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Docket Number

Nos. 18049, 18050.

Attorney(S)

William F. McNagny, J.A. Bruggeman, Robert L. Thompson, Jr., Fort Wayne, Ind., for defendant-appellant; Barrett, Barrett McNagny, Fort Wayne, Ind., of counsel. Robert A. Foust, Marion, Ind., David B. Keller, Edward L. Murphy, Jr., Fort Wayne, Ind., for plaintiffs-appellees; Livingston, Dildine, Haynie Yoder, Fort Wayne, Ind., of counsel.

Judges

Walter Joseph Cummings

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Smart Summary

Case Summary: Michael Filler v. Rayex Corporation (7th Cir. Nov. 3, 1970)

Factual and Procedural Background

This is a diversity action arising from an on-field injury. At the time of the accident, plaintiff Michael Filler was a 16‑year‑old high school student practicing baseball on June 10, 1966. He was wearing "flip" baseball sunglasses manufactured by defendant Rayex Corporation when, after losing a fly ball in the sun, the ball struck the right side of the sunglasses. The right lens shattered into sharp splinters that pierced his right eye, necessitating removal of the eye nine days later. Michael's mother, Barbara Mitchell, sought recovery for hospitalization, an artificial eye, and physician services.

Prior to the season, the coach, Richard Beck, had purchased six pairs of Rayex "Professional Flip-Specs" baseball sunglasses after seeing Rayex advertising that promised "instant eye protection" and suitability for baseball. The boxes and guarantees stated the sunglasses were "baseball sunglasses — Professional Flip-Specs," that users could "Simply flip ... for instant eye protection," and contained a lifetime guarantee against breakage (subject to a postage/handling charge for repair). The lenses were thin (1.2 mm to 1.5 mm) and their thinness was not obvious to users because it was shielded by the frame.

The glasses were stored in coach Beck's car and, following team custom, Filler removed a pair and was using them when injured. Neither Filler, Beck, nor the defendant's president knew the lenses would shatter into sharp splinters when struck by a baseball.

After a bench trial, the district judge awarded damages to Filler in the amount of $101,000 and to his mother $1,187.75. The district court (in an unreported memorandum) sustained liability on three independent grounds: breach of an implied warranty, strict liability, and negligence. The Seventh Circuit reviewed the district court's judgment and affirmed.

Legal Issues Presented

Whether the manufacturer was liable for breach of an implied warranty of fitness for a particular purpose under Indiana's adoption of the UCC (Burns Ind. Stat. Ann. § 19-2-315) when the sunglasses were sold for use by baseball players.
Whether the manufacturer was subject to strict products liability under Section 402A of the Restatement (Second) of Torts for selling a product in a defective condition unreasonably dangerous to the user.
Whether the defendant could rely on the Comment k "unavoidably unsafe products" exception to Section 402A (i.e., that the product was unavoidably unsafe and thus not strictly liable).
Whether the manufacturer was negligent in design, testing, or warning (including negligent failure to warn users of the danger posed by the sunglasses).
Whether privity of contract between the manufacturer and the injured user was required under controlling Indiana law to support recovery under the identified theories.

Arguments of the Parties

Plaintiffs-Appellees' Theories and Positions

Plaintiffs pursued recovery on three theories: breach of an implied warranty of fitness for a particular purpose, strict liability for a product in a defective condition unreasonably dangerous to the user, and negligence.
The district judge accepted those theories and awarded damages on all three; the Seventh Circuit opinion treats those three grounds as independently supporting the judgment.

Defendant-Appellant's Arguments

Defendant argued against strict liability by asserting the sunglasses were "unavoidably unsafe products" and thereby within the exception described in Comment k to Section 402A of the Restatement (Second) of Torts.
Defendant claimed (implicitly) that, even if the product was unsafe, the state of the art might not have allowed production of a shatter-resistant or splinter-free baseball sunglass, invoking Comment k as a defense.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Posey v. Clark Equipment Company, 409 F.2d 560 (7th Cir. 1969)	Established that privity between manufacturer and plaintiff is not required under controlling Indiana law; cited for adoption of strict liability (Section 402A) in Indiana context.	The court relied on Posey to support that privity was not required and that Indiana has adopted the doctrine of strict liability for defective products under Section 402A.
Dagley v. Armstrong Rubber Company, 344 F.2d 245 (7th Cir. 1965)	Used to show that privity is not required under Indiana law for the relevant product liability theories.	Cited along with other cases to demonstrate controlling Indiana authority that privity is not necessary to pursue implied warranty, strict liability, or negligence claims against a manufacturer.
Greeno v. Clark Equipment Company, 237 F. Supp. 427 (N.D. Ind. 1965)	Another authority indicating privity is not required under Indiana law for these product-liability theories.	Referenced as part of the line of authority establishing that privity is not a prerequisite for recovery.
Spruill v. Boyle-Midway, Inc., 308 F.2d 79 (4th Cir. 1962)	Addresses the manufacturer's duty to anticipate reasonably foreseeable risks of product use.	The court cited Spruill to support the proposition that a manufacturer must anticipate reasonably foreseeable risks (here, that a baseball impact would shatter lenses) and therefore had constructive knowledge.
Indiana National Bank of Indianapolis v. De Laval Separator Co., 389 F.2d 674 (7th Cir. 1968)	Used in connection with liability for negligent failure to warn users of product dangers.	The opinion cited this case to support the conclusion that negligent failure to warn users of a dangerous product is actionable under Indiana law.

Court's Reasoning and Analysis

The Seventh Circuit affirmed the district court's judgment and explained its analysis under each theory the district court had employed:

Implied Warranty (UCC — Burns Ind. Stat. Ann. § 19-2-315)

The court held that an implied warranty of fitness for a particular purpose applied. It cited Indiana's adoption of Section 2-315 of the Uniform Commercial Code, which creates an implied warranty when the seller knows the particular purpose for which goods are required and that the buyer is relying on the seller's skill or judgment to provide suitable goods.

The court found the sunglasses were advertised and sold as "baseball sunglasses" promising "instant eye protection" and were intended for use by baseball fielders. Because the lenses were thin (1.2 mm to 1.5 mm) and lacked safety features such as plastic or shatterproof glass, they were in truth not fit for the particular purpose (baseball play) for which they were sold. Based on those facts, the court concluded breach of the implied warranty of fitness for a particular purpose was properly found.

Strict Liability (Restatement (Second) of Torts § 402A)

The court observed that Indiana has adopted the doctrine of strict liability for sellers of products "in a defective condition unreasonably dangerous to the user" (Section 402A), and cited Posey in support. The court determined the thinness of the lenses rendered them unreasonably dangerous because they shattered into exceedingly sharp splinters when broken, making the doctrine applicable.

The defendant attempted to invoke Comment k (unavoidably unsafe products) as a defense, asserting the product was unavoidably unsafe and that the state of the art may not permit a shatter‑resistant baseball sunglass. The court analyzed Comment k and concluded it does not provide a shield unless the product is "accompanied by proper ... warning." Because Rayex's sunglasses lacked any such warning, Comment k did not absolve the manufacturer of strict liability in this case.

Negligence

The court affirmed liability for negligence as well. It found that defendant had actual or constructive knowledge of the product's propensity to shatter — noting that "a hundred were returned daily for lens replacements" — and therefore should have anticipated the risk that a baseball impact would shatter lenses into sharp splinters. The court relied on the principle that manufacturers must anticipate reasonably foreseeable risks of use (citing Spruill).

The court also emphasized inadequate testing of the glasses' physical properties despite the obvious physical stresses expected during baseball play. Thus, even if the manufacturer was not negligent in producing a poorly constructed product, it was negligent in failing to warn users of the danger posed by the product. The opinion cited Indiana National Bank v. De Laval Separator Co. in support of negligent failure-to-warn liability.

Holding and Implications

JUDGMENT AFFIRMED.

Implications and direct consequences:

The Seventh Circuit affirmed the district court's award of $101,000 to Michael Filler and $1,187.75 to his mother for consequential damages.
The court sustained liability on three independent grounds: breach of implied warranty of fitness for a particular purpose (UCC § 2-315), strict liability under Restatement (Second) of Torts § 402A, and negligence (including negligent failure to warn).
The court held that the Comment k exception to strict liability did not apply where the defendant failed to provide proper warnings for an allegedly unavoidably unsafe product.
The opinion applies existing Indiana law (as interpreted by prior Seventh Circuit and district court authority) rather than announcing a new rule; the direct effect is to leave the district court's award intact and to confirm that, under the circumstances described, the manufacturer bears liability without a privity requirement under Indiana law.

This summary is limited to and based exclusively on the content of the provided opinion.

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Michael FILLER, by His Next Friend, Barbara Mitchell, and Barbara Mitchell, Plaintiffs-Appellees, v. RAYEX CORPORATION, a New York Corporation, Defendant-Appellant.

CUMMINGS, Circuit Judge.

In this diversity action, Michael Filler sued to recover damages for the loss of his right eye, and his mother, Barbara Mitchell, sought to recover her expenses for his hospitalization, artificial eye, and physician's services.

When his injury occurred, Michael Filler was a 16-year-old student at Oak Hill High School, near Marion, Indiana. While he was practicing for a varsity baseball game in the late afternoon of June 10, 1966, fungoes were being lofted to him by a fellow player. Filler lost a fly ball in the sun, although he was wearing flipped-down "baseball sunglasses" manufactured by defendant. After tipping the top of his baseball glove, the ball struck the right side of the sunglasses, shattering the right lens into sharp splinters which pierced his right eye, necessitating its removal nine days later.

Filler's coach was Richard Beck, an experienced ballplayer whose first baseball season at Oak Hill was in 1965. During that season, Beck would not allow his players to use sunglasses, considering them too dangerous. However, before the 1966 season, he read the following advertisement of defendant in Sporting News:

"PLAY BALL! and Flip for Instant Eye Protection with RAYEX Baseball SUNGLASSES Professional FLIP-SPECS"

The advertisement also stated:

"Scientific lenses protect your eyes with a flip from sun and glare anywhere * * * baseball, beach, boat, driving, golfing, fishing, just perfect for Active and Spectator Sports — World's finest sunglasses."

After seeing this material, Beck decided to buy six pairs of defendant's flip-type baseball sunglasses for use by his outfielders and second basemen. Each pair of sunglasses was in a cardboard box labeled "Baseball Sunglasses — Professional Flip-Specs," stating "Simply flip * * * for instant eye protection." The guarantee inside each box provided:

"Rayex lenses are guaranteed for life against breakage. If lens breakage occurs mail glasses and 50¢ (Postage Handling Charge) for complete repair service.

"Rayex Sunglasses are guaranteed to:

1. Eliminate 96% of harmful ultraviolet and infrared rays.

2. Protect your eyes against reflected glare from smooth surfaces, roads, water, snow, etc.

3. Retain clear, undistorted vision."

Except for the flip feature and elastic tape at the rear of the frame, the glasses resembled ordinary sunglasses. The thinness of the lenses was shielded by the frames and therefore not obvious to users.

These glasses were stored in the glove compartment of coach Beck's car, and in accordance with the custom of his teammates, Filler removed a pair of the sunglasses from the coach's car and was using them at the time of his injury. Neither Filler, nor Beck, nor indeed even defendant's president knew the lenses would shatter into sharp splinters when hit by a baseball.

After a bench trial, the district judge awarded Filler $101,000 damages and his mother $1,187.75 for her consequential damages. In an unreported memorandum opinion, the district judge supported this result on three independent grounds: implied warranty, strict liability, and negligence. Under any of those theories, privity between the manufacturer and plaintiff is not required by controlling Indiana law. Posey v. Clark Equipment Company, 409 F.2d 560, 563 (7th Cir. 1969); Dagley v. Armstrong Rubber Company, 344 F.2d 245, 252-254 (7th Cir. 1965); Greeno v. Clark Equipment Company, 237 F. Supp. 427 (N.D. Ind. 1965).

The court reserved judgment on an express warranty count, and we also do not consider that theory.

We agree that defendant is liable for breach of an implied warranty of fitness for a particular purpose. Indiana has adopted the implied warranty provision of the Uniform Commercial Code dealing with fitness for a particular purpose:

"Implied Warranty — Fitness for particular purpose. — Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose." Burns Indiana Stat.Ann. § 19-2-315.

These sunglasses were advertised as baseball sunglasses that would give "instant eye protection." Although they were intended for use by baseball fielders, the thickness of the lenses ranged only from 1.2 mm. to 1.5 mm., so that shattering into exceedingly sharp splinters would occur on their breaking. Since they lacked the safety features of plastic or shatterproof glass, the sunglasses were in truth not fit for baseball playing, the particular purpose for which they were sold. Therefore, breach of that implied warranty was properly found.

Indiana has adopted the doctrine of strict liability of sellers of products "in a defective condition unreasonably dangerous to the user," as provided in Section 402A of the Restatement of Torts Second. Posey v. Clark Equipment Company, 409 F.2d 560, 563 (7th Cir. 1969). Here the thinness of the lenses made them unreasonably dangerous to users, so that the doctrine of strict liability is applicable. However, defendant argues against strict liability, on the ground that the sunglasses were "unavoidably unsafe products" within the exception of Comment k to Section 402A. Even assuming arguendo that the state of the art is not capable of producing a shatter-resistant or splinter-free baseball sunglass as defendant claims, Comment k furnishes no shelter from liability in this case. The exception applies only when the product is "accompanied by proper * * * warning," which defendant's product lacked.

Finally, we also agree that defendant was liable for negligence. Defendant knew that these glasses shattered readily, for a hundred were returned daily for lens replacements. At least it had constructive knowledge that the impact of a baseball would shatter these lenses into sharp splinters, since it must anticipate the reasonably foreseeable risks of the use of the product. See Spruill v. Boyle-Midway, Incorporated, 308 F.2d 79, 83-85 (4th Cir. 1962); 2 Harper James, The Law of Torts, p. 1541 (1956). Moreover, despite the obviously physical stresses to which these glasses would be put, inadequate tests were made concerning their physical properties. Accordingly, even if defendant is not liable for negligence in production and sale of a poorly constructed product, it was properly held liable for its negligent failure to warn users of the danger of its product. Indiana National Bank of Indianapolis v. De Laval Separator Co., 389 F.2d 674, 676 (7th Cir. 1968).

Judgment is affirmed.

FILLER v. RAYEX CORPORATION