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Waggoner v. Town & Country Mobile Homes12/27/1990
of Manufacturers' Product Liability when the two matters are clearly distinguished by proper instructions.
Moss, 522 P.2d at 626.
There is no contract between the manufacturer and the plaintiffs in this cause. In the pretrial proceedings, the manufacturer denied any implied warranty of habitability. The single jury instruction on manufacturers' products liability in this cause is appropriate under the "broad protection" expressed in Kirkland and the U.C.C. damages limitation defense set out in Moss.
Neither allegation nor proof of injury to person or other property is a prerequisite to assertion of the theory of manufacturers' product liability. The delineated elements to be alleged and established by the evidence of the plaintiff do not include any specific kind of injury or loss:
First of all Plaintiff must prove that the product was the cause of the injury : the mere possibility that it may have caused the injury is not enough.
Secondly, Plaintiff must prove that the defect existed in the product, if the action is against the manufacturer, at the time the product left the manufacturer's possession and control. . . .
Thirdly, Plaintiff must prove that the defect made the article unreasonably dangerous to him or to his property as the term "unreasonably dangerous" is above defined.
And,
We adopt the standard of proof for Oklahoma set forth by the Restatement Second ยง 402A comment g and define "unreasonably dangerous" as follows:
"The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics."
We specifically disapprove of the standard of proof adopted by Cronin v. J.B.E. Olson Corporation, 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153 (1972). Kirkland, 521 P.2d at 1362-1363.
Satisfying these elements, but without allegation or proof of damage to person or property other than the defectively designed mobile home, such as a sinus ailment aggravated by the mold in the damp infrastructure or water marks on a piece of furniture inside the mobile home, the majority opinion denies the plaintiffs any right to a manufacturers' products liability tort remedy. In so doing, the majority opinion characterizes plaintiffs' injury or loss to be only deterioration of the product or diminution in bargained for expectations or "economic loss" damages.
The majority relies upon the reasoning in the recent opinion of the United States Supreme Court in East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S. Ct. 2295, 90 L.Ed.2d 865 (1986) in denying plaintiffs' right to recover in tort. In East River, the Court held that an admiralty common law products liability action may not be maintained for recovery of economic loss caused by a defective product. The Court noted that protection of fishermen is the underlying policy of the admiralty common law strict liability action, which is not implicated in the action. The Court further noted that the defective rings were corrected by the manufacturer and that the loss of business or loss of profit during the time the ships were down is more appropriately settled under the commercial code of the applicable state having jurisdiction over the involved commercial contracts. East River did not proscribe recovery of the damages to a defective product in an admiralty strict liability action. It refused to recognize such a right under the pretrial proceedings before it.
The issue of whether economic loss damages may be recovered in a manufacturers' p
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