recognizing that a product is unreasonably dangerous when it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics”
How later courts described this case
- recognizing that a product is unreasonably dangerous when it is “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics”
- adopting theory of strict products liability and noting in course of discussion thereof that liability may be imposed on manufacturer only if operative defect “existed in the product ... at the time the product left the manufacturer’s possession and control”
- stating that statutory comparative negligence scheme has “no application to manufacturers’ products liability, for its application is specifically limited to negligence actions”
- holding that to prevail on strict liability claim for a defective product, plaintiff must show the product was defective when it left the defendant’s “possession and control”
Written by the judges who cited it.
The opinion
WILLIAMS, Vice Chief Justice
(concurring in result in part and dissenting in part).
Although I am aware of the modern trend toward the doctrine of strict liability in tort and would concur in its adoption in a proper case, I do not believe that this is such a case.
I do not agree with the majority that “The issue for us in this case is the present and future of products liability litigation in Oklahoma.” I am unable to find reference to such an issue anywhere in the pleadings, trial proceedings or briefs on appeal.
Plaintiff’s petition very clearly stated a cause of action for damages for breach of implied warranty; she alleged that “breach of the implied warranty of fitness as aforesaid by the defendants was the direct and proximate cause of this plaintiff’s injuries and damages * * * After a careful examination of the record before us, I am convinced that both parties tried the case on the theory that the determinative issue of fact was the question of proximate cause. I find persuasive evidence in the record warranting a determination by the jury that the proximate cause was not the failure of an allegedly defective seat back adjustment mechanism, but that the accident and plaintiff’s damages were proximately caused by her own conduct in driving while intoxicated. I therefore agree that the judgment of the trial court based upon jury verdict for defendant should be affirmed.
At the conclusion of the evidence, and without objection from plaintiff, the trial *1369 court instructed the jury on the law regarding actions for damages for breach of implied warranty. Plaintiff presented no requested instructions of any kind, and made no general request that the jury be instructed under the doctrine of strict liability in tort, or “manufacturers’ products liability.”
In her brief on appeal, plaintiff argues five propositions: four of them concern the trial court’s use of the phrases “contributory negligence” and “assumption of risk” in a breach of warranty action, and the fifth concerns an allegation of misconduct of a juror. Under the facts and circumstances of this case, I believe these alleged errors at most were harmless. There is no allegation of error which in any way involves the doctrine of strict liability in tort or “manufacturers’ products liability”.
In summary, neither in the pleadings nor in the trial of the case, nor in the allegations and arguments in the briefs on appeal do I find any issue concerning the doctrine of strict liability in tort “or manufacturers’ products liability”.
In literally dozens of cases, this Court has announced and followed rules to the effect that a case will not be reviewed on a theory different from that on which it was tried below: that an issue not presented in the trial court and properly preserved will not be considered on appeal; and that this Court will not consider abstract questions. I am aware that there are exceptions to these rules and that, for instance, jurisdictional questions may be raised for the first time on appeal. No jurisdictional question is presented in the case now before us, and I know of no other exception to these rules that is applicable here.
The majority opinion shows that this Court’s remarks about the doctrine of strict liability in tort in Marathon Battery Co. v. Kilpatrick, supra, were, in effect, mere dictum, by pointing out that the case was decided under implied warranty principles. ' It is believed that the comment is applicable to the opinion of the majority in this case. In the opinion in this case which was pleaded, tried and briefed on appeal as an implied warranty case, there appears considerable discussion of the doctrine of strict liability in tort, therein called “manufacturers’ products liability”, and in the syllabus there are announced twelve points of law not deemed by this writer to be even indirectly applicable to the issues presented in the trial court or argued on appeal. While in Marathon, the comments about strict liability in the body of the opinion are properly characterized as dictum, in the instant case much of the majority opinion and the syllabus itself appears to me to be dictum.
I have not yet concluded nor have I determined in my mind this Court can properly conclude that a defendant in a case pitched on the remedy herein created or re-named may lawfully be prohibited from asserting the defenses otherwise available to him under applicable common law principles in a given action absent lawful legislation dispensing with such defenses.
In my view, a proper case in which to adopt the doctrine of strict liability in tort would be one in which plaintiff had at least tried to rely upon that doctrine at the trial court level, even if only alternatively, and the parties had furnished briefs pro and con on the subject. In such a situation, no violence would be done to the basic principle of the separation of the powers of government, because of the broad common law principle that when the reason for a rule changes, the rule changes with it. Under that principle and 12 O.S. 1971 , § 2, which provides that the common law “ * * * as modified by * * * judicial decisions and the condition and wants of the people * * * shall remain in force in aid of the general Statutes of Oklahoma” this Court could adopt the doctrine of strict liability in tort in a proper case without violating the principle of the separation of the powers of government and without ignoring well settled principles of appellate review.
Except for agreeing with the result (af-firmance of judgment for defendant) I respectfully dissent.