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Tabieros v. Clark Equipment Co.9/15/1997
addle carrier operators and dock workers --, the self-evident characteristics of the vehicle, and the patent nature of the danger posed by the blind zone, we hold, as a matter of law: (1) that the "danger involved in using [the straddle carrier was] obvious and apparent, discernible by casual inspection," Plante, 771 F.2d at 620, and "generally known and recognized," Maneely, 108 F.3d at 1179; and, therefore, (2) that Clark was "not negligent in failing to warn of that danger," Plante, 771 F.2d at 620.
We emphasize, however, that although our holding impacts a manufacturer's strict product liability, see infra at section III.C.2.a, and duty to warn, see infra at section III.C.2.b, it neither completely shields a manufacturer under Hawai'i law from strict product liability, see Wagatsuma, 10 Haw. App. at 566, 879 P.2d at 583-84, nor from negligence liability, see id. at 565, 879 P.2d at 583. With respect to the former,
the following [risk-utility] factors relevant to determine whether a product is defective:
(1) The usefulness and desirability of the product -- its utility to the user and to the public as a whole[;]
(2) The safety aspects of the product -- the likelihood that it will cause injury , and the probable seriousness of the injury[;]
(3) The availability of a substitute product which would meet the same need and not be as unsafe[;]
(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility[;]
(5) The user's ability to avoid danger by the exercise of care in the use of the product[;]
(6) The user's anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or of the exercise of suitable warnings or instructions[; and]
(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.
Larsen v. Pacesetter Systems, Inc., 74 Haw. 1, 23-24 n.6, 837 P.2d 1273, 1285 n.6 (citing J. Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 837-38 (1973)), reconsideration granted in part and denied in part, 74 Haw. 650, 843 P.2d 144 (1992). And with respect to the latter, we reaffirm the proposition that "the creation of any unreasonable danger is enough to establish negligence, even though the danger is obvious." Brown, 62 Haw. at 539, 618 P.2d at 273 (citation omitted). Accordingly, liability may be established by way of a theory of negligent design. See generally Ontai, Brown, and Wagatsuma, supra. We therefore analyze the circuit court's jury instructions regarding a manufacturer's duty to warn with these principles in mind.
2. Manufacturer's liability for a defective product, the use of which involves an open and obvious danger
The circuit court gave the following jury instruction regarding the applicable legal tests for determining that a product is defective for purposes of either strict product or negligence liability:
A product is defective in its design if you find that the product is defective under any one of the following three tests. You do not need to find the product defective under more than one of the tests.
The first test [i.e., the "consumer expectation" test] is that the product is defective in design if plaintiffs est
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