McLaughlin v. Michelin Tire Corp.

McLAUGHLIN, Fred (Plaintiff),

Appellant CORP., York TIRE a New

MICHELIN Tire,

corporation, a division and Cobre Enterprises, an Arizona

of Fletcher (Defendants),

corporation, Appellees

Caterpillar cor Tractor California Compa Machinery

poration; Wyoming Larry Largent;

ny, corporation; a Utah Dernovich; McNabb;

Larry Robert Veeder; Craig Paisley, De

Dennis

fendants.

No. 87-61.

Supreme Wyoming. Court of

July C.J., CARDINE, THOMAS,

Before MACY, JJ., URBIGKIT and BROWN, J., Ret.

THOMAS, Justice. case,

In this the court is asked to address , imposing liability the several theories for heavy upon manufacturer seller of equipment summary the context of judgment. question critical whether any application there difference in those several theories in of an absence defect in actual the tires. We also address theory independent negli- a collateral gence. The trial summary court entered a judgment in Corp. favor of Michelin Tire (Michelin) (Cobre) and Cobre Tire on the premise genuine that there nowas issue of fact, material and these defendants were judgment entitled a matter of law. emphasized The trial court the failure of produce any materials in opposition summary to the motion for judg- ment that raised an issue fact as to there whether the tires. judgment We affirm of the district negligent court on the theories of manufac- design, liability, ture and breach of implied warranty an merchantability, express of an warranty. breach Be- genuine there do cause exist issues of ma- fact, summary judg- terial we reverse the as to theory implied ment of an warran- ty of fitness and as to the of inde- pendent negligence of Michelin and Cobre replacing they tires when performing satisfactory manner. McLaughlin injured April Fred Caterpillar when he lost control scraper he operating Bridg- the Jim Company er Coal mine in Sweetwater County. brought He action to recover damages injuries his which he named Caterpillar Wyo- defendants Tractor ming Machinery Company, Michelin Tire Tire, Larry Corp., Largent, Cobre Larry McNabb, Dernovieh, Robert Dennis Veed- Honaker, Richard Springs, H. Rock er, Craig Paisley. complaint, his Jackson, Goody, appellant. W. Keith McLaughlin alleged injuries his result- Uchner, Lathrop, P.C., Carl L. Lathrop & ed his scraper loss of control Cheyenne, appellee, Corp. Michelin Tire bouncing due to severe and vibration Walton, Cheyenne, appel- William G. caused Michelin radial tires that had lee, Cobre Tire. been installed on the machine. As theories defendants, May appellant raise issues on “1. new the several appeal? prod- alleged negligence, strict McLaughlin tort, appellant prove breach the tires

ucts “2. Must merchantability, of fitness and were defective? warranties warranty. express of an and breach duty to warn “3. Did Cobre have against his all McLaughlin settled claims appellant? Cobre, and except Michelin and defendants summary judgment proper?” “4. Was summary ultimately entered the trial court record, most of From the materials McLaughlin and in favor against

judgment upon in which were relied connection with appeal is taken Michelin and Cobre. summary judgment, the es- motion summary judgment, which was a from that gleaned. In March of sential facts can be the circumstances. final order under Bridger Company Cobre and Jim Coal brief, McLaughlin ques- states the In his goods (Bridger) entered a contract for into to be: tion pursuant to which Cobre and services in provide Bridger eighty per- of fact exist this agreed “Do material issues to with of the sum- require requirements reversal tires and acces- case which cent of its re- mary judgment entered below with to furnish on-site tire mainte- sories and discussing tire gard personnel. to: its nance needs, Bridger, through agent, its Jack claim; “(a) Appellant’s negligence Erickson, agent, Ken- mentioned Cobre’s claim; “(b) Appellant’s strict Moe, Bridger interested in neth was radial tires on their Cat- trying steel-belted “(c) Appellant’s breach scrapers if that erpillar 631-D to see claims?” smoother, ride provide a more comfortable expands Michelin, Appellee, Brief of time, operators. Until that scraper for the and sets them forth on those issues uniformly equipped scrapers had been way: ply bias tires. with infused appellants have “I. Whether 10, 1983, in accordance with On March appeal the first time on new issues for contract, pursuing Michelin’s ad- by the court not considered which were Bridger 33.25 vice, two delivered Cobre below? radial XRDN** steel-belted 35 Michelin X prove a defect re- plaintiff “II. Must them on the front tires and installed theory, negligence, it gardless of the 699. The scraper, No. Caterpillar 631-D warranty? almost relied record discloses Cobre subjective complaints by opera- “III. Do recommendations exclusively on Michelin’s prove a defect? tors that Miche- suitability of as to the circumstantial evidence test “IV. Is the particular for use on lin manufactured available? types of in certain pieces equipment “V. Does evidence submitted been Scraper 699 had terrain. No. opposition to the motion equipped ply tires manufactured with bias jury summary judgment invite prior to the instal- company another tire thereby to raise a tri- speculate and fail Immediately tires. lation of the Michelin of fact? able issue tires, McLaugh- of these after installation duty to Did Michelin have a warn? “VI. lin, Scraper No. usually operated who as to new matter raised “VII. Even in its differences of extreme became aware below, remain?” does a triable issue complained to his McLaughlin operation. of the issues Erickson, invokes a third version scraper, Cobre supervisor, Jack tires, stated as follows: Michelin equipped with the new now vibra- racked with extreme violent determining that was “Did the court err tions, shake ex- it bounce and fact and that would there exists no issue of material bouncing did not cessively, entitled and that (appellees) were that defendants had when the quickly as it of law? subside as judgment as a matter face, scraper equipped the bias tions his ultimately been with cost him h^d ply operator tires. Another stated that right eye, his compression fractures to Scraper No. more with the 699 “vibrated the vertebrae in his back that resulted tires,” operators new Michelin and that the permanent disability. up in “getting scraper.” beat parties dispute actually what oc- operator Still another observed that prior just curred to the accident to cause scraper “rough ride and it was vi- scraper severely. so vibrate This brated and wouldn’t smooth out.” McLaughlin’s co-workers stated sub- operator latter further that the observed they something stance that believed scraper Michelin tires caused the to bounce wrong the tires. One with related: more after an initial bounce than it had * “* * ** bouncing *. I seen [H]e ply operator bias A fourth tires. going the tires on six-nine-nine flat. testified that Michelin radial tires were running When he dump over this ply “bouncier” than the bias tires. area, they going I flat, were and was McLaughlin’s complaints, of and those * * * going to catch him. I was trying operators scraper, the other of the were him, stop flash him over. I tried to Cobre, communicated to in turn but he was ahead of me.” passed Despite them on to Michelin. the The say same co-worker on to that went complaints voluminous that continued over coming ground,” “both wheels were off the period twenty-six days, of neither Cobre flattening that the tires to such an nor scraper. Michelin took the tires off the extent that from rim the distance the to the Instead, attempt an was made to cure these only bottom the tire six was about problems by varying pressure air the inches, and that when the tires would provide tires. This did not remedy, back, spring the distance the rim from the bouncing extreme con- vibrations the of the bottom tire would be about two Late tinued. in March Cobre and 10,1983 and one-half feet. Another April they Michelindecided that on co-worker ob- permanently occur, served actual injury remove the and he re- tires. period, intervening experiment ported deposition: an was his « * * * taking couj¿[ conducted that involved the tires ftje I scraper bouncing see Scraper installing No. 699 and them I real hard. saw it or four bounce three * * on scraper. another problems The same I go sideways times *. him saw * * vibration and bounce occurred with the *. Then I . him come back and saw scraper. tires on the Following second door, through saw his head come experiment, these tires were on reinstalled window, and knock window clear that Scraper No. 699. out.” In accordance with Cobre’s and Miche- McLaughlin’s accident, After several decision, lin’s Scraper the tires on were still scraper tests were conducted with that date, on April No. 699 1983. On that oper- re-confirmed the beliefs the several McLaughlin, experienced who was an that the tires caused the ators accident. heavy equipment operator, making was a Agents of Michelin and Cobre also wit- pass dirt haul Straddling over a ditch. tests, nessed the but none of them would making passes ditch dirt while such haul opinion offer an as to what caused the dump overburden, in the manner that Instead, reported accident. they that it McLaughlin day injuries, did of his appeared scraper that the drivers “very accepted” practice was a at the coal during course the tests manifested mine, is no risk involved” with “[t]here bad attitudes. procedure. During such a such pass, one incorporates opinions record also scraper suddenly went into violent experts. One said: series of vibrations the course of which “ * * * McLaughlin I scraper opinion lost control of the am of the that there through was thrown the side of the was window no defect either or manu- McLaughlin cab. sustained severe lacera- facture of the Michelin tires installed may from the ei- McLaugh- drawn materials which Mr. upon Unit supporting opposing the motion. ther injured.” lin was have examined this Roosa. We record deposition taken expert whose Another light. he did know wheth- by the said of the a defect manufacture er there was support unable to determina- We are really did not matter. and that summary judg- the trial court that tion of vi- recognized he that excessive What proper respect ment with to all and that it was apparently occurred bration McLaughlin. It is de- theories asserted tires. these attributable essential, sirable, although perhaps explain justification for affirm- Demand, that we Jury Complaint In his theo- ing summary judgment to the asserted, recov- McLaughlin as theories of design, negligent ries of manufacture and defendants, includ- ery against the several liability, implied strict breach of warran- Cobre, negligence, ing Michelin and merchantability, and of an ty of breach tort, war- breach express warranty. genu- conclude We particular purpose ranties of fitness for a. present fact are with ine issues material merchantability, express and breach respect theories forth are a warranty. facts set above per- failing tires after to remove the their discovery. pre-trial extensive evaluated, had formance been and breach Following discovery, Michelin and Co- implied warranty of for a of an fitness presented summary judg- motions bre purpose. sum- affidavits, particular We reverse the ment, together supporting only. mary judgment to those theories and their memoranda deposition excerpts a McLaughlin law. filed memorandum of neg Wyoming, In the elements of a together opposition to those motions (1) (2) duty; ligence claim are: a a violation deposition excerpts exhibits causation; (3) duty; proximate he court relied. district (4) injury. Caterpillar Co. v. an Tractor granting letter opinion then issued citing Donahue, (Wyo.1983), 674 P.2d 1276 summary judgment on all is- motions Tottenhoff, 666 P.2d 408 v. McClellan sues, and that formal- determination was products liability action (Wyo.1983). a Judgment by Summary ized Order alleged negligence, on which is premised appeal This entered December here, prove man must that the is taken that order. ufacturer, seller, a distributor or breached summary judgment granted to thereby prox him and duty of care owed to if only Michelin and can be sustained Cobre injured. 1 Ameri imately caused him to be fact, genuine is no issue of material there 10:1 Liability of 3d can Law Products § judg is prevailing party entitled to (1987). as a of law. Matter Estate ment matter of adopted the doctrine Wyoming also has Roosa, (Wyo.1988). P.2d of Re- liability encompassed in the of strict or re fact one that establishes material is (1965). (Second) 402A of Torts statement § of cause of futes an essential element there The rule is stated: party. or a defense asserted action Product “Special Liability Seller of party presents sup moving If the Roosa. to User or Consum- Physical Harm summary judgment materials porting er mate^ genuine no issue of demonstrate that any product in a de- “(1) One who sells exists, is to the fact the burden shifted rial dangerous unreasonably condition fective non-moving present party appropriate proper- or to his the user or consumer pose a supporting materials that serve to liability physical harm ty subject to is genuine issue a material for trial. fact thereby user or caused to ultimate appeal, On this court examines Roosa. consumer, property, or his if light most record in the favorable entire “(a) motion, engaged the seller is the business party opposed who afford selling product, and inferences such ing party to that all favorable “(b) expected it is to and does tributor reach is an element that must be estab- or consumer without injured party user substantial lished for an to recover. change in the condition which it is Products, Inc., Yuba Greenman v. Power sold. Cal.Rptr. 697, 59 Cal.2d 377 P.2d (1963); “(2) Phillips A.L.R.3d ap- stated in The rule Subsection Co., although Kimwood Machine 269 Or. plies (1974). P.2d 1033 Also see East River S.S. “(a) possible has exercised all seller Corp. Inc., Delaval, v. Transamerica preparation care sale his U.S. 106 S.Ct. 90 L.Ed.2d 865 product, and invoked, liability Strict is “(b) the or consumer user has apply, intended to those instances bought or from entered into in which negligence traditional theories of relation with the seller.” contractual inadequate are practicably where it is Caterpillar 716 P.2d Ogle Tractor impossible prove negligence. W. Pros- (Wyo.1986). Caterpillar See also Keeton, &ser W. The Law of Torts 98§ Beck, (Alaska 593 P.2d Tractor Co. v. (5th 1984). Moreover, ed. liability 1979); Prosser, Upon The Assault Cit- theory often is a recovery more realistic (Strict Consumer), Liability adel that of contract-warranty per- than awhen (Sec- Yale L.J. 1099 Restatement physical son suffers harm from product ond) c; 402A comment Torts and Sims dangerous that is if defective. See Yuba. Corp., 751 v. General Motors (Wyo.1988). Despite distinctions, these several widely recognized rule is that:

While duties are owed defen- prod- theory dants under requirement “The showing a defect is may vary, ucts suit all relate to the every products one element common to reasonableness the defendants’ conduct. case, brought whether on a * ** required A “manufacturer exer- negligence, breach an ex- planning, cise reasonable care in the de- press implied warranty, strict tort lia- signing, manufacturing bility, or a combination theories.” W. to reasonably order ensure that it is safe to Lesher, Kimble R. Liability & Products Donahue, (citing use.” 674 P.2d 1280 53 at 69 § Co., Maxted v. Foundry Car & 527 Pacific The burden under rule upon this is the (Wyo.1974)). 832 duty P.2d fact, to demonstrate in defect simply seller or distributor to exercise i.e., product that the failed. The record in reasonably care prudent per- that which case any genuine this does not establish son would under the same circumstances. product issue of material fact as to failure. 1 Liability American Law of Products 3d respect facts, It is any silent with intro 10:14. by McLaughlin any duced party, or other Thus, pursuing theory negli in negligent that indicate neg manufacture or manufacture, gent design or ligent design resulting conduct of in a failure question. the maker or in seller is or justify that an inference from On. hand, pursuing theory other in of strict failure that support liability. strict liability, the focus is on readily itself. This case theory fits within the Beck, 871; 593 Bell, P.2d Buckley Gonzales v. Cater 703 (Wyo. 1095 Co., (Tex. 1985), pillar which, 571 Tractor S.W.2d 867 citing Baptista v. Bar St. 1978), (Tex.Civ. on remand 599 633 Center, S.W.2d N.J.Super. nabas Medical App.1980). (1970), Pursuant to the of strict 262 A.2d 902 aff’d N.J. products liability, (1970), a seller referring or distributor can A.2d and to Berkeley for or resulting Pump liable loss from a Reed-Joseph Co. v. Land that (1983); entered the stream Ark. S.W.2d Montez v. fault, while, commerce absence of Company, Cal.App.3d Ford Motor under a theory, fault Cal.Rptr. and Dambacher part manufacturer, designer, Mallis, or dis- Pa.Super. Dambacher v. “(a) (section or (1984), Unless excluded modified this court articulated 485 A.2d 408 34-21-233]), wrong product is 2-316 a warranty that proposition “a [§ purposes goods for im- shall be merchantable is a defective liability.” plied a contract their sale if the respect seller is a merchant show In some evidence the absence * * * goods of kind. summary judg- tires, these defect alleged on the “(b) of Michelin ment favor must Goods to be merchantable manufacture or negligence in theories of at least such as: liability must be sus- design and strict “(i) objection Pass in the trade without those the extent that theories tained. To under description; the contract and Cobre, against they fail asserted could be "(ii) fungible goods, the case of are of that the reason. It is the same clear descrip- average quality fair within the granting summa- trial court was correct in tion; and ry judgment as those theories liabili- “(in) ordinary purposes fit for the Are ty- used; goods such are which summary judg also sustain the We “(iv) Run, permit- the variations within alleged of breach of ment as to the theories kind, qual- agreement, ted even implied an express an war ity quantity within each unit 34-21- merchantability. Section ranty of among involved; all units 230, W.S.1977, requirements articulates “(v) contained, adequately packaged, Are perti warranty. provides, in express It agreement may re- as the labeled part: nent quire; and by the seller “(a) Express are warranties “(vi) promises or affir- Conform to as follows: created made on mations of fact the container promise fact or “(i) Any affirmation of any.” if label buyer by the seller to the made jurisdictions held some While has been goods part to the and becomes relates proof required of a defect bargain creates an ex- the basis express warranty, premised on action press warranty goods shall con- the mere fail- based a rationale that promise; form to affirmation performance is promised suffi- ure cient, Liability 2 American Law Products Scrutiny of this record discloses neither an 3d, 19:28, court has held Colorado §. .by promise of fact nor a Miche- affirmation Arp, P.2d 801 Company v. Serum Cobre, Bridger, lin or Michelin Cobre to essen- proof of a (Wyo.1972),that support a Bridger sufficient to factual express warran- tial under both express of an issue as existence general with the ties. This is consistent At warranty as defined in the statute. the. and, the because rule set forth above most, support might record an very the a in these defect record does not establish represented that Michelin that inference tires, properly granted court the district good the and had used tires were been theory of to summary judgment as the successfully prior These on occasions. merchantability well warranty of implied fit found statements within definition the warranty. express 34-21-230(b), W.S.1977, in that “a state- § ment, merely to the seller’s purporting be The case of Valentine v. Orms goods opinion (Wyo. commendation of the does Corp., or P.2d 452 Exploration bee warranty.” Terry bridge a See v. 1983), create to appropriate an serves as Moore, (Wyo.1968). P.2d 601 The en- con the court theories which those try summary judgment on the claim of of fact does genuine issue of material cludes express warranty an must be sustained. in This result exist and that reversal. court in that case: said implied warranty of merchanta “ specific in con- 34-21-231, the incorporated of bility W.S. ‘Proof in § design causing mechanical or part: struction provides, pertinent in that particular not an purpose, malfunction is essential element fitness for a pro- and it establishing warranty. of breach “When vides: ‘malfunctions,’ machinery obviously it “Where seller the the at time of contract- regardless of lacks the cause of fitness ing has reason to particular know theory the malfunction. Under the of purpose goods required for which the are warranty, the ‘sin’ is the lack of fitness buyer and that the is relying on the by as evidenced the malfunction itself seller’s skill or judgment select or specific rather than some dereliction goods, furnish suitable there unless constructing or the manufacturer de- excluded or modified under the next sec- signing machinery.” [Citations.]’ implied warranty tion goods an that the MacDougall Company, v. Ford Motor purpose.” shall fit for be such Pa.Super. 257 A.2d 679 The of elements a cause of action under (1969).” Valentine, at 462. (1) theory knowledge this are: part on the applied a contract Valentine was case of purposes of seller which concepts implied warranty of traditional an goods put; (2) will be some reason for the merchantability implied warranty of or an buyer relying seller know that the on of particular fitness for a without judgment; skill the seller’s invoking negligence tort theories part there must be actual reliance on the liability. strict Valentine establishes buyer judg- the seller’s skill and product the actual failure serves Summers, ment. J. White & R. Uniform implied warranty demonstrate a breach of Commercial Code 9-9 § particular purpose. of fitness for a involving implied cases war Madden, Liability, In M. Products ranty fitness, proof of a “defect” (2d 1988), following 5.11 at 160 ed. § entirely assumes an different character statement is found: proof than the found under a warranty particular “The fitness context in which there must purpose may though even breached proof of a defect in fact. Under the goods are sold not ‘defective’ in the warranty fitness, implied if the Although many usual sense. being malfunctions it is when used which recovery buyer cases rest for the manner which it was intended warranty on this do fact deal with consumer, assuming that the intended are for one reason an- seller, use was communicated there ‘defective,’ other such a condition is not implied is a breach warranty of fitness required. Provided the conditions exist particular purpose permit for a that does give warranty, may rise recovery injured on behalf party. be breached properly satisfactorily The failure to function cou made and simply merchantable is pled statutory with fulfillment of the other wrong one buyer’s for the particular requirements of the cause action found use.” 34-21-232, W.S.1977, is, knowl quotation aptly last sentence edge on part of the seller and reliance describes this case. While breach of the part consumer, on the results can fitness be estab- “defect” as a matter of law sufficient to by proof lished that the is defective recovery justify injured to one who is as a fact, in respect with to this of liabili- result of that malfunction. That defect ty, the can be one that is defective exists not in the itself but the as a matter law. The furnishing prod conduct of the seller in a particular fitness of a simply wrong uct that was the one for the requires

purpose only an error merchan- buyer’s particular McLaughlin use. As dising. correctly points reply out in his brief: “ 34-21-232, W.S.1977, Section [statutory] the ‘Under the theory of [im- provision in Wyoming’s plied] warranty particu- Uniform Commer fitness for a [of adopts cial Code that implied warranty purpose], lar the “sin” is the lack of specifics remember other you a malfunction fitness as evidenced him at time? your conversation with that specific derelic- some itself rather than constructing by the they tion manufacturer Other than weren’t satisfied “A. ” machinery.’ designing performance the Valen- that the fabric the with time, tine, giving at 462. that the 665 P.2d tires were at was only thing, other and that was one of the facts in issue then material they try to the radials.” reasons wanted to (1) Bridger communicated whether: are in- Concerning knowledge Bridger’s the for which Michelin and Cobre use, in its that Cobre admits brief tended (2) and purchased; were Michelin the tires took place discussions between Cobre on the Bridger relying knew Cobre Bridger regarding the use steel-belted of Michelin or particular judgment skill and Furthermore, scraper. on the Co- radials tire; purchasing a Cobre that Moe bre indicates contacted brief tires, fact, Examining malfunctioned. salesman, district earth mover Michelin’s in the summary judgment materials Workman, relayed to him the Gary McLaughlin, to as we light most favorable that had from information received Cobre do, genuine are issues required to there are upon Bridger. particular scraper As to the ques to each of those of material fact as installed, be the Michelin tires would which that Michelin both knew tions. Cobre and said, deposition: in his Moe steel- Bridger to use the Michelin “Q. you, your knowledge any Did or to scrapers. their radial tires on belted Tire, including employees at other Cobre manager, division January of Cobre’s Farwell, Larry limited make a to but Moe, mine to Bridger Kenneth went McLaughlin ac- determination before Erickson, McLaughlin’s discuss Jack scraper put as to which 631-D to cident change type of tire supervisor, Michelin tires on and which 631-D scrapers the mine site. We find used on put Bridgestone on? scraper to tires following colloquy deposition procedures “A. Under its maintenance Moe, relating to conversation Kenneth there, MR, Bridger us with supplies place Bridger mine took at the be request, when a machine is maintenance tween Moe and Erickson: imagine case I ready for tires. In this “Q. first you Do remember who [Scraper No. that this machine 699] brought up question using radial ready for first the one at the mine? tires tires.” they “A. Jack indicated that [Erickson] jury from which a does exist them, Evidence they had run try to wanted infer that and Michelin both could Cobre up equipment on other to radials all their knew, information by virtue of communi- point had not tried it on but particular Bridger, use cated scrapers. put. these tires would “Q. that he specifically Did he indicate scrapers infer, try possible favorably radials on the wanted It also is opposed types equipment? Bridger McLaughlin, to other relied judgment skill Michelin’s Cobre’s already running They “A. radials selecting particular to use. The tires equipment. on all the other ular brand of radials? or a “Q. “A. He “A. That is correct. “Q. ^[*] model Did And said Jack he didn’t n number; radials. Erickson ^[*] specify is that correct? ^[*] request either ^[*] a brand partic- ^[*] cated evidence expertise and appropriate Michelin to decide which joint model of it wanted scrapers. decision shows that tires. use on knowledge of It did not indicate a brand try Cobre relied on the Bridger Bridger merely steel-belted radials scraper. Michelin Cobre It was indi- particular Michelin “Q. request provide and install the Other than Jack Erickson’s scraper No. scrapers, do 699 when the use radial tires on tires what on Coal, “Q. McLaughlin injured. Bridger you changing your was Are testimony? expertise reliance of Michelin and You me you opinion told didn’t have an Cobre, acquiesced in the installation of being to defectively the tires manufac- example, For says these tires. Cobre designed. you telling tured or Are now brief: me that there’s a the manufac- “ * * * manager, design? division Cobre’s Ken- ture Moe, Workman, Gary neth consulted No, “A. what I’m saying is that these Michelin district earth mover sales man- particular wrong tires were—is was the ager who was familiar with soil condi- application the tire. by scrapers tions encountered at “Q. you're saying What it’s using mine. Workman recommended wrong choice of tire application? for this XRDNA** steel belted Michelin radials “A. Yes. and Moe followed his recommendation.” “Q. But the subject itself is not testified, deposition, Workman in his your criticism, just it’s they what did knowledge his the conditions the mine with this tire? inspec- site on was based various on-site Now, “A. question Yes. relative upon inspection tions and also of used bias of whether it was a defective manufac- ply previously on scrap- tires installed ture, mean, maybe I I don’t know —and ers for the installation the Michelintires. this, matter, really and it doesn’t because malfunction, respect With the record gave we know the tire vi- excessive is replete tending with information to dem- particular bration in this perhaps it case— tires, least, very onstrate that at the defectively manufactured, I okay, entirely in a functioned manner different don’t know I really that. And don’t care. scraper. other tires used on the Wit- gave All I know that the tire excessive nesses both sides testified as to an vibration which resulted in the loss bouncing increase in the and vibration to added) (emphasis control.” scraper subjected which the encompass- We conclude that this record equipped with the Michelin tires. These respect es evidence with every element disagree witnesses do as to the ultimate of a claim for breach warran- effect of bouncing the vibrations and ty of particular purpose, fitness for a which scraper, is, least, but there evidence genuine structures issues material fact. change operational in the characteris- provisions In the incorporated that are scraper tics of the with Michelin tires. The Wyoming’s Code, Uniform par- Commercial occurrence of the accident itself is some ticularly 34-21-232, 34-21-235, §§ support evidence that could by an inference 34-21-294(b), W.S.1977, legislature our the finder of fact that these malfunc- adopted remedy applies tioned. We following also note the McLaughlin’s light situation. the in- testimony Bussman, of Dale expert se- formation in the summary judgment found lected McLaughlin, respect with case, materials in the record in this this whether the particular tires were fit for the remedy clearly fits facts. There are by Bridger: genuine facts, issues as to these and sum- “Q. your opinion, So apparently, is not judgment mary should have been going to be that tire defectively granted theory as to this of recovery. designed or manufactured? “A. That’s correct. ^[******] exist genuine We also are satisfied that there do issues of material fact Yes, you “A. vibration respect question have re- negligent failure gardless type just tire. It’s to remove the tires. Michelin and Cobre 'particular assert, that in this matter, case we had a preliminary that this tire that was on this machine should considered gave and it McLaughlin excessive vibration which court because failed to raise it resulted in loss control. before the trial court. It is true that this

«9 genuine A for would under the circumstances. questions raised will not consider court Valentine, appeal, of material fact is structured first time on issue scrutiny of presented this record but should been record that have McLaughlin presented the for jury a determination this instance. discloses negligent failure to remove theory of We, therefore, conclude that the district court. tires to the trial granted summary improperly court negligence, judgment theory on that of and involve mixed Negligence usually cases the case also must be reversed concerning the questions of law and fact reason. of duty, a the standard existence of that is person, required a care of reasonable granted by summary judgment The cause, ordinarily and such cases proximate respect to district court is affirmed with adjudica susceptible summary are not McLaughlin’s recovery theories of founded Wilson, 701 P.2d 559 v. tion. Kobielusz design or of negligence in manufacture Anderson, 554 (citing (Wyo.1985) Keller tires, products liability in these tort (Wyo.1976)). See also O’Donnell P.2d 1253 tires, respect to these breach (Wyo. Casper, 696 P.2d City express warranty implied an warran- 1985). by McLaughlin that allegation The ty merchantability. The failure of negligent in fail Michelin and Cobre were McLaughlin produce evidence of an actu- ing only a presents the tires to remove prevents recovery al defect under those opposed to a simple negligence, as claim respect as a matter of With theories law. question The products liability claim. failing to the theories of it was reasonable Michelin whether remove the tires and light to fail to remove the tires Cobre particular purpose, we do of fitness á unsatis the information it had about their genuine issues of material fact find factory performance. presentation jury. to a justify record that recovery, Under this remanded for case is reversed and Michelin material whether and Cobre proceedings with the further in accordance complaints McLaughlin’s knew opinion of the court. tires. Bridger’s dissatisfaction with these poor operational complaints about the URBIGKIT, J., specially a filed period spanned of the tires characteristics dissenting opinion. concurring and complaints twenty-six days, and those URBIGKIT, Justice, a reason- persuade specially could a trier of fact that person dissenting. would have removed the tires concurring able injury. That fact McLaughlin’s before duty might also conclude that

finder APPEAL STATUS OF CASE ON I. by the failure of Michelin was violated summary judgment on Following adverse prior the tires Cobre to remove claiming serious scraper driver’s lawsuit McLaughlin’s McLaughlin certain- injury. by improperly per- physical injuries caused prudent argue reasonably ly could that a tires, forming court consid- equipment this complaints such as person, confronted with asserting liability claims ers his dismissed these, the tires from would have removed for: failure, to so scraper and that the do manufacture negligent 1. of these defendants’ constituted violation (Michelin);1 person the manufacturer reasonably prudent tire duty to act addition, testify con- will presented by these the record witnesses factual issue is Corpo- cerning of the earth mover appellee, the classification specific Michelin Tire whether ration, industry as work designed when used in reclamation either manufactured ** opposed transport machine subject to a machine radial tire which is the XRDNA tires, for unit 699 litigation. supplemental and that choice In a witness this Tire years appropriate. Also that Michelin designation about two statement made started, Company manufacturer of litigation advised in Michelin after designed by testimony Manufacture Frances prospective It was regard of a witness: tire. 2(a). liability injury producing for design strict facture and of Corpo- Michelin Tire performance faulty product (Michelin); aof (Michelin); liability ration strict —Michelin Tire; implied and warranty Cobre of mer- 2(b). for liability injury producing strict chantability Tire; and Cobre and performance faulty product (deal- of a —Michelin express warranty and Cobre Tire Tire); er/supplier Cobre —Michelin and then implied reverses trial court on 3(a). express warranty product of the warranty purpose of fitness intend- (Michelin); ed as to both the manufacturer and dealer 3(b). express warranty of the delayed and removal as to (Cobre Tire); both and I manufacturer dealer. concur in 4(a). implied warranty violation of fit- summary judgment reversal decision purpose (Michelin); ness intended implied warranty trial court of' 4(b). of fit- violation purpose negli- intended and fitnessj (Cobre Tire); ness for delayed gence removal. I concur also lacking facts were as sufficient 5(a). (Michelin); failure warn deny summary judgment express war-

5(b). (Cobre Tire); failure warn ranty application. 6(a). negligent (Miche- delayed removal lin); and II. ISSUE OF DISSENT

6(b). negligent delayed (Cobre removal Tire). my disagreement This leaves for and dis- summary sent judgment absolution granted summary

The trial court judg- negligent claims of manufacture ment on all eleven de- majority claims. The sign summary by judgment liability affirms Michelin and strict for fur- resulting claim denials faulty nishing faulty product from the and Co- —Michelin complaints tires for negligent manu- Tire.2 bre Pneumatiques by 795, ley Corp., manufactured S.A. Neu- v. Michelin Tire 99 A.D.2d 472 máticos Michelin. (1984); Ilosky N.Y.S.2d 125 v. Michelin Tire subsidiary This affiliate or manufacturer sta- (W.Va.1983). Corp., 307 S.E.2d 603 by tus was neither addressed affidavit nor made relationship Since the differentiated between subject argument a ry judgment. in the motion for summa- pursued marketer and manufacturer was not Goodyear Cf. Torres v. Tire & process appellate briefing, trial court it is Co., Inc., (9th Cir.1989). Rubber 867 F.2d 1234 purposes assumed for of this dissent that Re scope This record and the of Michelin Tire suggest (Second) statement Torts § 400 inclu Corporation litigation that this applied sion can be as the of the case. See law appellee is ah American tire distributor and that (Second) Torts, 400, supra, Restatement probably actual manufacture is done affil puts which states that who out as his own "[o]ne Europe. special iates or subsidiaries in a chattel manufactured another is particular order status of these tires makes this subject though liability to the same he were coverage case unusual within the broad of a Sears, Laaperi its manufacturer.” v. Roebuck & considerable number of defective tire cases of Co., Inc., (1st Cir.1986); Connelly 787 F.2d 726 represented which Michelin is part to in Inc., 393, 343, Uniroyal, v. Ill.2d 75 27 Ill.Dec. clude: Corp., Sears, Johnson v. Michelin Tire 812 F.2d (1979), appeal 389 N.E.2d 155 cert. denied and (5th Cir.1987); 200 Edwards v. Roebuck dismissed U.S. 100 444 S.Ct. 62 (5th Company, Cir.1975); 512 F.2d 276 738 L.Ed.2d Corp., Rhodes v. Michelin F.Supp. Tire 542 60 (E.D.Ky.1982); v. Corp., Cavallaro Michelin Tire manufacturing The distinction between de- Cal.App.3d (1979); Cal.Rptr. Al design explained by fects and defects has been C-325, 979, Corp., exander v. Michelin Tire No. many legal scholars as well inas numerous (Cal. Angeles PLLR County Super.Ct. Los judicial opinions. explanation A clear 1985); Jensen v. Tire Michelin No. Henderson, given by (Cal. Professor James Jr.: Orange County Super.Ct.1983); PLLR 11 “Manufacturing imperfections flaws are Corp. Crawford, Ga.App. Michelin Tire 359, inevitably typically per- (1984); occur in a small 317 S.E.2d 336 St. & Paul Fire centage products given design Corp., Marine Ins. Co. v. App.3d Michelin Tire 12 Ill. fallibility (1973); result of Vaughn manufacturing 298 N.E.2d 289 process. Corp., Michelin (Mo.App. Tire A flawed S.W.2d 548 does conform 1988); significant Corp., aspect Coulter v. in some Michelin Tire to the intended (Mo.App.1981), S.W.2d 906, design, great cert. denied 456 U.S. nor does it conform to the ma- 102 S.Ct. jority products L.Ed.2d Co- manufactured in accord- my unquestionably perform denial and dis- The tires did not majority’s Within satisfactorily following negligent initial installation manufacture on issues sent attempts modify performance presented in a and strict are ways general also failed. number concepts the most fundamental application, as later indicated in the result- liability negligence, — ing injury, appeared accident and warranty. reasoning why It is the stability the tires lacked sidewall for the majority to and I chooses insulate usage of and ballooned and con- character responsibility for bad tires and con- select causing tracted forceful vibration and sequent injury analysis during shaking equipment hauling concepts and rough operations. particularly On a dirt presents our serious differences. pass, bouncing ballooning pick up and catapulted appellant, like of the tires a IN III. RELEVANT FACTS SUMMARY bull, a framework rider on Brahma into the REVIEW JUDGMENT resulting glass scraper and cab permanent complex injuries, his which be- summary judgment appeal, a Within this subject physical injury came the of this relatively simple course events lawsuit. trial, although presented; at the entire sce- including likely With factual record factually nario would contested. be evidence of tire Bridger continued notice disclosed failure Management Company for Coal given performance to Tire and both Cobre producer, (Bridger), strip mining coal Michelin, summary are called to test the we pro- might wondered whether radial tires products liability, judgment decision that benefit, provide part to a softer ride vide negligence warranty liabili- claim of the usage operator equipment, for and for on ty appellant Tire to of Michelin and Cobre large scrapers, in earth mover this case alleged it is cannot be stated when 631D, Caterpillar model unit number factually supported by that: evidence McLaughlin, appellant, Fred the nor- mal Tire operator for that unit. Cobre purpose 1. The which the were tires Bridger supplier a tire under contract to on to be used were known to Michelin and arrangement. purchase an needed tire purchase; Tire advance of Cobre Bridger Tire and first discussed the Cobre re- 2. The character of the work experimentation radial and Cobre tires usage known to quirement tire was also Tire then went to to see what Michelin on-the-job Michelin for ex- Cobre Tire and product they might have which could be testing previous on perimental use without applied strip usage mine operation kind equipment result, facility. Bridger As a Michelin tires favorably, if addi- anticipation that tested testing experimenta- provided for were of like could be mar- tional tires character tion for front installation on the Cat- wheel company; keted to the coal erpillar scraper, as as another brand well long experiment 3. The too continued equipment. No of radial tires other and, perform prop- in failure of the tires history prior use of this brand of Miche- resulted; erly, appellant injury equipment type lin of this strip mining operation not suitable for the heavy character 4. The tires were experi- recognized faulty existed. It was were circumstance; the tires. in that ment with used design.... design cording or marketed in the the other to the same [On anee with that hand, design products with a are same manner." Henderson, defect] un- usually dangerous because of the manner in Judicial Review of Manufacturers’ Design Adju- they designed Conscious dication, Choices: Limits which fore, are or marketed. There- (1973). product defectively designed] 73 Colum.L.Rev. con- [a Comment, design Liability: The Problem the forms tially the intended and is substan- Product Dayton Manufacturer, Non-Designing aspects 9 U. identical in relevant to all the manufactured ac- L.Rev. 81 n. other unflawed manufacturing 5. Rather than a cap is affixed. Unfortunately, danger was encompassing production created abnormal charac- sale of the tires for use on teristics, equipment for appropriate testing the “defect” was a which result previously had not compari- been performance from the characteristic of the made. extra-heavy son would be if tires which had loaded car- been untested use for tridges designed for special weapons were they perform- which sold and lacked a Saturday-night sold an owner of spe- ance sufficient characteristic to avoid dan- designed A properly cial. product for a ger and ultimate users of the very confined might extremely use become product. dangerous supplied if to and sold It is within this factual framework dealer for inappropriate local use in the summary judgment determined for sta- handgun. Tragic might results realistical- majority tus' denies as review occur, ly although buyer would never negligence Resign matter law that can cartridge aware that the he purchased applied, liability be fór that strict performance had a great characteristic of causing injury inapplicable, is and that the danger usage. for his merchantability warranty of cannot impressed. V. CONFLICTING THESIS OF DISSENT IV. MAJORITY DECISION improvidence The majority of sequi- non covering, Shorn of facade and the basis tur inis denial that a defect in the Michelin majority’s simplistic decision is in attempted tires occurred with use as the separate application to each of the denied specific purpose for they which were ac- recovery It the theories. is thesis that if quired. I agree cannot in any concept that the tires performed properly have wrong product is not defective usage, somewhere in a different they are purpose for the liability strict or for case, though without defect in this even negligence in design or manufacture. It is completely unsuitable here. Defect is de- recognized sequitur that a similar non general suitability use, fined as a for some by stated Buckley Bell, this court in although completely pur- unsuitable for the (Wyo.1985)but, see, P.2d 1089 we as shall pose they for actually which sold in the cases cited in support proposi- of that the Defect, case where the resulted. tion do not fit the broad statement made opines, the majority apparently requires a here where the tires were sold for a de- any usability denial of standard as a mis- and, purpose fined when furnished to the ignores take in manufacture and de- either buyer, required performance in failed even sign purpose defects defects for the for regularly used. The fact sub- which the illogic sold. The in may marine properly designed usage for posture and the inconclusiveness in water does not mean that it is without application in injury to cause and effect is defect for substitution as a tank. Most absolutely astounding. apparent This is in likely, the converse would also be unwork- summary reversal of judgment denial of dangerous able and to the user. Conse- the of liability claim for breach of quently, strange conception of the ma- purpose fitness for the intended while jority only provides equation half for affirming on dismissal the issue of defect logical analysis. The denied half second for strict liability negligence. The ob- equation merchandising is for an in- served defect in warranty consequently is tended prod- which use excluded as a basis a defect dangerous uct was prior because of lack of for tort. testing improvidence design. No question one is called within this concept Not dissimilar in infusion record that these danger tires did create litigation recently resulting major though even used for the purpose for injuries in the use all-terrain vehicles— they dynamite, were sold. Like dan- catastrophe the ATV disabling injuries. ger does percussion exist unless the See Antley v. Corp., Yamaha Motor majority present U.S.A., (La.App.1989). Use which this extrudes its 539 So.2d and with ATV on level surfaces conclusion defectiveness confined to chasing speeds in the character casual in character and not deviation failure grassy fairly safe golf courses balls assigned performance purpose. I would vehicles, however, are to the user. reject authority for this deci- Buckley go significant at terrain and sold all First, sion on bases. five three-to-two expected use and antici- speeds. is in the It logic analysis applied decision lacks speeds pesti- pated designated Second, any regard. the decision fact inju- of thousands of serious lence tens distinguished in can be ratio decidendi products liability litiga- pervaded ries have wrongrproduct concept only dictum product is both defective and tion. The Third, analysis. precedent in broad anticipated use, although dangerous in Buckley support cited conclusion accurately foreign manufacturer assures support made in will not the conclusion buyer operate prop- will that each unit Fourth, analysis. Wyoming’s more factual capacity, high speed. full erly to its adopting first recent cases in destroyed man of the absence straw supercede Finally, Buckley. in essence similarly fallaciously employed of defect is special present order status of this case is deny majority statement differentiating analysis. fundamental in recovery on the thesis of both claim implied warranty of mer- Buckley, 703 P.2d at issue chantability. though purchase for an Even stated the court was “whether fore- applies directly use intended and committed plain- negligent a seeability conduct for the to for fitness occurring subsequent negligent tiff agrees intended, majority wherein the question acts a defendant is law concept of the application sale me portion of question of fact.” That use, specific not for a that does extricate proximate Buyer case addressed cause. availability warranty of merchanta- gas gas hay his motor had ordered for parameters bility since it is within fuel. In baler and was furnished diesel commercial transaction that merchant- fuel from the machine purging the diesel ability may purposes defined. There is removal, backfired, ignited engine after may for still be merchanta- which asbestos up gas ground available burned ble, certainly as school insulation. but not issue contention explica- the baler. The second denies the Defect for intended use merchantability general erroneously when that tion of trial court concluded that the special in advance. Is a order use known a defective diesel fuel could not be perform? if not product defective it does (Second) of product under Restatement trap defective when sold to Is a mouse (1965). opinion The con- Torts 402A § pack which are known catch rats had been sidered that the restatement .22 shot or anything but a resistent was foreclosed from adopted and the court pump fluid blast? Is the .410 adoption as there stated: because suitably it work with crude oil when will First, the district our conclusion it for which had been but not for molasses accurately resolved causation court logic, every product In the nature of sold? any application prevents factor function, albeit as a door- has some useful Second, liability. of strict even concept stop, every product has uses for which argument appellant’s in view gasoline like inappropriate, it is from can product is to be con- if an adulterated work, fireplace may fire. It used start a defective and lead to sidered may bum more than the wood but unreasonably dangerous then a fireplace. one

wrong product is which should be DE- THEORETICAL VI. WYOMING’S totally pur- adulterated considered V. BELL PARTURE BY BUCKLEY determining whether it is defec- poses of tive, we have discovered the authorities starting point analysis requires wrong product say that a Buckley, seem revisit purposes a defective of strict upon There are four cases which the liability. Baptista v. St. Wyoming Barnabas hung law is now as derived from Center, N.J.Super. Medical 262 precedential in Buckley. Bap inclusion (1970), A.2d 902 affirmed 57 N.J. Center, tista v. St. Barnabas Medical (1970). See Berkeley A.2d 409 also N.J.Super. 217, 262 A.2d 57 N.J. aff'd Pump Reed-Joseph Co. Land (1970), 270 A.2d 409 a blood transfu (1983); Ark. 653 S.W.2d Montez operation may sion have caused the death. Company, v. Ford Cal.App.3d Motor Improper cross-matching may have caused Cal.Rptr. and Dam record, problem. blood On the Mallis, bacher Dambacher v. [336] blood was wholesome and free from inter Pa.Super. [22], 485 A.2d 408 Fi nal defects hospital recog and the followed nally, prod it does not seem that a strict practices testing. nized standard liability theory recognized ucts as an appellate adopt court refused to a rule that appropriate recovery vehicle of an would loss, economic which is only injury hospital make a an insurer of what are in light instance the resolution of opinions, essence medical services and the causation Engineering factor. Hart * * obligation *. The hospitals Company Corporation, v. FMC cross-matching typing blood in cases F.Supp. (D.R.I.1984). Singularly of blood transfusions should continue to collectively concepts any these foreclose now, grounded be as it is expressed reliance the doctrine strict liabili duty in a to exercise compe- reasonable ty (Second) as articulated in Restatement tence and care. Tort, 402(A), in this case. Id. 262 A.2d at 907. The factual difference Buckley, 703 P.2d at 1094-95. reasoning between the employed and the Consequently, the trial court resolution decision principle made and that defec- independent came on proximately cause wrong product tiveness is not a is self-evi- causing damage proof and failure of dent. inquiry The area of was reasonable product. defective The decision in first effort to determine the kind of blood re- discussing proximate cause and the reason quired and furnished. ing logic employed has no application Berkeley Pump Co. v. Reed-Joseph Simmons, England here. v. 728 P.2d Cf. Co., 384, Land 279 Ark. 653 S.W.2d 128 J., (Wyo.1986) (Urbigkit, dissenting). (1983) capacity designated irriga- involved A analysis Note, fair of the case is found in pumps. tion water Performance was not Torts —Should Intervening a Plaintiffs quantity achieved in produced. The user Act Be An Absolute Under Com Defense by purchase was sued the for price. dealer parative Bell, Negligence? Buckley v. The user damages counterclaimed for re- (Wyo.1986), P.2d 1089 XXI Land & Water sulting from production insufficient L.Rev. It is the two- second the dealer third-partied in the manufactur- paragraph disposition prod of the defective performance er whose curve statistics had (Second) uct definition under Restatement complete been used to the sale. User re- Torts, supra, 402A that Buckley $680,000 covered about and the dealer was presents Buckley, relevance here. indemnified the manufacturer and also analyzed two proximate dissents cause litigative awarded costs. The dealer concept was improperly applied to have been given judgment pump purchase price. pursue and did gratuitous address appeal, On opinion argued manufacturer regarding that the nature of de liability strict applicable fect and was not question of in conten- damage, economic (1) tion: peripheral problem product, spite where the of any now also comes condition, to this court in yet appeal. another does not constitute Conti nental Company danger person Insurance v. Page Engi unreasonable or property, neering, (Wyo.1989), (2) No. 87-295 pend now absence persons, ing in this court. purely such defect causes economic loss. That is not relevant for Buckley case “no evidence appellate court found That pumps citation. Berkeley’s that the defectiveness dangerous inadequate rendered them — cited, By The last case Dambacher Dam danger- sure, but not dysfunctional, to be 22, Mallis, Pa.Super. bacher Co., Pump 653 S.W.2d at Berkeley ous.” (1984), appeal A.2d dismissed 508 Pa. no has relevance to That decision also (1985), A.2d 428 is one of a line present since issue con- review providing comprehen Pennsylvania cases dangerousness sidered was unreasonable liability. analysis products sive Dam- presented. It deter- not to was as found interestingly a case which in bacher appeal pumps “not on mined issue, simple volved a radial tire. but Fur- dangerous.” 653 S.W.2d at 132. Id. very comprehensively pursued, was “that thermore, the decision of breach additional the tire was was not defective because of fitness for warning not mix it with embossed with a knowledge suppli- requiring by the tires, other non-radial that the accident brought that into ac- case er/manufacturer was mixed with occurred because tire positions all now advanced cord with A.2d at 411. non-radial tires.” Id. 485 this dissent. qualification decision on the ex rested California, The third case cited is pert used witnesses which had been Cal.App.3d v. Ford Motor Montez plaintiff’s successful verdict further (1980), Cal.Rptr. where analysis proper instruction considered the said: court first question for retrial. The technical personal in an action for A happens tire is mixed what radial liability

injuries in a case passenger on a vehicle with non-radial tires proceed on required to elect whether a “mixed fitment.” Id. at 414. The tort or appellate first denied court Dambacher theory of where the instruc judgment not with the dealer’s motion will not be tions on the two theories standing the reversed re verdict and (Jiminez confusing jury. trial instead. That court then determined Sears, Roebuck & Cal.3d Co. qualified expert testimony was re 681.) Cal.Rptr. 482 P.2d proxi mixed quired that the fitment was appeal At issue whether mate cause of the accident. plaintiff’s negligence rejection of court’s example, a bot- Suppose, for sells decision to instruct instructions B, pours B the drink tled drink to jury solely prej on strict ice-cubes, glass filled becomes into a udicial error. ill, selling product A for a de- and sues failed to label Factually, injury resulted from miss fective because bottle's warning mix the drink ing driving, a in include a not to perhaps curve a 59 mile out a B not make per speed operation safe ex with ice-cubes. will hour where he proves that only per jury 17 to hour case for the unless tended 27 miles drink did in mixing “[plaintiff's case was limited to a man ice-cubes with mixing did not rely on ill. If the ufacturing defect. She did not fact make him ill, no need to warn the failure B was either a defect in or make there against mixing, therefore no de- Montez, Cal.Rptr. An at 582. warn.” sustained, Assuming, label. jury al fect in the bottle’s adverse verdict was however, appellees are able to though a defini appellate that court said that proximate present competent tional instruction for defect should evidence have trial, is, they a that do at new that given jury but the was not confused cause been testimony qualified experts, capable jury in its “the offer absence since appel- issue then arise whether determining a defect fact will whether because it Their lant’s radial tire was defective upon existed based the evidence. warning not with a amply not was not embossed conclusion that one did exist with non-radial tires. supported by at 583. mix it the record.” Id.

event, by being re- what will be the trial court’s lished for its unsafe intended use sponsibility? nothing wrong product and has to do with directly absolution which would have been Id. at contrary to its remand See result. also inadequate warning Dambacher was dissenting concurring Justice Wieand’s here, concept presented not case as a but opinion he clearly recognized where stated: opinion that court text use intended was a direct constituent A product may also deemed be defec- responsibility of the zone of within strict though comports tive even it in all re- liability concepts. spects design. may its intended It liability case, In a such as because a defect in the de- case, contrast, the defendant —the sign product. of the In Azzarello v. supplier prod- manufacturer or Co., supra Black Bros. Pa. [480 “effectively uct—is an “insurer” but (1978)], Supreme A.2d 1020 Court guarantor safety.” product’s of his supplier provide held that prod- must Co., 457 Pa. Salvador v. Atlantic Boiler designed uct “which is to make it safe 24, 32, (1974). The 319 A.2d for the intended use. Under this stan- prove plaintiff must therefore dard, the jury may find a defect where product that caused his was defec- product supplier’s left the control tive, or “unsafe its use.” lacking any necessary element it to make If Id. the defendant were the insurer of possessing safe for its intended use product, would follow any feature that it renders unsafe for its finding injured intended use.” using product:

while the fact that injury occurred lead to the conclu- Id. at 433-34. product sion that the was unsafe in some brings This reference into focus the way. jury But the is not to find Pennsylvania course of earlier cases includ- product way; when the is unsafe in some ing Co., Inc., Azzarello Black Bros. liability may imposed only proof Pa. 391 A.2d 1020 and Berkebile product that the lacked an element neces- Brantly Helicopter Corp., 462 Pa. sary to make for its intended use. safe * * * recog- 337 A.2d 893 Those cases was defective and that the defect caused tiff must facturing his defendant failed to exercise due care. Finally, injury, ^[******] prove, in a but supplying addition, only that the case that manu- plain- at 1026 further said that “we must A.2d tion, but rather nized that defect look to whether the fault or blemish in manufacture or fabrica- ger” intended use.” usage. Intended use is The court in addressed status not limited Azzarello, is safe for its consequent- to a “dan- flaw, ly dangerous- intrinsic in consideration of 424 (emphasis original). Id. at particularly ness and this perti- becomes That court then part announced as nent special as here when we have order proposed instruction: confined, product supplied for narrowly “This you means that must decide wheth- known, explicit Wade, use. See On the er, plaintiffs contend, as the the radial Liability Nature Strict Tort Prod- supplied by tire the defendant was un- ucts, 825, (1973), 44 Miss.L.J. where safe its intended use because it Professor Wade stated: warning lacked a it that should not be you mixed with non-radial tires. If find “something wrong” may have come warning, that because it lacked such a quite unintentionally about because of a use, the tire was for its unsafe miscarriage manufacturing pro- in the you then should find it defective.” cess, product so that the not was what it Id. at be; may, was intended to it on the other hand, about, Consequently, though have come Dambacher stands for even the the proposition that product defectiveness can be exactly estab- was as it was intended to EVIDENCE OF DEFECTIVENESS be, design or the fail- VII. poor because warning in- or suitable ure to attach a uses, product designed specific is structions. if it made properly is but unsuitable use, design faulty. In for its intended is recognized: further The author Inc., 30, Or.App. Meyer, v. Smith Fred something gone only when has is [I]t (1984), 687 P.2d the court ob- manufacturing process wrong the with served: product is not condition product If a is unsuitable for its intended that is it to be there which was intended use, unreasonably result is dan- and as a In significant the case difference. gerous, the correct is inquiry then wheth- improper design which makes manufacturing er there is a dangerous, enough is product whatever defect, not whether manufacturer dangerous that it is that strict to show so should have warned the defect. * * * liability apply should will also be Oregon con- by This court is statement enough part to on show general defining sistent standard with if Even the manufac- the manufacturer. to product a it fails to be danger is not created turer aware of perform reasonably safely function negligent design, is in not by the bad he v. for which it was intended. Valentine learning it. Corp., 665 P.2d Exploration Ormsbee omitted). (footnote (Wyo.1983). at 836-37 Id. necessary prove specific is to It history of Buckley The more recent defect, proof of the failure and while strength no its defectiveness defi- lends to standing alone malfunction of an article credibility. has since nition Strict prove product insufficient adopted Caterpillar Trac- Ogle v. been defective, strong is a circumstance it (Wyo.1986). only 716 P.2d tor along remaining facts. consider with Buckley in that case reference was: Valentine, Valentine, 462. In 665 P.2d at argue First, they [manufacturer] quoted approval P.2d we liability in tort is not available as a strict Wright in Tweedy rule v. enunciated Wyoming action in since this cause of Inc., Sales, Ill.2d 2 Ill.Dec. Ford adopt the court has declined to doctrine (1976): 357 N.E.2d e.g., Buckley See several occasions. prima “A facie case that a Bell, Wyo., 703 P.2d v. existed defective and Ogle, 716 at 341. Bettencourt control when left the manufacturer’s Inc., Service, 735 P.2d 722 Pride Well proof that made the absence proxi cited to (Wyo.1987),the case was secondary use or abnormal reasonable rule. dissent perform mate cause In a Mostert failed ‘to causes the expected in Associates, (Wyo. reasonably 741 P.2d & manner CBL func- light and intended nature 1987), intervening it was cited for an cause [its] ” tion.’ case, In this court’s last discussion. Sims Corp., 751 P.2d 357 v. General Motors Sims, To similar 751 P.2d 357. See also second (Wyo.1988),which was the case 1 American language found at effect Liability at 13 Buckley 3d 3:5 liability, no citation apply Law Products Furthermore, (1987): included at all. no other opinion found to cite the found defective state has cause For action, not al- it is authority.3 dangerous Buckley nor defective because included ther 3. None four cases that it oil and authority party to know was fuel opinion were cited either had come occurring appeal gasoline accident appellate briefing before the and the in concept authority Gree happened. of of product The citation that a unsuitable 57, Products, Inc., directly Cal.2d faulty nmanv. Power cannot ar- Yuba 697, (1963) conjunc Appellee, P.2d 897 gued appellate presentation. Cal.Rptr. as dis- tributer, argued only product tion that statement informative. that the was nei- ways proof necessary having that there of a After examined the tires involved accident, having in this specific, particular underlying defect. If witnessed performed the various tests at the scene specific no of a evidence has having of the accident and also examined design defect in the or of manufacture Largent photographs depicting the product, plaintiff may offer evi- accident, opinion scene of the I am of the dence of malfunction as circumstan- * * that there no design defect in either proof product’s defect; tial *. or manufacture of the Michelin tires in- [Footnotes omitted.] upon stalled unit which Mr. Co., In v. BF 153 Ill. Stewart Goodrich McLaughlin injured. 1078, App.3d 40, 107 Ill.Dec. 506 N.E.2d addition, In Michelin excerpts submitted 785, 576, 783, appeal 116 Ill.2d denied deposition Lipari, from the James (1987), Ill.Dec. 515 N.E.2d 127 Bridger employee, indicating appellant’s court said that evi circumstantial “[f]or scraper precipitated had hit rock which case, prima dence to make out facie bouncing resulting in the accident. negate must tend to other reasonable Also, excerpt Michelin submitted an causes, expert or opinion there must be an deposition appellant's expert, Dale (Empha that the was defective.” Bussman, in which Bussman indicated that original.) sis in It has also been held that he could not identify specific “[tjestimony operator the user or of the manufacturing defect. product as to the circumstances of the opposition In summary to the motion for event is sufficient to establish malfunc judgment, appellant depositions submitted tion.” Farmer v. International Harvester employees supervisory personnel 97 Idaho 553 P.2d Bridger representatives depositions Brockway See Clarke v. Motor Tire, stating of Michelin and Cobre all Trucks, F.Supp. (E.D.Pa.1974) immediately upon replacing prior bias Engineering Greco v. Bucciconi Co. v. tires with the scrap- Michelinradial tires on Engineering Co., F.Supp. Wean performance er problems with (W.D.Pa.1967), (3rd 407 F.2d Cir. aff'd experienced reported. tires were 1969). Farmer, In 553 P.2d at evidence indicated that no com- similar Supreme Idaho Court said: plaints problems reported were observed A distinction need not be be- drawn Bridgestone as to the contempo- radial tires tween a “defect” and a “malfunction.” raneously scraper Appel- installed on Proof of malfunction is circumstantial ev- lant, in deposition, his testified that he im- idence of a in a since a mediately opera- noticed a difference ordinarily will not malfunction tion of scraper upon installation contemplation within the reasonable Michelin tires on March 1983 and that consumer in the absence aof defect. reported he problem to his supervisor at the Appellant first opportunity. stated that the new tires caused the machine to VIII. PRESENT EVIDENCE vibrate, bounce, thing whole “[t]he OF DEFECT would shake.” In general authorities, accord with the I depositions Bridger other employ- foregoing syllogism follow supervisors ees similar effect. product sold for an intended function or They operators indicated that all the who performance purpose, defect is failure scraper complained drove about the performance. support their mo- bounce and vibration after installation of tions for summary judgment, Michelin sub- Lipari the Michelin tires. James testified mitted and Tire Cobre relied on the affida- that six operators complained had of “en- vit expert Sons, witness Charles a tire bouncing” prior hanced weeks expert who had Caterpillar worked for man, accident. Cobre Tire’s on-site tire Company Tractor years. Larry Farwell, over 25 In his testified he received affidavit, Mr. Sons stated: complaints performance about the tires’ accident, the a test was conducted on tires days of their installation a few within removing supervi- by scraper them from relayed information to his he the Moe, placing scraper Op- on 696. sor, Gary them identical Kenneth and to Workman Webster, City. erator Justin who then drove in Salt Lake Workman of Michelin scraper during that varying pressure, the tire test with the recommended air it, on Michelin tires testified that “with the done with no noticeable curative which was it, they tires would—it that he rode in Michelin on effect. Farwell testified fast, near on 30 and wouldn’t smooth out and it scraper appellant with March the feeling losing gave of control bumpy, with the vibra- me a a bit found the ride it, bump or continuing. reported especially sharp on after a problem Farwell tion hole, losing suggest- like I it a it would feel was this information Workman who Larry Largent, a supervisor little bit.” removing scraper the from 699 and ed tires test, Bridger, testified the stat- April also about trying machine. On them another ing scraper accident, Moe, 696 bounced and vibrated 4, 1983, day the before put more tires on it when Michelin manager, instructed Cobre Tire’s division than it had before. from remove Michelin tires Farwell to replacement scraper as soon as some testimony, appellant In addition this Moe, deposition, tires were received. his deposition of mechanical en- submitted he the tires removed stated that ordered Bussman, expert gineer, Dale as an wit- of “customer satisfaction.” reason the tires ness. Mr. Bussman testified that atmosphere operational problems placement of these were defective the circumstance of combined similar to wrong scraper applica- tires on 699 was Greco, F.Supp. problems found seemed to tion for the tires. Bussman also being the tire draw a distinction between accident, appel- date of the while On the designed opposed to unsuita- defectively doing lant reclamation work use, discrepancy ble their intended and fill scraper 699 to remove overburden Again, Tire. I noted Michelinand Cobre Nichols, from depressions, operator Keith a dif- perceive this as a distinction without just pri- appellant’s scraper observations event, viewing the In evi- ference. accident, every time stated that light appel- dence in the most favorable bump appellant hit a rock or lant, following I note the observations flattening tires were deflected and deposition: by Mr. his made Bussman out to the extent that distance particular case just It’s that in this we only tire to the rim was bottom of the tire that on this had a defective inches, they then six about it gave machine and excessive vibration the distance from the spring back so that loss control. which resulted in a rim to of the tire was two and the bottom one half feet. In describing accident, Lipari said * * * Now, # # relative ^{[*] [*]} question of # # manufacture, past making his it was a defective “he me cut. whether came down * * * this, mean, know him, maybe I I don’t Keith came behind [Nichols] —and matter, we thing really I and it because I knew could see the doesn’t next excessive vibra- bouncing gave I the tire scraper real hard. saw know perhaps it particular tion in Appellant, times.” three four bounce case— manufactured, okay, I scraper defectively deposition, his said “[t]he really I don’t care. down, And that. sideways up and bounced don’t know shook gave the tire excessive I can All I is that really describe it. know and that’s all * * * the loss of resulted in running I that on either over a vibration which feel hole, bouncing or in a it started side- control. rock

ways.” the evidence sub- presentation where alleged regarding the defectiveness mitted

Lipari testified that after the acci- also conflicting, appel- dent, shop of the Michelin tires was scraper 699 back to the he drove opposition excessively.” lant’s materials submitted After the “it bounced summary judgment danger beyond the motion for standard of the user con- surely genuine templation. sufficient structure a is- sue material fact as to defectiveness. In the case is which be.dangerously

claimed to be- defective IX. DEFECTIVENESS AS STAN- misdesign, process cause so

DARD WHERE USE INTENDED easy as in the case of mismanufacture.

IS SPECIFIC All design made to that are question same. The whether the Products, Greenman Yuba Power dangerous design unreasonably can be 57, 697, Inc., Cal.Rptr. Cal.2d by only taking determined into considera- (1963)presented shopsmith P.2d surrounding tion the circumstances and that, woodworking machine without manu- knowledge at the time article was defect, facturing demonstrably dan- was sold, determining therefrom whether gerous when used for its intended reasonably prudent . manufacturer design: as a matter of designed would have so and sold the Plaintiff introduced substantial evi- question article had he known injuries dence that his were caused risk injured, plaintiff. involved which design and construction opinion noted, Id. further Shopsmith. expert His witnesses testi- although the involvement of defectiveness inadequate fied that set screws were may same, be the that the issue has been parts togeth- used to hold of the machine concerning raised in some courts whether er so that normal caused the vibration in this context there is a distinction be- away tailstock of the lathe to move from liability negligence. tween strict piece being permit- wood turned which proves evidence the one will almost ting it fly out of the lathe. if always, always, prove . the other. carriage Whether set screws vibrated opinion It is our that the evidence was loose the tires in case this bounced ex jury sufficient for the to find that a cessively makes little in liability difference reasonably prudent manufacturer, know- injured by when the user ing that the machine would be man- fed step occurrence. An access for the use of having ually and the constructive knowl- up climbing Caterpillar the driver in on a edge of its propensity regurgitate thin presents opportunity tractor likewise an ones, sheets when it was set thick liability assessed negligent design which via courts have collected mud user it, imposed upon would have warned slips injured. and is v. Cater Gonzales plaintiffs employer either to feed it auto- Co., pillar (Tex. Tractor 571 S.W.2d 867 matically safety device, or to use some 1978). judgment See affirmed on remand that, warn- absence such a Caterpillar Gonzales, Tractor Co. v. ing, the dangerously defec- machine (Tex.Civ.App.1980). 599 S.W.2d 633 A sim tive. ilar result was obtained in Phillips v. Kim See, however, Id. at analysis 1038-39. wood Mach. Or. 525 P.2d 1033 general development difference (1974), although the case turned on the Henke, Keefe Knowledge Presumed duty to operator injured warn. The Danger: Legal Fiction Awry?, Gone a fiberboard sander when the machine re Seton Hall L.Rev. gurgitated a opera sheet back out into the operator manually tor case, where appellant feed Likewise could ing since the automatic feeder attachment have oper- been instructed to slow down his purchased. had not been That court con speed undoubtedly ational unacceptable — sidered a seller-oriented use-oriented the mine where quantity owner of mate- standard —where strict either “im rial everything. moved is See also Cater- poses what amounts pillar Beck, constructive Tractor Co. knowledge (Alaska product,” 1979), the condition of the 884-85 where the court Id. 525 P.2d at or the adopted user-oriented a test Engi- from Barker v. Lull Co., Inc., challenged outweigh fits of neering Cal. 20 Cal.3d danger 443, 454, the risk of inherent such 573 P.2d Rptr. design.” stated:

The Barker test represents compos- Barker, Id. at 886 (quoting 573 P.2d at features each ite of the most 452). workable prong other The first the tests. definition, appeal could be case product is defective-

Barker test—that a special presented confined facts of designed perform if “to as ly it fails per- order which fails in the merchandise ordinary consumer would safely as an anticipated Generally, formance usage. in or in an intended rea- expect when used however, the unfortunate divisiveness incorpo- sonably foreseeable manner” — theory presented here ex- the erroneous warranty of notions of the rates overlaps or the issue of trudes into entire use, a con- primary fitness for reasonable design product liability. It remains defect strict cept in the evolution of analysis prod- every in of law and fact that * * *. liability, desired appropriate uct will some and have prong of the Barker defini- The second (doorstop, perhaps) and uses for use other situations, encompasses such those tion provident (killing which it not be would safety device which is as the lack dynamite). houseflies with here, product the satis- presented where design is in It the confluence ordinary expectations as consumer fies relating special merchandise as order general is still “defective” to its use but negligence warranty liability, strict and design the or exposes user in crosses an unlimit that this decision almost preventable bystander to “excessive dan- and products liability number of cases ed ger.” omitted.] [Footnotes authorities; my none in review of which instruction, As an that court stated: majority’s decis analysis justify Following set guidelines the ma My only concurrence with ion.4 court, we the trial Barker hold that court required present is jority that a defect jury instruct the that a may liability, gen or issues designed defectively if: as for the eral as well fitness logic and “(1) intended. We differ plaintiff proves prod- definition of defect perform safely analysis as to the uct failed to as as an special mer order expect particularly here with ordinary consumer would antici reasonably perform within fore- chandise that fails used in an intended or any prod manner, (2) plaintiff pated usage. theory Under seeable or liability, ucts has burden product’s proxi- proves causing (2) proving (1) injury; mately injury caused defen- defective; (3) existed prove, the defect light fails to of the rele- dant factors, product left defendant’s at the time the that on balance bene- vant alone, Unreasonably Dangerous or 1- Product American 4. For tires wheels see. Unsafe 3d, Citator, Tort, Liability supra, Liability Products 54 Law of Under Strict Doctrine of following specific top- Annotation, to which the (1973); 208-218 Lia- §§ Products A.L.R.3d 352 §§ 156-207 ics should added: motor vehicles bility: Strict Under Doctrine of Defect Proof of equipment 352-400. Con- §§ and construction Tort, (1973); Liability Annota- 51 A.L.R.3d 8 topic only Caterpillar tractors finement Tort, tion, Liability Liability: Strict Products provides itself an extended and Michelin Annotation, (1967); 13 A.L.R.3d 1057 Manufac- Annotation, Liability: See also Products review. Inspect Affecting His Duty or turer's to Test Admissibility Expert Opinion Evidence that or Injury, Liability 6 A.L.R.3d Product-Caused Dangerous, Defective, Is or Is Product Not (1966); 2d AmJur. Proof of Facts 91 39 Defec- Unreasonably Dangerous, 4 A.L.R.4th 651 (1984); of Facts 17 AmJur. Proof tive Tire 209 Annotation, (1981); Liability: Modem Products (1966); Tire Automobile Hazards Defects Determining Product is Whether Cases Defective- Portner, Philo 170 Million H. & A. Defective Annotation, (1979); Designed, ly A.L.R.3d 1976); Year, (November 12 Trial 50 Tires Per Liability: Liability Injury or Death Products Bowman, Design Prob- Cases Defense Defect Tire, Allegedly Caused 81 A.L.R.3d Defective lems, (1980). For the Defense Annotation, Liability: Products control; (4) not been suscep- defective condition of basis and has found to be general proximately plain caused the single tible of definition or of a Stewart, injury. applicable tiffs Ill.Dec. 506 definition all contexts.” 783; Dayton N.E.2d Liability 3d, Moslander Tire American Law of Products (footnote 899 (Mo.App. supra, omitted). Rubber S.W.2d 17:5 at 13-14 § 1981); Jolley Moreover, Corp., proof Motors elements of General a defect (1982). N.C.App. vary depending S.E.2d See recov- analysis ery summarized in 1 pursued. Keeton, American Law of Id. 3:7. See § 3d, Liability Products supra, Liability Meaning 1:5.5 Product and the De- Mary’s fect, 5 St. L.J. 30 See also product may be defective in three Henke, supra, Keefe and Seton Hall (1) flaw; (2) ways: manufacturing defec L.Rev. 174. design; tive or inadequacy absence warnings regarding product. defining throughout the of the concept use The Mfg. Rangaswamy, Valle Co. v. 74 Md.App. analysis is intended is inextricably use 304, 622, 626, granted 537 A.2d possi- cert. 313 bound in in all with the cases (1988); Md. 542 A.2d 845 1 exception prod- American ble of a malmanufactured 3d, 3:7; Liability supra, Law of Products axiomatically necessary uct. It is to ad- § Keeton, W. and Prosser W. The of Law dress intended use in to In relation defect. (5th 1984). Torts 99 ed. This Buckley, court has the would court’s conclusion § have previously quoted approval gener with the been the if the designed same tractor was defect, al of definition states high gasoline which for fuel oil and test product is it fails furnished the “[a] result that com- perform reasonably safely use, the and function equipment exploded mencement of the Valentine, which was buyer intended.” and incinerated the who did not 665 (quoting P.2d at 462 Drier v. the know that dealer’s mistake had oc- Perfec tion, Inc., (S.D.1977)). 259 N.W.2d 504 curred?

The various definitions of defect intended, revealed Unfitness the purpose by present research, however, design defect, confirm the which is a function of has following singular observation that term ‘de- been a of constituent modern “[t]he fect’ has case-by-case products liability been defined on a litigation.6 Although not Rheingold ton, 5. Paul D. in in Liability: Meaning Prod- The Proof of Defect Manufacturer’s of Cases, Liability uct 38 TennX.Rev. 325 Design and Prod- "Defect” Manufacture of (a) types proof: ucts, described six of the (1969); Keeton, nature of Syracuse 20 L.Rev. 559 (b) accident; product; pattern (c) of Liability Products —Proof of Manufacturer’s history (d) product; prod- the life of the similar Peairs, Negligence, (1963); 49 Va.L.Rev. 675 uses; (e) ucts and elimination of alternative Machine, (1949); God in 29 Rev. 37 B.U.L. cause; (f) happening of the accident. Prosser, (Strict Upon The Assault Citadel proof accurately applies This scenario of physical injury to the Liability Consumer), Yale 69 L.J. 1099 appellant Note, considered in this (1960); Rapson, Liability Products Under Paral- Liability lawsuit. See also Products lel Doctrines: Contrasts Between Uniform Proof, the Problem 21 Stan.L.Rev. 1777 of Tort, Liability Code Commercial in Strict 19 (1969). Wade, Rutgers (1965); supra, L.Rev. 692 44 825; Wade, Liability Miss.L.J. Strict Tort Singularly inquiry attractive to the academic Comment, Manufacturers, (1965); S.W.L.J. of law school review as well as consideration Liability, Syr- Tort to Strict Products Defenses bar, representatives practicing the now Note, (1969); acuse L.Rev. Products 30-year emergence period Liability and Section 402A the Restatement liability litigation and evaluation has been ac- Torts, (1966). L.J. Geo. companied by journal convulcade law re- part among single sym- singularly views. Added to sources are Included these author recognized posiums analyses significant which in research and detail include: scholastic leadership moving prognosis from Critical in Tort Law status Issues Search Reform: Franklin, Principles Legal Liability], include: When Worlds Collide: XIV J. Stud. [Products James, Liability (1985); Theories and Disclaimers in General Products —Should Defective- Cases, (1966); Negligence?, Product 18 Stan.L.Rev. 974 be Liable Without Manufacturers Tenn.L.Rev. 923 Green, Liability Strict Symposium, Under Sections 402A and Cur- Litigation, Torts, 402B: A Decade (1976); Developments 54 Tex.L.Rev. 1185 rent in the Law 33 Vand. Keeton, 30; supra, Mary’s 5 St. L.J. Kee- L.Rev. 549

«3 provide “The seller must with the its true character directly delineated within design defect, special necessary to every element make it safe a subset to be recog- fails function which Id. 902. It was order merchandise for use.” at then immediately Azzarello, within intended fits 391 A.2d nized and, con- specifically, the general principles design, apply to a bad “we must look (Second) of policy of Restatement stituent is safe its intended whether Torts, majority, This supra, 402A. Dambacher, also 485 A.2d use.” See creating illogical distinction unfounded concept completes development legal history precedent that what which, tires as an by application to radial defective, into the wrong chisels out commerce, defective but item singular significant mistake law misapplied if mixed with non-radial analysis. basic use, It on- the vehicle. danger, law, ward where accident was general history of recent by the “mixed fitment.” invited Dambach- matured modern er, specified N.Y. 485 A.2d at 414. court v. Buick Motor MacPherson (1916) Henningsen that as a matter of and would not rule N.E. 1050 law Inc., defective, Motors, N.J. the radial tires were not Bloomfield A.2d (1960), by Cepeda followed if not a full even defective when used with Co., Inc., 76 Engineering complement Cumberland radial It other tires. (1978), 152, 386 A.2d 816 overruled N.J. mixture of non-radial radial with nom. Suter v. San grounds other sub danger conse- tires which created and 150, Co., Mach. 81 N.J. Angelo Foundry & application. In- product defect in quent (1979); Greenman, P.2d 140 377 406 A.2d cornerstone of the lia- tended use was the Goldberg and v. Kollsman Instrument 897 Miche- bility Ilosky thesis. See likewise v. 592, 432, 12 240 N.Y.S.2d Corp., N.Y.2d (W.Va.1983). 603 Corp., Tire 307 S.E.2d lin (1963). 81 N.E.2d See 191 application, this now majority In direct including articles Professors symposium disindigenously legal principle a ignores as Keeton, Wade, Page Dix NoelW. John W. applied: have criteria that should been Keeton, E. introduction and Robert apply principles The same should Ray Liability Products Roy R. —A manufacturing defect is due whether (1965). 1 19 Symposium, S.W.L.J. Though design. or or to error mischance misdesigned pow- a Greenman involved proof to demonstrate the nature Cepeda involved an industrial er tool and product may dif- was defective designed defectively machine which “was fer, jury test is the same. ultimate safety standpoint.” 386 Cepeda, Suitability safety implicated are development 820. The A.2d at case due whether defect design provides a similar de- Pennsylvania im- imperfection in the or an material development purpose fect in fitness design. proper Berkebile, ad- 337 A.2d 893 intended. dressed defectively designed helicopter. ^{[*] [*] [*] [*] [*] [*]} Design Actions Section Additionally, state dence in Under notes and individual case Defect Comment, 402A, (1986); comprehension add to the nationwide Prod- reviews 56 801 Miss.L.J. Dobbels, developments. Future, products liability law Liability Oregon; 8 Present and ucts Revisited; Liability Law Note, Missouri Products (1972); Wy- 410 Willamette L.Rev. Torts— Liability Products Law Look at Missouri Strict oming Adopt Appropriate Case Strict Finds an Act, Mo.L. the Tort 53 After Reform Ogle Before Liability. Caterpillar v. Tractor Products Noel, (1988); Liability Re- 227 Products Rev. Co., (Wyo.1986), & Land 716 P.2d 334 XXII Tennessee, 32 tailers Manufacturers Note, (1987); Liabili- Water L.Rev. 223 Products Steenson, (1965); Lia- 207 Products Tenn.L.Rev. bility De- ty Liability in Tort—State-of-the-Art —Strict Design and Fail- Law in Minnesota: Defect Design Inapplicable Cases—Be- fense shada Defect Claims, 443 to Warn 14 Wm. Mitchell L.Rev. ure (1988); Corp., 90 N.J. v. Products Johns-Manville Swartz, Concepts Con- of “Defective 191, (1982), Hall L.Rev. 447 A.2d 13 Seton 539 "Unreasonably Dangerous” in Prod- dition" (1983); Note, in a Strict 625 Proof of Defect Law, Marq.L.Rev. Liability 66 280 ucts Comment, Case, (1970). Liability 22 Me.L.Rev. 189 Products Evi- State the Art Relevance of 84

Delivery improperly designed present Both cases equipment delivery machine constitutes a defec unsuitable intended. See Co., point, also v. Tel. product. Bigbee At that whether the and Tel. 34 tive Pacific 49, Cal.Rptr. 857, Cal.3d 192 of the defect in the 665 P.2d 947 cause was (1983), misdesigned design where and mislocated due to or otherwise is materi telephone booth, only unsafe Hough Co., at al. See Pike v. Frank H. exposed location, 465, 629, car crash resulted in Cal.Rptr. 636, Cal.3d Barker, injury plaintiff; (1970). 467 P.2d Once the de 443, high-lift design P.2d loader defect. In fect established and the other elements regard, fiberglass similar construction of shown, a case for strict has been question a car affords roof out. made Brandenburger Toyota Sales, Motor Foundray Angelo Suter v. San & Mach. Inc., U.S.A., Mont. Co., 81 N.J. A.2d 152-53 (1973). The metal sheet used duct Suter, (1979). judge The trial 406 A.2d work construction of a school created a liable, at 149 that to hold defendant said similar fitness purpose, test in for. (1) proved: four elements had Foley, Walters Kellam and 172 Ind. reasonably been had not fit App. N.E.2d In that ordinary use for which it case, the sheet in itself metal un intended; (2) defect arose out of safe completion or unsafe after the of in machine; (3) design of the defendant’s stallation, allegedly it was unsafe within plain- proximately that the defect caused process the construction for the activities damage; tiff’s of installers. reasonably was a foreseeable Bradshaw, Helicopter Bell Co. v. product. consumer user (Tex.Civ.App.1979), S.W.2d 519 there was See likewise v. International Birchfield helicopter prior a crashed when a issue (6th F.2d Harvester Cir. generation “unsafe” rotor blade broke 1984); Industries, Inc., v. Altec Casrell flight. liability As a strict and (Ala.1976), 335 128 So.2d non-insulated consideration, update duty to and maintain picker;” “cherry National Seattle-First performance for safe was at and issue lia 145, Tabert, Bank Wash.2d 542 v. 86 P.2d bility Montgomery resulted. See likewise (1975); 774 Ulmer v. Ford Motor Compa McCullough By Elevator Co. v. McCul 522, ny, 75 Wash.2d 452 729 lough, (Ky.1984) 676 S.W.2d 776 and Gon Wade, supra, 44 Miss.L.J. 828. zales, 571 S.W.2d 867. The exposition exhaustive of strict liabili Particularization of use or individual ty in efficacy California cases also denies warning product pro lack of limitation to what this does majority to Restatement authority vide similar forests of within the 402A, (Second) Torts, supra, § tire cases. Barth v. B.F. liability general product theories of Co., 228, Cal.App.2d Goodrich Tire 265 71 responsibility of both manufacturer and Cal.Rptr. (1968), 306 unwarned overload Corp., the seller. Cronin v. J.B.E. Olson problems for tires when used on station 433, Cal.Rptr. 8 501 Cal.3d 104 P.2d wagon provided liability. a basis The (1972) developed 1153 from the situation buyer bought job tires to do the for the similarity which has factual a known as Likewise, speed capaci identified vehicles. use. An assembled bread truck ty was at issue in Cavallaro v. Michelin as faulty not unsafe in itself became Corp., Cal.App.3d Cal.Rptr. Tire 157 dangerous by hasp permit a defective (1979),although result, in the favorable tray ted a bread into to slide forward verdict reversed for retrial because of hasp cab. When failed like bounc inconsistency in its turns. In Tenth Circuit ing tires, injured Michelin review, the driver Appeals proof Court of blowout equipment defective, which lacked fitness for were that blew out B.F. intended, the purpose though Hammond, even Company external Goodrich v. (10th Cir.1959). forces in a street Mercury collision intervened. F.2d 501 A Cou- right any way them in but the capaci- assemble speed above tire gar operating at way. capacity, afforded a basis car ty but within up liability to tire blowout at 375-79. Id. LeBouef F.2d Rubber Goodyear Tire & v. apparent synthesis It is (5th Cir.1980). The tires safe were comfortably fit Missouri Court would Mercury Cougar with enough, not on a but concept wrong product delivery within car. capacity of his Likewise, who tested the intervening a driver Buckley. might estranged. cause contention also interestingly is similar A case which results, Wrong damage if is defective and is review wrong item versus defect Airplanes provided with the causative. Inc., Beechcraft, v. Executive

Nesselrode For in- wrong fuel is a case illustrative. (Mo.1986). parts Proper 707 S.W.2d camper unit, volving pickup see tires for a but, acti- unfortunately, provided Armstrong Company, Farr v. Rubber left airplane trim tabs for the vator (1970), which Minn. N.W.2d wrong installed on the right sides were stated: follows. result that the disastrous side with A “defect” defined as has been adduced that: appellate court contemplated by the user condition core strict tort concern unreasonably makes the through i safety. Comments law See dangerous is not in a him. Therefore, primary 402A. to Section when it is safe defective condition design defect case is whether inquiry consumption. Mag handling and normal it is way Inc., Rupp Manufacturing, nuson —because risk designed an unreasonable 201; 285 Minn. 171 N.W.2d Greco —creates danger (W.D.Pa.) to the consumer user Co. Engineering Bucciconi Prosser, generally, 978; Owen put F.Supp. to normal use. See The Fall of tablish 27 S.C.L.Rev. unreasonably dangerous and therefore Tort strating Theory and tion unreasonable “defective,” ously trial, the existence of strict tort ria standard —which Throughout Ht jury’s attention describes the Montgomery, Liability For abbreviated, plaintiffs caused his that the ^[*] bears Administration danger and causation. consistently ^[*] product, that the demonstrated injuries. Though obvi- the 812-13 the burden of demon- course, heart industry design crite- design Reflections Defective was first by foregoing explana- ^[*] mechanics ' and (1976). To es- defect case— defect designed, focused ^[*] brought to Products, soul of a On the Strict entire case, Lane He on‘ Restatement,; ments implied warranty. As closely cases § 16A[4][e]: This appears proved mony or plained of. mal breach poses of under circumstances “A “Is a Citadel, involving strict circumstances, Friedman, g, h, and i. use definition related breach if it product and caused the rule or reasonable cases Torts is injurious shown, by expert testi- Minn.L.Rev. dealing which Products defect, (2d) concept warranty stated in 2 ‘defective’ liability in that inferences or causes constituting a failed in appearing injury com- of defect product 791, 826; breach Liability, A, com may Frumer damage tort, from pur- nor- in is most proof Adams. The*two terms- used and same suffice? tort? Would clear-cut, this affirmative an- during the trial describe not often While implicit the cases.” go” no seem be industry were “work or swers standard most sim- “murphy proof.” Stated and OF THE X. VIABILITY man- standard ply, industry calls CLÁIM NEGLIGENCE design critical like Beech ufacturers premised it way products-liability in a which makes action flight,parts In a action, the negligence as in negligence, or impossible to install them physically plaintiff prove 3d, must the defendant 1 American Liability breach- Law Products (footnotes supra, 10:14 at 27-28 omit- duty plaintiff proxi- ed a owed the thereby § ,. ted). Further: causing mately injury plaintiff. Cat- has necessarily manufacturer not sat- Donahue, erpillar P.2d Tractor Co. v. duty product isfied its care its because Brown, (Wyo.1983); Beard intended, functions as since this would (Wyo.1980). P.2d 726 This deter- court also mean that no liability there would be specific mined in Donahue that as to a negligent design product which func- action, negligence products-liability tioned as intended but which was de- prove product must that the signed dangerous in a fashion more than defective, plaintiffs acceptable. product, caused a defect in the at 10:12 24. Id. at § the manufacturer exer- or seller failed to duty non-manufacturing of care of a Harper, cise due care. F. F. James and seller is somewhat different. It' is de- (2d Gray, 0. The Law of Torts 28.22 ed. § generally scribed as: 1986). duty ques- The existence of a is a Sellers all kinds are tion of law and unless men reasonable subject duty ordinary to a and reason- disagree, could question of whether care, is, duty able to exercise the the defendant exercised care reasonable prudent person care that a' in the same proximate one cause is for the trier of circumstances would exercise. Bettencourt, fact. P.2d (footnote at omitted). Id. 10:40 inquiry, threshold specifically: More context, duty is nature Where the of an seller article reason- Michelin, manufacturer/seller, Co- ably must that if is know it defective it Tire, supplier/seller, may bre have owed imminently dangerous persons will to appellant upon product sale. re-With likely to into come contact with the arti- spect duty of a manufacturer: cle, the duty seller has a use ordinary previously recognized We have that a care to ascertain the condition of the safe, duty manufacturer article and to see that is espe- owes a of care to it cially by representations where those use war- product. who The manufac- ranties that the article is safe the seller required turer is to exercise reasonable * * * induces the sale. A seller of a planning, care in designing, man- product manufactured another is not ufacturing of product to en- order presumed to knowledge have of a defect reasonably sure that safe to use. sold, in the article and if Donahue, at 1280. As elaborated reputable received sup- source of duty: defined ply the may retail seller assume that the The manufacturer must exercise due duty manufacturer has done its in prop- care planning erly constructing product, materials, in its selection placing the market a production assembly process, likely injury, is defective and to inflict making reasonable and inspections tests duty under no to in- affirmative * * * spect for a discover latent test' latent defect. hazards involved in the products, use. preparing prod- of its liable, a A seller will seldom for negli- gent design, market, design uct for the since in most warning poten- instanc- questions specialized es involves of tial of dangers users with associated knowledge which the retailer cannot be product. duty manufacturer has a expected to have. of qualities know all the hazardous of (footnotes omitted). its at 61 responsible making and is Id. 10:40 at § purchasers those hazards known to even In Atmosphere, Inc. v. Bra Controlled when the is inherently itself not Co., Wash.App. 343, nom 50 Instrument dangerous. 686, (1988), 748 P.2d 690 court said:

87 429, (1959). 336 I Cal.App.2d P.2d 286 was manufac- of an item which A seller generally present is not did party a third conclude that Michelin not suf- tured dangerous by the for harm caused ficient to exclude the inference of liable evidence if the seller did not Summary judgment inap- of item negligence. character no know the item or had reason to know of propriate on the issue Michelin’s exer- be, dangerous. was, likely or was of care cise reasonable tires for this machine as sale these case, the instant to the facts of Pertinent use. involved in this however, higher that a is observation required degree care is ordinary than ap within third criterion services a who installs or otherwise a seller analy invokes pellant’s negligence Williams, v. product. See Kitchener proximate cause. sis of the nature (1951). Kan. P.2d 64 by cir may established Proximate cause Following of an issue of de- discernment with,or conjunction cumstantial evidence requires fect, inquiry analysis next evidence. Betten- in the absence of direct congruent factual issue exists whether court, This court has said 735 P.2d 722. alleged regarding failure to ex- Michelin’s proxi duty is a that whether a breach placing care these ercise due question injury is a of fact mate cause of Appellant contends that no the market. the evi jury to determine unless presented by Michelin that evidence minds that reasonable dence demonstrates type on this they had tested these tires at disagree. England, 728 P.2d could history scraper nor was tire established. J., (Urbigkit, dissenting); McClellan because, in contention has merit This In (Wyo.1983). Tottenhoff, negli- products-liability action based (quoting at 1091-92 Le Buckley, 703 P.2d if to be gence, is shown defec- Madden, Wyo. 200 P. mos v. tive, may that the defect was be inferred (1921)), proximate legal cau we defined negligence in the manufacture or due to sation as: inspection product. Morris v. substantial conduct which [T]hat 341, 303 Corp., 208 Neb. N.W.2d Chrysler bringing injuries iden- factor in about the (1981) cited. therein Once cases * * * complaint. tified in the [I]f inferred, negligence can be the burden of in natural cause which conduct is “that pre- production of evidence to rebut by a sequence, and continuous unbroken sumption shifts the manufacturer. Bal- intervening produces cause sufficient Jones, 246 lard Ballard Co. v. Ala. & injury the result without which 21 So.2d 327 See Davies Good- occurred,” identified it must be have Co., Mich.App. year Tire & Rubber bringing about as a factor substantial Law 282 N.W.2d American the harm. 3d, Liability supra, at of Products 14:2 McClellan, observed In 666 P.2d we 14:18 at 24. and § that: summary support motion for concerning proximate test ultimate [T]he judgment, Michelin submitted affidavit could the vendor cause be whether will Gary Workman. Workman testified * * * person. to a third foresee complaints or that he had never received , * * * * * * concerning spe- of these criticisms the use in connection with cific Michelin radial tires * * * usually relieved A defendant earth-moving operations prior to sale of interven- liability by an unforeseeable who, turn, sold Tire them to Cobre * * * However, an interven- ing cause. Bridger. He further testified other ac- ing not relieve an earlier cause does had satisfaction expressed customers reasonably fore- if it was tor observed, however, the tires. It seeable. prior no is not of accidents admis- evidence regard grant Finally, said we have prove Stokely-Van due care. sible of the issue summary judgment 120, 122 of v. 271 Ala. Camp, Ferguson, Inc. negligence that where (1959); Co., in a case causation Mfg. 356 Edison v. Lewis So.2d the discovery materials or unrefuted alle- defective because of failure to warn. gations duty disclose and a breach of I Again, perceive presenting the claim as duty, treat the we existence of the design product case defect insufficien- probable element of causation as more cy Cryts for its use. Ford v. nonexistence; require than its and we Co., (Mo.App.1978). Motor S.W.2d the issue to submitted to the trier of Ogle, In we P.2d at enumerated fact. liability the elements Bettencourt, P.2d at 729.7 case that the * * * The evidence established before (1) engaged sellers were accident, and Michelin Cobre Tire were selling product business unavailing aware of and had made at- harm; caused the * * * tempts remedy abnormal bounce and (2) product was problems vibration associated dirt- sold; hauling usage of the Michelin radial tires. * * * (3) product unreasonably dan- was Clearly, upon record, the evidence in the gerous consumer; to the user or disagree reasonable men could as wheth- * * * (4) product was intended to and negligence er in sale as well the tires reach did the consumer without substan- (related proximate was a cause and reason- change in tial the condition in ably related) appellant’s injury, and thus sold; negligence claim of sale initial * * * (5) physical caused harm summary judgment. amenable to Cf. plaintiff/consumer. England, 728 1137.8 P.2d See also American Law of Products Lia- 3d, bility supra, (citing 10:40 at XI. 55-56 VIABILITY OF A STRICT Ogle). The intrinsic elements of LIABILITY CLAIM that strict liability claim are: pleading, In appellant alleged trial both (1) injury resulting from a condition manufacturing defect fail- product; Upon appeal, ure to warn. appellant as- (2) condition was an unrea- subject serts Michelin and Cobre Tire are sonably dangerous one; and to strict on the basis that the tires were they (3) defective because unsuita- condition or prod- defect existed when ble unsafe for their intended use and uct left defendant’s control. analysis proximate Steinbock, legal 7. presented Ray, cause Richman and England, cause this writer in dissent in Cause, Expert Testimony on Proximate 41 Vand. quoted Keeton Professor (1988). L.Rev. 261 Causation, (1986): 28 S.Tex.L.J. 231-32 pri- analysis, Michigan "There are four elements in a claimant’s In recent court differ- negligence. ma generally facie case of These negligence warranty entiated the theories recognized (1) duty are: elements of reason- recovery: care, (2) duty, proxi- able a breach of that implied warranty grounded An of fitness causation, (4) damages. mate expla- An warranty implied is a tort fact or law. duty duty nation of the terms and breach of Center, Clancy Village v. Oak Park Athletic necessary identify underlying the issues 304, 306, Mich.App. (1985). 364 N.W.2d 312 problems each of arising and the elements warranty theory distinguish- proximate in connection with cause. negligence theory negli- from the able in that ****** gence generally focuses on a con- defendant's "Generally, required two elements are to es- duct, while focuses on the tablish that the of a defendant is Co., Mfg. itself. Prentis v. Yale 421 Mich. proximate plaintiffs injury: cause 692-693, 365 N.W.2d v. Smith legal factual causation causation. Factu- Sons, 79, 89, Squibb E.R. & 405 Mich. al requirement causation refers that the (1979). N.W.2d 476 injury act and Legal be related. causation Callesen Grant Western Trunk R. requirement refers to the that the and the act Mich.App. reasonably [Emphasis 437 N.W.2d related.” however, Compare, original.] Thompson, D. Baker and J. interesting analysis subject An Liability Theory Negligence Reality, current Strict proximate particularized concept (Nov.1988). in a cause For Defense 17

89 causes, Brewer, 1009, 9 or the elimination of other Ill.App.3d 51 Ostendorf v. (1977); 214, expert opinion, enough 780, may N.E.2d 217 be Ill.Dec. 367 aid 38, 233 Kan. Mays Ciba-Geigy Corp., support the inference. (1983). 348, 2 Ameri also 661 P.2d See (Strict Prosser, The Fall the Citadel 3d, Liability supra, can Law of Products Consumer), Liability to the 50 Minn. liability, the focus 16:42 57. strict at § (1966) (footnotes 843-44 L.Rev. omit- than rather is the nature (Second) Torts, ted). Restatement su- defendant, fault is the conduct of the 402A, pra, g provides: comment § liability Am. proof. an element The rule stated in condition. Defective 532 at 730 Liability

Jur.2d Products § applies only prod- this Section where (1984). may he liability The strict claim is, the time uct it leaves seller’s proven by circumstantial evidence. Stew hands, contemplated a condition not 783; art, Mos 506 N.E.2d 107 Ill.Dec. consumer, the ultimate which will be un- lander, 899. Colora 628 S.W.2d See also reasonably dangerous to him. (Wyo. Arp, 504 P.2d do Serum Co. v. dangerous Unreasonably is defined as: 1972), court utilized circumstan where this * * * predating adoption of strict tial as evidence Unreasonably dangerous. The Ogle as such evi liability in the case dangerous must article sold be an prima a dence sufficient make out is beyond that which would be con- extent rea negate if it tends to other facie case templated by ordinary consumer who opinion expert there is sonable causes or it, ordinary purchases with the knowl- Lucas v. was defective. community edge common to the as to its Co., 458 F.2d 495 Tire Rubber Firestone & characteristics. Stewart, (5th Cir.1972); 107 Ill.Dec. Torts, (Second) supra, Restatement Mays, 661 P.2d at N.E.2d at 785. 402A, i. comment § states that: of defect is The restatement definition liability liability Because expectations” as the “consumer known specula- action cannot be based on mere Fischer, Expanding Tort test. Law: tion, conjecture, guess or the circum- Recovery Jury Loss Scope Without must an inference justify stances shown Control, 11 Hofstra L.Rev. distinguished mere from probability test, may im liability be Under not nor- possibility. While a is beyond if the unsafe posed prove mally required to his case at reasonably contemplated by the or extent stage, he must summary judgment 357; Sims, P.2d consumer. dinary ele- present support facts to some Yavapai and Auto Mach. Gomulka claim. ments of his Inc., P.2d Parts, Ariz. prod- Establishing the defectiveness Inc., 748 (1987); Atmosphere, Controlled prod- may uct less difficult under strict 686.9 negligence. Pro- ucts than under fessor Prosser stated: test is expectations” “consumer sub the definition de stantially the same as happens fact that an accident

The bare applied in discussion which was goes that an fectiveness product, automobile negligence theory. rule ditch, appellant’s usually not sufficient into a Valentine, (quoting P.2d at 462 proof any way defective. that was * * * 2 Ill.Dec. at 357 N.E.2d at hand, Tweedy, addition of the other On facts, 452), equally applicable a strict under way of other very little more * * (and *, theo had under example that the defect * * * infra): accident, ry to discussed given trouble before Law of particularly L.J. 61 2 American jurisdictions, defective- Ohio St. 9. Some 3d, cases, Liability “risk-utility supra, 17:24. This adopted have test” Products tests, applied test rather Test.” has the restatement hybrid "California court of the two Sims, Vandall, theory. Liability: 751 P.2d "Design the risk-benefit than in Products Defect” Liability, Rethinking Negligence and Strict merchantability that of prima implied warranty “A facie case a is also the presented. Again, and that defect existed properly agree defective I also it left the manufacturer’s control is express warranty that this case an by proof that of made absence developed sufficiently enough not to with- secondary use or abnormal reasonable summary judgment. stand perform failed the ‘to causes begin by examining appellant’s I claim of reasonably expected to the manner be express breach of warranty. W.S. 34-21- and func- light of nature [its] provides part: in relevant ” tion.’ (a) Express by warranties the seller case, Additionally, in strict a created are as follows: requires proof proof the of causation (i) Any prom- affirmation of or fact unreasonably of the dangerous condition ise by buyer made the the seller to producing must have a cause been goods relates and be- Co., Helicopter of the harm. Bell part comes the bargain of basis of the 519; Am.Jur.2d, 558; supra, S.W.2d § éxpress creates an warranty that the supra, (Second) Torts, Restatement goods shall to the affirmation conform 402A(1). Proof be suf may of causation § or promise[.] ficient where the defect is demonstrated to products-liability In a case on based ex- contributing only be cause and direct or press warranty, the following elements ex circumstantial evidence which tends to be must established: secondary prima clude causes establishes a disprove facie and a need not case (1) an of promise by affirmation fact or a every injury cause the other than the seller; (2) tendency the natural the the alleged. one 9 Ill.Dec. Ostendorf promise affirmation or was to induce the 214. N.E.2d buyer (3) purchase goods; such promise affirmation of or fact became a by appellant The evidence submitted indi- (4) part of bargain; the basis cated that the tires bounced and vibrated buyer purchased goods in reliance excessively commencing use, with first thereon; (5) a express breach war- accident, Bridger before mechanics ranty seller; by the breach could not isolate cause the abnormal proximately plain- caused scraper bounce vibration other tiff. than the claimed tires. oth- With er use evidence normal and an intended 3d, Liability American Law of Products tires, function I conclude under' supra, (footnotes omitted). 19:3 at liability, appellant presented has 34-21-235, Pursuant privity W.S. not structuring requi- case factual issues of the required express an on or action either require site elements sufficient to Ogle, 334; warranties. analysis

jury of the contested evidence. Equipment Western Inc. v. Sheridan Davenport Epperly, 744 P.2d 1110 Works,Inc., Iron (Wyo.1980). 605 P.2d 806 (Wyo.1987).10 W.S. 34-21-235 extends the warranties to person “any may reasonably ex- who

XII. EXPRESS WARRANTY use, consume, pected to by or affected my claim, Within the warranty goods injured review of by who breach of I majority concur that a warranty.” any express benefit of purpose warranties, therefore, for the appel- fitness intended was would flow pleading stated and demonstrat- properly lant as a user/consumer tires. sufficiency judg- ed for to deter summary presented, I Within facts do find ment. We differ I perceive promise because also an either affirmation fact or a that, special merchandise, for this order either Michelin Cobre Tire Cobre dirty, expression goes, ing Down as the circumstance affected or affected jury will be called to decide constituencies in normal abnormal tire behavior. resulting injury cause terrain work- structure Bridger support controversy. Summary issue a triable factual Tire to warranty. express judgment appellant’s as to claims of breach of implied warranty merchantability equipment should be A statement contemplated particular task impróvidently to do the intended able express warranty buyer is not an by the granted as to both Michelin and Cobre Tire. mere[l]y a do so but matter that it will warranty The implied, of fitness for a long as are opinion, as the circumstances particular governed by purpose is W.S. 34- regarded is not such that statement (U.C.C. 2-315), 21-232 which states: § characteristic of the as a statement Where the seller at the time of con- goods. tracting any particu- has reason to know Am.Jur.2d, supra, 463 at 626. See § re- purpose goods lar are Zogarts, v. Cal.3d Cal. Hauter quired buyer relying and that the is on (1975). Rptr. 534 P.2d 377 We are judgment the seller’s skill or to select or 34-21-230(b), by W.S. which de confined goods, furnish there is unless suitable purporting that “a statement to be fines next sec- excluded or modified under the or merely opinion the sellers commenda warranty goods implied tion an that the goods riot create a warran tion of the does purpose, shall be fit for i such Moore, ty.” Terry v. 448 P.2d 601 See Entry summary judgment (Wyo.1968). imposed for recov- Additional conditions express warranty appellant’s on claims was (1) ery warranty of are:' under the fitness appropriate. the seller must have reason to know particular (2) buyer’s purpose; the seller IMPLIED XIII. WARRANTIES buyer must know have reason to contends, Appellant additionally how- relying judgment to on the seller’s skill or ever, Tire that Michelin and Cobre breach- goods; (3) buy- appropriate furnish ed warranties of merchantabil- both rely upon skill er must in fact the seller’s ity purpose. for a particular and fitness Summers, judgment. R. or J. White and part, agree majority I with the but do not fit supra, 9-9 at § merchantability summary for this exclude particular purpose for a if it contains a 21—231(b)(iii) judgment review. W.S.- 34— dangerous might cause characteristic that (U.C.C. 2-314) provides that merchanta- § foreseeable to normal or put goods ordinary must be “fit for the ble perform or is function safe- use unfit goods are purposes which such used.” in, Larsen ly when used a normal manner. ordinary purposes not fit for Goods are (8th Corp., F.2d 495 v. Motors General expected they are not for the where fit Cir.1968); 304 F.2d Chapman,, v. Brown purpose or unsafe use obvious are (9th Cir.1962). v. I. Ringstad See also manner. v. Federal normal Huebert Pac. Co., Magnin 239 P.2d 39 Wash.2d & 208 Kan. 494 P.2d 1210 Elec. (1952), question 848- where the Allen, Motors, Inc. Performance while using housewife a “cocktail robe” 385, 186 280 N.C. S.E.2d cooking normal issue of fact of created an prove in a elements a must mer- usage judicially and the court would pursuant case to W.S. 34-21- chantability normally kitchens. worn in (1) 231, (U.C.C. 2-314) that mer- are: notice.what § foreseeability was (2) goods;- Larsen rule sold the which were not chant sale; (3) Corp. inju- adopted Chrysler at the merchantable time this court ry; (4) by the proximately (Wyo.1978). caused defective Todorovich, P.2d 1123 goods; notice nature of the special order knowledge of intended With injury. and R. seller of the J. White Sum- undisputed use both Michelin mers, Uniform Commercial 9-6 at Code Tire, fact genuine issues of material Cobre 1980). (2d ed. of fit- implied warranty claim exist purpose as the particular ness for as well by appellant The evidence submitted dis- merchantability. parallel warranty of clearly sufficient cussed earlier negligence17, y16, express warranty18, XIV. CONCLUSION im plied warranty merchantability19, The unnumbered cases implied warranty purpose of fitness for the encompass per tires11 involving broad generally through intended20 are available spective more con of one of the numerous liability. these cases to test claimed It is injury litigation. stituents of consumer As majority decision that defects contributor, integral stan theories and cannot be related dards for of the vendor and manu for which major intended that mistake accurately for defective tires re facturer is now made in this decision irrational general present law. flects the status products liability evisceration of categories recapped principles. include tire Factual cases12, mounting injuries phrased Whether expecta installation consumer blowouts,14 par driving unjustified tion damage 1 road risk in as an here, enterprise liability thesis,22 insufficiency Keeton, ticular relevance see Products Liability Liability Applica purpose.15 Without tires for the intended — Requirement Fault Defect, concepts of aof tion of the broad strict liabilit 11. 4, Coulter, Annotation, 318; supra (1984); 421; Stang, n. 81 An- 620 A.L.R.3d 622 S.W.2d 497 4, 732; Markle, 8; supra n. notation, 51 A.L.R.3d 39 AmJur. P.2d 509 P.2d 529. 2d, 209; supra n. 4 at Proof Facts 17 AmJur. 17. Facts, 81; Nielson, supra 4 at 272; n. v. Proof of 1 American Baker B.F. Goodrich 570 F.2d 3rd, Co., supra Liability 221, §§ Law of Products 208- Cal.App.2d (1953); 115 P.2d 252 24 Co., Inc., Bailey Montgomery 218. v. Ward & 635 P.2d (Colo.App.1981); Bridges v. Interstate Truck 899 12. Norman, Nebelung 647, v. 14 Cal.2d 96 P.2d Inc., 361, Leasing, Ga.App. 171 319 S.E.2d 531 Burch, (La. (1939); Craig v. 327 228 723 So.2d Craig, 228 So.2d (1984); 723; Walters v. Tire Inc., Dioguardi Enterprises, 1969); v. Beasock Service, Inc., 378, & Sales N.C.App. 51 276 1015, (1986); Mar 117 A.D.2d 499 N.Y.S.2d 558 729, 320, review denied 303 N.C. S.E.2d 281 Inc., 259, kle v. Mulholland’s 265 Or. P.2d 509 (1981); Hewitt v. General Tire & S.E.2d 660 (1973). 529 Co., 354, (1955); Rubber 3 Utah 2d 284 471 Ewer, 480 P.2d 260. 13. Hale v. Firestone Tire & Rubber Co., 820 F.2d (8th Cir.1987); Armstrong v. Nielson Rubber 928 Compa 18. Hansen v. Firestone Tire and Rubber Co., (8th Cir.1978); v. Uni Belue 570 F.2d 272 (6th Cir.1960); ny, 276 McCarty v. E.J. F.2d 254 Inc., 589, royal, Mich.App. 114 319 N.W.2d 369 Korvette, Inc., 421, Md.App. 28 347 A.2d 253 Taylor, (1982); BFGoodrich v. 509 So.2d 895 (1975). (Miss.1987); Coulter, 421; Ewer v. S.W.2d 622 Goodyear Company, Tire and Rubber 4 Wash. 19. Inc., Uniroyal, Smith v. (7th 420 F.2d 438 152, (1971). App. 480 P.2d 260 Nave, Cir.1970); 620; Craig, 462 N.E.2d 228 Markle, So.2d 723. 509 P.2d 529. Cf. 14. Quinn-Moore Corp., v. Gisriel Oil F.2d 517 (8th Cir.1975); Goodyear Tire & Co. Rubber 699 20. Lucas, 495; Armstrong Dagley v. F.2d 458 Inc., (Fla. Hughes Supply, v. 358 So.2d 1339 Co., (7th Cir.1965); Rubber 344 F.2d 245 Hall, 1978); Firestone Tire & Rubber Co. v. 152 Gray Goodyear Line Co. v. The Tire & Rubber 560, (1979); Ga.App. Firestone 263 S.E.2d 449 Co., (9th Cir.1960); 280 F.2d 294 Trail- Fruehauf 840, King, & Rubber Co. v. Ga.App. Tire 145 244 Thornton, 1, er Division v. Ind.App. 174 366 Stewart, 40, (1978); S.E.2d 107 905 III.Dec. 506 Davies, (1977); 172; N.E.2d 21 282 N.W.2d 783; Dawson v. Motors Amer N.E.2d Mazda Frontier, Inc., 805, Smith v. 53 Wash.2d 337 P.2d ica, Inc., (La.App.1985); Vaughn, 475 So.2d 372 (1959). 299 548; v. Brissette Milner Chevrolet 756 S.W.2d Co., (Mo.App.1972); Stang v. 479 S.W.2d 176 21. 985; Edwards, LeBouef, 623 F.2d 512 F.2d 730, Corp., 83 N.M. 497 P.2d 732 Hertz Rome v. (Michelin Tire); Cavallaro, Cal.Rptr. 276 157 Kelly Springfield Company, Tire 217 Va. 602; Barth, 306; Dambacher, Cal.Rptr. 71 485 Sears, Roebuck 234 S.E.2d 277 Cf. A.2d 408. Co., Farm, Inc., & Inc. v. Haven Hills So.2d 395 (Ala.1981). 991 22. Johnson, 200; Leonard, 812 F.2d 765 F.2d 560; Smith, 438; Nebelung, 15. F.2d 96 P.2d 985; Hammond, LeBouef, 623 F.2d 269 F.2d 327; Vaughn, 548; Crawford, 756 S.W.2d Cavallaro, 602; Barth, 501; Cal.Rptr. 336; Stewart, 783; v. Joshua S.E.2d 506 N.E.2d Dambacher, 306; Cal.Rptr. 485 A.2d 408. Fulton, 1986), (La.App. writ de So.2d 16. Inc., (6th Uniroyal, Taylor, Leonard (La.1987); nied 501 So.2d 230 765 F.2d 560 509 So.2d Cir.1985); Edwards, 276; Hall, 895; Moslander, Coulter, 899; 512 F.2d 628 S.W.2d Service, Inc., 449; 421; Hewitt, Nave v. Rainbo Tire S.E.2d St. Paul S.W.2d 284 P.2d 471. Cf. Ill.App.3d &Fire Ins. 78 Ill.Dec. 462 N.E.2d Marine 298 N.E.2d 289. (1963), any differentia Tex.L.Rev. manufacturing JOHNSON, Petitioner, design23 and between Freddie D. tion wrong as a distinction between defect24 operational insufficiency ness because COLLECTIONS, INC., STATEWIDE wrongness was need because what versus CheckRite, Respondent. a/d/b/a illogically provided was not both ed unjustified. The court precedentially No. 88-285. Corp., Tire 99 A.D.2d Coley v. Michelin Wyoming. Court Supreme said that 472 N.Y.S.2d may proof inferred “[t]he July perform did as intend manufacturer.” ed appel-

Although majority leaves now implied warranty a viable claim in

lant with purpose fitness for removal, untimely eviscer-

negligence liability, in deliv-

ation of for an intended

ery observedly merchantability are

warranty of underpin- philosophical

unjustified. upon which the

nings provided Buckley its thesis of liabili-

majority builds Consequently, the result-

ty are unsound.

ing systematically misdirected structure result, in operationally skewed. justice attribute deliv-

function as an get here to there.

ery system, fails

Consequently, I in reversal of concur granted,

summary judgment on the issues norma- dissent from suffocation of the

but theories.

tive 276; Defense, Edwards, Sophisticated User 74 Va.L.Rev. example, see 512 F.2d For 23. Note, 371; (1988). Nesselrode, Strict 707 S.W.2d Liability: Ab- Moves Toward Missouri Products Johnson, (1987). Paul Fire 812 F.2d 200. St. Liability, UMKC See L.Rev. solute Cf. Cf. 289; Henderson, Price & Controversy Ins. 298 N.E.2d Over & Marine Renewed Judicial Roth, Quar- Liability Defenses, 39 FICC Design: Product the Preserva- Product Toward Defective Comment, (1989); Consensus, terly Tort Emerging Minn.L.Rev. tion Defenses Comment, Liability, Syracuse L.Rev. 924 Dayton supra Strict Products n. 9 U. 81; Note, to Warn and Failures L.Rev.

Case Details

Case Name: McLaughlin v. Michelin Tire Corp.

Court Name: Wyoming Supreme Court

Date Published: Jul 12, 1989

Citation: 778 P.2d 59

Docket Number: 87-61

Court Abbreviation: Wyo.