Jeld-Wen, Inc. v. Gamble by Gamble

Present:   All the Justices

JELD-WEN, INC.
                                     OPINION BY
v. Record No. 972103                 JUSTICE LAWRENCE L. KOONTZ,
JR.
                                     June 5, 1998
ANTHONY KENT GAMBLE, BY HIS MOTHER
 AND NEXT FRIEND, LaDONNA GAMBLE

             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     J. Howe Brown, Jr., Judge

     This is an appeal of a judgment entered on a jury verdict

for the plaintiff in a products liability action.   Upon well

settled principles we will review the evidence in the light most

favorable to the party prevailing in the trial court and recount

only those facts relevant to our resolution of this appeal.

     On April 25, 1993, Anthony Kent Gamble (Gamble), then

thirteen months old, fell though an open second floor window in

the living room of the townhome rented by his parents after the

window’s screen fell out of the window frame.   As a result of

his fall, Gamble suffered severe, permanent injuries.

     Thereafter, Gamble, by his mother and next friend, LaDonna

Gamble, filed a motion for judgment against Jeld-Wen, Inc.

(Jeld-Wen), the manufacturer of the window and screen; the

building contractor that purchased these products from Jeld-Wen

and used them in the construction of the townhome; and the

parents’ landlord.   The contractor and the landlord were

subsequently nonsuited following settlement of the claims
against them, leaving Jeld-Wen as the sole defendant.   The

motion for judgment asserted alternative theories of Jeld-Wen’s

liability, alleging both negligence in the manufacture of the

window frame and screen and breach of implied warranty of

merchantability.

     At trial, the evidence established that this tragic

incident arose under the following relevant facts.   The window

was approximately six feet in height and its sill was eight

inches above the surface of the living room floor.   The window

screen was an ordinary wire mesh screen 1 and covered the entire

opening of the window.   It was designed to be held in place by

two fixed pins at the top and two spring-loaded pins at the

lower left and right of the window frame.   The left spring-

loaded pin and the groove in the window frame into which the pin

was intended to be inserted contained manufacturing defects that

prevented the screen from being held securely in place unless

light pressure was applied to the screen from the outside rather

than from the inside of the window where the pin was located.

While not clear from the evidence, we will assume that this pin

and, thus, the screen appeared to be, but was not, secured on



     1
      The parties do not dispute that the screen was neither
designed nor constructed of special materials so as to permit it
to function as a body restraint beyond the incidental contact
that might result from the intended use and function of an
ordinary window screen.
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the day in question, resulting in a “false latch” as alleged by

Gamble.

     Gamble was approximately twenty-eight inches in height and

weighed seventeen pounds, thirteen ounces.   According to his

father’s testimony, Gamble was standing on the cushions of a

loveseat that backed up to the window.   Gamble’s father had

opened the blinds and raised the lower sash of the window to

allow fresh air into the home and to permit Gamble to “wave

good-bye” to his mother who was outside the home.   When the sash

began to slip down, Gamble’s father left the loveseat in order

to adjust it.   At that point, Gamble reached out and “barely

touched” the screen.   The screen fell away from the window and

Gamble fell through the open window, falling approximately ten

feet to the concrete driveway below.

     The jury awarded Gamble $15,000,000 in damages.   The trial

court confirmed the jury’s verdict, reducing it by the amounts

already received through settlement of the claims against the

other defendants.   We awarded Jeld-Wen this appeal.

     We have not previously addressed the dispositive issue in

this appeal which involves the determination, as a matter of

law, of the duty of a manufacturer of an ordinary window screen

that is neither designed nor manufactured to act as a body

restraint to safeguard against the misuse of the screen for that

purpose.   Without a legal duty there can be no cause of action

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for an injury.     See C&P Telephone Co. v. Dowdy, 235 Va. 55, 61,

365 S.E.2d 751, 754 (1988).    We have, however, established

principles that guide our analysis of this novel issue.

     “[A] manufacturer is not required to supply an accident-

proof product.”     Besser Company v. Hansen, 243 Va. 267, 276, 415

S.E.2d 138, 144 (1992).    Rather, “[t]he standard of safety of

goods imposed on . . . the manufacturer of a product is

essentially the same whether the theory of liability is labeled

warranty or negligence.    The product must be fit for the

ordinary purposes for which it is to be used.”     Logan v.

Montgomery Ward, 216 Va. 425, 428, 219 S.E.2d 685, 687 (1975).

In order to recover under either of these theories against the

manufacturer of a product, “a plaintiff must show (1) that the

[product was] unreasonably dangerous either for the use to which

[it] would ordinarily be put or for some other reasonably

foreseeable purpose, and (2) that the unreasonably dangerous

condition existed when the goods left the manufacturer’s hands.”

Morgen Industries, Inc. v. Vaughan, 252 Va. 60, 65, 471 S.E.2d

489, 492 (1996).    While a manufacturer may not be held liable

for every misuse of its product, it may be held liable for a

foreseeable misuse of an unreasonably dangerous product.

Featherall v. Firestone Tire & Rubber Company, 219 Va. 949, 964,

252 S.E.2d 358, 367 (1979); Sloan v. General Motors Corp., 249

Va. 520, 526, 457 S.E.2d 51, 54 (1995).

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     Applying these principles, we think it is clear that Jeld-

Wen’s duty to Gamble was to manufacture a window screen and

frame “fit for the ordinary purposes for which it is to be used”

and safe for a reasonably foreseeable misuse that could cause

injury.   Gamble concedes that the ordinary purposes of Jeld-

Wen’s window screen are to keep insects out while letting in

light and fresh air and would not include this screen serving as

a childproof restraint. 2   Gamble asserts, however, that because

the evidence supports a finding that Jeld-Wen knew or should

have known of the existence of the defect that permitted the

screen to have a “false latch” appearance and that a child could

make casual contact with this screen and cause the screen to

fall out of the frame, Jeld-Wen should have foreseen that the

child could lose his balance and fall through the open window.

     The initial difficulty with Gamble’s theory is that it

fails to draw the necessary distinction between the

foreseeability of the screen being dislodged by the child’s



     2
      We recognize that we have previously stated that “[w]hile
screens are installed to keep bugs out, they do afford some
protection to little children; and . . . [may cause] a false
sense of security.” Crosswhite v. Shelby Operating Corp., 182
Va. 713, 718-19, 30 S.E.2d 673, 675 (1944), appeal following
remand, 185 Va. 585, 37 S.E.2d 7 (1946)(affirmed by an equally
divided Court). The issue in Crosswhite, however, was not
manufacturer’s products liability, but negligent maintenance of
the window by an inn-keeper. The legal duties involved in
Crosswhite are not the same as those at issue here.

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touch and the foreseeability of the child’s losing his balance

and falling through the open window.   Inherent in this theory is

the necessary assumption that the screen was being used to

provide balance and restraining support for the child’s body

weight, and, thus, to prevent a fall through the open window.

As previously noted, this screen was not intended for this

purpose, and therefore this was a misuse of the screen.

Accordingly, it is not the occurrence of the “gentle touch,” but

the misuse of the screen to provide balance and restraining

support that is the focus of our inquiry, and we must determine

whether this misuse was reasonably foreseeable such that Jeld-

Wen had a duty to safeguard against it.

     In addition, Gamble’s theory rests on the contention that

because the danger of falling through open windows with screens

is widely known, the “false latch” defect in Jeld-Wen’s screen

distinguishes this case from cases involving such falls where

non-defective window screens may in fact provide a modest level

of restraint.   In short, Gamble is asserting that because the

defect in Jeld-Wen’s screen would allow it to fall away from the

window more readily than a screen without a defect, it was

reasonable that Jeld-Wen would have foreseen the danger of the

misuse of the defective screen.   We disagree.

     Common knowledge of a danger from the foreseeable misuse of

a product does not alone give rise to a duty to safeguard

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against the danger of that misuse.   To the contrary, the purpose

of making the finding of a legal duty as a prerequisite to a

finding of negligence, or breach of implied warranty, in

products liability “is to avoid the extension of liability for

every conceivably foreseeable accident, without regard to common

sense or good policy.”   Pineda v. Ennabe, 72 Cal. Rptr. 2d. 206,

209 (Cal. Ct. App. 1998).   In this respect, manufacturers of

ordinary window screens are not charged with a duty to safeguard

against the misuse of their products as body restraints as this

misuse is not considered reasonably foreseeable despite, or

perhaps even because of, the obvious nature of the danger the

misuse presents.   See, e.g., Lamkin v. Towner, 563 N.E.2d 449,

458 (Ill. 1990); Drager v. Aluminum Industries Corporation, 495

N.W.2d 879, 884 (Minn. Ct. App. 1993).   The same rationale is

extended in many cases to landlords and property owners.   See,

e.g., Henstein v. Buschbach, 618 N.E.2d 1042, 1045 (Ill. App.

Ct. 1993); Vazquez v. City of New York, 596 N.Y.S.2d 115, 116

(N.Y. App. Div. 1993); Soproni v. Polygon Apartment Partners,

941 P.2d 707, 709-710 (Wash. Ct. App. 1997).

     It then does not logically follow that the alleged defect

in Jeld-Wen’s screen would impose a different or greater duty to

manufacture the screen so that it would act as a childproof

restraint if misused for that purpose.   Although the existence

of a defect is a factor in determining whether a product is

                                 7
unreasonably dangerous for the use to which it would ordinarily

be put, Morgen Industries, 252 Va. at 65-66, 471 S.E.2d at 492,

it is not the dispositive factor in determining the duty, if

any, to be imposed on the manufacturer to reasonably foresee a

particular misuse of its product.     See Turner v. Manning,

Maxwell & Moore, Inc., 216 Va. 245, 251, 217 S.E.2d 863, 868

(1975).   Therefore, here it is irrelevant that, absent this

defect, Jeld-Wen’s screen might have provided some level of

restraint, since, as we have already determined, the misuse of

the screen for balance and restraining support, however modest,

was not reasonably foreseeable.

     For these reasons, we hold, as a matter of law, that no

duty extended to Jeld-Wen to manufacture the screen in question

so that it would act as a childproof restraint.    Accordingly, we

will reverse the judgment of the circuit court and enter final

judgment for Jeld-Wen.

                                        Reversed and final judgment.




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