Featherall v. Firestone Tire and Rubber Co.

• Decision Date: 02 March 1979
• Docket Number: No. 770864,770864
• Citation: 219 Va. 949,252 S.E.2d 358
• Court: Virginia Supreme Court
• Parties: Thomas R. FEATHERALL v. FIRESTONE TIRE AND RUBBER COMPANY et al. Record

Page 358

252 S.E.2d 358

219 Va. 949

Thomas R. FEATHERALL v. FIRESTONE TIRE AND RUBBER COMPANY et al.

Record No. 770864.

Supreme Court of Virginia.

March 2, 1979.

Thomas P. Mains, Jr., Alexandria, for plaintiff in error.

Francis J. Prior, Jr., Arlington, Richard H. Lewis, Fairfax, John J. Brandt, Arlington (Robert L. Ellis, Norman F. Slenker Siciliano, Ellis, Sheridan & Dyer, Arlington, Brault, Lewis, Geschickter & Palmer, Fairfax, Slenker, Brandt, Jennings & O'Neal, Arlington, on briefs), for defendants in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

In this products liability case brought by a third-party user of certain items of equipment, we consider whether the respective manufacturers are liable in tort and for breach of warranty, whether the plaintiff's conduct bars his recovery, and whether certain evidence was properly excluded.

On July 30, 1971, plaintiff Thomas R. Featherall was severely injured on the premises of his employer, the Pepsi-Cola Bottling Company, located in Alexandria, when a stainless steel lid exploded from a syrup tank and struck him in the head. At the time, plaintiff was in the process of cleaning a soft-drink dispensing unit by means of a pressurized system. Among the components of the system were a cylindrical pressure tank containing carbon dioxide, a pair of pressure-reducing regulators with gauges, two flexible hoses, the syrup tank, the lid, and the drink dispensing unit.

Seeking recovery in damages for the injuries, plaintiff filed a motion for judgment containing counts in negligence and breach of warranty against Firestone Tire and Rubber Company, Steel Products Division Firestone Tire and Rubber Company, Firestone Steel Products Company (collectively Firestone), the manufacturer of the syrup tank; The Cornelius Company, Dispenser Products Division The Cornelius Company (collectively Cornelius), the manufacturer of the lid; and Chudnow Manufacturing Company, Inc., the manufacturer of the regulators. Upon conclusion of plaintiff's evidence presented during five days of trial in December of 1976, the court below sustained defendants' respective motions to strike the evidence. We granted plaintiff a writ of error to the February 1977 final order entering summary judgment for defendants, which incorporated by reference a written opinion of the trial judge.

The System

The usual function of a soft-drink dispensing system is to mix water, carbon dioxide and flavored syrup into a finished carbonated soft drink, which then flows through faucets to be served in cups or glasses to customers. These systems are commonly used in public eating places. At the time of this accident, such a system had been set up in a work area on the premises of the plaintiff's employer and was being used to clean and service customers' soft-drink dispensing units. For cleaning, syrup was replaced in the system by water mixed with a cleaning agent and the pressure in the system was usually maintained at between 15 and 30 pounds per square inch (psi).

The Pressure Tank

Standing on the floor of the work area was the pressure tank containing CO 2 under approximately 800 psi of pressure, called "source pressure." Affixed to the top of the pressure tank was a round knob which, when manually turned, permitted the gas to escape from the pressure tank. Except for providing source pressure for the system, the pressure tank was not involved in the accident.

The Chudnow Regulators

Screwed onto a valve at the top of the pressure tank were two Chudnow dual-outlet pressure-reducing regulators, attached side by side and equipped with three pressure gauges. Each regulator had one operating gauge fixed above it. These gauges measured the amount of reduced pressure in the system. The third gauge, a tank pressure gauge, fixed to the side of the "outboard" regulator, measured the pressure in the CO 2 tank. While several regulators could be fastened together to regulate pressure in more than one low pressure system using a single source of high pressure, in this case only one regulator was in use. Attached to the outlet fitting or "port" of the regulator which was positioned adjacent to the top of the pressure tank was a flexible hose running to a coupling on top of the syrup tank. No hose was affixed to the outlet port of the other regulator.

A spring mechanism inside the regulator metered the amount of pressure passing through the instrument. The position of the springs, and in turn the amount of pressure, was controlled by an adjusting screw mounted on the face of the regulator. As the screw is turned inward, with the use of a screwdriver, it progressively overcomes the tension of one spring inside the regulator, allowing gas at an increasingly higher pressure to pass through the regulator. As the screw is turned outward, the amount of pressure reduces. When the screw is at a full "out" position, no pressure flows through the regulator and system.

A locknut was attached to each Chudnow regulator when it left the manufacturer's control. The hexagonal nut was positioned on the screw between the head of the screw and the face of the conical regulator housing. The purpose of the locknut was twofold. First, the screw could be locked by use of the nut at a predetermined pressure shown on the gauge. Once the dispensing system had been set up in a restaurant, for example, and the proper mix of syrup and carbonated water had been established by a service mechanic, tightening the locknut would make it difficult for an inexperienced person to change the setting thereby altering the beverage mix. Second, use of the locknut kept the adjusting screw from being screwed in so deep as to render the spring mechanism inoperative from the standpoint of controlling the source pressure. Properly assembled and with the nut in place on the screw, the maximum pressure that could pass through the system would never exceed the capacity shown on the operating gauge, in this case 100 psi. But with the locknut removed from the screw and with the screw turned all the way "in", the record shows that the spring mechanism would be overcome and full source pressure would be allowed to enter the system. At the time of this accident, a locknut was not on the adjusting screw and, at that time, plaintiff was unaware of the foregoing characteristic of the regulator used in such a condition.

The interior spring mechanism of the regulator could be changed to provide metering of pressure at different strengths, that is, 15, 30, 60, 100 and 300 psi. At the time of this accident, both regulators and associated operating gauges were for pressures of from 0 to 100 psi. The tank pressure gauge read from 0 to 2000 psi. Manipulation of the adjusting screws on the regulators after the system had been pressurized did not affect the reading on the tank pressure gauge; after pressurization, that device always showed the amount of pressure in the source tank.

The Firestone Syrup Tank

Also standing on the floor in close proximity to the source pressure cylinder was a Firestone stainless steel tank with a two-and-one-half gallon soft-drink syrup capacity. The hose connecting the syrup tank and the regulator was five feet long.

The syrup tank was designed to receive a Firestone lid oval in shape and about three and one-half by five inches in size which had to be inserted at an angle into the top of the tank, then made parallel to the top of the tank and raised upward by a clamp. The escape of air was prevented by a rubber "O-ring" attached to the lid.

This tank could also accommodate a Cornelius lid which is slightly different in size and shape from the Firestone lid. With either lid in place, the tank could be pressurized.

The Cornelius Lid

At the time of the accident, a Cornelius stainless steel lid was secured on the Firestone syrup tank. Built into the lid was a safety release valve which was designed to automatically allow CO 2 to escape if the pressure in the syrup tank exceeded approximately 130 psi. The valve could also be released manually. The valve failed to function automatically at the time of the accident.

The evidence showed that plaintiff's employer owned hundreds of lids and syrup tanks manufactured by both Firestone and Cornelius. When empty, these items were returned to the Pepsi-Cola plant for washing and refilling. No effort was made to separate the lids and tanks by manufacturer; Cornelius lids were frequently used to close Firestone tanks.

The Soft-Drink Dispenser

The last component in the system was the dispensing machine, which was connected to the syrup tank by another flexible hose designed to carry the syrup. On the day of the accident a dispenser weighing approximately 250 pounds was positioned on a work table and water with the cleaning agent was to be run from the syrup tank through the dispenser to clean out accumulated syrup. The waste water was then to be collected in a container.

Other than being the object of the cleaning process, the dispenser played no part in the accident.

The Accident

Due to his injuries, plaintiff could recall nothing about the events of the day of the accident or of the day before. Knowledge of the actual facts of the accident comes from Robert Glenn McGee, a 17-year-old high school student who had been employed by Pepsi-Cola for a short time as a "fountain repairman". Included in the duties of this apprentice worker was the responsibility of cleaning drink dispensing equipment. McGee worked primarily within the plant and had been performing his repair duties for about five months.

The plaintiff, approximately 37 years of age at the time of the accident, was employed by Pepsi-Cola as a mechanic to repair and service soft-drink dispensing equipment. Featherall had 12 years experience in that field of endeavor. He was very knowledgeable in the use and repair of all components in a typical dispensing system.

Plaintiff...