Bilotta v. Kelley Co., Inc.

SIMONETT, Justice

(concurring specialty)-

In a design defect case, I do not think it can be said that either negligence or strict *626 liability is “broader” than the other. The most that can be said is that, depending on the facts of a particular case, the proof needed to survive a defendant’s motion for directed verdict may vary, so that one theory is “better” than the other for purposes of recovery. In other words, the distinctions between strict liability and negligence may be important to the trial court in deciding whether the case goes to the jury, but once the case is submitted, insofar as the jury is concerned, any distinction between strict liability and negligence is nonexistent where the claim is for design defect or failure to warn. For a good discussion, see Steenson, The Anatomy of Products Liability in Minnesota: The Theories of Recovery, 6 Wm. Mitchell L.Rev. 1 (1980).

The problem then becomes how to submit a design defect to the jury. I agree with the majority opinion that this can be done “on a single theory of products liability.” When the claim is design defect, something along the lines of the modified JIG instruction discussed in the majority opinion should suffice. This instruction reconciles the strict liability notion of “defect” with the negligence concept of “reasonable care.” One could, I suppose, label this instruction either a negligence or a strict liability instruction because it is something of both. 1

How the jury instruction is labeled is unimportant except as it bears on how the special verdict question is framed. Actually, the instruction is simply about unsafe design. Thus the special verdict question might be (as a suggestion): “Was the product unsafely designed?” Putting the question this way avoids the label of either strict liability or negligence; at the same time, this wording permits flexibility in drafting the accompanying jury instruction, 2 is understandable to the jurors, and avoids confusion with any other liability questions that might be on the special verdict form.

In most product liability cases, there will be several liability questions. In this case, for example, the claims against the manufacturer include an unsafe design question and a negligence question, with the jury instructed that negligence might be found for failure to warn or failure to instruct. In another case, both of these questions might appear on the special verdict form plus, say, a defective condition question, accompanied by the classic strict liability instruction for a manufacturing flaw in the product. Or the negligence question might be accompanied by an instruction that negligence could be found in failure to inspect *627 as well as in failure to warn or instruct. To avoid perverse verdicts and to make the issues understandable to jurors, the important thing is to have separate questions on each liability issue and appropriate instructions for each question.

. If plaintiffs claim is for failure to warn or instruct, a separate negligence instruction on this subject will do. Another problem with the case before us is the jury was told that a product could be in a defective condition not only in its design but "in the instructions necessary for its safe use.” After the jury was next told that the manufacturer had "a duty to use reasonable care” to give adequate instructions, the trial court went on to give a separate negligence instruction on the manufacturer’s “duty to give a reasonable warning” as to dangers inherent in the use of the product. Although appellant does not raise the issue, for the jury, under these instructions, to have found the defendant manufacturer negligent but its product not to be in a defective condition would seem perverse.

To avoid this needless risk of contrariness, the issue of failure to warn or instruct should be removed from any strict liability defective condition instruction and be submitted as a separate negligence issue.

. If one were to meld strict liability and negligence for unsafe design, a tentative draft of such an instruction, which is a close variation of the majority’s proposal, might be along these lines:

A product is unsafely designed if, by reason of its design, the product is in a defective condition unreasonably dangerous to the user. The manufacturer has a duty to use due care to design a product that does not create an unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is put to its intended use or to any unintended yet reasonably foreseeable use.

The reasonable care to be exercised by a manufacturer in the design of a product will depend on all the facts and circumstances, including, among others, a balancing of the likelihood of harm and the seriousness of that harm against the feasability and burden of any precautions which would be effective to avoid the harm.

This is only a suggestion. The trial bench and bar is best situated to devise the appropriate instructions.