Delmar Ray Cook v. Baker Equipment Engineering Company, Inc. , 582 F.2d 862 ( 1978 )

LAY, Circuit Judge.

On June 2, 1970, Delmar Ray Cook, a citizen of North Carolina, while performing work from an aerial tower for an electrical contractor, suffered severe flash burns as he moved an uninsulated high voltage electrical line on a cross arm of a utility pole. Several high voltage lines were mounted at various heights on the pole. At the time of the accident, which took place in Greensboro, North Carolina, Cook was standing in a fiberglass reinforced plastic basket or bucket. The allegedly insulated bucket was truck-mounted and had a boom which could be extended 45 to 50 feet into the air. The accident occurred when the bucket came into contact with two of the high voltage lines creating a “phase to phase” (that is, from one line to another line) short circuit.

Cook brought suit in the federal district court in North Carolina against the Baker Equipment Engineering Company, a Virginia corporation, the manufacturer of the bucket, alleging negligence in the design and manufacture of the bucket, and failure to adequately test and inspect the unit. The defendant moved for summary judgment. Based upon pleadings, interrogatories and depositions filed by the parties, the district court, the Honorable Hiram H. Ward presiding, found there was no genuine issue as to any material fact and that, as a matter of law, plaintiff was was not entitled to recover. We must disagree; we reverse and remand for a plenary trial.

The district court found that the defendant manufacturer, while representing that the bucket provided a high degree of protection to workmen from electrical current passing from phase to ground, specifically warned that the bucket would not provide protection from current passing from phase to phase. The trial judge then concluded that, in light of the defendant’s specific warning concerning phase to phase protection, the danger was open and obvious to Cook, an experienced workman, and therefore granted summary judgment for the defendant.¹

Plaintiff’s claim is based primarily on an alleged inherently unsafe design. He urges that, unknown to him, the bucket in which he was working contained metal screws attaching a fiberglass inspection plate to the boom. The metal screws were hidden, he asserts, due to their being covered by a gel coating with which the entire fiberglass bucket was covered. It is plaintiff’s theory that the phase to phase short circuit occurred when the line which Cook was moving contacted the metal mounting bracket of the bucket while at the same time the metal screws contacted another energized line. This theory was corroborated by the deposition of W. E. Bondurant, an individual experienced in electrical contracting. Thus, plaintiff urges that although there was obvious metal hardware on the bucket he was not aware of any other conductive material on the bucket which might set up a phase to phase short circuit. Plaintiff asserts that he was not knowingly operating the bucket in any manner warned against.

The evidence submitted shows that Cook used the bucket for work it was designed to do. Furthermore, the evidence indicated that the manufacturer had knowledge that the bucket would be used to work on or near multiple energized lines above the ground. There is no proof that Cook was aware that a short circuit could be set up by contact with any portion of the bucket other than between exposed metal parts. It is one thing to say that Cook knew that a short circuit could occur, it is completely another argument, however, to say that Cook knew in view of the manner in which he was using the bucket that a phase to phase circuit would occur. The manufacturer gave no warning that the metal screws used were concealed or that they penetrated the fiberglass in such a manner that they could complete an electrical circuit with the bucket’s mounting bracket.

In almost an identical situation as presented here the Colorado Court of Appeals affirmed a wrongful death award against the manufacturer of an aerial boom device where a workman was electrocuted. In Good v. A. B. Chance Co., 565 P.2d 217 (Colo.App.1977), the accident occurred when current from an energized line passed or arced through brass bonding screws concealed on the lower face of the bucket. The primary thrust of the appellate opinion relates to evidentiary issues; however, the court observed that a decal warning of the danger from the brass bonding screw was available prior to the accident. In commenting on this fact the Colorado Court of Appeals observed:

The evidence demonstrated pre-existing knowledge of the danger inherent in the product, the feasibility of giving a warning, and established a duty to warn users of the defect.

Id. at 223.

Although in the present record there is no evidence of such a decal, the Good case shows a judicial recognition that the design of a similar product was sufficient to raise a jury question as to whether the bucket was intrinsically unsafe without specific warning.

Even though Good was a strict liability case and North Carolina has not yet specifically adopted strict liability, under North Carolina products law negligence “may be found over an area quite as broad as his [the defendant’s] whole activity in preparing and selling the product.” Corprew v. Geigy Chemical Corp., 271 N.C. 485, 157 S.E.2d 98, 102-03 (1967), quoting W. Prosser, Law of Torts 665 (3d ed. 1964). See also Hodge, Products Liability: The State of the Law in North Carolina, 8 Wake Forest L.Rev. 481, 483-84 (1972). Thus, we are satisfied under a negligence count, assuming the proof alleged here, a jury could easily reach a result similar to that rendered in the Good case.

When dealing with a summary judgment this court has observed that:

At this stage of the proceedings, review is limited to determining whether the ease should have been decided summarily or submitted to the jury. There is no controversy about the historical facts, but that does not end the inquiry. The critical question is whether a genuine issue exists as to the inferences or conclusions that may properly be drawn from the evidence. The inferences must be viewed in the light most favorable to the appellant, and the judgment must be reversed if “inferences contrary to those drawn by the trial court might be permissible.” United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

Salmon v. Parke, Davis & Co., 520 F.2d 1359, 1362 (4th Cir. 1975) (citations omitted).

In no other area of the law does the lay jury play a more definitive role than in a negligence case when it is required to determine whether an actor’s conduct is prudent and reasonable under the given circumstances. Along with questions of foreseeability and proximate cause, equating the actor’s conduct with reasonable care often depends on factual resolution of conflicting inferences. The inferences to be drawn from the proofs turn on the degree of corroboration mixed with the overall skill of persuasion demonstrated by the respective adversaries. Such issues readily lend themselves to policy determinations based upon the general mores of the community. With this understanding, it should be readily perceived that a summary proceeding which denies the parties the right of trial by jury and which attempts to decide the case on abbreviated proof should rarely be used in negligence suits. As Judge Craven observed in Spaulding v. Ads-Anker Data Systems—Midwest, Inc., 498 F.2d 517, 518 n. 1 (4th Cir. 1974):

Summary judgment is particularly inappropriate in negligence actions, as Chief Judge Parker recognized in Pierce v. Ford Motor Co., 190 F.2d 910 (4th Cir.), cert. denied, 342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666 (1951):

It is only where it is perfectly clear that there are no issues in the case that a summary judgment is proper. Even in cases where the judge is of opinion that he will have to direct a verdict for one party or the other on the issues that have been raised, he should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment, which was never in-, tended to enable parties to evade jury trials or have the judge weigh evidence in advance of its being presented. 190 F.2d at 915.

See also Salmon v. Parke, Davis & Co., supra; Denny v. Seaboard Lacquer, Inc., 487 F.2d 485, 491 (4th Cir. 1973); Williams v. Chick, 373 F.2d 330, 331-32 (8th Cir. 1967); 6 Pt. 2 Moore’s Federal Practice ¶ 56.17[42] (2d ed. 1976).

Based on the record before us, a sufficient factual dispute exists at least as to the following issues: (a) whether the metal screws attaching the inspection plate to the boom were rendered non-obvious by applying the gel-coat over the screws; (b) whether such a condition created an unreasonably dangerous situation in light of the known or foreseeable uses of the bucket; and (c) whether the unelaborated warning in the operator’s manual that the bucket would not provide phase to phase protection was adequate in view of the known or foreseeable industrial uses of the bucket. See 1 L. Frumer & M. Friedman, Products Liability § 8.05[1], at 186.6(6) (1977).

In vacating the grant of summary judgment we specifically note that we do not in any way attempt to prejudge the sufficiency of the evidence. At a summary judgment stage a full exposition of the evidence has not yet taken place. It may be that plaintiff’s proof as to the circumstances of the accident will not be sufficient to establish a prima facie claim. These issues, however, await trial on the merits.

The summary judgment for the defendant is vacated and the cause remanded for trial.

REVERSED AND REMANDED.

1 . The district court relied upon North Carolina law which holds that a manufacturer is not liable for injury to a user by reason of any condition which is plainly observable. See Douglas v. W. C. Mallison & Son, 265 N.C. 362, 144 S.E.2d 138 (1965).