Gerald and Stephanie Yarbrough filed this action against Sears, Roebuck and Company ("Sears") and Toyotomi Co., Ltd. ("Toyotomi"), to recover damages under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), based on allegations of negligent and wanton design of a kerosene heater, failure to adequately warn of dangers associated with the kerosene heater, and breach of implied and express warranties.
The Yarbroughs purchased a kerosene heater from Sears; that heater had been manufactured by Toyotomi. A printed decal on the heater itself warned against using gasoline in the kerosene heater. Before operating the kerosene heater, the Yarbroughs read the warnings and instructions included with it, which included several warnings
Alfa Insurance Company and Blue Cross and Blue Shield of Alabama intervened in this action. After discovery, Sears and Toyotomi moved for a summary judgment, attaching supporting documents, including portions of the deposition of the Yarbroughs' expert, Grim; the affidavit of Dr. Harold F. Smith; and copies of the instructions, warnings, and decals explicitly warning and instructing users not to use gasoline in the kerosene heater.
In opposition to the motion for summary judgment, the Yarbroughs filed an affidavit of Grim, which the trial court struck on motion of Sears and Toyotomi. The trial court entered a final summary judgment for Sears and Toyotomi on all of the Yarbroughs' claims and on the claims of Alfa and Blue Cross. Alfa and Blue Cross did not appeal. The Yarbroughs appeal, presenting the following issues:
In granting Sears and Toyotomi's motion to strike Grim's affidavit, the trial court held that "affidavits given in litigation which contradict prior, sworn deposition testimony of the affiant may not be considered to create a genuine issue of material fact." Because the rule precluding inconsistent testimony from establishing a genuine issue of material fact applies only to the testimony of parties, not to the testimony of witnesses, Tittle v. Alabama Power Co., 570 So.2d 601 (Ala. 1990), we need not address whether Grim's affidavit is inconsistent with his deposition testimony.
570 So.2d at 604.
Like the affiant in Tittle, Grim was not a party and had no motive to fabricate an issue. Grim was simply an expert witness; although compensated by the Yarbroughs to testify, he was disinterested. Because Grim was not a party, the rule precluding one from creating genuine issues of material fact by contradictory or inconsistent testimony does not apply to him; therefore, the trial court erroneously struck his affidavit.
Nonetheless, even considering Grim's affidavit, we must conclude that the Yarbroughs failed to present substantial evidence creating a genuine issue of material fact as to whether the defendants might be liable under the AEMLD.
In adopting the AEMLD, the Court defined a defective product as a product that
The heater at issue was designed to be fueled with only kerosene. When it is used properly—that is, fueled with kerosene—it meets an ordinary consumer's expectation by heating the house. However, if the consumer improperly uses gasoline in the kerosene heater, an obvious hazard is created because of the inherent volatility of gasoline. This potential hazard was identified in the nine warnings, cautions, and instructions contained within the "Owner's Manual," the "Safety Tips" brochure, the labels, decals, instructions, and hang tag that accompanied the heater:
A label included on the side of the fuel tank on the kerosene heater read in pertinent part as follows:
These warnings, included with the kerosene heater, were specific, comprehensive, and detailed in notifying potential consumers of the possibility of the danger associated with the use of gasoline or gasoline-contaminated kerosene as fuel for the heater. These warnings, which Mr. Yarbrough read, not only warned against the use of gasoline in the heater, but also provided details as to why gasoline should not be used as fuel for the heater and warned against moving the heater while it was in operation or if flames emerged from the heater.
These detailed, specific, and comprehensive warnings distinguish this case from Bean v. BIC Corp., 597 So.2d 1350 (Ala.1992), wherein the Court held that the defendant, BIC Corporation, had failed to show the absence of a genuine issue of material fact where the allegation was that its general warnings "KEEP OUT OF REACH OF CHILDREN" and "KEEP AWAY FROM CHILDREN" failed to warn of the dangers associated with a child's use of a lighter.
We note the Yarbroughs' allegation that the barometric feed system used in the kerosene heater was defective and that there was an alternative, safer device. Other than the general statement by Grim, the Yarbroughs' expert witness, that "[t]here is a simple design modification to this heater which could have signalled misfueling and provided warning and/or turned off the heater before it flared out of control," the record is devoid of any proof of the existence of a feasible, available alternative to the design presently used in the heater that would have averted the danger presented by the heater. There was no detail or explanation provided; there was no evidence to prove that "a simple design modification" was safer or more practical or would have reduced or prevented the Yarbroughs' injuries and loss; and there was no evidence to show that the utility of an alternative design outweighed the utility of the design actually used. See General Motors Corp. v. Edwards, 482 So.2d 1176 (Ala. 1985); Beech v. Outboard Marine Corp., 584 So.2d 447 (Ala.1991). Moreover, Grim stated that an alternative to the barometric feed design would not have eliminated or reduced the chances of this accident, because the accident and subsequent injuries were caused by the use of gasoline or gasoline-contaminated fuel.
Based on the foregoing, we conclude that the trial court properly entered the summary judgment for Sears and Toyotomi as to the Yarbroughs' AEMLD claim.
The Yarbroughs support their claims of negligent and wanton design and failure to warn by the same evidence used to support their AEMLD claim. Suffice it to say, without further discussion, that the Yarbroughs presented no evidence of negligent design and no evidence of wanton design. Rather, the evidence clearly establishes that the damage to the Yarbroughs' house and personal belongings and the injuries to Mr. Yarbrough were caused by Mr. Yarbrough's misuse of the product.
Furthermore, as this Court stated in Gurley v. American Honda Motor Co., 505 So.2d 358, 361 (Ala.1987):
It is undisputed that Mr. Yarbrough, the user of the kerosene heater, read the instructions and warnings before he operated it. However, based on his own actions on the day of the fire, one must conclude that he failed to heed the clear, specific warnings and instructions that if he saw flames coming out
Based on the foregoing, we conclude that the trial court properly entered the summary judgment for Sears and Toyotomi as to the Yarbroughs' claims of negligent and wanton design and failure to warn.
The Yarbroughs' claim of a breach of the implied warranty of merchantability is to the effect that the kerosene heater was unreasonably dangerous and therefore could not be merchantable. "Such an argument ignores the clear distinction between causes of action arising under tort law and those arising under the U.C.C. as adopted in Alabama." Shell v. Union Oil Co., 489 So.2d 569, 571 (Ala.1986). Whether the kerosene heater was unreasonably dangerous is not a question properly addressed in a claim alleging breach of warranty under the U.C.C., but it could be, and was, properly raised in a claim under the AEMLD.
HORNSBY, C.J., and MADDOX, SHORES and KENNEDY, JJ., concur.