Askew v. Howard-Cooper Corp., HOWARD-COOPER

• Decision Date: 19 October 1972
• Docket Number: HOWARD-COOPER
• Citation: 502 P.2d 210,263 Or. 184
• Parties: Claud O. ASKEW, Appellant, v.CORPORATION et al., Respondents.
• Court: Oregon Supreme Court

Page 210

502 P.2d 210

263 Or. 184

Claud O. ASKEW, Appellant, v. HOWARD-COOPER CORPORATION et al., Respondents.

Supreme Court of Oregon.

Argued and Submitted March 1, 1972.

Decided Oct. 19, 1972.

Wendell E. Gronso, Burns, argued the cause for appellant. With him on the brief were Claud A. Ingram, John Day, and Cramer, Gronso & Pinkerton, Burns.

Ridgway K. Foley, Jr., Portland, argued the cause for respondents. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe, and Roland F. Banks, Jr., Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

HOLMAN, Justice.

Plaintiff was injured while greasing a log lifting and handling machine manufactured by the defendant F. W. D. Wagner, Inc., and sold by the defendant Howard-Cooper Corporation. The complaint alleged both strict liability and negligent design in separate counts. The trial court granted a nonsuit and plaintiff appeals. The issue is whether there was sufficient evidence to take the case to the jury on either count.

The machine, called a lumberjack, was owned by the Edward Hines Lumber Co., and plaintiff had been employed about four months prior to his injury to operate the machine on the swing shift. Zerk fittings were located all over the machine, which plaintiff was required to lubricate daily by injecting grease into the fittings with a grease gun furnished by the employer.

The machine was on wheels and was mobile. It had two large claws upon a boom which would roll logs onto two blades that protruded from the bottom of the machine. The claws would clasp several logs against the blades and the machine would then move them to where they were required. Plaintiff was instructed by his employer to set the boom in a certain position and then to climb up onto its top for the purpose of greasing the fittings there. With the boom in that position, the fittings were approximately ten feet off the ground.

Plaintiff was injured while descending the boom after he completed greasing the fittings. His foot slipped on a hose coupling and he fell to the ground. Grease and oil tended to accumulate and to make slippery the areas he had to climb and descend in the course of greasing the fittings.

The lumberjack was not equipped with ladders, steps, rails, or other means to climb to the top of the boom. Plaintiff contends that the failure to make the fittings accessible from the ground or to provide some safe means of access to the boom rendered the machine unreasonably dangerous.

The manufacturer of a chattel may be liable in negligence for its faulty design. The Restatement (Second) of Torts § 398 provides:

'A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.'

Routine servicing is unquestionably within the scope of the uses for which a product is manufactured as those words are employed in this section. The 'intended use' limitation has been held to be merely an adaptation of the test of foreseeability of the risk. See Otis Elevator Company v. Wood, Tex., 436 S.W.2d 324, 327--328 (1968), and cases cited therein.

We conclude that the evidence does not make a case of negligence against the manufacturer sufficient to submit to the jury. By the admission of plaintiff's own witnesses, the boom could be lowered to a position whereby all but two grease fittings could easily be serviced from the ground. With the boom in its lowest position, the two fittings which plaintiff claims were not accessible were 7 feet 8 inches above the ground. The record contains a picture of plaintiff standing flat-footed with his hand upon one of these two fittings which were at identical heights. However, the two fittings protruded at an upward angle, and, therefore, the grease gun, with the kind of nozzle furnished by plaintiff's employer for the job, had to be placed on the fittings while it was held above them. A solid place to stand, three feet high, like a log, platform, or short ladder, would have solved the problem.

It is our opinion that the manufacture of equipment with grease fittings which are thus safely and easily accessible does not constitute negligence. The manufacturer should not be required to anticipate that the purchaser will direct his employees to follow an obviously dangerous method of servicing equipment (as the purchaser did in the present case) when safe methods are readily apparent and available. If the manufacturer was not negligent in making the machine, the immediate seller was not negligent in selling it.

In order to be unreasonably dangerous so as to substantiate strict liability on the part of the seller, it must be shown that '(t)he article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.' Restatement (Second) of Torts § 402A, Comment I. (1965).

It is our belief that, as a matter of law, we can say that the community would not condemn a machine as unreasonably dangerous which could be serviced in the manner described and without the necessity of climbing ten feet off the ground.

The judgment of the trial court is affirmed.

McALLISTER, Justice (disenting).

The majority holds that, as a matter of law, the log handling machine was not negligently designed. In my opinion the evidence made a jury question on that issue.

The evidence describing the machine, including its tendency to allow grease and oil to accumulate in certain areas, would have permitted the jury to find that it was dangerous to climb on the machine to grease the inaccessible fittings. The majority opinion recognizes that greasing the machine in this manner was dangerous and the defendant tacitly, if not expressly, admitted as much. The real issue is whether the manufacturer ought to have foreseen this danger. Two safety engineers testified that, based on their experience, employees could be expected to climb on machinery in order to lubricate it. The evidence also showed that the machine had to be greased daily and that most of the grease fittings could be reached from the ground. The jury could have found these facts significant in determining whether the manufacturer should have anticipated that some users would climb on the machine to grease the few inaccessible fittings, rather than providing themselves with ladders or platforms for this purpose.

I agree that the danger of climbing on the lumberjack was obvious, but I do not believe this relieves the manufacturer of liability as a matter of law. Some courts have held that the manufacturer has no duty to make his product free from open and obvious danger. Under this doctrine the manufacturer can make the machine as dangerous as he pleases so long as the danger or peril can be observed by the user. A leading authority for this rule is Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950), and other cases are cited in the margin. ¹ I believe that if applied literally the latent defect rule is a completely unsound approach to design defect problems. It tends to encourage dangerous design and permits the manufacturer wide latitude in incorporating in his product dangerous defects so long as they are not latent. It makes no distinction between open and obvious dangers which the user may readily avoid and those to which he is likely to expose himself in the proper use of the...