By David Yucht, J.D.
A consumer was paralyzed after she fell through a second-story window while trying to stabilize the air conditioner.
A Washington appellate panel reversed a lower court ruling dismissing a negligence action filed against Wal-Mart by a consumer who fell from a second-story window after trying to steady a loose air conditioner that she had purchased from the retailer. The consumer had presented evidence showing that Wal-Mart was negligent by repackaging and reselling the subject air conditioner with missing parts and a missing installation manual. However, the lower court properly dismissed strict liability claims brought against Wal-Mart because under Washington law, those claims do not apply to a retailer. The appellate court also affirmed the dismissal of all claims against the manufacturer of the window through which the consumer fell because the manufacturer did not install the window and had no role in determining the location or installation of the window in the second story of the townhouse (Strout v. Wal-Mart Stores, Inc., July 29, 2019, Schindler, A.).
A consumer purchased a window air conditioner from Wal-Mart for her residence. The box appeared to have been "opened and then taped shut again" and had "been wrapped" in "clear" packing tape. On the box were two illustrations of a double-hung window. The top of the box stated that its contents included the air conditioning unit, window installation parts, a "User and Care Guide," and a "Quick Start Guide." When the consumer opened the box to install the air conditioner, the User and Care Guide and some of the parts were missing. The box contained the Quick Start Guide, a bracket, and "a few loose screws." The consumer’s partner used one of the brackets that came in the box and a generic "shelf bracket" to install the air conditioner. The consumer was advised "not to open the window" because the window was "holding the air conditioner in" and nothing secured the bracket to a solid surface. The consumer’s partner removed it after the summer and stored it in a closet. He reinstalled it the same way the following summer.
One early evening, the consumer pulled back the window’s curtain and called to her partner, who was outside. The air conditioning unit came loose. In leaning forward to grab the air conditioner, she fell out of the window. The air conditioner’s weight appeared to pull her out the window. She suffered permanent paralysis. She filed a lawsuit against several entities, including Wal-Mart and the window manufacturer, under the Washington Products Liability Act (WPLA). The trial court granted summary judgment for both entities. The consumer appealed.
Retailer liability. In an unpublished decision, the appellate court reversed the lower court ruling concerning Wal-Mart. Wal-Mart cited the testimony of the consumer’s partner that even if he had read the missing User and Care Guide, which stated that the air conditioner unit was for use with only a double-hung window, he likely still would have installed the air conditioner unit in the sliding window. The consumer’s expert witness opined that the lack of installation instructions was one of the main defects and factors relating to the subject incident, primarily because the instructions contained a statement that the subject air conditioning unit was to be installed only in double-hung windows. Additionally, the missing parts contributed to the incident. The appellate court determined that Wal-Mart was not a manufacturer under the WPLA and that the trial court did not err by dismissing the claims for design defect, failure to warn, and breach of implied warranty. However, Washington law states that "a product seller other than a manufacturer is liable to the claimant only if the claimant's harm was proximately caused by" the product seller's "negligence." Here, the lower court erred in dismissing the claim against Wal-Mart as a negligent product seller. The evidence supported a finding that Wal-Mart negligently repackaged and sold the returned air conditioner with a missing manual and missing parts. The box allegedly looked like it had "been opened" and "taped shut again."
Manufacturer liability. The appellate court, however, upheld the dismissal of the case against the window manufacturer. The consumer argued that her expert’s testimony established a design defect and a failure to warn under both the risk-utility test and the consumer expectations test. Her expert opined that the manufacturer "should have … either created a design that utilized guards, which would prevent falls" or "could have designed the window with an opening through which a person could not fall when opened." The cost of the guards would have been $300 or less. The trial court erred in concluding that the expert, who was an architect, was not qualified to testify about design defects and safety hazards. However, the appellate court determined that his testimony did not support the conclusion that the window manufacturer was liable under the WPLA for a defectively designed window. The crux of the expert's testimony was that the size and configuration of the window opening and the low window sill did not meet the code requirements and created a dangerous condition. However, the record showed that the manufacturer did not install the window and had no role in determining the location or installation of the window in the second story of the townhouse.
The case is No.77235-0-1.
Attorneys: Philip Albert Talmadge (Talmadge Fitzpatrick Tribe PLLC) for Valerie Strout. Philip B. Grennan (Wood Smith Henning & Berman LLP) for Walmart Stores, Inc. and Ply Gem Pacific Windows Corp.
Companies: Haier America Trading, LLC.; Walmart Stores, Inc.; Ply Gem Pacific Windows Corp.
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