Unpublished Disposition, 921 F.2d 279 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 921 F.2d 279 (9th Cir. 1990)

Nos. 89-55022, 89-55399.

United States Court of Appeals, Ninth Circuit.

Before NELSON and REINHARDT, Circuit Judges, TANNER,*  District Judge.

MEMORANDUM** 

Plaintiff-appellant, Maria Jose Brantuas, and third-party plaintiff-appellants Van Camp Seafood, Odette Therese and Hornet Corps. appeal the district court's order finding that defendant-appellees, Campbell Industries and Nuttall-Styris, Inc., boat manufacturers and outfitters, were not strictly liable in Brantuas' product liability action. Third-party plaintiff-appellants Van Camp Seafood Co., Odette Therese and Hornet Corps., vessel owners and operators, also appeal the district court's failure to require defendant-appellees Campbell and Nuttall-Styris to indemnify them. However, we find that we are unable to review these issues due to the ambiguity of the district court's findings. Accordingly, we REMAND for the district court to make specific findings as to the reasonable foreseeability, within the meaning of Restatement of Torts Sec. 402A, of the use to which the boat was put.

A. Restatement Sec. 402A's "Unreasonably Dangerous" Standard

Restatement Second of Torts Sec. 402A provides that one who sells a product in a condition which is unreasonably dangerous to the consumer may be held strictly liable for any physical harm caused thereby to the product's ultimate consumer. Comment (i) to the section elaborates: " [t]he article ... must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it ... with the ordinary knowledge common to the community as to its characteristics." In other words, the product must have been unreasonably dangerous when put to a "reasonably foreseeable" use. See d'Hedouville v. Pioneer Hotel Co., 552 F.2d 886, 890 (9th Cir. 1977).

Appellants contend that the district court improperly interpreted Sec. 402A to require a finding that the boat was put to a manufacturer's intended use, not a use reasonably foreseeable to its ordinary consumers, before manufacturer liability could be imposed. We can make no determination as to the validity of appellants' contention since the district court made no finding as to the reasonable foreseeability of the useage of the boat.

Findings 16(c) and 16(d) only discuss the intended use for the boat in the context of Van Camp Seafood's and Odette Therese and Hornets Corps.' breach of warranty claim, not within the meaning of Sec. 402A. Finding 17 tracks the language of Sec. 402A and Comment (i), but makes no explicit finding as to the reasonable foreseeability of the boat's useage that night to its "ordinary consumers." In addition, the court's reference to the California Barker v. Lull test as one measuring the "reasonabl [e] foreseeab [ility] [of the misuse] to the manufacturer" in its oral findings intimates that the court might have interpreted Sec. 402A's standard to be one of "intended useage." Accordingly, we REMAND so that the district court may determine whether the use to which the boat was put on the night of the accident was "reasonably foreseeable."

Conclusion

We REMAND for a specific finding as to the "reasonable foreseeability" of the particular use to which the boat was put that night, from the point of view of its ordinary consumers and for such other changes in the findings and conclusions as the district court may deem necessary or appropriate in light of this specific finding. This panel retains jurisdiction of any subsequent appellate proceedings.

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The Honorable Jack E. Tanner, United States District Judge for the Western District of Washington, sitting by designation

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3