MORNINGSTAR v. BLACK & DECKER MFG. CO.

MILLER, Justice:

This case presents the question of the extent to which a manufacturer of a defective product is liable in tort in this State to a person injured by such product.

The question comes to us from the United States District Court for the Southern District of West Virginia under the Uniform Certification of Questions of Law Act.1 The plaintiffs, the Morningstars, filed a personal injury action in the District Court based on diversity of citizenship against the defendant, Black and Decker Manufacturing Company. The basis for their action is the allegation that Black and Decker manufactured an "8-Inch Builders Sawcat" and Mr. Morningstar was injured when the saw's safety guard failed to close. Mrs. Morningstar sued for loss of consortium.

The Morningstars' complaint set out multiple theories for the defendant's liability, all based on tort concepts. We will discuss these various theories in some detail in the latter portion of this opinion. For our present purposes, they may be identified as the rule of the Restatement, Second, Torts § 402A (1965), the principles set out in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049 (1963), and the rule of the Restatement, Second, Torts § 519 (1977), commonly known as the Rylands v. Fletcher2 Doctrine.

The Federal District Court, perceiving there was some lack of clarity in the decisions of this Court on this subject, and recognizing under Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 (1938), that it was required to apply the substantive tort law of this State to the Morningstars' case, sought this certification.

Black and Decker initially raises two procedural issues of which we must dispose before addressing the substantive law. It contends that upon such a certification, we are bound to determine the manufacturer's liability based on our past law and not on what we may conceive it to be at the present. Second, we are reminded that as a result of W.Va.Code, 2-1-1, and the provision found in Article VIII, Section 13 of the West Virginia Constitution, we are not empowered to alter the common law as it existed in 1863.

I

THE CERTIFICATION QUESTION

This case presents the first occasion for this Court to accept a certification under W.Va.Code, 51-1A-1, et seq. We begin by noting that the provisions of this statute are not mandatory. Section 1 provides: "The supreme court of appeals of West Virginia may answer questions of law certified to it . . . ." In the Commissioners' Comment to Section 1 of the Uniform Certification of Questions of Law Act, the following statement is made:

Cf. In re Richards, 223 A.2d 827 (Me.1966).

The growth of the Uniform Certification of Questions of Law Act has largely been a response to the Abstention Doctrine, which was a necessary outgrowth of Erie Railroad v. Tompkins, supra.3 In Erie, the Court held that in diversity cases federal courts were no longer "free to exercise an independent judgment as to what the common law of the State is—or should be; . . ." but must apply the substantive law as evolved by the state either through its statutes or its court decisions. 304 U.S. at 71, 58 S.Ct. at 819, 82 L.Ed. at 1190, 114 A.L.R. at 1489. Erie in effect overruled Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842), which held that in diversity cases the federal courts could declare the substantive law independently of that evolved by the state courts except in purely local matters.

It is rather apparent that where our State's substantive law is clear, there is no need to obtain certification under W.Va. Code, 51-1A-1, et seq. The language of this provision makes this manifest, since the certification is limited to those questions "which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of appeals of this State." W.Va.Code, 51-1A-1.

For a considerable period of time, we have had an internal statutory certification procedure whereby the circuit courts may obtain from this Court a definitive statement of the law. W.Va.Code, 58-5-2. Historically, we have treated this procedure as a means of clarifying the current state of our law, so that the trial courts may proceed to try a case on the correct legal principles.4

In states having external certification statutes similar to W.Va.Code, 51-1A-1, courts have generally recognized that the certification is designed to resolve ambiguities or unanswered questions about the receiving state's law. See, e. g., Wansor v. George Hantscho Co., 570 F.2d 1202 (5th Cir. 1978); Almarez v. Carpenter, 173 Colo. 284, 477 P.2d 792 (1970); West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976); Pierce v. Secretary of H.E.W., 254 A.2d 46 (Me.1969); Norton v. Benjamin, 220 A.2d 248 (Me.1966); Irion v. Glens Falls Insurance Co., 154 Mont. 156, 461 P.2d 199 (1969); Ford v. Black Mountain Tramways, 110 N.H. 20, 259 A.2d 129 (1969); In re Elliott, 74 Wn.2d 600, 446 P.2d 347 (1968).

We conclude, therefore, that from the language of W.Va.Code, 51-1A-1, together with the conventional construction placed by other courts on similar certification statutes, this Court, in answering a certified question, must of necessity determine the present law bearing on the issue certified.

II

THE EFFECT OF ARTICLE VIII, SECTION 13, AND W. VA. CODE, 2-1-1 ON THIS COURT'S ABILITY TO MODIFY THE COMMON LAW

Black and Decker urges that Article VIII, Section 13 of our Constitution and W.Va.Code, 2-1-1,5 operate as a bar to this Court's ability to change the common law. These two provisions have led to some confusion in the opinions of this Court and have brought into existence two conflicting responses.

The first is a line of cases which suggest that this Court cannot alter the common law and that such alterations must come from the Legislature. See, e. g., Seagraves v. Legg, 147 W.Va. 331, 127 S.E.2d 605 (1962) (absence of wife's right to sue for loss of consortium resulting from personal injury to husband); Walker v. Robertson, 141 W.Va. 563, 91 S.E.2d 468 (1956) (bar to women serving on petit jury); State v. Arbogast, 133 W.Va. 672, 57 S.E.2d 715 (1950) (rule that dogs cannot be subject of larceny); Shifflette v. Lilly, 130 W.Va. 297, 43 S.E.2d 289 (1947) (strict liability of innkeeper to guest for personal injury or property damage); Poling v. Poling, 116 W.Va. 187, 179 S.E. 604 (1935) (interspousal tort immunity), overruled, Coffindaffer v. Coffindaffer, W.Va., 244 S.E.2d 338 (1978); Cunningham v. Dorsey, 3 W.Va. 293 (1869) (applying English common law rule that easement of "ancient lights" can arise only by adverse enjoyment from time immemorial).

A subcategory within this category consists of those cases where the Court has acknowledged that it is required to apply the common law as it existed in 1863, but has been able to find a common law precedent that enables the Court to follow more modern common law principles. See, e. g., Long v. City of Weirton, W.Va., 214 S.E.2d 832 (1975) (abolishing doctrine of municipal tort immunity).

A second and rather divergent approach has been taken in cases where the Court has said a common law rule may be overruled or modified where the old rule does not meet existing conditions. In many of these cases the Court mentions neither the statutory nor the constitutional provision. See, e. g., Currence v. Ralphsnyder, 108 W.Va. 194, 151 S.E. 700 (1929) (restricting doctrine of champerty); Powell v. Sims, 5 W.Va. 1, 13 Am.Rep. 629 (1871) (disapproving doctrine of ancient lights); see also Board of Education v. W. Harley Miller, Inc., W.Va., 221 S.E.2d 882, 888 (1975) (Neely, J., concurring) (disapproving doctrine that arbitration agreement is no bar to suit on underlying contract); State ex. rel. Worley v. Lavender, 147 W.Va. 803, 131 S.E.2d 752, 761 (1963) (Calhoun, J., dissenting) (disapproving rule that husband and wife may not testify to "nonaccess" in bastardy proceeding).

Included within this category are cases in which the Court has adopted new common law principles without ever discussing whether those principles arose out of pre-1863 common law. See, e. g., Teller v. McCoy, W.Va., 253 S.E.2d 114 (1978) (affording residential tenant implied warranty of habitability); Harless v. First National Bank, W.Va., 246 S.E.2d 270 (1978) (limiting private employer's right to discharge an at-will employee); Lee v. Comer, W.Va., 224 S.E.2d 721 (1976) (establishing right of unemancipated minor to maintain action against parents for personal injuries received in automobile accident); State v. Grimm, 156 W.Va. 615, 195 S.E.2d 637 (1973) (abolishing the M'Naghten common law rule on insanity and adopting a rule similar to the Model Penal Code); Adkins v. St. Francis Hospital, 149 W.Va. 705, 143 S.E.2d 154 (1965) (abolishing doctrine of charitable immunity in tort cases against hospitals); Weaver Mercantile Co. v. Thurmond, 68 W.Va. 530, 70 S.E. 126, 33 L.R.A.,N.S. 1061 (1911) (adopting Rylands v. Fletcher Doctrine, which did not come into the English common law until 1868); Snyder v. Wheeling Electrical Co., 43 W.Va. 661, 28 S.E. 733, 64 Am.St.Rep. 922, 39 L.R.A. 499 (1897) (adopting Res Ipsa Loquitur Doctrine, which Byrne v. Boadle, 2 H. & C. 722, 159 Eng.Rep. 299 (1863), created on November 25, 1863, some five months after our Constitution was adopted on June 20, 1863).

While there has been a lack of consistency on the part of this Court in its treatment of W.Va.Code, 2-1-1, and Article VIII, Section 13 of our Constitution, there apparently has been no attempt made to determine the origin of and the historical reasons for these two provisions. In fact, in Seagraves v. Legg, 147 W.Va. 331, 336, 127 S.E.2d 605, 607 (1962), we find this statement in reference to these two provisions: "Apparently [other] states do not have the same constitutional and statutory provisions as West Virginia . . . ."

Our constitutional and statutory provisions are not unique, but are similar to many state constitutional provisions, statutes and early colonial and territorial charters.6 It can be shown from the decisions of other courts that these provisions were designed to establish the initial body of law on which the particular state would operate, and were not viewed as provisions designed to limit the courts in their historic role of developing the common law.

At an early date in Baring v. Reeder, 11 Va. (1 Hen. & M.) 154, 161-63 (1806), the Supreme Court of Virginia met this issue under a 1776 ordinance which provided that the common law of England and acts of Parliament prior to the fourth year of King James the First "shall be the rule of decision, and shall be considered as in full force, until the same shall be altered by the legislative power of this colony."7 The court stated the effect of this ordinance on the common law as interpreted by the Virginia courts:

In Trustees, etc., of Town of Brookhaven v. Smith, 188 N.Y. 74, 77-80, 80 N.E. 665, 666-67, 9 L.R.A.,N.S., 326, 327-28 (1907), the court had before it a constitutional provision referring to the common law of 1777—the year in which New York adopted its first constitution.8 It declined to treat this provision as preventing the judicial alteration of the common law:

The Nebraska court in Williams v. Miles, 68 Neb. 463, 469-71, 94 N.W. 705, 708, 110 Am.St.Rep. 431, 437-38, 62 L.R.A. 383, 386 (1903), was asked to hold that its statute adopting the common law of England required the court to be bound by English precedent prior to the American Revolution:

The Colorado court in Chilcott v. Hart, 23 Colo. 40, 51-59, 45 P. 391, 395-98, 35 L.R.A. 41, 47-50 (1896), was asked to construe its statute, which was similar to the 1776 Virginia ordinance,9 to require the enforcement of the English common law prior to 1607 in connection with an antiquated interpretation of the Rule against Perpetuities. In rejecting this proposition, the court stated:

Both Ohio and Pennsylvania also refused to interpret counterpart provisions as restricting the court's right to modify the common law. In Bloom v. Richards, 2 Ohio St. 387, 390 (1853), the following statement was made:

In Carson v. Blazer, 8 Pa. (2 Binn.) 475, 484, 4 Am.Dec. 463, 467 (1810), this issue was laid to rest in the following terms:

While the problem is of ancient origin, it is not without more modern precedent. As in the present case, the issue arises in those cases where the court is asked to make some departure from the English common law.

The same argument advanced here was rejected in Latz v. Latz, 10 Md.App. 720, 731, 272 A.2d 435, 441 (1971), where the court stated:

"`[W]hether parts of the common law are applicable because of our circumstances and situations and on a general code of laws and jurisprudence, is a question which comes within the province of the courts of justice and is to be decided by them.' Gilbert v. Findlay College, 195 Md. 508, 513, 74 A.2d 36, 38. Art. 5 referring to the common law en masse existing here either potentially or practically, as it prevailed in England on 4 July 1776, State v. Buchanan, 5 Har. & J. 317, 358, does not preclude a change of it by judicial decision. We hold that Art. 5 of the Declaration of Rights of Maryland does not preclude the Schneider [Schneider v. Schneider, 160 Md. 18, 152 A. 498 (1930)] rule."

Justice Schaefer of the Illinois Supreme Court dispatched this same issue in Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412 (1953). There, an Illinois statute had set the common law as of the fourth year of James I, and stated that it "`shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority'":

The Kentucky court in City of Louisville v. Chapman, 413 S.W.2d 74 (Ky.1967), under a constitutional section similar to ours,11 rejected the notion that this provision froze the courts' ability to alter the common law:

Wisconsin has discussed this subject in several cases in connection with its constitutional provision, which states:

In Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962), the court decided to alter the common law rule in regard to contribution between joint tortfeasors, and was met with the contention that the foregoing provision precluded the court's right to change the common law. After a brief statement that the courts created the common law, it said:

The same argument was made and rejected in State v. Esser, 16 Wis.2d 567, 115 N.W.2d 505 (1962), where the court was asked to change its insanity rule in criminal cases. After a lengthy quotation from Justice Cardozo's The Nature of the Judicial Process (1921), which discussed the evolution of the common law as court-created law, the court stated:

The issue again surfaced in Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967), where the court had before it the same issue with which we are now faced: whether privity of contract is required in a tort product liability case. After citing its earlier cases, the court stated:

"`It has been said so often as to have become axiomatic that the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.'" [37 Wis.2d at 457, 155 N.W.2d at 62]

See Davison v. St. Paul Fire & Marine Insurance Co., 75 Wis.2d 190, 201, 248 N.W.2d 433, 439-40 (1977); Garcia v. Hargrove, 46 Wis.2d 724, 731-33, 176 N.W.2d 566, 569-70 (1970).

Perhaps there is no more eloquent and forceful expression of this principle than that found in Ketelsen v. Stilz, 184 Ind. 702, 111 N.E. 423, L.R.A. 1918D, 303 (1916), which construed an Indiana statute that adopted the common law made "`prior to the reign of James the first . . . .'" After a lengthy discussion of common law jurisprudence as a system of judge-made law, the court concluded:

The obvious thread running through all of these cases is that the term "common law" encompasses two components: first, a body or collection of case precedents extending from the present time back into the ancient courts of England; second, and of more importance, a system of reasoning from case to case precedent that permits the common law to grow with and adapt to changing conditions of society. This latter thought was elaborated upon by Dean Pound in The Spirit of the Common Law (1921):

See generally R. Aldisert, The Judicial Process (1976), at 88-169 (collecting authorities on "judge-made" law); Green, The Thrust of Tort Law, Part II, Judicial Law Making, 64 W.Va.L.Rev. 115 (1962).

In this statement from The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897), Justice Holmes, in his characteristically pragmatic fashion, summarized the reason why the English common law cannot be rigidly imposed as binding precedent:

From the foregoing discussion, it can be seen that the provisions of our Constitution, Article VIII, Section 13, and of our statute, W.Va.Code, 2-1-1, are not unique to this State, but exist in similar form in many other states. The historical purpose of such provisions was to declare what sources would initially constitute the organic law which would govern the body politic. We do not find any jurisdiction which adheres to the view that such provisions were adopted to freeze the common law for the courts as of the date the particular provision was enacted.

Certainly, many of these provisions provide, as do ours, that the legislature may alter or amend the common law, but this has never caused the courts in other jurisdictions to conclude that the silence about the courts' right to change the common law must mean that courts could not alter it.

Such a construction appears to have been considered by this Court only in some of its cases. This construction does violence to the very nature of the common law, which, as we have seen, has been judicially evolved from prior precedents and modified as necessary to meet society's changing needs. It would have been a mere redundancy to require the constitutional and statutory provisions to read "until altered or repealed by the legislature or the courts," since the courts always had the historic power to evolve and alter the common law which they created.

Based on the foregoing law, we hold that Article VIII, Section 13 of the West Virginia Constitution and W.Va.Code, 2-1-1, were not intended to operate as a bar to this Court's evolution of common law principles, including its historic power to alter or amend the common law.

III

GENERAL LAW OF STRICT LIABILITY IN TORT OF MANUFACTURER

The issue before us is whether or to what extent a third party, who has not contracted to buy the product, can recover for personal injuries occasioned by the product from the seller or manufacturer of the product in a tort action. This discussion assumes the injured party has no contract with the seller or manufacturer, and therefore enjoys no "privity" of contract.12

The field of product liability in tort has been well-tilled by various commentators.13 We need only follow the main historical furrow, which began with Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402 (Ex.1842). In that case, the court established that at common law no recovery in tort could be obtained against the manufacturer of a product unless the person injured had privity of contract with the manufacturer.

In this country, MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), is generally credited with making the major breach in the privity rule by holding that the user of a chattel could recover for injuries if it were negligently manufactured and inherently or imminently dangerous, even though the user had no contractual relationship with the manufacturer.

From this doctrinal stage it was not a long step to the Restatement, Second, Torts § 402A (1965), which obviates showing negligence in the manufacture of the product. That the product is actually defective is sufficient no matter how carefully it was manufactured. The principal statement of Section 402A is:

Most courts and commentators refer to either the 402A rule or the Greenman principle as "strict liability in tort." This is somewhat unfortunate, as it tends to create the impression that under either rule the manufacturer is always liable. The term also creates confusion with the traditional common law rule of "strict liability" arising from Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), aff'g L.R. 1 Ex. 265 (1866), which fixes absolute liability for perilous activities or conditions occurring on one's property which escape control and damage another's property or person. The Wisconsin court in Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967), discussed this point:

The term "strict liability in tort" is so imbedded in the judicial decisions and commentaries in the field of product liability that little would be gained by adopting a new term. It appears settled, however, that the term does not impose absolute liability or make the manufacturer an insurer of his product. E. g., Beetler v. Sales Affiliates, Inc., 431 F.2d 651, 653 (7th Cir. Ill.1970); Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 849 (5th Cir. 1967), cert. denied, 391 U.S. 913, 88 S.Ct. 1806, 20 L.Ed.2d 652 (1968) (construing Texas and Oklahoma law); Guglielmo v. Klausner Supply Co., 158 Conn. 308, 315-16, 259 A.2d 608, 612 (1969); Magnuson v. Rupp Manufacturing, Inc., 285 Minn. 32, 44-45, 171 N.W.2d 201, 211 (1969); State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 120-21 (Miss.1966), cert. denied, 386 U.S. 912, 87 S.Ct. 860, 17 L.Ed.2d 784 (1967); Worrell v. Barnes, 87 Nev. 204, 206, 484 P.2d 573, 575 (1971); Hoven v. Kelble, 79 Wis.2d 444, 460, 256 N.W.2d 379, 387 (1977).

The cause of action covered by the term "strict liability in tort" is designed to relieve the plaintiff from proving that the manufacturer was negligent in some particular fashion during the manufacturing process and to permit proof of the defective condition of the product as the principal basis of liability.

IV

WEST VIRGINIA LAW OF STRICT LIABILITY IN TORT

The concept of strict liability in tort for a defective product is not foreign to this State. Perhaps our earliest case, and certainly one of our best, is Peters v. Johnson, Jackson & Co., 50 W.Va. 644, 41 S.E. 190 (1902), where a plaintiff who used a drug but had not purchased it was permitted to recover damages in a tort action against the druggist. Judge Brannon, speaking for a unanimous Court, made the distinction between a contract and a tort remedy:

The Court then proceeded to fix a general tort product liability rule, which not only anticipated by some fourteen years Cardozo's reasoning in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), but surpassed it and reached the 402A rule in the following emphasized language:

It is clear that Peters did not limit its rule to dangerous food or drugs, since it included the following statements involving manufactured products:

While Peters was a tort action against the seller of the product, the case of Webb v. Brown & Williamson Tobacco Co., 121 W.Va. 115, 2 S.E.2d 898 (1939), involved the manufacturer of a plug of chewing tobacco. The plaintiff's son had bought the tobacco, which contained a foreign substance, and in upholding the manufacturer's liability without the necessity of privity, this Court stated:

Webb also permitted the use of the Doctrine of Res Ipsa Loquitur to establish negligence against the manufacturer. This rule was later followed in the first syllabus of Parr v. Coca-Cola Bottling Works, 121 W.Va. 314, 3 S.E.2d 499 (1939), and in the first syllabus of Blevins v. Raleigh Coca-Cola Bottling Works, 121 W.Va. 427, 3 S.E.2d 627 (1939):

Another step in the evolution of our tort product liability law was Ferrell v. Royal Crown Bottling Co., 144 W.Va. 465, 109 S.E.2d 489 (1959), which held the manufacturer-bottler liable in tort for injuries to a patron at a store. The patron was injured when a soft drink bottle on a shelf exploded. There was no privity of contract and the Court permitted a verdict submitted under the Doctrine of Res Ipsa Loquitur to stand.16 This case is of significance because the product, a soft drink bottle, was similar to any other manufactured product. In fact, Ferrell cites with approval the following product liability cases: Chanin v. Chevrolet Motor Co., 89 F.2d 889, 111 A.L.R. 1235 (7th Cir. 1937), and Baxter v. Ford Motor Co., 168 Wn. 456, 12 P.2d 409, aff'd en banc, 15 P.2d 1118, 88 A.L.R. 521 (1932) (automobile windshield); Heckel v. Ford Motor Co., 101 N.J.L. 385, 128 A. 242, 39 A.L.R. 989 (Ct. of Err. & App.1925) (pulley attached to tractor).

Ferrell was followed by Williams v. Chrysler Corp., 148 W.Va. 655, 137 S.E.2d 225 (1964), where the purchaser of an automobile was sued by a guest passenger who also sued the dealer and the car manufacturer. The purchaser cross-claimed against the manufacturer on a negligence theory. The exact nature of the cross-claim is not disclosed in the case, but the Court framed these issues to be controlling:

The purchase contract language referred to contained a broad disclaimer of liability on which the case was ultimately resolved. The Court, however, made this observation about the exceptions to Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402 (Ex.1842), in our jurisdiction:

The Court went on to conclude that "the express warranty or disclaimer between the parties is controlling and . . . this action cannot be maintained." [148 W.Va. at 665, 137 S.E.2d at 231] It cited two earlier cases for the proposition that a party to a contract may limit his liability so long as he is not a common carrier or the negligence is not gross or wilful: Dunham v. Western Union Telegraph Co., 85 W.Va. 425, 102 S.E. 113 (1920), and Zouch v. Chesapeake and Ohio Railway, 36 W.Va. 524, 15 S.E. 185 (1892).

The rather narrow holding in Williams is simply not sustainable under the law of strict liability in tort for two reasons. First, the ultimate user of the product generally does not have privity of contract with the manufacturer, and therefore there will be no applicable contractual disclaimer. Second, and of greater importance, under tort product liability law there can be no disclaimer limitation since such disclaimers are contractual defenses which are not applicable to a cause of action founded on strict liability in tort. E. g., Sterner Aero AB v. Page Airmotive, Inc., 499 F.2d 709, 713 (10th Cir. Okla.1974); West v. Caterpillar Tractor Co., 336 So.2d 80, 88 (Fla.1976); Whitaker v. Farmhand, Inc., 567 P.2d 916, 922 (Mont.1977); Elliott v. Lachance, 109 N.H. 481, 484, 256 A.2d 153, 156 (1969); Pearson v. Franklin Laboratories, Inc., 254 N.W.2d 133, 138-39 (S.D.1977); Dippel v. Sciano, 37 Wis.2d 443, 459-60, 155 N.W.2d 55, 63 (1967).

From this review of our tort product liability cases, it is apparent that while we have not been in the vanguard of the movement, neither have we languished in the rear. Certainly Peters, Webb and Ferrell demonstrate a keen sense of the vital developments in the tort product liability field. They demonstrate that privity of contract was never a bar in this State to a tort action against the manufacturer. Moreover, the utilization of the Doctrine of Res Ipsa Loquitur in effect permitted proof of the defect along with its being the proximate cause of the injury as a sufficient factual basis for recovery.

Our rule is therefore not substantially different from either Section 402A or Greenman, as the key component of each is to remove the burden from the plaintiff of establishing in what manner the manufacturer was negligent in making the product. Once it can be shown that the product was defective when it left the manufacturer and that the defect proximately caused the plaintiff's injury, a recovery is warranted absent some conduct on the part of the plaintiff that may bar his recovery.

The problem has always been to evolve a suitable definition of the term "defect," since most courts hold that the manufacturer is not an insurer of his product. Criticism has been leveled by courts and commentators against Section 402A because it purports to define a defective product in terms of what is "unreasonably dangerous" to "the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Restatement, Second, Torts § 402A Comment i.17 This definition is claimed to inject a concept of foreseeability into the tort product liability law which is inappropriate, since the manufacturer's liability is not based on negligence and the issue of foreseeability is a part of negligence law. Furthermore, it is asserted that by using the phrase "with the ordinary knowledge . . . as to its characteristics," the plaintiff is barred from recovering if there is an obvious defect in the product under the foreseeability concept.

Despite criticism of Section 402A's formulation of the term "defect," there has been a notable lack of uniformity by courts in reaching a definition of the term. This is understandable, since the term "defect" must cover an enormous number of products which may be defectively manufactured for a variety of reasons. The California court, in Greenman and in Cronin v. J. B. E. Olson Corp., 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972), did not attempt any explanation of the term "defect," as it acknowledged in note 16 of Cronin:

It was not until Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978), that the court attempted a concrete definition of the term "defect." It first defined a manufacturing defect, and then a design defect:

Illinois offers a single test for a defective product which appears like Section 402A, "that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer's control," Suvada v. White Motor Co., 32 Ill.2d 612, 623, 210 N.E.2d 182, 188 (1965), until the court states how this is proved, as illustrated in Gillespie v. R. D. Werner Co., 71 Ill.2d 318, 17 Ill.Dec. 10, 11-12, 375 N.E.2d 1294, 1295-96 (1978):

Under either the California or the Illinois standard, it would seem that if the plaintiff can show he was using the product in a normal manner and was injured, the defective condition is then proved.

New Jersey, in Cepeda v. Cumberland Engineering Co., Inc., 76 N.J. 152, 386 A.2d 816 (1978), has adopted what it terms the "risk/utility analysis" proposed by Dean Keeton18 and Dean Wade,19 consisting of seven factors which should be weighed to determine if the product is defective.20 The court in Cepeda suggests it is following Section 402A when it substitutes the term "defective condition unreasonably dangerous" for the term "not duly safe" suggested by Dean Wade for a model instruction:

"`A [product] is not duly safe if it is so likely to be harmful to persons [or property] that a reasonable prudent manufacturer [supplier], who had actual knowledge of its harmful character would not place it on the market. It is not necessary to find that this defendant had knowledge of the harmful character of the [product] in order to determine that it was not duly safe.'" [76 N.J. at 174, 386 A.2d at 827, quoting from Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 839-40 (1973)]

It is difficult to determine whether the Cepeda rule is limited only to design defect cases. Certainly the Wade instruction is not so limited. The New Jersey court does say in Cepeda that the risk/utility analysis "rationalizes what the great majority of the courts actually do in deciding design defect cases . . . ." [76 N.J. at 173, 386 A.2d at 826] The court also suggested that the seven-factor risk/utility analysis (note 20, supra at 681] is not easily susceptible to a jury instruction.

We believe that a risk/utility analysis does have a place in a tort product liability case by setting the general contours of relevant expert testimony concerning the defectiveness of the product. In a product liability case, the expert witness is ordinarily the critical witness. He serves to set the applicable manufacturing, design, labeling and warning standards based on his experience and expertise in a given product field.

Through his testimony the jury is able to evaluate the complex technical problems relating to product failure, safety devices, design alternatives, the adequacy of warnings and labels, as they relate to economic costs. In effect, the expert explains to the jury the risk/utility standards and gives the jury reasons why the product does or does not meet such standards, which are essentially standards of product safeness.21

We agree with the following statement by Dean Wade, that what is a defective product must be analyzed in traditional tort terminology, much in the manner of our earlier cases:

We also recognize that in this opinion we cannot formulate a solution for every problem that may arise in future product liability cases. We do state that the cause of action rests in tort, and that the initial inquiry, in order to fix liability on the manufacturer, focuses on the nature of the defect and whether the defect was the proximate cause of plaintiff's injury. We recognize that a defective product may fall into three broad, and not necessarily mutually exclusive, categories: design defectiveness; structural defectiveness; and use defectiveness arising out of the lack of, or the inadequacy of, warnings, instructions and labels.

Characteristically, under the first two categories of defectiveness the inquiry centers on the physical condition of the product which renders it unsafe when the product is used in a reasonably intended manner. In the third category of defectiveness the focus is not so much on a flawed physical condition of the product, as on its unsafeness arising out of the failure to adequately label, instruct or warn.

The term "unsafe" imparts a standard that the product is to be tested by what the reasonably prudent manufacturer would accomplish in regard to the safety of the product, having in mind the general state of the art of the manufacturing process, including design, labels and warnings, as it relates to economic costs, at the time the product was made.

We thus conclude in this jurisdiction that the general test for establishing strict liability in tort is whether the involved product is defective in the sense that it is not reasonably safe for its intended use. The standard of reasonable safeness is determined not by the particular manufacturer, but by what a reasonably prudent manufacturer's standards should have been at the time the product was made.22

The question of what is an intended use of a product carries with it the concept of all those uses a reasonably prudent person might make of the product, having in mind its characteristics, warnings and labels. Prosser discussed the principle in his Law of Torts (4th ed. 1971) at 668-69:

The issue of appropriate use of the product has as a counterpart the defense of abnormal use, which may at times carry companion defenses of contributory negligence and assumption of risk on the part of the user.23 In tort product liability cases, it is generally held, following Comment n of Section 402A, that: "Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence." See, e. g., Luque v. McLean, 8 Cal.3d 136, 145, 104 Cal.Rptr. 443, 449-50, 501 P.2d 1163, 1169-70 (1972); Shields v. Morton Chemical Co., 95 Idaho 674, 677, 518 P.2d 857, 860 (1974); Reese v. Chicago, Burlington & Quincy Railroad, 55 Ill.2d 356, 360, 303 N.E.2d 382, 385 (1973); Perfection Paint & Color Co. v. Konduris, 147 Ind.App. 106, 118-19, 258 N.E.2d 681, 688-89 (1970); Hawkeye Security Insurance Co. v. Ford Motor Co., 199 N.W.2d 373, 380 (Iowa 1972); Brooks v. Dietz, 218 Kan. 698, 704-705, 545 P.2d 1104, 1110 (1976); Hawkins Construction Co. v. Matthews Co., 190 Neb. 546, 566-67, 209 N.W.2d 643, 655 (1973); Rice v. Hyster Co., 273 Or. 191, 204, 540 P.2d 989, 995 (1975); Ellithorpe v. Ford Motor Co., 503 S.W.2d 516, 521 (Tenn.1973); Henderson v. Ford Motor Co., 519 S.W.2d 87, 89 (Tex.1974).

It does appear that the defense of assumption of risk is available against the plaintiff, where it is shown that with full appreciation of the defective condition he continues to use the product. The hallmark of this defense is actual knowledge on the part of the plaintiff. See, e. g., Williams v. Brown Manufacturing Co., 45 Ill.2d 418, 424-27, 261 N.E.2d 305, 309-310, 46 A.L.R.3d 226, 233-35 (1970); Kirkland v. General Motors Corp., 521 P.2d 1353, 1366-67 (Okl.1974); Rourke v. Garza, 530 S.W.2d 794, 800 (Tex.1975).

To this defense, some courts have added the further requirement that the plaintiff's conduct in proceeding to use the admittedly defective product must be unreasonable. See, e. g., Butaud v. Suburban Marine & Sporting Goods, Inc., 543 P.2d 209, 211-12, 81 A.L.R.3d 384, 389 (Alaska 1975); O. S. Stapley Co. v. Miller, 103 Ariz. 556, 561, 447 P.2d 248, 252-53 (1968); Luque v. McLean, supra, 8 Cal.3d at 145, 104 Cal.Rptr. at 449-50, 501 P.2d at 1169-70; Hiigel v. General Motors Corp., 190 Colo. 57, 64, 544 P.2d 983, 988 (1975); Brooks v. Dietz, supra, 218 Kan. at 704-705, 545 P.2d at 1110; Johnson v. Clark Equipment Co., 274 Or. 403, 409-410, 547 P.2d 132, 138 (1976); Haugen v. Minnesota Mining & Manufacturing Co., 15 Wn.App. 379, 550 P.2d 71, 75 (1976).

The difference between these two positions may be more theoretical than real, since in many instances a plaintiff who has full knowledge of the defective condition, and yet proceeds to use the product, will be acting unreasonably.

In conclusion, we find that the rule expressed in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963), permitting recovery in a tort product liability case, where a defective product causes personal injury, is a more appropriate rule than Section 402A of the Restatement, Second, Torts (1965), which requires the defective condition to be unreasonably dangerous. We acknowledge that our definition of a defective condition differs from that followed by the California court in Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978), in that ours is somewhat more restrictive.

We are asked in the final part of the certification whether the power saw is an inherently dangerous product under the Rylands v. Fletcher Doctrine, which declared that those conditions or activities which are intrinsically dangerous will result in liability even though there is no proof of any negligence. The doctrine originally arose from cases involving dangerous activities conducted on one's property which escaped control and damaged others in their person or property. We have recognized the Rylands Doctrine in several cases, but none involved a product placed in commerce. See, e. g., Whitney v. Ralph Myers Contracting Corp., 146 W.Va. 130, 118 S.E.2d 622 (1961) (blasting operations); Weaver Mercantile Co. v. Thurmond, 68 W.Va. 530, 70 S.E. 126 (1911) (water escaping from tanks).

We are not cited, nor have we found, any authority which suggests that the Rylands v. Fletcher Doctrine has been imported wholesale into the product liability field. Its essential characteristic is that the activity or object is abnormally or exceptionally dangerous. W. Prosser, The Law of Torts (4th ed. 1971) § 78. In the ordinary product liability case, the product, if safely made, is not dangerous, but becomes so only by virtue of a defect.

Rylands looks only to the resulting harm and creates absolute liability on the part of the defendant and no negligence or defect need be shown. The defendant is an insurer—a standard which the overwhelming majority of courts refuses to impose on the manufacturer of a product. Beetler v. Sales Affiliates, Inc., 431 F.2d 651, 653 (7th Cir. Ill.1970); Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 849 (5th Cir. 1967), cert. denied, 391 U.S. 913, 88 S.Ct. 1806, 20 L.Ed.2d 652 (1968) (construing Texas and Oklahoma law); Guglielmo v. Klausner Supply Co., 158 Conn. 308, 315-16, 259 A.2d 608, 612 (1969); Magnuson v. Rupp Manufacturing, Inc., 285 Minn. 32, 44-45, 171 N.W.2d 201, 211 (1969); State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 120-21 (Miss.1966), cert. denied, 386 U.S. 912, 87 S.Ct. 860, 17 L.Ed.2d 784 (1967); Worrell v. Barnes, 87 Nev. 204, 206, 484 P.2d 573, 575 (1971); Hoven v. Kelble, 79 Wis.2d 444, 460, 256 N.W.2d 379, 387 (1977). We thus decline to adopt the Rylands v. Fletcher Doctrine into our tort product liability law.

The certified questions having been answered, this case is dismissed from the docket.

Answered and Dismissed.