Plaintiff recovered a judgment for damages to his pickup truck, which allegedly resulted from the fracture of a defective weld in an axle housing. The damage occurred when plaintiff lost control of the truck after it went over a bump on a gravel road, left the road, struck a rock pile, upended, and finally came to rest on its wheels. Plaintiff's initial complaint alleged negligence, strict liability, and breach of warranty, but the case went to trial on an amended complaint based solely on the strict liability of the truck manufacturer for the allegedly defective axle. The jury awarded plaintiff $2,666.97 for damages to the truck. Defendant manufacturer appeals, assigning as error the trial court's denial of its motions for an involuntary nonsuit and for a directed verdict, each based on three grounds: Failure by plaintiff to state a cause of action,
The first of these issues requires us to fit into place another piece in the puzzle of products liability: Whether the manufacturer's strict liability for a dangerously defective product may be invoked when the only injury caused by the defect is to the product itself. Defendant contends that it may not. It characterizes damage to or destruction of the purchased product as an "economic loss" with respect to which the relations of the parties, from the manufacturer to the disappointed user, are governed by the law of sales transactions, specifically the Uniform Commercial Code. Plaintiff contends, to the contrary, that when a defective product is dangerous to persons or property, the manufacturer's strict liability extends also to the loss of the product itself. The trial court concluded in a memorandum opinion that the precise issue is left open by the prior decisions of this court, but that strict liability does reach the damage to the product under the circumstances of this case. We agree.
The evolution of the prior decisions was recently reviewed in Brown v. Western Farmers Association, 268 Or. 470, 521 P.2d 537 (1974). Strict liability for products that are not "ultrahazardous," as in Wights v. Staff Jennings, Inc., 241 Or. 301, 405 P.2d 624 (1965), but are "dangerously defective" dates from Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967), a case factually very similar to the present one. "Dangerously defective" has been held to mean "unreasonably dangerous to the user or consumer or to his property." See cases cited in Brown, 268 Or. at 477, 521 P.2d 537. The liability is independent of contractual privity and extends to remote buyers, users, or others foreseeably within the range of the danger created by the defective condition. This line of development addressed the standards of the manufacturer's or seller's responsibility for his product and the class of injured parties to whom he would be liable, but it did not settle the type of losses included within that liability.
The evolution of tort liability for defective products did not proceed without second thoughts that it threatened to swallow up the law enacted by the legislature to govern relationships in the commercial marketplace, specifically the sales provisions of the Uniform Commercial Code, ORS 72.1010-72.7250, as critics had charged. See,
The effort to stake out a line between the tort law and the commercial law has taken various forms. A "disappointed buyer" seeking a remedy only for "economic loss" resulting from the defective performance of a product purchased for business use was left to find it in the law of sales, first as against an "innocent" seller, Price v. Gatlin, 241 Or. 315, 405 P.2d 502 (1965), and later also against a nonnegligent producer, State ex rel. Western Seed v. Campbell, 250 Or. 262, 442 P.2d 215 (1968), cert. denied, 393 U.S. 1093, 89 S.Ct. 862, 21 L.Ed.2d 784 (1969), though such a loss would be recoverable for negligence, id. at 269-270, 442 P.2d 215. Three members of the court suggested that the distinction between an "economic loss" from defective performance and "property damage" recoverable upon strict liability could be whether the defect caused an "accident," Price v. Gatlin, 241 Or. at 320, 405 P.2d 502 (O'Connell, J., dissenting with Sloan and Denecke, JJ.) and then withdrew that suggestion in Western Seed, 250 Or. at 285 n. 8, 442 P.2d 215 (same justices concurring and dissenting).
Meanwhile, any buyer invoking commercial law to recover for losses from a product's defective performance in the buyer's business was met by decisions retaining the requirement of privity in that context. Id. at 268, 442 P.2d 215; Hupp Corp. v. Metered Washer Service, 256 Or. 245, 472 P.2d 816 (1970); Davis v. Homasote Co., 281 Or. 383, 574 P.2d 1116 (1978).
Starting with a clean slate, an argument can also be made that recovery for repair or replacement of the defective product itself must be pursued under the commercial law and not under a tort theory of strict liability. If the defective product has done no other damage, what plaintiff has lost is part or all of what he bought, and his rights toward his immediate or remote seller are normally governed by contractual and statutory provisions. But when the defective product has damaged or destroyed other property besides the product itself, as in Wulff v. Sprouse-Reitz Co., supra, segregation of the claims seems artificial. And the slate is not clean, since the court in fact allowed a strict liability claim for loss of the defective product itself in Brownell v. White Motor Corp., supra. So the Brown court, having found no "unreasonable danger" to "property" in the mere impairment of the commercial value of the property in that case, only acknowledged that perhaps strict liability should require the danger to be one endangering human life or safety, a different question from whether tort recovery should be limited to such an injury.
That difference determines the decision in the present case. The focus in the foregoing evolution of products liability has been on the premise for the seller's responsibility beyond warranty or negligence, though the motivating concern was with injuries to personal health. This premise of responsibility has settled on strict liability for marketing the dangerously defective product, a premise stricter than negligence but less than absolute liability. Markle v. Mulholland's, Inc., supra, 265 Or. at 265-268, 509 P.2d 529; Phillips v. Kimwood Machine Co., supra, 269 Or. at 491, 525 P.2d 1033. Had it been absolute liability, making an enterprise an insurer against harm caused by its products, the focus in delimiting this remedy would have been on the characteristics of the plaintiff and his injury rather than on those of the defendant and his product. It has, however, been on the latter. Insofar as the premise of responsibility
Nevertheless, this does not imply that once a product is "dangerously defective," its seller is liable for any and all losses consequent upon its use. The premise of his liability also controls its extent. The loss must be a consequence of the kind of danger and occur under the kind of circumstances, "accidental" or not, that made the condition of the product a basis for strict liability. This distinguishes such a loss from economic losses due only to the poor performance or the reduced resale value of a defective, even a dangerously defective, product. It is the distinction between the disappointed users in Price and Brown, and the endangered ones in Brownell v. White Motor Corp. and Wulff v. Sprouse-Reitz Co. It may not be the sole or the final distinction between the responsibilities of sellers in tort and in commercial or other statutory law. The legislature has addressed the character and scope of consumer protection in the market place before
In this case the conditions for recovery are met. If the alleged defect in the truck axle housing existed, it was certainly a man-endangering one. The property for which damages are claimed, the truck, was assertedly wrecked in consequence of precisely the defective condition, and under the circumstances, that made the product dangerous to the user. When a defective axle assembly causes a truck to leave the road and turn over, even if by good fortune no person or other property is injured, the damage to the truck itself results from just the kind of danger for which the responsibility for defective products is imposed on the seller. The trial court did not err in holding that plaintiff had stated a cause of action for strict liability.
Defendant's second and third ground for its motions were that there was no substantial evidence to support plaintiff's allegations that the truck was dangerously defective when it left the manufacturer's possession and that the defect caused the accident. Plaintiff's case rested on the evidence of two witnesses, plaintiff himself and an engineer called and qualified as an expert. The expert testified to the results of a metallurgical examination that indicated a defective weld where the axle housing broke. He stated that the defect would cause the steel of this part to be brittle and "weakened" so as to break "at loads that one would normally expect the piece to be able to sustain" and "when you simply wouldn't expect it to break if those had not been there." The engineer could not, from mere examination of the broken housing, exclude the possibility that the break occurred after rather than before the truck left the road and struck the rock pile. However, plaintiff, himself, testified that he drove at a moderate speed over two
Nor did the trial court err in letting the jury decide whether the weld described by plaintiff's witness was a weld made in manufacturing the truck. The evidence, not questioned by defendant, was that the vehicle was a 1973-model Ford pickup purchased from a Ford dealer some six or seven months before the date of the accident, December 30, 1972. Even allowing generously for the difference between the Gregorian calendar and the one employed in Detroit, a jury might well infer that plaintiff had acquired the truck as a new product when no question was raised about this. The relation between the plaintiff's burden of persuasion on the absence of intervening changes in the product after it left defendant's hands and defendant's obligation to trigger the need for proving such a negative has been described by one court as follows:
In the present case nothing would suggest that the part at issue, the axle assembly, would be one which under normal circumstances would be altered, replaced, or even serviced in the chain of distribution or during the 7,000 miles that plaintiff drove the truck.