Tulsa Law Review Volume 10 Issue 4 1975 The Warranty Disclaimer v. Manufacturers' Products Liability-- Sterner Aero AB v. Page Airmotive, Inc.: Did the Tenth Circuit Bury the Disclaimer Alive Stephen C. Parker Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Stephen C. Parker, The Warranty Disclaimer v. Manufacturers' Products Liability--Sterner Aero AB v. Page Airmotive, Inc.: Did the Tenth Circuit Bury the Disclaimer Alive, 10 Tulsa L. J. 612 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol10/iss4/9 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Parker: The Warranty Disclaimer v. Manufacturers' Products Liability--Ste THE WARRANTY DISCLAIMER v. MANUFACTURERS' PRODUCTS LIABILITY- STERNER AERO AB v. PAGE AIRMOTIVE, INC.: DID THE TENTH CIRCUIT BURY THE DISCLAIMER ALIVE? Stephen C. Parker The consumer's cause of action does not depend upon the validity of his contract with the person from whom he ac- quires the product, and it is not affected by any disclaimer or other agreement, whether it be between the seller and his immediate buyer, or attached to and accompanying the product into the consumer's hands. Restatement (Second) of Torts § 402A, comment m. Since Dean Prosser's creation of this concept and its introduction into case law in Greenman v. Yuba Power Products, Inc.,' it has been frequently assumed or stated2 that the advent of strict liability in tort ("Manufacturers' Products Liability" in Oklahoma)8 sounded the death knell for the contractual liability disclaimer. Oklahoma's Kirkland v. General Motors Corp.4 followed this wave of precedent, although in dicta,5 and quoted directly from, section 402A of Restatement 1. 59 Cal. 2d 57, 377 P.2d 897, 27 Cal. Rptr. 697 (1962). 2. To name a few: 'The conclusion is evident that, so far as strict liability of the manufacturer is concerned, no reliance whatever can be placed upon any disclaimer; that even as to dealers it is beginning to be rejected . .. .," Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Mnm. L. Rnv. 791, 833-34 (1966); "As indicated by the very term 'strict liability in tort,' proof of negligence is unnecessary, and there is no room for application of such traditional contract or warranty defenses as... dis- claimer of implied warranties ... ." R. HusH, AmamcAN LAw OF PRODuCTS LLMUTYIv 348-50 (Cam. Supp. 1973); "Moreover, this [strict tort] liability could not be dis- claimed, for one purpose of strict liability in tort is to prevent a manufacturer from de- fining the scope of his responsibility for harm caused by his products... .," Seely v. White Mtr. Co., 63 Cal. 2d 1, 403 P.2d 145, 150, 45 Cal. Rptr. 17, 22 (1965). 3. 521 P.2d 1353, 1361 (Okla. 1974). 4. Id. 5. "We recognize that in these areas we embark on judicial innovation and prospec- Published by TU Law Digital Commons, 1974 1 Tulsa Law Review, Vol. 10 [1974], Iss. 4, Art. 9 1975] DISCLAIMERS & PRODUCTS LIABILITY (Second) of Torts, comment m as set out above.6 Professor McNichols' recent analysis of the Kirkland decision, however, doubted that Manufacturers' Products Liability signaled the end of the disclaimer in Oklahoma: One must wonder whether the Oklahoma court would really allow even a consumer buyer to recover for personal injuries against his own commercial seller in a bargaining context where, with eyes open, he has comparatively shopped and bought Brand X rather than Brand A for a cheaper price where an "as is" type term is expressly a part of the deal. Whether Oklahoma would allow recovery is even more ques- tionable if we posit a commercial buyer or context or, for that matter, property damage rather than personal injury.7 After the McNichols article, but prior to a determinative ruling in the Oklahoma courts, the Tenth Circuit was called upon to decide the fate of the disclaimer and in Sterner Aero AB v. Page Airmotive, Inc.," held that a disclaimer provision, although otherwise valid, was not ef- fective to bar an action based upon Manufacturers' Products Liability. Was McNichols hasty in his conclusion that disclaimers, or their equivalents were still healthy, or was the Tenth Circuit premature in its attempted burial? The answer lies in an analysis of the new case law in this area9 and in resolution of some fundamental policy ques- tions. The initial starting point is: Should the Uniform Commercial Code ever be applicable in a products liability factual context? Recog- nition of a potential conflict began in the mid-sixties with the rapid judicial expansion of the new doctrine of strict tort, concurrent with replacement of the old Uniform Sales Act by the Uniform Commercial Code. Currently, the practitioner is presented with three theories of tive overruling sometimes the source of criticism as dicta." Id. at 1361. The court then proceeded to deal with many of the problem areas it felt certain to arise with the appli- cation of this new doctrine of law in its jurisdiction. 6. Id. at 1362. 7. McNichols, The Kirkland v. General Motors Manufacturers' Products Liability Doctrine-What's in a Name?, 27 OKLA. L. REv. 347, 380 (1974) [hereinafter cited as MeNichols]. 8. 499 F.2d 709 (10th Cir. 1974). 9. To date Oklahoma still has the same initial set of Manufacturers' Products Lia- bility cases as existed when the McNichols prophecy of viability was made: decided on April 23, 1974, Kirkland v. General Mtrs. Corp., 521 P.2d 1353 (Okla. 1974); Moss v. Polyco, Inc., 522 P.2d 622 (Okla. 1974); O'Neal v. Black and Decker Mfg. Co., 523 P.2d 614 (Okla. 1974); and decided on May 21, 1974, Seay v. General Elevator Co., 522 P.2d 1022 (Okla. 1974); Atkins v. Arlan's Dep't Store, Inc., 522 P.2d 1020 (Okla. 1974). https://digitalcommons.law.utulsa.edu/tlr/vol10/iss4/9 2 Parker: The Warranty Disclaimer v. Manufacturers' Products Liability--Ste TULSA LAW JOURNAL [Vol. 10: 612 recovery for the benefit of a product-injured plaintiff: negligence, breach of warranty, and strict tort. This availability of a wide selection of tools is probably not a bad idea yet it is not illogical to inquire concerning the necessity or value of leaving open parallel theories in products liability suits. Confusion could and, indeed, has arisen over which concept to apply. A brief, non-technical review of the elements of competing strict tort and Code approaches should serve to clarify the situation. The basic requirements in a strict tort suit are: (1) proof that the product was the cause of the injury; (2) existence of a "defect" in the product; (3) proof that the defect existed at the time that the product left the control of the manufacturer, assembler, or supplier; and (4) proof that the defect made the product "unreasonably dangerous" to the user or his property. 10 It should be noted that the doctrine does not make the producer an absolute insurer as to every injury caused by consumption or use of his product. Also, the producer may avail himself of some defenses similar to contributory negligence and as- sumption of risk.", The Code alternative is naturally commercial in nature and on its face seems inapplicable to a tort-injured consumer for it requires: (1) a contract with express or implied warranties; (2) privity between plaintiff and defendant (section 2-318); (3) breach of warranty; and (4) notice of breach (section 2-607). Beneath its commercial surface, however, the Code offers benefits which make it attractive to the con- sumer plaintiff. (1) Privity need not be the bar it once was (see dis- 10. It is not the purpose of this comment to explain in detail the strict tort concept. For a view on the rule according to Kirkland see McNichols, supra note 7, at 354-61. Also instructive is the viewpoint of a reporter for Restatement (Second) of Torts: Wade, On the Nature of Strict Tort Liability For Products, 44 Miss. L.J. 825 (1973). As Wade points out, the difficulty is in devising a short phrase to deal with a multitude of problems. "Unreasonably dangerous" does not demand that the product be ultra- hazardous, but it must include at least two kinds of defect: (1) Those due to an error in the manufacturing process, and (2) Perfectly produced products of inherently dan- gerous or harmful design. On the other hand, liquor can cause alcoholism, and a 'knife can cut fingers, yet no one expects to hold a manufacturer liable for those shortcomings. Finally, in any case, the phrase should not indicate that negligence is required since strict tort imposes a duty regardless of all due care. Wade suggests that today he might prefer substitution of the phrase "not duly safe" but that still might not solve the prob- lem of misconstruing a touchstone phrase that must cover so many basic ideas. 11. This is another "snake nest" area into which this comment will not tread. Suf- fice it to say that these concepts have been renamed in Oklahoma ("misuse of the product" and "voluntary assumption of the risk of a known defect," respectively) and may be somewhat altered from the original common law conception. See McNichols, supra note 7, at 380-99. Published by TU Law Digital Commons, 1974 3 Tulsa Law Review, Vol. 10 [1974], Iss. 4, Art. 9 19751 DISCLAIMERS & PRODUCTS LIABILITY cussion infra accompanying footnote 54), and requirement of notice within a reasonable time after discovery of breach is specifically flex- ible for the consumer's benefit.