DENNY v. FORD MOTOR CO.
87 N.Y.2d 248 (1995)
662 N.E.2d 730
639 N.Y.S.2d 250
Nancy Denny et al., Plaintiffs, v. Ford Motor Company, Defendant.
Court of Appeals of the State of New York.
Decided December 5, 1995.
O'Melveny & Myers (
John H. Beisner and Brian D. Boyle, of the District of Columbia Bar, admitted pro hac vice, of counsel) and Gibson, McAskill & Crosby, Buffalo ( Brian P. Crosby of counsel), for defendant.
Paul F. McAloon, P. C., New York City (
Paul F. McAloon of counsel), John Scarzafava, Oneonta, and Cook & Butler, L.L.P. ( Russell L. Cook, Jr., of the Texas Bar, admitted pro hac vice, of counsel), for plaintiffs.
Herzfeld & Rubin, P. C., New York City (
Michael Hoenig, David B. Hamm and Miriam Skolnik of counsel), for Product Liability Advisory Council, Inc., amicus curiae.
Chief Judge KAYE and Judges BELLACOSA, SMITH, LEVINE and CIPARICK concur with Judge TITONE; Judge SIMONS dissents in a separate opinion.
Are the elements of New York's causes of action for strict products liability and breach of implied warranty always coextensive? If not, can the latter be broader than the former? These are the core issues presented by the questions that the United States Court of Appeals for the Second Circuit has certified to us in this diversity action involving an allegedly defective vehicle. On the facts set forth by the Second Circuit, we hold that the causes of action are not identical and that, under the circumstances presented here, it is possible to be liable for breach of implied warranty even though a claim of strict products liability has not been satisfactorily established.
As stated by the Second Circuit, this action arises out of a June 9, 1986 accident in which plaintiff Nancy Denny was severely injured when the Ford Bronco II that she was driving rolled over. The rollover accident occurred when Denny slammed on her brakes in an effort to avoid a deer that had walked directly into her motor vehicle's path. Denny and her spouse sued Ford Motor Co., the vehicle's manufacturer, asserting claims for negligence, strict products liability and breach of implied warranty of merchantability (see, UCC 2-314  [c]; 2-318). The case went to trial in the District Court for the Northern District of New York in October of 1992.
Plaintiffs introduced evidence at trial to show that small utility vehicles in general, and the Bronco II in particular, present a significantly higher risk of rollover accidents than do ordinary passenger automobiles. Plaintiffs' evidence also showed that the Bronco II had a low stability index attributable to its high center of gravity and relatively narrow track width. The vehicle's shorter wheel base and suspension system were additional factors contributing to its instability. Ford had made minor design changes in an effort to achieve a higher stability index, but, according to plaintiffs' proof, none of the changes produced a significant improvement in the vehicle's stability.
Ford argued at trial that the design features of which plaintiffs complained were necessary to the vehicle's off-road capabilities. According to Ford, the vehicle had been intended to be used as an off-road vehicle and had not been designed to be sold as a conventional passenger automobile. Ford's own engineer stated that he would not recommend the Bronco II to someone whose primary interest was to use it as a passenger car, since the features of a four-wheel-drive utility vehicle were not helpful for that purpose and the vehicle's design made it inherently less stable.
Despite the engineer's testimony, plaintiffs introduced a Ford marketing manual which predicted that many buyers would be attracted to the Bronco II because utility vehicles were "suitable to contemporary life styles" and were "considered fashionable" in some suburban areas. According to this manual, the sales presentation of the Bronco II should take into account the vehicle's "suitab[ility] for commuting and for suburban and city driving." Additionally, the vehicle's ability to switch between two-wheel and four-wheel drive would "be particularly appealing to women who may be concerned about driving in snow and ice with their children." Plaintiffs both testified that
At the close of the evidence, the District Court Judge submitted both the strict products liability claim and the breach of implied warranty claim, despite Ford's objection that the two causes of action were identical. With respect to the strict products liability claim the court told the jury that "[a] manufacturer who places a product on the market in a defective condition is liable for injury which results from use of the product when the product is used for its intended or reasonably foreseeable purpose." Further, the court stated:
With respect to the breach of implied warranty claim, the court told the jury:
Neither party objected to the content of these charges.
In response to interrogatories, the jury found that the Bronco II was not "defective" and that defendant was therefore not liable under plaintiffs' strict products liability cause of action. However, the jury also found that defendant had breached its implied warranty of merchantability and that the breach was the proximate cause of Nancy Denny's injuries. Following apportionment of damages, plaintiff was awarded judgment in the amount of $1.2 million.
Ford subsequently moved for a new trial under rule 59 (a) of the Federal Rules of Civil Procedure, arguing that the jury's finding on the breach of implied warranty cause of action was irreconcilable with its finding on the strict products liability claim. The trial court rejected this argument, holding that it had been waived and that, in any event, the verdict was not inconsistent.
On defendant's appeal, a majority at the Second Circuit held that defendant's trial conduct had not resulted in a waiver of the inconsistency issue. Reasoning that the outcome of the appeal depended upon the proper application of New York law, the court certified the following questions for consideration by this Court pursuant to article VI, § 3 (b) (9) of the State Constitution and rule 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17): (1) whether the strict products liability claim and the breach of implied warranty claim are identical; (2) whether, if the claims are different, the strict products liability claim is broader than the implied warranty claim and encompasses the latter; and (3) whether, if the claims are different and a strict liability claim may fail while an implied warranty claim succeeds, the jury's finding of no product defect is reconcilable with its finding of a breach of warranty.
In this proceeding, Ford's sole argument is that plaintiffs' strict products liability and breach of implied warranty causes of action were identical and that, accordingly, a defendant's verdict on the former cannot be reconciled with a plaintiff's verdict on the latter. This argument is, in turn, premised on both the intertwined history of the two doctrines and the close
When products liability litigation was in its infancy, the courts relied upon contractual warranty theories as the only existing means of facilitating economic recovery for personal injuries arising from the use of defective goods (e.g., Mendel v Pittsburgh Plate Glass Co.,
Eventually, the contractually based implied warranty theory came to be perceived as inadequate in an economic universe that was dominated by mass-produced products and an impersonal marketplace. Its primary weakness was, of course, its rigid requirement of a relationship of privity between the seller and the injured consumer — a requirement that often could not be satisfied (see, Martin v Dierck Equip. Co.,
The establishment of this tort remedy has, as this Court has recognized, significantly diminished the need to rely on the contractually based breach of implied warranty remedy as a means of compensating individuals injured because of defective products (see, Heller v U. S. Suzuki Motor Corp., supra, at 411; Martin v Dierck Equip. Co., supra, at 590). Further, although the available defenses and applicable limitations principles may differ, there is a high degree of overlap between the substantive aspects of the two causes of action (see, Victorson v Bock Laundry Mach. Co., supra, at 405). Indeed, on an earlier occasion, this Court observed, in dictum, that "strict liability in tort and implied warranty in the absence of privity are merely different ways of describing the very same cause of action" (Mendel v Pittsburgh Plate Glass Co., supra, at 345; accord, Gumbs v International Harvester,
Nonetheless, it would not be correct to infer that the tort cause of action has completely subsumed the older breach of implied warranty cause of action or that the two doctrines are now identical in every respect (see, Di Prospero v Brown & Sons,
Although the products liability theory sounding in tort and the breach of implied warranty theory authorized by the UCC coexist and are often invoked in tandem, the core element of "defect" is subtly different in the two causes of action. Under
The adoption of this risk/utility balance as a component of the "defectiveness" element has brought the inquiry in design defect cases closer to that used in traditional negligence cases, where the reasonableness of an actor's conduct is considered in light of a number of situational and policy-driven factors.
It is this negligence-like risk/benefit component of the defect element that differentiates strict products liability claims from UCC-based breach of implied warranty claims in cases involving design defects. While the strict products concept of a product that is "not reasonably safe" requires a weighing of the product's dangers against its over-all advantages, the UCC's concept of a "defective" product requires an inquiry only into whether the product in question was "fit for the ordinary purposes for which such goods are used" (UCC 2-314  [c]).
This distinction between the "defect" analysis in breach of implied warranty actions and the "defect" analysis in strict products liability actions is explained by the differing etiology and doctrinal underpinnings of the two distinct theories. The former class of actions originates in contract law, which directs its attention to the purchaser's disappointed expectations; the latter originates in tort law, which traditionally has concerned itself with social policy and risk allocation by means other than those dictated by the marketplace.
The dissent takes issue with the foregoing conclusion, arguing, in essence, that any residual distinction that exists between the two causes of action should be eliminated and that the analysis for "defect" in implied warranty claims should be deemed to encompass the risk/utility analysis that has previously been incorporated in tort causes of action. This argument is predicated on the dissent's view that the common history of the two causes of action and the perceived advantages of risk/utility analysis counsel in favor of the use of a unitary standard. The dissent has even gone so far as to suggest that the breach of implied warranty cause of action should be treated like a tort claim despite the fact that it is based on the provisions of the Uniform Commercial Code.
What the dissent overlooks is that, as long as that legislative source of authority exists, we are not free to merge the warranty cause of action with its tort-based sibling regardless of whether, as a matter of policy, the contract-based warranty claim may fairly be regarded as a historical relic that no longer has any independent substantive value. Rather, we must construe and apply this separate remedy in a manner that remains consistent with its current roots in contract law (see, Codling v Paglia, supra [recognizing a tort cause of action to avoid stretching the breach of implied warranty theory to the point where it no longer reflects its origin as part of the bargain between the consumer and seller]).
Contrary to the dissent's suggestion, the current version of UCC 2-318 is not the equivalent of these uniform product liability provisions, nor does it manifest an intention by our State's Legislature to engraft a tort cause of action onto a UCC article that concerns itself principally with the contract-based obligations (see, dissenting opn, at 272). Indeed, the Law Revision Commission Staff Notes, which the dissent cites, clearly state that the proposed amendments to UCC 2-318 "would * * * allow recovery by the [strict products liability] plaintiffs on a different cause of action" (Bill Jacket, L 1975, ch 774, Mem of NY Law Rev Commn, Staff Notes relating to A-3070 [emphasis supplied]). Similarly, the Sponsoring Memorandum on which the dissent relies states that the bill's purpose was to
Moreover, the dissent's novel proposal that the contract-based consumer-expectation test should be abandoned for the tort-based risk/utility approach even for contract-based warranty claims has not been embraced or even suggested by any of the risk/utility advocates that the dissent cites. For example, although the drafters of the Third Restatement have endorsed risk/utility analysis for design defect cases sounding in tort, they also have made clear that claims based on warranty theories are "not within the scope" of the newly drafted section and are, in fact, "unaffected by it" (Restatement [Third] of Torts: Products Liability [Tent Draft No. 2, Mar. 13, 1995] § 2, comment m, at 42). Further, the drafters have noted that "[w]arranty law as a body of legal doctrine separate from tort may impose legal obligations that go beyond those set forth" in the Restatement of Torts (id., comment q, at 46).
Similarly, while the commentators on which the dissent relies criticize the consumer-expectation-based tests for product defect and argue instead for the use of a risk/utility approach, their arguments are addressed to tort causes of action alone. One of the cited commentators, for example, argues that the consumer expectation test is a "blunt instrument" "when it comes to recognizing and maximizing the * * * goals, objectives, interests and values important to modern tort law" (Kennedy, The Role of the Consumer Expectation Test under Louisiana's Products Liability Tort Doctrine, 69 Tul L Rev 117, 152 [emphasis supplied]). The same commentator also acknowledges that different standards might be appropriate for different theories of recovery where other objectives and values are pertinent (id.). Another commentator cited by the dissent contends that the risk/utility analysis should be used in place of a consumer-expectation test, but the argument is, once again, premised on the assumption that the latter "is not a tort way of looking at the problem of product defect" (Birnbaum, op. cit., at 646 [emphasis supplied]). This commentator also affirmatively criticizes courts that have failed "to separate conceptually the notions of strict liability, negligence, warranty, and absolute liability" (id., at 601).
In any event, while the critics and commentators may debate the relative merits of the consumer-expectation and risk/utility tests, there is no existing authority for the proposition that the risk/utility analysis is appropriate when the plaintiff's claim rests on a claimed breach of implied warranty under UCC 2-314 (2) (c) and 2-318. Further, the absence of authority for the dissent's position is not surprising since the negligence-like risk/utility approach is foreign to the realm of contract law.
As a practical matter, the distinction between the defect concepts in tort law and in implied warranty theory may have little or no effect in most cases. In this case, however, the nature of the proof and the way in which the fact issues were litigated demonstrates how the two causes of action can diverge. In the trial court, Ford took the position that the design features of which plaintiffs complain, i.e., the Bronco II's high center of gravity, narrow track width, short wheel base and specially tailored suspension system, were important to preserving the vehicle's ability to drive over the highly irregular terrain that typifies off-road travel. Ford's proof in this regard was relevant to the strict products liability risk/utility equation, which required the fact finder to determine whether the Bronco II's value as an off-road vehicle outweighed the risk of the rollover accidents that could occur when the vehicle was used for other driving tasks.
Thus, under the evidence in this case, a rational fact finder could have simultaneously concluded that the Bronco II's utility as an off-road vehicle outweighed the risk of injury resulting from rollover accidents and that the vehicle was not safe for the "ordinary purpose" of daily driving for which it was marketed and sold. Under the law of this State such a set of factual judgments would lead to the concomitant legal conclusion that plaintiffs' strict products liability cause of action was not viable but that defendant should nevertheless be held liable for breach of its implied promise that the Bronco II was "merchantable" or "fit" for its "ordinary purpose." Importantly, what makes this case distinctive is that the "ordinary purpose" for which the product was marketed and sold to the plaintiff was not the same as the utility against which the risk was to be weighed. It is these unusual circumstances that give practical significance to the ordinarily theoretical difference between the defect concepts in tort and statutory breach of implied warranty causes of action (see, e.g., McLaughlin v Michelin Tire Corp.,
From the foregoing it is apparent that the causes of action for strict products liability and breach of implied warranty of merchantability are not identical in New York and that the latter is not necessarily subsumed by the former. It follows that, under the circumstances presented, a verdict such as the one occurring here — in which the manufacturer was found liable under an implied warranty cause of action and not liable under a strict products cause of action — is theoretically reconcilable under New York law. Whether the particular verdict produced by the jury in this case was reconcilable in light of the charge and in accordance with case law applying rule 59 (a) of the Federal Rules of Civil Procedure is a question of Federal procedure which we are not well positioned to
Accordingly, certified question No. 1 should be answered in the negative, certified question No. 2 in the negative and certified question No. 3 in the affirmative.
I agree with the majority that causes of action in strict products liability and breach of implied warranty are not identical. In my view, however, the strict products liability claim is substantively broader than and encompasses the implied warranty claim and, thus, the jury's verdict of no defect in the products liability cause of action is not reconcilable with its finding of breach of implied warranty. Accordingly, I would answer the first two questions certified to the Court no and yes and find it unnecessary to answer the third question.
Liability without fault may be imposed against a manufacturer or supplier of a defective product and in favor of one injured by the product. The product may be defective because it is improperly made, because its design is defective or because the manufacturer's warnings against foreseeable risks in using it are inadequate. The members of the Court agree that strict products liability and implied warranty are similar in the sense that both causes of action require that, before plaintiff may recover, the product be defective, i.e., there must be something wrong with it. We disagree, however, over how defectiveness is determined. The question does not appear to have been previously addressed by the Court in the context of personal injury litigation.
The majority concludes that the implied warranty and strict products liability causes of action are different because the existence of an actionable defect is determined by two different
Logically, there is no substantive difference for testing liability in the two causes of action. Recovery in each depends upon establishing that the product was defective because improperly designed. But the word "defect" has no clear legal meaning. In this case, the court defined defect in its strict products liability charge but did not attempt to define it otherwise; in the warranty cause of action the meaning had to be found in the court's instructions describing the nature of the cause of action. Nevertheless, the predicate for recovery in both claims was the same.
The court charged the jury that to recover in strict products liability the plaintiffs had to prove that the Bronco II was "defective" when it was placed on the market. A product is defective, the court said, if it is "not reasonably safe" when used for "its intended or reasonably foreseeable purpose." That charge was consistent with settled New York law which holds that a manufacturer or supplier may be strictly liable for injuries sustained when a product is used for its intended purpose or for an unintended but reasonably foreseeable purpose (see, Lugo v LTN Toys,
When these two definitions are compared, it is apparent that a defect for strict products liability purposes is broader than a defect for implied warranty purposes. The vehicle could not have been defective when used for its ordinary and intended purpose (warranty), but not defective and reasonably safe when
Nor is there any legal reason to distinguish the two causes of action in this respect. Breach of implied warranty and strict liability in tort developed from separate legal doctrines but are not materially different when applied to personal injury claims involving design defects. While breach of implied warranty retains its contractual law characteristics when applied to commercial transactions, it has been consistently recognized that it is a tort when applied to personal injury litigation and that tort principles should apply. To introduce a new test of defectiveness into tort litigation — one based on contract principles — can only destabilize the well-settled law in this area. Both causes of action are torts and defectiveness for both should be determined by the same standard.
The law imposing liability without fault against those making and marketing consumer products evolved in stages, progressing from negligence to implied warranty and eventually to the adoption in New York of a new cause of action known as strict products liability. Implied warranty has been generally associated with the law of contracts (although the Restatement advises us warranty was originally a matter of tort liability), but if implied warranty ever was a contract doctrine, it is now something very different from the warranty cause of action used in commercial transactions (see, Restatement [Second] of Torts § 402 A, comment m; 5 Harper, James and Gray, Torts § 28.27, at 540 [2d ed]; Prosser and Keeton, Torts § 97, at 691 [5th ed]; 1 Weinberger, New York Products Liability § 15:03). Indeed, the idea that there could ever be a claim for breach of implied warranty without privity is a concept entirely foreign to contract law. Moreover, the liability currently imposed in the name of warranty goes far beyond any liability based upon conventional contract notions and encompasses such tort concepts as consequential damages and contributory fault. As Dean Prosser has said: "[T]his warranty, if that is the name for it * * * is something separate and
Finally, there can be no doubt about how this Court has viewed the action. We have repeatedly recognized not only that breach of implied warranty when asserted to recover for personal injuries is a tortious wrong (see, Victorson v Bock Laundry Mach. Co.,
Nevertheless, the idea that contractual principles inhere in breach of implied warranty claims for personal injuries has persisted, producing conceptual difficulties and anomalies when the courts tried to apply the cause of action in a tort setting (see, Prosser and Keeton, Torts § 97, at 692 [5th ed]). In Codling v Paglia (
This new cause of action was not separate from implied warranty but an amalgam which had been constructed by the
In sum, although procedural distinctions may remain because mandated by the Legislature's enactment of various provisions of the Uniform Commercial Code (see, Heller v U. S. Suzuki Motor Corp.,
The majority has not attempted to define the consumer expectation standard, nor did the District Court use the phrase in its charge. Under one formulation, however, the standard provides that a product is defective, i.e., it is unreasonably dangerous, if it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics" (see, Restatement [Second] of Torts § 402 A, comment i; see also, Kennedy, The Role of the Consumer Expectation Test under Louisiana's Products Liability Tort Doctrine, 69 Tul L Rev 117, 120 ).
By contrast, the standard usually employed to determine design defectiveness in strict products liability claims requires a balancing of the risks attendant on using the product with the utility of the product when used as intended. As we stated in Robinson v Reed-Prentice Div. of Package Mach. Co. (
Although some jurisdictions have recognized the consumer expectation standard, or some variation of it, in tort litigation
If the test is applied to determine the actual buyer's expectations, as in contract law, it can result in imposing absolute liability upon manufacturers and sellers making them insurers of the product's safety merely because the product did not live up to the consumer's subjective expectations. If the test is used objectively, it is beyond the experience of most lay jurors to determine what an "ordinary consumer" expects or "how safe" a sophisticated modern product could or should be made to satisfy those expectations unless the jury is allowed to consider the cost or impracticality of alternative designs or, indeed whether any alternative design for the product was available.
The test can also produce bad results. For example, if the risk is one that is easily understood and appreciated by the average consumer, the manufacturer might not be liable even if the defect could be eliminated by available and inexpensive design changes. Conversely, if the defect was not apparent, liability might attach even if the product was in fact state of the art.
Moreover, the consumer expectation test is unworkable when applied in cases involving design defects. In claims involving manufacturing defects, a consumer may reasonably expect a product to be made in accordance with the manufacturer's standards and expect to be compensated for injuries resulting from the manufacturer's failure to meet them. The product is reasonably held defective because the manufacturer has not made the product as it intended. However, in design defect cases the plaintiff contends that the product has been made precisely as intended but is nevertheless defective because the design is defective. But unless some external standard, such as available alternative designs and risk/utility analysis is employed, how is the jury to measure the propriety of the design? The consumer cannot reasonably expect a design to be changed if the cost of doing so far outweighs the utility of the product or if there is no alternative design available. Some
Because of these and other shortcomings, one commentator has stated that, when it comes to measuring defectiveness, the consumer expectation test applied without a risk/utility analysis is "a blunt instrument" (Kennedy, op. cit., at 150). Few courts have relied solely on it as a measure of defectiveness (see, Birnbaum, op. cit., at 615).
No New York court has recognized the consumer expectation standard to determine defectiveness in personal injury actions grounded on implied warranty — at least the parties and the majority have not cited any decision doing so — and I can see no persuasive policy reasons why we should do so now. If the test is unworkable when applied in tort causes of action grounded on strict products liability, it is equally unworkable when applied in tort causes of action grounded on breach of implied warranty. The correct standard in strict liability claims, according to the Third Restatement, should include a balancing of the risk of danger against the utility of the product as designed. In its words, "consumer expectations do not constitute an independent standard for judging the defectiveness of product designs" (Restatement [Third] of Torts: Products Liability [Tent Draft No. 2] § 2, comment f, at 29). They are "not determinative of defectiveness" because they do not take into account "whether the proposed alternative design could be implemented at reasonable cost, or whether an alternative design would provide greater overall safety", i.e., the test does not take into consideration risk/utility factors (id.). Consumer expectations only value is when used as a factor in determining the reasonableness of alternative designs or how the product is portrayed and perceived by the public, i.e., whether the risk was foreseeable. As we stated in Robinson v Reed-Prentice Div. of Package Mach. Co. (supra) the conditions contemplated by "the ultimate consumer" must be taken into account, but the risk/utility analysis remains a necessary part of the equation for determining defectiveness in products liability cases (Restatement [Third] of Torts, op. cit.; see also, Birnbaum, op. cit., at 617).
The majority maintains, however, that the consumer expectation standard must be applied because breach of implied warranty is a statutory cause of action and the Court is not free to ignore the statute's provisions or draw a distinction between its application to commercial claims and personal injury claims.
Implied warranties have been a part of our statutory law since at least 1911, long before any serious attempt was made to base tort liability on them (see, former Personal Property Law § 96, now UCC 2-314). Section 96, and its successor provisions in the Uniform Commercial Code, were enacted to address problems arising in commercial transactions. For many years they had no significant impact upon personal injury litigation because of the rules of privity. However, in 1975, shortly after Codling v Paglia (supra) was decided, section 2-318 of the Uniform Commercial Code was amended to harmonize it with existing case law by eliminating the requirement of privity in personal injury claims (see, 1975 NY Legis Ann, at 110; Heller v U. S. Suzuki Motor Corp.,
Moreover, no words in the statute either before or after the amendment, provide that the defectiveness of the product in tort claims, or commercial claims for that matter, is to be measured by the consumer's expectations. That standard has been
Moreover, the statutory formulation of implied warranty has never restricted us in developing the tort remedy before. Long before the statute eliminated the requirement of privity for recovery, the courts narrowed and then eliminated it altogether. We did not feel inhibited by the statute in doing so: policy, not language, controlled the interpretation and application of the statute. Nor have the courts been constrained by the statute's provisions when eliminating the UCC's requirement of notice in tort actions (see, Fischer v Mead Johnson Labs.,
The warranty claim in this case was for tortious personal injury and rests on the underlying "social concern [for] the protection of human life and property, not regularity in commercial exchange" (see, Restatement [Third] of Torts, op. cit., § 2, comment q, at 46). As such, it should be governed by tort rules, not contract rules. Nothing has prevented us in the past from construing and applying the provisions of the Uniform Commercial Code to supplement and advance the policy concerns underlying strict products liability generally, and we should not construe the statute now to establish a standard for determining defectiveness which is inconsistent with the present law in this area (see generally, UCC 1-103).
Accordingly, I dissent.
Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.17 of the Rules of the Court of Appeals (22 NYCRR 500.17), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified question No. 1 answered in the negative, certified question No. 2 answered in the negative, and certified question No. 3 answered in the affirmative.
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