Seller Beware: Tort Reform Is Missing in Action; Soproni, Falk, and the Entrenchment of Strict Products Liability in Washington

• Publication year: 2000

SEATTLE UNIVERSITY LAW REVIEWVolume 24, No. 3WINTER 2001

Seller Beware: Tort Reform Is Missing in Action;Soproni, Falk, and the Entrenchment of Strict Products Liability in Washington

Kenneth M. Roessler(fn*)

INTRODUCTION

When a state's highest court holds that strict liability is the applicable standard for a design defect claim in the face of a statute that expressly requires a negligence standard, the holding needs to be brought out into the sunlight for all to see.(fn1) The Washington Supreme Court did so hold two years ago, in the case of Soproni v. Polygon Apartment Partners.(fn2) The Soproni case was not the first occasion on which such a proposition was stated.(fn3) Twice now the state supreme court has construed the Washington Product Liability Act (WPLA)(fn4) to apply strict liability to defective design and defective warning product liability claims made under the statute. The first occasion arose in 1989 in the case of Falk v. Keene Corp (fn5) To the extent that the statutory construction observed in the Soproni case has already been seen in the Falk opinion, this Note should be read as a critical appraisal of that case as well. To a large extent, however, the Soproni case is the more appropriate of the two cases to discuss; it is more recent, contains virtually undisputed facts, and better illustrates the implications for product manufacturers doing business in Washington.

In Part I, this Note will discuss the peculiar procedural history behind Soproni. What began at the trial court as a strong case against the first two defendants underwent a change in strategy involving the joinder of a third defendant, Alpine Windows, and a summary judgment for all defendants. The case then followed an appellate path that resulted in the exoneration of the first two defendants, settlement with Alpine Windows on the eve of trial, and a subsequent bankruptcy for Alpine.(fn6) Part I will also closely examine the WPLA, beginning with a discussion of the tort reform context in which it was enacted and the underlying economic reasons for its passage in 1981. This section will discuss how the WPLA ostensibly supplanted Washington common law on product liability, as well as what a careful reading of the statute seems to dictate for litigating product liability claims.

The reader will then learn how the Soproni majority construed the statute and how the statute was constructed by Falk a decade earlier. Although the Soproni story finally came to a conclusion in the summer of 2000,(fn7) the surprising chapter authored by five Justices of the state supreme court occupies the heart of this Note in Part I.D. Finally, this Note will explore the consequences of the Soproni decision for window manufacturers doing business in Washington, particularly the "Catch 22" situation produced when manufacturers design to prevent liability to one class of plaintiffs (children) only to create liability to another class (the elderly).

I. The Case, the Law, and How the Washington Supreme

Court Applied One to the Other

A. The Facts of Soproni v. Polygon

In the late summer of 1993, 20-month-old Daniel Soproni and his mother Shannon were visiting with Jeff Elsworth, Shannon's adult friend, at his apartment in Federal Way, Washington.(fn8) Shannon, Jeff, and Daniel were all together in the upstairs bedroom.(fn9) The bed on which Daniel was playing had been placed adjacent to the bedroom's only window, a wide horizontal sliding aluminum-frame design.(fn10) This window was fitted into a recessed "pop-out configuration,"(fn11) providing the outside of the apartment building some architectural relief, as well as providing the occupants with a wide internal window-sill thirty-four inches above the floor.(fn12) Thus, the particular dimensions and architectural design of the bedroom window served to offer the apartment's occupants the possibility of designating this a "window seat."(fn13)

Nonetheless, Jeff Elsworth had arranged his bedroom furniture so as not to avail himself of this added feature.(fn14) Rather, the bed was situated with the head alongside the windowsill, such that Daniel could quite easily move from the bed to the ledge of the window.(fn15) This is exactly what little Daniel discovered that day, and his focus quickly turned to the fateful window, which was open approximately two inches.(fn16) The resourceful toddler learned how to slide the window open, and played with the window by opening and closing it.(fn17) This soon attracted the attention of his mother and Jeff, who repeatedly closed the window and scolded the child not to play with it.(fn18) Unfortunately, Daniel was not sufficiently dissuaded from the object of his play. While no one was paying close attention, Daniel again opened the window, but this time he decided to lean back against the screen.(fn19) Just when Daniel's mother noticed this and stood up to retrieve him from the windowsill, the screen gave way and Daniel fell onto the patio below, sustaining severe head injuries and long-term neurological impairment.(fn20)

B. The Lawsuit: Whom to Sue for Negligence and the

Afterthought of Products Liability

One year later, Shannon Soproni(fn21) brought suit against Polygon Apartment Partners, the developer/owner of the apartment complex, for negligence.(fn22) In its answer, Polygon asserted an affirmative defense of contribution, stating that if it were found to be at fault, then the architect and the window manufacturer should also be found comparatively at fault.(fn23) Consequently, Soproni amended her complaint to allege that Polygon, Millbrandt Architects, and Alpine Windows were "negligent and in violation of safety rules and regulations, including the applicable building code and laws of the [State of Washington]."(fn24) Interestingly, it still had not occurred to the plaintiffs to allege a violation of the WPLA.(fn25) Indeed, having led all three defendants to believe that "this was a case of simple negligence, and having informed counsel for Alpine that it would not oppose Alpine's motion for summary judgment, [the plaintiff] changed tactics."(fn26) Essentially presenting Alpine with what can fairly be described as a "moving target,"(fn27) counsel for Soproni first mentioned the product liability statute when opposing Alpine's motion for summary judgment.(fn28) As noted in the opinion by the Washington Court of Appeals for Division I, counsel for Soproni "indicated that this really was not a switch from negligence to strict liability, but negligence as couched by the provisions of the product liability statute. . . ."(fn29) The prophetic irony of this argument will be fully appreciated in Part I.D of this Note.

Polygon, Milbrandt, and Alpine each moved for summary judgment on the grounds that the building owner/manager, architect, and window manufacturer had no legal duty to childproof the window and screen to prevent this unfortunate accident.(fn30) In support of its motion for summary judgment, Alpine submitted affidavits and declarations of two experts: Tom King, who attested to the window's full compliance with the applicable building and fire codes,(fn31) and Dennis Barbee, Alpine's Supervisor of Research and Development Engineering.(fn32) Mr. Barbee emphasized that these same codes and standards require that windows located in residential sleeping rooms "provide a 'full clear opening without the use of separate tools,' with a minimum 'operable width dimension of 20 inches.'"(fn33) This is because the windows of sleeping rooms must provide for emergency escape in the event of a fire, and such escape should not be too difficult for elderly persons or small children.(fn34)

The window was also equipped with a sliding detent, or bolt, which sank vertically into a recessed hole in the window track.(fn35) This detent could be used to keep the window at two settings: completely closed and open by about three inches, both of which kept the window from sliding laterally.(fn36) As for the screen, Mr. Barbee stated that the purpose of a window screen is clearly not to prevent residents from falling through them, but rather to keep insects outside when the window is open.(fn37)

In opposition to Alpine's motion for summary judgment, Soproni offered the testimony of two of its own experts: Stan Mitchell, a Washington architect,(fn38) and Dr. Gary Sloan, a psychologist and human factors/ergonomics specialist.(fn39) In contrast to the expert testimony adduced by Alpine, which related primarily to the applicable building and fire codes in manufacturing the window, Messrs. Mitchell and Sloan provided legally conclusory opinions to the effect that the "window in question was not reasonably safe,"(fn40) that safer alternatives were available,(fn41) and that such a window would be employed in this type of situation was foreseeable.(fn42) Mr. Mitchell proceeded to become an expert on consumer expectations, declaring that "the design [of the window] does not meet the consumer expectation of safety,"(fn43) echoing almost verbatim the statutory language found in the WPLA.(fn44) Drawing from his architectural expertise, Mr. Mitchell suggested that Alpine could have offered feasibly safe alternatives such as a "casement window . . . opened by a hand crank, a keyless locking barrier, a thumb screw locking detent and/or a double hung window which only opened from the top down."(fn45) Such alternatives...