Opinion
No. HHB CV07 5003950
October 30, 2008
MEMORANDUM OF DECISION ON MOTION TO STRIKE SPECIAL DEFENSE
The plaintiff Anita Rogers brings this products liability action against these defendants for injuries she sustained while using a retractable loading ramp on a rental truck. She has filed this action against Budget, who is alleged to have leased the truck to John Sons; John Sons who is alleged to have leased the truck to the plaintiff's son with the under-standing that the truck would be used by him or other consumers; Dethmers Manufacturing Company ("DEMCO") who is alleged to have "manufactured, designed, distributed, and/or sold" the loading ramp and components to Utilimaster; and Utilimaster who is alleged to have "manufactured, designed, distributed, and/or sold" the utility body of the truck to Budget.
In addition to denying that it placed a defective product into the stream of commerce, the defendant Utilimaster has filed a special defense that reads as follows:
The Defendant Utilimaster Corporation merely fabricated the vehicle and associated component parts referenced in the Plaintiff's Complaint, in conformity with the design specifications supplied to it by its purchaser and, thus, it is not liable or responsible for the Plaintiff's claimed injuries or other losses caused by a design defect (if any) in the subject vehicle or its component parts, the existence of which alleged design defect this Defendant hereby expressly denies, which were manufactured and assembled by it in accordance with such plans and specifications of its customer.
The plaintiff moves to strike the special defense of "contract specifications" on the grounds that this special defense is not recognized in Connecticut. The defendant Utilimaster opposes the motion.
THE ELEMENTS OF A PRODUCT LIABILITY CASE
Connecticut recognizes a cause of action for personal injury from a defective product. Conn. Gen. Stat. § 52-572m. A variation of negligence, the tort of product liability allows a plaintiff to recover for injuries caused by a defective product without regard to whether there was privity between the injured plaintiff and the product seller or product manufacturer. Conn. Gen. Stat. § 52-572n(b). Also the plaintiff need not specifically prove a want of due care on the part of the defendant. Conn. Gen. Stat. § 52-572n(a). Rather the plaintiff must prove, inter alia, that the defendant is a "product seller," that is, one who has placed the product in the stream of commerce, see Conn. Gen. Stat. § 52-572m; and prove that the product had a defect that rendered it "unreasonably dangerous" to the ordinary consumer. See Wagner v. Clark Equipment Co., 243 Conn. 168, 189 (1997).
Among the defenses available to a defendant who has placed a defective product in the stream of commerce are that there were adequate warnings regarding the use of the product, see Conn. Gen. Stat. § 52-572q; and that the product was altered in an unforeseeable way after it left the hands of the product seller, see Conn. Gen. Stat. § 52-572p.
Depending upon the allegations in the complaint, these defenses may be susceptible to assertion through a simple denial or through the filing of a special defense.
THE SPECIAL DEFENSE OF "CONTRACT SPECIFICATIONS"
Both the plaintiff and the defendant Utilimaster agree that there is no Connecticut case that has yet recognized a defense by a product seller in a product liability case such as the one sought to be asserted here. Cases from other jurisdictions have recognized that a manufacturer who contracts with a product seller to manufacture a product to that seller's exact contract specifications and who has no reason to foresee that the product will thereafter be unreasonably dangerous to ordinary consumers may not be liable to an injured consumer of the product. See, e.g. Garrison v. Rohm and Haas Company, 492 F.2d 346 (6th Cir. 1974), applying Kentucky law in which the defense is called the "designed to specification" defense in products cases; Housand v. Bra-con Industries, Inc., 751 F.Sup. 541 (Md. 1990), applying Maryland law in which the defense is called the "contractor's defense."
Likewise the defense has been recognized in Georgia, see Collins v. Newman Machine Co., 190 Ga.App. 879, 380 S.E.2d 314 (1989); Illinois, see Hunt v. Blasius, 74 Ill.2d 203, 384 N.E.2d 368 (1978); Missouri, see Bloemer v. Art Welding Co., Inc., 884 S.W.2d 55 (Mo.App.E.D. 1994); Nebraska, see Moon v. Winger Boss Company, Inc., 205 Neb. 292 (1980); Pennsylvania, see Orion Insurance Co., Ltd. v. United Technologies Corp., 502 F.Sup. 173 (1980) (applying Pennsylvania law); and Virginia, see Austin v. Clark Equipment Co., 48 F.3d 833 (4th Cir. 1995) (applying Virginia law).
In its Memorandum of Law, the defendant also asserts that the defense has been recognized in New York, South Carolina, and Iowa. But a reading of cases from those jurisdictions finds ambiguity in either the cause of action to which a similar defense was asserted, see Szatkowski v. Turner Harrison, Inc., 584 N.Y.S.2d 170, 184 A.D.2d 504 (2d Dept 1992), and Duncan v. CRS Sirrine Engineers, Inc., 337 S.C. 537, 524 S.E.2d 115 (Ct.App. 1999) (causes of action appear to be based on premises liability, not defective products), or in the party against whom such a defense might be asserted, see Weggen v. Elwell-Parker Electric Co., 510 F.Sup. 252 (Iowa 1981) (one defendant asserting the defense against another defendant in an indemnification claim). Accordingly this court has not included these cases in its analysis.
The Restatement of Torts (Second) § 402A, Caveat (3) and comments p and q, recognizes that such a defense may be asserted, but has so far declined to adopt a position on the viability of the defense because too few decisions were available for review at the time the issue was last considered by the American Law Institute. Prosser and Keeton on Torts § 99, p. 705-06 (5th Ed. 1984), approve an analogous defense asserted by the maker of a component part supplied to the assembler of a larger product.
The reason to allow such a defense was stated by Judge Huyett in Orion Insurance Co. Ltd. v. United Technologies Corp., supra:
[N]o public policy can be served by imposing a civil penalty on a manufacturer of specialized parts for a highly technical machine according to the specifications supplied by one who is expert at assembling these technical machines, who does so without questioning the plans or warning of [the] ultimate user. The effect of such a decision on component parts manufacturers would be enormous. They would be forced to retain private experts to review an assembler's plans and to evaluate the soundness of the proposed use of the manufacturer's parts. The added cost of such a procedure both financially and in terms of stifled innovation outweighs the public benefit of giving plaintiffs an additional pocket to look to for recovery. I believe the better view is to leave the liability for design defects where it belongs and where it now is — with the originator and implementer of the design — the assembler of the finished product.
502 F.Sup. 173, 178. This justification for the defense also serves to explain the limitations of the defense: it is available only when the party asserting the defense has received design specifications from a product seller, has manufactured the product to those specifications, and has then delivered the product to the seller from whom it received the specifications. Moreover, the defense does not insulate a manufacturer who nonetheless should have reasonably foreseen that the product, though designed per specifications, would present a danger once installed and used as manufactured. See, e.g. Collins v. Newman Machine Co., supra, CT Page 17210 380 S.E.2d 314, 317. Put another way, a manufacturer is not liable for a design defect that causes injury to the consumer if the product is manufactured according to the designer/buyer's specifications, unless the specifications are obviously dangerous and should not be followed. See Austin v. Clark Equipment Co., supra, 48 F.3d 833, 836, citing Spangler v. Kranco, Inc., 481 F.2d 373, 375 (4th Cir. 1973). Thus a necessary element of this special defense is that the defendant could not reasonably foresee that the manufactured product would be unreasonably dangerous to the ultimate consumer.
Interestingly the three-judge panel of the 4th Circuit Court of Appeals that decided Austin v. Clark Equipment Co. included retired Supreme Court Associate Justice Lewis Powell, sitting by designation, who joined, but did not author, the opinion.
CONCLUSION
Though the defense asserted by Utilimaster has not previously been approved in Connecticut, making this a case of first impression, the court can see no logical reason why such a defense, recognized for some time in other jurisdictions, ought not be available to a defendant in a products liability case here. Whether the defendant can actually marshal the evidence to prove all the necessary elements of the special defense — i.e., was the "utility body" of the truck a "component" subject to the design of another, and, if so, was it foreseeable to Utilimaster that the utility body would constitute a defective product that was unreasonably dangerous to the ultimate consumer once it was placed into the assembled truck, etc. — will be matters left for the trial judge or trier of fact to confront. The court denies the Motion to Strike Utilimaster's Special Defense.