Ziegler v. Kawasaki Heavy Industries, Ltd.

GILBERT, Chief Judge. This appeal involves a strict liability action by Craig C. Ziegler against Kawasaki Heavy Industries, Ltd., et al., 1 (jointly referred to as “Kawasaki”) in the Circuit Court for Baltimore City for the enhanced personal injuries he sustained as the result of an alleged design defect in a Kawasaki motorcycle. ⁶¹⁵ Ziegler purchased a Kawasaki KZ 650 motorcycle in July 1980. Approximately two months later he was struck by an automobile which made a left turn into the side of the motorcycle. Ziegler sustained serious lower left leg injury requiring extensive medical treatment.

The suit filed by Ziegler alleged that Kawasaki knew or should have known that “structural modifications to the frame of a motorcycle ... can be incorporated into the design of the motorcycle to prevent or lessen the severity of lower extremity injuries to the operator ... but failed to manufacture and/or sell motorcycles into which the design safety features have been incorporated.” The Ziegler complaint contained four counts: (1) negligence; (2) a claim of breach of express and implied warranties; (3) an assertion of strict liability under § 402A of the Restatement (Second) of Torts (for the defective design); and (4) an alleged action of liability under § 402B of the Restatement (Second) of Torts (for misrepresentation in advertising). Prior to trial, Ziegler voluntarily dismissed counts 1 and 2 (negligence and breach of warranties). He further limited his claims to those injuries which he could show were enhanced by the alleged design defect. To remove from the case the joint tort-feasor, Barbara Wittig, the operator of the automobile that struck him, Ziegler settled his claim against her and executed a joint tort-feasor release. 2 After Ziegler had concluded his evidence at trial, Judge Mary Arabian granted Kawasaki’s motion for judgment as to count four but denied the motion as to count three, the claim of strict liability under § 402A of the Restatement (Second) of Torts.

At the conclusion of all of the evidence, Kawasaki renewed its motion for judgment. Judge Arabian reserved ruling thereon and sent the case to the jury. When, after three days of deliberations, the jury was unable to render a unanimous verdict, 3 the trial court declared ⁶¹⁶ a mistrial. By operation of Md. Rule 2-532(b), the motion for judgment was transformed into a motion for judgment non obstante veredicto. 4 Judge Arabian granted the motion, ruling that, as a matter of law, “reasoning minds could not differ as to the question of whether there was a defect in the design.” Initially, Ziegler, in this Court, posited four issues, two of which related to alleged erroneous instructions to the jury, one averred error, on the trial judge’s part, in not directing a verdict in Ziegler’s favor, and a fourth charged that the judge erred in failing to submit to the jury the issue of the necessity of a warning to Kawasaki motorcyclists as to the risk of leg injury. 5 After the appellees’ brief had pointed out defects in appellant's issues, Ziegler promptly restructured the issues in a reply brief.

That reformation, reduced to its common denominator, results in the issue before us being: Did the trial court err in granting a judgment n.o.v. for the defendants? 6 ⁶¹⁷ We will focus on that question after we dispose of Ziegler’s repeated allegation, at trial as well as on appeal, that the trial court erred in not submitting to the jury Kawasaki’s “failure to warn” Ziegler of the unreasonable danger in riding a motorcycle. Defect Due to Failure to Warn Count three, paragraph 27 of the complaint expressly limited the strict liability claim to one defect, scilicet: “That the aforedescribed motorcycle was defective at the time it was sold to the Plaintiff in that it contained a harmful defect inasmuch as it did not include a design modification or other equipment which would prevent or minimize lower extremity injuries to the operator in side impact collisions.” (Emphasis added.) During the trial, Ziegler attempted to expand his paragraph 27 averment to include a “failure to warn” him of the dangerous and unsafe characteristics of the motorcycle. He maintained that the allegations contained in his negligence count which relate to failure to warn had been incorporated by reference into his strict liability count. We think Judge Arabian properly rejected appellant’s reasoning.

The judge correctly ruled that “failure to warn” was not a matter to be considered in this case since it was a separate claim that had not been alleged as a defect in count 3. ⁶¹⁸ W. Keeton in Prosser and Keeton on Torts (5th ed.1984) states, at 645, that a product may be defective for any of the following three reasons: “(1) a flaw in the product that was present in the product at the time the defendant sold it; (2) a failure by the producer or assembler of a product adequately to warn of a risk of hazard related to the way the product was designed; or (3) a defective design.” See generally E.S. Digges & J.G. Billmyre, Product Liability in Maryland: Traditional and Emerging Theories of Recovery and Defense, 16 U.BaltL.Rev. 1, 11-19 (1986). Count one of Ziegler’s complaint contained allegations that Kawasaki acted negligently by failing “to advise the Plaintiff of the dangerous and unsafe characteristics of the motorcycle designed, manufactured, distributed and/or sold by them.” Although that and other allegations were incorporated by reference in count three, the allegations did ' not assert that failure to warn was a defect in the product which thereby made it unreasonably dangerous. What Ziegler actually averred was that the conduct of the manufacturer was unreasonable. Since the negligence claim was voluntarily dismissed before trial, the failure to warn issue was properly excluded from jury consideration.

The purpose of pleadings is that the parties litigant may be appraised of the matters in controversy. Pearce v. Watkins, 68 Md. 534 , 13 A. 376 (1888). It is, therefore, necessary that the cause of action be alleged with reasonable accuracy, certainty, and clearness. Campbell v. Welsh, 54 Md.App. 614 , 460 A.2d 76 (1983).

While the Maryland Rules provide that statements in a pleading may be adopted by reference, Rule 2-303(d), they make transpicuous that each averment of a pleading shall be simple, concise, and direct. Inasmuch as the only defect alleged in count three was that of a “design defect,” we decline to address the issue of the validity, vel non, of the claim of failure to warn. Adoption by reference is useful as a matter of convenience, but it may not be used to transform a negligence claim into one of strict liability. ⁶¹⁹ The Design Defect The question relating to design defect may be properly stated: Was the evidence adduced by Ziegler sufficient to generate a jury issue regarding the existence of a design defect in the motorcycle? The answer, of course, depends on what kind of evidence Ziegler was required to produce in order for the jury to determine the existence of a defect.

For the first time in this State, the Court of Appeals in Phipps v. General Motors Corp., 278 Md. 337 , 363 A.2d 955 (1976), adopted strict liability as a basis for a product liability action. See Singleton v. International Harvester Co., 685 F.2d 112 (4th Cir.1981). See also Gilbert, Maryland Tort Law Handbook, § 12.1 (1986). Specifically adopting the elements set out in § 402A of the Restatement (Second) of Torts (1965), 7 the Phipps Court commented that it is a simpler matter to apply § 402A in manufacturing defect cases than in those of design defect.

Phipps, 278 Md. at 344-45 , 363 A.2d 955 ; Singleton, 685 F.2d at 114 . See also generally Gilbert, § 12.4.1 at 112. To recover under the authority of § 402A, a plaintiff need not prove any specific act of negligence on the part of the seller, but the plaintiff must prove that the product was in a defective condition and unreasonably dangerous at the time the product was sold. Gilbert, § 12.2 at 109. “Proof ⁶²⁰ of one factor but not the other will defeat the plaintiffs claim.” Id.

The two conditions are explained in terms of consumer expectations in the official comments to § 402A, Restatement (Second) of Torts (1965). Comment g explains that a “defective condition” is present in those situations where the “product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.” Comment i defines an “unreasonably dangerous” product as one that is “dangerous to an extent beyond that which would be [the contemplation of] the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” When a defective condition is the result of an error in the manufacturing process, ie., if the product does not conform with the manufacturer’s own standards, the consumer expectation test of § 402A is easier to apply. Phipps, 278 Md. at 344 , 363 A.2d 955 . Section 402A is more difficult to apply when the alleged defect “is the result of the design process so that the product causing the injury was in a condition intended by the manufacturer____” Id. at 344-45 , 363 A.2d 955 .

Although the inquiry is concentrated on the product rather than the conduct of the manufacturer, in a design defect case, § 402A requires “a weighing of the utility of risk inherent in the design against the magnitude of the risk.” Phipps, 278 Md. at 345 , 363 A.2d 955 . See also Troja v. Black & Decker Mfg. Co., 62 Md.App. 101, 107 , 488 A.2d 516 (1985). The analysis used to determine whether the defect created an unreasonable danger retains the elements of a traditional negligence inquiry.

Phipps, 278 Md. at 345 , 363 A.2d 955 . “The question of whether a product is unreasonably dangerous is a balancing process—weighing the public good against the individual occurrence.” Gilbert, § 12.6 at 114. There are cases, however, where the risk is never “reasonable,” and no balancing is required. Phipps, 278 Md. at 345-46 , 363 A.2d 955 ; Troja, 62 Md.App. at 108 , 488 A.2d ⁶²¹ 516. Examples of “inherently unreasonable risks” include the steering mechanism of a new automobile causing the car to swerve off the road, the drive shaft of a new automobile separating from the vehicle when it is driven in a normal manner, or where the brakes of a new automobile suddenly fail.

Phipps, 278 Md. at 345 , 363 A.2d 955 . Digges and Billmyre explain that an “ ‘inherently unreasonable risk’ type of design defect is similar to a manufacturing defect because in both the product does not function as the manufacturer intended.” 16 U.BaltL.Rev. at 13. Phipps held that, where an “inherently unreasonable defect” is involved, the defective condition and the unreasonably dangerous requirements are met if the condition causing the injury is not one that would be contemplated by an ordinary consumer. 278 Md. at 345-46 , 363 A.2d 955 . See Digges and Billmyre, 16 U.Balt.L.Rev. at 13.

In a design defect case that is not included in the limited category of inherently unreasonable risks, the issue turns into “whether a manufacturer, knowing the risks inherent in his product, acted reasonably in putting it on the market.” 8 Singleton, 685 F.2d at 115 . The question of the alleged defects then depends on “the balancing of the utility of the design and other factors against the magnitude of ⁶²² that risk.” Phipps, 278 Md. at 348 , 363 A.2d 955 . See also Troja, 62 Md.App. at 108 , 488 A.2d 516 . The risk/utility test is the measure in the case at bar, rather than the “consumer expectation test.” Ziegler asserts that the risk/utility test has not been adopted in Maryland, and Kawasaki contends that the absence of a “malfunction” precludes the finding of any defect.

Both parties rely on Kelley v. R. G. Industries, Inc., 304 Md. 124 , 497 A.2d 1143 (1985), to support their respective positions. Since Phipps first approved the risk/utility test, Maryland has also adopted the balancing test for determining product defectiveness where the defect is not inherently unreasonable. See Valk Mfg. Co. v. Radha Rangaswamy, et al., 74 Md.App. 304 , 537 A.2d 622 (1988); C & K Lord v. Carter, 74 Md.App. 68 , 536 A.2d 699 (1988), (Alpert, J.; Garrity, J., dissenting); Troja, 62 Md.App. at 109 , 488 A.2d 516 ; Singleton, supra.

See also Digges & Billmyre, 16 U.BaltL.Rev. at 14. That balancing test was also recognized in Kelley . There, the Court rejected the plaintiffs argument that the handgun was defective, holding that simply because a product may be dangerous does not make it defective. “For the handgun to be defective, there would have to be a problem in its manufacture or design, such as a weak or improperly placed part, that would cause it to [mis]fire or otherwise malfunction.” Id. [304 Md.] at 136, 497 A.2d 1143 . See also 16 U.Balt.L.Rev. at 13, n. 81.

The Kelley Court reasoned that neither the “consumer expectation” test nor the “risk/utility” test were applicable because the injuries complained of were the result of the gun’s “normal function”; nothing went “wrong” with the product. Kelley, 304 Md. at 136-38 , 497 A.2d 1143 . The “malfunction” requirement that the Kelley Court imposed as a prerequisite before either test is applicable must be read within the narrow context of handguns. See C & K Lord, Inc. v. Carter [74 Md.App.] at 85, 536 A.2d 699 .

It is not the “normal function” of most products, including a motorcycle, ⁶²³ to bring about serious injury, see Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240, 1247 (Colo.1987). Yet the absence of a safety device may clearly be a design defect, even in a product which does not “malfunction.” Professor Wade has stated: “Under [the word]