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Ayers v. Johnson & Johnson Baby Products Co.11/7/1991
aims, requiring
the trier of fact to find that the manufacturer "should" have provided adequate warnings. UPLA § 104(C)(1), 44 Fed. Reg. at 62,721. However, unlike UPLA § 104(C)(1), subsection (b) does not contain the term "should", or any other term that suggests a fault basis. Moreover, the commentary regarding UPLA's design defect provision states that the provision places design defect cases on a fault basis. UPLA, 44 Fed. Reg. at 62,722. We explicitly held in Falk that strict liability is the standard for design defect claims under subsection (a) of RCW 7.72.030(1). As explained above, given the similarities between subsection (a) and subsection (b), consistency with Falk requires we hold that strict liability is also the standard under subsection (b).
We also reject Johnson & Johnson's argument that foreseeability is specifically included as an element in subsection (b) because of the statute's use of the phrase "the likelihood that the product would cause the claimant's harm or similar harms". This phrase also occurs in subsection (a). Therefore, if foreseeability were entirely a matter of likelihood, then foreseeability would be an element of a design defect claim under subsection (a). As we explained above, Falk clearly established the contrary. Moreover, foreseeability is a matter of what the actor knew or should have known under the circumstances; it turns on what a reasonable person would have anticipated. The likelihood, or probability, that an event would occur, on the other hand, does not depend on what a reasonable person would have anticipated under the circumstances, but on an assessment of all relevant facts, including those available only in hindsight. Thus harm might be likely but unforeseeable, or foreseeable but unlikely. Therefore, foreseeability is not simply a matter of likelihood, and the occurrence of the phrase containing the term "likelihood" in subsection (b) does not show that foreseeability is an element of a claim arising under that statute.
Finally, we note that RCW 7.72.030(1)(c) (hereafter subsection (c)) clearly embraces a negligence standard, requiring that "where a reasonably prudent manufacturer should have learned about a danger connected with the product after it was manufactured", the manufacturer must provide a warning. Subsection (b), on the other hand, which concerns dangers that exist at the time of manufacture, rather than postmanufacture dangers, does not include language incorporating a negligence standard. We explained in Falk that the dissimilarities between the language of subsections (a) and (c) supported our conclusion that negligence is not the standard for design defect claims. Falk, at 653. Just so, the fact that subsection (b) does not include language like that found in subsection (c) supports the conclusion that negligence is not the standard for failure to warn claims.
In sum, the test in subsection (b) is one of strict liability, not ordinary negligence, and so foreseeability is not an element of a failure to warn claim arising under subsection (b). We next consider whether there was sufficient evidence to justify the jury's conclusion that baby oil is a dangerous product requiring an adequate warning.
Under the balancing test of subsection (b), the trier of fact must balance the likelihood that the product would cause the harm complained of, and the seriousness of that harm, against the burden on the manufacturer of providing an adequate warning. Here, the likelihood that baby oil would cause the harm David suffered is low. However, given the seriousness of that harm and the slight burden on the manufacturer of providing a warning
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