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Buckingham v. R. J. Reynolds Tobacco Co.5/29/1998
ould have known, that the chattel supplied is unsafe for its expected use, see Maguire v. Pabst Brewing Co., 387 N.W.2d 565, 572 (Iowa 1986) (under the negligence principles in section 389, the relevant inquiry is whether unreasonable hazard to the plaintiff is to be foreseen from the use of the article), and then a duty is owed only to those who are foreseeably endangered and either ignorant of the chattel's dangerous propensities, or otherwise not chargeable with a positive balance of fault. See Kirkman v. Kirkman, 552 N.E.2d 282, 285 (Ill. App. Ct.) (because plaintiff was not ignorant of dangerous condition, defendant was not liable under section 389), rev. denied sub nom. Bushnell Tank Co. v. Kirkman, 555 N.E.2d 375 (Ill. 1990).
We accept the plaintiff's invitation and adopt section 389 as a proper statement of the law of supplier negligence. More than sixty years ago, we adopted section 388 of the first Restatement of Torts, which is substantially similar to its successor in the Restatement (Second) of Torts. See Lenz v. Company, 88 N.H. 212, 214, 186 A. 329, 330-31 (1936). Section 388 concerns liability for supplying a chattel known to be dangerous to use and is closely analogous to section 389. See Lockett, 376 F. Supp. at 1207, 1209-10 (under both sections 388 and 389, a supplier is merely required to exercise reasonable care, and even then, only when it knows or should have known of the danger). Having adopted section 388, it is appropriate that we endorse section 389 as embodying "a conservative statement of the prevailing law in this country." Lenz, 88 N.H. at 214, 186 A. at 331.
The comments to section 389 make it clear that a bystander, assuming he is within the scope of foreseeability of risk, is owed a duty under law and may recover on a showing of breach, damage, and causation. Comment e explains the rule as follows:
While the rule stated in this Section may, as stated in Comment d, occasionally apply to make the supplier of the chattel liable to those who use it with knowledge of its actual character, it is usually applicable to those who share in its use or are in the vicinity of it. Such persons, when injured, are not barred from recovery by the negligence of those who put a chattel to a use for which they know it is dangerous. In the great majority of cases, they are ignorant of the dangerous character of the chattel. Even if they are aware of the dangerous character of the chattel, they may be entitled to be in the danger zone and, therefore, are not contributorily negligent in entering or failing to leave the area endangered, unless the danger is very great.
Restatement (Second) of Torts ยง 389 comment e at 313. A review of the pleadings in this case discloses sufficient allegations to support a cause of action in negligence based on the principles stated in section 389 of the Restatement (Second) of Torts. Accordingly, we reverse the trial court's ruling on count II.
This case should proceed to discovery as a negligence case. Through this process, the parties may learn the extent of the suppliers' knowledge of the hazards of the products they supplied, the suppliers' expectations as to the use of the product and those that might reasonably be affected, the extent of the plaintiff's knowledge of the hazards involved in the product's use, any actual causation of the damage alleged, and any conduct of the plaintiff material to comparative negligence.
Affirmed in part; reversed in part; remanded.
All concurred.
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