Wilkinson

Plaintiff appeals from a verdict in favor of defendant Bay Shore Lumber, the supplier of a defective board of lumber. Plaintiff, a carpenter, was building an outrigger on the roof of a house when he accidentally stepped on the defective board which broke due to internal dry rot wholly concealed from view. Plaintiff, who fell about 10 to 12 feet to the concrete below, severely injured his left knee. Plaintiff sued defendant, among others, under theories of negligence and strict liability for supplying the defective wood. Plaintiff later abandoned his negligence claim against defendant. The jury returned a special verdict for defendant, finding that the wood was defective when it left defendant’s possession, but that the defect was an unavoidably unsafe aspect of the wood, for which defendant is not strictly liable. (Rest.2d Torts, § 402A, com. k, at pp. 353-354.)

Plaintiff claims on appeal that the instruction on the unavoidably unsafe product defense (com. k defense) was improperly given, resulting in a miscarriage of justice, because (1) as a matter of law the comment k defense is inapplicable to lumber, and (2) even assuming that the comment k defense applies to…