United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge.
matter is before the Court on HANKOOK TIRE COMPANY
LIMITED'S AND HANKOOK TIRE AMERICA COMPANY'S MOTION
FOR SUMMARY JUDGMENT (ECF No. 62) . The Court previously
denied Defendants' motion in its ORDER (ECF No. 221)
dated November 27, 2017. The following Memorandum Opinion
sets out the reasoning for having done so.
products liability action, Robert Benedict sues Hankook Tire
Company Limited ("HTCL") and Hankook Tire America
Corporation ("HTAC") for the production and
distribution of an allegedly defective tire. Defendants seek
summary judgment as to Benedict's active claims.
Undisputed Relevant Facts
November 14, 2014, Robert Benedict was driving a cement mixer
truck for his employer, Essex Concrete ("Essex").
While travelling along Route 288 in Chesterfield County,
Virginia, Benedict's front-right tire (the "subject
tire") suffered a tread separation, and his truck veered
off the right-hand side of the road, struck an embankment,
and rolled over. Benedict was injured in the accident.
subject tire was a Hankook Aurora TH08 Radial 425/65 R22.5.
It was manufactured by HTCL in 2005 and then shipped to HTAC
for distribution in the United States.
did not purchase the subject tire new or directly from HTAC.
Rather, the subject tire was one of three Hankook Aurora TH08
425/65 R22 . 5 tires sold by Hankook tire dealer Old Dominion
Tire ("Old Dominion'') to Metro Ready Mix
("Metro") between January 31, 2006 and June 29,
2007. Essex then purchased the truck at issue from Metro with
the subject tire installed in May 2014.
had no knowledge about the subject tire's history prior
to its acquisition. However, Essex performed an inspection of
the truck when it was purchased, conducted follow-up
inspections every 300 hours, and required daily pre-trip
inspections by drivers. A state inspection was also completed
in October 2014.
cuts extending to the belts have been found on the subject
tire. Federal regulations require removing tires from service
if they suffer cuts of a specified level of severity.
Hankook Aurora tire catalogue included a limited warranty,
which purported to operate in lieu of other warranties. The
limited warranty covered tires for six years from the date of
manufacture or five years from the date of purchase, and,
therefore, if it applied to the subject tire it expired well
before the accident.
detailed description of Benedict's theory of the subject
tire's defects appears in the Court's Opinion
addressing Defendants' motion to exclude the testimony of
David Southwell. (ECF No. 342). In short, Benedict alleges
that the subject tire was defective and hence failed because
its components were improperly bonded and had degraded from
oxidization due to an inner liner that was too thin.
See Defs.' Br. 14-15; Pl.'s Opp'n 16-17.
initially asserted three claims: (1) products liability
negligence (including manufacturing defect, design defect,
and failure to warn); (2) breach of the implied warranty of
merchantability; and (3) breach of the implied warranty of
fitness for a particular purpose. First Am. Compl. 5-11. He
is now pursuing only his negligent manufacturing and implied
warranty of merchantability claims. Nov. 20, 2017 Hr'g
raised several affirmative defenses in response, including
contributory negligence and exclusion of implied warranties.
HTCL's Answer to First Am. Compl. 9-10; HTAC s Answer to
First Am. Compl. 9-10.
sides then moved for summary judgment. Benedict sought
summary judgment as to Defendants' contributory
negligence defense. Defendants sought summary judgment as to
Benedict's active claims. Related to their motion,
Defendants also asked this Court to exclude the testimony of
Benedict's tire expert, David Southwell. The Court ruled
on these three motions during a hearing held on November 20,
2017, Nov. 20, 2017 Hr'g Tr. 152, and issued an ORDER
(ECF No. 221) on November 27, 2017 formalizing its decision.
This Opinion is thus one of three detailing the Court's
reasoning in this matter. (ECF Nos. 341-43).
GOVERNING LEGAL STANDARDS
for summary judgment are governed by the following
Federal Rule of Civil Procedure 56(a) instructs that a court
"shall grant summary judgment if the movant shows that
there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A genuine issue of material fact exists
under Rule 56 "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
When evaluating a motion for summary judgment under Rule 56,
any disputed "facts must be viewed in the light most
favorable to the nonmoving party." Scott v.
Harris, 550 U.S. 372, 380 (2007) . In general, the
"party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion" and "demonstrat[ing] the absence of
a genuine issue of material fact." Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
United States v. Woody, 220 F.Supp.3d 682, 685-86
(E.D. Va. 2016). "Once the moving party properly files
and supports its motion for summary judgment, the opposing
party must show that a genuine issue of fact exists."
Milbourne v. JRK Residential Am., LLC, 92 F.Supp.3d
425, 427 (E.D. Va. 2015).
The Virginia Basic Products Liability Framework
basic analytical framework applicable to products liability
claims in Virginia is the same whether a plaintiff is
bringing a negligence or breach of implied warranty action.
See Jeld-Wen, Inc. v. Gamble by Gamble, 501 S.E.2d
393, 396 (Va. 1998). In general, a products liability
plaintiff must establish three elements: (1) the product must
contain a "defect which rendered it unreasonably
dangerous for ordinary or foreseeable use"; (2) the
defect must have "existed when it left the
defendant's hands"; and (3) the defect must have
"actually caused the plaintiff's injury."
Alevromagiros v. Hechinger Co., 993 F.2d 417, 420
(4th Cir. 1993); see also Jeld-Wen, 501 S.E.2d at
plaintiff to prove that an "unreasonably dangerous"
defect existed, "[h]e or she must establish the
violation of industry or government standards, or prove that
consumer expectations have risen above such standards."
Alevromagiros, 993 F.2d at 422; see also
Sutherlin v. Lowe's Home Ctrs., LLC, 3:14-cv-368,
2014 WL 7345893, at *8-9 (E.D. Va. Dec. 23, 2014) (applying
this standard in the manufacturing defect context). Cf.
Sutton v. Roth, L.L.C., 361 Fed.Appx. 543, 546-47 (4th
Cir. 2010) (similar). These issues are somewhat layered and,
accordingly, the most appropriate approach is to analyze them
in succession. See, e.g., Norris v. Excel
Indus., Inc., 139 F.Supp.3d 742, 747-54 (W.D. Va. 2015);
Lemons v. Ryder Truck Rental, Inc., 906 F.Supp. 328,
331-33 (W.D. Va. 1995).
first element is straightforward. It examines whether there
are government standards applicable to a given product and
whether those standards were violated. See Norris,
139 F.Supp.3d at 748-49.
there is no violation of government standards, the same
inquiry is conducted concerning industry standards.
Norris, 139 F.Supp.3d at 749-51. There are two
points worth highlighting at this stage, however. First,
industry standards mean "formally promulgated"
standards, such as those adopted by official industry
organizations, not "mere industry custom." See
id. at 7 4 9-50; Tunnell v. Ford Motor
Co., 4:03-cv-74, 2004 WL 1798364, at *3, 7 (W.D. Va.
June 21, 2004), adopted in relevant part, 2004 U.S.
Dist. LEXIS 32435 (W.D. Va. Aug. 25, 2004). Second, an
absence of such standards does not end the analysis but
rather triggers an "in-between" step (the
"expert safety" step) before consumer expectations
are assessed. See, e.g., Alevromagiros, 993
F.2d at 421; Blevins v. New Holland N. Am.,
Inc., 128 F.Supp.2d 952, 957-58 (W.D. Va. 2001);
Lemons, 906 F.Supp. at 331-33.
"expert safety" step authorizes courts to rely on
expert testimony to determine whether a product is
unreasonably dangerous when there is no "established
norm in the industry, " and that assessment is made
without evaluating what reasonable consumers expect.
See Alevromagiros, 993 F.2d at 421 (quoting Ford
Motor Co. v. Bartholomew, 297 S.E.2d 675, 679 (Va.
1982)); see also Blevins, 128 F.Supp.2d at 957;
Lemons, 906 F.Supp. at 331-32. In
Bartholomew, for instance, as described by the
Fourth Circuit in Alevromagiros:
The [Supreme Court of Virginia] found that the automobile
industry had not yet promulgated safety standards relating to
this particular problem. Consequently, the court admitted the
opinion of plaintiff's expert that the car's design
was unreasonably dangerous, based on information published by
the [NHTSA], consultation with other experts, and experiments
with transmission systems ....
Alevromagiros, 993 F.2d at 421;
Bartholomew, 297 S.E.2d at 679-80. Likewise, in
Lemons, the court held that: (1) "Virginia law
permits the admission of expert opinions on safety in the
absence of an industry standard"; and (2) only after
"fail[ing] to prove a violation of an industry or
government safety standard, or . . . any other safety
standard, plaintiff must establish that reasonable consumer
expectations were violated." Lemons, 906
F.Supp. at 332. Other courts have reached similar
conclusions. See Wilder v. Toyota Motor Sales, U.S.A.,
Inc., 23 Fed.Appx. 155, 156-57 (4th Cir. 2001) (per
curiam) (citing Lemons, 906 F.Supp. at 332-33);
Hartnett v. Globe Firefighter Suits, Inc., 155 F.3d
559, at *2 (4th Cir. June 29, 1998) (per curiam) (table);
Freeman v. Case Corp., 118 F.3d 1011, 1016-17 (4th
Cir. 1997); Norris, 139 F.Supp.3d at 750-51;
Tunnell, 2004 WL 1798364, at *5-8; Blevins,
128 F.Supp.2d at 957; Lamonds v. Gen. Motors Corp.,
96-0067-C, 1998 WL 372633, at *1-2 (W.D. Va. June 25, 1998);
Duncan v. Hyundai Motor Co., CL10-0503, 2013 WL
9564176, at *4 (Va. Cir. Ct. Nov. 1, 2013), rev'd on
other grounds sub nom. Hyundai Motor Co., Ltd. v.
Duncan, 766 S.E.2d 893 (Va. 2015) .
just any expert testimony, however, will satisfy the
expert safety step. Rather, expert opinions must be
analytically rigorous and not merely "subjective."
See Freeman, 118 F.3d at 1016-17;
Alevromagiros, 993 F.2d at 421. An appropriate
expert opinion will be one that, for example, is based on
"a review of the literature, experiments and
consultations with other experts." See Blevins,
128 F.Supp.2d at 957; see also Freeman, 118 F.3d at
1016-17 (holding that an expert's opinion was adequate
where he "clearly applied his expertise and knowledge of
the published sources and drew from his detailed inspection
of the product itself in evaluating the configuration at
issue"); Alevromagiros, 993 F.2d at 421
("[T]here is neither an absence of industry standards,
nor an expert opinion based on extensive testing and
published reports."); Lamonds, 1998 WL 372633,
at *2 ("[T]he Alevromagiros expert failed to
conduct tests on the allegedly defective product, did not
refer to any literature in the field, and did not consult
industry standards. Conversely, the expert in
Freeman reviewed published reports, inspected the
product at issue, and performed tests on the product."
(citations omitted)); Lemons, 906 F.Supp. at 332
(asserting that Alevromagiros required "an
expert opinion based on extensive testing and published
reports" and that Bartholomew held "that
an expert opinion had proper foundation where the expert
studied relevant federal manuals and data, consulted with
other experts, and experimented with the specific product
alleged to have caused the accident as well as several
competing products" (citations omitted)).
if no defect can be established on the basis of industry
standards, the final step is to examine whether the product
failed to satisfy consumers' reasonable expectations.
See, e.g., Norris, 139 F.Supp.3d at 751.
This element can be met through evidence of "actual
industry practices, knowledge at the time of other injuries,
knowledge of dangers, the existence of published literature,
and from direct evidence of what reasonable purchasers
considered defective at the time." Id.
(citations omitted); see also Alevromagiros, 993
F.2d at 420-21. At this stage, although "conformity with
industry custom does not automatically absolve a manufacturer
or seller of a product from liability .... [it] "may be
conclusive when there is no evidence to show that it was not
reasonably safe.'" Alevromagiros, 993 F.2d
at 421 n.6 (citations omitted).
The Expert Testimony Argument
first argument is that Benedict cannot survive summary
judgment without expert testimony. Defs.' Br. 11-13.
Thus, if this Court were to have granted Defendants'
motion to exclude Southwell's testimony, Benedict's
claims should fail as a matter of law. Defs.' Br. 13.
Because the Court denied that motion, however, it is not
necessary to address what might have happened if
Southwell's testimony had been stricken.
The Negligent Manufacturing Claim
The Applicable Legal Standards Governing the Negligent
primary issue to be resolved is the extent to which, under
Virginia law, claims asserting negligent
manufacturing necessitate more proof than the basic products
liability framework. Defendants assert that Benedict must
establish a distinct "standard of care" against
which Defendants' conduct can be measured. Defs.' Br.
13-22; Defs.' Reply Br. 2-5. Benedict counters that no
particularized standard of care need be shown and that the
inquiry instead should "focus on the dangerous nature of
the product." Pl.'s Opp'n 4-9, 16-17. Benedict
is largely correct.
Defendants' view that not to require proof of a
standard of care would essentially transform negligent
manufacturing claims into breach of warranty or strict
liability claims. See Defs.' Reply Br. 2-5.
Viewed as theory, that position is not an erroneous one.
However, Virginia largely has abandoned the distinctions
between negligence and non-negligence causes of action in
products liability actions. And Virginia decisional law has
done so notwithstanding the fact that Virginia officially
does not recognize the doctrine of strict products liability.
See Harris v. T.I., Inc., 413 S.E.2d 605, 609-10
(Va. 1992); Sensenbrenner v. Rust, Orling & Neale,
Architects, Inc., 374 S.E.2d 55, 57 n.4 (Va. 1988).
decisions have obtained this result by treating the
"negligence" and "standard of care"
inquiries in such cases as inextricably "bound up"
with the question of whether the product at issue is
"unreasonably dangerous." In essence, Virginia law
considers a defendant to be negligent and to have violated
the standard of care if it produces an unreasonably dangerous
product that causes injury.
"bound up" principle is supported by a long line of
decisions that routinely cite the basic products liability
inquiry described above as the standard governing
negligence actions, often stating, for example:
"[t]o prevail in a products liability case under
Virginia law, the plaintiff must prove": (1)
"that the product contained a defect which rendered it
unreasonably dangerous for ordinary or foreseeable use";
(2) "that the defect existed when it left the
defendant's hands"; and (3) causation. See
Alevromagiros, 993 F.2d at 420 (emphasis added);
see, e.g., Wilder, 23 Fed.Appx. at 156-58;
Redman v. John D. Brush & Co., 111 F.3d 1174,
1177 (4th Cir. 1997); Sutherlin, 2014 WL 7345893, at
*7-8; Jeld-Wen, 501 S.E.2d at 396; Morgen
Indus., Inc. v. Vaughan, 471 S.E.2d 489, 492 (Va. 1996);
Slone v. Gen. Motors Corp., 457 S.E.2d 51, 54 (Va.
1995); Logan v. Montgomery Ward & Co., Inc., 219
S.E.2d 685, 687 (Va. 1975). This standard governs, moreover,
regardless of whether the claim sounds in negligence or
breach of warranty. See, e.g., Jeld-Wen,
501 S.E.2d at 396; Morgen Indus., 471 S.E.2d at 492;
Slone, 457 S.E.2d at 54; Logan, 219 S.E.2d
at 687; see also Musick v. Dorel Juvenile Grp.,
Inc., 847 F.Supp.2d 887, 901 (E.D. Va. 2012),
aff'd sub nom. S.L.M. ex rel. Musick v. Dorel
Juvenile Grp., Inc., 514 Fed.Appx. 389 (4th Cir. 2013)
(per curiam) (rejecting an argument that the given jury
"instructions improperly collapsed [the plaintiff's
warranty and negligence] theories . . . into a single concept
of Mefect'" because these claims essentially have
the same elements). In fact, the Supreme Court of Virginia
has expressly held that asserting the main elements of the
basic products liability inquiry is sufficient to sustain a
claim. See Slone, 457 S.E.2d at 54 (holding that
summary judgment was improper where the plaintiff "pled,
in his negligence and breach of warranty claims, that the
truck cab was unreasonably dangerous, that the
unreasonably dangerous condition existed when it left
General Motors' possession, and that the possibility
of a 'rollover, ' a misuse, was reasonably
foreseeable on the part of General Motors."
adherence to the "bound up" principle is
underscored by the fact that Virginia law still does treat
negligence-based products liability claims as governed by
traditional negligence concepts. For example, in Holiday
Motor Corp. v. Walters, the Supreme Court of Virginia
observed that "[o]ur well-settled jurisprudence
establishes that the manufacturer of a product is only under
a duty 'to exercise ordinary care to design a product
that is reasonably safe for the purpose for which it is
intended.'" Holiday Motor Corp. v. Walters,
790 S.E.2d 447, 455 (Va. 2016) (quoting Turner v.
Manning, Maxwell & Moore, Inc., 217 S.E.2d
863, 868 (Va. 1975)); see also Dameron v. Fort Worth
Steel & Mach. Corp., LE 1626, 1985 WL 306781, at
*3-4 (Va. Cir. Ct. Mar. 26, 1985). This "duty"
element, however, adds little to the analysis beyond the
basic products liability framework and does not require
further evidence of a standard of care.
when the issue of duty arises explicitly in Virginia state
courts, the question is typically whether the law imposes a
duty at all rather than how to define the standard of care
delineating the contours of that duty. See, e.g.,
Walters, 790 S.E.2d at 455-58; Jeld-Wen,
501 S.E.2d at 396-97; Slone, 457 S.E.2d at 53-54;
Turner, 217 S.E.2d at 868-69; Dameron, 1985
WL 306781, at *3-4, 7. Even in this context, however, the
inquiry is guided by the basic products liability framework.
The touchstone of the duty question is often whether an item
has been used in an "intended or reasonably
foreseeable" way. See, e.g., Walters,
790 S.E.2d at 455, 458; Jeld-Wen, 501 S.E.2d at
396-97; Slone, 457 S.E.2d at 53-54; Turner,
217 S.E.2d at 868; see also Morgen Indus., 471
S.E.2d at 492 (holding that there was sufficient evidence
that a particular use of a product was foreseeable but
attributing the analysis to the basic products liability
framework rather than the duty inquiry). And in
Walters, the court performed a duty analysis in part
by examining whether there were government standards,
industry standards, or consumer expectations on point.
Walters, 790 S.E.2d at 455-58.
the existence of a distinct duty does not meaningfully
differentiate negligence-based claims from warranty-based
ones. In Walters, for instance, the Supreme Court of
Virginia treated the duty elements of negligence and breach
of warranty theories as largely equivalent:
Our well-settled jurisprudence establishes that the
manufacturer of a product is only under a duty "to
exercise ordinary care to design a product that is reasonably
safe for the purpose for which it is intended."
Similarly, "an implied warranty of general
merchantability [arises] when the product is being used in
the manner intended for it. The implied warranty does not
apply when the product is being used in a manner or for a
purpose for which it was not intended." Thus,
"the 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."
See Walters, 790 S.E.2d at 455 (emphasis added)
(citations omitted). Walters then explains that
"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." Id. (emphasis added)
(quoting Jeld-Wen, 501 S.E.2d at 397) . A footnote
to this sentence then noted that a breach of either duty is
shown by proving that "the product contained an
unreasonably dangerous condition that existed when the
product left the defendant's hands." See
id. at 455 n.14.
when Virginia state court decisions do touch on the breach of
duty or standard of care issue, they reveal that the issue is
defined by the basic products liability test. In
Walters, for instance, the Supreme Court of Virginia
observed that "[e]xistence of duty, "
i.e., whether the law imposes a duty at all,
"is an issue that is separate and distinct from its
breach." See Walters, 790 S.E.2d at 455 n.14.
It then noted that "to establish a breach of duty in a
product liability action, " i.e., a violation
of the standard of care in the negligence context, a
plaintiff must satisfy the basic products liability inquiry.
in Dameron, a Virginia Circuit Court offered a
detailed description of the duty of care applicable to
It is a fundamental principle that the manufacturer of a
product is held to a standard of reasonable care. The duty of
reasonable care is that care, skill, and diligence in and
about the process of manufacturing and preparing for market
that a reasonably skillful and diligent person or a
reasonably prudent person would use under the same or similar
circumstances. Thus, a manufacturer of an article has the
duty of exercising reasonable care at least to see that there
is no risk of injury from negligent manufacture where the
article is used in the ordinary manner for which it is
intended. The manufacturer has the duty to see that the
article is free of any potentially dangerous defect or defect
that might be expected to produce personal injuries or
property damage. In addition, the manufacturer has the duty
of making the product reasonably safe for any anticipated
emergency and he must provide proper safety devices where
required under the circumstances and under the duty of
Dameron, 1985 WL 306781, at *3 (emphasis added)
(citations omitted). It then stated, however:
In a negligence action against a manufacturer in Virginia the
plaintiff must show: (1) that the goods were unreasonably
dangerous either for the use to which they would ordinarily
be put or for some other reasonabley [sic] foreseeable
purpose, and (2) that the unreasonably dangerous condition
existed when the goods left the defendant's hands.
Id. at *4 (citations omitted). In short, as in
Walters, the court concluded that a breach of the
manufacturer's duty of ordinary care is determined by
applying the basic products liability test.
in Turner, the court recognized that even if the use
of a product were foreseeable, "[industry] custom or
usage may be conclusive" as to whether "due
care was exercised" where "there is no
evidence to show that it was not reasonably safe."
Turner, 217 S.E.2d at 868 (emphasis added). Industry
custom is a standard captured by the basic products liability
framework, and Turner's language has been interpreted as
relating to that framework. See Alevromagiros, 993
F.2d at 421, 421 n.6.
federal opinions likewise define the breach of duty or
standard of care issue with reference to the basic products
liability inquiry. For example, in Sutton, the
Fourth Circuit held that evidence of a standard of care is
required in a products liability action but that
"government standards, industry standards, or the
reasonable expectations of consumers can constitute evidence
of a standard of care." Sutton, 361 Fed.Appx.
at 546-47. Similarly, in Holmes v. Wing Enterprises,
Inc., this Court viewed the issue of whether the product
violated any relevant standards as encompassing the standard
of care question. See Holmes v. Wing Enters., Inc.,
1:08-cv-822, 2009 WL 1809985, at *6-8 (E.D. Va. June 23,
2009) (citing the basic products liability test and then
stating: "Here, the industry-promulgated ANSI standards
. . . are directly on point and help guide the standard
of care analysis in this case" (emphasis added)).
Additionally, in Marshall v. H. K. Ferguson Co.,
Judge Sprouse, dissenting on unrelated grounds, offered the
following illuminating overview of a manufacturer's duty:
A manufacturer is under a duty to exercise ordinary care to
design a product that is reasonably safe for the purpose for
which it is intended. As the majority opinion correctly
notes, plaintiff thus has the burden of proving that (1) the
[product] was unreasonably dangerous either for the use to
which it would ordinarily be put or for some other reasonably
foreseeable purpose, and that (2) the unreasonably dangerous
condition existed when the machine left the defendant's
Marshall v. H. K. Ferguson Co., 623 F.2d 882, 887
(4th Cir. 1980) (Sprouse, J., dissenting) (emphasis added)
(citations omitted). There are other examples. See,
e.g., Harter v. Ethicon, Inc., 2:12-cv-737,
2016 WL 7407425, at *4 (S.D. W.Va. Dec. 15, 2016); Ali v.
Allergan USA, Inc., 1:12-cv-115, 2012 WL 3692396, at
*7-8 (E.D. Va. Aug. 23, 2012) .
"bound up" principle is further confirmed by the
Virginia Model Jury Instructions. They validate this principle
in two ways.
the Instructions substantiate the conclusion that a
negligence claim does not require more than an implied
warranty theory. Instruction 34.075, titled Breach of
Warranty (Negligence) By Seller or Manufacturer, contains
alternative entries for breach of warranty and negligence
that precisely mirror each other:
The defendant (seller, manufacturer) has breached the implied
warranty that the product is fit for the purposes for which
it is ordinarily used if the plaintiff proves by a
preponderance of the evidence 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 that the unreasonably dangerous ...