CHARLENE CURTISS, Respondent,
v.
YOUNG MEN'S CHRISTIAN ASSOCIATION, Defendant, PREMIER ATHLETIC PRODUCTS CORPORATION, Appellant.
No. 327-3.
The Court of Appeals of Washington, Division Three.
July 31, 1972.John Gavin and Robert R. Redman (of Gavin, Robinson, Kendrick, Redman & Mays), for appellant.
Theodore D. Peterson and Robert S. Day (of Peterson, Taylor & Day), for respondent.
GREEN, J.
Since our opinion in Curtiss v. YMCA, 7 Wash. App. 98, 498 P.2d 330 (1972), Premier has filed a petition for rehearing. This petition points out a possible inconsistency between the language in our opinion in the instant case and some of the language contained in Simmons v. Koeteeuw, 5 Wash. App. 572, 489 P.2d 364 (1971). Consequently, we deem it necessary to clarify this apparent inconsistency.
In Simmons we quoted from Justice Neill's concurring opinion in Ulmer v. Ford Motor Co., 75 Wash. 2d 522, 535, 452 P.2d 729 (1969) advocating that under the Restatement (Second) of Torts § 402A (1965) a plaintiff has the burden of proving an alleged defect existed at the time the product left the manufacturer. In Simmons, once the plaintiff proved the lawnmower in question was defective by reason of its "dangerous design" the plaintiff automatically proved a defect existed at the time the product left the manufacturer. Thus, under the facts of Simmons, it becomes immaterial whether the rule in Pulley v. Pacific Coca-Cola Bottling Co., 68 Wash. 2d 778, 415 P.2d 636 (1966) as to burden *452 of proof or the rule urged by the concurring opinion in Ulmer is applied.
[1] However, in the instant case the Simmons factual situation does not exist since proof of the defective bar does not automatically prove it was defective when it left Premier's hands. Hence, we are called upon to determine with more precision the plaintiff's burden of proof. We believe a more considered reading of Ulmer reveals the majority was unwilling to adopt the rule that an injured plaintiff has the burden of proving the defect existed in the product at the time it left the manufacturer's hands. The approval of Pulley by the majority in Ulmer apparently caused Justice Neill to write his concurring opinion advocating a contrary position, wherein he observed at page 535:
I concur in the remanding of this case for a new trial, but do not go as far as the majority seemingly does in the application and construction of the strict liability doctrine enunciated in Restatement (Second) of Torts § 402A (1965).
For this reason we are compelled to interpret Ulmer as adopting the rule of Pulley expressed in our previous opinion. Thus, once the plaintiff proved the parallel bar was defective and caused the injury, Premier had the burden of showing who caused the defect. This it failed to do. Simmons is strictly limited to its facts.
While our earlier decision alluded to evidence unfavorable to Premier with respect to damages, it should be made crystal clear that our determination to affirm the trial judge's order granting a new trial as to damages was based upon evidence construed by this court in a light most favorable to Premier.
It is hereby ordered that the petition for rehearing be, and it is, denied.
MUNSON, C.J., and EVANS, J., concur.
Review granted by Supreme Court September 20, 1972.