Seibel v. Symons Corporation ( 1974 )

TEIGEN, Judge

(dissenting).

I dissent.

The majority have held that “under the circumstances of this case, we hold that the determination of the adequacy of the warning is for the jury.” I do not agree.

At the close of the plaintiff’s case and again at the close of the entire case, the manufacturer moved for a directed verdict on several grounds, one of which was that the evidence established that the manufacturer had given its vendee (Morrison-Knudsen) adequate warning not to hang off v-shaped end rail support rods. It argued that failure to pass on the warning to the employees was the fault of Morrison-Knudsen and not the manufacturer, and that there could be no recovery from the manufacturer by Morrison-Knudsen’s employees on the basis of the failure of the manufacturer-vendor to warn the vend-ee’s employees. The motion was resisted and the trial court denied the same.

The action was submitted to the jury and, after entry of judgment, the manufacturer moved to have the verdict and the judgment entered thereon set aside, and to have judgment entered in accordance with its motion for a directed verdict. It also moved in the alternative for a new trial. Both motions were denied by the trial court.

The appeal in this case is taken from the court’s order denying the manufacturer’s motion for judgment notwithstanding the verdict or in the alternative for a new trial. This court, on appeal from such order, may review the ruling on the motion for directed verdict and may order that judgment be entered when it appears from the evidence that a verdict should have been directed. Section 28-27-29.1, N.D.C.C.; Haga v. Cook, 145 N.W.2d 888 (N.D.1966); Kinnischtzke v. City of Glen Ullin, 79 N.D. 495, 57 N.W.2d 588 (1953).

On this appeal it is thé duty of this court to first determine whether, from the evidence, it appears that a verdict should have been directed for the manufacturer.

Before a motion for judgment notwithstanding the verdict will be granted it must be conclusively established that the party making the motion is entitled to judgment as a matter of law, after considering the evidence in the light most favorable to the verdict. Kunze v. Stang, 191 N.W.2d 526 (N.D. 1971); Linington v. McLean County, 161 N.W.2d 487 (N.D.1968); Johnson v. Frelich, 153 N.W.2d 775 (N.D.1967); Haga v. Cook, supra.

An examination of the record in this case establishes, without contradiction, that (1) the manufacturer manufactured and sold to Morrison-Knudsen all of the components of the Symons Superforms System involved in this action; (2) the manufacturer delivered to Morrison-Knudsen a supply of a technical manual necessary for the assembly and use of the Symons Su-performs System; (3) immediately following the accident one of the technical manuals furnished by the manufacturer was seen by the safety engineer reposing on the desk of the project superintendent of the MSR Project, where this employee was working; (4) contained on the third page of the technical manual is the following safety instruction: “E. SAFETY. 1. Horizontal crossmembers and the vertical rod facilitate easy, safe climbing and safety belt attachment. DO NOT HANG OFF V-SHAPED END RAIL SUPPORT RODS.”; (5) Morrison-Knudsen’s project manager on the Perimeter Acquisition Radar Construction Project (PAR), located just a few miles from the MSR Project and on which Symons Superforms were also used, testified that he had received two copies of the technical manual, had noted the instruction and warning quoted above, and had directed that the employees on that project, while working on Symons Superforms, be instructed at safety meetings not .to utilize the v-shaped end rail support rods to tie onto or to hang off from. There is no evidence whatever that the project manager, or the safety engineer, or anyone in a supervisory capacity on the MSR Project on which the injured employee was working, had read the technical manual, and the employee testified that he had not been instructed by his supervisors or safety engineer that he should not hang off v-shaped end rail support rods. In fact, the supervisory employees on the MSR Project were not called to testify at the trial.

Thus the only possible conclusion permitted under the evidence introduced, which is not in conflict, is that the manufacturer warned its vendee, Morrison-Knudsen, not to hang off or tie onto the v-shaped end rail support rods, and that the warning was adequate, understandable and complied with by the supervisory personnel of the same employer on its other related project. There is no evidence of any reason why the same compliance was not effected on the MSR Project on which this employee was employed. The only logical inference which can be drawn from the evidence adduced at the trial is that the warning was adequate, understandable and entitled to credence. There is no evidence whatsoever that the warning was not adequate to apprise the project manager, the supervisors and the safety engineer of the MSR Project of the danger involved. Certainly the manufacturer had no duty to foresee that these technicians, on such a sophisticated project as this, would fail to follow the warning.

The evidence also establishes without contradiction that the Symons Superforms had been in use on the two sites under construction by Morrison-Knudsen for some months prior to the accident; that a reading of the technical instructions contained in the technical manual was necessary to assemble and use the Symons Su-performs, and the only logical inference which I can draw from such evidence is that the technical manuals were used for the purpose intended on the MSR site on which the employee was working. The fact that he was not instructed by his supervisors not to hang off the v-shaped end rail support rods can support no conclusion except that the supervisors were negligent and failed, as agents of the employer, to warn the employee of the dangers incident to his employment in the use of the v-shaped end rail support rods to hang off from.

It is established law in this state that an employer has a duty to warn an employee of dangers incident to his employment, of which the employer has knowledge and of which the employee has no knowledge. Kittock v. Anderson, 203 N.W.2d 522 (N.D.1973).

Where there is a safe way and an unsafe way of doing work, the employer must instruct the employee how to do the work to avoid injury. Titus v. Titus, 154 N.W.2d 391 (N.D.1967); Vick v. Fanning, 129 N.W.2d 268 (N.D.1964).

The majority have cited and rely on Lindenberg v. Folson, 138 N.W.2d 573 (N.D.1965). That case was an action by an employee against his employer and the manufacturer of a potato harvesting machine for injuries received when the employee’s hand became caught in certain gears of the machine. In that case we held both the employer and the manufacturer liable. However, that case is distinguishable from the case at bar for the reason that neither the employer nor the manufacturer gave any warning of the danger involved in using the machine. That case is not applicable here.

Our statutes require that an employer, in all cases, shall indemnify his employees for losses caused by the employer’s want of ordinary care (Section 34-02-03, N.D.C.C.), unless relieved of liability under the Workmen’s Compensation laws (Section 65-01-08, N.D.C.C.).

In this case the manufacturer sought to implead Morrison-Knudsen for indemnity. However, Morrison-Knudsen moved for and obtained a summary judgment of dismissal of the third-party complaint on the grounds that it was covered by workmen’s compensation, and that the employee had qualified for workmen’s compensation and had received an award of permanent partial disability under the Workmen’s Compensation law, thus absolving the employer, Morrison-Knudsen, of all liability, pursuant to Section 65-01-01, N.D.C.C. No appeal has been taken from the summary judgment of dismissal.

If I assume the lack of privity between this employer and the manufacturer is no defense, there remains only a legal issue which is: May a manufacturer be found negligent by an injured employee of a manufacturer’s vendee, where the manufacturer has given adequate warning to its immediate vendee, on the basis of the failure of the manufacturer to have also warned its vendee’s employee. The majority have cited no North Dakota decisions and my research discloses none which involve an issue substantially identical.

The text citations relied on by the majority are necessarily general and not adapted to the specific circumstances of this case. However, an exception is noted in the comment to Section 394, Restatement, Torts 2d, quoted by the majority, which I believe is apropos.

“All sorts of chattels may be supplied for the use of others, through all sorts of third persons and under an infinite variety of circumstances. This being true, it is obviously impossible to state in advance any set of rules which will automatically determine in all cases whether one supplying a chattel for the use of others through a third person has satisfied his duty to those who are to use the chattel by informing the third person of the dangerous character of the chattel, or of the precautions which must be exercised in using it in order to make its use safe. There are, however, certain factors which are important in determining this question. There is necessarily some chance that information given to the third person will not be communicated by him to those who are to use the chattel. This chance varies with the circumstances existing at the time the chattel is turned over to the third person, or permission is given to him to allow others to use it. These circumstances include the known or knowable character of the third person and may also include the purpose for which the chattel is given. Modern life would be intolerable unless one were permitted to rely to a certain extent on others’ doing what they normally do, particularly if it is their duty to do so.”

The majority also quote from Frumer and Friedman, Products Liability, § 8.-03(3), which, although it recognizes there is authority that adequate warning to the purchaser terminates the manufacturer’s liability, the authors editorialize and state that cases to the contrary represent a better and more modern view. I do not agree that the “other cases” referred to in that text support their conclusion.

The majority also cite three cases which they state hold that a warning communicated to an employer for communication to an employee may insulate the manufacturer from liability to the employee where the employer fails- to communicate that warning, and then attempt to distinguish these cases on the basis that “either the danger is slight or the difficulties of giving the warning are immense * * * or where the warning was held to be adequate as a matter of law.” The cases which they cite are Weekes v. Michigan Chrome & Chemical Co., 3S2 F.2d 603 (CA6 1965); Younger v. Dow Corning Corp., 202 Kan. 674, 451 P.2d 177 (1969); and Bertone v. Turco Products, 252 F.2d 726 (CA3 1958). However, in each of these cases, the court specifically held that if the manufacturer’s warning was adequate, there could be no recovery, irrespective of whether the buyer may have acted negligently as to its employee.

The holding of these three cases is succinctly stated in Younger, as follows:

“We hold the rule announced in Ber-tone and Weekes is applicable to the facts herein — the manufacturer of a product which is potentially hazardous to health and who gives adequate warning of such potential hazard, by label or otherwise, to its immediate vendee, an industrial user, has no additional duty to warn the vendee’s employee of such hazards, and is not liable in a negligence action to such employee for failure to do so.”

These cases turn on questions of fact, not on questions of law.

In 63 Am.Jur.2d, Products Liability, Section 47, at 57, it is stated:

“Assuming that there may be recovery regardless of lack of privity of contract, on the basis of a manufacturer’s negligence in failing to warn his immediate buyer, no recovery on such basis can be had by one other than the immediate buyer where adequate warning was given the immediate buyer. Thus, it has been held that where adequate warning was given to the buyer of the product by the seller, there could be no recovery from the seller by an injured employee of the buyer on the basis of failure of the seller to warn the buyer’s employees.”

In Bertone v. Turco Products, supra, the United States Court of Appeals, applying New Jersey law, held that the manufacturer of a cleaning solution could not be held liable for negligence of the plaintiff’s employer in failing to pass on to the plaintiff the manufacturer’s adequate warning. It said that the employee’s injury was a result, not of the manufacturer’s negligence but of the plaintiff’s employer’s negligence, where the warning given by the manufacturer to the user was adequate, because the user was under a duty to pass along to its employees the manufacturer’s warning.

In Weekes v. Michigan Chrome & Chemical Company, supra, the plaintiff, an employee of a company where the distributor’s products were used, contracted a serious skin condition as a result of working with the product, and was awarded a jury verdict in the amount of $24,000 damages against the distributor on the ground that the distributor had negligently failed to provide adequate warning to the plaintiff of dangers involved with the use of the product. On appeal, the defendant-distributor charged the district court erred in denying its motion for a directed verdict. The court granted a new trial. The case dealt primarily with whether the defendant-distributor had given any warning of the hazards of its product and whether such notice, if given, was adequate. The defendant-distributor asserted “that it was not required to see to it that each person who might be expected to use the wax was individually and by defendant adequately warned of its dangerous propensities.” In response the Court of Appeals said, 352 F.2d at 607:

“We make clear that we do not hold to the contrary. To do so would visit upon a manufacturer a burden impossible to carry. See Bertone v. Turco Products, Inc., 252 F.2d 726, 728 (CA 3, 1958); Nishida v. E. I. Du Pont De Nemours & Co., 245 F.2d 768, 773-774 (C.A.5 1957), cert. denied, 355 U.S. 915, 78 S.Ct. 342, 2 L.Ed.2d 275 (1958).”

The court granted a new trial, however, on the basis that there was evidence from which a jury could find that the defendant-distributor did not exercise reasonable care in its labeling practices or in informing of the hazards involved in using the product; that if it was thus delinquent it could not rely on its user to supply the needed warnings and precautionary instructions.

In Younger v. Dow Corning Corporation, supra, the Supreme Court of Kansas held that where the industrial user of manufacturer’s chemical compound had received adequate warning from labels placed on the product by the manufacturer of the potential health hazards that might arise from using the product without ventilation or from breathing the vapors of such product over prolonged periods, the manufacturer had no additional duty to warn the user’s employees of such hazards and could not be held liable to the employees in a negligence action for failure to do so.

In Foster v. Ford Motor Co., 139 Wash. 341, 246 P. 945, 48 A.L.R. 934 (1926), it was held that a manufacturer need not follow a machine (Fordson tractor) into the hands of the servants or employees of the purchaser and notify each one individually that in extreme situations the machine might become dangerous. In the body of the opinion, 246 P. 947, it is stated:

“That the manufacturer who puts out an article with notice to the purchaser of its limitations, restrictions, or defects is not liable to third persons injured thereby is so thoroughly established as to be undisputed. Logan v. Cincinnati, N.O. & T.P. Ry. Co., 139 Ky. 202, 129 S.W. 575; Olds Motor Works v. Shaffer, 145 Ky. 616, 140 S.W. 1047, 37 L.R.A., N.S., 560, Ann.Cas. 1913B, 689; Pullman Co. v. Ward, 143 Ky. 727, 137 S.W. 233; Lewis v. Terry, 111 Cal. 39, 43 P. 398, 31 L.R.A. 220, 52 Am.St.Rep. 146; Griffin v. Jackson Light & Power Co., 128 Mich. 653, 87 N.W. 888, 55 L.R.A. 318, 92 Am.St.Rep. 496; Ward v. Pullman Co., 138 Ky. 554, 128 S.W. 606.”

In Soto v. E. C. Brown Co., 283 App. Div. 896, 130 N.Y.S.2d 21 (1954), the Supreme Court of New York, Appellate Division, held that the manufacturer of a pressure pump would reasonably expect that one purchasing the pump would convey to his employees the caution contained in the instructions which accompanied the pump to securely attach a hose, and reversed a jury verdict for damages for personal injuries claimed to have been sustained through the negligence of the manufacturer and ordered a dismissal of the complaint. It held that the burden was on the plaintiff to prove that, when assembled as stated in the instructions of the manufacturer, there was concealed a probable source of danger which could arise in the operation of the pump for the purpose for which it was intended, of which danger the manufacturer did not give notice.

In May v. Allied Chlorine & Chemical Products, Inc., 168 So.2d 784 (1964), the District Court of Appeal of Florida held that a manufacturer or distributor of a chemical regularly used in the business of another, who knew the chemical to be dangerous, had no duty to warn the user that only a particular type of gas mask would be effective in heavy concentrations of the gas generated by the chemical, nor was it required to inform the user’s employees of details of precautionary measures which should be taken in the event of the misuse of the product.

In Wilson v. E-Z Flo Chemical Company, 281 N.C. 506, 189 S.E.2d 221 (1972), the Supreme Court of North Carolina dismissed a third-party judgment against a manufacturer, secured by a distributor of herbicide, to indemnify the distributor for a judgment obtained by a truck farmer against the distributor for damages resulting from the use of the herbicide on a newly-planted squash crop. The manufacturer of the herbicide had warned the distributor that the herbicide should not be used on vine crops under certain conditions. The distributor had sold the herbicide to the truck farmer without having passed on the warning. The court held that the rule to the effect that where a retailer purchases personal property from a manufacturer or wholesaler for resale with implied or express warranty of fitness, and the retailer resells to the consumer with the same warranty, and the retailer is compelled to pay for breach of warranty and may recover his entire loss from the manufacturer, is not applicable as between a manufacturer who warned and the distributor who received the warning but fails to pass the warning on to the user, who sustains injury as a result of not having received the warning. The court held that the primary responsibility was on the distributor to notify the user, his customer, of the limitation on the fitness. Although this case does not involve an employer-employee relationship, or negligence, the same theory is applied in a breach of warranty action.

In McKay v. Upson-Walton Company, 317 F.2d 826 (7 Cir. 1963), the circuit court affirmed the trial court’s judgment dismissing the action after a jury had failed to agree on a verdict in a wrongful death action against the manufacturer of a tackle block and hook which broke as a result of being overloaded, causing the death of an employee of the user. The product was rated in the catalog supplied to the user as having a 2i/£ ton working capacity. However, at the time of the accident, it was used in connection with the lifting of a load of 9,100 pounds. The argument was made that the capacity of the product should have been stamped on the product. The court, however, did not agree and held that the failure of the manufacturer to visibly mark or label the product with its working load capacity did not constitute negligence, on the. theory that the manufacturer was under duty to foresee that someone would attempt to load the tackle block and hook beyond its capacity, as specified in its catalog and which was ascertainable from the catalog number appearing on the device.

In Jacobson v. Colorado Fuel & Iron Corporation, 409 F.2d 1263 (9 Cir. 1969), a wrongful death action for the death of an employee brought against the manufacturer of the product which broke while being used in the employer’s business, the judgment for the defendant was affirmed. The court held that where a supplier furnishes chattels, the use of which are directed by technicians or engineers, it is sufficient to insulate the supplier from liability for failure to warn if warnings given are sufficient to apprise the engineers or technicians of the dangers involved, and that there is no duty of the supplier to foresee that engineers or technicians will fail to follow warnings given or to employ knowledge possessed.

The uncontradicted evidence, in my opinion, establishes, as a matter of law, that the manufacturer of the Symons Super-forms which were sold to Morrison-Knudsen, a large contractor and industrial user, who gave adequate warning in its technical manual to its immediate vendee of a potential danger if improperly used, had no additional duty to warn the vendee’s employees of such hazard and is not liable in a negligence action to such employees for failure to do so.

The evidence in this case establishes that the v-shaped end rail support rods, from which the workmen were not to hang off, were installed for the purpose of strengthening the end rail of the various panels contained in the gang. There is no evidence that a weak weld at the end of such v-shaped end rail support rod in any way made the product defective for the purpose intended. There is no evidence that there was a defect in the product for the purpose intended, but it is clear that the manufacturer anticipated that the v-shaped end rail support rods' might be used to hang off of and, for that purpose, it presented a hazard. Therefore the manufacturer warned against using these rods for that purpose.

There is no evidence here that we are confronted with a highly dangerous explosive or poisonous product, or an article intrinsically or inherently dangerous or unsafe when used in accordance with the instructions contained in the technical manual supplied by the manufacturer to its vendee. I believe that the manufacturer had every right to anticipate that Morrison-Knudsen, a large contractor and industrial user to whom the Symons Super-forms had been supplied, would pass on the warning of the manufacturer to its employees who were assigned the task of erecting and assembling these concrete forms, and that proper precautionary measures would be taken by Morrison-Knudsen, through its technical and supervisory personnel, to make use of the product safe for its employees in accordance with its duty under the master-servant rule.

For the reasons aforesaid, I believe that the motion for judgment notwithstanding the verdict should have been granted by the trial court.