434 Mass. 643 | Mass. | 2001
In 1988, John A. Lewis severely injured his right hand when it came in contact with the impeller blades of a snow blower manufactured and originally sold in 1966 by Aliens Company. Lewis purchased it used, from the sister of a
The primary issue on appeal is whether a remote purchaser may recover damages from a manufacturer under G. L. c. 93A for breach of its implied warranty of merchantability on the theory that the manufacturer had a continuing duty to warn him of product defects or dangers discovered after the snow blower entered the stream of commerce. We conclude that on the facts of this case there was no such duty and that Ariens is therefore not liable under G. L. c. 93A. We take this occasion to adopt the principles set forth in the Restatement (Third) of Torts: Products Liability § 10 (1998), regarding a manufacturer’s continuing duty to warn users of substantial product risks or dangers discovered postsale.
1. Facts and procedural history. On January 26, 1988, while Lewis was clearing snow from his driveway, he walked to the front right side of the snow blower to disengage the clutch mechanism. As he did so, he slipped causing his hand to enter the snow blower’s discharge chute and come in contact with the impeller blades. Lewis lost four fingers of his right hand.
In March, 1990, Lewis and his wife brought a three-count complaint seeking damages for negligence (defective design, inadequate warnings, and other claims); breach of warranties (but only tried as to breach of implied warranty of merchantability); and loss of consortium. He later amended his complaint to add a claim of unfair or deceptive trade practice under G. L. c. 93A. Before trial, the judge reserved the G. L. c. 93A claim for himself. A jury found Ariens had been negligent in its design of the snow blower but that Lewis had been fifty-two per cent negligent in his operation of the snow blower, thereby barring him recovery on that count. The jury also found that, when originally sold by Ariens in 1966, the snow blower was not reasonably safe for its intended or reasonably foreseeable use (in breach of its implied warranty of merchantability) and
The trial judge dismissed the G. L. c. 93A claim ruling that the breach of implied warranty of merchantability occurred in 1966, at the time of sale, and two years before the enactment of the relevant sections of G. L. c. 93A.
In October, 1998, more than five years after the appeal had been filed, Lewis moved to amend the judge’s decision on the G. L. c. 93A claim.
2. Continuing duty to warn. Ariens contends that the trial judge’s G. L. c. 93A ruling was premised on an erroneous interpretation of Massachusetts product liability law, and that it did not owe a continuing duty to warn Lewis because he was a remote purchaser.
In Vassallo v. Baxter Healthcare Corp., supra at 22-23, we abandoned the strict liability approach to implied warranties of merchantability in favor of a “state of the art” standard similar to that articulated in the Restatement (Third) of Torts: Products Liability § 2(c) (1998).
Lewis urges us to adopt a rule similar to the one described in the Restatement (Third) of Torts: Products Liability § 10 (1998), set forth in full in the margin,
We find that the principles set forth in § 10 represent a logical. and balanced embodiment of the continuing duty rule we recognized in Vassallo v. Baxter Healthcare Corp., supra, and a
In light of our holding that a continuing duty to warn did not extend to Lewis in the circumstances of this case, the basis for the judge’s finding of G. L. c. 93A liability fails.
So ordered.
We acknowledge receipt of a brief filed by The Product Liability Advisory Council, Inc., as amici curiae.
The record indicates that Ariens paid the amount of the judgment plus interest and filed a stipulation of dismissal as to all counts other than the c. 93A count. The jury’s findings are not a subject of this appeal.
The effective date of G. L. c. 93A, § 2, inserted by St. 1967, c. 813, § 1 (approved December 26, 1967), is March 26, 1968; and the effective date of G. L. c. 93A, § 9, inserted by St. 1969, c. 960 (approved August 13, 1969), is November 13, 1969.
As noted by the Appeals Court, this motion “had no basis in a known rule of civil procedure.” Lewis v. Ariens Co., 49 Mass. App. Ct. 301, 304 n.7 (2000). The court, however, addressed the merits of the case because the defendant had not challenged the motion on that ground. Id.
In his amended ruling, the judge refers to these studies (published in 1971 and 1975) as identifying both the dangers of the snow blower and the availability of safer designs. He did not find a continuing duty to advise users of safer designs, and we did not recognize such a duty in Vassallo v. Baxter Healthcare Corp., 428 Mass. 1 (1998).
In the alternative, the judge also ruled that the breach of implied warranty of merchantability found by the jury occurred at the time of the injury (1988), not at the time of the sale (1966). See notes 9 and 19, infra.
The judge determined Vassallo v. Baxter Healthcare Corp., supra, was ap
The Appeals Court, however, opined that there might be cases where the danger of a product is “so urgent and would affect potentially such a large number of people that the manufacturer would have a duty to warn secondary buyers by recourse to the internet” and electronic and print media. Lewis v. Ariens Co., supra at 306 n.10.
The Appeals Court also concluded that the breach by Ariens of its implied warranty of merchantability occurred at the time of original sale, not on the date of injury, and that Ariens was not liable under G. L. c. 93A, because that statute cannot be retroactively applied to acts committed prior to its effective date. Id. at 307.
The plaintiff argues unconvincingly that the defendant waived this argument by not raising it during the trial stage of the case.
This section provides that a product is defective “because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor . . . and the omission of the instructions or warnings renders the product not reasonably safe.”
In doing so, we implicitly recognized that negligent failure to warn and failure to warn under breach of warranty are to be judged by the same standard: the reasonableness of the defendant’s actions in the circumstances. We have since expressly recognized that convergence. Hoffman v. Houghton Chemical Corp., ante 624, 637 (2001).
Before Vassallo v. Baxter Healthcare Corp., supra, this court had held that when a manufacturer learns or should have learned postsale of a risk created by its negligence, it has “a duty to take reasonable steps ... to warn at least the purchaser of the risk,” Hayes v. Ariens Co., 391 Mass. 407, 411 (1984), quoting doCanto v. Ametek, Inc., 367 Mass. 776, 785 (1975), and suggested that there may be a duty, as well, to give reasonable warning of a properly designed product’s dangers that are discovered after sale. Hayes v. Ariens Co., supra at 411.
Section 10 of the Restatement (Third) of Torts: Products Liability (1998) states:
“(a) One engaged in the business of selling or otherwise distributing products is subject to liability for harm to persons or property caused by the seller’s failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller’s position would provide such a warning.
“(b) A reasonable person in the seller’s position would provide a warning after the time of sale if:
“(1) the seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property; and
“(2) those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; and
*648 “(3) a warning can be effectively communicated to and acted on by those to whom a warning might be provided; and
“(4) the risk of harm is sufficiently great to justify the burden of providing a warning.”
This is a duty to warn of substantial risks of harm posed by the product, not a duty to advise users of product safety improvements. See note 5, supra.
“To justify the potentially high cost of providing a post-sale warning, those to whom such warnings are provided must be in a position to reduce or prevent product-caused harm. Such recipients of warnings need not be original purchasers of the product, so long as they are able to reduce risk effectively” (emphasis added). Restatement (Third) of Torts: Products Liability, supra at § 10 comment h, at 195.
The present case well illustrates the problem with a general rule requiring warnings to remote purchasers. As noted by the Appeals Court: “Post-sale studies in 1971 and 1975 described accidents that had occurred with snow blowers and made recommendations for warnings and protective measures. Warnings contemporaneous with those studies would not have benefited Lewis, who did not buy his second-hand Ariens snow blower until 1982. Were warnings to be broadcast at periodic intervals, and through what medium?” Lewis v. Ariens Co., 49 Mass. App. Ct. 301, 306 (2000).
In determining whether a postsale duty to warn exists, many jurisdictions use a reasonableness standard. The Supreme Court of Iowa adopted the principles articulated in § 10 of the Restatement to be used in determining whether a postsale duty to warn exists. Lovick v. Wil-Rich, 588 N.W.2d 688, 695-696 (Iowa 1999). Other jurisdictions relying on the Restatement have used similar factors, but have not expressly adopted the principles of § 10. See, e.g., Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 762 (1993) (liability depends on reasonableness test looking at nature of harm, likelihood that harm will occur, number of persons affected, economic burden of identifying and contacting product users, nature of industry, type of product involved, number of units involved and steps taken to correct problem); Liriano v. Hobart Co., 92 N.Y.2d 232, 240 n.3 (1998) (manufacturer’s postsale duty to warn depends on number of factors including degree of danger product involves, number of reported incidents, burden of providing warning, and the burden or ability to track product after sale); Cover v. Cohen, 61 N.Y.2d 261, 276-277 (1984) (nature of warning and to whom it should be given depends on harm that may result from use of product without notice, reliability and any possible adverse interest of person, burden on manufacturer in locating persons to whom notice is required, attention it will receive from recipient, kind of product involved, number of products sold, and steps taken to correct problem); Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 409 (N.D. 1994) (reasonableness of postsale warnings depends on the facts of each case looking at the nature of the harm, likelihood of harm, how may persons are affected, the economic burden of identifying product users, nature of the industry, type of product involved, number of units involved, and steps taken to correct the problem). Other jurisdictions have declined to adopt a continuing duty to warn, see Anderson v. Nissan Motor Co., 139 F.3d 599, 601-602 (8th Cir. 1998) (applying Nebraska law and finding that Nebraska would not impose a postsale duty to warn); and a few still embrace the strict liability standard that we abandoned in Vassallo v. Baxter Healthcare Corp., supra, see DeSantis v. Frick Co., 745 A.2d 624, 631-632 (Pa. Super. Ct. 1999).
The judge’s amended findings of fact suggest that he might have based his amended G. L. c. 93A decision on the alternative finding that the breach of implied warranty of merchantability (which the jury found occurred at the time of sale) did not accrue to Lewis until the time of his injury, long after G. L. c. 93A was enacted, and therefore the statute was not being retroactively applied. For the reasons set forth by the Appeals Court, however, the breach occurred at the time of the original sale, not at the time of injury, and could not form the basis of a claim under G. L. c. 93A, which was not enacted until almost two years later. Lewis v. Ariens Co., supra at 306-308.