ANTHONY KENT GAMBLE, BY
AND NEXT FRIEND, LaDONNA
June 5, 1998
Record No. 972103
ANTHONY KENT GAMBLE, BY HIS MOTHER
AND NEXT FRIEND, LaDONNA GAMBLE
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Jr., Judge
Present: All the Justices
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
windows 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-Wens
liability, alleging both negligence in the manufacture of the
window frame and screen and breach of implied warranty of
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 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 the day
in question, resulting in a "false latch" as alleged by
Gamble was approximately twenty-eight inches in height and
weighed seventeen pounds, thirteen ounces. According to his
fathers testimony, Gamble was standing on the cushions of a
loveseat that backed up to the window. Gambles 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, Gambles 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 jurys 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 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
manufacturers 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).
Applying these principles, we think it is clear that
Jeld-Wens 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-Wens 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.  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
The initial difficulty with Gambles theory is that it
fails to draw the necessary distinction between the
foreseeability of the screen being dislodged by the childs
touch and the foreseeability of the childs 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 childs
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, Gambles 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-Wens 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-Wens 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.
Common knowledge of a danger from the foreseeable misuse of a
product does not alone give rise to a duty to safeguard 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-Wens 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
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-Wens 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.
 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.
 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 manufacturers
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.