Aronson's Men's Stores, Inc., a Missouri Corp., Appellant, v. Potter
Electric Signal Company, Inc., a Missouri Corp., Respondent

Supreme Court of Missouri 632 S.W.2d 472---May 11, 1982

PRIOR HISTORY: From the Circuit Court of the City of St. Louis
Civil Appeal
Judge Daniel T. Tillman
DISPOSITION: Affirmed.

CASE SUMMARY
PROCEDURAL POSTURE: Appellant corporation challenged a judgment of the
Circuit Court of the City of St. Louis (Missouri), which entered a jury
verdict in favor of respondent corporation in appellant's action for damage
to its property based on strict liability in tort and breach of warranty
theories.

OVERVIEW: In 1957, appellant contracted with respondent to have respondent
install a burglar alarm system in one of appellant's stores. Appellant was
notified several years later that the system was outdated, but appellant
refused to spend the additional money to have the system updated. In its
action against respondent for damages as a result of stolen merchandise, the
jury rejected appellant's claims and returned a verdict in favor of
respondent. On appeal, appellant asserted that it was deprived of a fair
presentation and submission of its claim under a theory of strict liability.
The court affirmed the judgment, holding that appellant's instruction on
strict liability should not have been given as no cause of action was made
under that theory. The court found that although the alarm system may have
been arguably "defective," the record did not support a showing that the
product itself was in any way dangerous or "unreasonably dangerous."
Appellant could only properly put into issue the reasonableness of
respondent's actions in designing and selling the product under negligence
or warranty concepts.


OUTCOME: The court affirmed the trial court's judgment.

COUNSEL: Alan G. Kimbrell, St. Louis, Missouri, Attorney for Appellant;
Ralph C. Kleinschmidt, Gerre S. Langton, St. Louis, Missouri, Attorneys for
Respondent.

JUDGES: En Banc. Morgan, J.

OPINIONBY: MORGAN

OPINION: [*472] Appellant (plaintiff) filed this suit for damage to its
property based on strict liability in tort and breach of warranty; and,
after trial to a jury, a verdict was returned in favor of respondent
(defendant). Judgment was entered accordingly, and appeal was taken to the
Eastern District of the Court of Appeals. After an opinion affirming the
judgment was filed, we accepted transfer and now consider the matter as on
original appeal.

Milton H. Aronson is president of appellant and owns a majority of its
stock. The corporation owns men's stores in the St. Louis area, but our
interest is limited to the one store in the Hampton Village Shopping Center.

In 1957 Mr. Aronson contracted for the installation of a burglar alarm by
Merchants Alarm System which was taken over by respondent, Potter Electric
Signal Company, Inc. The alarm was a "local" type which rings only [**2] at
the location. It consisted of three major parts in addition to the wiring:
an alarm switch box located on the left side of the front door as viewed
from inside; a box containing batteries located on the inside wall to the
right of the front door; and a key arrangement outside the door by which the
system was activated. The contract called for appellant to lease the alarm
and to pay a monthly fee for service and maintenance. Signing of formal
renewal agreements ceased in 1970 because only the "fee" would be changed
each year, plus some suggestion Mr. Aronson disapproved of a liquidated
damage clause therein.

On the weekend in question, an assistant manager followed the usual routine
when he closed the store on Saturday. He turned on the inside switch,
checked to see if the power was on, locked the front door and then activated
the alarm with the outside key. On his return to the store on Monday, he
deactivated the alarm from the outside and started to unlock the door. To
his surprise the inside portion of the lock fell to the floor, and at that
time he noticed that merchandise and certain furnishings of a [*473]
wholesale value of $22,651.54 had been stolen.

The evidence indicated [**3] that Mr. Aronson had been warned that his
system was outdated and could be described as a "horse and buggy" system;
that he had rejected any suggestion that it be updated; that he did not want
to spend the additional money although he had been the victim of three prior
burglaries at other stores. Thereafter, as noted, the jury rejected
appellant's claims and returned a verdict in favor of respondent.

As requested by appellant, the trial court submitted the cause to the jury
upon two theories: one being breach of warranty of fitness for a particular
use (MAI 25.03) n1 and the other being strict liability in tort (MAI 25.04).
n2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -


n1 Instruction No. 4:

Your verdict must be for plaintiff if you believe:

First, defendant leased an alarm system to plaintiff, and

Second, the defendant knew or should have known by using ordinary care of
the use for which plaintiff leased the alarm system, and

Third, plaintiff reasonably relied upon defendant's judgment as to the
fitness of the alarm system for such use, and

Fourth, the alarm system was not fit for such use, and

Fifth, as a direct result plaintiff was damaged. [**4]



n2 Instruction No. 5:

Your verdict must be for plaintiff if you believe:

First, defendant leased the alarm system in the course of defendant's
business, and

Second, the alarm system was then in a defective condition unreasonably
dangerous when put to a reasonably anticipated use, and

Third, the alarm system was used in a manner reasonably anticipated, and

Fourth, plaintiff was damaged as a direct result of such defective condition
as existed when the alarm system was leased.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Appellant has not raised any issue on appeal relating to the submission
under a breach of warranty theory, but does assert that he was deprived of a
fair presentation and submission of his claim under a theory of strict
liability.

Missouri adopted the theory of strict liability in tort as set forth in
Restatement of Torts, Second, Sec. 402A, in the case of Keener v. Dayton
Electric Mfg. Co., 445 S.W.2d 362 (Mo. 1969). The relevant portion of 402A
provides that:
One who sells any product in a defective condition unreasonably dangerous to
the user or consumer or to his property is subject to liability for [**5]
physical harm thereby caused to the ultimate user or consumer or to his
property. . . .


Appellant's submission under strict liability, as shown by the allegations
in its petition, was based upon the burglar alarm being in a defective
condition, unreasonably dangerous, because: (1) it failed to sound a
reasonable alarm for a reasonable period of time, (2) the control box was
too close to the door to prevent easy deactivation and (3) the absence of a
locking device allowed the same.

In passing, we do note that the evidence fails to establish whether or not
the burglar alarm actually did ring and if it did, for how long.
Nevertheless, only two points are carried forward by appellant, and they are
closely related.

First, that during closing argument plaintiff sought to advise the jury
that: "Unreasonably dangerous, it doesn't just mean dangerous [to] persons
as used here, it also means dangerous to property," and that the trial court
erred in sustaining an objection to the argument. Appellant seeks to justify
the argument because Instruction No. 5 does not so advise; and, respondent
defends the ruling as preventing appellant from injecting a false issue in
that "[there] was nothing [**6] in the evidence to show that any person had
been endangered by the alarm system."

Second, that the court erred in refusing to define the term "unreasonably
dangerous" as requested by the jury during its deliberations because the
term is vague and ambiguous. Respondent suggests that to have done so would
have been erroneous under Houston v. Northup, 460 S.W.2d 572 (Mo. banc 1970)
wherein the Court, at 575, ruled that: "Implicit in a scheme of approved
[*474] pattern instructions such as MAI is the central idea that such
instructions do not require further clarification or amplification. They
submit ultimate issues and do so adequately."

In recognition of the arguments as made, we note that it would not be
difficult to conclude that appellant correctly states the law reference
point one in light of Blevins v. Cushman Motors, 551 S.W.2d 602 (Mo. banc
1977) and Winters v. Sears, Roebuck and Co., 554 S.W.2d 565 (Mo. App. 1977),
but not as to point two under the prevailing law announced in Houston v.
Northup, supra. However, upon our review of the transcript and record,
neither issue need be reached.

A defective condition, as found in the Comments to Sec. 402A, para. [**7]
(g), is a "condition not contemplated by the ultimate consumer which will be
unreasonably dangerous to him." Paragraph (i) of the same Comments explains
that unreasonably dangerous means that: "The article sold 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." While the burglar alarm was arguably
"defective" as designed and installed, it was in no sense dangerous and
certainly not "unreasonably dangerous" as contemplated by Section 402A.
Neither the control box, nor any other part of the system, exploded, ignited
or caused harm to appellant's property in any manner, much less suddenly or
violently. The most that can be drawn from the pleadings and evidence is
that the alarm did not render a level of performance which appellant thought
reasonable. Therefore, its proper course was to submit under a negligence or
warranty concept.

Negligence and strict liability cases, though viewed similarly in some
jurisdictions, are distinguished in our state. As this Court noted in
Blevins v. Cushman Motors, supra, at 607-08[4]: ". . . there exists [**8]
an important distinction between the two concepts. In negligence cases the
duty owed is based on the foreseeable 'or reasonable anticipation that harm
or injury is a likely result of acts or omissions.' Hull v. Gillioz, 344 Mo.
1227, 130 S.W.2d 623, 628 (1939); Taylor v. Hitt, 342 S.W.2d 489, 494 (Mo.
App. 1961). On the other hand, strict liability in tort is based in part on
the foreseeable, or 'reasonably anticipated' use of the product, Keener,
supra, 445 S.W.2d at 366, rather than on the reasonably anticipated harm the
product may cause. [5] Stated another way, the difference between negligence
and strict liability in tort in defective design cases '. . . is in strict
liability, we are talking about the condition (dangerousness) of an article
which is designed in a particular way, while in negligence we are talking
about the reasonableness of the manufacturer's actions in designing and
selling the article as he did. The article can have a degree of
dangerousness which the law of strict liability will not tolerate even
though the actions of the designer were entirely reasonable in view of what
he knew at the time he planned and sold the manufactured article.' [**9]
Phillips v. Kimwood Machine Co., 269 Or. 485, 525 P.2d 1033, 1037 (1974);
Roach v. Kononen, 269 Or. 457, 525 P.2d 125, 129 (1974)."

When examined in light of this distinction, it becomes obvious that
appellant could only put into issue the reasonableness of the respondent's
actions in designing and selling the product and not any dangerous condition
of the product itself. Hence, the strict liability in tort instruction
should not have been given as no cause of action was made under that theory.

Appellant's proper submission was under negligence or warranty concepts. It
elected to submit under a warranty theory which was rejected by the jury and
we find no reason to disturb that finding.

The judgment in favor of respondent is affirmed.

All Concur.