Seay v. Chrysler Corporation

Dolliver, J.

This case involves a claim of strict products liability and a defense of contributory negligence. The plaintiff was employed by the Convoy Company in Spokane. He was injured while loading a Dodge truck chassis onto a convoy trailer for eventual delivery to a motor home manufacturer.

The truck chassis (manufactured by defendant Chrysler Corporation) consisted of a frame, engine, wheels, and temporarily attached accelerator, steering, brake and shifting mechanisms as well as a temporary wooden seat. Plaintiff first loaded the top rack of the convoy trailer and then *321began to back the chassis onto the lower racks. While backing the chassis with the accelerator pedal slightly depressed, the throttle opened and the chassis suddenly accelerated backwards. Plaintiff was thrown out of the seat and onto the convoy trailer. Plaintiff's evidence indicated that the accelerator linkage mechanism was defective and caused the accident. There was evidence presented by the defendants that the top racks had not been sufficiently raised so that plaintiff was attempting to load a large chassis into too small a space.

The action was submitted to the jury on the theory of strict products liability. Over the objection of plaintiff, the issue of his comparative fault was also submitted to the jury. The jury returned a verdict for plaintiff but also found that 40 percent of his damages could be attributed to his own negligence.

In his appeal, plaintiff raises the issue of (1) whether the comparative negligence statute (RCW 4.22.010) applies in cases of strict products liability so as to reduce his damages. In the cross appeal, defendant Chrysler Corporation raises the issues of (2) whether strict products liability applies in favor of "intermediate handlers", and (3) whether evidence of other accidents involving this type of Dodge chassis was properly admitted. We will consider the issues in that order.

The so-called comparative negligence statute reads:

Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages caused by negligence resulting in death or in injury to person or property, but any damages allowed shall be diminished in proportion to the percentage of negligence attributable to the party recovering.

(Italics ours.) RCW 4.22.010. Although the applicability of this statute to strict products liability has been urged by litigants before this court on previous occasions, we have thus far refused to rule on the question. See, e.g., Teagle v. Fischer & Porter Co., 89 Wn.2d 149, 570 P.2d 438 (1977); Wenatchee Wenoka Growers Ass'n v. Krack Corp., 89 *322Wn.2d 847, 576 P.2d 388 (1978); Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wn.2d 230, 588 P.2d 1308 (1978). We have, however, pointed out the theoretical difficulties of comparing concepts of fault (negligence) with no-fault (strict liability) (Wenatchee Wenoka Growers Ass'n v. Krack Corp., supra), and, while not closing the door to a positive holding that the contributory negligence of a plaintiff could be a damage-reducing factor in a case of strict products liability, we have given little comfort to defendants that such a theoretical breakthrough will be forthcoming.

Defendants cite a number of scholarly articles and also recent cases, most notably Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., 565 F.2d 1129 (9th Cir. 1977); Butaud v. Suburban Marine & Sporting Goods, Inc., 555 P.2d 42 (Alaska 1976); and Daly v. General Motors Corp., 20 Cal. 3d 725, 575 P.2d 1162, 144 Cal. Rptr. 380 (1978), which merge the concepts of comparative negligence and strict liability and either ignore or rationalize the problem of comparing the former doctrine, which focuses on the conduct of an individual, with the latter, which focuses on the nature of the product and the consumer's reasonable expectation with regard to that product. See Kinard v. Coats Co., 37 Colo. App. 555, 553 P.2d 835 (1976); Levine, Strict Products Liability and Comparative Negligence: The Collision of Fault and No-Fault, 14 San Diego L. Rev. 337 (1977).

We need not join in this struggle. While this case was pending appeal, we decided Albrecht v. Groat, 91 Wn.2d 257, 588 P.2d 229 (1978), the reasoning of which is applicable here. Although Albrecht was concerned with the question of the strict liability of a common carrier, the applicability of RCW 4.22.010 to strict liability was discussed. We pointed out that the statute limited the comparative negligence defense to actions "to recovery damages caused by negligence" and that in Albrecht the liability of the carrier was not premised on negligence but on causation alone. Albrecht, at 260. Similarly, we have held our "form *323of strict liability is based on a no-fault concept." Wenatchee Wenoka, at 853. Strict liability, imposed because a manufacturer placed a defective and dangerous product into the stream of commerce, does not sound in negligence. Therefore, RCW 4.22.010 does not apply.

There are further reasons for this holding. Comparative negligence is a legislative doctrine. Prior to the enactment of RCW 4.22.010, we had consistently refused to modify the common-law doctrine of contributory negligence. Franklin v. Engel, 34 Wash. 480, 76 P. 84 (1904); Woolf v. Washington Ry. & Nav. Co., 37 Wash. 491, 79 P. 997 (1905); Scharf v. Spokane & I.E. R.R., 92 Wash. 561, 159 P. 797 (1916); See Henry, Why Not Comparative Negligence in Washington, 5 Gonz. L. Rev. 1 (1969); Note, 49 Wash. L. Rev. 705 (1974).

Legislative proposals in recent sessions which would have extended the comparative fault doctrine to strict liability actions have failed to become law. Legislative Digest and History of Bills, Forty-fifth Legislature 110, 570 (1977); 1 Legislative Digest and History of Bills, Forty-sixth Legislature 100 (1979). The consideration of the most recent proposal, Engrossed Senate Bill 2333, introduced during the 1979 legislative session, occurred after our opinion in Albrecht had been published. We presume the legislature was aware of the refusal of the court in Albrecht to extend RCW 4.22.010 to actions founded in strict liability. State v. Fenter, 89 Wn.2d 57, 569 P.2d 67 (1977); Daly v. Chapman, 85 Wn.2d 780, 539 P.2d 831 (1975). Had the legislature chosen, noting our opinion in Albrecht, it could have extended RCW 4.22.010 to strict liability. It did not do so.

On the second issue, we believe the defendants misapprehend the import of the sole case upon which they rely, Spellmeyer v. Weyerhaeuser Corp., 14 Wn. App. 642, 544 P.2d 107 (1975). In Spellmeyer, the plaintiff was injured by a bale of pulp on which the metal band had broken. He was employed as a longshoreman and was moving the pulp from the shed in which it was stored to the dock. The Court of *324Appeals, citing the Restatement (Second) of Torts § 402A (1965), pointed out the bale of pulp was a raw material in an intermediate state and the plaintiff was neither an ultimate user nor a consumer. Here, the Dodge chassis was equipped with a number of temporary instruments and devices. The plaintiff was intended to be, and did become, the ultimate user of those instruments. As a result of a defect in one of them, plaintiff was injured. Plaintiff was an appropriate beneficiary of the doctrine of strict liability. Restatement (Second) of Torts § 402A, comments o and p, at 356-57 (1965).

Finally, the admissibility of testimony concerning prior accidents involving similar vehicles is generally left to the discretion of the trial court. E. Cleary, McCormick on Evidence § 200, at 473 (2d ed. 1972); Blood v. Allied Stores Corp., 62 Wn.2d 187, 381 P.2d 742 (1963). There appears to have been no abuse of discretion; the evidence was properly admitted.

We reverse the trial court on issue one and affirm on issues two and three.

Rosellini, Stafford, Wright, Horowitz, and Williams, JJ., concur.