May 10, 2000
Presented at the ALFA International 2000 Product Liability Practice Group Seminar in Atlanta, Georgia, on May 10, 2000, by HunterMaclean Attorneys.
This work was written originally for the ALFA International 2000 Product Liability Practice Group Seminar held in Atlanta, Georgia. This paper was co-authored with William 0. Martin, Jr., Esq. and Suzy M. Snyder, Esq. of Haight, Brown & Bonesteel, L.L.P., Los Angeles, California.
A. THE OPTIONAL SAFETY DEVICE
In assessing whether you should offer the safety device brought into your engineer’s office, or designed by your R&D department, as an “option,” the manufacturer must conduct a risk-utility or cost/benefit assessment. However, the manufacturer is not alone in weighing the risk and utility. The consumer must similarly weigh his or her own costs and benefits of purchasing an optional safety device. In some scenarios, the consumer is in a better position to assess the uses of the product and determine that the safety feature is either not economically desirable, or that the consumer is willing to assume the risk and become a self-insurer for itself, should an accident result from the failure to buy the optional safety device. Some courts shift fault for an injury to an informed consumer who knowingly elects not to purchase optional safety equipment. Other courts refuse to make this liability-shifting move.
But there is another important group that in many ways has the last word in weighing the risk and utility of an optional safety device — the jury. In deciding to offer a safety device only as an option, a manufacturer must be prepared to defend its decision in a court of law. The failure to justify its decision to a group of ordinary people will not only subject the manufacturer to an adverse verdict for compensatory damages, but may subject the manufacturer to a claim for punitive damages.
1. The Risk-Utility Analysis Or Risk-Benefit Analysis:
A design defect differentiates itself from a manufacturing defect in that it is not a given defective part that causes the safety risk, rather it is the (presumably) calculated decisions of the designer that create the risk. One such decision that can be miscalculated is the decision to make a given safety device optional, as opposed to standard equipment. The failure to provide safety equipment can be considered to be a design defect, if the product becomes unreasonably dangerous without the safety equipment.
Although courts have not uniformly adopted one approach for handling design defect cases premised on optional safety devices, the common approach centers on a risk-utility analysis. (see end note 1) A risk-utility analysis considers a number of factors to determine whether a manufacturer acted reasonably in not making optional safety equipment standard. These factors include competing cost trade-offs, tactical market decisions, product development and research/testing demands, the idiosyncrasies of individual corporate management styles, and federal and other regulatory restrictions. (see end note 2) Courts have looked at a number of other factors as well. In Georgia, for example, matters to be considered are: (a) usefulness of the product, (b) gravity and severity of the danger posed by the design, (c) the likelihood of the danger, (d) the consumer’s knowledge of the product, (e) publicity surrounding the danger, (f) the efficacy of warnings, (g) common knowledge and expectations of danger, (h) the state of the art at the time the product is manufactured, (i) the ability to eliminate the danger without impairing the usefulness of the product or its price, and (j) the feasibility of spreading the loss in the product’s price or by purchasing insurance. (see end note 3)
The factors considered when applying the risk — utility analysis or risk-benefit are remarkably similar from state to state. In California the matters to be considered are: (a) The gravity of the danger posed by the design; (b) The likelihood that such danger would cause damage; (c) The mechanical feasibility of a safer alternate design at the time of manufacture; (d) The financial cost of an improved design; and (e) The adverse consequences to the product and the consumer that would result from an alternate design. (see end note 4)
In some states, such as California, the burden of proof shifts to the defendant under a risk-utility analysis test. Once the plaintiff presents evidence that the design of the product was a cause of his injury, then the defendant has the burden of proving that the utility or benefit of the product as a whole outweighs the danger inherent in such design. (see end note 4)
The risk-utility balancing test also requires consideration of the benefits. Manufacturers should consider aesthetic aspects of the product, its utility for multiple uses, and the convenience and extent of its use. Taken collectively, a manufacturer must place a subjective opinion into this analysis to formulate a reasonably safe product.
2. Methods of Offering Optional Safety Devices.
Safety devices can be offered as standard equipment, optional equipment, or not offered at all to the consumer. The risk-utility analysis should guide this decision along with consideration of the following means for a manufacturer to insulate itself, as best it can, from liability for a potential design defect lawsuit. This section addresses various issues a manufacturer contends with when considering whether to equip its product or even offer a given safety device as optional equipment for its product.
a) A manufacturer fails to make known to a consumer an available optional safety device – Consumer is not otherwise aware of optional device.
At times, a manufacturer may merely elect not to offer a safety feature to a customer even though it exists and is available. An example is where a manufacturer of a wood shaper did not recommend or provide certain safety accessories that were sold as optional equipment with the wood shaper. The Appellate Court of Illinois analyzed these facts under a theory of strict liability and held the manufacturer to be not liable. (see end note 5) The court reasoned to hold otherwise would require a manufacturer to confer with every consumer and make a judgment, at its peril, of what the buyer needed. Alternatively, the manufacturer would have a duty to inform a buyer of all accessories available regardless of the product’s intended use. One important key to this analysis, however, involved the multiple uses of the wood shaper, which the court was not willing to require a manufacturer to guess as to the use the purchaser was going to put his wood shaper once purchased.
Under a theory of negligence, the court held that a cause of action against the manufacturer only existed on the assumption that the consumer would have purchased the safety accessory had he had known of its existence. On the given facts, the purchaser failed, as a matter of law, to produce any evidence to support the contention that he would have purchased a safety accessory, if offered. The court looked for evidence that the safety feature was consistent with the intended use of the product and analyzed the available safety accessories in terms of the consumer’s intended use. The pitfall for manufacturers under this approach is that this determination involves factors completely outside the manufacturer’s control and liability rests, in part, on the consumer’s intended use, whether known or unknown to the manufacturer.
Potential liability is greater if a manufacturer is aware of both the use of its product and a safety feature that may reasonably limit the danger, but fails to inform its customers of the safety feature. The law does not permit a manufacturer of a product to offer as optional equipment all sorts of safety products that should reasonably be standard equipment. In other words, a manufacturer may not pass the entire buck to the consumer by merely offering all of its safety features as optional equipment. If the product is reasonably dangerous for a foreseeable use, then the manufacturer should provide any safety devices that reasonably alleviate that danger.
b) Industry and government regulation do not require a manufacturer to use a given safety device.
In an industry where the government regulates the safety aspects of a product and specifies what safety features are required, manufacturers may have a defense against a design defect lawsuit once it complies with those regulations. One such situation involved a lift truck manufacturer which sold its product without an optional safety reversing device that was designed to prevent someone from being pinned against a wall by the lift truck. The court in that case noted that at the time of the sale the lift truck complied with all applicable OSHA regulations and the applicable ANSI standard. (see end note 6) The court expressly ruled out the applicability of foreign (German) regulations that required the safety reversing device as standard equipment. Also, evidence that competitors made the safety device standard equipment on their lift trucks did not prevent the court from affirming summary judgment. In another case, a New York court considered the lack of federal and state regulations in dismissing a lawsuit against a manufacturer for failing to equip a forklift truck with a back-up warning alarm. (see end note 7)
In certain circumstances industry practice may shift the duty to supply a safety device from the manufacturer to the customer. For instance, in Florida, industry and trade customs at the time a multiple-use product was manufactured may be a valid defense in product liability suits. (see end note 8) The rationale for this position appears to be that it is the consumer who is better poised to assess the uses to which she will put the product and hence can better determine what safety features are needed. It is doubtful whether such a rule would be extended to single-use items.
Moreover, this Florida case seems to be in the minority in permitting a manufacturer to establish industry custom as a defense, and not merely as evidence indicating the reasonableness of the manufacturer’s conduct. In other jurisdictions, courts have not permitted the use of “industry customs” and government standards evidence in strict liability actions because such causes of action do not concern themselves with the conduct of the manufacturer, but rather the nature of the product, which industry custom has nothing to do with. (see end note 9)
c) Manufacturer makes safety device standard, with an option to delete.
Part of the risk-utility analysis involves consideration of costs associated with providing a safety accessory versus the danger of using the product without the accessory. The most conservative approach to ensure against a lawsuit based on a design defect resulting from manufacturer’s failure to provide a safety device is to make the safety device part of the standard equipment with the consumer having the option to remove it. The risk falls squarely on the shoulders of the consumer to determine its needs and cost analysis. Although a few jurisdictions that analyze this type of case in a strict liability manner may still impose liability, a majority of states recognize that at least a defense is available.
d) Manufacturer makes safety device optional.
When a customer exercises an option to purchase a product without a safety feature, fairness would seem to dictate that the manufacturer should not be held liable for damages which that safety feature may have prevented. (see end note 10) The key to successfully offering an optional safety device in most jurisdictions is the affirmative representation that the option is available, the buyer is thoroughly knowledgeable about the product, there exist normal circumstances of use for which the product is not unreasonably dangerous without the optional equipment, and the buyer is in a superior position to weigh the risks and benefits of having the safety device based on the intended uses of the product. (see end note 11) These factors permit the shifting of the duty to the consumer for products with multiple functions. In effect, the shifting of responsibility for the failure to install a safety accessory from the manufacturer to the consumer for products that have multiple uses because it is the consumer who is in the best position to determine what use a product is purchased for. Note, however, that some jurisdictions do not relieve a manufacturer of the duty to provide safety accessories when a particular use is known by the manufacturer. (see end note 12)
Some courts have held that a manufacturer has fulfilled its duty to supply a reasonably safe product whenever it advises the purchaser that an appropriate safety accessory is available for the product, and the product is not inherently dangerous for an intended use without the accessory. (see end note 13) The scenario considered in Biss involved the death of a loader operator who was crushed when the loader went off the edge of the road and pinned the operator between the loader and a pole. Had the loader been equipped with an optional rollover protection structure (ROPS), which the operator’s employer elected not to purchase, it is argued that the operator would have survived the accident. The loader was said to be “multi-purpose” because it could be used to operate on flat surfaces wherein the need for a ROPS was minimal, or it could be used on off-road terrain, which heightened the chance the vehicle might require roll-over protection.
e) Multiple versus single use products.
Manufacturers should consider the use or potential uses of its product when factoring in whether to include or offer a given safety device. Even in jurisdictions where courts have held a manufacturer to be free from liability once it produces evidence it affirmatively offered a safety device and the product has a use that would not be unreasonably dangerous without such a device, the key is the multiple uses of the product. “[W]here machines are multi-functional and where different types of safety devices would necessarily be required to obtain reasonable safety in performing those variable functions, no duty should be imposed upon the manufacturer to provide any safety devices before the machine leaves his control… Although the multi-functional nature of a product would be a factor to consider in determining whether a product is unreasonably dangerous, it would not necessarily be decisive of that question.” (see end note 14)
A lot of products can, of course, be deemed to have multiple uses. For example, steam rollers, loaders, forklifts, truck chassis and machine presses have been viewed as having multiple uses based on the different environments the equipment could be used in. If a piece of equipment can be used on flat terrain without certain safety equipment such as rollover protection structures, there should be no need to furnish as standard equipment that item to all its consumers. Recognition of this principle helps keep costs down for both manufacturers and consumers by allowing the consumer to pick and choose the safety devices best suited for its use of the product.
This is evident as well for component part manufacturers. Take for instance the truck chassis: manufacturers of generic chassis that can be used in the production of a variety of trucks are not liable for the failure to include safety devices that may inevitably be desirable on some trucks and not others.
B. IS A PRODUCT DEFECTIVE IF THE MANUFACTURER OFFERS OPTIONAL SAFETY DEVICES, BUT THE PURCHASER DECLINES TO ACCEPT THEM?
In jurisdictions that recognize the offering of an optional safety device as a means to preclude liability based on the failure to include the safety device on the product, a product is not defective when the following factors are present: “(1) the buyer is thoroughly knowledgeable regarding the product and its use and is actually aware of the availability of the safety feature; (2) there exist normal circumstances of use in which the product is not unreasonably dangerous without the optional equipment; and (3) the buyer is in a position, given the product’s range of uses, to balance the benefits and risks of excluding the safety accessory in the buyer’s intended use of the product.” (see end note 15)
Although these factors are not universally accepted as a means to preclude manufacturer liability, following them is a means of minimizing any such liability. The key to applying these factors seems to be the multiple uses of a product. (see end note 16)
Looking at the above factors, factor (1) requires the buyer to be a sophisticated/knowledgeable consumer. For example, in the tractor trailer manufacturing industry, the average customer owns a trucking company and is intimately involved with industry standards. A manufacturer’s offer of safety equipment through appropriate sales and marketing techniques that link options with reasonable intended uses of the product favor satisfaction of this factor where there is less reliance on the manufacturer by the consumer.
Factor (2) focuses on the multiple uses of the product discussed above. So long as a given product has a reasonably safe use without the optional safety feature, offering the safety feature as an option (as opposed to making it standard) should not pose any liability for a manufacturer.
Factor (3) ties together the first two factors. It takes a sophisticated consumer to be in the best position to evaluate the intended uses of a product and hence what safety features the consumer feels is necessary for the product’s intended uses. This factor is another clear indicator that providing a safety feature as optional equipment is best suited for multiple use products.
C. MODIFICATIONS AND ALTERATIONS TO THE PRODUCT
Plainly put, a consumer who modifies or alters a product beyond that which is intended by the manufacturer cannot place blame on the manufacturer for defective design by failing to offer optional safety equipment that may have prevented an injury. “A manufacturer of a reasonably safe product cannot be held liable for injuries proximately caused by substantial alterations or modifications of the product by a third party which render the product defective or otherwise unsafe.” Lederhouse v. Overhead Door Corp., 1996 WL 328147 (W.D.N.Y. June 3, 1996).
Lederhouse involved an injury caused by a modified garage door. The court noted that it was the consumer who was in the best position to exercise reasonable care in selecting necessary safety devices available in the industry, such as an electrical cut-off device, which were appropriate for use with the modified door. The court placed the burden on the owner to intelligently judge the trade-off between costs and function.
D. TIMELINESS OF THE OFFER
Although nothing expressly directs a manufacturer to provide updated information to consumers concerning changes in the availability of optional safety equipment, an analogy may be drawn to the recently developing theory of a post-sale duty to warn codified in Section 10 of the Restatement (Third) of Torts: Products Liability. That duty is said to arise when a reasonable person in the seller’s position would provide a warning after the time of sale if: (1) the seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property; (2) those to whom a warning might be provided can be identified and can reasonably be assumed to be unaware of the risk of harm; (3) a warning can be effectively communicated to and acted on by those to whom a warning might be provided; and (4) the risk of harm is sufficiently great to justify the burden of providing a warning. Restatement (Third) of Torts: Prod. Liab. § 10.
The applicability of this duty to the scenario of optional safety equipment is supported in the Reporters’ Notes to Comment A to § 10, which states “if a newly discovered risk imposes risk of serious harm and safety improvements can be practically implemented, there may in certain instances be a duty to inform the buyer of the availability of such safety improvements.” (Emphasis added).
A number of states have enacted statutes and developed case law that support this principle. For instance, Colorado Revised Statute § 13-21-404, La. Rev. Stat. § 9:2800.57©, N.C. Gen. Stat. § 99B-5(a)(2), and Ohio Rev. Code § 2307.76 address the duty to warn of post-purchase safety improvements. In Wilson v. United States Elevator Corp., 972 P.2d 235 (Ariz. App. 1998) and Olsen v. Ohmeda, 863 F.Supp. 870 (E.D.Wis. 1994) aff’d. 77 F.3d 485 (7th Cir. 1996) the courts were willing to recognize a post-sale duty to warn of product safety improvements even though the original product design was not defective. (see end note 17) Although states recognizing such a duty are in the minority, a good argument exists as to the Restatement’s limited applicability to “warning” about optional safety devices developed post-purchase. This warning, however, would only seem to extend to situations where the safety device could reasonably be expected to prevent a “substantial risk of harm.” Other factors may also limit this duty, such as the amount of post-sale control the manufacturer has over the product, and whether the product is still being manufactured.
Like many issues surrounding the sale of optional safety devices, different jurisdictions treat the issue of liability for post-sale obligations differently. Some courts have held that whether a manufacturer has any post-sale duty is solely an issue of fact to be resolved by a jury. (see end note 18) Other courts have clearly stated that a manufacturer has no post-sale duty to retrofit, recall or warn consumers. (see end note 19)
Any post-sale duties to warn are guided by the case law in each jurisdiction. Moreover, the Third Restatement of Torts fails to address a number of issues surrounding a manufacturer’s liability for failing to provide certain post-sale warnings. Thus, manufacturers are left in an uneasy position at this point as to the best course of action to pursue to avoid liability. A prudent approach would be for the manufacturer to again engage in a thorough risk-utility assessment and provide a safe product within the scope of the manufacturer’s abilities and the market’s trends.
E. MULTIPLE-STATE SURVEY ON MANUFACTURERS’ LIABILITY FOR OPTIONAL SAFETY DEVICES
Please see following collection of cases.
ALABAMA
Caterpillar Tractor Co. v. Ford, 406 So.2d 854 (Ala. 1981) involved a widow’s strict liability claim against the manufacturer of a Caterpillar D8H tractor, which her husband was operating when it rolled over and crushed him. A verdict in favor of the widow was returned and judgment entered.
The Ford court affirmed the trial court, stating “[i]t was also established that Caterpillar, as of July, 1970, offered a ROPS as optional equipment but did not install it as a standard feature on the D8H tractor. There was evidence from which a jury could conclude that the failure to include some protection against roll-overs rendered the tractor defective. On this issue and on the question of whether the deceased was using the D8H in an intended or reasonably foreseeable manner, the evidence disclosed that Caterpillar’s engineers knew that its equipment would operate on ‘steep mountainsides with the ever present danger of sliding off or overturning.’ In fact, Caterpillar’s application for ROPS states that ‘earth moving vehicles are frequently operated on steep hillsides wherein lateral tipping and rolling over is a real danger’ . . . both issues were for the jury and the evidence supports a finding by it that the tractor was defective.”
The court rejected Caterpillar’s argument that it is unjust to hold it responsible for not installing the ROPS when they offered it as optional equipment. “If the tractor was defective in the condition in which it was sold, liability causing the resulting injury cannot be escaped by showing that the customer would have but did not buy an item which would have removed the defect.” This 5-4 decision resulted in four judges adopting Biss v. Tenneco, 409 N.Y.S. 2d 874 (N.Y. App. Div), 409 A.D.2d 204 (1978)
Nettles v. Electrolux Motor AB, 784 F.2d 1574(11th Cir. 1986). Plaintiff was injured when chainsaw “kick backed.” Plaintiff sued the manufacturer. On appeal the appellate court found that “[t]he court correctly charged the jury that the availability of optional safety equipment is no defense if a product is found unreasonably dangerous.” Citing Caterpillar Tractor Co. v. Ford, 406 So. 2d 854 (Ala. 1981), the court stated that ‘if the product was defective in the condition in which it was sold, liability for resulting injury cannot be escaped by showing that the customer could have but did not buy an item which would have removed the defect.” Under the Alabama Manufacturer Extended Liability Doctrine, it is a jury question whether a product meets the reasonable expectation of ordinary consumers so as to not be defective.
ALASKA
ARKANSAS
White v. Clark Equipment, 262 Ark. 158, 553 S.W.2d 280 (1977). A widow sued a forklift manufacturer for wrongful death after her husband was backing out of a trailer on a forklift and fell out of the trailer while on the forklift, crushing himself to death. The court said the only evidence that could point to liability on part of the manufacturer is testimony that the forklift involved was not equipped with an overhead protection guard. However, the purchaser ordered the forklift directly from the manufacturer and specified that it be equipped without an overhead guard to enter and exit trailers. Thus, the purchaser’s knowing rejection of an optional safety feature precluded liability on behalf of the manufacturer.
French v. Kockmus Cancar Corp., 967 F.2d 586, 1992 WL 129802 (9th Cir. 1992)(unpublished disposition). Summary judgment was granted in favor of a manufacturer which produced a bandmill as a component to a resaw assembled by another manufacturer, Sierra Pacific. Plaintiff alleged that the bandmill was defective because it did not contain safety guards when sold to Sierra Pacific. Kockrnus relied upon Sierra Pacific to place safety guards on the saw. The court relied upon the reasoning in Taylor v. Paul O. Abbe, Inc., 516 F.2d 145 (3rd Cir. 1975)(Pa. Law) that a manufacturer which offers a safety device, but such offer is declined by the purchaser, is not liable for failing to include the safety feature, particularly where there is no statutory obligation to furnish it, the purchaser was an established business entity with substantial experience in the field, or where a manufacturer merely provides component parts which are later assembled without the aid of the manufacturer.
Titus v. Bethlehem Steel Corp., 91 Cal. App. 3d 372 (1979). A nine-year-old child was injured when his foot was crushed in an oil well pumping unit while playing on it. The unit did not have a crank guard to prevent such an injury, but the manufacturer did offer to its purchasers such a guard an option. Plaintiffs appealed an adverse jury verdict on the grounds that insufficient instructions were given relating to the defective nature of the product. The appellate court held that a product designed without adequate safety features may be considered defective and remanded the case for a new trial.
Price v. Niagara Machine & Tool Works, 136 Cal. Rptr. 535 (Ct. App. 1977). In a strict product liability action involving a metal press, the court considered the manufacturer’s optional safety device offered to purchasers in the context of the obviousness of the danger created without the safety device. The court ruled that it was a jury question whether the danger was so obvious and whether the manufacturer should have produced its product with the safety device.
COLORADO
Davis v. Caterpillar Tractor Co., 719 P.2d 324 (Colo Ct. App. 1985). The plaintiff was severely injured when a dead tree fell across the tractor he was driving and struck him. In a suit against the tractor manufacturer, a jury found the manufacturer liable on grounds of negligence and strict liability. The dealer from whom the plaintiff purchased the used equipment offered the plaintiff a rollover protective structure (ROPS) and a falling object protective structure (FOPS). Plaintiff, before the accident in which he was injured, had a prior, similar accident in which he was not injured. After that accident, a heavy equipment advisor warned him to purchase an overhead protective structure.
The Davis court held that a product is not, as a matter of law, unreasonably dangerous because “plaintiff, as a reasonable consumer, deliberately chose to purchase his tractor without an overhead protective structure…should have expected that the tractor he purchased was not as safe as it would be with [a ROPS or FOPS]. Since plaintiff was in the best position to evaluate and eliminate the danger by purchasing an overhead protective safety option, he should accordingly bear the loss resulting from his failure to do so.”
Curtis v. General Motors Corp., 649 F.2d 808 (10th Cir. 1981). Plaintiffs alleged that a car in which they were passengers was defectively designed in that it failed to provide sufficient rollover protection. When their Chevy Blazer rolled over during an accident, plaintiffs contended that the failure to have a roll bar was the proximate cause of their injuries. The vehicle was offered in several different models, to include a soft top, removable fiberglass roof, and a steel top. A roll bar was available as an aftermarket item, which the plaintiffs elected not to purchase. The court remanded the case for a new trial because the jury was not properly instructed as to correct reasonableness standard to apply. A strict liability claim predicated on a manufacturer’s failure to install an added safety feature will not create liability on the part of the manufacturer merely because a feasible alternative would have rendered the product safer. The court also noted that the purchaser exercised his option not to purchase the automobile with a roll bar after being informed of the various models, a factor to consider when determining the reasonableness of the manufacturer’s actions.
GEORGIA
Ogletree v. Navistar International Transportation Co., 271 Ga. 644, 522 S.E.2d 467 (1999) involved a defective design suit brought by a widow after her husband was struck from behind by a truck operating in reverse. The truck was not equipped with a back-up alarm. The Supreme Court of Georgia overruled the Court of Appeals’ affirmance of the trial court’s granting of a judgment notwithstanding the verdict. Because there was some evidence that the risk outweighed the utility of the product without a given safety device, the case should have been sent to the jury. The court recognized that Georgia courts no longer apply the open and obvious doctrine since Georgia adopted the risk-utility analysis in Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671 (1994). The overruled appellate court decision in Ogletree, 236 Ga. App. 89, 511 S.E.2d 204 (1999), contains a review of options cases.
HAWAII
Tabieros v. Clark Equipment Co., 944 P.2d 1279 (Hi. 1997). In a case involving a manufacturer’s duty to retrofit a Series 510 straddle carrier with equipment that would have rendered it safer, the Supreme Court of Hawaii noted that a manufacturer has a legal duty to exercise reasonable care in the design and incorporation of safety features to protect against foreseeable dangers and that the failure to equip a product with a safety device may constitute a design defect.
ILLINOIS
Rotzoll v. Overhead Door Corporation v. Pulmocare Medical Supply, Inc., 289 Ill.App.3d 410, 681 N.E.2d 156 (1997). Plaintiff’s estate sued the manufacturer of automatic sliding door when the doors closed on decedent and injured her. The court stated that since the purchaser used several different parts to build an integrated system to open doors, the manufacturer could not be held liable when its product, itself free from inherent danger or defection, becomes potentially dangerous when integrated into a unit designed, assembled, installed, and sold by another.
Liability for the manufacturer “is even more tenuous” because when the manufacturer sold the door system at issue it offered the purchaser an alternative threshold protection system “to prevent the exact type of accident that occurred here.. . in short, defendant did everything it could possibly have done in this case– it foresaw the very type of accident alleged to have occurred here and offered, as an option to its customers, an alternative safety device that would prevent such occurrences, an option [the purchaser] chose not to pursue.”
Turney v. Ford Motor Co., 94 Ill. App. 3d 678, 418 N.E.2d 1079 (1981). Plaintiff was jolted off of the manufacturer’s tractor after riding the tractor over a bump. Plaintiff asserted that tractor was unreasonably dangerous because it lacked a roll bar and seat belt. A judgment was returned on a jury verdict for the defendant at the trial level. The Turney court held that a manufacturer has a nondelegable duty to manufacture and sell product which is not in an unreasonably dangerous condition. The trial court correctly admitted evidence that the safety device was available as an option since it was part of a multi-functional nature.
Savage Mfg. & Sales Inc. v. Doser, 540 N.E.2d 402 (Ill. App. Ct. 1989). The multi-functional nature of a press imposed no duty upon the manufacturer to ask its customers the intended use that each customer intended to employ with the press.
INDIANA
Anderson v. P.A. Radocy & Sons, Inc. and Miller Electric Manufacturing Co., 67 F.3d 619(6th Cir. 1995). Plaintiff’s estate sued the manufacturer of generator which allegedly caused a fatal electrocution. A knowing rejection of an optional safety feature was raised as a defense but the court, applying Indiana law, did not reach merits of this argument because the manufacturer was found not to be liable on other grounds.
IOWA
KENTUCKY
Jordan v. Massey-Ferguson, Inc., 100 F.3d 956 (6th Cir. 1996)(unpublished opinion). A plaintiff brought defective design claim against the manufacturer of a tractor. The court affirmed summary judgment because the manufacturer provided the plaintiff with the option of purchasing a rollover protective structure (ROPS), the buyer declined the optional safety feature, and the tractor complied with all industry regulations.
LOUISIANA
Perez v. Brown Mfr., 1999 U.S.Dist. Lexis 11479 (E.D.La. July 21, 1999). (Based on a recent Louisiana statute (L.S.A-R.S. 9:2800.56)). Plaintiff was employed as a helper on a tight-of-way clearing crew. He sustained head injuries when a co-worker was operating a Brown Manufacturing Tree Cutter (BTC) when a piece of debris was thrown from the Tree Cutter, striking him in the head. Plaintiff alleged that the BTC was unreasonably dangerous and was defectively designed, thus rendering defendant liable under the Louisiana Products Liability Act (LPLA). Defendant moved for summary judgment. Summary judgment was granted in part and denied in part. The motion was granted as to plaintiff’s failure to warn claim but denied as to his design defect claim.
When purchasing the Tree Cutter that injured plaintiff, his employer had the opportunity to choose between an “open deck” model and a “folding deck” model, both produced by defendant. The “open deck” model, purchased by plaintiff’s employer, is more dangerous than the “folding deck” model. On the “open deck” model, the blades are exposed to cut down trees. A single retractable bar is mounted on the back of the unit, beyond the reach of the blades, to prevent inadvertent contract with the blade. When an operator backs the tree cutter into a tree, the bar retracts, exposing the blades to the tree.
On the other hand, the “folding deck” model allows the rear of the deck to fold open or closed by the operator via hydraulics. During forward operations, the operator can lower the rear decking, fully enclosing the rear of the unit. According to defendant’s testimony, this virtually eliminates any chance that debris will be thrown from the unit. Although the “folding deck” model is safer, it is more expensive in both cost and maintenance. According to defendant, plaintiff’s employer knew and understood the safety differences between the units and made a business decision to buy the less expensive, but also less safe, open deck unit after testing each model.
According to the court, it was unable to grant summary judgment for defendant on the issue of design defect because questions of material fact existed as to the way in which plaintiff was hurt, either from the front of the unit or the back. The court stated that once it was able to determine the answer to these questions, it could then apply the fact-based “risk-utility” test to determine whether defendant was justified in producing the open-decked tree cutter without a chain guard in light of the risks of such a product.
Defendant argued that is could not be held liable for plaintiff’s injuries because plaintiff’s employer knowingly chose the less safe, open deck unit without a chain guard, based on its own assessment of the risks and utility involved in the use of the product. In support of its argument, defendant cited to a pre-LPLA case (Scallan v. Duriron Co., Inc., 11 F.3d 1249 (5th Cir. 1994) that had applied the pre-LPLA standards (see end note 20) outlined in Halphen v. Johns-Manville Sales Corp., 484 So.2d 110, 115 (La. 1986).
In Scallan, the court determined that under the Haiphen test, the manufacturer of a pump was not liable under a design defect theory for failing to furnish an arguably safer warning device for the pump when the purchaser knowingly rejected the manufacturer’s offer to provide the device. Scallan, 11 F.3d at 1253. According to the Perez court, when adopting the LPLA, the legislature had an opportunity to codify the exception the Scallan court outlined, but did not. Instead, the LPLA simplified the design defect test set forth in Haiphen. Instead of holding manufacturers liable in one of three situations, the LPLA provides a cause of action against manufacturers for design defect only where “there existed an alternative design for the product that was capable of preventing the claimant’s damage” at the time the product left the manufacturer’s control. LA. R.S. 9:2800.56. If a claimant carries this burden of establishing the existence of a safer alternative design, then the court applies the risk-utility test.
In rewriting the law, the legislature codified several affirmative defenses to design defect claims. However, the legislature failed to include an affirmative defense exculpating manufacturers from liability where the purchaser of its products chooses a less safe design over a safer one, for reasons of cost or utility. The Perez court stated that since the legislature declined to codify the holding in Scallan, it had to base its ruling on the law as enacted by legislature (the LPLA), not on case law that had effectively been statutorily overruled. The court found that plaintiff’s employer’s decision to buy the Tree Cutter without the chain guard was not an affirmative defense for defendant. Thus, the court declined to grant summary judgment in favor of defendant on plaintiff’s design defect claim.
On appeal, however, plaintiff’s claim of design defect was dismissed with prejudice. Perez v. Brown Mfr., 1999 U.S. Dist. Lexis 14626 (E.D. La. 1999). Based on a review of the evidence that was presented at trial in this matter, the court found that the “open-deck” model in question did, in fact, have the optional chain guard or chain drape before being deployed for the job plaintiff was involved with. Apparently, until shortly before trial, both the plaintiff and defendant were not certain whether there was a chain guard on the BTC that caused the injury. Accordingly, as this was the alternative design pointed out by plaintiff as being substantially safer, and since there was no evidence offered in court of any safer alternative design other than the chain drape, plaintiff’s case was dismissed with prejudice.
MARYLAND
Babin v. Yale Materials Corp., 50 F.3d 5, 1995 WL 115857 (4th Cir. 1995)(unpublished opinion). The husband of a lift truck operator brought a strict liability action against manufacturer of a lift truck claiming the truck was defectively designed because it was not equipped with an automatic reversing device. The deceased was pinned between the lift and a wall, which resulted in her death. At the time of the sale, the manufacturer offered a safety reversing device in order to avoid the very event that caused this death. The purchaser declined this offer at the time of purchase.
The court stated that the lift truck complied with all OSHA and ANSI regulations and “[the purchaser] selected the MX25 lift truck that injured [the deceased]…the reversing switch was available as an option on the lift truck, but the [purchaser] chose to purchase a truck without this safety device…[the purchaser] had owned and operated several lift trucks, some of which were equipped with automatic reversing devices. As the purchaser/employer, [the purchaser] was in the best position to evaluate the need for a reversing safety switch based on the environment in which the lift truck would be used.” The court affirmed the trail court’s directed verdict.
MASSACHUSETTS
Simmons v. Monarch Mach. Tool Co., 596 N.E.2d 318 (Mass. 1992). The court ruled the bench vise was defective without a shield that would protect the user of the vise from items being ejected from the vise. In so doing the court considered the cost of providing the shield compared to the total cost of the item relative to the safety benefit of having the shield.
MICHIGAN
Owens v. Allis-Chalmers, 414 Mich. 412,326 N.W.2d 372 (1982). The estate of a forklift operator sued the forklift manufacturer claiming the forklift had a design defect for not containing a driver restraint which would have prevented decedent’s ejection during fatal forklift rollover. The issue before the court was whether a prima facie case was established that the forklift was defectively designed because of its failure to include some sort of driver restraint as standard equipment. The “option” which plaintiffs asserted should have been standard was offered to the employer of the deceased, but was not purchased. There is no duty for an industry to design a totally crash-proof, injury-proof forklift. There was also no evidence in the record establishing the manufacturer, as opposed to the employer, was in a better position to conclude that the cage enclosure should be installed as standard equipment. In affirming a directed verdict, the court ruled that there lacked evidence concerning the magnitude of the risk involved without the restraint, evidence of utility or relative safety of proposed alternatives, or evidence otherwise concerning the unreasonableness of risks arising from failure to install driver restraints. But see 757 F.Supp. 819 (E.D.Mich. 1991) which disagrees with Owens.
Villar v. Gulf & Western Mfr. Co., 350 N.W.2d 920 (Ct. App. Mich.1984). Plaintiff sued over injuries sustained while using a multi-purpose press, which it was conceded could not be equipped with a safety device that would cover all uses of the press. The court held the manufacturer had no duty to provide safety devices not ordered by the purchaser absent evidence of the manufacturer having knowledge of the specific use the purchaser planned for the product.
MINNESOTA
Billotta v. Kelley Co. Inc., 346 N.W.2d, 616 (Minn. 1984). An employee, through a special guardian, brought action in strict liability for a design defect against manufacturer of dockboard (a device that bridges the gap between a loading deck and a carrier bed) for injuries he sustained when a forklift fell on top of him.
The court rejected the manufacturer’s argument that the offer of optional safety devices to knowledgeable purchasers passed to the purchaser the risk of loss from the use of that product without the device. The Billota court adopted the risk-utility analysis and stated that the Biss rule (see Biss v. Tenneco, 409 N.Y.S. 2d 874, 409 A.D.2d 204 (N.Y. App. Div 1978)) can be justified only where multi-use equipment is involved and the optional device would impair the equipment’s utility in the uses for which the device is unnecessary. Here, the court stated “[t]he suggested option-offer defense would not apply to dockboards which are not multi-use and whose functioning is never impaired by the installation of the panic safety device. . . as respondent notes, such a defense would permit an entire industry to market unreasonably dangerous ‘stripped down’ devices and offer as optional all safety devices. Liability for improper choice of a safety device or failure to purchase a particular safety device would then fall on the purchaser. This result would circumvent the general duty of the manufacturer to provide a reasonably safe design for its product.”
MISSISSIPPI
Gordon v. Niagra-Machine & Tool Works, 574 F.2d 1182 (5th Cir. 1976). A plaintiff brought an action against the manufacturer of a punch power press for injuries sustained when the press cycled unexpectedly and severed four of plaintiff’s fingers. The trial judge entered judgment for plaintiff. On appeal, the court declined to find a multifunctional, general purpose machine, like the Niagra press, was in a defective condition when marketed without guarding devices. The machine having been designed for many kinds of operations, it was incumbent on the machine purchaser and customary in the power press industry for a purchaser to select safety devices appropriate for his particular function. The judgment below was affirmed, however, based on the manufacturer’s failure to adequately warn of the danger.
MISSOURI
Morrison v. Kubota Tractor Corp., 891 S.W.2d 422 (Mo. Ct. App. 1994). The estate of a tractor operator who was killed when the tractor rolled over onto him brought a negligence and strict liability claim against the tractor manufacturer for failing to equip the tractor with a rollover protective structure (ROPS). The court, adopting the Biss doctrine (see NY section), stated that even if there was a duty to install the ROPS, it was fulfilled when the manufacturer made the item available as an option on the tractor bought. Evidence in the case showed the manufacturer made substantial efforts to make purchasers of its tractors aware of the availability of and potential safety benefits of a ROPS, the manual provided at the time of the sale to the purchaser clearly recommended its use, all the tractors in the showroom had a ROPS on them, ROPS had been standard equipment on the manufacturer’s new tractors for over two years, ROPS kits were available for sale to used tractor owners and purchasers at a reasonable cost, the manufacturer issued a bulletin to all its division and regional managers urging them to offer and sell ROPS to every customer who purchases a tractor, and sent another notice to all the manufacturer’s salesman stating that it was “of the utmost importance that you and your salesman discuss the significance and availability of ROPS with each customer.” Based on these facts concerning the offered ROPS option and the purchaser’s failure to exercise the option, a directed verdict in favor of the manufacturer was proper.
NEBRASKA
NEW JERSEY
Bexiga v. Havir Manufacturing Corp., 60 N.J. 402, 290 A.2d 281 (1972). A plaintiff brought suit against the manufacturer of a power press punch on behalf of his son who had his arm crushed in the press. Plaintiff asserted, inter alia, a claim of strict liability. The trial court granted defendant a directed verdict. The Appellate Division affirmed.
Reversing the lower courts, the Bexiga court stated “[w]here a manufacturer places into the channels of trade a finished product which can be put to use and which should be provided with safety devices because without such it creates an unreasonable risk of harm, and where such safety devices can feasibly be installed by the manufacturer, the fact that he expects that someone else will install such devices should not immunize him. The public interest in assuring that safety devices are installed demands more from the manufacturer than to permit him to leave such a critical phase of his manufacturing process to the haphazard conduct of the ultimate purchaser. The only way to be certain that such devices will be installed on all machines — which clearly the public interest requires — is to place the duty on the manufacturer where it is feasible for him to do so.”
Finnegan v. Havir Manufacturing Corp., 60 N.J. 413 (1972). This case has almost the exact same facts as Bexiga. The court followed the Bexiga ruling on a case decided the same day.
NEW MEXICO
Fernandez v. Ford Motor Corp., 879 P.2d 101 (N.M.App. 1994). The estate of a road foreman who was run over by a tractor-trailer brought a products liability action based, in part, on the fact that the trailer lacked a reverse signal alarm. The court held that under New Mexico law it is a jury question as to whether an unreasonable risk existed in the mind of a reasonable person who had full knowledge of the risk.
Skyhook Corp. v. Jasper, 560 P.2d 934 (N.M. 1977), overruled on other grounds, Klapp v. Wackenhut Corp., 824 P.2d 293 (1992). This products liability case involved a crane rig accident allegedly caused by the absence of a safety device. The court ruled that the manufacturer’s failure to incorporate into a product a safety feature or device may constitute a defective condition of the product.
NEW YORK
Biss v. Tenneco, 409 N.Y.S. 2d 874, 409 A.D.2d 204 (N.Y. App. Div 1978). The estate of a loader operator sued the manufacturer of the loader and the retailer, claiming a design defect for failing to install a rollover protective structure (ROPS) on the loader. The operator, while using the loader, struck a telephone pole which subsequently hit him. Plaintiff asserted that had there been overhead protection, the death would not have occurred. As to the manufacturer, the court stated that “a ROPS was available to the purchaser when he purchased the loader…defendant’s have fulfilled their duty of reasonable skill and care in designing the product as a matter of law when they advised the purchaser that an appropriate safety structure for the loader was available. . . If knowledge of available safety options is brought home to the purchaser, the duty to exercise reasonable care in selecting those appropriate to the intended use rests upon him. He is the party in the best position to exercise an intelligent judgment to make the trade-off between cost and function, and it is he who should bear the responsibility if the decision on optional safety equipment presents an unreasonable risk to users. To hold otherwise casts the manufacturer and supplier in the role of insurers, answerable to injured parties in any event, because the purchaser of the equipment for his own reasons, economic or otherwise, elects not to purchase available options to ensure safety.” The “legal responsibility, if any, for injury caused by machinery which has possible dangers incident to its use should be shouldered by the one in the best position to have eliminated those dangers.”
Jackson v. Bomgaf, 638 N.Y.S.2d 819 (NY App. Div. 1996). A death occurred when a Bomag BW 6AS static roller, used to repair potholes, overturned and crushed the operator after he moved onto the shoulder of road and got too close to a concealed drop off. The manufacturer offered a ROPS to the retailer, who did not purchase it. Decedent’s employer, a city, purchased static roller from retailer without ROPS. The Jackson court stated that the employer made a “conscious decision” not to purchase the available ROPS because “the machine was being used on [a] fairly flat surface and I didn’t see the need [for the offered ROPS].” The court stated, citing Biss, that “[w]e must conclude that [the manufacturer] fulfilled its duty of reasonable care when it designed the product with the ROPS safety option and thereafter made such option available to the consumer, who was in a better position to assess its need in light of the use for which it was purchased.”
Pigliavento v. Tyler Equipment Corp., 669 N.Y.2d 747 (N.Y. App. Div. 1998). When a workman was injured after falling off a concrete mixer platform, the manufacturer was free from liability once the purchaser knowingly elected not to purchase an optional guardrail. Summary judgement for the manufacturer was proper.
Patane v. Thomas and Johnson Equipment Co., 649 N.Y.S.2d 547, 233 A.D. 905 (N.Y. App. Div. 1996). Plaintiff sued a forklift manufacturer for failure to have an audible back-up alarm after a co-employee reversed forklift into the plaintiff. The trial court granted the manufacturer’s summary judgment, stating “[the defendant] further demonstrated that the backup warning alarm is not mandated by any Federal or state law, rule or regulation; that it advised [plaintiff’s employer] in writing of the availability of certain optional safety devices, including a back-up warning alarm; and that [the employer], who was in the best position to evaluate the need for such safety devices based upon the environment in which the forklift would be used, made a deliberate decision not to purchase the warning alarm.”
Scarengella v. Thomas Built Buses, Inc., 717 N.E.2d 679 (Ct. App. N.Y. 1999). A school bus operating without an optional safety back-up alarm severely injured in individual while backing up in the bus parking lot. The court affirmed a ruling which excluded evidence being submitted by plaintiff indicating that a design defect existed without the back-up alarm on the bus. The court concluded “a product is not defective where the evidence and reasonable inferences therefrom show that 1) the buyer is thoroughly knowledgeable regarding the product and its use and actually aware that the safety feature is available (a sophisticated consumer); 2) there exist normal circumstances of use which the product is not unreasonably dangerous without the optional equipment and 3) the buyer is in a superior position, given the range of uses of the product, to balance the benefits and risks of not having the safety devices in the specifically contemplated circumstances of the buyer’s use of the product. In this case the employer was aware of the safety feature and elected not to get it. The court did, however, recognize that some evidence could have been produced to present a triable issue of fact, but the plaintiffs failed to do so. Also, a NY 1990 law, passed two years after the accident, made backup alarm mandatory on buses in NY.
Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125 (2nd Cir. 1999). The plaintiff was injured when a steel pipe fell from the top of a tractor loader, striking plaintiff in the back and permanently paralyzing him. Plaintiff sued the manufacturer, Massey-Ferguson. A jury returned a verdict in favor of the plaintiff, and the manufacturer appealed because the court failed to charge the jury with a Biss instructions: the manufacturer cannot be liable if a buyer fails to purchase optional safety equipment. The court said the plaintiff “has not provided us with any reason to believe that the New York Court of Appeals would disagree with Biss and related cases, both in the appellate divisions and from other jurisdictions.” Thus, the Pahuta court reversed the District Court for failure to adequately convey in its charge the Biss rule. The Court stated: “If the Biss elements were met as a matter of fact, i.e., if (i) the tractor loader has a variety of uses and Massey-Ferguson intended for it to be employed in a use for which it was safe without optional overhead protection, (ii) it was equipped by Massey-Ferguson in compliance with the laws and accepted industry standards that were applicable to overhead protection features, (iii) Pahuta’s use of the tractor loader to load pipes in the manner in which he did was not intended by Massey-Ferguson and required overhead protection to make it safe, and (iv) the availability of the overheard protection was an option ‘brought home’ to purchaser Keeler, then Massey-Ferguson would be entitled to judgment as a matter of law… the charge therefore did not adequately inform the jury as to the law.”
OHIO – abrogated by new statute. See Perkins.
Cremeans v, International Harvester, 6 Ohio St. 3d 232, 452 N.E.2d 1281 (1983). Plaintiff sued the manufacturer of crawler-type tractor in negligence for failure to equip the tractor with roll-over protection after tractor overturned while working on a trailer. Defendant was granted summary judgment at the trial level.
The Creamens court reversed the summary judgment order even though the manufacturer offered the safety device to the purchaser as an option. According to the Court, the grant of summary judgment was improper because there was sufficient evidence presented to raise a question of fact as to whether the design of the tractor without roll-over protection was in a defective condition and whether the benefits of the challenged design outweighed the risks inherent in such design. Specifically, the deposition of the appellee indicated that it was dangerous not to have a roll bar on the crawler tractor and that several models has such equipment. Moreover, an engineer and former employee of the appellee, who was involved with the design of roll-over protection, stated in his deposition that the company was aware that errors in judgment while using the equipment could cause roll-over accidents, that federal regulations requiring roll-over protection were being formulated at the time of manufacture of the crawler tractor, and that it would have only cost approximately $1,000 per tractor to install roll-over protection and that a marketing decision had been made to offer the protection as an option.
Perkins v. Wilkinson Sword, Inc. et al., 83 Ohio St. 3d 507, 700 N.E.2d 1247 (1998).
Petitioner brought a wrongful death products liability action for the deaths of his late wife and two small children, who died as a result of their residence catching on fire. Petitioner alleged that the fire was started by his four year old daughter while playing with a disposable butane cigarette lighter manufactured and sold by respondents, Wilkinson Sword, Inc. and WalMart, Inc. Plaintiff further alleged that the lighter was defective in design because “it lacked feasible child resistant features.”
The District Court granted summary judgment in favor of the respondents, finding that the lighter was not defective in design under Ohio law. In so finding, the court rejected the petitioner’s claim that the lighter could be found defective under the “consumer expectation” test codified at former R. C. 2307.75(A)(2), and held that former R. C. 2307.75(A)(1)’s “risk-benefit” test is inapplicable to properly functioning disposable lighters. The Court of Appeals agreed with the District Court that the petitioner could not prevail on a consumer-expectation theory. However, the Court was “uncertain whether Ohio’s statutory risk-benefit test was applicable to properly functioning disposable lighters.”
Pursuant to the Ohio Products Liability Act, a trial court may apply one or another, or both, of two distinct “design defect” standards (those standards being risk/benefit test and consumer-expectation test). The Act does not contain any exception for properly functioning products, and does not limit the applicability of the risk-benefit test to products which malfunction. According to the Court, there is no basis under the common law or statutory law of Ohio for creating a dichotomy between properly and improperly functioning products when applying the risk-benefit test. In fact, prior Ohio cases stand for the proposition that a product may be found defective in design under the risk-benefit test where the manufacturer fails to incorporate feasible safety features to prevent harm caused by foreseeable human error. (See e.g., Knitz v. Minster Machine Co., 69 Ohio St. 2d 460, 432 N.E.2d 814 [risk-benefit test applicable where activation of foot switch on a press was not caused by any malfunction or design inadequacy, but by simple human error]; Cremeans v. International Harvester Company, et al., 6 Ohio St. 3d 232, 452 N.E.2d 1281 (1983) [risk-benefit test applicable to determine whether the design of a tractor without roll-over protection was in a defective condition, although it was an error in judgment, not a malfunction or design inadequacy, that caused the tractor to overturn]). Accordingly, the Court held that the risk-benefit test of the Ohio Products Liability Act may be used in attempting to prove a design defect in a properly functioning disposable cigarette lighter.
OREGON
Baccelleri v. Hyster Co., 597 P.2d 351 (Or. 1979). A forklift was faulted as being defective for not having an audible and visual back-up warning signal, which resulted in a worker’s legs being run over. The jury returned a verdict for the defendant. Plaintiff appealed, arguing that the forklift was unreasonably dangerous and defective because it lacked both visual and audible warning alarms to alert persons that the machine was backing. Defendant argued that there was no evidence that the forklift was unreasonably dangerous or that any defect in the forklift caused plaintiffs injuries.
The Supreme Court applied the test set forth in Phillips v. Kimwood Machine Co. for determining when a product has an unreasonably dangerous defect (525 P.2d 1033 (Or. 1974). Pursuant to the Kimwood test, the question was whether there was evidence that the forklift, without an audible warning which would be activated when the forklift was placed in reverse gear, created an unreasonable risk of harm. The Court concluded there was such evidence. Thus, a jury issue existed as to whether a reasonable person would consider the forklift defective without the warning signal. The Court also held that Oregon statutes provide that comparative fault is applicable in strict liability in tort. Whether defendant had adequately pleaded or proved the kind of contributory negligence which can qualify as comparative fault in a strict liability case was not in issue on appeal. Thus, the Court stated that if a new trial is held on those issues, it will be decided upon the state of the pleadings and proof at the new trial.
