concurring:
While the evidence adduced supports the jury’s verdict with respect to the cause of the fire, i.e., the catalytic converter, I do have concerns about the lack of evidence dealing with the alleged inadequacy of the warning contained in the owner’s manual. These concerns are heightened by the weakness of the plaintiff’s case with respect to an inherently defective design in the automobile, that is, the placement of the catalytic converter and the failure to provide safety features which could have prevented the fire. The plaintiff’s case was nonexistent with respect to the defective nature of the catalytic converter itself. Where, as here, minimum evidence of inherent defectiveness of the product is presented, a lesser warning may be held adequate than in cases where the proof of defectiveness, and hence dangerousness, of the product is greater.
The modesty of the evidence on defectiveness underscores my concern regarding the dearth of evidence adduced by the plaintiff as to the adequacy of the warning. This was an important basis for Judge Gordon’s J.N.O.V. ruling. In his Memorandum and Order, Judge Gordon discussed the fact that the plaintiff’s theory of inadequate warning was devoid “of even self-serving testimony.” Judge Gordon held that the evidence regarding the adequacy of warning failed to present a question which appropriately would go to the jury. Essentially, Judge Gordon held that the absence of evidence regarding accepted standards relating to the adequacy of warnings made it impossible for the jury to arrive at any sound determination concerning the warning in this case.
An examination of the case does indeed show very little evidence from which the jury could compare the level of danger involved with the catalytic converter to the adequacy of the warning. As set forth in the Restatement (Second) of Torts § 388 at 308-10 (1965), the duty to warn increases as the potential danger connected with the product increases. Rather than presenting testimony bearing on the duty to provide a warning commensurate with the degree of danger presented, the plaintiff did little here other than point out the fact that the warning was contained in the owner’s manual and that no other warning was provided to him.
Notwithstanding my dissatisfaction with the state of the record on this issue, I am not prepared to say that there was insufficient evidence for the jury in its common sense to say that the warning in the owner’s manual was inadequate in apprising the user of the dangerous nature of the placement of the catalytic converter. As established in Boeing v. Shipman, we are to view all of the evidence in the light most favorable to the party opposing the J.N.O.V. motion. Viewed thus, it does appear that “reasonable and fair-minded men in the exercise of impartial judgment [could have] reach[ed] different conclusions .... ” 411 F.2d at 374. The granting of the motion thus was in error.
I therefore concur in the result reached by the majority opinion.