Halvorson v. American Hoist & Derrick Co.

• Citation: 307 Minn. 48,240 N.W.2d 303
• Decision Date: 23 January 1976
• Docket Number: No. 44705,44705
• Parties: Kenneth HALVORSON, Respondent, v. AMERICAN HOIST AND DERRICK COMPANY, Defendant and Third-Party Plaintiff, Appellant. MACHINERY INVESTMENT CORPORATION, Defendant and Third-Party Plaintiff, v. BARTON CONTRACTING COMPANY, Third-Party Defendant, Respondent.
• Court: Supreme Court of Minnesota (US)

Page 303

240 N.W.2d 303

307 Minn. 48

Kenneth HALVORSON, Respondent, v. AMERICAN HOIST AND DERRICK COMPANY, Defendant and

Third-Party Plaintiff, Appellant.

MACHINERY INVESTMENT CORPORATION, Defendant and Third-Party Plaintiff, v. BARTON CONTRACTING COMPANY, Third-Party Defendant,

Respondent.

No. 44705.

Supreme Court of Minnesota.

Jan. 23, 1976.

Syllabus by the Court

Under the facts of this case, the manufacturer did not owe plaintiff any duty to install safety devices on its crane to guard against the risk of electrocution when the record demonstrated that risk was: (1) Obvious; (2) known by all of the employees involved; and (3) specifically warned against in the manufacturer's operations manual.

Faegre & Benson and James Fitzmaurice and Joseph M. Price, Minneapolis, for appellant.

Abrams & Spector, and Mitchell R. Spector, Minneapolis (for Halvorson) Jardine, Logan & O'Brien and Michael J. Healey, St. Paul (for Barton Contracting Co.), for respondents.

Heard before SHERAN, C.J., and OTIS, KELLY and TODD, JJ., and considered and decided by the court en banc.

KELLY, Justice.

Defendant American Hoist and Derrick Company appeals from an order of the district court denying its post-trial motion following a jury verdict finding American Hoist 25-percent causally negligent and plaintiff's employer, Barton Contracting Company, 75 percent causally negligent. The district court denied American Hoist's third-party claims of indemnity and contribution against Barton. We hold that American Hoist was not negligent as a matter of law, and we therefore do not reach other issues it raised.

On June 7, 1968, plaintiff, Kenneth Halvorson, was employed by Barton on a highway construction crew which was surfacing a rural highway turn lane near Duluth. The surfacing was accomplished by pouring concrete from a portable mixer and leveling it with a machine called a screed. A screed consists of two steel boards approximately 12 feet by 8 feet by 6 inches. The screed was moved from place to place on the site of a flatbed truck or lowboy. It was lifted in and out of the lowboy by a Model 395BT truck crane manufactured by American Hoist.

Halvorson was on his hands and knees finishing a portion of the highway surface by hand when he noticed that the truck crane, holding the screed, had moved close to him. As the crane was lowering the screed to the highway surface, the screed began to sway back and forth and toward a water truck parked alongside it. In an effort to steady the screed and prevent it from striking the truck, Halvorson stood up and grabbed the screed with both hands. At that time the lifting cable attached to the crane boom contacted a 7,000-volt power line, and Halvorson received a severe shock as electricity was transmitted down the cable and through the screed.

Halvorson received workmen's compensation benefits from his employer Barton and brought this third-party action against American Hoist. He contended that the absence of certain safety devices from the crane, notably (1) a sensor device which would allegedly sound a warning if the boom approached a power line, and (2) an insulated hook which would allegedly prevent an electrical charge in the lifting cable from passing down the cable and into the load, constituted negligence and strict liability under Restatement, Torts 2d, § 402A. There was conflicting expert testimony and experimental evidence as to the effectiveness of these devices in preventing electrocution.

Albert Shanyo, the Barton foreman who was hand signaling the operator of the crane at the time of the accident, testified that although he had observed the power lines earlier, his attention was directed to the screed as he was signaling and he did not notice that the lifting cable had contacted the line until after the accident had occurred. Plaintiff Halvorson testified that he knew power lines could be expected along country roads and were dangerous. He further testified that although it was his usual practice to check for power lines, he did not do so on this occasion. He agreed that no one had to tell him that he could be electrocuted if the boom or lifting cable of the crane came in contact with a power line while he was holding the load.

One of the exhibits introduced by American Hoist was its Operator's Instruction Manual. The first page of that manual contains the explicit instruction: 'N. Do not maintain less than 6 feet of clearance around high voltage lines.' A copy of that page accompanies this opinion.

The jury returned a verdict finding no strict liability, but finding 25-percent causal negligence on the part of American Hoist and 75. percent on the part of Barton. Plaintiff was found negligent, but his negligence was found not to be a cause of his injuries. We set forth the verdict of the jury in full:

'We, the jury, empaneled and sworn for the trial of the above-entitled action, do answer the questions submitted as follows:

'QUESTION NO. 1: At the time the truck-crane left the American Hoist and Derrick Company, was it in a defective condition, unreasonably dangerous to a user of the crane, because of the absence of a sensor device or insulated swivel?

Answer: No.

'QUESTION NO. 2: If your answer to Question No. 1 is 'Yes', then answer this question: Was such a defect a direct cause of plaintiff's injury?

'Answer: (None)

'QUESTION NO. 3: Was Barton Contracting Company negligent in the operation or control of the crane?

'Answer: Yes.

'QUESTION NO. 4: If your answer to Question No. 3 was 'Yes', then answer this question: Was such negligence a direct cause of plaintiff's injury?

Answer: Yes.

'QUESTION NO. 5: Was American Hoist and Derrick Company negligent in the design, manufacture, inspection or testing of the crane?

Answer: Yes.

'QUESTION NO. 6: If your answer to Question No. 5 was 'Yes', then answer this question: Was such negligence a direct cause of plaintiff's injury?

Answer: Yes.

'QUESTION NO. 7: Was the plaintiff, Kenneth Halvorson, negligent?

Answer: Yes.

'QUESTION NO. 8: If your answer to Question No. 7 is 'Yes', then answer this question: Was such negligence a direct cause of plaintiff's injury?

Answer: No.

'QUESTION NO. 9: If you find by your answers to Questions No. 2, 4, 6 and 8 that the conduct of more than one of the parties was a direct cause of the accident, then answer the following: Taking the combined fault that caused the accident as 100 percent, what percentage of the fault is attributable to:

'QUESTION NO. 10: What damages did Kenneth Halvorson sustain as a result of the accident in question?

Answer: $60,000.

'NOTE: Question No. 10 must be answered by you without consideration of your answers to all the other questions in the Special Verdict.

'It is your duty to assess damages in accordance with the court's instructions regarding the measure of damages.

'Your answer to the above question must be made without reference to any apportionment of fault.'

The trial court denied American Hoist's claim for equitable ¹ or contractual ² indemnity or contribution ³ from Barton and entered judgment on the verdict against American Hoist for the full amount of plaintiff's damages.

The jury found that American Hoist was not strictly liable because of the absence of safety devices on its crane, but held it 25-percent negligent for failing to install those devices. As to strict liability, the jury was instructed in part:

'Now, in that regard, a user of a product, and, for our purposes here, Mr. Halvorson would be a user, is entitled to recover damages from a manufacturer of a product, if, one, the product is in a defective condition, two, the defective condition of the product makes it unreasonably dangerous to the user, and, three, the defective condition of the product was in existence at the time the product was in the possession of the seller. Four, it is expected that the product will reach and it does reach the user without substantial change in the condition in which it was sold. Five, the defective condition causes physical harm to the user.

'This rule as stated applies although the manufacturer or seller has exercised all possible care in the preparation and sale of this product. A product is not in a defective condition if it performs reasonably, adequately and safely the normal anticipated specified uses to which the seller intends that it be put. A condition is unreasonably dangerous if the product is dangerous when used by an ordinary user who uses it with knowledge common to the community as to the products' characteristics and common usage. A product is in defective condition if it is not reasonably fit for the ordinary purpose for which it was sold or manufactured and expected to be used.

'A product which is sold with instructions and/or warnings is not in a defective condition nor is it unreasonably dangerous if a product is safe when used in accordance with the instructions and/or warnings. Before the strict liability rule can apply, the party asserting the rule must prove that a defect existed when it left the possession of the party charged and was unreasonably dangerous to the user.'

This instruction is in accord with 4 Hetland & Adamson, Minnesota Practice, Jury Instruction Guides (2 ed.) JIG II 118, and our decisions in McCormack v. Hankscraft Co. Inc., 278 Minn. 322, 154 N.W.2d 488 (1967) (in which we adopted Restatement, Torts 2d, § 402A); Magnuson v. Rupp Mfg. Inc., 285 Minn. 32, 171 N.W.2d 201 (1969); and Waite v. American Creosote Works, Inc., 295 Minn. 288, 204 N.W.2d 410 (1973).

As to negligence, the jury was instructed in part as follows:

'Now, negligence is the failure to use reasonable care. Reasonable care is that care which a reasonable person would use under like circumstances. Negligence is the doing of something which a reasonable person would not do or the failure to do something which a reasonable person would do under like circumstances.

'We now come to the question of a manufacturer's duty of care. A manufacturer...