Zacher v. Budd Co.

Judy James H. ZACHER and Ann

Zacher, Appellants, Plaintiffs and

v. COMPANY, Mo- BUDD Yellowstone Service, Incorporated, and Dixon

lasses

Brothers, Incorporated, Defendants Appellees.

No. 14483.

Supreme Court of South Dakota.

Argued Nov. 1984.

Decided Oct. 8, 1986.

Rehearing Denied Dec.

Gary Lynn, Jackson, of D. Jensen Shultz Lebrun, Rapid City, & for defendant and Brothers, appellee Dixon Inc. SABERS, (on reassignment). Justice appeal This arises from judg- the final jury’s verdict, ment entered of plaintiffs trial court’s denial motion for trial, new awarding and orders costs to defendants. We reverse and remand. (Zacher), employee James Zacher of Stop Truck Rapid City, Windmill (Windmill), South Dakota injured was on 2, 1978, August multi-piece when a truck exploded during remounting. wheel Zach- damages er filed an for action based three substantive theories of liabili- ty: liability, implied breach of war- ranty, negligence. and All three theories against were of asserted each three defend- Company (Budd), ants: The Budd manufac- wheel; turer of the Yellowstone Molasses Service, (Yellowstone), Inc. owner and les- sor wheel trailer which accident; the time was attached at Brothers, (Dixon), and Dixon Inc. lessee of the wheel and trailer at the time explosion. sought Zacher’s wife also dam- ages in this action.

Statement Facts (wheel) multi-piece The truck wheel exploded consisted of a disc and rim assembly ring ring and side and lock assembly. disc and rim assembly thought of commonly as the wheel. The ring ring side and lock are affixed each designed rim by other two rivets. The by and manufactured Firestone Tire & J. Franklin Wallahan Law Wallahan (Firestone), Company Rubber and the disc Offices, Rapid City, plaintiffs for ap- designed portion and manufactured pellants. permanently Budd. Budd riveted Bangs, Thomas E. Simmons Me Cul- thereby parts together these construct- len, Butler, Foye Simmons, Rapid City, & assembly ed the disc rim which was appellee for defendant and The Budd Co. part particular ring of this wheel. The side Costello, Porter, assembly, Carpenter up C. and lock which made Edward Hill, Nelson, Bushnell, wheel, component multi-piece Heisterkamp Rap- & third City, id defendant appellee Yellow- was manufactured Firestone sometime Service, stone Molasses Inc. before 1946. assembly. rim edge of the disc tubeless rims are used when Single-piece length- using chisel or torch had Someone discloses The record used.

tires are assembly to slot on this ened the passen- not feasible on tires tubeless edge of the wheel. it to the Following extend early 1950’s. until the ger cars interested this, trucking operations became was on a August this wheel On Single-piece trucks.1 tires for in tubeless Yellowstone, trucking owned trailer for trucks were tires rims and tubeless tire fourteen over-the- which owned company in produced first in 1953 and developed thirty approximately and road tractors 1954. pri- time. Yellowstone’s at that trailers during seasonal and mary contracts were ring that the side showed The evidence equipment to its off-season it leased the the assembly did not match ring and lock companies on short-term trucking by other assembly manufactured rim and disc thirty days. Yellow- however, of less than evidence, leases no There was Budd. this wheel trailer on which stone leased the its incorrectly combined that Budd show August Dixon on ring mounted to side was assembly with the and rim disc driver, on Yellowstone’s A Yellowstone particular ring assembly on this lock and Dixon. The the payroll, drove vehicle Indeed, present- only evidence wheel. in equipment was that the provided lease correctly assembled they showed that ed be so and would “first-class condition” the wheel. during the term by Yellowstone maintained assembly time, and rim the disc At some signed, lease was Before the of the lease. accident, in and manufactured this involved the trailer and employee inspected Dixon a ring Budd, a side mismatched with was inside dual. Two flat tire on an found a de- ring assembly. Firestone lock and drove the vehicle drivers Yellowstone particular signed manufactured and Windmill, shop serviced tires assembly to fit an ring lock and side in they were trucks when on Yellowstone components did rim. The two older model out to the held itself the area. Windmill ring assem- together properly: not fit qualified truck competent and public as a completely seated tongue bly could repair tire service. assembly gutter, the rim into the disc and Testimony Trial a. possi- of which increased combination only were the bility explosion. Not repairing flat experienced Zacher was mismatched, mis- these components but disassembly reassem- tires out components themselves matched time From the large truck wheels. bly of explosion exists danger of round. station attend- began as a service he work a the wheel unit is combined when Windmill, nine to ten some ant at inflated, (or tube) As the tire tire. earlier, ordinarily repaired Zacher months “pressure assembly tire-wheel becomes day. per tires five flat truck approximately energy stored with substantial vessel” multi-piece also worked with He had units, All tire-wheel wanting escape. his em- jobs prior to at two other wheels multi-piece initially single- or whether The Windmill ployment with Windmill. explosive dis- wheels, danger of pose some or used truck of new not a distributor was However, danger increases assembly. no ca- components. There were or wheels components its multi-piece wheel when charts, or other literature matching talogs, are mismatched. to Zach- concerning available truck wheels time, time to From er at the Windmill. physically al- had also been This wheel cautionary litera- issued it left defendant condition which tered from the to its own dis- only distributed dis- ture but hands. As manufactured Budd’s stops or service not to truck not extend tributors tributed, stem slot did the valve single- industry limited the use itself knowledge capabil- that the sirgues 1. Zacher single-piece piece both to cars. ity wheels for wheels manufacture time, but that trucks existed before cars and stone, general manager stations. Neither one of shop Yellowstone’s own Windmill, Lich, Zacher, nor Darrell had employees. He conceded the wheel was type ever seen that of literature before the unsafe and should have been culled out of prior deposi- to their pretrial accident the fleet away. and thrown tions. The document which Zacher was expert It conceded all witnesses before the had ever seen accident was a testified, who including representatives poster hung at wall the Wind- defendants, from all this multi-piece merely mill which reminded workers to be condition”, wheel was not in “first class multi-piece careful with wheels. unsafe, and posed the risk an explo- “safety cage” provided A for Wind- disassembly. sive mill employees they while worked on truck Haug, manager John of Budd’s wheel always wheels with inflated tires. Zacher engineering department, testified that both safety cage. precau- used As an added wheel, pieces (the of this portion rim-disc tion, removing before such wheel from separate ring side and lock ring), safety cage tire, after inflation of the average had outlived their useful life ex- he rotated it several times on at rollers pectancy of years. between ten and fifteen cage visually bottom the examined Additionally, he stated ring that the side the entire circumference of the wheel to ring lock assembly ring wrong was the ring make sure the side and lock size type. ring properly seated on side and lock the rim. a 7.33 “R”V and the rim-disc assembly Iverson, LeRoy general Yellowstone’s °” was a # model 7.5 “R 5 size and manager acting engineer, safety testi- Although type. person like Zacher work-

fied that year August about one before the ing in a service station would see accident, Yellowstone had leased the drawing cross sectional of such a “mis- subject trailer to of Spokane, Consolidated match”, prepared Budd had one2 for trial. Washington. During lease, about that, drawing This illustrates when viewed eight new tires were on installed the trail- prospective, from separate compo- er. It was his belief that the old multi- together nents do not fit properly. Haug piece wheel involved the accident was they concluded that should not have been substituted onto the trailer when those together used because the mismatch in- eight Washington. tires were installed explosive creased the likelihood of an He stated disas- eight that the wheel and or ten sembly. accident, just it, specific Before the others like also have been placed question recognized the trailer mismatch in had either Emil Ren- been nich, independent repairman tire cautionary whose Budd’s literature aas “fore- services were customarily used Yellow- mismatch. seeable” 2. See defendant’s Exhibit 38. prior nothing any twenty years

There so the accident was litera determining during repairman had a tire ture which Budd distributed assist # put the model 59930 rim-disc was ment ring whether the same side and lock °,” type “R” or a “R 5 so that mismatch ring back onto the rim-disc that Schuman parts could be detected avoided. brought together. had Zacher made no Moreover, assembly this rim-disc substitutions. ring assembly ring side and lock were de After repaired, the tire was the wheel imprinted designation void of of their reassembled, inflated, and the tire Zacher style. type or An examination disclosed rotated the wheel several times on the °” any “R” designa the absence of or “R 5 rollers at safety cage the bottom of the Haug tion on either of them. Mr. conceded inspected the entire circumference of the that for cost of a few cents in mass wheel to make sure ring prop- short, production, meaningful message erly seated on the rim. Zacher next took “R °: ring,” such as 5 Use R 50 could safety cage, wheel out of the rolled indelibly imprinted on have been the rim- trailer, over to the used some bars to ele- assembly. disc hub, vate it back onto the hand Burgess, shopmen, Neil one of Dixon’s lug started the installation nuts. testified repairing that when a flat or began Just as he tightening lug nuts tire, changing always put he the same gun, explosion down with an air oc- ring, side and lock which had been thing curred. The next Zacher remem- removed, back onto the He rim-disc. also bered waking up on the floor of the every stated that careful service station shop in a pain. lot of He looked at one foot always attendant should reinstall the same and saw completely it was turned ring that was removed. around on leg pointing wrong his in the — Litzsinger, Dan employee, a Yellowstone direction. He also noticed that one arm testified that a company Yellowstone had badly had been injured. He believed that policy or rule that its drivers were never to he had lost the arm. permit a service station attendant to substi- hospitalized separate Zacher was on four equipment repairing tute when a flat tire. occasions for a forty-eight days. total of employees Yellowstone were told to make surgical procedures After several on his sure ring that the same rim and that comes leg, arm and his expenses medical totaled rig goes off the Litzsinger back on it. $19,300.05. past Claimed and future eco- experienced further stated an that even $634,990 nomic losses amounted to between shopman would be unable to tell visual $970,670. permanently and He was dis- examination, appropriate markings, absent from engaging abled in a line of work ring ring whether this side lock and required heavy lifting subjected which assembly rim-disc matched one another. leg any bumps his arm or to or jars. bad Peterson, Phil another Yellowstone driv- er, approximate- came Groves, back Windmill of Professor William head the ly one month after the accident. He ad- engineering department mechanical at the Lich, vised manager, Darrell Windmill’s South of Dakota School Mines & Technolo- that after this tractor-trailer was returned gy, expert testified as an for witness the Yellowstone, upon inspection, six more plaintiffs. elongation He testified that the just wheels like the one involved in the of the valve stem slot caused a loss of 27 of accident were found on the vehicle and rigidity 28ths of its contributed removed. causing explosive the of disassembly the wheel; components of the that the wheel

Another Yellowstone driver-employee comprised components; of mismatched Schuman, hung named shop around the wrong type and that the of of size and side per- most the time and watched Zacher ring ring and lock had used on repair job. form the been Yel- Schuman testified opinion, nothing wrong that Zacher did lowstone’s rim. In his the mis- ap- and peared repairman. explosive to be a skilled tire match also the contributed to dis- Zacher used of proper safety equip- assembly all the from the rim. risk, impute not the testified but allow the Groves further that

Professor and Dixon properly iden same to defendants Yellowstone failure to the manufacturer’s negligence, especially use component parts, by the of on the issue of when tify the into stamped the was no that Zacher had imprint an indelible there evidence either coding, of an inter steel, knowledge or the use of that information. color and This evidence was notice piece” which were re-cross examination of Professor used fective and tributed bly. sive also evidence dustry ognition explosion cording of such an such nents and the impounded within an inflated more than the the feasible, use. and would integrity of the disclosed below locking, During jury that must not consider rim rim and was still standpoint rim had been disassembly multi-piece comments multi-piece wheels are by expressed as “R 5 Use multi-piece wheels were He stated He testified that it would b. truck counsel indelibly to Professor matching by against acceptable standard of Trial prior of a “stick of imprinted warning causing trial, unreasonably dangerous, the wheel wheels were requested °: ensuing of that Motions accidents caused for rim, contained energy generated imprinted Yellowstone safety. model cautionary instructions locator indelibly imprinted onto the mismatch Budd not for Budd to opinion visible Groves, industry of the fact explosive disassem- quantity number have affected the and are during pin and R to the wheel in- His examination dynamite.” in the articles given, advised inherently after Rulings similarly truck tire the absence wheels, ring.” dangerous, cross- and have been ^[59930] care from by explo- safe, have hole, years of warning Groves, “single- certain compo energy Dixon. con rec- had Ac fell He de of whether Yellowstone after fendants sonably was implied grounds manufacturer and assembly, was liable Yellowstone ty the wheel Budd’s motion to dismiss wanton on the strict dence to three defendants on ment on the judgment did moved This motion was also denied.3 Yellowstone based ty causes of action on tionally These motions on and statute Prior to Budd moved the trial court the absence of the strict counts. jury. punitive damages a Dixon exchange that genuine questions manufacture warranty thorough misconduct. of moved for on all three theories trial, The trial exploded. trial requested summary judgment Following presentation limitations, and Dixon liability liability the six punitive damage counts whether jury, liable issue of were of the the trial court court for of whether count. any seller of the disc and rim inspection summary and breach warran- and breach warran- or sell the year product liability judge or Dixon made a rea- evidence willful All three defendants denied. See: summary judgment summary judgment count trial court material fact grounds trailer. The SDCL 15-2-12.1. of the three de- summary believed there SDCL 21-3-2. judgment Budd, prior for and granted of liability. multi-piece breach of that summary granted granted went to to and of evi- based judg- addi- jury they on all to asked Zacher’s claims was also whether (that multi-piece inherently all wheels are Budd SDCL 15-2- against were barred unreasonably dangerous). and defective special and They 12.1. returned a verdict objected cautionary to instruc- Zacher the the three defendants found that none of argued unfair tions. Zacher that it was negligent Budd and that knowledge had been jury the to use such allow liability Zacher the strict under against Zacher on the issues of contrib- liable decided that Zach- assumption theory. jury of also utory negligence and years than been delivered for use more six motions for had 3. The trial court’s denial of Budd’s year prior as the evidence did not six to the occurrence directed verdict on the basis of the any on date of deliv- solely exact information on the existence disclose ery. statute was based product concerning question fact whether (4) against granted claims er’s were barred summary judg- motions for product liability statute of limitations. ment on breach of warranty liability to Yellowstone and Dix- The trial court then ordered Zacher’s ac- on and refused to instruct on breach tion dismissed on the merits and that warranty against Budd; defendants recover their costs of should action, including taking their costs for (5) allowed defense counsel to read cer- depositions. Zacher moved the court for a publications tain jury; before the judgment notwithstanding the verdict or in (6) request denied Zacher’s to hear a re- trial, objected the alternative for a new witness; buttal hearing to the taxation of costs. A (7) refused jury to instruct that de- held, denied, Zacher’s motions were safety fendants’ violation of statutes depositions costs of most and rules constituted per appeals taxed. Zacher from judg- the final se; ment, judgment the denial of his motion for (8) taxed Zacher with defendants’ costs verdict, notwithstanding and the taxa- action, including of the their costs of depositions tion of costs. depositions.

c. Issues These issues are discussed in the above eight Zacher raises appeal issues on order as follows: urges that the trial preju- court committed 1. SINCE THE COURT’S INSTRUC- dicial error when it: TIONS WERE BASED ON PRIOR (1) applied jury and instructed LAW AND THE SIX YEAR PROD- 15-2-12.1, SDCL year product the six UCT LIABILITY STATUTE OF limitations; liability statute of LIMITATIONS, WHICH WAS SUB- (2) jury instructed that defendants SEQUENTLY RULED UNCONSTI- were not if they complied liable TUTIONAL, ARE ZACHERS ENTI- industry governmental stan- TLED ATO NEW TRIAL dards; (3) gave upon prior In reliance its own instructions law and the year

rather proposed than Zacher’s in- six statute of limitat structions; ions,4 15-2-12.1,5 the trial court provides: Although 4. SDCL 15-2-12.1 SDCL 15-2-12.1 is referred as a limitations, application may operate, statute of statute of as it did in limitations case, manufacturer, against repose to a cause of action as a statute of or nullification. product, regardless lessor or seller of a requires A statute of limitations a lawsuit to be legal theory substantive or theories specified period filed within a of time after a brought, the action is for or on account of legal right remedy has been violated or the death, personal injury, property damage wrong committed is deemed waived. A manufacture, resulting caused construction, from the repose speci- statute of bars all actions after a formula, installation, design, in- period fied of time has run from the occurrence spection, preparation, assembly, testing, packag- ing, labeling, of some event other than the occurrence any product or sale of or failure to injury gives rise to a cause of action. All protect against danger warn or or hazard in proceed statutes of limitation must on the idea use, any prod- the uct, misuse or unintended use of party opportunity has full afforded him provide proper or the failure to instructions However, try right his in the courts. since a any product, for the use of the cause of action repose begins statute to run from a date years shall be barred if it accrues more than six injury, unrelated to the date of an it is not delivery completed after the date of the designed to allow a reasonable time for the purchaser to its first or lessee who was Therefore, filing of an action once it arises. engaged selling prod- not in the business of such filing repose statute of bar the of a lawsuit uct, regardless of the date the defect in the though even the cause of action did not even product was or should have been discovered. though arise until after it was barred and even apply This section shall not which have arisen This statute was to causes of action injured person diligent seeking the was in 1, prior July to 1978. judicial remedy. Aircraft, Berry v. Beech repealed in 1985. See: 1985 670, S.D.Sess.Laws, (Utah 1985). P.2d ch. 2 and discussion of statute, history the of this infra. explosion-fire, jury. #366 to the ries executrix submitted Instruction perished injuries. from his against claims of one who Id. jury The found that Zacher’s at 424. The court rested its decision on the statute of Budd were time barred 15-2-9, application of two statutes: SDCL However, SDCL 15-2-12.1 limitations. year the six statute of limitations for defi- Daugaard was declared unconstitutional improvements to ciencies construction of Ass’n., Co-op Building Supply Baltic v. 15-2-12.1, property, real and SDCL the six Therefore, (S.D.1984). 349 N.W.2d 419 year product liability statute of limitations. court, through no fault of the trial Instruc- appeal, plaintiffs asserted that On erroneous and a new trial tion #36 was unconstitutionally statutes “locked these granted. must be they the courtroom door” before had an argues that even if Instruc Budd opportunity open it. at 424. Id. We erroneous, preju # 36 it was not tion was wrote: 15-2-12.1, irrespective dicial error of SDCL constitution, Our as enacted our fore- jury determined that Budd was because amended, occasionally fathers and is sol- not to Zachers under the theories liable upon id all core which our state laws liability negligence. We have ex premised. Clearly unequi- must be form, special jury’s amined the verdict vocably, our constitution directs same, question concerning and the court’s open courts of this state shall be answer thereto.7 We conclude that injured oppressed.... that Budd not lia

jury’s determination clearly ble to Zacher was based SDCL 15-2-9 and 15-2-12.1 SDCL are instruction, of limitations and not statute locked deadbolt and shackle on our court- solely separate on the basis of either strict unwilling room doors. We are to couch Therefore, negligence. re we SDCL 15-2-9 and SDCL 15-2-12.1 in argument. ject Budd’s language portends wishful their effect is somehow constitutional. SDCL Daugaard concerned consolidated ac- 15-2-9 and 15-2-12.1 are tions, statutes propane all of which arose out of a stamp of nullification which out our citi- gas explosion grain at the fire Baltic they zens’ causes of action before accrue. elevator. 349 N.W.2d at 419. The trial SDCL 15-2-9 SDCL 15-2-12.1 have summary judgment against court entered transgressed constitutional limitations inju- plaintiffs who had suffered severe Defendant, provides: you Company, 6. Instruction # 36 1. Do find The'Budd of the liable to Plaintiff under either follow- that, are instructed under the laws You ing theories? Dakota, action of South the causes of State No Yes defendant, against by plaintiffs asserted Liability x Strict you Company, from the are barred if find x Negligence assembly involved in that the disc-rim evidence purchaser or omitted] case was delivered to its first 2 & 3 this [Questions Plaintiffs’ claims (who engaged you the business of Do find was not 4. user by the Company are barred against years prior The Budd selling product) six such more than accident, of limitations? statute which accident in to the date of the Yes No Thus, August if this case occurred : X assembly _ you the wheel was delivered find that (who purchaser or user to its first answering questions, the above Before selling engaged such assem- in the business of following question the court: submitted 2, 1972, August you bly) prior then must answering "yes" auto- to #4 Question: Does The Budd verdict in favor of Defendant return a # 1 on matically answer “no" to us to force Company. of limitations has Since the statute form. See verdict both counts. by De- defense asserted as an affirmative been question "yes” # you If answer Answer: Company, it has the burden The Budd fendant against De- claims Plaintiffs’ will bar the proving defense. fendant, Company. The Budd 12, 1983 December Young Marshall special provided: The verdict form /s/ 7. aircraft duty approximately and therefore it is twenty-three our declare unconstitutional.8 these two statutes old at years crash, the time of and had purchased by been current its owner some Id. at 425. years nine provision9 earlier. trial “open courts” The court upon the awarded Based Constitution, Beech summary judgment Dau- on all Dakota theories of the South of liability repose unconsti- based on the statute of statutes declared the con- gaard court tained in so, section the sum- 3 of Utah’s tutional, reversed Product doing and in Liabil- ity (Act).11 Act Id. at 671-672. for trial. remanded mary judgments and 427. Id. at appeal, On the appellants claimed that Daugaard has by followed the Su- been section 3 was unconstitutional because it in Kenyon v. Court of Arizona preme Open violated the Courts Clause12 of the Hammer, 688 P.2d 961 (Ariz.1984),10 and Utah Constitution. Id. Characterizing Berry v. Utah in by Supreme Court of section 3 as “sweeping and absolute once (Utah 1985). Aircraft, 717 P.2d 670 Beech statutory period elapsed,” has the court Berry, In wife decedent’s and children held.that elimination all causes of wrongful against action filed a death specified after period action in the stat- airplane predicated upon manufacturer ute, regard without to when an injury oc- negligence, liability, theories of and curred, unreasonable, was arbitrary, and warranty. P.2d at breach 671. The unconstitutional Open violative airplane died in an crash. decedent The Courts Clause of the Utah Constitution. Daugaard opinion was not the first to 8. visions in their state constitutions. Id. at 965. express disapproval quoting statute. Daugaard, of this In McMack- After from the court held: 131, 140, State, en v. 320 N.W.2d rehear- specific provisions Given the aff’d the Arizona (S.D.1982), ing, 325 N.W.2d 60 Justice Dunn stronger open than the court Constitution— dissented, writing part, "I am convinced that provisions in the Constitutions South Dako- SDCL 15-2-9 is not a statute of limitations. ta, Florida, Carolina, Kentucky North and proceed theory Statutes of on the limitation any believe that statute which Alabama—we plaintiff try rights opportunity has his a full legit- bars a cause of action before it could time in the courts within certain limits. This imately abrogates brought be rather than lim- recovery allowing any statute bars all without its the cause of and action offends ... action, time for the of an commencement if the Arizona Constitution. following years comple- action accrues six tion of a Id. at 966-967. building. plaintiff No action can provides: Section 11. 3 of the Act remedy the situation." (3) brought recovery No action shall be for the damages personal injury, of age for death or dam- VI, pro- South Dakota Constitution art 9. property years six more than after the vides: purchase consumption, date of or ten use initial for or every open, years All courts shall be man for an after the date manufacture of a injury person repu- product, property, done him in or his where that action based or tation, law, of, remedy (a) due any following: shall have course of arises out of sign, inspection, Breach warranties; right justice, (b) any implied without administered de- Defects in de- manufacture; delay. (c) testing nial or or warn; (d) properly Failure to Failure instruct (e) product; Any in the use of other case, In this 10. the mother of a stillborn child alleged defect or failure whatsoever kind or brought physician malpractice against a medical action product. nature in relation to a based on his vicarious for the I, Article the Utah alleged negligence section 11 of Constitution of his nurse. The mother provides: wrongful commenced suit for the death of her bodily injuries. every person, child and her open, own The trial All courts shall an for summary judgment injury court physi- person, property, entered for his done to him in reputation, remedy by cian based on Arizona’sstatute of limitations or of denial or shall be shall have due course law, malpractice medical 964. death action actions. 688 P.2d at administered 963- shall be without reversing holding wrongful delay; person unnecessary and no maintainable, defending prosecuting the court noted barred from state, jurisdictions rejected any that have statutes before counsel of re- tribunal in this himself or pose “open pro- party. are those which contain which he is a courts” civil cause to 132 manufacturer,

Id. at 681.13 action against An a lessor product, regardless or seller of a case, began In Zacher’s SDCL 15-2-12.1 legal theory upon substantive which the to run from date of the first sale is brought, action for or on account multi-piece wheel. Budd constructed the personal injury, property or death dam- assembly disc-rim in 1951. The side age resulting caused or from man- ring assembly and lock was manufactured ufacture, construction, formula, design, by Firestone sometime before 1946. The installation, inspection, preparation, as- this multi-piece found that wheel sembly, testing, packaging, or labeling purchaser(s) delivered to its first more than any product sale failure to warn years explo- six before accident. The protect against danger or hazard in the injured sion which Zacher did not occur use, misuse any or unintended use of face, August 2, until 1978. On its product, provide or the proper failure operated 15-2-12.1 to time bar action any product instructions for the use of against Budd which occurred more than six be commenced within three years after the wheel was to its delivered years personal inju- of the date when the purchaser. importantly, first More how- occurred, ry, property damage death or ever, operated it here to bar Zacher’s cause became known or should have become existed, of action before it even and even injured party. known though diligent seeking judicial he was in This section prospective application. is such, remedy. operation As of SDCL S.D.Sess.Laws, 157, 1985 Source: ch. 1.§ 15-2-12.1 op- afforded Zacher no time nor terms, By its prospective this statute is portunity try rights his court. There- such, application. As apply does not fore, authorities, foregoing based case, minimum, to this but aat it does: us, before evidence find that we impliedly 1. affirm the decision in Dau- unlawfully extinguished Instruction #36 gaard by adopting Daugaard ra- right Zacher’s to seek injury redress for his providing tionale in year three stat- arose, thus, before it even denied him ute of limitations from the time justice. personal injury, damage; death or interesting It history to note the provide 2. a smooth transition for South supra. SDCL 15-2-12.1 since Daugaard, law; product liability Dakota above, As Daugaard indicated ruled the quiet Daugaard’s by attempt- 3. critics 1985, statute unconstitutional in In ing to settle the future. repealed 2, chap- statute was section Daugaard’s first critic was Justice Woll- ter 157 of the 1985 Sessions Laws. man, part who dissented as follows: “It addition, place, in its 1985 interesting will be whether life see Legislature enacted SDCL as 15-2-12.2 fol- span today’s majority opinion will lows: ephemeral composition as the of the court holding Sirmons, 13. For other decisions of limita statutes land Construction Co. v. 369 So.2d 572 repose (Fla.1979) builders); open provi tion or (engineers, violative of courts architects sions, Kennedy Hall, Engineering (build see: v. Saylor (Ky.1973) Cumberland v. 218 497 S.W.2d Co., (R.I.1984) (products liability); 471 repose). A.2d Wright 195 ers statute of See also: v. Inter Krusen, (Tex.1984) Harvestor, (8th Cir.1984). Nelson v. 678 S.W.2d 918 national 736 F.2d 483 (medical Sears, malpractice); Additionally, recognize Heath v. Roebuck we that other cases have Co., 512, (1983) (prod & repose 123 N.H. 464 A.2d 288 held statutes of constitutional under liability); Sullivan, Long ucts open provisions. Long v. & courts See: Tetterton v. Lankford (Ala.1982) 44, Hagerty, Co., (products Manufacturing 416 996 So.2d lia 314 N.C. 332 S.E.2d 67 Sons, bility); (1985) Squibb (products liability); Whiting Diamond v. E.R. & 397 Davis v. (Fla.1981) 541, (products liability); (1984) Or.App. So.2d 671 Corp., Bolick 66 674 P.2d 1194 589, Barmag Corp., N.C.App. (products liability); Dague v. American Piper 54 284 v. Aircraft (1981); 520, affirmed, (1981) S.E.2d Corp., 188 306 275 Ind. N.E.2d 207 418 modified (1982) Co., (products (products liability); N.C. Mfg. 293 S.E.2d liabili v. Thornton Mono Builders, ty); Inc., Phillips Ill.App.3d v. ABC P.2d 821 54 Ill.Dec. 425 N.E.2d 522 (builders (Wyo.1980) (1981) repose); (products liability). statute of Over produced long-lived it. However to- five enactment or regulation administrative McMacken, day’s interment of the decision prevent does not finding a negligence nothing repu- will do to add to this court’s where a reasonable man would take addi constancy, for consistency, tation and rea- precaution.”); tional Potter v. Battle Creek soned Daugaard, elaboration.” 349 Co., 71, Gas Mich.App. 185 N.W.2d N.W.2d at 428. (1970) (“[H]ad the defendant violated one, more, or of the standards of the com reputation

We submit that this court’s mission might that fact be for deemed to constancy, consistency, be and reasoned proof negligence or negli in evidence of strengthened elaboration has fact been gence, it does not Legislature’s coming follow that enactment of within the standards 15-2-12.2. ... insulates importantly, however, More defendant from finding of negligence.”). recognizes approves SDCL 15-2-12.2 See also: Re (Second) this court’s statement (1965) earnest search for of Torts constitution- 295A (“In determining al fairness. whether negli conduct is gent, the customs of community, or of Accordingly we hold that the trial court’s others under circumstances, like are erroneous, instruction was and we reverse factors to account, be taken into but are and remand for a new trial. not controlling where a reasonable man IS COMPLIANCE WITH INDUS- them.”).14 would not follow TRY, ASSOCIATION AND GOVERNMENT Therefore, STANDARDS instructions, trial court’s CONCLUSIVE? compliance that with standards exonerated liability, defendants from were clearly question The next is whether the trial prejudicial and reversible error. court committed error when it instructed that defendants were not if liable Additionally, plaintiffs proposed Instruc- they complied association, industry, with tion #2 instead of the instructions men- governmental standards. tioned above: determining whether the complains Zacher defendants that the trial gave guilty court Instructions 21 and for failure to 33 over use objections, his reasonable care in collectively connection these with performance by instructions amounted to a directed them of the verdict duties Budd, if complied they plaintiffs with owed to the the stan else- dards of their industry, instructions, own where defined in voluntary you as these sociation, governmental or may bodies. consider Zacher whether the defendants fol- points out that the contrary complied instruction was lowed or with the standards and law, law, to South Dakota universal customs of their industry own or trade. argued industry that no voluntary However, or compliance asso legisla- with such fact, may, ciation adopt enactments, its own stan regulations tive rules or is, dards as conclusive. That industry stan compliance and/or with the standards merely dards are a minimal standard that industry customs of their own or may considered, be and Instruction #20 trade are controlling and does not states that it is a conclusive standard. prevent you We finding negligent from them agree. See: Turner v. American Motors if a position reasonable man Corp., (D.C. General 392 A.2d reasonably defendants would or should Ct.App.1978) (“Compliance legisla with a have taken precautions. additional 14 Comment c on this section states: risk, or other elements in the case are such that a reasonable man would not conform to the group No industry individuals and no custom, may negligent the actor be found permitted, by trade adopting time, effort, can be careless it; conforming slipshod and whenever a reasonable and ey, expense methods to save mon- custom, depart man would may to set from the the actor its own uncontrolled standard at the negligent depart- be found community.... of the rest of not to in so circumstances, ing. particular [W]henever the particular

Whenever under through circumstanc- 10 and 18.16 objected Zacher es and view of the risk involved a Instruction # 19 provided because it person depart reasonable would from the Budd, manufacturer, must not be customs particular and standards of a plaintiffs found liable to the product if its industry or trade or precautions take ad- reached Zacher “any substantial required ditional to those by legislative change” in its condition from the time it enactment, regulation, rule or such a de- control, left Budd’s if “subsequent mis- negligent fendant be found if it fails use or other causes” made the depart to so or take such pre- additional dangerous. harmful or According to Zach- (emphasis original). cautions. er, this instruction misstated the law be- In view of the facts and circumstances of 19, cause neither Instruction # any nor oth- case, proposed this Instruction # 2 was an er instruction required covered the modify- applicable accurate statement of the law ing “foreseeability” issues of or “interven- given by and should have been the trial ing Therefore, argues cause.” Zacher that court instead of the erroneous instructions the trial refusing give court erred in to his mentioned above. The paragraph last proposed instructions. # properly Instruction 33 instructed the Not all changes substantial in the condi- compliance that [governmental] product tion of a will relieve the manufac- regulations could be considered as evidence turer of liability; nor will prod- misuse of a of the exercise of by reasonable care Yel- uct necessarily relieve the manufacturer of lowstone and Dixon but was not conclusive liability such under all circumstances. The However, on the negligence. issue of overriding ignored by consideration the tri- instruction did not correct the error in re- al court’s concerning instructions both the spect to the conclusiveness of standards of alleged changes substantial or alterations industry voluntary associations. wheel, to subject alleged and its mis- Therefore, this error only relates not to the use, was the doctrine foreseeability. against claims Budd but also against the defendants Yellowstone and Co., Olson v. A.W. Chesterton 256 Dixon. (N.D.1977), N.W.2d 530 conveyor op- belt 3. FORESEEABLE PRODUCT MIS- personal erator sustained injuries ap- after USE, MISMATCH OR CHANGE plying dressing a belt conveyor to the belt DOES NOT THE RELIEVE MANU- upon which he working. Thereafter, FACTURER OF ALL LIABILITY brought against he an action the manufac- NOR ITS DUTY TO WARN turer dressing of the belt based on the theory

Zacher liability contends that the strict in tort. trial court com- Because mitted by giving warning reversible error on the dressing Instruc- belt container 19,15 compounded tion # required application by error pouring it slowly refusing give proposed his running belt, Instructions 5 over the operator provides part: Instruction # 19 change without substantial in the condition it was in when it the control respect With to the claimed defective condi- left Defend- ant, Company, The Budd assembly tion of the disc-rim case, involved in this Fifth, Plaintiff, Zacher, James H. used the you subject are instructed that to the de- product Defendant, in a manner which the indicated, previously fenses a manufacturer of a Company, reasonably The Budd could antic- product damages proximately is liable for ipate it would be if, used.... product caused its First, Company The Budd is not condition; liable it delivers a it was in a defective if product Second, subsequent in a condition and mis- the defective condition made the disc- safe product use or assembly unreasonably other causes make such dangerous rim Plaintiff, harmful added). Zacher; dangerous_ (emphasis James H. Third, the defect existed at the time it left the proposed through 16. Zacher's Instructions 5 10 control of the Defendant, and 18 would modified have Instruction # 19 Company; The Budd acts, providing foreseeability, intervening Fourth, assembly expected the disc-rim causes, superseding Zacher, and other Plaintiff, events. and did reach the James H. top 604-608, directly one of the to decide. Id. 79 S.D. at squirted it argued pulleys, the manufacturer drive Similarly, N.W.2d at 240-242. in Vanskike application operator’s method of Industries, Inc., (8th v. ACF 665 F.2d 188 product, misuse of the thus re- constituted Cir.1981), denied, cert. 455 U.S. lieving liability. The court held: them (1982), S.Ct. 71 L.Ed.2d 867 the court that one who manu- It is now well-settled stated: product duty has a not factures or sells recognizes The law there can be dangers inherent in its only to warn liability supplier though of a even use, dangers intended but also warn product changed is altered or if it is can involved a use which be reason- foreseeable alteration would be ably anticipated. change made and the does not unforesee- Id. at 535. ably product render the unsafe. responsibility dual The court found this 203-204, quoting at Id. from Hales v. applicable cases based Colonial, Inc., Green 490 F.2d negligence, but on strict liabili- (8th Cir.1974). ty Regarding theory, the latter well. In Griggs v. Firestone Tire & Rubber quoted part the court from Thomas v. (8th Cir.) Company, 513 F.2d 851 81, cert. Corp., Cal.App.3d 13 General Motors 865, (1970) denied, 423 U.S. 96 46 CalRptr. 91 306 and stated: S.Ct. (1975), L.Ed.2d 93 the court held that Although plaintiff it is on a incumbent design there exists a seeking impose where both defect and to strict to estab- injured using product, lish that he while the misuse of the was it is assumed product way to accident, a was intended be that each to an contributes used ... a manufacturer be held product intervening misuse of is not an liable where the misuse the customer cause if the misuse was foreseeable. Id. at foreseeable_ reasonably was Wheth- Griggs 861-862. awas service station at product by er the use or misuse of a personal injuries tendant who sustained plaintiff reasonably is was foreseeable rim assembly exploded when a tire and as ultimately jury question. a attaching multi-piece he a wheel to a Here, gave the trial court in no He sued the rim truck. manufacturer jury “duty structions to the that Budd’s to negligence. based on The case was tried applied theory warn” to the of strict liabili jury plaintiff a was awarded before ty. gave duty Instead the court a to warn $250,000 damages. appeal, On the man applica instruction which limited in its ufacturer, Firestone, questions raised con negligence. theory tion to the of Since the Griggs cerning duty its to warn testimony of Professor Groves was that explosive disassembly. possibility of an Id. indelibly the manufacturer’s failure to im similarities to the Zacher at 853. Other print cautionary upon information the rim are: case ring subsequent contributed to the ex component parts: —A of a mismatch give duty plosion, the failure to a to warn type ring “R” side Firestone instruction, enough encompass broad lock had been used on a “5°” liability, constituted error reversible °”) rim; (also “R known as a under the Olson rationale. —The manufacturer conceded that This court has held that the issue of components ca- mismatched foreseeability jury, is fact issue for the pable being together, assembled not an issue law for the court. Rikans po- and that such a mismatch was Canton, City rud v. 79 S.D. dangerous; tentially (1962). Thus, plain if N.W.2d 234 even only job station —The that both service contributorily negligent, tiff assumed employed per- attendants were intervening supersedes whether force tires; change flat jury the defendant’s is for form was to independent, intervening —Both attendants reassembled the same tuted an act parts presented superseding mismatched to which constituted the cause of them; rejecting accident. Id. at 856. In contention, quoted first the court from the appropriate identifying absence —The (Second) of Restatement Torts warnings indelibly im- marks (1965),17and then stated: rim printed com- directly In difficulty the instant case we have no ponents; proposition reason- —Testimony indicated that it was feasi- ably could have found that defendant ble, and would have meaning- been its duty had met to exercise reason- ful, imprint warning directly By any care. danger able standard the upon the components inhering steel rim in defendant’s must be affecting without great: poten- integrity deemed there is obvious rim; wholly injury tial severe from unan- ticipated explosion of a wheel assembly warning —The failure literature dis- great pressure in proximity under close tributed the manufacturer repairman. to the As Firestone acknowl- trickle down to service stations literature, edges warning in its the re- repaired truck tires. sulting may easily grievous harm bod- Id. at 853-856. ily injury or even po- death. Given this Griggs, the manufacturer raised two injury, tential for severe we say cannot First, appeal. argued issues on Firestone a matter law that defendant dis- “duty that it had fulfilled its to warn” charged duty through its the informa- distributing cautionary literature to its dis- it supplied tional literature which only, obligation tributors and that it had no parts various distributors and automobile personally Griggs. to seek out warn using manufacturers its rims.18 To so Second, Firestone claimed that as- ignore hold to would be the fact that the negligence arising sumed out aof breach jury was not bound to consider such an duty of its to not warn could have been the campaign informational necessarily proximate explosion equivalent cause the because to the exercise of reasonable components Restatement,19 the mismatch of the rim consti- care. As noted in the (Second) tions; 388 of campaign § 17. the Restatement of Torts therefore the informational provides: warning adequate proba- was not method for through Griggs, supplies directly ble users of the rims. at One who a F.2d 858 n. third person subject a for 5. chattel another to use is to supplier to those whom the should ex- pect to use the chattel the consent of the (Second) 19.Restatement of Torts § com- use, endangered by probable or to other be its nment at 309-310 states: physical for harm caused the use the always Since the care which be must taken by person in the manner for a chattel which and involved, danger may increases with the it be supplied, supplier it is for whose use if the require supply through reasonable to those who a) knows or has reason to know the that chattel ignorantly others chattels which if used involve likely dangerous to is or is be use for the for grave risk of serious harm to those who use supplied, it is which * * *, precautions bring them to take to the b) no to has reason believe that for whose those to information home the users of such chattels supplied the is use gerous chattel will realize its dan- it be would unreasonable to demand condition, dangerous were the chattels of a less character. c) to to fails exercise reasonable care inform dangerous them of its condition the or of facts Thus, may proper permit suppli- while it be to a likely dangerous. which make it to be through sup- er to assume one he that whom plies dangerous Although slightly supplied warning a chattel which is 18. Firestone litera- rims, given will communicate information him to ture immediate distributors of its it, jury that those who are to use he that the court stated could have found unless knows careless, may permit campaign improper this is it that informational other be to did ade- quately many conveyance necessary "trickle down" to him trust local dealers to products highly Firestone area service sta- information of the actual character of a may itly acknowledged care dictate that a warn- reasonable its that ing impressed directly be on the article “dangerous for the use which it is (as here) danger great when is supplied” and that “for those whose use warning a impractica- such would not be is supplied” chattel would not realize or unduly ble Plaintiff burdensome. dangerous that condition. See: Re- testimony presented jury from which the (Second) Torts, statement supra. How- warning prac- find that could such ever, disputes vigorously the claim and, already im- ticable since Firestone that it failed to exercise reasonable care presses identification information on its warning Zacher danger. of that As noted parts, jury obviously rim could find supra, in Griggs, the Restatement com- impressing warning that the of additional danger posed ments indicate that the by a unduly information was not burdensome. may great chattel be so as to make it believe reasonably We could supplier unreasonable for a ordinary found entrust required have that care con- warning impressed directly be on veyance warning of a to a middleman in the dangerous instrumentality. chain of distribution. In such circumstanc- es, supplier may required, Id. at 858-859. be where literature,20 “practicable unduly and not burdensome” warning Here Budd’s own to make the chattel its carry own warning. which was circulated to its dis- immediate tributors, Zacher, implic- but never seen at F.2d dangerous person dangerous article to third whose danger their character. Where the nothing....

character he knows ignorant quality involved the of their use true danger ignorant in the [I]f involved use of a great practi- and such means of disclosure are very great, particular may chattel is it be burdensome, unduly cable and not well supplier the entrusting does not exercise care in reasonable supplier required be adopt should be necessary the communication of the them. person good information even to a reason to believe articles can be made whom he has Many careful. such reprint warning 20. A of some of Budd’s litera- carry message their own appears plaintiffs ture Exhibit 53. indicating sufficiency ... with a substantial Griggs court further stated: twenty-six more, for years or and that it probably will have to be disassembled at closing

In issue, our discussion of this we least year. once a In any the life of observe necessity rim disas- given rim, therefore, sembly is there are infrequent not an numerous occurrence. The record may components may indicates that a rim occasions when last be mis- Griggs, legal created. In Firestone asserted potential ‘bomb’ matched and had not warning appropriate to causation been demonstrated be- calculating the In components cause the mismatch of assumed that consti- danger, Firestone independent intervening tuted an cause of servicing its rims would real- people most Griggs’ injuries. 513 F.2d at 861. The possess dangers presented and ize the court stated: experience to requisite aptitude and safely (emphasis rim in [Wjhether intervening ... assemble act will consti- original). independent intervening tute an cause is question (citations foreseeability, of say as a matter of law We cannot ... ommitted) ... Even where the act is for Firestone to that it was reasonable party, of a third the act does according warning devise its method superseding not become a cause where ‘a assumption regarding rim users. to this knowing reasonable man the situation Indeed, inevitability in view the existing person when the act of the third practical disassembly rim fact regard highly was done would not it as cases, that, repair at least in some extraordinary person that the third had here, undertaken, bound to be (Second) so acted.’ Restatement of Torts particular with the those not familiar 447(b). Moreover, ‘the law does not rims, multi-piece dangers these require precision foreseeing the exact that Firestone’s as- jury could find consequence’ hazard or which in fact and that it sumption was unreasonable transpires; it is sufficient ‘if oc- what care, (emphasis duty its add- failed curred was one of the kind of conse- ed). might quences reasonably be fore- Id. at 859. (citation omitted). seen.’ case, testimony present In the indicated Thus, rejecting Firestone’s second con- reasonably prudent service station that a tention, the court held: repairs a flat tire on a truck attendant who alleged intervening In this case the compo the same wheel should reassemble compo- mismatch of the rim cause—the compo nents and make no substitution precisely against nents —was the event experienced in parts. nent Zacher was safety lit- which Firestone warned its working multi-piece with wheels. How erature. It does not matter ever, markings there were no discernible oc- exact manner which the mismatch components on the which indicated their not foreseen. Firestone can- curred was type. A mere visual examination size and that, law, argue as a matter they not match did not disclose that danger contemplated precise which it ing parts. Yet as stated Professor Accordingly, was unforeseen. this con- Groves, experienced mini Budd would have tention must fail. expense indelibly imprinted mal to have Id. at simple upon the wheel and rim the warn Indeed, addition, stem ing: ring.” “R 5 °: R 5 the fact that valve Use rim, edge rim elongated the Firestone Groves testified that slot was not, Zacher indelibly stamped which had did and need not have caused been Dixon, president of model was still visible after concern. Jim vice number Brothers, Therefore, elongated years of use. have Dixon testified that that a duty Griggs, breached its to warn under valve stem slots were so common foreseeability prudent service station attend- supra, “reasonably in view of the of mis them, therein, danger “pay no attention” to parts, matched the inherent ant” should put to- warning and should “reinstall it or it back the failure of its literature using gether way it came into ... stations its the same “trickle down” service evidence, the products, inability expe shop.” an Based on this of even [the] elongation of the repairman jury the mismatched could find that the rienced to notice Zacher’s parts. valve stem slot before it reached 140 alteration, error,

hands was a “foreseeable” and Zacher claims this is that the theo- alleged that the “misuse” the mismatch substantively that, ries are different and components similarly foreseeable by failure to instruct on each of such theo- ries, Budd. prevented the trial court jury from considering separate theories. # trial court’s Instruction 19 In jury Laboratories, advised the that Pearson v. any substantial Franklin misuse”, Inc., change “subsequent (S.D.1977), and 254 N.W.2d 133 we noted subsequent rather than “unforeseeable” product that once it was established that a misuse, necessarily exists, would relieve Budd defect there was little difference such, liability. As the trial court errone liability between theories of breach of ously removed the issues of “foreseeabil warranty tort, liability apart and strict ity” “intervening” “superseding” availability from the of the defenses of lack jury despite cause from the evidence to the notice, disclaimer, perhaps lack of contrary. Joseph Ryer See: Graham v. T. privity. warranty requires proof Breach of Sons, 480, Mich.App. son 96 292 & N.W.2d product that a did not expecta- conform to 704, (1980) (Exploding multi-piece 708-709 tions; product that the was either nonmer- case, held, (1) Jury question wheel existed chantable or unfit for ordinary purpose. an as to whether manufacturer of wheel side 57A-2-714(l), 57A-2-314(2)(c). duty “special” danger had to warn of liability, hand, Strict on the other requires repairman involved engaged to tire in re product be defective and unrea- pair tire, (2) of flat and Manufacturers are sonably dangerous. (Second) Restatement duty design products bound to that are of Torts 402A. As between strict liabili- § reasonably safe for their intended or antici ty under 402A warranty liability, use, pated reasonably include warranty predicate, ordinary “fitness for anticipated misuse.); Henkel v. R and S purposes,” appears to set a liability lower Co., (Iowa 1982); Bottling 323 N.W.2d 185 threshhold that is more beneficial to a Niffenegger v. Lakeland Construction plaintiff. appears It also easier for the Co., 945, Ill.App.3d 95 50 Ill.Dec. 420 jury apply. However, to understand and (1981); N.E.2d Southwest Wheel several courts pur- have held that for the Sholts, Manufacturing & Co. v. instructions, pose jury liability strict (Tex.Civ.App.1973); S.W.2d 387 Knowles v. warranty claims subsume the claim and (1961); Jenney, 157 Me. 173 A.2d 347 upheld give have trial courts’ refusals to 63 Am.Jur.2d Liability Products §§ parallel instructions. (1984) and 961 and cases cited therein. Co., In Foster v. Ford Motor 621 F.2d foregoing, Based on the we hold that the (5th Cir.1980), the Fifth Circuit Court prejudicial trial court committed and re- Appeals responded plaintiffs claims by giving versible error Instruction # 19 they were entitled to an instruction on without modification for foreseeable mis- of warranty breach as follows: “We note use, change, failing mismatch and and by proof the elements of theory for that give jury separate instruction liability substantially strict are similar.” duty based on Budd’s to warn under the nega- Id. at 719. The court noted that the theory of strict in tort. implication warranty require- tive IMPLIED WARRANTY AS SEPA- goods ments—that ordinary be “fit for the RATE, SUBSTANTIVE THEORY purposes goods for which such are used”— originally goods The trial court unreasonably denied defend- is that “the not be ant summary judgment dangerous.” Budd’s motion for noting jury Id. implied on the warranty issues of legal theory only strict should be instructed on a liability. It instructed with re- if the justify evidence sufficient to such spect instruction, theory to defendant Budd on the pointed the decision out that however, liability choosing, proof primarily not to was directed instruct implied warranty. on the issue of issue of whether the itself was

141 However, decision, in dangerous.” Id. at 718- view of our the taxa- “unreasonably Foster, against evi- tion of costs them is vacated. in most of Zacher’s 719. As multi-piece to show that wheel dence went Accordingly, this case is reversed and dangerous unreasonably or are assemblies in remanded for a new trial accordance defectively designed. opinion. with this 642 McKnelly Sperry Corp., In v. WUEST, C.J., FOSHEIM, J., concur. Cir.1981), (8th 1101 the court held that F.2d Liability under the Iowa Products Law HENDERSON, J., concurs with a writ- theory warranty did not have breach ing. when strict liabili

be submitted MORGAN, J., part concurs in and dis- ty fully are submitted. The part. sents in Eighth Court noted: Circuit HENDERSON, Supreme (concurring). the view Justice The Iowa Court takes liability ordinarily in lieu of that strict Co-op. In Daugaard Bldg. Sup v. Baltic implied warranty, and theory both Ass’n, (S.D.1984), 419 ply 349 N.W.2d we only in ‘ex- theories should be submitted repose, determined that two statutes of ceptional situations.’ This is as because 15-2-12.1, namely 15-2-9 and SDCL matter, practical the issues under im- open provision violated the courts of South plied warranty adequately are submitted VI, Dakota Constitution Article § liability, particularly per- strict in a under Daugaard thereafter was cited in Salem injury opposed as to an economic sonal Constr., Inc., Dist. v. Puetz 353 Sch. 43-3 injury action. (S.D.1984), authority N.W.2d as for previous In 642 F.2d at 1105. view of our summary judgment. In vacating Wright Pearson, holding supra, Eighth in Cir- Co., (8th 736 F.2d v. Int’l Harvester appear applicable Cir.1984), cuit decision would to be Eighth Ap Circuit Court of Therefore, in Dakota as well. al- ruling South in peals Daugaard also acted on our implied though separate warranty instruc- pro for and remanded that case further required are favored and in tions ceedings light Daugaard. in cases, certain it was not reversible error State, Daugaard overruled McMacken v. the court to refuse these instructions in for (Justices (S.D.1982) Dunn 320 N.W.2d this case. dissenting), and Mitchell and Henderson addition, Constr., In Zacher was entitled No. 17-2 v. Sch. Dist. Welfl (Justices implied warranty (S.D.1983) or to instructions on Dunn and N.W.2d 138 liability against dissenting). defendants Yel Henderson lowstone and Dixon. Yellowstone was the spiritually agree I with the Obviously, property owner and lessor of the my dissent in writing of this Court. instant case and its drivers continued to McMacken, preclusion I of ac- decried operate equipment under the lease with setting forth numerous cess to the courts equip Dixon. Dixon was the lessee of McMacken at 140. decisions this nation. equipment. ment. Both were users Furthermore, pointed I out said dissent Neither Yellowstone nor Dixon were sell VI, Dakota that Article 20 of South ers, lessors, equip or manufacturers of the the intention of our Constitution manifests Zacher, ment as to who was not a user of our courts shall remain forefathers that (i.e., equipment repair, but a bailee man’s or open injury for an done to a hire). fix There a bailee to the flat tire for reputation. property, person, woman’s fore, neither Yellowstone nor Dixon sub authorities set with the various Girded jected liability themselves to under theories dissent, Daugaard was bom. forth in said implied warranty. of either strict Now, holding quoted verbiage and its highest courts of Arizona have all of the other issues cited

We reviewed in the sound- strengthens my beliefs by the Zachers and find no error. Utah raised underlying ness of the Const., rationale of Dau- Dist. No. 17-2 v. 329 N.W.2d Welfl gaard. (S.D.1983). The justices same five sat on that case and the same three-two deci MORGAN, (concurring part, in Justice sion resulted. The McMacken decision was dissenting part). in also followed the federal courts in Ven Den Hul judgment Co., I would affirm v. Baltic and there- Farmers Elevator (8th part Cir.1983). fore I dissent in 716 F.2d 504 part. and concur in issue, As to the first the unconstitution departure The from the au McMacken ality VI, 15-2-12.1 in light of art. thority came in Daugaard, about supra, Constitution, 20 of the South Dakota § when two dissenters McMacken majority’s reputa reference to “this court’s joined by judges two circuit court constancy, tion for consistency and rea declaring the statutes in violation of art. soned elaboration” has a hollow when VI, 20 on the theory same as had been § the decisions on this issue are studied. expressed in the dissents in McMacken. Furthermore, suggest reputa that such Daugaard was then followed Salem strengthened by tion is legislature’s Const., Inc., School Dist. v. Puetz 43-3 reaction to Daugaard Co-op. v. Baltic (S.D.1984). N.W.2d 51 Ass’n, Bldg. Supply (S.D. 349 N.W.2d 419 It was between the McMacken and Dau- 1984) by 15-2-12.2, enactment of SDCL gaard cases that this case came on for cook, who, having mindful of the split the trial. majority notes, As the correctly layer cake in removing it pan, from the trial correctly court followed the McMack- problem by covering solves the the flaw giving en decision in the instructions to the icing. jury. just This is such a situation that calls issue, To examine this we must first rec constancy out for the consistency that ognize that statutes of the nature of SDCL majority espouses. It Daugaard 15-2-12.1, “supplier’s denominated as stat that created inconstancy and inconsist- utes” and statutes of the nature of SDCL ency suggest and I the correct re- 15-2-9, denominated as “builder’s stat sponse is to be constant and consistent utes,” commonly are together considered with the rule that can best stand critical purpose for the analysis constitutional scrutiny. appropriate That would be “open under provisions court” of state con majority’s call for “reasoned elaboration.” stitutions, VI, such as art. 20 of the § “Reasoned elaboration” is redundant be- South Dakota Constitution. majori As the cause definition “elaboration” is the art notes, ty correctly not, these statutes are process elaborating, or which in turn is strictly speaking, limitation, statutes but expansion, defined as development per- operate rather repose statutes of especially by fection analysis reasoning. cases such as this. This distinction was compare controverting Let us then deci- discussed in our decision in McMacken v. sions for respective analytical their State, or rea- 131, 139(S.D.1982), 320 N.W.2d aff'd soning processes. rehearing, 325 N.W.2d 60. constancy record on consistency begin We must reasoning pro- first reflects that the first genus time this by recognizing long-standing cess rules statute light was considered in the of art. of constitutional law that one who seeks to VI, McMacken, 20 was in supra. The have a statute declared unconstitutional opinion majority and the dissents in proving bears the burden beyond a rea- case reflect divergency of views on the sonable doubt that the statute violates issue across the nation. The views re provision. state constitutional There is a flected in the strong McMacken decision presumption were the that laws enacted justices views of the five then legislature on this are constitutional and that bench. The presumption McMacken decision was then is rebutted when it clear- followed in the ly, decision of palpably plainly appears Mitchell Sch. of the South provision violates statute Matter Certain

Dakota Constitution. encroach This Court would Boundaries, Etc., 281 Elec. Territorial ability guide develop- Legislature’s (S.D.1979). These basic tenets 72 N.W.2d legisla- if invalidated ment of the law we wholly construction of constitutional the rule enacted simply tion because decision, nor do Daugaard from the absent Legislature rejects some cause of the majority in the them mentioned we find currently preferred by the courts. action opinion. place certain rules To do so would be to noncon- of the ‘common law’ and certain reasoning Dau- of the analysis The all stitutional decisions of courts above quotation in the was stated decision gaard amend- change except by constitutional majority: noted ment. a result would offend our Such constitution, by our fore- as enacted Our of the checks and balances be- notion amended, occasionally is sol- fathers and govern- the various branches of tween laws all our state upon which id core ment, flexibility required for and of the Clearly unequi- premised. must be healthy growth of the law.” directs that vocably, our constitution open to the state shall be McMacken, (quoting courts of this 137 320 N.W.2d at oppressed.... 279-81, injured Pa. at 382 Storage, 476 Freezer 720-21) (brackets original). in are a A.2d at 15-2-12.1 15-2-9 and SDCL SDCL on our court- and shackle locked deadbolt in reasoning particularly pertinent This doors_ 15-2-9 and room 1951, us. In the case we have before of nullifica- are statutes SDCL 15-2-12.1 ques- of the wheel in time of manufacture stamp our citizens’ causes out tion tion, in cause of action strict liabil- Zacher’s they SDCL 15- accrue. of action before did not known. Not until 1973 ity was 15-2-12.1 have trans- 2-9 and SDCL liability as a adopt Dakota strict South limitations and gressed constitutional product liability in cause of action viable duty it is our to declare these therefore Co., 87 S.D. Engberg v. Ford Motor cases. statutes unconstitutional. two (1973) (adopting 104 Re- 205 N.W.2d fol- regard, Daugaard decision Torts, In this (Second) a of 402A as statement § of Justices Dunn closely the dissents lowed justifi- liability). Part rule of strict Henderson, McMacken; Henderson liability to the applying strict cation for J., being Daugaard. the author of policy products public is that sellers injuries caused that the burden of dictates strident, jingoistic language of the The placed upon those who mar- by products be rejected by dissenters McMacken treated as a cost ket the and be majority. The McMacken the McMacken liability insurance production against which decisions several of the opinion examined (Second) of including obtained. Restatement unconstitutionality can be supporting (1977). As one c Co., Torts 402 comment River Live Stock § Lamb v. Powder noted, premise Co., has this basic (8th Cir.1904), author F. 434 Overland Const. applicable in a liability may not be (Fla.1979), Sirmons, 369 So.2d 572 Inc. v. Note, product. involving an “old” Hall, case (Ky. 497 S.W.2d 218 v. Saylor Cooperative Building however, Baltic Daugaard v. 1973). found majority, Limita- Statutes case, Supply Association: Storage, Freezer Inc. v. Pennsylvania Unconstitutional, 30 S.D.L.Rev. Held Co., Pa. 382 tion Armstrong Cork (1984). (1978), to be better reasoned. A.2d 715 liability— predicate for strict right in con- A basic one vested ‘has “[N]o to distrib- ability of a manufacturer body of existence of an immutable

tinued law_ price of his injuries ute the cost of practical re- [T]he apply in cases product may not [contrary] conclusion would be sult of — sold, the When the machine kind. stagnation of the law the face in” “cost tort could not manufacturer changing conditions.’ ... societal liability 1986), on the of a proper basis standard that we set application forth years VI, would evolve 20 in the future. “open provi art. courts” Oien, sion. we refused to allow (quoting Dep’t. at 166 U.S. Id. of Com- legislature sovereign immunity to extend merce, Interagency Task Force on Product destroy a of action cause that existed at Liability (1977)). Report, Final VII-22 common law. There is no common law presents type This case of scenario hand, claim in at the case since strict liabili envisioned the commentators when look- ty recognized was not in South Dakota ing purposes at the behind strict until 1973. repose. Why vis-a-vis statutes of should Company strictly held liable for a Does line this new of decisions over- also multi-piece wheel manufactured 1951 Giebink, rule our decision Alberts v. 299 (1) multi-piece when wheels were the (S.D.1980), N.W.2d 454 wherein we refused type being of wheel manufactured at that adopt discovery a rule and held that a date; (2) a of cause action cause of malpractice action medical recognized by was not South Dako- years must arise two of within occurrence? twenty-two courts years ta until some after Henderson, J., the author Daugaard, of manufacture of the wheel? concurred in the Alberts decision. More- The McMacken decision also relied on over, does this line of cases overrule our authority. South Dakota case In Behrns v. Hunt, decision in v. Hunt 309 818 N.W.2d Burke, 96, (1975), 89 S.D. 229 N.W.2d 86 (S.D.1981), this purported wherein court examining VI, art. of20 the South Dako § abolish the common law tort of criminal Constitution, ta court said that the Daugaard, conversation? 349 N.W.2d See provision J., (Wollman, at 427 dissenting). “is guarantee a ‘for wrongs that such as And, analysis reasoning under the recognized by are the law of the land the cases, this line of what does the hold future open courts shall be afford a reme- repose for the relating statute of to animal ” Kidd, dy.’ 1949, 41, Simons v. 73 S.D. 48-18-10; trespass, the SDCL statute guest 38 N.W.2d 883. The statute de- repose dealing with contracts for sale un- injuries clares that guest suffered a UCC, 57A-2-725; der the SDCL the statute (cid:127)because of a host’s are not repose concerning malpractice medical “ recognized by ‘wrongs caused as actions, 15-2-14.1, legal malprac- ” law of the land.’ actions, tice appears SDCL 15-2-14.2? It Behrns, 100, 89 S.D. at 229 N.W.2d at 88. any abrogation po- that diminution of right given, “Where no of action is how tential action cause of would violate art. ever, exists, or no remedy under either the VI, 20 under the broad of Dau- stroke § statute, common law or some those consti gaard. provisions tutional create none.” Simons The majority cites us to two that cases Kidd, 47, 41, 883, 73 38 v. S.D. N.W.2d 886 Daugaard: have Kenyon followed v. (1949). Conversely, where a cause of ac Hammer, 69, (1984) 142 Ariz. 688 P.2d 961 implied is tion or exists at common law and Berry Aircraft, v. Beech 717 P.2d 670 abrogation, statutory plaintiff without (Utah 1985). respect right With to the Arizona litigate has a and the courts will case, malpractice action, Ari medical remedy. fashion a Helgeland, Hoekstra v. 82, (1959); adopted zona court the Daugaard 78 S.D. theme as N.W.2d Swanson Ball, 161, supportive pro (1940); open 67 S.D. of the Arizona v. N.W. 482 courts Scott, 422, Moberg pointed v. vision decision out 38 S.D. 161 N.W. 998 which the then (1917). In very stronger prov recent case of than the South Oien v. Dakota Falls, City (S.D. strong provision Sioux 393 N.W.2d 286 ision.* If as our were as Kenyon, open provision, *In 142 Ariz. at 688 P.2d at 966 “Instead of an court Arizo- (1984), specific require- stronger na has a more court noted: provides ment. Art. follows: Arizona’s, might agree I I well that Dau- that affirm would taxation however, gaard appropriate; theme costs as allowed trial court. danger is not case. is also That results,

comparing solely cases based on regard similarity

without statu

tory provisions. and constitutional case, hand, on the other Utah does open

involve provision. an identical courts among

I that it concede numbers Utah repose

states which hold statutes of uncon- passing stitutional. It is of more than in- The PEOPLE of the State of South Dako- opinion goes terest also on to J.H., ta in the Interest of T.H. and Chil- discuss the affect the decision have will D.H., Concerning dren and Father previous including decisions a medical mal- T.C., Mother. practice give action. I further the Utah No. 15270. having court credit for examined the issues respect equation. with to both sides of the Supreme Court of South Dakota. I Finally, majori- do take issue Sept. 19, Considered on Briefs 1986. ty’s suggestion legislative that the reaction Decided Nov. by amending to Daugaard SDCL 15-2-12.1 provide a three-year statute of limita- approval tions Daugaard amounts to is noteworthy

theme. It the same

legislature 15-2A, also enacted SDCL ch.

dealing with limitation actions for con-

struction deficiencies. SDCL 15-2A-1 sets great

out length legislative at reason-

ing for necessity repose. of a statute of

While appears statute never-

theless doomed to extinction under the cases,

Daugaard line clearly it does legislature

demonstrate that did not

intend “impliedly affirm the decision

Daugaard adopting the Daugaard ra-

tionale.” regard issue, agree

With I the second

with majority trial court erred

in giving No. instruction 20 rather than proposed

Zacher’s instruction. I would

hold, however, that preju- Zacher was not as,

diced inasmuch at the time of manufac-

ture, all truck wheels in this manufactured

country multi-piece would, I wheels.

therefore, not reverse that issue.

Finally, respect to the third issue on instruct,

failure to I would not reach those my

issues argument under on the constitu-

tionality of SDCL 15-2-12.1. I concur

the balance of except the issues discussed right damages subject of action to recover amount recovered shall not injuries abrogated, statutory shall never be limitation.”

Case Details

Case Name: Zacher v. Budd Co.

Court Name: South Dakota Supreme Court

Date Published: Oct 29, 1986

Citation: 396 N.W.2d 122

Docket Number: 14483

Court Abbreviation: S.D.