Oklahoma Gas & Electric Co. v. McGraw-Edison Co.

OPALA, Chief Justice,

with whom KAUGER, Justice, joins, dissenting.

Today the court holds that strict liability for a defective product does not govern this case in which an internal electrical failure in a generator step-up transformer caused an explosion and ensuing fire. No one was injured and although the sudden mishap hurt some ancillary equipment, the product’s purchaser, who happens to be a commercial entity rather than an individual, sought damages only for physical injury to the defective product itself.

I must recede from the court’s pronouncement. I would adopt for Oklahoma the rule of law announced in Salt River Project Agr. v. Westinghouse Elec.,1 where the court held that products liability may be imposed for direct property damage sans personal injury when it results from physical harm to the defective product itself and the loss occurs in a sudden and accidental manner. Products liability theory is not invocable for economic loss that results from the product’s deterioration, internal breakage or depreciation. In the former setting the loss to the defective product occurs in circumstances posing or likely to pose an unreasonable danger of harm to persons or other property; in the latter, it does not.2

Our goal in adopting strict liability was to lessen or eliminate the public danger caused by defective products placed in the stream of commerce. In Kirkland v. General Motors Corporation,3 the genesis of products liability, we noted that the manufacturer is best situated to protect the public against products that are a menace to safety. We adopted § 402A, Restatement (Second) of Torts,4 to shift from the *985plaintiff the burden of establishing a manufacturer’s negligence and replace it with a manufacturer’s duty not to place unsafe products into the stream of commerce.

A manufacturer’s duty to market safe products should not depend upon (1) whether the buyer is a commercial or industrial user as opposed to an individual consumer or (2) the fortuity of whether the full extent of the unreasonable danger posed— i.e., personal injury or damage to property other than the defective product itself — has actually happened. Products that cause sudden and unexpected accidents are just as dangerous to the public when in the hands of a commercial or industrial user as they are in those of an individual consumer. Moreover, a defective product is still dangerous even though it did not reach its full potential for harm by causing personal injury or damage to other property.

The court’s characterization of this case as one for purely economic loss to the product itself runs counter to the conceptual underpinnings of § 402A,5 which are intended to protect the public — including the commercial or industrial user — from unsafe products. For an explanation of my views in a slightly different context,, see Waggoner v. Town & Country Mobile Homes, Inc. (Opala, V.C.J. concurring in part, dissenting in part).6

. 143 Ariz. 368, 379, 694 P.2d 198, 209 (1985).

. See Morrow v. New Moon Homes, Inc., 548 P.2d 279 (Alaska 1976) and Cloud v. Kit Mfg. Co., 563 P.2d 248 (Alaska 1977). In the earlier case the court held that a mobile home manufacturer was not strictly liable in tort. The product's shortcomings, including a leaky roof, did not cause imminent danger. In the second case, foam rug padding used as insulation in a crawl space caused a mobile home to catch fire and burn; the manufacturer was held strictly liable. The court distinguished between a product that was only a "lemon" and one that was defectively dangerous. The first owner suffered only economic loss while the second had direct property damage from a sudden calamity caused by a defectively dangerous product. See also Northern Power & Eng. v. Caterpillar Tractor, 623 P.2d 324 (Alaska 1981).

. Okl., 521 P.2d 1353, 1362 (1974).

. See Restatement (Second) of Torts § 402A (1965), which provides:

“(1) One who sells any product in a defective condition unreasonable dangerous to the user or consumer or to hb property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to hb property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
*985(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.” [Emphasis added.]

. For the pertinent terms of Restatement (Second) of Torts § 402A, see supra note 4.

. Okl., 808 P.2d 649, 654 (1991) (Opala, V.C.J., concurring in part, dissenting in part).