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Kelleher v. Lumber12/15/2005
the Strict Liability Claim
A. Prima Facie Case
The defendant asserts that the trial court erred in denying its motion to set aside the verdict, arguing the plaintiff failed to plead and prove a prima facie case of strict liability. Specifically, the defendant argues that the plaintiff failed to: (1) allege the product's design was unreasonably dangerous; and (2) introduce evidence of dangerousness at trial.
We have adopted the doctrine of strict liability of manufacturers for product defects in section 402A (1) of the Restatement (Second) of Torts, which states: "One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer . . . ." Restatement (Second) of Torts ยง 402A (1) (1965) (emphasis added); see Price, 142 N.H. at 388; Royer v. Catholic Med. Ctr., 144 N.H. 330, 331 (1999). "A design defect occurs when the product is manufactured in conformity with the intended design but the design itself poses unreasonable dangers to consumers." Price, 142 N.H. at 389 (quotation omitted).
For a product to be unreasonably dangerous, it "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." Vautour v. Body Masters Sports Indus., 147 N.H. 150, 154 (2001) (quotation omitted). The jury determines whether a product is unreasonably dangerous by using a risk-utility balancing test. Price, 142 N.H. at 389. Under this approach, "a product is defective as designed if the magnitude of the danger outweighs the utility of the product." Vautour, 147 N.H. at 154 (quotations omitted); see Price, 142 N.H. at 389 (detailing the factors to be considered when implementing the risk-utility balancing test). However, the plaintiff is not required to present evidence of a safer alternative design. Vautour, 147 N.H. at 156. " roof of an alternative design is neither a controlling factor nor an essential element that must be proved in every case." Id. Rather, the circumstances of each case dictate which factors may be relevant. Id.
Here, the plaintiff's amended declaration, dated August 16, 2000, alleges that the window's defective condition "created an unreasonable risk" of property damage to the plaintiff's home. Given our policy to construe pleadings liberally, see Canty v. Hopkins, 146 N.H. 151, 155 (2001), we conclude that this language, when considered in the context of this case, adequately alleges the defective windows were unreasonably dangerous. We find no support for the defendant's assertion that the plaintiff was required to use the exact phrase, "unreasonably dangerous," to adequately plead a prima facie case of strict liability.
At trial, the plaintiff submitted sufficient evidence to support a prima facie case for strict liability. The trial court admitted portions of pleadings and other court documents filed by the defendant in a concurrent case, Marvin Lumber and Cedar Co. v. PPG Industries, 223 F.3d 873 (8th Cir. 2000) (Marvin I), in which Marvin initiated suit against PPG Industries, the manufacturer of the defective preservative PILT, for breach of warranty. In these pleadings, Marvin admitted it was experiencing significant increases in complaints of wood rot and deterioration in windows treated with PILT. Marvin also asserted PPG's products were "defective and unreasonably dangerous" in that they "allowed the elements to penetrate the structures into which they were incorporated." Marvin also argued that PILT was defective and that the rot damage "caused substantial damage to
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