Brown v. Western Farmers Association

O’CONNELL, C. J.,

dissenting.

The majority holds that the complaint does not allege facts from which it could be found that the defective chicken feed was “unreasonably dangerous” within the meaning of Section 402A of the [Restatement (Second) of Torts (1965).

The complaint alleged that the defect in the feed “was such that when the feed was fed to the plaintiffs’ chickens, the chickens were affected adversely and damaged thereby.” As we noted in Heaton v. Ford Motor Co., 248 Or 467 , 435 P2d 806 (1967), the term “unreasonably dangerous” in the context of § 402A “means dangerous to an extent beyond that which would be contemplated by the ordinary purchaser.” It is clear that the section was intended to include the danger of damaging property as well as injuring the user or consumer. See Comment d of § 402A, Restatement (Second) of Torts. The word “dangerous” may not be the best word to describe a risk of harm ,to property, but it was adopted by the Restatement and I see no compelling reason for attempting to refine the language of the Section.

Since damage to property falls within the ambit of § 402A, the only question is whether the damage caused by the feed was that which would be contemplated by the ordinary purchaser. I should think that if the feed had killed the chickens, the damage would *484 clearly be sufficient to bring the defect within § 402A. If the damage falls short of this, but disables the chickens from properly performing the functions that give chickens their value as property, I am unable to see why § 402A would not be applicable.

The majority opinion reads plaintiffs’ brief as arguing that a product is unreasonably dangerous under § 402A in every ease where the product does not meet the reasonable expectations of an ordinary consumer. I do not so interpret plaintiffs’ argument. Plaintiffs argue only that if a defective product causes damage there is a right to recover, but only if the article is found to be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.

The majority opinion would permit recovery for property damage under § 402A only if the product were found to be unreasonably dangerous to human life. This seems to be the import of the court’s statement that “[t]he only two decisions by this court in which Section 402A has been applied to property damage have been cases in which the defective product also posed an unreasonable danger to human life and safety.” It is not illogical to argue that recovery under § 402A should be limited to damage for personal injuries, ① but it is incomprehensible to me to say that a product must constitute a risk of injury to human life before recovery will be allowed for property damage, even though in the particular instance in which the property damage occurred no person suffered any harm. Apparently the court would hold that recovery would be allowed for the damage to the chickens if it *485 could be shown, that the feed contained a chemical which could, but did not, damage plaintiffs hands. This is indeed a strange doctrine. The majority denies that it has embraced this doctrine, but a careful reading of the opinion reveals that the distinction made by the court between a product which is unreasonably dangerous and one which is not either must be regarded as resting on the reasoning I have described or as being based upon no reasons whatsoever.

The trial court struck the allegations of loss of profit, apparently upon the basis of our holding in Price v. Gatlin, 241 Or 314 , 405 P2d 502 (1965). For the reasons set forth in my dissent in that case, I would not preclude recovery for loss of profits in the present case.

I have previously expressed the opinion that this type of ease should not be dealt with under § 402A of the Restatement (Second) of Torts since it is controlled by the Uniform Commercial Code (ORS 72.7140 — 72.7150). See Markle v. Mulholland’s, Inc., 265 Or 259 at 273 , 509 P2d 529 at 536 (1973), specially concurring opinion. However, the court has taken the contrary view and I am bound by it. That being so, § 402A is controlling and I would interpret it to permit recovery in the present case.

See concurring opinion by Holman, J. in Price v. Gatlin, 241 Or 314, 318 , 405 P2d 502, 503 (1965).