Analysis: Retroactive application standard

As noted above, Saberhagen first raised the issue of retroactive application of § 402A in the appeal of Lunsford I. There, Saberhagen argued that

[w]hile § 402A was eventually adopted and applied to manufacturers . . . in the 1969 Ulmer decision, and was applied to product sellers . . . in the 1975 Tabert decision, it would be fundamentally unfair to Saberhagen to retroactively impose upon its business activities and conduct in 1958 duties and liabilities that did not exist yet and would not come into existence for another 17 years.

On remand, Saberhagen argued that "[b]ecause § 402A was not the law of Washington in 1958, and because there was no other applicable theory of strict liability at that time, as a matter of law Saberhagen cannot be held liable to plaintiffs under a strict liability theory." Lunsford, characterizing Saberhagen’s argument as a "retroactivity" argument, countered that "[i]n recognition of these long-standing rules, the courts of this State have frequently, without caveat, applied strict liability to asbestos actions in which the plaintiff’s exposure occurred prior to the publication of Restatement § 402A."

Lunsford goes on to list five cases in which plaintiffs recovered on theories of strict product liability for asbestos exposure occurring at least in part before 1958. Finally, in the summary judgment hearing, Lunsford’s counsel argued "[b]ut the fact is those exposures occurred prior to the adoption of either one [Ulmer or Tabert] in ’68 or in ‘75. And by implication, the court of appeals has consistently applied strict liability to those exposures that have occurred prior."

Saberhagen’s objection is not well taken. Saberhagen asserts that strict liability should not be applied to exposures occurring before the adoption of § 402A in Ulmer and Tabert. This is a question of prospective versus retroactive application. Lunsford recognized Saberhagen’s argument for what it was and responded. The issue of retroactive application of § 402A is properly before us.