217 N.Y. 382

DONALD C. MACPHERSON, Respondent,
v.
BUICK MOTOR COMPANY, Appellant.

Court of Appeals of New York

Argued January 24, 1916
Decided March 14, 1916

Negligence — liability of manufacturer of finished product for defects therein — motor vehicles—when manufacturer of automobiles liable to purchaser of car for injuries caused by collapse of wheel which was bought of another manufacturer.

1. If the nature of a finished product placed on the market by a manufacturer to be used without inspection by his customers is such that it is reasonably certain to place life and limb in peril if the product is negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without now tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. This principle is not limited to poisons, explosives and things of like nature, which in their normal operation tire implements of destruction.

2. The defendant, a manufacturer of automobiles, sold an automobile to a retail dealer and the retail dealer resold to the plaintiff. While the plaintiff was in the car it suddenly collapsed and he was thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the defendant, but was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection and that inspection was omitted. There is no claim that the defendant knew of the defect and willfully concealed it. On examination and analysis of the authorities in this and other states, in the Federal courts and of the English cases, held, that the defendant's liability was not confined to the [217 N.Y. 383] immediate purchaser, and that it was not absolved from a duty of inspection because it bought the wheels from a reputable manufacturer. Since it was not merely a dealer, but manufacturer of automobiles, it was responsible for the finished product and was not at liberty to put that product on the market without subjecting the component parts to ordinary and simple tests, and hence is liable for the injuries sustained by plaintiff.

MacPherson v. Buick Motor Co., 160 App. Div. 55, affirmed.

(Argued January 24, 1916; decided March 14, 1916.)

APPEAL, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 8, 1914, affirming a judgment in favor of plaintiff entered upon a verdict.

The nature of the action and the facts, so far as material, are stated in the opinion.

[217 N.Y. 383][111 N.E. 1051] William Van Dyke for appellant. An automobile is not an inherently dangerous article. (Slater v. Thresher Co., 97 Minn. 305; Danforth v. Fisher, 75 N. H. 111; Cunningham v. Castle, 127 App. Div. 580;Vincent v. Seymour, 131 App. Div. 200; Lewis v. Snorous, 59 S. E. Rep. [Ga.] 338; Huddy on Automobile, 15; Steffen v. McNaughton, 142 Wis. 409; Jones v. Hope, 47 Wash. 633; Johnson v. Cadillac, 194 Fed. Rep. 497; 221 Fed. Rep. 801.) An automobile not being an article inherently dangerous, defendant was not liable to a third party in simple negligence — that is, for negligence as contradistinguished from willful or knowing negligence, or in a negligence action as distinguished from an action for deceit, fraud or misrepresentation, to third parties not in contractual relations with it. (Salisbury v. Howe, 87 N.Y. 132; Landeman v. Russell, 91 N. E. Rep. 822; Pa. Steel Co.v. Elmore & H. Co., 175 Fed. Rep. 176; Wellington v. Downer, 104 Mass. 04; Devlin v. Smith, 89 N. Y. 470; Savings Bank v. Ward, 100 U. S. 195; Waters-Pierce Oil Co. v. Deselms, 212 U. S. 179; R. & D. Railroad v. Elliott, 149 U. S. 272; Penn. Ry. Co. v. Hummell, 167 Fed. [217 N.Y. 384] Rep. 89.) A contention that defendant is liable because, though an automobile is not inherently a dangerous thing, if it has a defective wheel, it is an imminently dangerous thing, and if imminently dangerous, the same rule follows as though it were an inherently dangerous thing, cannot be sustained. (Cadillac M. C. Co. v. Johnson, 221 Fed. Rep. 801; Titus v. R. R. Co., 136 Penn. St. 618; Statler v. Ray Mfg. Co.,125 App. Div. 71; Statler v. Ray Mfg. Co., 195 N. Y. 478; Marquardt v. Engine Co., 122 Fed. Rep. 374.)

Edgar T. Brackett for respondent. An automobile, propelled by explosive gases, certified and put out, as here conceded, to run at a speed of fifty miles an hour, to be managed by whomsoever may purchase it, is a machine inherently dangerous. (Texas v. Barrett, 67 Fed. Rep. 214; Statler v. Ray, 195 N. Y. 478; Torgeson v. Schultz, 192 N. Y. 156; Kahner v. Otis, 96 App. Div. 169; Favo v. Remington, 67 App. Div. 414; Olds Motor Works v. Shaffer, 145 Ky. 616; Kuelling v. Lean Mfg. Co., 183 N. Y. 78; Cadillac M. C. Co. v. Johnson, 221 Fed. Rep. 801; Thomas v. Winchester, 6 N. Y. 397.) The defendant was the manufacturer of the machine and subject to till the liabilities of a manufacturer, even if it purchased and did not itself actually put together the defective wheel which caused the plaintiff's injury. (People ex rel. v. Morgan, 48 App. Div. 395; Norris v. Com., 27 Penn. St. 494; Tidewater, etc., v.United States, 171 U. S. 210; Commonwealth v. Keystone, 156 Penn. St. 500; New Orleans v. Le Blanc, 34 La. Ann. 596; New Orleans v. Ernst, 35 La. Ann. 746; State v. Wiebert, 51 La. Ann. 122; Allen v. Smith, 173 U. S. 389; Hegeman v. W. R.R. Corp., 13 N. Y. 9; Carlson v. Phoenix, etc., Co., 132 N. Y. 273.)

CARDOZO, J.

The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer. The retail dealer resold to the plaintiff. While the plaintiff was in the car, it suddenly collapsed. He was [217 N.Y. 385] thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the defendant; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew of the defect and willfully concealed it. The case, in other words, is not brought within the rule of Kuelling v. Lean Mfg. Co. (183 N. Y. 78). The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to anyone but the immediate purchaser.

The foundations of this branch of the law, at least in this state, were laid in Thomas v. Winchester (6 N. Y. 397). A poison was falsely labeled. The sale was made to a druggist, who in turn sold to a customer. The customer recovered damages from the seller who affixed the label. "The defendant's negligence," it was said, "put human life in imminent danger." A poison falsely labeled is likely to injure anyone who gets it. Because the danger is to be foreseen, there is a duty to avoid the injury. Cases were cited by way of illustration in which manufacturers were not subject to any duty irrespective of contract. The distinction was said to be that their conduct, though negligent, was not likely to result in injury to anyone except the purchaser. We are not required to say whether the chance of injury was always as remote as the distinction assumes. Some of the illustrations might be rejected to-day. The principle of the distinction is for present purposes the important thing.

Thomas v. Winchester became quickly a landmark of the law. In the application of its principle there may at times have been uncertainty or even error. There has never in this state been doubt or disavowal of the principle itself. The chief cases are well known, yet to recall [217 N.Y. 386] some of them will be helpful. Loop v. Litchfield (42 N. Y. 351) is the earliest. It was the case of a defect in a small balance wheel used on a circular saw. The manufacturer pointed out the defect to the buyer, who wished a cheap article and was ready to assume the risk. The risk can hardly have been an imminent one, for the wheel lasted five years before it broke. In the meanwhile the buyer had made a lease of the machinery. It was held that the manufacturer was not answerable to the lessee. Loop v. Litchfield was followed in Losee v. Clute (51 N. Y. 494), the case of the explosion of a steam boiler. That decision has been criticized (Thompson on Negligence, 233; Shearman & Redfield on Negligence [6th ed.). § 117); but it must be confined to its special facts. It was put upon the ground that the risk of injury was too remote. The buyer in that case had not only accepted the boiler, but had tested it. The manufacturer knew that his own test was not the final one. The finality of the test has a bearing on the measure of diligence owing to persons other than the purchaser (Beven, Negligence [217 N.Y. 3d ed.], pp. 50, 51, 54; Wharton, Negligence [2d ed.] § 134).

These early cases suggest a narrow construction of the rule. Later cases, however, evince a more liberal spirit. First in importance is Devlin v. Smith (89 N.Y. 470). The defendant, a contractor, built a scaffold for a painter. The painter's servants were injured. The contractor was held liable. He knew that the scaffold, if improperly constructed, was a most dangerous trap. He knew that it was to be used by the workmen. He was building it for that very purpose. Building it for their use, he owed them a duty, irrespective of his contract with their master, to build it with care.

From Devlin v. Smith we pass over intermediate cases and turn to the latest case in this court in which Thomas v. Winchester was followed. That case is Statler v. Ray Mfg. Co. (195 N. Y. 478, 480). The defendant [217 N.Y. 387] manufactured a large coffee urn. It was installed in a restaurant. When heated, the urn exploded and injured the plaintiff. We held that the manufacturer was liable. We said that the urn "was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed."

It may be that Devlin v. Smith, and Statler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons — things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning. A scaffold (Devlin v. Smith, supra) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (Statler v. Ray Mfg. Co., supra) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water (Torgeson v. Schultz, 192 N. Y. 156). We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In Burke v. Ireland (26 App. Div. 487), in an opinion by CULLEN, J., it was applied to a builder who constructed a defective building; in Kahner v. Otis Elevator Co. (96 App. Div. 169) to the manufacturer of an elevator; in Davies v. Pelham Hod, Elevating Co. (65 Hun, 573; affirmed in this court without opinion, 146 N. Y. 363) to a contractor who furnished a defective rope with knowledge of the purpose for which the rope was to be used. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought.

[217 N.Y. 388] Devlin v. Smith was decided in 1882. A year later a very similar case came before the Court of Appeal in England (Heaven v. Pender, L. R. [11 Q. B. D.] 503). We find in the opinion of BRETT, M. R., afterwards Lord ESHER (p. 510), the same conception of a duty, irrespective of contract, imposed upon the manufacturer by the law itself: "Whenever one person supplies goods, or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing." He then points out that for a neglect of such ordinary care or skill whereby injury happens, the appropriate remedy is action for negligence. The right to enforce this liability is not to be confined to the immediate buyer. The right, he says, extends to the persons or class of persons for whose use the thing is supplied. It is enough that the goods "would in all probability be used at once * * * before a reasonable opportunity for discovering any defect which might exist," and that the thing supplied is of such a nature "that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it." On the other hand, he would exclude a case "in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect," or where the goods are of such a nature that "a want of care or skill as to their condition or the manner of supplying them would not probably [217 N.Y. 389] produce danger of injury to person or property." What was said by Lord ESHER in that case did not command the full assent of his associates. His opinion has been criticized ''as requiring every man to take affirmative precautions to protect his neighbors as well as to refrain from injuring them" (Bohlen, Affirmative Obligations in the Law of Torts, 44 Am. Law Reg. [N. S.] 341). It may not be an accurate exposition of the law of England. Perhaps it may need some qualification even in our own state. Like most attempts at comprehensive definition, it may involve errors of inclusion and of exclusion. But its tests and standards, at least in their underlying principles, with whatever qualification may be called for as they are applied to varying conditions, are the tests and standards of our law.

We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. Such knowledge may often be [217 N.Y. 390] inferred from the nature of the transaction. But it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered. We are dealing now with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow. We are not required at this time to say that it is legitimate to go back of the manufacturer of the finished product and hold the manufacturers of the component parts. To make their negligence a cause of imminent danger, an independent cause must often intervene; the manufacturer of the finished product must also fail in his duty of inspection. It may be that in those circumstances the negligence of the earlier members of the series as too remote to constitute, as to the ultimate user, an actionable wrong (Beven on Negligence [3d ed.], 50, 51, 54; Wharton on Negligence [2d ed.], § 134; Leeds v. N. Y. Tel. Co., 178 N. Y. 118; Sweet v. Perkins, 196 N. Y. 482; Hayes v. Hyde Park, 153 Mass. 514, 516). We leave that question open to you. We shall have to deal with it when it arises. The difficulty which it suggests is not present in this case. There is here no break in the chain of cause and effect. In such circumstances, the presence of a known danger, attendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought be. We have put its source in the law.

From this survey of the decisions, there thus emerges a definition of the duty of a manufacturer which enables us to measure this defendant's liability. Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This [217 N.Y. 391] automobile was designed to go fifty miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The defendant knew the danger. It knew also that the car would be used by persons other than the buyer. This was apparent from its size; there were seats for three persons. It was apparent also from the fact that the buyer was a dealer in cars, who bought to resell. The maker of this car supplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin v. Smith supplied the scaffold for use by the servants of the owner. The dealer was indeed the one person of whom it might be said with some approach to certainly that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion. Precedents drawn from the days of travel by stage coach do not fit the conditions of travel today. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.

In reaching this conclusion, we do not ignore the decisions to the contrary in other jurisdictions. It was held in Cadillac M. C. Co. v. Johnson (221 Fed. Rep. 801) that an automobile is not within the rule of Thomas v.Winchester. There was, however, a vigorous dissent. Opposed to that decision is one of the Court of Appeals of Kentucky (Olds Motor Works v. Shaffer, 145 Ky. 616). The earlier cases are summarized by Judge SANBORN inHuset v. J. I. Case Threshing Machine Co. (120 Fed. Rep. 865). Some of them, at first sight inconsistent with our conclusion, may be reconciled upon the ground that the negligence was too remote, and that another cause had intervened. But even when they cannot be reconciled, the difference is rather in the applica-[217 N.Y. 392]-tion of the principle than in the principle itself. Judge SANBORN says, for example, that the contractor who builds a bridge, or the manufacturer who builds a car, cannot ordinarily foresee injury to other persons than the owner as the probable result (120 Fed. Rep. §65 at p. §67). We take a different view. We think that injury to others is to be foreseen not merely as a possible, but as an almost inevitable result. (See the trenchant criticism in Bohlen, supra, at p. 351). Indeed, Judge SANBORN concedes that his view is not to be reconciled with our decision in Devlin v. Smith (supra). The doctrine of that decision has now become the settled law of this state, and we have no desire to depart from it.

In England the limits of the rule are still unsettled. Winterbottom v. Wright (10 M. & W. 109) is often cited. The defendant undertook to provide a mail coach to carry the mail bags. The coach broke down from latent defects in its construction. The defendant, however, was not the manufacturer. The court held that he was not liable for injuries to a passenger. The case was decided on a demurrer to the declaration. Lord ESHER points out in Heaven v. Pender (supra, at p. 513) that the form of the declaration was subject to criticism. It did not fairly suggest the existence of a duty aside from the special contract which was the plaintiff's main reliance. (See the criticism of Winterbottom v. Wright, in Bohlen, supra, at pp. 281, 283). At all events, in Heaven v. Pender (supra) the defendant, a dock owner, who put up a staging outside a ship, was held liable to the servants of the ship owner. In Elliott v. Hall (15 Q. B. D. 315) the defendant sent out a defective truck laden with goods which he had sold. The; buyer's servants unloaded it, and were injured because of the defects. It was held that the defendant was under a duty "not to be guilty of negligence with regard to the state and condition of the truck." There seems to have been a [217 N.Y. 393] return to the doctrine of Winterbottom v. Wright in Earl v.Lubbock (L.R. [1905] 1 K. B. 253). In that case, however, as in the earlier one, the defendant was not the manufacturer. He had merely made a contract to keep the van in repair. A later case (White v. Steadman, L. R. [1913], 3 K. B. 340, 348) emphasizes that element. A livery stable keeper who sent out a vicious horse was held liable not merely to his customer but also to another occupant of the carriage, and Thomas v. Winchester was cited and followed (White v. Steadman, supra, at pp. 348, 349). It was again cited and followed in Dominion Natural Gas Co. v. Collins (L. E. [1909] A. C. 640, 646). From these cases a consistent principle is with difficulty extracted. The English courts, however, agree with ours in holding that one who invites another to make use of an appliance is bound to the exercise of reasonable car (Caledonian Ry. Co. v. Mulholland, L. R. [1898] A. C. 216, 227;Indermaur v. Dames, L. R. [1 C. P.] 274). That at bottom is the underlying principle of Devlin v. Smith. The contractor who builds the scaffold invites the owner's workmen to use it. The manufacturer who sells the automobile to the retail dealer invites the dealer's customers to use it. The invitation is addressed in the one case to determinate persons and in the other to indeterminate class, but in each case it is equally plain, and in each its consequences must be the same.

There is nothing anomalous in a rule which imposes upon A, who has contracted with B, a duty to C and D and others according as he knows or does not know that the subject-matter of the contract is intended for their use. We may find an analogy in the law which measures the liability of landlords. If A leases to B a tumbledown house he is not liable, in the absence of fraud, to B's guests who enter it and are injured. This is because B is then under the duty to repair it, the lessor has the right to suppose that he will fulfill that duty, and, if he [217 N.Y. 394] omits to do so, his guests must look to him (Bohlen, supra, at p. 276). But if A leases a building to be used by the lessee at once as a place of public entertainment, the rule is different. There injury to persons other than the lessee is to be foreseen, and foresight of the consequences involves the creation of a duty (Junkermann v. Tilyou R. Co., 213 N. Y. 404, and cases there cited). 

In this view of the defendant's liability there is nothing inconsistent with the theory of liability on which the case was tried. It is true that the court told the jury that "an automobile is not an inherently dangerous vehicle." The meaning, however, is made plain by the context. The meaning is that danger is not to be expected when the vehicle is well constructed. The court left it to the jury to say whether the defendant ought to have foreseen that the car, if negligently constructed, would become "imminently dangerous." Subtle distinctions are drawn by the defendant between things inherently dangerous and things imminently dangerous, but the case does not turn upon these verbal niceties. If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent. In varying forms that thought was put before the jury. We do not say that the court would not have been justified in ruling as a matter of law that the car was a dangerous thing. If there was any error, it was none of which the defendant can complain.

We think the defendant was not absolved from a duty of inspection because it bought the wheels from a reputable manufacturer. It was not merely a dealer in automobiles. It was a manufacturer of automobiles. It was responsible for the finished product. It was not at liberty to put the finished product on the market without subjecting the component parts to ordinary and simple tests (Richmond & Danville It. R. Co. v. Elliott, 149 U. S. 266, 272). Under the charge of the trial judge nothing more was [217 N.Y. 395] required of it. The obligation to inspect must vary with the nature of the thing to be inspected. The more probable the danger, the greater the need of caution. There is little analogy between this case and Carlson v. Phoenix Bridge Co. (132 N. Y. 273), where the defendant bought a tool for a servant's use. The making of tools was not the business in which the master was engaged. Reliance on the skill of the manufacturer was proper and almost inevitable. But that is not the defendant's situation. Both by its relation to the work and by the nature of its business, it is charged with a stricter duty.

Other rulings complained of have been considered, but no error has been found in them.

The judgment should be affirmed with costs.

WILLARD BARTLETT, Ch. J. (Dissenting).

The plaintiff was injured in consequence of the collapse of a wheel of an automobile manufactured by the defendant corporation which sold it to a firm of automobile dealers in Schenectady, who in turn sold the car to the plaintiff. The wheel was purchased by the Buick Motor Company, readymade, from the Imperial Wheel Company of Flint, Michigan, a reputable manufacturer of automobile wheels which had furnished the defendant with eighty thousand wheels, none of which had proved to be made of defective wood prior to the accident in the present case. The defendant relied upon the wheel manufacturer to make all necessary tests as to the strength of the material therein and made no such tests itself. The present suit is an action for negligence brought by the subvendee of the motor car against the manufacturer as the original vendor. The evidence warranted a finding by the jury that the wheel which collapsed was defective when it left the hands of the defendant. The automobile was being prudently operated at the time of the accident and was moving at a speed of only eight miles an hour. There was [217 N.Y. 396] no allegation or proof of any actual knowledge of the defect on the part of the defendant or any suggestion that any element of fraud or deceit or misrepresentation entered into the sale.

The theory upon which the case was submitted to the jury by the learned judge who presided at the trial was that, although an automobile is not an inherently dangerous vehicle, it may become such if equipped with a weak wheel; and that if the motor car in question, when it was put upon the market was in itself inherently dangerous by reason of its being equipped with a weak wheel, the defendant was chargeable with a knowledge of the defect so far as it might be discovered by a reasonable inspection and the application of reasonable tests. This liability, it was further held, was not limited to the original vendee, but extended to a subvendee like the plaintiff, who was not a party to the original contract of sale.

I think that these rulings, which have been approved by the Appellate Division, extend the liability of the vendor of a manufactured article further than any case which has yet received the sanction of this court. It has heretofore been held in this state that the liability of the vendor of a manufactured article for negligence arising out of the existence of defects therein does not extend to strangers injured in consequence of such defects but is confined to the immediate vendee. The exceptions to this general rule which have thus far been recognized in New York are cases in which the article sold was of such a character that danger to life or limb was involved in the ordinary use thereof; in other words, where the article sold was inherently dangerous. As has already been pointed out, the learned trial judge instructed the jury that an automobile is not an inherently dangerous vehicle.

The late Chief Justice COOLEY of Michigan, one of the most learned and accurate of American law writers, [217 N.Y. 397] states the general rule thus: "The general rule is that a contractor, manufacturer, vendor or furnisher of an article is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of such article." (2 Cooley on Torts [3d ed.], 1486.)

The leading English authority in support of this rule, to which all the later cases on the same subject refer, is Winterbottom v. Wright (10 Meeson & Welsby, 109), which was an action by the driver of a stage coach against a contractor who had agreed with the postmaster-general to provide and keep the vehicle in repair for the purpose of conveying the royal mail over a prescribed route. The coach broke down and upset, injuring the driver, who sought to recover against the contractor on account of its defective construction. The Court of Exchequer denied him any right of recovery on the ground that there was no privity of contract between the parties, the agreement having been made with the postmaster-general alone. "If the plaintiff can sue," said Lord ABINGER, the Chief Baron, "every passenger or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who enter into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue."

The doctrine of that decision was recognized as the law of this state by the leading New York case of Thomas v. Winchester (6 N. Y. 397, 408), which, however, involved an exception to the general rule. There the defendant, who was a dealer in medicines, sold to a druggist a quantity of belladonna, which is a deadly poison, negligently labeled as extract of dandelion. The druggist in good faith used the poison in filling a prescription calling for the harmless dandelion extract and the plaintiff for whom the prescription was put up was poisoned by the [217 N.Y. 398] belladonna. This court held that the original vendor was liable for the injuries suffered by the patient. Chief Judge RUGGLES, who delivered the opinion of the court, distinguished between an act of negligence imminently dangerous to the lives of others and one that is not so, saying: "If A. build a wagon and sell it to B., who sells it to C. and C. hires it to D., who in consequence of the gross negligence of A. in building the wagon is overturned and injured, D. cannot recover damages against A., the builder. A.'s obligation to build the wagon faithfully, arises solely out of his contract with B. The public have nothing to do with it. * * * So, for the same reason, if a horse be defectively shod by a smith, and a person hiring the horse from the owner is thrown and injured in consequence of the smith's negligence in shoeing; the smith is not liable for the injury."

In Torgeson v. Schultz (192 N. Y. 156, 159) the defendant was the vendor of bottles of aerated water which were charged under high pressure and likely to explode unless used with precaution when exposed to sudden changes of temperature. The plaintiff, who was a servant of the purchaser, was injured by the explosion of one of these bottles. There was evidence tending to show that it had not been properly tested in order to insure users against such accidents. We held that the defendant corporation was liable notwithstanding the absence of any contract relation between it and the plaintiff "under the doctrine of Thomas v. Winchester (supra), and similar cases based upon the duty of the vendor of an article dangerous in its nature, or likely to become so in the course of the ordinary usage to be contemplated by the vendor, either to exercise due care to warn users of the; danger or to take reasonable care to prevent the article sold from proving dangerous when subjected only to customary usage." The character of the exception to the general rule limiting liability for negligence to the original parties to the contract of sale, was still more clearly stated by Judge [217 N.Y. 399] Hiscock, writing for the court in Statler v. Ray Manufacturing Co. (195 N. Y. 478, 482), where he said that "in the case of an article of an inherently dangerous nature, a manufacturer may become liable for a negligent construction which, when added to the inherent character of the appliance, makes it imminently dangerous, and causes or contributes to a resulting injury not necessarily incident to the use of such an article properly constructed, but naturally following from a defective construction." In that case the injuries were inflicted by the explosion of a battery of steam-driven coffee urns, constituting an appliance liable to become dangerous in the course of ordinary usage.

The case of Devlin v. Smith (89 N. Y. 470) is cited as an authority in conflict with the view that the liability of the manufacturer and vendor extends to third parties only when the article manufactured and sold is inherently dangerous. In that case the builder of a scaffold ninety feet high which was erected for the purpose of enabling painters to stand upon it, was held to be liable to the administratrix of a painter who fell there from and was killed, being at the time in the employ of the person for whom the scaffold was built. It is said that the scaffold if properly constructed was not inherently dangerous; and hence that this decision affirms the existence of liability in the case of an article not dangerous in itself but made so only in consequence of negligent construction. Whatever logical force there; may be in this view it seems to me clear from the language of Judge RAPALLO, who wrote the opinion of the court, that the scaffold was deemed to be an inherently dangerous structure; and that the case was decided as it was because the court entertained that view. Otherwise he would hardly have said, as he did, that the circumstances seemed to bring the case fairly within the principle of Thomas v. Winchester.

I do not see how we can uphold the judgment in the [217 N.Y. 400] present case without overruling what has been so often said by this court and other courts of like authority in reference to the absence of any liability for negligence on the part of the original vendor of an ordinary carriage to anyone except his immediate vendee. The absence of such liability was the; very point actually decided in the English case of Winterbottom v.Wright (supra), and the illustration quoted from the opinion of Chief Judge RUGGLES in Thomas v. Winchester (supra) assumes that the law on the subject was so plain that the statement would be accepted almost as a matter of course. In the case at bar the defective wheel on an automobile moving only eight miles an hour was not any more dangerous to the occupants of the car than a similarly defective wheel would be to the occupants of a carriage drawn by a horse at the same speed; and yet unless the courts have been all wrong on this question up to the present time there would be no liability to strangers to the original sale in the case of the horse-drawn carriage.

The rule upon which, in my judgment, the determination of this case depends, and the recognized exceptions thereto, were discussed by Circuit Judge SANBORN of the United States Circuit Court of Appeals in the Eighth Circuit, in Huset v. J. I. Case Threshing Machine Co. (120 Fed. Rep. 865) in an opinion which reviews all the leading American and English decisions on the subject up to the time when it was rendered (1903). I have already discussed the leading New York cases, but as to the rest I feel that I can add nothing to the learning of that opinion or the cogency of its reasoning. I have examined the cases to which Judge SANBORN refers, but if I were to discuss them at length I should be forced merely to paraphrase his language, as a study of the authorities he cites has led me to the same conclusion; and the repetition of what has already been so well said would contribute nothing to the advantage of the bench, the bar or the individual litigants whose case is before us.

[217 N.Y. 401] A few cases decided since his opinion was written, however, may be noticed. In Earl v. Lubbock (L. R. 1905 [1 K . B. Div.] 253) the Court of Appeal in 1904 considered and approved the propositions of law laid down by the Court of Exchequer in Winterbottom v. Wright (supra), declaring that the decision in that case, since the year 1842, had stood the test of repeated discussion. The master of the rolls approved the principles laid down by Lord ABINGER as based upon sound reasoning; and all the members of the court agreed that his decision was a controlling authority which must be followed. That the Federal courts still adhere to the general rule, as I have stated it, appears by the decision of the Circuit Court of Appeals in the Second Circuit, in March, 1915, in the case of Cadillac Motor Car Co. v. Johnson (221 Fed. Rep. 801). That case, like this, was an action by a subvendee against a manufacturer of automobiles for negligence in failing to discover that one of its wheels was defective, the court holding that such an action could not be maintained. It is true there was a dissenting opinion in that case, but it was based chiefly upon the proposition that rules applicable to stage coaches are archaic when applied to automobiles and that if the law did not afford a remedy to strangers to the contract the law should be changed. It this be true, the change should be effected by the legislature and not by the courts. A perusal of the opinion in that case and in the Huset case will disclose how uniformly the courts throughout this country have adhered to the rule and how consistently they have refused to broaden the scope of the exceptions. I think we should adhere to it in the case at bar and, therefore, I vote for a reversal of this judgment.

HISCOCK, CHASE and CUDDEBACK, JJ., concur with CARDOZO, J., and HOGAN, J., concurs in result; WILLARD BARTLETT, Ch. J., reads dissenting opinion; POUND, J., not voting.

Judgment affirmed.

PATRICK RYAN, Respondent,

v.

PROGRESSIVE GROCERY STORES, INC., Appellant.

255 N.Y. 388

(Argued January 9, 1931; decided February 10, 1931.)

APPEAL, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 22, 1930, affirming a judgment in favor of plaintiff entered upon a decision of the City Court of White Plains.

Walter L. Glenney for appellant. The loaf of bread, being specifically asked for as Ward's bread, and contained in its original sealed wrapper, was not warranted by the defendant other than as being Ward's bread. (Rinaldi v. Mohican Co., 225 N. Y. 70; Canavan v. City of Mechanicville, 229 N. Y. 473; Aronowitz v. Woolworth Co., 134 Misc. Rep. 272; Julian v. Laubenberger, 16 Misc. Rep. 646; Barrington v. Hotel Astor, 184 App. Div. 317; Bigelow v. Maine Central R. R. Co., 110 Me. 105; Trafton v. Davis, 110 Me. 318.)

William L. Rumsey for respondent. Retailers are liable on an implied warranty on the sale of food although [390] goods are in the original package bought from the manufacturer. (Rinaldi v. Mohican Co., 225 N. Y. 70; Race v. Krum, 222 N. Y. 410; Jackson v. Watson, [1909] 2 K. B. 193; Chapman v. Ruggenkamp, 182 Ill.App. 117; Sloan v. Woolworth Co., 193 Ill.App. 620; Farrell v. Manhattan Mkt., 198 Mass. 271; Ward v. Great Atlantic & P. Tea Co., 231 Mass. 90; Lieberman v. Sheffield Farms, 117 Misc. Rep. 531; Vaccano v. Prudential Cond. Milk Co., 133 Misc. Rep. 556; Meyer v. Kirschbaum, 133 Misc. Rep. 330; Cohen v. Dugan Bros., 132 Misc. Rep. 896; Foley v. Liggett & Myers Tobacco Co., 136 Misc. Rep. 468; Pers. Prop. Law, § 96, subd. 2; Williston on Sales, § 235.)

CARDOZO, Ch. J.

The action is for breach of warranty. Plaintiff through his wife, who acted as his agent, bought a loaf of bread at the defendant's grocery. The loaf had concealed in it a pin, which hurt the plaintiff's mouth. There has been a judgment for the damage.

"Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller's skill or judgment (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be reasonably fit for such purpose" (Pers. Prop. Law; Cons. Laws, ch. 41, § 96, subd. 1).

The plaintiff did not rely on the seller's skill or judgment. His wife stated to the salesman that she wished to have a loaf of "Ward's bread." The salesman gave her what she asked for, wrapped in a sealed package as it had come from the Ward Baking Company, the baker. She made her own choice, and used her own judgment.

The leading case in this State as to the meaning of the statute quoted is Rinaldi v. Mohican Co. (225 N. Y. 70). The sale was one of pork, which turned out to be diseased. We held that reliance on the seller's skill and judgment might be gathered from the purchase [391] as a reasonable inference. We left the question open whether a like inference would be drawn upon a sale in the original package as bought by the vendor from others. 

Since Rinaldi v. Mohican Co., the scope of the implied warranty upon a sale of food in sealed containers has been discussed in other courts. There are decisions to the effect that even in such circumstances an implied warranty ensues if the seller's judgment has been trusted for the selection of the brand or make (Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90; Ireland v. Liggett Co., 243 Mass. 243; Lieberman v. Sheffield Farms, (App. Term) 117 Misc. Rep. 531; Williston, Sales, vol. 1, §§ 242, 242-a). We assume for present purposes that so the rule should be declared. Invariably, however, the limitation has been added that there can be no inference of reliance where the buyer selects the brand and gets what he selects. The customer will be taken to confide in "the skill and experience of the seller in determining the kind of canned goods which he will purchase, unless he demands goods of a definite brand or trade name" (Ward v. Great Atlantic & Pacific Tea Co., supra). The statute is then explicit. "In the case of * * * a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose" (Pers. Prop. Law, § 96, subd. 4). There is no room for a holding that choice shall be imputed to the seller when the transaction shows upon its face that the judgment of the seller was superseded, and choice determined by the buyer.

The award of damages, if it is to be upheld, must rest upon some other basis than the imputation of reliance.

"Where the goods are bought by description from a seller who deals in goods of that description (whether he be the grower or manufacturer or not), there is an implied warranty that the goods shall be of merchantable quality" (Pers. Prop. Law, § 96, subd. 2).

[392] The facts excluding a warranty under subdivision 1, we are to inquire whether there is a warranty under subdivision 2.

Under the common-law rule long in force in this State, the warranty of merchantable quality was limited to sales by a manufacturer or grower (Hargous v. Stone, 5 N. Y. 73; Hoe v. Sanborn, 21 N. Y. 552; Bartlett v. Hoppock, 34 N. Y. 118; Carleton v. Lombard, Ayres Co., 149 N. Y. 137; Bierman v. City Mills Co., 151 N. Y. 482; Howard Iron Works v. Buffalo Elevating Co., 113 App. Div. 562; 188 N. Y. 619; Williston, Sales, vol. 1, §§ 232, 233). All this has been changed since the coming of the Sales Law (Williston, supra). Dealer as well as manufacturer or grower affirms as to anything he sells, if purchased by description, that it is of merchantable quality. The burden may be heavy. It is one of the hazards of the business.

Most of the sales of defective food stuffs have been dealt with by the courts as if subdivision 1 of the section defining warranties gave the exclusive rule to be applied. In some instances the goods were not purchased by description. In others, the courts may have been unmindful of the fact that the warranty of merchantable quality is no longer confined to manufacturers or growers. Innovations of this order are slow to make their way. Gradually, however, as the statute has become better known, the bearing of subdivision 2 upon sales of food in sealed containers has been perceived by court and counsel. The nature of the transaction must determine in each instance the rule to be applied. There are times when a warranty of fitness has no relation to a warranty of merchantable quality. This is so, for example, when machinery competently wrought is still inadequate for the use to which the buyer has given notice that it is likely to be applied. There are times on the other hand when the warranties co-exist, in which event a recovery may be founded upon either. "Fitness for a particular [393] purpose may be merely the equivalent of merchantability" (Williston, Sales, vol. 1, § 235, and cases there cited).

A dual warranty is thus possible for food stuffs as for anything else. Both in this court and in others the possibility is recognized. Aron & Co. v. Sills (240 N. Y. 588) was an action for breach of warranty by retailer against wholesaler upon a sale of condensed milk. At the Appellate Division, the warranty was treated as governed by subdivision 1. When the case came to us, we put that subdivision aside, holding that there was no necessity of deciding whether there was sufficient evidence of reliance, and placed our affirmance of the judgment upon subdivision 2. "Whether under the circumstances of this particular case any inference is possible that the buyer relied upon the seller's skill or judgment we need not decide. For even were the trial court in error as to the existence of an implied warranty that the goods in question were fit for human consumption, bought as they were by description from one who dealt in them, there was a warranty that they were of merchantable quality. If condensed milk is unfit for consumption, clearly it does not comply with this warranty" (240 N. Y. 588).

A like rule has been declared in Massachusetts and in the Federal courts, at all events in controversies between the dealer and the maker (Inter-slate Grocer Co. v. Bentley Co., 214 Mass. 227 [sale of sardines]; Parker v. Shaghalian & Co., 244 Mass. 19 [sale of candy]; McNeil & Higgins Co. v. Czarnikow-Rienda Co., 274 Fed. Rep. 397 [sale of sugar]).

"Where the buyer specifies what he wants, he can, of course, not rely upon any superior knowledge of the seller that it will serve its purposes. If he did, he must give the seller some latitude of selection. But he may still insist that it must be of a quality which will pass in the market under that description, and he may rightly [394] rely upon the seller to secure him such a quality" (L. HAND, J., in McNeil & Higgins Co. v. Czarnikow-Rienda Co., supra).

The result has not been different in cases where the consumer rather than another dealer has been the victim of the wrong.

Thus, in Wren v. Holt ([1903] 1 K. B. 610) the plaintiff as made ill through the presence of arsenic in beer, which he had bought from the defendant, who was not the manufacturer. In buying the beer, he asked for the product of a particular firm of brewers. A recovery was upheld for breach of an implied warranty of merchantable quality as upon a purchase by description, and this though there had been no reliance on the skill and judgment of the seller. Again, in Morelli v. Fitch ([1928] 2 K. B. 636) there was a recovery for breach of a like warranty upon a sale of a bottle of ginger ale by the keeper of a public house. The customer had asked for ale of a particular make, trusting to his own judgment rather than to the experience of the seller. Even so, the warranty of merchantable quality was held to be a sufficient basis for the recovery of damages.

Loaves baked with pins in them are not of merchantable quality. The dealer is thus charged with liability though the buyer selects the brand, just as he would be liable for concealed defects upon a sale of wool or silk. Assume that the sale had been made by a manufacturer or a grower, and that there had been a request for a special brand. There would then be no warranty of fitness for any "particular" purpose. Would any one dispute, however, that a defect of this order, destroying value altogether, would be covered by the warranty of merchantable quality? The question carries its own answer. The rule is different, to be sure, upon a sale of specific goods, not purchased by description (Hight v. Bacon, 126 Mass. 10). It may even be different, though the purchase is by description, if the goods are subject [395] to inspection and the defects are of such a nature that inspection will reveal them (Williston, Sales, § 234; Pers. Prop. Law, § 96, subd. 3). Here the sale was by description, the defect was wholly latent, and inspection was impossible. In such circumstances, the law casts the burden on the seller, who may vouch in the manufacturer, if the latter was to blame. The loss in its final incidence will be borne where it is placed by the initial wrong.

The argument is made that the only damage to be recovered for the breach of the warranty of merchantable quality is the price of the bread, the difference between the value of a good loaf and a bad one. The rule is not so stubborn. Undoubtedly, the difference in value supplies the ordinary measure (Pers. Prop. Law, § 150, subds. 6 and 7; § 151). The measure is more liberal where special circumstances are present with proof of special damage (§ 150, subd. 7; § 151). Here the dealer had notice from the nature of the transaction that the bread was to be eaten. Knowledge that it was to be eaten was knowledge that the damage would be greater than the price (Williston, Sales, vol. 2, §§ 614, 614-a; Swain v. Schieffelin, 134 N. Y. 471; Dushane v. Benedict,  120 U. S. 630; Gearing v. Berkson, 223 Mass. 257; French v. Vining, 102 Mass. 132; Birdsinger v. McCormick Harvesting Machine Co., 183 N. Y. 487, 492; American Law Institute, Restatement of Law of Contracts, § 321). For damages thus foreseen, the buyer has his remedy, whether the warranty is one of fitness or of merchantable quality (Williston, supra; Wren v. Holt, supra; Morelli v. Fitch, supra; Swain v. Schieffelin, supra).

There is no variance between proof and pleading sufficient to destroy the judgment.

The facts proved without objection make out a breach of warranty under subdivision 2. In such circumstances the plaintiff ought not to lose the benefit of his judgment because he fancied that he had brought himself within subdivision 1. "The seller may not complain if the jury [396] is told that a warranty exists more limited in its scope than in truth is the fact" (Aron & Co. v. Sills, supra; cf. Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458). The facts being conceded, the court applies the law.

The conclusion thus reached makes it unnecessary to consider whether there has been a breach of the Agriculture and Markets Law sustaining a recovery (Agriculture & Markets Law; Cons. Laws, ch. 69, §§ 198, 199; Pine Grove Poultry Farm v. Newtown B.-P. Mfg. Co., 248N. Y. 293; Abounader v. Strohmeyer & Arpe Co., supra).

The judgment should be affirmed with costs.

POUND, CRANE, LEHMAN, O'BRIEN and HUBBS, JJ., concur; KELLOGG, J., not sitting.

Judgment affirmed.

H. K. Landram for Appellant.

C. Ray Robinson, Willard B. Treadwell, Dean S. Lesher, Loraine B. Rogers, Belli & Leahy and Melvin M. Belli for Respondent.

[456] GIBSON, C.J.

Plaintiff, a waitress in a restaurant, was injured when a bottle of Coca Cola broke in her hand. She alleged that defendant company, which had bottled and delivered the alleged defective bottle to her employer, was negligent in selling "bottles containing said beverage which on account of excessive pressure of gas or by reason of some defect in the bottle was dangerous ... and likely to explode." This appeal is from a judgment upon a jury verdict in favor of plaintiff.

Defendant's driver delivered several cases of Coca Cola to the restaurant, placing them on the floor, one on top of the other, under and behind the counter, where they remained at least thirty-six hours. Immediately before the accident, plaintiff picked up the top case and set it upon a near-by ice cream cabinet in front of and about three feet from the refrigerator. She then proceeded to take the bottles from the case with her right hand, one at a time, and put them into the refrigerator. Plaintiff testified that after she had placed three bottles in the refrigerator and had moved the fourth bottle about eighteen inches from the case "it exploded in my hand." The bottle broke into two jagged pieces and inflicted a deep five-inch cut, severing blood vessels, nerves and muscles of the thumb and palm of the hand. Plaintiff further testified that when the bottle exploded, "It made a sound similar to an electric light bulb that would have dropped. It made a loud pop." Plaintiff's employer testified, "I was about twenty feet from where it actually happened and I heard the explosion." A fellow employee, on the opposite side of the counter, testified that plaintiff "had the bottle, I should judge, waist high, and I know that it didn't bang either the case or the door or another bottle ... when it popped. It sounded just like a fruit jar would blow up. ..." The witness further testified that the contents of the bottle "flew all over herself and myself and the walls and one thing and another."

The top portion of the bottle, with the cap, remained in plaintiff's hand, and the lower portion fell to the floor but did not break. The broken bottle was not produced at the trial, the pieces having been thrown away by an employee of the restaurant shortly after the accident. Plaintiff, however, described the broken pieces, and a diagram of the bottle was made showing the location of the "fracture line" where the bottle broke in two.

[457] One of defendant's drivers, called as a witness by plaintiff, testified that he had seen other bottles of Coca Cola in the past explode and had found broken bottles in the warehouse when he took the cases out, but that he did not know what made them blow up.

Plaintiff then rested her case, having announced to the court that being unable to show any specific acts of negligence she relied completely on the doctrine of res ipsa loquitur.

Defendant contends that the doctrine of res ipsa loquitur does not apply in this case, and that the evidence is insufficient to support the judgment.

Many jurisdictions have applied the doctrine in cases involving exploding bottles of carbonated beverages. (See Payne v. Rome Coca-Cola Bottling Co., 10 Ga.App. 762 [73 S.E. 1087]; Stolle v. Anheuser-Busch, 307 Mo. 520 [271 S.W. 497, 39 A.L.R. 1001]; Bradley v. Conway Springs Bottling Co., 154 Kan. 282 [118 P.2d 601]; Ortego v. Nehi Bottling Works, 199 La. 599 [6 So.2d 677]; MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365 [29 A.2d 868]; Macres v. Coca-Cola Bottling Co., 290 Mich. 567 [287 N.W. 922]; Benkendorfer v. Garrett (Tex. Civ. App.), 143 S.W.2d 1020.) Other courts for varying reasons have refused to apply the doctrine in such cases. (See Gerber v. Faber, 54 Cal.App.2d 674 [129 P.2d 485]; Loebig's Guardian v. Coca-Cola Bottling Co., 259 Ky. 124 [81 S.W.2d 910]; Stewart v. Crystal Coca-Cola Bottling Co., 50 Ariz. 60 [68 P.2d 952]; Glaser v. Seitz, 35 Misc. 341 [71 N.Y.S. 942]; Luciano v. Morgan, 267 App. Div. 785 [45 N.Y.S.2d 502]; cf. Berkens v. Denver Coca-Cola Bottling Co., 109 Colo. 140 [122 P.2d 884]; Ruffin v. Coca Cola Bottling Co., 311 Mass. 514 [42 N.E.2d 259]; Slack v. Premier-Pabst Corporation, 40 Del. 97 [5 A.2d 516]; Wheeler v. Laurel Bottling Works, 111 Miss. 442 [71 So. 743, L.R.A. 1916E 1074]; Seven-Up Bottling Co. v. Gretes, __________ Va. __________ [27 S.E.2d 925]; Dail v. Taylor, 151 N.C. 284 [66 S.E. 135, 28 L.R.A.N.S. 949].) It would serve no useful purpose to discuss the reasoning of the foregoing cases in detail, since the problem is whether under the facts shown in the instant case the conditions warranting application of the doctrine have been satisfied.

Res ipsa loquitur does not apply unless (1) defendant had exclusive control of the thing causing the injury and (2) the accident is of such a nature that it ordinarily [458] would not occur in the absence of negligence by the defendant. (Honea v. City Dairy, Inc., 22 Cal.2d 614, 616-617 [140 P.2d 369], and authorities there cited; cf. Hinds v. Wheadon, 19 Cal.2d 458, 461 [121 P.2d 724]; Prosser on Torts [1941], 293-301.)

Many authorities state that the happening of the accident does not speak for itself where it took place some time after defendant had relinquished control of the instrumentality causing the injury. Under the more logical view, however, the doctrine may be applied upon the theory that defendant had control at the time of the alleged negligent act, although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left the defendant's possession. (See cases collected in Honea v. City Dairy, Inc., 22 Cal.2d 614, 617-618 [140 P.2d 369].) As said in Dunn v. Hoffman Beverage Co., 126 N.J.L. 556 [20 A.2d 352, 354], "defendant is not charged with the duty of showing affirmatively that something happened to the bottle after it left its control or management; ... to get to the jury the plaintiff must show that there was due care during that period." Plaintiff must also prove that she handled the bottle carefully. The reason for this prerequisite is set forth in Prosser on Torts, supra, at page 300, where the author states: "Allied to the condition of exclusive control in the defendant is that of absence of any action on the part of the plaintiff contributing to the accident. Its purpose, of course, is to eliminate the possibility that it was the plaintiff who was responsible. If the boiler of a locomotive explodes while the plaintiff engineer is operating it, the inference of his own negligence is at least as great as that of the defendant, and res ipsa loquitur will not apply until he has accounted for his own conduct." (See, also, Olson v. Whitthorne & Swan, 203 Cal. 206, 208-209 [263 P. 518, 58 A.L.R. 129].) It is not necessary, of course, that plaintiff eliminate every remote possibility of injury to the bottle after defendant lost control, and the requirement is satisfied if there is evidence permitting a reasonable inference that it was not accessible to extraneous harmful forces and that it was carefully handled by plaintiff or any third person who may have moved or touched it. (Cf. Prosser, supra, p. 300.) If such evidence is presented, the question becomes one for the trier of fact (see, e. g., [459] MacPherson v. Canada Dry Ginger Ale, Inc., 129 N.J.L. 365 [29 A.2d 868, 869]), and, accordingly, the issue should be submitted to the jury under proper instructions.

In the present case no instructions were requested or given on this phase of the case, although general instructions upon res ipsa loquitur were given. Defendant, however, has made no claim of error with reference thereto on this appeal. Upon an examination of the record, the evidence appears sufficient to support a reasonable inference that the bottle here involved was not damaged by any extraneous force after delivery to the restaurant by defendant. It follows, therefore, that the bottle was in some manner defective at the time defendant relinquished control, because sound and properly prepared bottles of carbonated liquids do not ordinarily explode when carefully handled.

The next question, then, is whether plaintiff may rely upon the doctrine of res ipsa loquitur to supply an inference that defendant's negligence was responsible for the defective condition of the bottle at the time it was delivered to the restaurant. Under the general rules pertaining to the doctrine, as set forth above, it must appear that bottles of carbonated liquid are not ordinarily defective without negligence by the bottling company. In 1 Shearman and Redfield on Negligence (rev. ed. 1941), page 153, it is stated that: "The doctrine ... requires evidence which shows at least the probability that a particular accident could not have occurred without legal wrong by the defendant."

An explosion such as took place here might have been caused by an excessive internal pressure in a sound bottle, by a defect in the glass of a bottle containing a safe pressure, or by a combination of these two possible causes. The question is whether under the evidence there was a probability that defendant was negligent in any of these respects. If so, the doctrine of res ipsa loquitur applies.

The bottle was admittedly charged with gas under pressure, and the charging of the bottle was within the exclusive control of defendant. As it is a matter of common knowledge that an overcharge would not ordinarily result without negligence, it follows under the doctrine of res ipsa loquitur that if the bottle was in fact excessively charged an inference of defendant's negligence would arise. If [460] the explosion resulted from a defective bottle containing a safe pressure, the defendant would be liable if it negligently failed to discover such flaw. If the defect were visible, an inference of negligence would arise from the failure of defendant to discover it. Where defects are discoverable, it may be assumed that they will not ordinarily escape detection if a reasonable inspection is made, and if such a defect is overlooked an inference arises that a proper inspection was not made. A difficult problem is presented where the defect is unknown and consequently might have been one not discoverable by a reasonable, practicable inspection. In the Honea case we refused to take judicial notice of the technical practices and information available to the bottling industry for finding defects which cannot be seen. In the present case, however, we are supplied with evidence of the standard methods used for testing bottles.

A chemical engineer for the Owens-Illinois Glass Company and its Pacific Coast subsidiary, maker of Coca Cola bottles, explained how glass is manufactured and the methods used in testing and inspecting bottles. He testified that his company is the largest manufacturer of glass containers in the United States, and that it uses the standard methods for testing bottles recommended by the glass containers association. A pressure test is made by taking a sample from each mold every three hours--approximately one out of every 600 bottles--and subjecting the sample to an internal pressure of 450 pounds per square inch, which is sustained for one minute. (The normal pressure in Coca Cola bottles is less than 50 pounds per square inch.) The sample bottles are also subjected to the standard thermal shock test. The witness stated that these tests are "pretty near" infallible.

It thus appears that there is available to the industry a commonly-used method of testing bottles for defects not apparent to the eye, which is almost infallible. Since Coca Cola bottles are subjected to these tests by the manufacturer, it is not likely that they contain defects when delivered to the bottler which are not discoverable by visual inspection. Both new and used bottles are filled and distributed by defendant. The used bottles are not again subjected to the tests referred to above, and it may be inferred that defects not discoverable by visual inspection do not develop in bottles after they are manufactured. Obviously, if such defects do [461] occur in used bottles there is a duty upon the bottler to make appropriate tests before they are refilled, and if such tests are not commercially practicable the bottles should not be re-used. This would seem to be particularly true where a charged liquid is placed in the bottle. It follows that a defect which would make the bottle unsound could be discovered by reasonable and practicable tests.

Although it is not clear in this case whether the explosion was caused by an excessive charge or a defect in the glass, there is a sufficient showing that neither cause would ordinarily have been present if due care had been used. Further, defendant had exclusive control over both the charging and inspection of the bottles. Accordingly, all the requirements necessary to entitle plaintiff to rely on the doctrine of res ipsa loquitur to supply an inference of negligence are present.

It is true that defendant presented evidence tending to show that it exercised considerable precaution by carefully regulating and checking the pressure in the bottles and by making visual inspections for defects in the glass at several stages during the bottling process. It is well settled, however, that when a defendant produces evidence to rebut the inference of negligence which arises upon application of the doctrine of res ipsa loquitur, it is ordinarily a question of fact for the jury to determine whether the inference has been dispelled. (Druzanich v. Criley, 19 Cal.2d 439, 444 [122 P.2d 53]; Michener v. Hutton, 203 Cal. 604, 610 [265 P. 238, 59 A.L.R. 480].)

The judgment is affirmed.

Shenk, J., Curtis, J., Carter, J., and Schauer, J., concurred.

TRAYNOR, J.

I concur in the judgment, but I believe the manufacturer's negligence should no longer be singled out as the basis of a plaintiff's right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings. McPherson v. Buick Motor Co., 217 N.Y. 382 [111 N.E. 1050, Ann.Cas. 1916C 440, L.R.A. 1916F 696], established the principle, recognized by this court, that irrespective of privity of contract, the manufacturer is responsible [462] for an injury caused by such an article to any person who comes in lawful contact with it. (Sheward v. Virtue, 20 Cal.2d 410 [126 P.2d 345]; Kalash v. Los Angeles Ladder Co., 1 Cal.2d 229 [34 P.2d 481].) In these cases the source of the manufacturer's liability was his negligence in the manufacturing process or in the inspection of component parts supplied by others. Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection.

The injury from a defective product does not become a matter of indifference because the defect arises from causes other than the negligence of the manufacturer, such as negligence of a submanufacturer of a component part whose defects could not be revealed by inspection (see Sheward v. Virtue, 20 Cal.2d 410 [126 P.2d 345]; O'Rourke v. Day & Night Water Heater Co., Ltd., 31 Cal.App.2d 364 [88 P.2d 191]; Smith v. Peerless Glass Co., 259 N.Y. 292 [181 N.E. 576]), or unknown causes that even by the device of res ipsa loquitur cannot be classified as negligence of the manufacturer. The inference of negligence may be dispelled by an affirmative showing of proper care. If the evidence against the fact inferred [463] is "clear, positive, uncontradicted, and of such a nature that it cannot rationally be disbelieved, the court must instruct the jury that the nonexistence of the fact has been established as a matter of law." (Blank v. Coffin, 20 Cal.2d 457, 461 [126 P.2d 868].) An injured person, however, is not ordinarily in a position to refute such evidence or identify the cause of the defect, for he can hardly be familiar with the manufacturing process as the manufacturer himself is. In leaving it to the jury to decide whether the inference has been dispelled, regardless of the evidence against it, the negligence rule approaches the rule of strict liability. It is needlessly circuitous to make negligence the basis of recovery and impose what is in reality liability without negligence. If public policy demands that a manufacturer of goods be responsible for their quality regardless of negligence there is no reason not to fix that responsibility openly.

In the case of foodstuffs, the public policy of the state is formulated in a criminal statute. Section 26510 of the Health and Safety Code prohibits the manufacturing, preparing, compounding, packing, selling, offering for sale, or keeping for sale, or advertising within the state, of any adulterated food. Section 26470 declares that food is adulterated when "it has been produced, prepared, packed, or held under insanitary conditions whereby it may have been rendered diseased, unwholesome or injurious to health." The statute imposes criminal liability not only if the food is adulterated, but if its container, which may be a bottle (26451), has any deleterious substance ( 26470 (6)), or renders the product injurious to health. (26470 (4)). The criminal liability under the statute attaches without proof of fault, so that the manufacturer is under the duty of ascertaining whether an article manufactured by him is safe. (People v. Schwartz, 28 Cal.App.2d Supp. 775 [70 P.2d 1017].) Statutes of this kind result in a strict liability of the manufacturer in tort to the member of the public injured. (See cases cited in Prosser, Torts, p. 693, note 69.)

The statute may well be applicable to a bottle whose defects cause it to explode. In any event it is significant that the statute imposes criminal liability without fault, reflecting the public policy of protecting the public from dangerous products placed on the market, irrespective of negligence in their manufacture. While the Legislature imposes criminal liability [464] only with regard to food products and their containers, there are many other sources of danger. It is to the public interest to prevent injury to the public from any defective goods by the imposition of civil liability generally.

The retailer, even though not equipped to test a product, is under an absolute liability to his customer, for the implied warranties of fitness for proposed use and merchantable quality include a warranty of safety of the product. (Goetten v. Owl Drug Co., 6 Cal.2d 683 [59 P.2d 142]; Mix v. Ingersoll Candy Co., 6 Cal.2d 674 [59 P.2d 144]; Gindraux v. Maurice Mercantile Co., 4 Cal.2d 206 [47 P.2d 708]; Jensen v. Berris, 31 Cal.App.2d 537 [88 P.2d 220]; Ryan v. Progressive Grocery Stores, 255 N.Y. 388 [175 N.E. 105; 74 A.L.R. 339]; Race v. Krum, 222 N.Y. 410 [118 N.E. 853, L.R.A. 1918F 1172].) This warranty is not necessarily a contractual one (Chamberlain Co. v. Allis-Chalmers etc. Co., 51 Cal.App.2d 520, 524 [125 P.2d 113]; see 1 Williston on Sales, 2d ed., 197-201), for public policy requires that the buyer be insured at the seller's expense against injury. (Race v. Krum, supra; Ryan v. Progressive Grocery Stores, supra; Chapman v. Roggenkamp, 182 Ill.App. 117, 121; Ward v. Great Atlantic & Pacific Tea Co., 231 Mass. 90, 94 [120 N.E. 225, 5 A.L.R. 242]; see Prosser, The Implied Warranty of Merchantable Quality, 27 Minn.L.Rev. 117, 124; Brown, The Liability of Retail Dealers For Defective Food Products, 23 Minn.L.Rev. 585.) The courts recognize, however, that the retailer cannot bear the burden of this warranty, and allow him to recoup any losses by means of the warranty of safety attending the wholesaler's or manufacturer's sale to him. (Ward v. Great Atlantic & Pacific Tea Co., supra; see Waite, Retail Responsibility and Judicial Law Making, 34 Mich.L.Rev. 494, 509.) Such a procedure, however, is needlessly circuitous and engenders wasteful litigation. Much would be gained if the injured person could base his action directly on the manufacturer's warranty.

The liability of the manufacturer to an immediate buyer injured by a defective product follows without proof of negligence from the implied warranty of safety attending the sale. Ordinarily, however, the immediate buyer is a dealer who does not intend to use the product himself, and if the warranty of safety is to serve the purpose of protecting health and safety it must give rights to others than the dealer. In the words [465] of Judge Cardozo in the McPherson case: "The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used. Yet, the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a solution." While the defendant's negligence in the McPherson case made it unnecessary for the court to base liability on warranty, Judge Cardozo's reasoning recognized the injured person as the real party in interest and effectively disposed of the theory that the liability of the manufacturer incurred by his warranty should apply only to the immediate purchaser. It thus paves the way for a standard of liability that would make the manufacturer guarantee the safety of his product even when there is no negligence.

This court and many others have extended protection according to such a standard to consumers of food products, taking the view that the right of a consumer injured by unwholesome food does not depend "upon the intricacies of the law of sales" and that the warranty of the manufacturer to the consumer in absence of privity of contract rests on public policy. (Klein v. Duchess Sandwich Co., Ltd., 14 Cal.2d 272, 282 [93 P.2d 799]; Ketterer v. Armour & Co., 200 F. 321, 322, 323 [160 C.C.A. 111, L.R.A. 1918D 798]; Decker & Sons v. Capps, 139 Tex. 609 [164 S.W.2d 828, 142 A.L.R. 1479]; see Perkins, Unwholesome Food As A Source of Liability, 5 Iowa L.Bull. 6, 86.) Dangers to life and health inhere in other consumers' goods that are defective and there is no reason to differentiate them from the dangers of defective food products. (See Bohlen, Studies in Torts, Basis of Affirmative Obligations, American Cases Upon The Liability of Manufacturers and Vendors of Personal Property, 109, 135; Llewellyn, On Warranty of Quality and Society, 36 Col.L.Rev. 699, 704, note 14; Prosser, Torts, p. 692.)

In the food products cases the courts have resorted to various fictions to rationalize the extension of the manufacturer's warranty to the consumer: that a warranty runs with the chattel; that the cause of action of the dealer is assigned to the consumer; that the consumer is a third party beneficiary of the manufacturer's contract with the dealer. They have also held the manufacturer liable on a mere fiction of negligence: [466] "Practically he must know it [the product] is fit, or bear the consequences if it proves destructive." (Parks v. C. C. Yost Pie Co., 93 Kan. 334 [144 P. 202, L.R.A. 1915C 179]; see Jeanblanc, Manufacturer's Liability to Persons Other Than Their Immediate Vendees, 24 Va.L.Rev. 134.) Such fictions are not necessary to fix the manufacturer's liability under a warranty if the warranty is severed from the contract of sale between the dealer and the consumer and based on the law of torts (Decker & Sons v. Capps, supra; Prosser, Torts, p. 689) as a strict liability. (See Green v. General Petroleum Corp., 205 Cal. 328 [270 P. 952, 60 A.L.R. 475]; McGrath v. Basich Bros. Const. Co., 7 Cal.App.2d 573 [46 P.2d 981]; Prosser, Nuisance Without Fault, 20 Tex.L.Rev., 399, 403; Feezer, Capacity To Bear The Loss As A Factor In The Decision Of Certain Types of Tort Cases, 78 U. of Pa.L.Rev. 805, 79 U. of Pa.L.Rev. 742; Carpenter, The Doctrine of Green v. General Petroleum Corp., 5 So.Cal.L.Rev. 263, 271; Pound, The End of Law As Developed In Legal Rules And Doctrines, 27 Harv.L.Rev. 195, 233.) Warranties are not necessarily rights arising under a contract. An action on a warranty "was, in its origin, a pure action of tort," and only late in the historical development of warranties was an action in assumpsit allowed. (Ames, The History of Assumpsit, 2 Harv.L.Rev. 1, 8; 4 Williston on Contracts (1936) 970.) "And it is still generally possible where a distinction of procedure is observed between actions of tort and of contract to frame the declaration for breach of warranty in tort." (Williston, loc. cit.; see Prosser, Warranty On Merchantable Quality, 27 Minn.L.Rev. 117, 118.) On the basis of the tort character of an action on a warranty, recovery has been allowed for wrongful death as it could not be in an action for breach of contract. (Greco v. S. S. Kresge Co., 277 N.Y. 26 [12 N.E.2d 577, 115 A.L.R. 1020]; see Schlick v. New York Dugan Bros., 175 Misc. 182 [22 N.Y.S.2d 238]; Prosser, op. cit., p. 119.) As the court said in Greco v. S. S. Kresge Co., supra, "Though the action may be brought solely for the breach of the implied warranty, the breach is a wrongful act, a default, and, in its essential nature, a tort." Even a seller's express warranty can arise from a noncontractual affirmation inducing a person to purchase the goods. (Chamberlain Co. v. Allis-Chalmers etc. Co., 51 Cal.App.2d 520 [125 P.2d 113].) "As an actual agreement to contract is not essential, the obligation [467] of a seller in such a case is one imposed by law as distinguished from one voluntarily assumed. It may be called an obligation either on a quasi-contract or quasi-tort, because remedies appropriate to contract and also to tort are applicable." (1 Williston on Sales, 2d ed. 197; see Ballantine, Classification of Obligations, 15 Ill.L.Rev. 310, 325.)

As handicrafts have been replaced by mass production with its great markets and transportation facilities, the close relationship between the producer and consumer of a product has been altered. Manufacturing processes, frequently valuable secrets, are ordinarily either inaccessible to or beyond the ken of the general public. The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices such as trade-marks. (See Thomas v. Winchester, 6 N.Y. 397 [57 Am.Dec. 455]; Baxter v. Ford Motor Co., 168 Wash. 456 [12 P.2d 409, 15 P.2d 1118, 88 A.L.R. 521]; Crist v. Art Metal Works, 230 App.Div. 114 [243 N.Y.S. 496], affirmed 255 N.Y. 624 [175 N.E. 341]; see also Handler, False and Misleading Advertising, 39 Yale L.J. 22; Rogers, Good Will, Trade-Marks and Unfair Trading (1914) ch. VI, A Study of The Consumer, p. 65 et seq.; Williston, Liability For Honest Misrepresentations As Deceit, Negligence Or Warranty, 42 Harv.L.Rev. 733; 18 Cornell L.Q. 445.) Consumers no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trade mark. (See Max Factor & Co. v. Kunsman, 5 Cal.2d 446, 463 [55 P.2d 177]; Old Dearborn etc. Co. v. Seagram- Distillers Corp., 299 U.S. 183 [57 S.Ct. 139, 81 L.Ed. 109, 106 A.L.R. 1476]; Schechter, The Rational Basis of Trade Mark Protection, 40 Harv.L.Rev. 813, 818.) Manufacturers have sought to justify that faith by increasingly high standards of inspection and a readiness to make good on defective products by way of replacements and refunds. (See Bogert and Fink, Business Practices Regarding Warranties In The Sale Of Goods, 25 Ill.L.Rev. 400.) The manufacturer's obligation to the consumer must keep pace with the changing relationship between them; it cannot be escaped because the marketing of a product has become so complicated as to require one or more [468] intermediaries. Certainly there is greater reason to impose liability on the manufacturer than on the retailer who is but a conduit of a product that he is not himself able to test. (See Soule, Consumer Protection, 4 Encyclopedia of The Social Sciences, 282; Feezer, Manufacturer's Liability For Injuries Caused By His Products: Defective Automobiles, 37 Mich.L.Rev. 1; Llewellyn, Cases And Materials on Sales, 340 et seq.)

The manufacturer's liability should, of course, be defined in terms of the safety of the product in normal and proper use, and should not extend to injuries that cannot be traced to the product as it reached the market.

[49 Ill.App.3d 481] [364 N.E.2d 503] [7 Ill.Dec. 342] Richard A. Seltzer, Chicago, for plaintiff-appellant.

Kralovec, Sweeney, Marquard & Doyle, Chicago, for defendant-appellee; George E. Sweeney and Edward V. Scoby, Chicago, of counsel.

McNAMARA, Justice:

The plaintiff, Eleanore Keen, filed suit against the defendant, Dominick's Finer Foods, Inc., seeking to recover for injuries allegedly sustained while using a shopping cart in a Dominick's store located in Highland Park, Illinois. Plaintiff filed a four count complaint alleging theories of negligence, strict products liability, breach of implied warranty, and breach of duty of care by a bailor. The trial court granted Dominick's motion to strike all counts except that based upon negligence. Pursuant to Supreme Court Rule 304(a), Ill.Rev.Stat.1975, ch. 110A, par. 304(a), the trial court found no just reason for delaying enforcement or appeal from the order dismissing three counts of the complaint. Plaintiff has appealed solely from that part of the trial court's order dismissing the count in which she alleged a cause of action in strict tort liability.

In her complaint plaintiff charged that on January 21, 1975, she was shopping in a grocery store owned and operated by Dominick's. As she was pushing a shopping cart supplied by the store, the cart allegedly tipped over onto its side. Plaintiff was injured when she attempted to prevent the cart from overturning. Plaintiff further charged that at the time she was using the shopping cart, it was not reasonably safe for the use intended in that it was inclined to collapse in a manner which would cause it to roll onto its side and injure its user. In moving to dismiss the count in question, Dominick's maintained that it was not liable under the principles of strict products liability since the shopping cart could not be deemed a product for which Dominick's was responsible for placing into the stream of commerce. The trial court agreed with Dominick's contention and entered an order dismissing the count. The propriety of that order is at issue before us.

The nature of a manufacturer's liability for placing a defective product into the [364 N.E.2d 504] [7 Ill.Dec. 343] stream of commerce was set out in Suvada v. White Motor Co (1965), 32 Ill.2d 612, 623, 210 N.E.2d 182, 188:

" * * * The plaintiffs must prove that their injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time it left the manufacturer's control. * * * "

The rule promulgated in Suvada is in accordance with the Restatement (Second) of Torts § 402A (1964), which defines that special liability which a seller incurs when his product causes physical harm to a user or consumer:

[49 Ill.App.3d 482] "(1) 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, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold."

In Dunham v. Vaughan and Bushnell Mfg. Co. (1969), 42 Ill.2d 339, 247 N.E.2d 401, the court stated that Suvada applies with equal compulsion to all the parties in a chain who place the article into commerce. While liability does not depend upon whether there was an actual sales transaction (Galluccio v. Hertz Corp. (1971), 1 Ill.App.3d 272, 274 N.E.2d 178), it is necessary that the party to be charged with liability be in the business of placing the allegedly defective product into the stream of commerce. (Siemen v. Alden (1975), 34 Ill.App.3d 961, 341 N.E.2d 713.) Accordingly, it becomes apparent that the cornerstone of liability rests upon the defendant's active participation in placing the product into commerce for use and consumption by others. One of the underlying reasons for imposing strict liability is to ensure that losses are borne by those who have created the risk and subsequently reaped the profit of marketing the allegedly defective product. Liability will not be imposed upon a defendant who is not a part of the original producing and marketing chain. Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill.2d 17, 329 N.E.2d 785.

In the present case, plaintiff concedes that Dominick's is not in the business of either selling or renting shopping carts. She maintains, however, that although Dominick's gratuitously furnishes the carts to its customers, such is done as an incident of the sale of the items which constitutes Dominick's business. In attempting to hold Dominick's strictly liable, plaintiff relies upon the case of Bainter v. Lamoine LP Gas Co. (1974), 24 Ill.App.3d 913, 321 N.E.2d 744. In that case this court permitted a cause of action in strict products liability against a defendant who supplied a defective tank for storage of gas sold to the plaintiff. The tank was characterized as an incident of the sale of the gas and the consideration given for the gas was deemed to include the use of the tank.

The facts in Bainter differ demonstrably from those in the present case. In Bainter the fluidity of the product compelled supplying the tank as a necessary concomitant of the sale of gas. The shopping cart, on the other hand, can be classified only as a convenient receptacle which the customer may temporarily utilize to move groceries to the checkout or outside to the customer's automobile. Not every customer will use a [49 Ill.App.3d 483] shopping cart. It is our opinion that to hold Dominick's liable under the principles of strict products liability would require an extension of those principles which neither the supreme court in Suvada nor this court in Bainter envisioned. The instant case does not present the Bainter situation where an allegedly defective container which is an integral part of the product disseminated by defendant causes injury or damage. In such a case the container may well be deemed incident and necessary to the sale of the product. In the present case, plaintiff's use of the allegedly defective shopping cart could only be considered as a use of a convenience furnished by [364 N.E.2d 505] [7 Ill.Dec. 344] Dominick's to facilitate its customers' shopping. Any mishap which might occur from availing oneself of such a convenience does not render the store liable under the principles of strict products liability. In this case, the allegedly defective shopping cart was placed into the stream of commerce by the parties responsible for its distribution to Dominick's. The store, like its customer, is merely a user of the shopping cart.

Public policy considerations do not demand that the duty of a storekeeper to keep its premises in a safe condition be elevated beyond the traditional standard of reasonable care. Ryan v. Robeson's, Inc. (1969),113 Ill.App.2d 416, 251 N.E.2d 545. Plaintiff is not denied a cause of action in negligence nor is she precluded from establishing a cause of action in strict products liability against the manufacturer of the shopping cart and others who placed the shopping cart into the stream of commerce and reaped the profits therefrom. We simply hold that Dominick's cannot be considered to be part of the distributive chain within the ambit of the principles of strict products liability.

Plaintiff's reliance upon this court's holding in the case of Nowakowski v. Hoppe Tire Co. (1976), 39 Ill.App.3d 155, 349 N.E.2d 578, is misplaced. In that case plaintiff brought suit based on negligence and strict products liability against a company engaged in the business of repairing, reconditioning, and selling tires. Plaintiff was injured when a "run-out" tire repaired and supplied by defendant exploded as he mounted the tire on a vehicle owned by plaintiff's employer. Defendant contended that the doctrine of strict liability did not apply to it because it was essentially a service organization engaged in the business of repairing and rebuilding equipment owned by its customers. There was evidence which established that defendant often substituted customer equipment with parts from its own stock. On the occasion of plaintiff's injury, defendant had substituted its own parts instead of returning those of plaintiff's employer. For that reason, defendant was found to be a supplier who had placed a defective product into the stream of commerce and, therefore, liable under the principles of strict products liability.

[49 Ill.App.3d 484] For the reasons stated, the order of the circuit court of Cook County dismissing the count of the complaint founded on strict products liability is affirmed.

Order affirmed.

JIGANTI, J., concurs.

SIMON, Presiding Justice, dissenting:

The plaintiff should be permitted to proceed to trial on her strict products liability count. Dominick's was part of the stream of commerce flowing from the cart's manufacturer to the plaintiff. The cart was intended for use by customers of grocery supermarkets. It reached the plaintiff through Dominick's. Therefore, the stream of commerce did not stop, as the majority views it, with the parties who distributed the cart to Dominick's, but continued until the cart reached the customers who were intended to use it and for whose use Dominick's supplied it. The approach of the majority is that Dominick's is the consumer or user of the carts. On the other hand, I regard Dominick's as the supplier of the carts to its customers and, therefore, as a conduit in the marketing chain which brought the carts to their ultimate users, Dominick's customers.

Although, as the majority points out, Dominick's neither sells nor rents shopping carts, it does supply them for its customers. It would be virtually impossible for a customer to make substantial purchases at Dominick's supermarts without the use of a cart. The customer may be regarded as paying for this use because the cart is a cost of doing business which no doubt is reflected in the charge Dominick's makes for its merchandise. The cart not only provides a convenience for Dominick's customers, but also increases Dominick's sales and profits. As the majority states, one of the reasons for imposing strict liability is to ensure that losses are borne by those who reap the profit of marketing an allegedly [364 N.E.2d 506] [7 Ill.Dec. 345] defective product. By supplying the carts, Dominick's fits within this rationale.

The majority cites Ryan v. Robeson's, Inc. (1969), 113 Ill.App.2d 416, 251 N.E.2d 545, for the proposition that public policy does not require a shopkeeper to adhere to a higher standard than reasonable care in keeping his premises safe. I do not read the opinion in that way. After reviewing the evidence introduced at trial, the court did not apply products liability rules because it did not find "one jot of proof that the door handle was imperfect." The court said: "The element of defect the cardinal root from which all other tests of strict liability derive is totally absent." Moreover, that case involved a glass-paneled door leading into the store premises. I believe that in the case of a door, fixture, shelf or other stationary part of the premises, the shopkeeper is the ultimate user rather than a supplier to his customers. And, unlike a shopping cart, such [49 Ill.App.3d 485] fixtures and appliances are not provided for a customer's exclusive use and control while shopping.

Neither is Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill.2d 17, 329 N.E.2d 785, relevant to this appeal. The Peterson complaint was dismissed prior to trial because the used-car dealer was outside the original producing and marketing chain when he sold a defective used car. Dominick's, as I view its role, was in the original chain of distribution which brought the cart to the plaintiff.

It is important to bear in mind that the issue before us in this case is not whether the plaintiff could recover under a strict products liability theory, but only whether her complaint stated a proper cause of action on that count. For the plaintiff to prevail under strict products liability, she would have to establish that the defect which caused the cart to collapse existed at the time the cart left the control of the manufacturer or that Dominick's caused the defect in question and that the condition of the cart when it was supplied to her was unreasonably dangerous. These, however, are matters of proof which are not raised by this appeal because there has been no trial.

I believe the order dismissing the count alleging strict products liability should be reversed so that the plaintiff can have a trial on that theory.

[723 P.2d 197] [222 Mont. 321] Kelly & Halverson, P.C., Billings, Patrick Prindle argued, San Diego, Cal., for plaintiff and appellant.

Moulton, Bellingham, Longo & Mather, Randy H. Bellingham argued, Billings, for defendant and respondent.

WEBER, Justice.

In 1978, Michael Rix was injured when the pickup he was driving was hit from behind by a 1978 General Motors Corporation (GMC) two ton chassis-cab, which had been equipped with a water tank after sale by the GMC dealer. Plaintiff sued GMC on a theory of strict liability in the Yellowstone County District Court. Following a jury verdict for GMC, plaintiff appeals. We reverse and remand for new trial.

Issues

1. Did the trial court properly instruct the jury on strict liability?

2. Is Rule 407, M.R.Evid., applicable to products liability under a [222 Mont. 322] strict liability theory, thus making evidence of subsequent design changes not admissible?

3. Did the District Court abuse its discretion by excluding disputed conversations between two insurance adjusters?

4. Is res ipsa loquitur applicable to products liability under a strict liability theory?

5. Did the District Court abuse its discretion by admitting GMC's cross-examination of Dan Williams?

6. Did the District Court abuse its discretion by refusing to compel GMC to further supplement its discovery responses?

The pertinent portion of the revised pretrial order contained the following stipulated facts:

1. That on the 4th day of August, 1978, on the Shepherd Road, near mile post number 1, in the County of Yellowstone, State of Montana, JOHN STANLEY FISHER was driving a 1978 GMC, two ton chassis-cab equipped with a water tank when it collided with the rear of the 1968 GMC pickup truck being operated by MICHAEL RIX and in which Michael Eaton was a passenger.

2. That at the time and date of the ... accident, the 1978 GMC two ton chassis-cab equipped with a water tank was 4-6 weeks old, having been purchased and delivery taken on or about June 28, 1978.

3. GENERAL MOTORS CORPORATION designed, manufactured in part, assembled, and sold the certain 1978 two ton chassis-cab ...

4. [G]ENERAL MOTORS CORPORATION designed, manufactured in part, and assembled the ... vehicle at its plant in Pontiac, Michigan.

5. That on or about May 25, 1978, Town and Country GMC, an authorized dealer of General Motors Corporation took delivery of the aforesaid chassis-cab at the Silverdome in Pontiac, Michigan, and brought it to Billings.

6. The failure of a brake line carrying hydraulic fluid was a cause of the brake failure occurring on the aforesaid vehicle on August 4, 1978.

[723 P.2d 198] 7. The 1978 two ton chassis-cab ... was equipped with a single brake system offered as the standard system and not a split (dual) system.

8. At the time the ... 1978 two ton chassis-cab ... was designed, manufactured in part, and assembled, ... GENERAL MOTORS CORPORATION had the knowledge, capacity, and capability [222 Mont. 323] to incorporate a split (dual) brake system, and in fact did so as optional equipment, if ordered by purchaser ...

Plaintiff contends he was injured by an unreasonably dangerous 1978 two ton chassis-cab, which had been placed in the stream of commerce by GMC. Premised on a theory of strict liability, he maintains the product was unreasonably dangerous because of both manufacturing and design defects.

The parties stipulated that the accident occurred because of brake failure. Expert testimony from both parties established that the fluids necessary to the braking system had escaped when a brake tube came out of a nut where it fastened to the top of the Hydrovac, a booster unit. Witnesses also testified that the brake tube came out of the nut either because the tube broke or was improperly flared.

Plaintiff contends that the tube broke because there was a manufacturing defect in the tube, basically a bad flare, when the truck came off the assembly line. Plaintiff also contends that the brake system on the truck, a single system, was defectively designed, and argues that GMC's knowledge of available technology coupled with the foreseeable use of the vehicle should have mandated a dual braking system, which provides extra braking power. Plaintiff maintains the accident would have been less severe or would not have happened had the truck been equipped with a dual system.

GMC agreed that the brake tube was defective, but contended that the tube had been altered after it left the GMC assembly line, so that the defective tube was not GMC's responsibility. GMC also contended that the single system was neither a design defect nor unreasonably dangerous, and that the accident would have occurred even if the truck had been equipped with a dual brake system.

I

Did the trial court properly instruct the jury on strict liability?

A party has a right to jury instructions adaptable to his theory of the case when the theory is supported by credible evidence. Cremer v. Cremer Rodeo Land and Livestock Co. (Mont.1981), 627 P.2d 1199, 1200, 38 St.Rep. 574, 576. It is reversible error to refuse to instruct on an important part of a party's theory of the case. Northwestern Union Trust Co. v. Worm (Mont.1983), 663 P.2d 325, 327, 40 St.Rep. 758, 761. When the court undertakes to offer its own instruction on the issues raised, its statements [222 Mont. 324] must be complete. Tacke v. Vermeer Mfg. Co. (Mont.1986), 713 P.2d 527, 534, 43 St.Rep. 123, 131.

With regard to the GMC chassis-cab, plaintiff presented credible evidence to support his theories of defect in manufacture and defect in design. Plaintiff contends that the jury instructions taken as a whole failed to instruct the jury on design defect. The pertinent jury instructions are as follows:

INSTRUCTION NO. 10

I will now define the doctrine of strict liability to you. Keep in mind that this is only a general definition, and must be considered along with the specific instructions on the same topic which follow. The general principle of strict liability as it applies in the State of Montana is:

(1) 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, or to his property, if:

[723 P.2d 199] (a) the seller is engaged in the business of selling such a product, and

(b) it is expected and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

INSTRUCTION NO. 11

The plaintiff must establish three essential elements in order to recover under his theory of strict liability. They are as follows:

First, that the defendant General Motors Corporation manufactured and sold a product which at the time General Motors sold it was in a defective condition unreasonably dangerous to the consumer or user;

Second, that the product was expected to and did reach the ultimate consumer without substantial change in the condition it was in at the time it was sold; and

[222 Mont. 325] Third, that the defective condition in the product proximately caused injury to the plaintiff.

Jury instruction # 10 is the same as § 402A Restatement (Second) of Torts (1965). Plaintiff did not make an objection at the time the instruction was offered. Plaintiff objected to jury instruction # 11 "on the grounds that the second standard improperly states Montana law regarding tracing requirement back to the manufacturer."

Both instructions expressly require that the plaintiff establish the chassis-cab reached the consumer without substantial change from the time of sale. With regard to plaintiff's design defect theory, the instruction required him to prove that the brake system had not been altered after leaving the factory. While the instructions are adequate for a manufacturing defect theory, they misstate design defect law. The plaintiff is not required to prove that there has been no change in condition after sale of a product. So far as plaintiff's design defect issue is concerned, the instruction should have focused on whether GMC improperly designed the product which it placed in the stream of commerce.

The same issue of whether a product must reach the consumer without substantial change in condition was discussed in Kuiper v. Goodyear Tire & Rubber Co. (Mont.1983), 673 P.2d 1208, 40 St.Rep. 1861. In Kuiper, with regard to design defect cases, this Court adopted the trial court's holding that plaintiff prove the product was placed in the stream of commerce by defendant, and not that the product reached the consumer in substantially the same condition in which it left the manufacturer:

The correct law governing plaintiff's proof in a design case is found in Brown, 176 Mont. at 105, 106, 576 P.2d at 716, we stated:

"In order to establish a prima facie case in strict liability based upon the above definition, a plaintiff must prove the following elements:

(1) The product was in a defective condition 'unreasonably' dangerous to the user or consumer;

(2) The defect caused the accident and the injuries complained of; and

(3) The defect is traceable to the defendant."

* * *

"There is no requirement that a design remain in substantially the same condition since obviously the design of the product does not [222 Mont. 326] change from the date of its original manufacture, absent some modification in design which was not an issue in this case.

This issue was considered at length during the instruction conference between the court of counsel and it is the [723 P.2d 200] court's concerted opinion that in a [product liability] design case, the changes in the product through wear, tear, or even abuse do not affect the question of whether the original design was defective and unreasonably dangerous. Design is judged not by the condition of the product, but the state of scientific and technical knowledge available to the designer at the time the product was placed on the market."

Kuiper, 673 P.2d at 1221.

We hold that the District Court committed reversible error in giving jury instructions # 10 and # 11 because they do not contain the law applicable to plaintiff's design defect theory.

We will now discuss strict liability under a manufacturing defect theory. Under a manufacturing defect theory, the essential question is whether the product was flawed or defective because it was not constructed correctly by the manufacturer:

[M]anufacturing defects, by definition, are "imperfections that inevitably occur in a typically small percentage of products of a given design as a result of the fallibility of the manufacturing process. A [defectively manufactured] product does not conform in some significant aspect to the intended design, nor does it conform to the great majority of products manufactured in accordance with that design." (Henderson, Judicial Review of Manufacturers' Conscious Design Choices: The Limits of Adjudication, 73 Col.L.Rev. 1531, 1543). Stated differently, a defectively manufactured product is flawed because it is misconstructed without regard to whether the intended design of the manufacturer was safe or not. Such defects result from some mishap in the manufacturing process itself, improper workmanship, or because defective materials were used in construction.

Caprara v. Chrysler Corp. (1981), 52 N.Y.2d 114, 436 N.Y.S.2d 251, 258, 417 N.E.2d 545, 552.

Restatement (Second) of Torts, § 402A (1965) has been adopted by this Court as the applicable law with regard to strict liability under a manufacturing defect theory. The Restatement view is contained in Instruction # 10, previously quoted in this opinion. In the context of strict liability under a manufacturing defect theory, we conclude that Instructions # 10 and # 11, as given by the District Court, are adequate. On retrial if the plaintiff presents a manufacturing defect theory, Instructions # 10 and # 11 must be limited [222 Mont. 327] so that they apply only to the manufacturing defect aspect of the case.

We now discuss strict liability under a design defect theory. The focus is not whether the product was made according to specifications, but whether the specifications of the manufacturer were in some way defective. We adopt the following statement from Caprara, 436 N.Y.S.2d at 258-59, 417 N.E.2d at 552-53:

In contrast, a design defect is one which "presents an unreasonable risk of harm, notwithstanding that it was meticulously made according to [the] detailed plans and specifications" of the manufacturer ( Robinson v. Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 479, 426 N.Y.S.2d 717, 403 N.Y.2d 440 supra.) Thus, unlike manufacturing defects, design defects involve products which are made in precise conformity with the manufacturer's design but nevertheless result in injury to the user because the design itself was improper.

We have attempted to review the design defect cases of other states as well as law review articles and other discussions of design defect theory. At the present time there are significant contradictions between the approaches of various states, with no single theory being widely adopted. We conclude that it would not be helpful to compare and contrast these theories at length, but instead refer the reader to various works.^[1]

[723 P.2d 201] We do not attempt to set forth an analysis which addresses all facets of strict liability under a design defect theory. We render an opinion only with regard to the following facet of design defect: Was the GMC single brake system defective and unreasonably dangerous in view of the fact that a dual brake system was technologically feasible at the time of manufacture and was offered by GMC for sale? We do not rule upon the fact situation where a claim of design defect is made and where no alternative design is technologically feasible. See O'Brien v. Muskin Corp. (1983), 94 N.J. 169, 463 A.2d 298.

While many courts have attempted to define design defect by the terminology of unreasonably dangerous design or defective design, we do not find these tests to be helpful and choose not to adopt them. However, we do find that § 104B of the Uniform Product Liability Act (1979) contains an excellent analysis of the factors [222 Mont. 328] which may be significant in an alternative design product liability case.^[2]

We concur with the Uniform Act that a balancing of various factors is required on the part of a jury. A jury should be instructed to weigh various factors according to the facts of each case and their own judgment. We conclude that the following elements should be considered for instructional purposes in an alternative design products liability case, recognizing that not all factors may be appropriate in every case, and also recognizing that additional factors should be considered where appropriate:

(1) A manufacturer who sells a product in a defective condition unreasonably dangerous because of a design defect is subject to liability for harm thereby caused to the ultimate user.

(2) A product may be in a defective condition unreasonably dangerous if the manufacturer should have used an alternative design.

(3) In determining whether an alternative design should have been used, the jury should balance so many of the following factors as it finds to be pertinent at the time of manufacture:

(a) The reasonable probability that the product as originally designed would cause serious harm to the claimant.

(b) Consideration of the reasonable probability of harm from the use of the original product as compared to the reasonable probability of harm from the use of the product with the alternative design.

(c) The technological feasibility of an alternative design that would have prevented claimant's harm.

[723 P.2d 202] (d) The relative costs both to the manufacturer and the consumer of producing, distributing and selling the original product as compared to the product with the alternative design.

(e) The time reasonably required to implement the alternative design.

We emphasize that it would be appropriate for the District Court to supplement the foregoing factors based upon the proof submitted in the course of trial. We reemphasize that the foregoing factors should be applied where a manufactured product is claimed to be unreasonably dangerous because a safer alternative design was available to the manufacturer. We do not rule upon other facets of this complex area of the law.

[222 Mont. 329] II

Is Rule 407, M.R.Evid., applicable to products liability under a strict liability theory, thus making evidence of subsequent design changes not admissible?

According to Rule 407, M.R.Evid., subsequent remedial changes cannot be admitted into evidence to prove negligence or culpable conduct:

Rule 407. Subsequent remedial measures.

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

The District Court concluded that Rule 407, M.R.Evid., was applicable to strict liability actions and that evidence of subsequent design modification could only be introduced for "other purposes."

Plaintiff maintains that Rule 407 is inapplicable in the context of strict liability, because neither negligence nor culpable conduct is at issue. Plaintiff argues that he should be allowed to prove that GMC has dropped the single brake system, and installs only the dual brake system on its trucks. GMC contends the fact that it no longer offers single brake systems is irrelevant and inadmissible under Rule 407, M.R.Evid.

In a strict liability action under a manufacturing defect theory, the issue is whether the manufactured product left the factory in a flawed condition because it did not conform to original design specifications. See Caprara, 52 N.Y.2d 114, 436 N.Y.S.2d 251, 258, 417 N.E.2d 545, 552. Under a manufacturing defect theory one assumes that the design is safe and had the product been manufactured in accordance with the design, it would have been safe for consumer use. Here, plaintiff sought to prove a manufacturing defect by showing that the brake line was not manufactured according to specifications because it contained a bad flare, which allowed the brake line to come out of the nut where it was fastened to the top of the Hydrovac. Consequently, under a manufacturing defect theory, evidence of design modification is without probative value and irrelevant because the safeness of the original design is not an issue. In [222 Mont. 330] the context of strict liability under a manufacturing defect theory, we conclude that evidence of subsequent design change is not admissible unless it is to be admitted for some other purpose.

In a strict liability action under a design defect theory, the question is whether the design specifications were partly or totally defective. As stated previously, a design is defective if at the time of manufacture an alternative designed product would have been safer than the original designed product and was both technologically feasible and a marketable reality. Again the time frame under scrutiny is the time of manufacture and not any other time. We conclude that evidence of subsequent design modification is not probative of whether a product was defectively designed at the time of manufacture. We do [723 P.2d 203] recognize that evidence of design change may be probative for other purposes such as technological feasibility and impeachment. As an example, evidence of subsequent design change may be admitted to show technological feasibility where the manufacturer has controverted technological feasibility of an alternative design. See Cohen v. General Motors Corporation (1984), 61 N.Y.2d 261, 473 N.Y.S.2d 378, 382, 461 N.E.2d 864, 868. None of these exceptions were present here.

We hold that Rule 407, M.R.Evid., is applicable to strict liability actions under both manufacturing and design defect theories, making evidence of subsequent design changes generally not admissible.

III

Did the District Court abuse its discretion by excluding disputed conversations between two insurance adjusters?

After the accident, John Fisher, driver of the GMC truck, filed a claim for damages with Farmers Insurance Group [Farmers]. It was estimated that the GMC chassis-cab sustained $2,300 worth of damages. On August 15, eleven days after the accident, Royal Globe Insurance Company of America, which insures GMC, hired General Adjustment Bureau (GAB) in Billings to investigate the accident. Tom Ramboldt investigated and adjusted the accident for GAB.

Ray Olson investigated the accident for Farmers. On September 22, 1978, approximately 48 days after the accident, Farmers paid Mr. Fisher for property damages to the 1978 GMC two ton chassis-cab.

Whether Mr. Olson [Farmers] talked to Mr. Ramboldt [GAB] prior [222 Mont. 331] to settlement with Mr. Fisher [driver of truck] cannot be gleaned from the record. However, after settlement with Mr. Fisher, Farmers subrogated its claim against GMC, and Mr. Olson talked with Mr. Ramboldt on a number of occasions. Mr. Olson was prepared to testify that on at least two occasions Mr. Ramboldt advised him that GMC would accept liability. On both occasions that the alleged admissions were made, Mr. Olson recorded his reflections on a speed memo.

Mr. Rix contends that Mr. Ramboldt's statements are admissible pursuant to Rule 801(d)(2)(D), M.R.Evid., which states:

(d) Statements which are not hearsay. A statement is not hearsay if:

(2) Admission by party-opponent. The statement is offered against a party and is ... (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of that relationship ...

Mr. Rix maintains Mr. Ramboldt's statements, as an agent of GMC, are admissions by a party-opponent and properly admissible. GMC denies that Mr. Ramboldt ever accepted liability. GMC also maintains that even if the statements were admissions by a party opponent, they are inadmissible under Rule 408, M.R.Evid., which protects statements made in the course of compromise negotiations:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible ...

A real problem exists because the facts are not shown in a complete manner in the record. We conclude that the incomplete record eliminates our ability to determine this issue. Should the question be raised at retrial, the District Court should consider all of the facts before ruling on admissibility, including whether Mr. Ramboldt was an agent of GMC and whether he was acting in the course and scope of that agency, and whether compromise negotiations had taken place between Mr. Olson and Mr. Ramboldt.

[222 Mont. 332] Is res ipsa loquitur applicable to products liability under a strict liability theory?

[723 P.2d 204] Mr. Rix contends that his case was prejudiced when his jury instructions on res ipsa loquitur were refused and the District Court failed to substitute other res ipsa loquitur jury instructions. This Court has stated previously that, as a general rule, res ipsa loquitur is applicable to products liability under a negligence theory, but is not applicable to products liability under a strict liability theory. Brothers v. General Motors Corp. (1983), 202 Mont. 477, 658 P.2d 1108, 1110, 40 St.Rep. 226, 229.

In Brothers, while we ruled against res ipsa loquitur under a strict liability theory, we reaffirmed our commitment to a flexible standard of circumstantial evidence, as follows:

Circumstantial evidence, as well as direct evidence, may be used to show a defect. A plaintiff does not meet his burden of proof, however, by merely establishing an accident occurred....

[c]ircumstantial evidence can be met by proof of the circumstances of the accident, similar occurrences under similar circumstances, and elimination of alternative causes ...

Brothers, 658 P.2d at 1109-10 (citations omitted). We conclude this case presents no unique circumstances that would warrant deviation from the general rule. We affirm the District Court's exclusion of res ipsa loquitur jury instructions.

V

Did the District Court abuse its discretion by admitting GMC's cross-examination of Dan Williams?

Dan Williams was the owner of Berkley Machine & Equipment, which shortened the frame of the 1978 GMC two ton chassis-cab so that the truck could be equipped with a water tank. The employee who did the actual shortening of the frame did not testify because he could not be located. On cross-examination, Dan Williams was asked if in the past he had "actually drilled through frames and drilled into a brake line." He answered, "Yes. I think anybody that has done this work very long has done it one time or another." The next question, which logically followed, was objected to on the grounds it called for speculation. The question was "could that have happened when you were working on Mr. Fisher's [1978 GMC]." [222 Mont. 333] With continuing objections to this whole line of questions, Mr. Williams essentially answered that it was possible but not probable.

Mr. Rix contends that the opinion advanced by Williams was not rationally based or helpful to the determination of the facts in issue. According to Rule 701 M.R.Evid., a lay witness may give an opinion when two criteria are established: the opinion is "rationally based on the perception of the witness and helpful to ... the determination of a fact in issue."

Both parties agreed that the brake line was defective, but disagreed as to whether it left the factory in a defective condition or was later altered. GMC maintained the brakeline could have been altered at Berkley Machine and Equipment when the truck frame was shortened.

Undoubtedly, the question of whether Dan Williams' shop could have altered the line was helpful to determining a major fact issue. Also, because the employee who did the actual shortening of the frame was not available as a witness, the owner of the shop was an appropriate witness to respond to questioning with regard to shortening truck frames and altering brake lines. We conclude the District Court did not abuse its discretion in admitting the cross-examination of Dan Williams.

VI

Did the District Court abuse its discretion by refusing to compel GMC to further supplement its discovery responses?

The standard of review is as follows:

The District Court has the inherent discretionary power to control discovery. [723 P.2d 205] That power is based on the District Court's authority to control trial administration. In controlling discovery the District Court must regulate traffic to insure a fair trial to all concerned, neither according one party an unfair advantage nor placing the other party at a disadvantage ...

We will reverse the District Court only when its judgment may materially affect the substantial rights of the appellant and allow the possibility of a miscarriage of justice.

Massaro v. Dunham (1979), 184 Mont. 400, 404-05, 603 P.2d 249, 251-52 (citations omitted).

Rix contends that GMC's failure to answer certain interrogatories denied him the opportunity to utilize significant information. GMC contends it adequately and fully answered the interrogatories.

[222 Mont. 334] The issue was discussed and ruled upon by the District Court. The District Court denied the motion on the basis that the requested interrogatories had been previously answered.

We have reviewed the interrogatories, depositions and supplemental memoranda. We conclude that the information sought by the plaintiff was made available with the exception of the request for the names of particular persons involved in testing and inspecting during manufacturing in 1978. GMC indicated there were thousands of inspections and tests performed by a great number of people. The interrogatories were overly broad and burdensome under the facts of the case. We conclude that the District Court did not abuse its discretion.

We reverse and remand for a new trial in conformity with this opinion.

TURNAGE, C.J., HARRISON, MORRISON, GULBRANDSON and HUNT, JJ., and HASWELL, Retired C.J.,^[*] concur.

[1] Lee v. Butcher Boy (1985), 169 Cal.App.3d 375, 215 Cal.Rptr. 195; Ford Motor Co. v. Pool (Tex.Civ.App.1985), 688 S.W.2d 879; Dart v. Wiebe Mfg., Inc. (1985), 147 Ariz. 242, 709 P.2d 876; Prentis v. Yale Mfg. Co. (1984), 421 Mich. 670, 365 N.W.2d 176; O'Brien v. Muskin Corp. (1983), 94 N.J. 169, 463 A.2d 298; Nerud v. Haybuster Mfg., Inc. (1983), 215 Neb. 604, 340 N.W.2d 369; Lester v. Magic Chef, Inc. (1982), 230 Kan. 643, 641 P.2d 353; Caprara v. Chrysler Corp. (1981), 52 N.Y.2d 114, 436 N.Y.S.2d 251, 417 N.E.2d 545; Boatland of Houston, Inc. v. Bailey (Tex.1980), 609 S.W.2d 743; W. Prosser & W. Keeton, THE LAW OF TORTS, § 99 (5th ed. 1984); W. Kimble & R. Lesher, Products Liability, §§ 131-38 (1979); Birnbaum & Wrubel, "State of the Art" and Strict Products Liability, 21 Tort & Insurance L.J. 30 (1985); Note, The Design Defect Test in Washington: The Requisite Balance, 8 U. Puget Sound L.Rev. 679 (1985); Note, Practicable Alternatives and Design Defects: A Plaintiff's Burden?--Nerud v. Haybuster Mfg., Inc., 18 Creighton L.Rev. 477 (1985); Note, Strict Products Liability And The Risk Utility Test For Design Defect: An Economic Analysis, 84 Colum L.Rev. 2045 (1984); Twerski, From Risk-Utility to Consumer Expectations: Enhancing the Role of Judicial Screening in Product Liability Litigation, 11 Hofstra L.Rev. 861 (1983). See Also the Uniform Product Liability Act (1979) and the proposed interstate commerce "Product Liability Act" (1983), which was never ratified by the U.S. Congress.

[2] 104(B) The Product Was Defective in Design.

The harm was caused because the product was defective in design. In determining whether the product was defective, the trier of fact shall consider whether an alternative design should have been utilized, in light of:

(1) The likelihood at the time of manufacture that the product would cause the harm suffered by the claimant;

(2) The seriousness of that harm;

(3) The technological feasibility of manufacturing a product designed so as to have prevented claimant's harm;

(4) The relative costs of producing, distributing, and selling such an alternative design; and

(5) The new or additional harms that may result from such an alternative design.

[*] Sitting for SHEEHY, J.

[428] Frank B. Morrison, Jr., Morrison Law Offices, Kalispell (argued), for plaintiffs and appellants.

Sherman V. Lohn (argued), Garlington, Lohn & Robinson, Kalispell, for Federated Foods.

Leonard Kaufman and James Ramlow (argued), Murray, Kaufman, Vidal, Gordon & Ogle, Kalispell, for Mark Sorenson, M.D.

GRAY, Justice.

Chad Emery appeals from an order of the Fourth Judicial District Court, Missoula County, granting summary judgment to Federated Foods, Inc., Kidd and Co., Inc., West Coast Grocery Co. and its successor-in-interest Super Valu Stores, Inc. (collectively hereafter Federated Foods). He also appeals an order changing venue to Flathead County on a negligence claim against Mark Sorenson, M.D. We reverse and remand.

We phrase the issues on appeal as follows:

1) Did the District Court err in changing venue to Flathead County on Emery's negligence claim against Dr. Sorenson?

2) Did the District Court err in refusing to consider the affidavits of Dr. Loube and Dr. Dingus?

3) Did the District Court err in granting summary judgment for Federated Foods on Emery's products liability claim?

4) Did the District Court err in declining to rule on the admissibility of a report compiled by the American Academy of Pediatrics?

In 1987, Laura Emery and her two children, Zach, age 7 and Chad, age 2 1/2, lived in Kalispell, Montana. On November 3, 1987, Laura finished her shift as a waitress and stopped at the Price Plus grocery store. At her children's request, she purchased a bag of generic large marshmallows, scanning the label before making her choice. When the family returned home, Laura put the marshmallows on the top shelf of her kitchen cupboard, out of the children's reach.

The next morning around 7:15 a.m., Ken Kerzman, a friend of Laura's, stopped by to shower and to complete paperwork at Laura's kitchen table. Although Laura had not risen from her bed on the living room couch, the children asked her if they could have some marshmallows before breakfast; she consented. Zach climbed onto the kitchen counter and retrieved the bag of marshmallows from the top shelf of the cupboard. Zach gave Chad some marshmallows and took some for himself. Chad began to choke on the marshmallows within several seconds, and pulled on Kerzman's pant leg. Kerzman executed the Heimlich Maneuver, forcing Chad to expel several pieces of marshmallow; Chad continued to choke. Kerzman held Chad upside down and alerted Laura; they drove Chad to the Kalispell hospital.

At the hospital, doctors suctioned a small liquified piece of marshmallow from Chad's airway. Chad sustained severe brain injuries as a result of the incident.

Laura Emery, on behalf of Chad Emery (Emery), filed the second amended complaint against Federated Foods on May 31, 1990. The complaint alleged that the [429] marshmallows were defective and dangerous to the consumer and that, in spite of the significant danger of aspiration by small children, the product contained no warning of such danger. Emery also asserted a breach of warranty claim against Federated Foods. The complaint further alleged that Dr. Mark Sorenson negligently treated Chad Emery at the Kalispell hospital. Claims against two Missoula doctors who treated Emery after he was transferred to Missoula subsequently were settled and dismissed.

Upon motion of Federated Foods, the District Court granted summary judgment for Federated Foods on the products liability and implied warranty claims. After these claims were dismissed, the District Court granted Dr. Sorenson's motion to change venue to Flathead County. The District Court certified the summary judgment order as final pursuant to Rule 54(b), M.R.Civ.P. Emery appeals the orders granting summary judgment and changing venue.

We note initially that, notwithstanding Emery's counsel's statement during oral argument that he also had appealed the dismissal of his breach of warranty claim, Emery did not argue or brief this question. As such, Emery cannot contest the District Court's grant of summary judgment against him on the breach of warranty claim. Nutter v. Permian Corp. (1986), 224 Mont. 72, 75, 727 P.2d 1338, 1340.

Did the District Court err in changing venue to Flathead County on Emery's negligence claim against Dr. Sorenson?

Emery filed his complaint in Missoula County. In Dr. Sorenson's first appearance in the action, he moved for a change of venue to Flathead County; the District Court denied the motion. After the dismissal of the other defendants, Dr. Sorenson renewed his motion to change venue. The District Court granted the motion, concluding that because Dr. Sorenson was the only remaining defendant, venue was proper in the county of his residence. Our review of such legal conclusions is plenary. See Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603.

It is well-settled in Montana that venue will be determined by the status of the parties and pleadings at the time of the complaint or at the time the moving party appears in the action. Boucher v. Steffes (1972), 160 Mont. 482, 485, 503 P.2d 659, 660; Clark Fork Paving, Inc. v. Atlas Concrete & Paving (1978), 178 Mont. 8, 13, 582 P.2d 779, 782; Petersen v. Tucker (1987), 228 Mont. 393, 395, 742 P.2d 483, 484.

In Boucher, the plaintiff filed a complaint against defendant Steffes and the administratrix of defendant Byer's estate in Fallon County, where the administratrix resided. Defendant Steffes moved for a change of venue to Yellowstone County, the county of his residence, after the claim against the administratrix was dismissed. Boucher, 503 P.2d at 660. In Boucher, we held that when there are multiple defendants when the case is instituted, and the defendants who reside in the county where the action was filed are dismissed, the remaining defendant has no right to change venue to his or her county of residence. Boucher, 503 P.2d at 660. We concluded that the status of the parties and pleadings at the time the moving party appears in the action determines venue. Boucher, 503 P.2d at 660.

Applying these principles to the case before us, venue was clearly proper in Missoula County when Dr. Sorenson originally appeared in the action, as the complaint alleged claims against out-of-state corporations and two Missoula doctors. See §§ 25-2-117 and -118, MCA. We conclude, therefore, that the District Court erred in changing venue to Flathead County. To hold otherwise would require courts to reexamine the question of venue whenever the composition of the parties was altered; such a result would generate needless litigation and unduly burden the judiciary.

Finally, Dr. Sorenson asserts that because the District Court's order on Rule [430] 54(b), M.R.Civ.P., does not mention the order changing venue, this Court lacks jurisdiction to determine whether venue was properly transferred. This argument is without merit. Rule 1(b)(2), M.R.App.P., provides for the direct appeal of an order changing or refusing to change venue when the basis for the motion is that the county designated in the complaint is not the proper county. As such, no Rule 54(b), M.R.Civ.P., certification is required.

Did the District Court err in refusing to consider the affidavits of Dr. Loube and Dr. Dingus?

In response to Federated Foods' motion for summary judgment, Emery submitted the affidavits of Dr. Julian M. Loube, a pediatrician, and Dr. Thomas A. Dingus, an industrial engineer. Although this Court was not provided with a transcript of the summary judgment hearing, apparently Federated Foods' only objection to the affidavits was that the subject matter of the lawsuit was not beyond the common understanding of a layperson and, therefore, expert testimony was not required.

In its order granting summary judgment for Federated Foods, the District Court stated:

[t]he Court is not convinced that either Dr. Loube or Dr. Dingus are experts on the allegedly latent design defect or hidden dangers of marshmallows. Furthermore, the affidavits do not offer any evidence upon which this Court can properly base a finding or inference that marshmallows possess any innocuous characteristics, either by design or composition, which would enhance the possibility of choking during consumption.

Emery contends that the District Court improperly refused to consider the affidavits of Dr. Loube and Dr. Dingus.

It is apparent from the District Court's opinion that the affidavits were before the District Court and it did consider their content. Moreover, in the District Court's May 24, 1993, order on remand from this Court, it stated that the affidavits were "relied on by the Court in reaching its decision ... and constituted [a part of] the record." Therefore, although the District Court concluded that the affidavits did not lend any support to Emery's argument, it did not reject the affidavits on the basis argued by Federated Foods or otherwise; nor did it exclude them from consideration. The court having considered the affidavits, we conclude only that the District Court did not err by refusing to consider them; we leave for later determination by that court the question of the admissibility of testimony by Dr. Loube and Dr. Dingus under the Montana Rules of Evidence. The propriety of the court's conclusion regarding the content of the affidavits is analyzed in the following issue.

Did the District Court err in granting summary judgment for Federated Foods on Emery's products liability claim?

In support of its motion for summary judgment, Federated Foods filed a brief and relied on the existing record. In opposition to summary judgment, Emery submitted four affidavits: Dr. Loube, Dr. Dingus, attorney Sharon Morrison, and Laura Emery. He also filed the sworn statement of Zach Emery, four exhibits and an accompanying brief.

In granting Federated Foods' motion for summary judgment, the District Court found that "the manner in which Chad consumed the marshmallows caused his damages," and concluded that no genuine issues of material fact existed. The District Court stated:

[I]t is the manufacturer's duty to warn inadequately informed users about the risk of danger involved with the use of a product ... The evidence in the record clearly supports a finding that the manner in which Chad consumed the marshmallows caused his damages. Under these circumstances, and for the reasons stated, the Court finds that the Defendants were not under any duty as a matter of law to warn the Plaintiffs that infants and toddlers can choke on large quantities of marshmallows eaten all at one time.

[431] Relying on comment (j) of § 402A of the Restatement (Second) of Torts, the court concluded that a seller is not required to warn with respect to products which are only dangerous when consumed in excessive quantities if that danger is generally known and recognized.

Our standard in reviewing a grant of summary judgment is the same as that initially used by the district court. McCracken v. City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894. Summary judgment is appropriate when the pleadings, depositions, affidavits and other documents on file demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The party seeking summary judgment has the burden of demonstrating a complete absence of any genuine factual issues. Mayer Bros. v. Daniel Richard Jewelers (1986), 223 Mont. 397, 399, 726 P.2d 815, 816. The burden then shifts to the non-moving party to show the existence of a genuine issue of material fact in order to withstand the summary judgment motion. Mayer Bros., 726 P.2d at 816.

We have stated on numerous occasions that the purpose of summary judgment is to encourage judicial economy through the elimination of any unnecessary trial. However, summary judgment is never to be a substitute for trial if there is an issue of material fact. Payne Realty v. First Sec. Bank (1992), 256 Mont. 19, 24, 844 P.2d 90, 93. All reasonable inferences that may be drawn from the offered proof must be resolved in favor of the party opposing summary judgment. If there is any doubt regarding the propriety of the summary judgment motion, it should be denied. Payne Realty, 844 P.2d at 93.

After careful review of the record in this case, we conclude that the District Court erroneously resolved disputed issues of material fact and, therefore, exceeded the scope of its role at the summary judgment stage of this case. Although Federated Foods argues that the affidavits submitted do not create genuine issues of material fact because the statements therein relate to non-essential, non-material facts, we conclude that the documents were sufficient to meet Emery's burden in opposing summary judgment. We will briefly review the applicable law in this area to illustrate the materiality and relevance of the proof offered by Emery.

A products liability claim for failure to warn requires proof of the following elements:

1) the product was in a defective condition, "unreasonably" dangerous to the user or consumer;

2) the defect caused the accident and injuries complained of; and

3) the defect is traceable to the defendant.

Riley v. Honda Motor Co. (1993), [259 Mont. 128], 856 P.2d 196, 198, 50 St.Rep. 714, 715; Brown v. North American Mfg. (1978), 176 Mont. 98, 105-6, 576 P.2d 711, 717. In reviewing the District Court's order in this case, we must consider the first two elements.

With respect to the first element, the failure to warn of an injury-causing risk associated with the use of a technically pure and fit product can render the product unreasonably dangerous. Riley, 856 P.2d at 198. The product is automatically defective if it is unreasonably dangerous and a warning is required but not given. Krueger v. General Motors Corp. (1989), 240 Mont. 266, 278, 783 P.2d 1340, 1348; Rost v. CF&I Steel Corp. (1980), 189 Mont. 485, 488, 616 P.2d 383, 385. A product may be defective if purchasers and likely users have been misinformed or inadequately informed about either the risks or the dangers involved in the use of the product or how to avoid or minimize the harmful consequences from such risk. Streich v. Hilton-Davis (1984), 214 Mont. 44, 54, 692 P.2d 440, 445-46.

Emery presented evidence to the District Court in support of his theory that the marshmallows involved in this case were defective and unreasonably dangerous because they lacked an effective warning. Dr. Loube's affidavit related to the potentially [432] hazardous properties of a marshmallow and included the following statements:

Food items are often particularly dangerous in that they change their characteristics and consistency when they are soaked with the liquid secretions that are present in the breathing tubes of the lungs. These secretions usually cause some swelling of the food so that it further obstructs the breathing passage.

.........

A marshmallow is a particularly hazardous confection as a risk of aspiration in children under the age of three. It is sweet and, therefore, has a great deal of appeal to small children. It appears soft and innocuous to parents and does not present the same apparent risk that might be perceived by a parent when considering a piece of hard candy or a jelly bean.

........

An aspirated piece of marshmallow can be very difficult to dislodge. Because it continues to expand after entering the airway it can efficiently obstruct a large breathing passage, perhaps even the trachea (the main breathing tube). An aspirated marshmallow fragment might not be reachable with a finger and could be difficult to dislodge with a Heimlich maneuver.

Further, Dr. Dingus stated that, absent an appropriate warning, it is foreseeable that a reasonable parent would not perceive that marshmallows present a danger to small children.

In spite of this evidence, the District Court stated that "the evidence does not support a finding that marshmallows pose any more of a threat of choking upon consumption than do the majority of other foods." The court also concluded that the affidavits did not offer any evidence upon which the court could base a finding or inference that marshmallows possess any innocuous characteristics, either by design or composition, which would enhance the possibility of choking during consumption.

We emphasize that summary judgment was not intended, nor can it be used, as a substitute for trial of issues of fact. Edgewater Townhouse Assoc. v. Holtman (1992), 256 Mont. 182, 185, 845 P.2d 1224, 1226. The question before the District Court was whether genuine issues of material fact existed regarding the potential danger of aspiration of marshmallows without an appropriate warning. We conclude that the District Court erroneously resolved issues of fact regarding the chemical properties of marshmallows and the foreseeability of the danger of aspiration in children.

Regarding the element of causation, we recently stated in Riley that while causation is ordinarily a question of fact in a failure to warn claim, it may be determined as a matter of law where reasonable minds can reach but one conclusion. Riley, 856 P.2d at 198. We also explained that this element can be satisfied by evidence indicating that a warning would have altered the plaintiff's use of the product or prompted the plaintiff to take precautions to avoid the injury. Riley, 856 P.2d at 198-99.

In Laura Emery's affidavit, she stated that "if I had been warned of the risk of small children choking on marshmallows, I would not have purchased them at all ... I usually read labels on food products prior to buying them. I always take note of warnings on labels about risks to children." At a minimum, pursuant to Riley, this evidence raises a genuine issue of material fact regarding causation.

Nonetheless, the District Court made a factual finding that "Chad's overindulgence caused his injuries" and concluded that "the evidence in the record clearly supports a finding that the manner in which Chad consumed the marshmallows caused his damages." We conclude that a genuine issue of material fact exists regarding the cause of Chad's damages. This question of causation — that is, whether the incident was caused by the manner and quantity of marshmallows eaten or by a product defective and unreasonably dangerous by virtue of the absence or inadequacy of a warning — remains to be decided by the fact-finder.

[433] As a final matter, the District Court went on to state that:

[n]o evidence even suggests that Laura Emery was an inadequately informed user of marshmallows. Likewise, the record is devoid of substantial credible evidence which would support a finding that Ms. Emery was not cognizant of the potential harm presented by the consumption of marshmallows.

Laura Emery's affidavit stated that it did not occur to her that marshmallows presented a risk of choking in small children. Dr. Dingus' affidavit also stated that it is foreseeable that a reasonable parent, would not, without the presence of an appropriate warning, perceive that marshmallows present a danger to small children. Again, the affidavits presented belie the District Court's opinion and its conclusion that no disputed issues of material fact exist here.

In sum, we conclude that the affidavits submitted by Emery in opposition to Federated Foods' motion for summary judgment adequately discharged his burden of demonstrating genuine issues of material fact. We do not suggest that the disputed facts discussed herein are the only disputed facts that remain to be determined in this case; rather, those facts are indicative of the presence of disputed issues of fact and the error in granting summary judgment.

We hold that the District Court erred in granting summary judgment for Federated Foods on Emery's failure to warn claim.

Did the District Court err in declining to rule on the admissibility of a report compiled by the American Academy of Pediatrics?

At the summary judgment hearing, Emery's counsel attempted to introduce into evidence a report to the Food and Drug Administration by the American Academy of Pediatrics entitled "Foods and Choking in Children." Federated Foods' counsel objected to the report as hearsay. Emery contends that the study was offered pursuant to the hearsay exception for public records and reports under Rule 803(8), M.R.Evid., arguing that the report contains factual findings resulting from an investigation made pursuant to authority granted by law. Both sides briefed the question following the summary judgment hearing. The District Court did not rule on the admissibility of the report and does not mention it in its opinion and order on summary judgment.

We conclude that resolution of this issue is unnecessary and premature at this time. This Court was not provided with a transcript of the summary judgment hearing and the record before us does not reflect whether the District Court admitted or rejected the report. Furthermore, the thrust of the report's conclusions is duplicated in Dr. Loube's affidavit. Because we have determined that summary judgment was inappropriately granted based on the affidavits offered by Emery, the contents of the report are not necessary for our resolution of the summary judgment issue. In the event the report is offered into evidence at trial, the District Court will address the question of admissibility pursuant to the Montana Rules of Evidence.

Reversed and remanded for further proceedings consistent with this opinion.

HUNT, TRIEWEILER, NELSON and WEBER, JJ., concur.

TURNAGE, Chief Justice, dissenting:

I respectfully dissent.

Two-and-one-half-year-old Chad Emery choked on a marshmallow and sustained a permanent injury. Everyone is distressed at this unfortunate incident. However, the issue facing this Court is whether such incident is the basis for a products liability claim for failure of the respondents to warn Chad Emery's mother of the danger of allowing her son to eat a marshmallow.

The majority opinion, in citing this Court's prior case law in Brown v. North American Mfg. (1978), 176 Mont. 98, 105, 576 P.2d 711, 716, and Riley v. American Honda Motor Co., Inc. (1993), [259 Mont. 128], 856 P.2d 196, 198, 50 St.Rep. 714, 715, correctly states the established rule:

[434] A products liability claim for failure to warn requires proof of the following elements:

"1) the product was in a defective condition, `unreasonably' dangerous to the user or consumer;

"2) the defect caused the accident and injuries complained of[.]" [Emphasis supplied.]

The majority opinion then further states:

The question before the District Court was whether genuine issues of material fact existed regarding the potential danger of aspiration of marshmallows without an appropriate warning. We conclude that the District Court erroneously resolved issues of fact regarding the chemical properties of marshmallows and the foreseeability of the danger of aspiration in children.

In the real world of life as it is, the marshmallows in this case were not a product in a defective condition and thereby unreasonably dangerous to the user or consumer. If marshmallows are unreasonably dangerous to eat without a warning, then so would be nearly every conceivable food item that a two-and-one-half-year-old child would try to eat; and I submit that children of that age will try to eat anything and everything.

The possibility of a small child choking on nearly all food items is, or should be, a matter of common knowledge to all adults.

The net result of the majority opinion may well be that warnings must be placed on nearly every food item available to the public if the provider is to avoid litigation for a claim of products liability — an interesting challenge for the providers of edible items.

I understand the majority concern about the limits on summary judgments and district judges granting summary judgments when genuine issues of fact exist.

In this case as a matter of law, however, the essential element of a products liability claim is missing — the marshmallow was not in a defective condition and unreasonably dangerous.

I would affirm.

HARRISON, J., concurs.