Test:
is in a defective condition if it is
when
way
ordinarily
product’s
used in the
considering
is
used
the
characteristics and
(b)
usage;
Danger
product
defectively
common
Excessive Preventable
Test: A
designed
gravity
danger
preventable
the
danger.
the
embodies excessive
If
you
danger
find that
challenged
the risk of
design outweighs
inherent
the
the
design,
you may
product
benefits of such
then
may
find that the
is defective. You
(1)
following
respect:
consider the
gravity
posed by
in that
danger
The
of the
the
(2)
challenged design;
occur; (3)
danger
the likelihood that such
would
the
feasibility
(4)
mechanical
design;
of a safer alternative
the financial cost of an
improved
design;
consequences
product
the adverse
to the
and to the con-
sumer that would
design.”
result from an alternative
Volumes have been written about the
i
language
Comment
to
402A,
requirement
the
a product
be both defective
§
unreasonably
and the
proper definition or instruction
to be
as
the
meaning
to
of the term “unreasonably danger-
Recently
ous.”
Beasley,
E.
writing for the American Law
James
Institute,
published
has
a monumental work
846
consisting of
pages
solely
devoted
a study
to
of the
Beasley,
term.
Products
Liability and
Unreasonably
Dangerous Requirement
It
plaintiff’s
is the
that when a
defect,
contention
design
opposed
as
defect,
to a manufacturing
imposition
is the basis for the
liability that an alternative test not contemplated by the Restate-
ment or PIK should be
There
given.
is substantial credible
authority
position. California,
for her
in Greenman v. Yuba Power
Products, Inc.,
57,
697,
59 Cal.
Rptr.
2d
Cal.
P.2d 897
(1963), was
jurisdiction
the initial
adopt
thе doctrine of strict
prior
adoption
402A
liability and did so
of §
therefore,
Restatement and
has never tied its decisions to
Corp.,
402A. In
Olson
8 Cal. 3d
provisions Cronin
§
J.B.E.
121,
433,
(1972),
Rptr.
specifi-
104 Cal.
Plaintiff failure of the trial court upon error in this case based the asserts the that in addition to obviously contemplates Barker do so. the “relevant test, will instructed on jury the also be two-pronged the case under the particular to the facts of apply factors” that indicated, is there considerable theory. previously As risk-benefit taken position California for the authority outside of respectable authority respectable there considerable by plaintiff. Likewise is “unreasonably a definition of the instructions to limiting for Beasley the includes the upon Restatement. dangerous” based “unreasonably stan- dangerous” consider the jurisdictions that varia- California test or a apply and which the inapplicable dard York, Ohio, it, Alaska, Pennsylvania, New tion of the states Colorado, Missouri, Nebraska, Hawaii, Nevada, Dakota North The same includes in the states and Delaware. author standard, Oklahoma, i the Restatement and a Comment follow Illinois, Utah, Connecticut, Hampshire, Arizona, New New Vermont, Nevada, Iowa, Indiana, Mexico, and South Idaho jurisdiction is a Restatement being Carolina. Kansas classified as fully “unreasonably dangerous.” which has not defined the term issue, usually split on hopelessly Federal courts are also the they perceive particular be the test thе state following what jurisdiction involved. Wade, exten- respected authority, Another Dean W. has John “unreasonably
sively dangerous” criticized the use of the term He the expectation doctrine. has advocated seven to those in Barker consideration of factors similar set forth lia- proper application for of strict determining standard However, bility. apparently opinion he is of the that the factors usually only by determining are considered the trial be court be whether a jury whether the case should submitted be proper appellate directed verdict would courts in trial Wade states: rulings judge. Dean considering “Should the be told about the list of seven factors which were set forth normally problem that above? The answer should be no. The here is similar to analyzed negligence. negligence, of Torts has it as The Restatemеnt described risk, utility balancing magnitude against risk of the and listed the go determining weight factors which into of both of these elements. This analysis profit by helpful appellate judges, is and can be used with most trial jury. commentators. But it ordinarily students and Instead, depends they negligence prudent that are told what a reasonable Occasionally, the same or similar circumstances. when man would do under one appropriate judge especial significance, the factors has it to make for example, language. reference to it in For suitable factor number apparent, perfectly judge might condition of the refer to they prudent telling this in that are to decide whether reasonable man put market, great danger would on the its was so or whether all, Wade, ought despite danger.” not to at be marketed obviousness On Liability Products, the Nature Miss. Striсt Tort 840-41 L.J.
653 who those authorities apparent among that even Thus it becomes factors, test numerous risk-benefit balancing using advocate are to unanimity as how the factors or the standard there is no in the actual trial of a case. be utilized Co., 226 Kan. Supply v. Acme Machine &
In Prentice (1979), theory under the plaintiff proceeding P.2d 1093 was Civ. liability The court products gave in a case. PIK strict and also some instructions gave 2d 13.22 as one of its instructions were also ordinarily only plaintiff be if the given which would a cause action in This court held asserting negligence. of in- intermingling PIK Civ. 2d 13.21 and the give
failure to clearly instruc- resulted erroneous negligence structions In case has required a new trial. the instant tions comply with substantially that the instructions given conceded PIK Civ. 2d 13.21 and 13.22 and there is no issue about pro- which were negligence given instructions liability. theory as well as strict upon nеgligence ceeding Laboratories, Inc., Ayerst Lindquist Kan. (1980), malpractice a medical action plaintiff brought P.2d 1339 use of the anesthetic Fluothane certain doctors involving Ayerst. plaintiff’s One of theories manufactured the defendant product liability doctrine of strict was based Plaintiff asserted error in Ayerst insofar as was concerned. requested instructions give the trial court to certain failure of liability in versions of the doctrine of strict different reflecting tort. This court stated: requested carefully instructions and instructions
“We have
examined
properly
regarding
the doctrine
were
and find the
instructed
(Second)
(1965).”p.
liability expressed
319.
Torts 402A
in Restatement
$
strict
added.)
(Emphasis
did
error
We
that the trial court
not commit
conclude
by plaintiff
type
requested
the Barker
instruction
give
refusing
from
expectation
test instruction
and in
giving
consistently furnished
Restatement which hаs
i of the
Comment
liability adoption and enforcement of
for our
the basis
jurisdic-
various
compilation of numerous cases from
tort. For
similar to the
adopted a standard identical to or
which have
tions
case,
Liability
Products
Beasley,
see
this
instructions
Requirement, pp. 167-210.
Unreasonably Dangerous
further
opinion
this
gained
extending
nothing
We see
*10
con,
reviewed.
authorities,
and
could be
pro
numerous
although
further,
following
in
the matter
pursuing
interested
For those
Products
Beasley,
information:
a fertile source of
supply
will
(1981);
Unreasonably
Requirement
Liability
Dangerous
and
Meaning
Co. and the
Comment,
v. Union Underwear
Nichols
of
Standard,
A Call
a More Precise
“Unreasonably Dangerous”;
(1980-81); Traynor,
Ways
Meanings
The
Ky.
69
419
of
L.J.
Rev. 363
Liability, 32 Tenn. L.
Products and Strict
Defective
(1965);
19 Sw.
Wade,
Liability Manufacturers,
Tort
Strict
L.J.
5
Keeton,
Liability
Defect,
(1965);
Meaning
Product
5
(1973); Note,
in Tort: Is It
Liability
30
Strict
Mary’s
St.
L.J.
(1981);
20 Washburn
600
Apрlicable
Defects?,
to Design
L.J.
-
Keeton,
Liability
Meaning
Hazards and the
Design
Products
8;
(1979); Annot.,
L. Rev. 293
51 A.L.R.3d
10 Cumberland
Defect,
352;
Annot.,
ad infinitum.
54 A.L.R.3d
“unrea-
that the instruction
the term
using
determined
Having
in
the Restate-
defining
the terms of
sonably dangerous”
i,
402A,
proper,
is affirmed.
judgment
ment
Comment
§
respectfully
syllabus
I
dissent as to
J., dissenting.
¶
Prager,
portions
majority opinion. My
dissent is
corresponding
whether the trial court erred
solely
directed
issue
“unreasonably danger-
on the definition of
instructing the
i of 402A the Restatement
appears
ous” which
Comment
§
Torts,
Second.
pointed
majority opinion,
As
in the
the doctrine of strict
out
liability
judicially adopted
liability
products
in the area of
Dietz,
698,
(1976).
218 Kan.
Products was first mentioned in a California case Co., v. 453, 150 Escola Coca Cola 24 Cal. Bottling 2d P.2d applied It was years first nineteen later Greenman Products, Inc., 57, 27 Yuba Power 59 Cal. Rptr. 2d Cal. *11 P.2d 897 In (ALI) American Law Institute adopted the philosophy of in Greenman 402A of the Restate § Thereafter, ment. jurisdiction jurisdiction after followed the ALI’s lead in recognizing product tort for de fects. The plaintiff’s burden under the theory simply was to show product that a was defective an unreasonably dangerous condition when it left the hands of the manufacturer. problem remained, however, still how a determining
plaintiff would show that product was defective unreasonably dangerous point, At condition. this the consumer expectation ap- test articulated Comment i to 402A seemed § propriate. imposed only Strict wаs to be where consumer expectation had been defeated. The expectation consumer test approved was by a number of it commentators because focused on what was then primary seen as the liability: issue in strict Was product manufactured as it was designed? The test worked remarkably well in product cases where the injury causing constructed in a manner not in accordance with the manufac- original design. turer’s If the machine was weak structurally part some essential construction, was left out in then the con- expectation sumer test took care of problem. Obviously, expected consumer a machine to be manufactured in accordance way designed with the it was to be built. developed,
As the law noted products commentators in the liability field to criticize began expectation the consumer stan- dard cases involving design defects. One commentator called it vague very nebulous test—a and a imprecise one—because ordinary consumer cannot be expectations said to have as to products complexly made many features of the
safety regarding way gasoline fire from the purchased, are such as risk of that magnitude in cars or the are and installed designed tanks Wade, Dean W. overturning and the like. risks of cars John Restatement, that the consumer Second noted Reporter of the situations, because, consumer many expectation test failed idea he would have no expect, what to because would not know per- commentators could be made. Some how safe the simply any dangerous requiring ceived the test as as consumer would acceptable long legally time, thе Thus, period in a surprised by it. relative short criticism test had come into disfavor. The expectation consumer the con- naturally challenging the commentators resulted majority in the expectation test in the courts. As noted sumer Supreme was one of the first courts opinion, the California Court jurisdictions Other soon reject expectation test. test approach. expectation The consumer followed the California twenty-two in at least repudiated have been appears now viable, appears at least to some jurisdictions, although to be extent, jurisdictions. jurisdic- are a number of in thirteen There yet where the issue has not been addressed. tions case, we should presented the basic issue in this determining determine carefully expectation the consumer test to first examine law of judicially adopted part as a of the tort whether it should be make. policy decision which the court must Kansas. This is directly There are no Kansas cases which have addressed *12 is, course, policy. elementary It that issue and established that justice and on any of law should be based on reason and not rule authority precedent. Since this is adherence to court blind by precedent, we are free to examine the not bound at this time along test and to consider it with alterna- expectation consumer go along have I cannot with the suggested. tive tests which been because, expectation my test in adoption judg- of the consumer consumers, ment, injustice, only injured but produce it will not to my I responsible obligation manufacturers. feel it to also to defects what I believe to be serious consumer discuss adoption it undesirable for as the test expectation test which make design defect cases under the strict determining be used in to liability doctrine. stated, expectation a the consumer test declares that
Simply if it is an “unreasonably is to dangerous” contemplated by beyond that which would be extent specific objections to this test are purchases My it. consumer who as follows: objective my
(1) expectation test an test. In The consumer is not test, require objective not a justice the ends of judgment subjective test, products liability. in the A test subjective area of a really field law is at all. It is an unbridled in this of the not test has particular to “do case. It been jury good” license to the it on the “haphazard subjectivity.” depends Since described mind, may jury’s concept what in the particular be consumer’s produce jury compa- test is to verdicts bound inconsistent plaintiffs is to and to de- injured rable cases. This unfair both fendant manufacturers. particular product In a is determining whether applied by the test be unreasonably dangerous,
defective and product, not on consumer’s jury should be focused on test, objective In such a scientific standards can applying mind. As expectation they utilized in the test cannot. be while consumer expectation has the consumer test suggested, one commentator process. analytical a built-in short circuit the tendency creates fact, expectation be denied that the consumer test cannot particular may not have fails to the fact that a recognize expertise any ór whatsoever the area of manufac- knowledge design. turer
(3) In weighing particular product merits a design, basic require would seem to parties right that justice all have for their jury’s have the attention directed to all relevant factors particular product determining whether consideration purpose jury instructions is to defective. The dangerously based jury way in such a verdict will be inform its analysis legal of the of established light evidence logical suit, example, our trial damage In an principles. automobile way right as to the jury courts their instructions instruct the created statute myriad vehicles and of other duties is case. Unless applicable particular in the determining what as to factors should be considered informed really no unreasonably there dangerous, whether at all. guidance years in in recent adopted test which has been
The alternative *13 many jurisdictions is a product test focuses on the rather than on the mind of the test has consumer. This been denomi- “risk-utility nated the by test some commentators and balancing” preventable “excessive danger” test others. No matter what called, the test duty it is based on the a legal of manufac- provide turer reasonably product. safe The substantive idea test, underlying risk-utility balancing as a basis a finding product defective is that a design, is defective when designed in particular way if the risk or danger outweigh inherent therein the benefits. The attractiveness of this is charge attributable to the fact that it directs the attorneys, attention of trial judges, and juries to the necessity of weighing danger inherent particular design against utility. its It is based the rationale only way product to ascertain whether or design is good or bad is inquire the danger about inherent in it justification for this danger.
In my judgment the test which should be submitted to a the trial court’s instructions to assist the in determining whether a unreasonably is defective should be in the following form:
A product defectively is designed aspect some if the product аs so designed unreasonably dangerous. It is unrea- sonably dangerous as so even designed, though ordinary care is exercised in instructions, providing warnings if a rea- person sonable would conclude that the of the magnitude of the danger proved as it is to be at the trial outweighs the utility of the design.
In determining the magnitude you of the danger, should consider:
(1) the degree of the likelihood of harm from intended and reasonably use; foreseeable
(2)the seriousness of the harm that likely to result when an injury happen; does
(3) the obvious nature danger consequent avoidability of some harm by proper use.
In determining utility you of the design, should con- sider:
(1) the importance of the need or needs served and its design;
(2) feasibility practicability and and the technical economic design, and needs with a safer serving of those any, serve the same products, to (3) availability оf other needs. 413, 431, 143 Co., Cal. Cal. 3d Engineering
In Barker Lull
Supreme Court
(1978),
California
In States of recent United uniformity products liability in law achieve sought greater (UPLA). act Liability Act This model Uniform Product proposed commentators, Dean championed by many including has been Wade, act is be some time before the suggested who meantime, assist the provisions may, in the adopted, but that its products liability ac- in for establishing guidelines state courts by a UPLA, factors be balanced tions. Under the five as case are follows: design defect that the
(1) at the time of manufacture The likelihood claimant; harm suffered would cause the harm; (2) of the seriousness
(3) feasibility manufacturing of technological harm; prevented claimant’s so as have designed selling (4) distributing, producing, relative costs design; an alternative such may result from such harms that the new or additional design.
alternative time factors as of required fact evaluate these trier of not at the time trial. manufacture, appro- every will be that not factor suggested Wade has Dean that, has where a every recognized but lawsuit priate factor Wade, On the Nature be so jury should significant, informed. Products, 825, 833-34 44 Miss. Liability Strict Tort L.J. Wade, recently “Design On Product (1973), and more Defects” Vand. Rev. 572-73 Actionability, 33 L. and Their adoption of the consumer majority’s my judgment, uncertainty in the more confusion and will cause еxpectation test products liability apply. it much law make more difficult to hand, On adoption the other of a test directed toward product rather than the mind the consumer would result in parties fairness to all the concerned and better serve the needs of justice.
I am
adoption
risk-utility
further
convinced
approach
balancing
defect cases would be consistent
products
with
recognized
past
Kansas
law
also to the
legal concepts contained
the new Kansas Product
(K.S.A.
Liability
seq.).
Supp.
pointed
Act
60-3301 et
As
out
above,
adopted
court
this
in 1976
Brooks v.
*15
Dietz,
1971,
However,
This
is significant
because
demonstrates
logic
significant
number of
considering
factors
used in deter
particular
mining whether
design
defective. It is interesting
opinion
to note that the Garst
widely quoted
has been
by scholars
throughout
country
attempts
their
to work out the risk-
utility
Henderson,
balancing test. See
Review Manu
Judicial
Conscious Design Choices: The
Adjudica
Limits
facturers’
tion,
1531,
73
(1973); Twerski, Weinstein,
Colum. L. Rev.
1557
Donaher,
Piehler,
The Use and Abuse
in Products
Warnings
Lia bility—
esign
Litigation Comes Age, 61 Cor
Defect
D
495, 529 (1976);
L.
nell Rev.
A
Shapo, Representational Theory Doctrine,
Liability
Function and Legal
Consumer Protection:
for
1109,
(1974);
Hen-
60 Va. L. Rev.
Disappointment,
Product
derson,
Liability,
with the Time Dimension
Products
Coping
Rev.
69 Cal. L.
Inc.,
Service,
219 Kan.
(1976), decided to Brooks that the test in defect cases is position firmed its Garst have done. It is reasonably prudent whаt a manufacturer would adoption liability after the of strict came significant Jones negli- his action under both plaintiff brought Brooks and that liability. The used in is similar to language and strict gence Jones Liability Product Act contained the Kansas language (K.S.A. Supp. seq.). 60-3301 et Liability Supp. Act in K.S.A. 1981 60-
The Kansas Product claim,” 3302(c) any “product liability that it provides covers harm defective brought design, claims caused including negli- and includes actions based on strict tort theory.” any legal or “under other substantive Under gence 60-3304, applied products the test Supp. K.S.A. 1981 to be seller essentially reasonably prudent product cases is test, expectations. not a test based the consumer’s adopt thus urged test which I have the court to balancing established consistent with the rationale of Garst and also that Liability in the Kansas Act. legislature the 1981 Product *16 important point that there is no closing, Before I think out adopts in PIK Civ. 2d 13.21 or 13.22 language applied as the test to be approves expectation the consumer test unreasonably whether or not a is determining In PIK Civ. 2d 13.21 the term “unreason- condition. dangerous “A is defined as follows: condition ably condition” dangerous way in the unreasonably dangerous if it is when used product’s characteristics ordinarily considering it is used counsel for The record in this case shows that usage.” common PIK definition as trial court to plaintiff urged give i 402A of the the definition based on Comment of opposed § Restatement, The definition con- gave. which the court fact simply 13.21 based on the consumer in PIK Civ. 2d tained by the trial in instruction No. 18 test which was expectation court in this case. above, I respectfully reasons set forth dissent. I would
For the and remand the case for new trial. reverse join in the JJ., foregoing dissent. Herd, Miller