Hurd v. Hurd

• Decision Date: 02 January 1981
• Citation: 423 A.2d 960
• Parties: 31 UCC Rep.Serv. 1290 Richard HURD v. Daniel HURD, Sr. and Clark Equipment Company.
• Court: Maine Supreme Court

Page 960

423 A.2d 960

31 UCC Rep.Serv. 1290

Richard HURD v. Daniel HURD, Sr. and Clark Equipment Company.

Supreme Judicial Court of Maine.

Argued Nov. 3, 1980.

Decided Jan. 2, 1981.

Jerome S. Goldsmith (orally), Michael L. Rair, Law Student, Bangor, for plaintiff.

Rudman, Winchell, Carter & Buckley, Clark P. Thompson (orally), Michael P. Friedman, Bangor, for Clark Equipment Co. Vafiades, Brountas & Kominsky, Eugene Coughlin, Bangor (orally), for Daniel Hurd.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, and GLASSMAN, JJ., and DUFRESNE, A. R. J.

McKUSICK, Chief Justice.

In this negligence and breach of warranty action plaintiff Richard Hurd appeals from the dismissal by the Superior Court (Penobscot County), after trial without a jury, of his claims against his father and employer, Daniel Hurd, Sr. (defendant Hurd), and the manufacturer, Clark Equipment Company (defendant Clark), that arose out of a 1971 farm accident involving a front-end loader. We affirm the judgment entered for both defendants.

Beginning in 1966, plaintiff worked as a laborer on his father's cattle and dairy farm in Bradford. At the time of the accident in 1971, plaintiff was 27 years old. Earlier in 1971, plaintiff's father, defendant Hurd, purchased a used Michigan 55A front-end loader from a construction company in either Augusta or Hallowell. The loader had been manufactured by defendant Clark in 1960 and had had several intermediate owners. On November 20, 1971, defendant Hurd told plaintiff and two other employees to use the loader to move a hay conveyor that had been blown over by the wind. Plaintiff had operated the front-end loader on several occasions previously. Defendant Hurd did not further instruct plaintiff on how the conveyor should be moved, nor was he present at the worksite. Once there, the other two employees attached the conveyor to the loader's bucket with a chain, and plaintiff, who was operating the loader, raised the conveyor off the ground by lifting the bucket to its highest position. At that point, plaintiff left the loader's cab to assist the men on the ground. Since the bucket was still in its highest position, plaintiff, in order both to descend from and to remount the machine, had to move under the boom arms that attached the bucket to the loader's body behind the cab. After assisting his companions on the ground, plaintiff mounted the loader from the right side, where the lever that controlled the boom arms was located. As he was getting back into the cab, he brushed against the lever, causing the boom arms to come down rapidly with great force. Plaintiff was crushed by the right boom arm and his back was broken.

In his suit jointly against the father-employer and the loader's manufacturer, plaintiff claimed his father, defendant Hurd, was negligent both in furnishing him an unsafe place to work and in failing to warn him of the hazard involved in operating the loader. ¹ Plaintiff claimed that the manufacturer, defendant Clark, had committed a breach of the warranties of the loader's merchantability and fitness for its intended purpose, and was negligent in failing to design the loader in such a way as to prevent the unintended activation of the boom arms and in failing to warn the loader's users of the dangers inherent in using it as it was constructed. At the conclusion of plaintiff's case, the Superior Court justice in a bench ruling dismissed plaintiff's negligence claim against his father. He subsequently issued a written opinion also dismissing plaintiff's claims against the manufacturer, basing dismissal of the warranty claim on lack of privity and dismissal of the negligence claim on a finding that defendant Clark had not violated any duty of care in designing the loader or in failing to warn of its dangers.

I. THE CLAIMS AGAINST THE FATHER-EMPLOYER

The case at bar involves an issue of first impression for this court, namely, the effect of the comparative negligence statute, 14 M.R.S.A. § 156, ² on an employer's common law duties to his employees. ³ The case law developed prior to the 1965 enactment of that statute distinctly defines at least two such common law duties. The employer must first furnish his employees with a reasonably safe workplace. Boober v. Bicknell, 135 Me. 153, 154, 191 A. 275, 275-76 (1937); Kimball v. Clark, 133 Me. 263, 266, 177 A. 183, 184 (1935). In addition, he must warn the employees of any hidden dangers involved in the work to be done. Kimball v. Clark, supra at 266, 177 A. at 184; Dunbar v. Hollingsworth & Whitney Co., 109 Me. 461, 464-65, 84 A. 992, 994 (1912). In cases brought by employees injured by instrumentalities containing an obvious danger, this court in the past has articulated two theories for denying recovery: first, that the employer was under no duty to warn his employees of an obvious danger; and second, that the employee had assumed the risk or had been contributorily negligent in unreasonably failing to perceive or to respond to the obvious danger. Merrill v. Wallingford, 154 Me. 345, 349-51, 148 A.2d 97, 100-01 (1959); Dunbar v. Hollingsworth & Whitney Co., supra at 464-66, 84 A. at 994-95; Wyman v. Berry, 106 Me. 43, 48-50, 75 A. 123, 126 (1909); Podvin v. Pepperell Mfg. Co., 104 Me. 561, 564-66, 72 A. 618, 620 (1908); Bryant v. Great Northern Paper Co., 100 Me. 171, 174, 60 A. 797, 798 (1905). Under the law in force in Maine until 1965, the employee on either theory was completely barred from any recovery.

The enactment of 14 M.R.S.A. § 156 in 1965 changed the manner in which the trier of fact should analyze, on those infrequent occasions when it arises, the problem of whether an injured employee may recover from his employer on a common law negligence theory in instances in which the danger that caused the employee's injury was or should have been obvious to him. Rather than equating the employee's failure to avoid an obvious danger with a total lack of duty on the employer's part, the factfinder should first determine independently whether the employer has violated either his duty to provide a reasonably safe workplace or his duty to instruct the employee on risks inherent in the nature of the work. If the employer has been negligent in either or both respects, the focus of the inquiry then shifts to the employee's duty to refrain from negligent conduct. If the factfinder determines that the employee's own negligence was equal to or greater than the employer's, the employee will be barred from recovery. See Wing v. Morse, Me., 300 A.2d 491, 501 (1973). Whether the danger that resulted in the injury was obvious will, of course, be a factor to be considered in determining the employee's negligence. See Ferguson v. Bretton, Me., 375 A.2d 225, 227 (1977). However, the plaintiff's awareness of the danger that caused his injury will no longer by itself constitute an absolute bar to recovery. Id.

We now examine whether the trial justice in the case at bar committed reversible error in dismissing the employee's suit against his father-employer. The justice granted that defendant's motion to dismiss at the close of plaintiff's case. With direct relevance to that circumstance, M.R.Civ.P. 41(b)(2) provides that:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant ... may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff. ...

Thus, the trial justice in the case at bar was not bound to rule solely on the legal sufficiency of the evidence, as he would have been in a jury case, 1 Field, McKusick & Wroth, Maine Civil Practice § 41.7 at 579 (2d ed. 1970), but was entitled to determine on the basis of both the facts and the law whether plaintiff had shown any right to relief.

The justice had before him the complaint asserting a breach by the employer of a duty "to furnish the plaintiff with a front end loader free from defects and one which could be used with safety without endangering those using the same." In oral argument immediately before the justice ruled, counsel restated plaintiff's argument that the employer had not provided a safe machine to his son. From the colloquy of counsel and the court and from the justice's oral ruling, it is clear that he determined that plaintiff's negligence in not protecting himself against the obvious dangers of the loader exceeded any negligence on the father-employer's part, whether in failing to provide a reasonably safe workplace or to warn of any danger inherent in the use of the machine. It is true that the justice did not fully spell out his reasoning in terms of the comparative negligence statute; but he had no need to do so. It is clear that he did in fact compare the negligence of the employee with that of the employer. We are not at all willing to assume that the experienced trial justice, having also had his attention specifically called to plaintiff's argument, overlooked the employer's duty to provide a safe place to work. The evidence adequately supports the justice's implicit finding that the employee's total negligence equalled or exceeded the total negligence of the employer. We therefore affirm his dismissal of the suit against defendant Hurd.

II. THE CLAIMS AGAINST THE MANUFACTURER

The trial justice determined that plaintiff's claims against the manufacturer for breach of warranties of merchantability and fitness for an intended purpose were barred under McNally v. Nicholson Mfg. Co., Me., 313 A.2d 913 (1973), because of the lack of privity between plaintiff and defendant Clark. He also dismissed plaintiff's negligence claim against Clark, concluding that plaintiff simply had not demonstrated any negligence on the part of that defendant. Because neither plaintiff nor defendant Hurd ever had any contractual privity with the manufacturer and...