Tiderman v. Fleetwood Homes

Petrich, C.J.

(dissenting)—The majority's opinion reversing the judgment and remanding for a new trial *878because of claimed instruction error ignores basic tenets of appellate review in such cases. Instructions must be taken as a whole and questioned portions of an instruction may not be considered in isolation but must be considered in light of all the instructions given. Shasky v. Burden, 78 Wn.2d 193, 470 P.2d 544 (1970); Ranniger v. Bryce, 51 Wn.2d 383, 318 P.2d 618 (1957); Webley v. Adams Tractor Co., 1 Wn. App. 948, 465 P.2d 429 (1970). Further, an error, if any, in an instruction ordinarily is not prejudicial if the complaining party's theory can be argued under other instructions. Prybysz v. Spokane, 24 Wn. App. 452, 601 P.2d 1297 (1979).

The majority holds instruction 16 is flawed to such an extent as to require a reversal because it permitted the jury to hold the sellers liable under the theory of a breach of the implied warranty of merchantability by finding that the mobile home was unfit for the plaintiff as opposed to a reasonably foreseeable and appreciable class of potential users of the home. This result is based on the use of the word "purchaser" in the instruction. In my view the majority places too much emphasis on this perhaps unfortunate choice of terms. The preceding instruction, instruction 15, which set forth the elements the plaintiff was required to prove to recover under her theory of a breach of the implied warranty, correctly set forth the law. The plaintiff under this instruction was required to prove these defendants breached the implied warranty that the home was safe and fit for its intended purpose.

Each of several instructions which directed the jury to consider the facts as they related to Tiderman used the words "the plaintiff." Throughout all the given instructions, the jury had to consider whether the plaintiff, Tiderman, had established the burden of proof on her claims. Yet the defendants and the majority have singled out one part of a sentence in one instruction that says "the purchaser" and concluded that the jury would focus in on Tiderman. The undisputed fact is that Tiderman was not the sole purchaser of the home. Evidence, both oral and documentary, *879clearly established that she and her roommate, Sonja Strandholm, were copurchasers of the unit. Instruction 16 with the language "fit for the purchaser to live in" allowed defendants to argue their theory of defense that they only had to supply a home fit for an average consumer to live in. They could have reminded the jury that the copurchaser, Sonja Strandholm, did not suffer any ill effects from living in the home, thus bolstering their theory that Tiderman suffered a unique and isolated reaction.

Concerning instruction 18, the majority notes that Tiderman was entitled to an instruction on the sellers' failure to warn, because there was evidence from which the jury could have concluded the mobile home was unreasonably dangerous without a warning. However, the majority agreed that the language in instruction 18:

or defendants failed to give an adequate warning necessary to make the use of the product reasonably safe; . . .

(italics mine) was misleading since the jury could have read the instruction in such a way as to conclude a warning was necessary even absent an unreasonably dangerous product in order to make the use of the mobile home safe.

Here again the majority has failed to consider instruction 18 in light of the surrounding instructions. Instruction 18 was bracketed by two instructions which correctly set forth the law respecting the duty to supply a reasonably safe product and the duty to warn.

Instruction 17 states:

A seller or manufacturer has a duty to supply products which are reasonably safe for use at the time they leave the seller's or manufacturer's control. A product is considered "not reasonably safe" if it is unsafe in a way or to an extent beyond that which an ordinary user would reasonably contemplate when using it in a foreseeable manner. In determining what an ordinary user would reasonably expect, you should consider the relative cost of the product, the seriousness of the potential harm from the claimed defect, the cost and feasibility of eliminating or minimizing the risk, and such other factors as *880the nature of the product and the claimed defect indicate are appropriate.

Instruction 19 states:

A seller and/or manufacturer has a duty to warn of any condition which renders a product not reasonably safe for a foreseeable use. There is, however, no duty to warn of obvious or known dangers.

Considering instruction 18 in conjunction with these other instructions, the jury was not misled into thinking a warning had to be given even if the mobile home was safe without one.

I would affirm.

Review granted by Supreme Court March 9, 1984.