Markle v. Mulholland's, Inc.

April 26, 1973 Argued May 1972, remanded reversed Appellant, v. MARKLE, Respondents. INC., MULHOLLAND’S, et al, P2d 529 Brown, Tigard, argued the N. cause for Franklyn him on the was brief James With F. Mc- appellant. Tigard. Caffrey, Hillsboro, argued cause for Bailey, D. re-

Joe the brief him on was With Carrell F. spondents. Hillsboro. Bradley,

(cid:127)261 J......... HOLMAN,

Plaintiff, injured rear tire left when the was causing leave vehicle to out, of his automobile blew by plaintiff purchased highway. The had tire been re- after it had been earlier, nine months for $12.35 time capped.- use at the miles of It had 5,000 6,000 - recapper, are the Defendants of the accident. recapped tire. At retailer of -the and the wholesaler, granted testimony, completion court -thetrial Judgment directed-verdiet. defendants’ motion for a plaintiff appealed. was entered thereon, pleaded in two Plaintiff’s cause of action negligence; first, second, counts: liability. assigns

Plaintiff as error failure to admit testi mony by inspected the tire that he a rubber chemist after the accident and found rubber the side subject to walls to-be so ozone deterioration that casing recapping. plain was not suitable However, during proof, admitted, tiff’s counsel his offer of “* ^{[*] [*]} we don’t have testimony to say because of dangerous.” deterioration] [ozone the tire was It reject testimony was not error to therefore be concerning which cause the condition the chemist was irrelevant to defect in the testified tire which may caused the accident. have only assignment other of error

Plaintiff’s was granting for a of defendants’ motion directed ver- contends there sufficient evidence dict. He to jury on both counts. case to the take the only expert presented by witness other The plaintiff that the failure of the tire was testified due casing pocket w7hieh in the either was in air to an JJ62 casing original

existence in the at the time of manu pin facture or was formed when a small hole de veloped layer casing, allowing in the inner of the air seep say into the cord. He did not which was the probable, say, more nor could he in the latter event, already developed by whether the hole had the time casing plaintiff. was retreaded and sold to The (cid:127)expert opinion, also testified in his that, the blowout impact. was not due to No one testified that the blow out was caused manner in which the retread had casing. adhered to the Plaintiff testified that from purchased by it had recapped time been him the exclusively paved tire had been driven almost properly had roads, been inflated, had not been large driven into rocks or curbs, chuck holes, other abused; .wise specifications negligence pleaded:

Three were 1) Failing properly inspect test and the tire by putting chamber; in an ozone

2) Recapping casing which showed ozone markings ; Failing 3) inspect recapping after to de- degree cap

termine the of adherence of the to the casing. testimony plaintiff’s witnesses did not sub- any way any allegations negli- stantiate in gence complaint. plaintiff in As a result, failed negligence sustain his count.

Plaintiff contends that, even in the absence of negligence being show able to or the exact reason pocket easing, perform in the the air the tire did not purchaser’s expecta- with a in accordance reasonable nonperform- He claims that evidence of tions. such dangerousness, the resultant ance, of and of the lack probable nonperformance causes for its for which responsible he would have been is sufficient to take jury liability the case to the his strict cause of action. problem

The initial this cause of with action liability plaintiff’s the nature of claim. The strict complaint purports on which the action was tried warranty. state a cause of action for breach of In previous evolving because of the nature cases, complaints law in this we similar field, have treated stating all-encompassing as as broad and a cause of possible liability action as it was state for strict arising goods. out of the sale of In those cases we warranty type did not limit the issue to the of strict (UCC). under the Uniform Commercial Code Corp., v. Motor See McGrath White 258 Or 583, 484 (1971), Kirby, P2d and v. Vanek 253 Or 494, 450 (1969). P2d 454 P2d 647 778, we called to the McGrath attention of the engendered difficulty “warranty”

bar the use of pleader if it was the intention of the to state as broad liability. possible original opin- as in strict a case April was handed down ion McGrath 29, 1971. It published not in the was, course, Advance Sheets pleadings upon time later. All the until a short up by May was tried were instant case made apparently, Plaintiff, heeded the 1971. admonition in and tendered before trial an McGrath amended com- accepted by plaint, it was not but court for reasons appearing in the and it was record, not filed. upon appeal case At trial was treated ordinary Oregon case, sides in both their discussed cases briefs were 364 402A ‹ . of Restatement (Second)

decided tinder Section or of lack of of notice, disclaimer, of Torts. claims No restriction, liability particular any of other provisions made. such were Under UCC plaintiff not be that should circumstances we believe apparently putting prevented considers what he from purposes hold for the his foot forward. We to be best allegations plaintiff’s tiré that that of this case quality out and therefore blew not merchantable of allegation equivalent it was de of an are the fective. Jennings, Wights 241 Or v. Staff liability (1965), the seller’s as we rationalized

P2d 624 implied arising being a breach of out of one of tort .rejected quality. We merchantable of the sole basis › liability products for rationale and, logical liability enterprise its natural because require enterprise, to be re- would extension ‹ Physical Liability Special for of Seller of Product 402A. “§ or Consumer Harm to User any product “(1) in a defective condition One who sells unreasonably dangerous to the user or consumér or to bis 'thereby subject liability physical property harm is consumer, property, his if ultimate user or or to caused to the selling “(a) engaged seller in the such is business product, and “(b) expected the user con- to and does reach change condition without substantial sumer the. it is sold. (1) although applies

“(2) in Subsection The rule stated possible “(a) all has exercised care in the the seller product, preparation of his and sale bought product “(b) has not the user or consumer into contractual relation with or entered ' > seller.” › theory enterprise “Although reject standy we products recovery ing in the called so a basis alone as liability- * * added.) (Emphasis 241 Or at 310. *.” cases sponsible for the “inevitable accident toll” which just results from all its from its sale of activities, goods. Wights involving was a case an ultrahazardous application articletherefore, of Section 402A was unnecessary liability. to establish we sub However, sequently adopted init Heaton v. Ford Co., Motor (1967), 435 P2d 806 Or 467, 470-71, determined under that as we section, conceive it, “* * * conceptually related traditional war ranty quality merchantable the law of sales.” adopted in we When, Heaton, Section we said 402A, liability, nothing enterprise about which is one of the given rationales in comment c under Section 402A for the rule. of formation we decided a Thereafter, series of cases under 402A without further Section comment as to rejecting accepting enterprise whether we were liability This has rationale. been commented in Liability Oregon: in Products Present and Future, 8 (1972): L 410, Win J ' * “* * products [T]he liability entire case law by express rejection is confused the court’s of enterprise liability approach products liability to Wights, adoption in its later in Heaton of Re- (Second) Torts, statement 402A which is ac- % of tually enterprise liability theory based on the * * (Footnote omitted.) necessarily adopted theory a limited . We of liability adopted enterprise when we Section 402A. liability Why else would under the section be restricted engaged selling? are in those who to business of It they position them was restricted to because are in a spread risk while others are not. The comment recognizes. the section so However, that restricted liability enterprise should form of not be confused Wights. in We we disavowed liability with the absolute in Ileaton seller’s in rationalizing correct were related to implied liability being conceptually out pointing merchantable quality in Wights no more to if there were rationale the risk occasioned than distribution of such us carry extension would logical its by enterprise, lengths. absurd rationale, to the enterprise In addition an implied the rationale behind similar something also has to be merchantable quality representation the rule. There is no basis for of the theoretical part used in the dis for the language to account other way condition” of “defective meaning cussion of the comment g fi such “in a condition 402A, as, to Section the ultimate consumer.” not contemplated used the discussion of of language can be said same i, fl comment such under “unreasonably dangerous” that which would extent beyond to an as, “dangerous consumer who ordinary pur contemplated with some only is consistent language it.” This chases by' similar to an expectation conceptually thing It is an expecta quality. merchantable consumer the manufacturer’s or seller’s resuit of which is the tion of commerce with the in the stream article placing This is expectation it be that purchased. intention fi only applies in this Section where the stated “The rule hands, in a is, the seller’s condition product the time it leaves at consumer, by contemplated which will un ultimate not * * (Second) reasonably dangerous Restatement oí to him 402A, at 351. Torts § fl “* * * dangerous must be to an extent article sold by contemplated ordinary con beyond would be that which ordinary knowledge it, purchases common with the who sumer * * community its characteristics Restatement as to 402A, 352. (Second) at Torts of § assumption given legal through sanction law placing article in the stream so seller, represented that the is not has article commerce, dangerous unreasonably put if to its intended use. though so even the comment to Section 402A This is is admonishes us under the section not subject warranty it is not to certain because contract rules. (cid:176) history of Section 402A addition, gradual warranty. the law of shows evolution from warranty generally recog- The relation to has been following language nized. The Dickerson, Liability: Products Houi Good Does a Product have to (1967), appropriate: 42 Ind L 304-05 is bef, J “Despite differing approaches, these the under- lying problem appears Apparently, to be tire same. it malíes no material difference whether a court operates law, under the common the Uniform Sales Act, or the Uniform Code, Commercial and whether warranty approach it takes the traditional Restatement idea of or the approach. Thus, uniform coherent, ‘legal comfortably defectiveness’ that fits approaches, with each these as well as with the principles negligence, developed. can be reported strongly “Consideration of the cases suggests defining compliance that the factors with (and, minimum standards of consumer use con- versely, non-compliance inherent in the idea of legal defect) closely are identified with the normal, expectation patterns buyers reasonable and surprising, protec- sellers. This not because the (cid:176) * * “* nothing pre There is in this Section which would treating vent court irom the rule stated as a matter of ‘warranty’ done, to the user or But consumer. if this is it should recognized ‘warranty’ very be ferent kind of understood that is a dif usually from those found in the sale of subject goods, to the various contract rules grown up which have such surround sales.” Restatement (Second) 402A, (1965). of Torts comment m at 355

'268 pat- established disturb, reluctance to

tion or of, expectation law much of the motivates terns of # * # representational tort that of rationales, Both place liability, enterprise their have that of and liability enterprise is one The rationale 402A. Section protection expansion consumers; of the aspect in an at- representational of limitation is one manageable expansion tempt keep and within to being liability keep logical and bounds absolute. spreading relationship the risk between

The aspects in P. Keeton, is discussed representational Liability—Liability and the Without Fault Products L 41 Tex Bev 858-59 Requirement Defect, aof states as follows: (1963). Keeton Professor * * “* impose [CJourts that requirement negligence eliminating as a for re- principles adopt rules or as covery some must delimiting principle. negligence as a for substitute The method requirement employed is the to date product a defect in the must have been there require- This the manufacturer. hands of it left the recovery. principal obstacle to a remains ment scope manufacturer’s be the should What warranty? duty should be test of a What question scope of the to the answer defect? of a test or definition defect or the depends extent the reasons or a certain imposition of in the first policies responsibility primarily place. If the basis put products out manufacturer reliance on representa- express or tacit his with accordance accordance with the nature, their tions as latest knowledge and discoveries, and scientific reasonably developed then skill, the exercise regarded product not be as de- should perhaps-a

2&9 fectiv.e if it-is no different from that which a con- expected sumer it to be. If, the other hand, underlying imposition basis liability for the of strict is the notion that the manufacturer is a better risk capacity bearer because of his to shift in- losses products curred from the use of the to -the consum- ing public generally, then the issue somewhat problem allocating different, and the is one of be- (cid:127) particular tween the user and the manufacturer resulting losses various risks or hazards product.” that inhere in the use of a previously As indicated, we decided have that our limiting enterprise basis responsibility ration- requirement ale is the that there be a defect in the article.. The test of a defect is-whether the article is representation in conformance with a tacit which the imposes unreasonably dangerous it is not .law if put to the use for which it was manufactured. This ra- tionale is consistent with Section 402A and with the -previous opinions of this court in this field. Supreme

Justice Schaefer of the of Il .Court thusly linois Vaughan summed it has Dunham v. & Mfg. Bushnell Co., Ill 2d (1969): 247 NE 2d 401 “Although the definitions of the term ‘defect’ in products liability the context of varying law use language, upon all of them premise rest the common products that those are defective which are dan- gerous they perform because fail to in the manner reasonably expected light to be of their nature * * and intended function 247 NE2d at 403. concurring opinion of McAllister, J., holds representation that a quality of merchantable is not a doctrinal basis for under Section 402A. This n opinion something holds that analogous there is representation such a behind the Section, because it a defect as what constitutes be determined cannot determining contemplated first without Section right expect purchaser had a whether which caused the the condition was free from article right, injury. the condition con- such a If he did have only can de- under the Section. One a defect stitutes right expect by purchaser had a what termine express implications or inherent the sale him. analogous underlying implications to those are These quality. representation merchantable involuntary for an order of motion Defendants’ plaintiff’s cause of action as to nonsuit following manner: in the stated “* ** ground there further pleading proof that there was a defect nor neither in the tire left the hands of the the tire

at the time defendant. evidence that the tire is no substantial

“There reasonably fit for use suitable and as a was not it left the de- at the time an automobile tire on possession.” fendants’ opinion there was insuf- was the of

The trial court the sale. If at the time of a defect evidence of ficient concerning plies pocket the which between the air plaintiff’s expert in existence at the time was testified necessarily original de- the tire was manufacture plain- retreaded and sold it was to the time at fective equally probable that it was he testified However, tiff. subsequent original pocket was created air by from a small hole the a leak inside manufacture say casing whether this occurred he could not but of the tire retreaded. Thus, after we or before is the more which the situation favorable must assume small hole and resultant air that defendants: caused witness said pocket, which blowout, retreading subsequent to the came into existence plaintiff. its sale to the tire and or of abnormal use absence of abuse

plaintiff purchase, plaintiff abuse since the casing was weak could inferred that the it be denied, for otherwise the sale, ened or worn the time at defect not have manifested itself before would expiration casing’s anticipated require use. The prod existed when the ment the defect must have that not mean uct the remanufacturer’s control does left that must itself at The defect the defect manifest once. may latent. The fact that there was evidence that be no remanufacturer the exercise of care reasonable casing could have detected the weakness in the would negligence be relevant if were case. it However, action. The case irrelevant a strict should jury. been submitted have argued plaintiff

It can could not reason- ably expect performance equivalent to that which have received from a new tire because he he would probably paid only for a tire which would have $12.35 it had been new. he was aware Also, cost $25 $30 casing already had been used for the life for originally had been manufactured. Neverthe- which it casing among selected this the manufacturer less, casings implies to retread and this some- all available put concerning thing Tread was its condition. lasting capable 5,000 more than 6,000

which was that there is reason This indicates to miles. believe purchaser intended and the the manufacturer had that quality performance expect right a to from the gave. casing greater that which it than addition, impact everyone that, absent with knows some engaged ordinary highway object, while blowout trayel thing. is not a normal or usual As the condition unproved, of tires has such a blowout has become a unexpected thing. rare and The seller immediate and the wholesaler come purview within the of Section 402A the terms of (2) (b) and comment thereunder. f – concurring opinion of the Chief Justice has question raised the of whether the is the UCC exclusive non-negligence source of eases and, thus, adopt whether this court was-free to Section 402A. As opinion impediments recovery, concedes, such privity, remedy, notice, disclaimer, limitation of personal make little sense in the usual context of in jury statutory essentially cases. A scheme made among geared business transactions merchants is not appropriate nor 'to, for, determination of those public large liabilities to the at for which manufac respond. turers and merchants must analysis, In the final it is the intention of the legislature governs. legislative history The lack of particular point on' this prob- indicates in all that, ability, legislature never considered the matter (which statutory is true of most problems construction they exist). or else would legis- In the absence of speculate lative consideration of the we matter, must legislature what would have done had it antici- pated existing problem. It is our belief that legislature pre-empt would not have intended to prevent development field and thus to of case law – * * applies any The rule stated in this per Section “* engaged selling products son sumption. in the business for use or con applies any It therefore manufacturer of such a product, or wholesale retail dealer distributor, and to * * operator of a restaurant (Second) Restatement 402A, (1965). Torts at 350

273 particu- protection consumers, of additional for the statutory primarily larly by way oriented scheme of a entirely law. field of an different regrettable, as is the results would Where usually concurring opinion, courts do the conceded bring that would in a manner not construe statutes fairly specific results in the absence of about such specific language language. in the find no such We indicating pre-emption. or in its comments TJCC adopted Louisiana have the TJCC. All states but many adopted states have Section 402A. The courts thought pre Obviously, the none of these courts TJCC empted The court of no state has the field. so held. Section 402A. † adopt free conclude that we were We judgment of the trial court reversed and the The new trial. ease is remanded for a concurring. specially C.

O’CONNELL, J., majority opinion assump- is written on The remedy injuries though resulting for tion that even product is available under the from a defective Uni- provide court is free to Code, form Commercial theory separate of strict relief under (Second) §in 402A of the Eestatement defined assumption (1965). pre- Torts have made We my opinion longer It is that we should no vious cases. assumption. indulge in that reading of the

A careful Uniform Commercial † legal subject on the literature cited in In addition to Donovan, Development opinion, Recent see Chief Justice’s England: Litigation Emerging Liability in New Con Products Expanding Torts Law and the Between Uniform frontation (1967). Code, Chapman 19 Me L Rev 181 see Also Commercial (D analogous Supp 78, 1961), Brown, F Hawaii for its v. pre-empt holding Uniform Sales Act did field. prescribes legal

Code reveals for framework recovery damages injuries resulting personal products. Recovery personal from defective in juries resulting negligent from the conduct develop. ‹ ap seller is left for courts to But it is parent negligence aside cases the Code provides integrated comprehensive scheme recovery personal injuries may under which sought by privity non-privity plaintiffs. both and subject

This matter is under rubric treated “warranty,” drawing previously thus de veloped including implied warranty case law of law merchantability. Many including of courts, own, our perceive recovery came to basis for breach implied warranty merchantability of an inwas sub in tort. › This fact recovery stance for strict 402A, fi and was by emphasized § authors by developing utilized courts common law of strict products liability principles based tort free and provisions relating from the strictures of Code to dis remedy, privity limitation of claimers, and notice re quirements. development But of this case law has ‹ See ORS 71.1020 (3), 71.1030, ORS and Comment 2 to ORS published Legislative 72.3180, in 1962 Counsel Committee. › See, e.g., Corp., 583, McGrath v. White Motor 258 484 Or P2d (1971); Co., 467, 470, 838 Heaton v. Ford Motor 248 Or 435 P2d (1967); Wights Jennings, 301, 305, 806 v. Staff Or 241 P2d 624 405 (1965); Equipment Company, Supp Clark Greeno v. 237 F 427 (N 1965); Co., 256, D Ind Vandermark v. Ford Motor 61 Cal2d Rptr (1964); 896, 37 Cal P2d 168 391 Greenman v. Yuba Power Inc., 57, Products, Rptr 697, (1961); Cal2d 27 Cal 377 P2d 897 Goldberg Corp., 432, v. Kollsman Instrument NY2d 240 NYS2d Upon 592, (1963). also, Prosser, 191 NE2d 81 See The Assault 1099, (1960) Citadel, Prosser, L J 1126-27 69 Yale The Fall (1966). Citadel, of the L Rev 50 Minn 800-02 fi (Second) 355-56, 402A, Restatement Torts comment m § (1965). legislative pre-emption, fl posed question question is not resolved the determination that breach of tort than more breach of pre-emption If contract. then of course obtains, adopt § court not free to 402A. study question

After careful of the I have re- luctantly controlling concluded that the Code is in this say “reluctantly” only area of the I law. because require repudiate that conclusion would us to cases predicated require- 402A, but also because the relating ments of the Code to notice and disclaimer personal injury do not make much sense in the field of requirements cases. But the fact that these ill- are fitting give purge does not us license to them from the statute. Code,

The Uniform Commercial as enacted in Oregon, dealings focuses on between businessmen. But reading a fair of the Code and its official comments question indicates its attention to the of sales to con- part general subject sumers as a matter of personal injury commercial transactions. Moreover, QBS problems explicitly. are dealt with 72.7150, injury person property resulting from breach of specified aspect is consequential an damages by sanctioned the Code. Limitation of such fl generally, Rapson, Liability See Products Under Parallel Doctrines: Contrasts Between the Uniform Commercial Code and Liability Rutgers Tort, (1965); in Strict L Titus, Rev 692 Re (Second) of statement Torts Section 402A and the Uniform Com Code, (1970); 22 Stan L Franklin, mercial Rev 713 When Worlds Liability Theories Collide: Cases, and Disclaimers in Defective Products (1966); Dickerson, 18 Stan L Rev 974 The ABC’s of Prod Liability—With ucts a Close Look at Section 402A Code, and the (1969); Shanker, 36 Tenn L Rev 439 Theory Strict Tort Liability Products mentary and the Uniform Commercial Code: A com Jurisprudential Pigeonholes Eclipses, and Communi Barriers, (1965). cation Res L Wes Rev 5

damages goods is declared in the ease of consumer (3). prima facie unconscionable OES 72.7190 It. persons buyer products evident that other than injuries may damages personal under recover OES and the comments to that section. 72.3180 And the include a discussion of the comments OES 72.6070 variability requirements applied of notice when to re- tail consumers and section 72.3180beneficiaries.

Very disposition probably the of the cases which § under 402A would be no we have decided differérit § But while 402A hnder the Uniform Commercial Code. impediments rejects recovery disclaimer and notice cases, (cid:176) envisions at least some circum all Code may recovery by stances in which be conditioned satis requirements. Nor can it said faction of those intended 402A and the Code were to deal with dif buyer-seller by relationships; its terms the ferent for parties as well as remote mer covers immediate to a reading of the official and a careful comment sale, coverage per indicates that similar 72.3180 OES by general It mitted is true that the Code. inter 7 permits pretation section of the Code Code to be development. – supplemented case law But I do not (cid:176) Supra n. 3. – particular displaced provisions “Unless of the Uni principles Code, equity, Commercial of law and form ing includ * * * supplement provisions.” merchant shall the law its 71.1030. ORS may go say beyond not to that courts This is the Code’s coverage

explicit in certain circumstances. to the “The official comments Uniform Commercial Code contemplate development clearly privity concerning case law both 72.31801, Comment and the extension 3] of war [ORS 72.3130, 2], transactions to non-sale Comment [ORS ranties How hopefully express ever, comments ‘intention that may guidance policies dealing this Act offer useful with regarded giving think that this can be as the court the separate body license to create a of common law substantially displaces covers the same field and the explicit provisions. Code’s provisions

As I have notice and said, disclaimer of the Code do not make much sense in the context of personal injury products liability resting eases. Strict principles requirements on tort and free of such seem responsive contemporary most notions of who compensating should bear burden of members of public personal injuries resulting from de- products. legislature fective spoken But the has unambiguous precise problem, terms on this and it is legislature public policy to decide whether as expressed in the Code is well or ill-conceived.

’(cid:127) As first I disposition stated, believe that .the instant case would be the same under 402A and regard Uniform my Commercial Code. With controlling conclusion that the Code in this area of I would govern law, hold that the statute should products liability all future discovery cases wherein alleged an breach of occurs after the date this, decision. position by majority injects taken into products liability complexities our law of which are iikely haunt us in future example cases. An of present confusion which is invited our holding suggestion Justice specially con- McAllister’s opinion parallel that there are two curring causes of * * * they further eases as arise.’ The matters of notice, and specifically disclaimer are Code, covered and should be regarded expression legislative policy.” Rapson, supra at ri. 4 712-713. 278 § 402A, one under one under the Code and

action, differently. Appar- pleaded each which must be of “warranty” complaint ently magic in will word signal reason for I can see no a cause of action. Code arising recognizing under Code a cause of action as designing step of its own once this court has taken the theory products The outside of Code. of holding § practical 402A is the effect of our is that liability. majority opinion I read the exclusive test of bring plaintiff if a elects to his action on to mean that up theory § defendant could not set a de- 402A, of though lack notice even those fense disclaimer or of of Adopt- given sellers under the were Code. defenses majority’s ing position, so far as the defendants provides products § are 402A concerned, in cases governing liability. body law their And exclusive of regarded speaking, § practically 402A can be as the products remedy plaintiffs in of the cases exclusive plain- simply would be no reason for a there because remedy under the seek a Code since would tiff to disadvantage. only explanation always his be to filing give complaint plaintiff a under could certainly inadvertence mistake—it would be Code any way. in him Thus it can benefit be said cannot utility disregarded and can has no that the Code be- plaintiffs not need it and do defendants cannot cause plaintiff bring permit a we his it. If have action § put or under we 402A, the Code under our- either strange position holding plaintiff of in the selves as the basis for his action, use the Code elect but can privilege utilizing have the does defendant Code plaintiff decides that he does if the not want defenses interposed. them invited the confusion avoid Justice To Mc- opinion, we should declare that our action

Allister’s recognizing separate principle upon § 402A as a personal injury products rest the cases excluding recovery field effect has the under the Code. disagree with

I also Justice McAllister’s con- previous adoption that our 402A clusion (Second) adopt- of Torts constituted an Restatement enterprise liability the so-called tion of rationale found §to in the comment 402A which, course, would con- repudiation pronouncement Wights of our stitute Jennings, (1965), 405 P2d v. Or re- Staff liability enterprise jecting as the sole basis for im- liability posing products strict in cases. fallacy reasoning in

The Justice McAllister’s confusing § is the rule laid down in in 402A with the explanation adoption for commentator’s the is found in The rule the blackletter rule. statement goods a is to the effect that commercial which seller of product in a a defective who sells condition unreason- dangerous ably prop- to the user or consumer or his subject liability erty physical to for is harm caused product. nothing compel There is to the the con- necessarily upon that this rule is clusion based the reasoning can seller best bear or shift the although injury, happens expla- cost to of be the comment. used in the Proof that nation this is not the liability explanation only for strict is found in the original § in 402A its form, comment which limited liability sellers of food. that comment explains: reporter “* * =» beginning In the these decisions dis- ingenuity played evolving in considerable more or liability fictitious to fit less the case. .theories agency devices various included'an the in- purchase dealer or another to termediate for the $80 as- consumer, seller; ór to sell for the theoretical signment of the seller’s inter- beneficiary party contract; a third dealer;

mediate implied representation food was fit and an consumption placed because it on the mar- years more or ket. In later less the courts have become ‘warranty’ agreed theory -from ‘running with the consumer, seller to the either goods’ by analogy running with the to. a covenant directly de- or made to the consumen Other land, merely have one cisions indicated that the basis is dependent in which not tort, of strict upon negligence.” either contract or Restatement p. (Second) 34 6, Draft No. Torts, Tentative . (Apr. 7,1961). § At the time 402A' was first drafted Greenman P2d Products, Inc., Cal2d 377 v. Tuba Power originated Rptr (1963), en 897, Cal theory recovery per support terprise products yet injury was not decided cases, sonal upon rule as a for the and the cases relied basis stated § used or more of the various theories 402A one quoted in the comment above. listed expres- then that rule demonstrable It enterprise based 402A need sed concurring opinion liability theory seems to assume. exceedingly strange being it seems so,

This liability pick the one basis for endorsement out for rejected previously Wights in v. had this court which Jennings, supra. we held case that the Staff strictly selling product liable for a be held seller could ultrahazardous but we condition, an creates accept the view advanced Greenman v. refused supra, ground Products, on the if Tuba Power theory we would be adopted forced to such we

281. situations, liability, extend strict across the board to involving products. not. ... Co.,

In Heaton v. Ford Motor 248 Or 467, (1967) upon, P2d 806 we relied the rule stated holding, § 402A in that the be seller could held liable injuries personal resulting for from the use of un- an reasonably dangerous that, apparent It is vehicle.. opinion, regard holding did court not its position previously inconsistent with the. which it had Wights. taken in And it is to noted that no mention enterprise liability was made of Heaton as the basis reasoning for The the decision. in Heaton centered upon question product of. whether the the. failed to expectations meet reasonable of the user. The product court that “If the held faded under conditions concerning average product which an consumer of that fairly expectations, jury could definite have then the making judgment would have a basis for informed existence of a defect.” 248 Or at 472. This essentially approach the same one finds in cases using impose liability. theory to And when warranty approach taken, the courts have not necessary support imposition deemed it to find liability shifting in the loss enterprise rationale of liability. pattern Heaton followed the same of reason- ing. concurring opinion explain does why not enterprise rationale would equally not be plaintiff

applicable injured in which the to cases involving products. a “defect” If we took suggested, explain would be difficult why course imposed upon should not be non-negli- injuries gent owners caused store defective And, premises. the same conclusion would have to be respect any could shift defendant who reached-with liability injuries enterprise under the the cost of rationale. correctly majority opinion concludes that

The theory upon product rest of cases can a the only application a of where there is sale which has goods. theory im- is deemed to that the seller Under goods represent purchasers pliedly that to all stand- marketed him meet a certain standard. That expectation of determined reasonable ard is employed purchasers. This is in essence the test any necessary not have con- That test does 402A. liability, theory enterprise although of with the nection any likely other court, court, impose liability a seller unless he theo- would spread retically, through least, could loss at pricing product. of his specially concurring.

McALLISTER, J., products case to recover This a by plaintiff injuries recapped when a tire sustained causing his car blew out, left rear wheel on the pole. into the road crash Plaintiff leave car to recapper, wholesaler, Mulholland’s, sued bought the tire. he The trial court from whom Inc., plaintiff ap- all defendants and directed verdict peals. complaint the action was amended negligently alleged recapped that defendants

tried defendants had further, breached their and, tire quality. Despite implied merchantable warranties plaintiff, allegations, in his relies brief, on cases those liability in tort applying rule of strict embodied 2d. Restatement Torts Defend- A the §in rely entirely on brief, also cases decided in their ants, party §in makes 402A. Neither reference to governing implied statutes warranties. Corp., v. White Motor 593- 583, McGrath Or (1971) 484 P2d 838 we said:

594, “* ** complaint The in this case was drafted concept pleader attempt- when at a time ing was allege emerging to was aas tort of strict lia- bility. Admittedly, ‘implied he used the term of warranty,’ a term often associated with contract. concept liability products liability in of strict sufficiently recognized sug- cases is now gest that we problems ‘warranty’ caused of use * * *” can be avoided the use of tort terms. adoption § In that case we reaffirmed our of A402 in Heaton Co., v. Ford Motor 248 Or 435 P2d 806 (1967). only days

As was McGrath decided before the complaint agree amended was filed in this I case, with majority proper that, under the circumstances, it is liability apply to the rules of strict in tort. I would emphasize, that the bar however, of this state has now given ample warning been that the use of terminology proper way a not to raise the issue of § under 402 A. In cases commenced publication of opinion, after the McGrath we plaintiff should assume that a who couches his com- plaint warranty terms has in done so because he wishes provisions proceed under the to our commercial dealing with warranties code sales contracts. Similarly, complaint phrased language 402A attempt as an be construed should state a cause of attorneys in tort. for strict action Plaintiff’s carefully distinguish Should, case, in each between the clearly pleadings frame their two theories ac- cordingly. holding majority’s

I in the that was concur plaintiff’s testimony exclude the rub- error to subject expert of ozone deterioration ber Lucas on the Although casing. this witness, the rubber proof, during testified that he found sub- the offer of deterioration when he examined the stantial ozone deterioration would reduce the and that tire, strength elasticity he was unable rubber, say progressed deterioration had to the that the ozone recapping. point tire was unfit for Plaintiff’s prove negligence of action in his cause failed effort testify his witness unable ex- when was the deterioration cause the blow- cessive ozone out. majority agree with the

I case also jury submitted to the strict have been should agree liability because I am unable to However, count. majority § to rest 402A with the effort filing separate I am inconsistent bases on two majority concept separate opinion. a dual liability permeates opinion, theory § 402A but following by epitomized statements: is enterprise liability to the “In addition rationale, something rationale similar to the behind an im- representation quality plied of merchantable also part basis for of the theoretical the rule. to has be ^{[*] [*] [*]}

and that of Section “Both 402A. rationales, enterprise liability, ** ^[*****] *” that of a representational have their place tort necessary A, ele- formulated As products liability (1) are ease a strict ments of by engaged product one who the business sale aof (2) product selling products; a which was such expected user with- the consumer or did, reach to, product change (3) in condition; out substantial was in a “defective condition unrea- which, when sold, dangerous sonably (4) injury user or consumer”; damage property; to the user or to his consumer, (5) product’s which was caused defective con- prove order dition. In the third and fifth elements product’s —the defective condition and causation—the plaintiff generally begins by showing that an unex- pected product during malfunction of the normal use injury. prima resulted in In cases, some the seller’s facie will be evident from the facts of the product being accident itself. If the if new, it is precise purpose used for the it which was intended, clearly and if the accident is caused a failure of product plaintiff’s proof itself, on these elements relatively simple. will often be cases, other easy however, it will not be so product

to show that was defective. If, for ex ample, product fails because of a weakness which developed through being subjected or while use, necessary unusual will plaintiff stress, be for the show somehow the failure was the result of some shortcoming product in the for which the seller should specific may held Proof liable. flaw be avail able in such cases. See Tucker v. Unit Crane & Shovel Corp., (1970); 256 Or 473 P2d McGrath v. Corp., supra. Motor White There will be cases, how product ever, where cannot be examined for such because of the flaws, where, condition or nature of product, will the examination not disclose with cer tainty specific whether a identifiable flaw, which was present time of sale, at the was prod cause of the such uct’s failure. cases, definitions in the important. g §to A become Comment Comments provides: only applies in this

“The rule stated Section product time leaves the at it is, where the contemplated by in a hands, seller’s condition unreasonably will be consumer, the ultimate * * *” (Emphasis dangerous added.) to him. i we find: In Comment “* ** dangerous The article sold must be to beyond contemplated that which would be extent ordinary purchases with consumer who it, community ordinary knowledge common to the * * *” (Emphasis

as to its characteristics. added.) prove plaintiff will often have words,

In other reasonably ordinary expect consumer would longer stronger product it or to be did, to last than may proof, be rele moreover, often it was. Such than specific of a when some evidence even there vant manufacturing especially where that evidence flaw, Clearly, proof disputed however, or inconclusive. performance expectations product high is not standing enough, a make out case alone, to liability. in each case will central fact present product. In the the tire case, failure supra, Co., v. Ford Motor wheel In Heaton out. blew striking shortly plaintiff a rock. The collapsed after jury for the he make a case because did not Heaton manufacturing specific flaw or to show unable was responsible design collapse. for the which was defect prove that wheels on vehicles also unable He expected strong normally enough to be his are like large impacts high-speed with rocks. Such withstand available, would have been ad evidence, been had product’s failure—the col- show missible to lapse probably of the wheel—was the result of some design defect construction or for which the manu- ought facturer held be liable. majority opinion unacceptable

I find the because expectation it elevates evidence of consumer into liability. § alternative doctrinal basis for 402A liability, products as Strict embodied in 402A, providing compensation injured is a means of con- by allocating enterprise sumers the costs to the re- sponsible product. for the manufacture and sale of the justification Its is found in the consumer’s need for protection ability enterprise spread and by treating injuries the risk the costs of user as a cost doing business. clearly recognizes §to 402A Comment c this basis liability: for the seller’s theory, justification whatever “On for the liability has been said to be that the seller

by marketing product his for use and consumption, special has undertaken and assumed a responsi- bility consuming toward member of the public injured may public who be it; has the right expect, products to and does in the case of which it needs and for which it is rely forced to upon reputable seller, sellers will stand goods; public policy behind their demands that injuries the burden of accidental prod- caused consumption placed ucts intended for be those them, who market and be pro- treated as a cost of against duction insurance can be and that the products obtained; consumer of such protection is entitled to the maximum of at proper persons hands of and the someone, to afford products.” it are those who market the Restatement of Torts 2d at 349-350. expressed As Professor Keeton has it, “* * * No doubt the technological tremendous 88.8; years in recent that have occurred result-" advances products

ing proliferation of chemical in a injuries increasing drugs the incidence of from the creating pressures products factor use is one n liability. imposition is, of strict Another factor the alterations that have sure, occurred manufacturing century regards mar this keting processes. Legal entities with mammoth ae large capital, of volume of sales, cumulations advertising typical. This are has led' to national capable, are re the that such entities if held view , sponsible, passing generally on to of users losses by the Thus few. there has come about a suffered wider, acceptance for the view that when the bene many high few, a the come cost to the fits to .at # * *” mány pay for the should these losses. Liability—Liability Products Keeton, Without Requirement the a 41 Tex L Defect, Fault and Rev of (1963). 855, majority recognizes, liability As of the kept enterprise by within reasonable bounds the' re- product. quirement requirement a defect in the This of liability being prevents absolute, seller’s definition, recognized question as a has been its Liability: policy. How Dickerson, Products Does Good (1967); 42 Ind L Bef, Have to J 302-303 a Product op. It cit. at is the 858-859. essence of Keeton, duty, imposed reasonably law, furnish a seller’s majority opinion, product. I believe with its safe emphasis warranty concept rationale and the of an important implied representation, point. obscures expectations of the reasonable standard employed § in the comments consumers 402A defining only a defect. means Consumer ex- as a naturally, pectations courts will, are facts defining scope products liability. of strict use in many expectations, in have sources addition to Such representations product. seller’s about the In a proper representations, evidence of actual case, either “implied express or will be a de- fact,” relevant to right expect of what consumers a termination have particular product. a seller Nevertheless, of the who representations has made no whatsoever will be liable injuries caused his failure to a furnish reason- ably product. analysis There is need, safe no strict case under for the A, fictional .a putting product a on the notion that market involves any implied representations quality. as to its spite implied of the role doctrine of developmental history, products in its generis. It is sui is not whatever now, its history, representational gist tort. The of the tort misrepresentation, is not a but the anof unsafe sale Representations by product. when seller, relevant, only important product .ought to show that are particular safe.ty. They standard of have met a are theoretically necessary any way to the impo- generally. strict on sellers sition of agree present majority case I with In the the . plaintiff’s . was evidence take that sufficient his .to theory jury liability. My on the to the case any representation implicit not on based, conclusion tire, but on evidence in the sale which would there, jury permit to infer was a that flaw in. casing when the tire was sold- place, in the first was,

There evidence that simply worn out under normal use. tire had It only eight or nine driven months, had been a 6,000 or 5,000 of about miles, total distance about percent the tread remained- at- the time performance he testified as to Plaintiff accident. expected the tire: from normally you buy a like I that, tire

“A Well, get figured thousand twelve to fifteen at least I should useage.” miles under normal expert asked on cross- when witness, Defendants’ expect performance users can what examination recapped replied: tire, get “They expect as the the same service they previously.” had that new tires justified jury, have been evidence, would from this The ordinary purchaser recapped finding of a reasonably expect given use, normal that, could tire as this tire did. out'as soon not blow would jury from which the also evidence There was damaged not been or un- the tire had find that could by plaintiff. purchase Plain- duly its after weakened always kept properly the tire that testified tiff exclusively driven almost had been that it inflated, subjected had not been paved and that it roads, casing. weakened the impacts have could jury Finally, from which the was evidence there specific tire contained defect infer could recapping and sale. Plaintiff’s second time of at expert recapper, experienced tire testi- witness, appear have did not been blowout fied that probable cause of by impact. the tire’s caused testified, was he failure, * *“* pin such a small has been there through seeped from the has inside air where

hole casing the fabric cords of the tire out pocket that or air event- a bubble caused has which ually more and blew stand no out would tire possibly pocket an air exploded; two, number or, or original from the tire manufacture 'that over a period flexing running with the heat and time, developed gases expanded tire, the and done the same could have

thing. w * * * your experience “Q Now based on could you give opinion, us an based on a reasonable probability, pin scientific air facturing? whether this hole casing were in the hole at the time manu- “A That would be awful hard for me de- by looking termine at tire.” Although the witness was unable determine looking casing at the tire whether the contained an air pocket recapped, or hole at the time it was he never- probable theless testified that such a condition was the together cause of the blowout. This evidence, with plaintiff’s testimony that the tire had not been sub- jected any impact purchased unusual use or after he permit jury casing would to infer it, that when the recapped pocket, it contained either an air a hole, spot permitted or a weak which a hole and then an pocket during air to form normal use. It could further properly find that if of these three conditions it constituted existed, a defect which made the tire unreasonably dangerous. necessary explore not in this

It case to meaning limits outer of “defective.” I would jury, permit a case like this one, to find simply plaintiff the tire was defective because during expected suffered a blowout life of the tire. depending wear out at different rates Tires on their quality, their maintenance, initial the uses made They exposed during are consumer. use to may many premature hazards contribute to fail- -292 may occur in the total absence of and biowonts

ure, (cid:127)manufacturing case, Plaintiff’s evidence flaws. and indi- other causes to tended to exclude however, probability at the time of sale as of a flaw cate the analysis For an of the var- the cause of the blowout. which be may, combination, kinds of evidence ious Rheingold, see of a defect, sufficient evidence Proof Liability Tenn L Rev Cases, in Product 38 of Defect (1971). 325 jurisdictions involving other tire

Cases only results. the show similar Where evi blowouts tending the cause of the failure to show was dence that jury permitted the will not be out, the tire blew was defective at the time the tire find that sale. Corp., e.g., Motors v. Shramek Chevrolet ..See, General App (1966); 216 NE2d 244 72, Ill 2d Wil Div., M. Royal (La App Tires, S2d 488 U. S. liams v. 1958); Wojciuk Rubber Co., v. United States 19 Wis2d (1963). 6 ALR3d 1357 But 47, 120 NW2d where, unexpected blowout, the there is some in addition probability tending the to show that it was evidence by it has been manufacture, a defect held caused that jury. question e.g., the See, awas Smith v. there (7th 1970); Craig Uniroyal, 420 F2d 438 Cir Inc., v. (La App 1969). 228 S2d 723 Burch, or merchant manufacturer sells a re- When containing capped á flaw results in a tire blow- during use-and well within the normal limits of out, the by remaining expected indicated the as life tread, tire’s tire is “defective” that the hold I that the would injuries resulting properly should be cost of borne Having enterprise. concluded that evidence permit jury sufficient was case in this make jxidgment agrée finding, I must such re- for a remanded new case trial. versed and DENECKE, J., dissenting,

I concur in the rationale decision cases stated I products majority.. because I am dissent, however, opinion the trial court correct in grhnting defendant’s a directed motion for verdict.

This is a case in which it probably function, court’s rather than the jury’s, to decide im- whether others in the recapper chain the used pliedly represented casing the recap new good would as a I perform casing. am using the distinction between the function of the court and cases products liability proposed jury by Mr. Chief in his Justice O’Connell concurring opinion in Cor- Bay Motors, nelius v. 258 Or 577, 484 P2d 299 (1971):

“* * * This is the court’s function of looking character general at of men’s dealings whether, márket and place deciding as a normal course such it is dealings, ordinarily understood buyers sellers that .the seller represents, effect, that he has inspected the car not only for defects but also defects which patent would be dis- only by tearing closed down parts of the car in search for them.” 258 atOr 581. continues,

That “I opinion do not think that this is the of either understanding buyer or seller in of used cars.” sale usual Or at 581. Similarly, I think this is the do not understanding the buyers or sellers of used tire casings. aof tire know

Buyers recapped they are get- If buyers a used ting casing. recaps believe they the same performance will receive as they would from casing, anyone why new would purchase new tires must which they pay for substantially more. I sup- 29á why

posed recaps substantially reason sold for less buyer expect was that the than new tires did not recap. performance same from a my opinion the law should be that a re- casing for defect in treader is liable could have discovered retreader a reasonable in- negligence, spection liable for no more. ; is, casing retreader selected this That for re- treading only implies to me that the retreader found put defect. That the retreader on tread no implies than miles 6,000 would last more that the re- purchaser, expected as the as well treader, that this perform would others, and most tire, more than negate does 6,000 This, however, miles. the ex- casings pectation that inasmuch as used were re- failure substantially the incidents of will be treaded, greater new than with tires. attempt apply § should

We 402A of the (Second) of Torts so as Restatement to be consistent Commercial Code. Bay with the Uniform Cornelius v. 578). supra (258 Or at Motors, Comment 3 to ORS Commercial 72.3140, Uniform Code section on im- plied states: “A contract warranties, for the sale of goods, only obliga- however, second-hand involves such goods appropriate to such tion that is their description.” I believe a contract that a used casing does not have a latent “ap- defect is tire goods. propriate” to such is a case like Heaton

If this v. Ford Motor Co., (1967), P2d normally 806 it is Or particular jury question this casing per- whether used impliedly represented, as I am formed also of the opinion trial court was interpret correct. I holding that in a case such Heaton as jury this a question pass without some evidence to on this cannot present guide case there was no In the evidence it. determining jury impliedly guide what making recap. represented the sale With this permitted go not have been issue should void jury. to the dissenting.

BRYSON, J., concurring opinion specially The of Mr. Justice states: McAllister * * “* agree I However, because am unable to majority with the effort to rest 402 A separate liability on two inconsistent bases I am filing separate opinion. majority concept this permeates theory §of of opinion, 402A a dual epitomized by following but is state- ments : “ enterprise liability ‘In addition ra something tionale, similar to the rationale be implied representation hind of merchantable part quality also has to be of the theoretical * # *

basis for rule. “ ‘Both rationales, that of a ^{[*] [*]} # # representational enterprise liability, tort and that have their * # *’” place in Section 402A. agree concept I cannot with the that Section (Second) of the Restatement 402A of Torts is based “enterprise liability” which has come to mean ability spread manufacturer’s the risk and loss by adding price product the cost of loss or the protection liability insurance to the manufactured price; sales article’s manufacturers with national organizations thereby sales and international can dis- loss product to all tribute consumers of its few for the benefit of the who suffer. may theory be a fine

This economic but it has no 3,96 justice seeking in law where the courts are

place innocence., It rule may justify on fault or based it. ‹ for creating but it cannot the reason be as a' I have trouble fact accepting fact, “restatement” the law 402A- was- a as that Section when At that time there 1964, adopted. existed in Greenman it, namely, cases to only support were two Inc., Yuba Products, v. Power 57, 59 Cal 2d 27 Cal v. Kolls Goldberg P2d 897 697, (1963), 377 Rptr man Instrument Corp., 432, 12 NY2d 240 NYS2d 592, that, the NE2d Writers-have (1963). reported 191 81 the idea of Professor merely William section the Restatement. At the time Prosser, Reporter writers- criticized its numeroiis Section adoption, in with law as accord common au being 402A further it might and on the sub thority ground with the inconsistent Uniform Commer sequently L Rev 715 22 Stan (1970). cial Code. See courts, undoubtedly, has like most other This court we rejected 402A specifically Section but adopted risk or the liability spreading enterprise theory Jennings, v. Wights 241 Or 405 P2d 301, in 624 Staff we have not embraced this my knowledge, To (1965). we where have found opinion concept Section 402A. › the basis or denied As Prosser, Dean by stated are to be going courts make compelled

“The what are they trying their minds to do. up a so-called socialistic Are they adopting theory, ‹ For theory “spreading risk,” criticism of see Injuries Plant, Liability Caused Strict of Manufacturers Opposing View, 938; 24 Tenn L Products—An Rev Defects (3d 1964). (1957); 673, ed Torts n 44 Prosser on 945 › In 66, Cox, (1968), v. Or P2d 462 Macomber we liability.” “enterprise rejected compulsory risk distribution and so insurance, on? they theory going adopt areOr. justified put- thing ting the defendant’s conduct product representing the market, public that it fit for use? Prod- Prosser, to the Liability Perspective, Gonzaga in ucts 5 L. Rev. (1970).” 157,170 point

At this of time in evolution of this new con- liability, willing place cept I am not of the court in position adopting of a a law based on a socialistic Regardless theory. theory negligence of of law, implied quality, or of merchantable claims progenitorship, remedy products newa of strict adopting our was created Section 402A in give justice involving order to to those cases mass production products and sale of defective to con- sumers. (cid:127) adopting Section 402A we created a new

remedy products liability, of but we should not say prerequisite that have eliminated we fault as a theory fi under this nor do we make the subject manufacturer-retailer an insurer to absolute liability. fl I from dissent the result reached the ma- jority. parties When rested, the defendants moved directing “the court for an order a verdict for de- grounds fendants that there is no substan- tial evidence that the defendants, either of them, negligent any particulars charged were fi Brooke, 89, 94, v. 243 Or See Cochran (1966), P2d 904 concurring opinion by and' Chiei Justice O’Connell in State ex reí Campbell, 262, (1968). Or Western Seed v. 282-84 fl Cowan, Some Policy LioMlity, Bases Product 17 Stan of L (1965). Rev 1089-90 ground complaint upon the that further there proof pleading that there was defect

is neither nor at the tire the hands of in the tire the time left majority opinion agrees “[t]he The defendant.” testimony plaintiff’s witnesses did not substantiate allegations any way negligence in the complaint. plaintiff As failed to result, sustain his plaintiff’s negligence concludes count,” but second experienced expert witness, McCann, Robert tire recapper, “that the small hole and testified resultant pocket, witness which the said caused blowout, air subsequent retreading into existence to the came plaintiff.” and its sale to the tire testimony following of Mr. McCann: “* * * pin has such as a that there been small seeped through has where air inside hole casing to the fabric or cords of out the tire pocket a air has bubble or caused that eventually tire would stand no more and blew exploded; possibly number or, two, an air out original pocket in from manufacture the tire that period flexing time, with and the heat over gases developed running have tire, could thing. expanded the same and done you “Q give ^{[*] [*]} us an ^[*] Now based opinion, on based your experience reasonable could pin probability, hole whether or the scientific casing at the time of were in the manu- hole air facturing? be awful hard for me That would to de- “A by looking at the tire.” termine (cid:127) Jarley expert Pete, witness, testi- Defendant’s “appears rupture to be a failure the tire that fied impact and, also, that the occurred” tire was that its time of manufacture. at the defective not

29,9 (Sec- Comment to Section 402A of Restatement g ond) of Torts states:

* * The seller is not liable when he de- product livers the in a safe condition, subse- quent mishandling or other causes it make harmful proof the time it is consumed. The burden of product that the the time that was in a defective condition at particular left hands of the injured plaintiff; seller is and unless evi- produced support dence can be clusion that it was then which will the con- the burden is

defective, sustained.” say

Witness McCann was unable to tire was in a defective condition at the time it left the hands the defendant seller. Witness Pete testified the tire was not defective at the time of its I manufacture. do not believe the evidence submitted support was sufficient to an inference from which the jury might conclude that the tire inwas a defective condition at the time it left the hands of the manu- facturer or the defendant seller.

I would affirm the trial court.

Case Details

Case Name: Markle v. Mulholland's, Inc.

Court Name: Oregon Supreme Court

Date Published: Apr 26, 1973

Citation: 509 P.2d 529

Court Abbreviation: Or.