stating that to be held liable for failing to warn, a manufacturer must have “knowledge, or by application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ... danger”(internal quotation marks omitted) (alteration in original) (quoting Restatement (Second) of Torts § 402A, Comment j)
How later courts described this case
- stating that to be held liable for failing to warn, a manufacturer must have “knowledge, or by application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ... danger”(internal quotation marks omitted) (alteration in original) (quoting Restatement (Second) of Torts § 402A, Comment j)
- holding that a “seller is not strictly liable for failure to warn unless the seller has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the . . . danger” (internal quotation marks and citation omitted)
- stating that to establish actual malice in products liability cases “plaintiff must prove (1) actual knowledge of the defect on the part of the defendant, and (2) the defendant’s conscious or deliberate disregard of the foreseeable harm resulting from the defect”
- holding that a seller “is not strictly liable for failure to warn unless the seller has ‘knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ... danger’ ”
Written by the judges who cited it.
Distinguished
Distinguished by McNeil-Williams v. DePuy Orthopaedics, Inc., 384 F. Supp. 3d 570 (2019)
Id. Williams thus is inapposite because it applied Maryland law, not North Carolina law, and it expands such law in a manner not consistent with North Carolina law.
Distinguished by Montgomery Ward v. Wilson, 339 Md. 701 (1995)
Zenobia dealt with non-intentional tort actions and, thus, is inapposite.
The opinion
McAULIFFE, Judge,
concurring.
I join in all except Part IY of the Court’s opinion. With respect to Part IV, I concur in the result. I agree that we should abandon the “arising out of a contract” distinction discussed in Part IV A of the Court’s opinion and that we should adopt the “clear and convincing” standard of proof for the award of punitive damages in any case. Moreover, I agree with the specific test adopted by the Court for the availability of punitive damages in a products liability case.
I write separately only to point out that although the Court’s opinion makes cléar that “actual knowledge of the defect and deliberate disregard of the consequences” will be considered the equivalent of “evil motive,” “intent to defraud,” or “intent to injure” and therefore within the definition of “actual malice” in products liability cases, Court’s opinion at 461, 601 A.2d at 653 it does not state whether an “equivalent” state of mind will be recognized in other non-intentional torts. The Court’s opinion should not, I suggest, be interpreted as excluding that possibility.
There is a state of mind that falls just short of an intent to injure, but is sufficiently egregious to be treated as the *477 legal equivalent of an intent to injure for criminal as well as civil purposes. Judge Moylan, writing for the Court of Special Appeals in DeBettencourt v. State, 48 Md.App. 522, 530 , 428 A.2d 479 , cert. denied, 290 Md. 713 (1981), provides an apt definition:
It is ... that the willful doing of a dangerous and reckless act with wanton indifference to the consequences and perils involved, is just as blameworthy, and just as worthy of punishment, when the harmful result ensues, as is the express intent to kill itself. This highly blameworthy state of mind is not one of mere negligence____ It is not merely one even of gross criminal negligence____ It involves rather the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not. The common law treats such a state of mind as just as blameworthy, just as anti-social and, therefore, just as truly murderous as the specific intents to kill and to harm.
More recently, see Robinson v. State, 307 Md. 738, 744-46 , 517 A.2d 94 (1986).
The Court’s test for liability for punitive damages in a products liability case — that the defendant had actual knowledge of the defect and proceeded with a conscious or deliberate disregard of the foreseeable harm resulting from the defect — is the civil analogue of DeBettencourt’s “deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not.” The Court thereby acknowledges that a mental state sufficiently egregious to support a conviction of murder is sufficiently egregious to support the imposition of punitive damages.
This rationale, defined precisely and shorn of terms which might suggest that a lesser state of mind would suffice, should apply with equal force in all non-intentional tort cases. A person who is actually aware that his action *478 involves a clear and serious danger of substantial harm to the plaintiff or anyone in the plaintiffs class, and who unreasonably takes such action with flagrant indifference as to whether anyone will be harmed or not, should be liable for punitive damages if his conduct causes the foreseeable harm. This type of outrageous conduct, being just short of intentional harm, warrants such a sanction. Although the requisite conduct and state of mind will often include gross negligence, the test would not be met by a showing of gross negligence alone.
I assume that the Court does no more than to leave this discussion for another day.