Community Television Services, Inc. v. Dresser Industries, Inc., 77-1750

• Decision Date: 24 November 1978
• Docket Number: No. 77-1750,77-1750
• Citation: 586 F.2d 637
• Parties: 24 UCC Rep.Serv. 851, 25 UCC Rep.Serv. 63 COMMUNITY TELEVISION SERVICES, INC., a corporation, Appellee, v. DRESSER INDUSTRIES, INC., a corporation, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 637

586 F.2d 637

24 UCC Rep.Serv. 851, 25 UCC Rep.Serv. 63

COMMUNITY TELEVISION SERVICES, INC., a corporation, Appellee, v. DRESSER INDUSTRIES, INC., a corporation, Appellant.

No. 77-1750.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 17, 1978.

Decided Sept. 13, 1978.

Rehearing En Banc Denied Nov. 24, 1978.

Hopkins, Sutter, Mulroy, Davis & Cromartie, Chicago, Ill., argued, for appellant; G. Alan Cunningham and David P. Pearson of Faegre & Benson, Minneapolis, Minn., Harold C. Doyle of May, Johnson, Doyle, Becker & Fisher, Sioux Falls, S. D., and Robert W. Patterson, Chicago, Ill. (argued), and Mary S. Nissenson, Chicago, Ill., on brief.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, S. D., argued, for appellee; Ellsworth E. Evans and Deming Smith (argued), and Edwin E. Evans, Sioux Falls, S. D., on brief.

Before GIBSON, Chief Judge, and LAY and STEPHENSON, Circuit Judges.

LAY, Circuit Judge.

Dresser Industries, Inc. appeals from a judgment of the district court in the sum of $1,274,631.60, ¹ awarded to Community Television Services, Inc. for damages arising from the collapse of a 2,000 foot television and radio broadcasting tower on January 11, 1975. Dresser designed, manufactured, and erected the tower for Community. The jury, answering special interrogatories, rejected Community's alternative claims of negligence and strict liability, but found for Community under breach of express warranty. ² On appeal, Dresser argues that: (1) the verdict for Community is not supported by the evidence, and (2) the trial court erred in failing to enforce the limitation of liability provisions of the sale contract. Upon review of the entire record, we affirm the judgment for Community.

Background.

Community Television Services, Inc. is a corporate entity formed in about 1965 by two South Dakota based broadcasting stations, KELO and KSOO, for construction near Rowena, South Dakota, of a 2,000 foot tower to broadcast television signals for both stations. Contract negotiations were entered into with Dresser, who fabricated and erected the tower. The tower became operational in August of 1967. On June 22, 1968, the tower collapsed when an airplane clipped and severed a supporting cable. Dresser erected a replacement tower, which became operational in May of 1969. Included in the terms and conditions of the contract between Dresser and Community for the replacement tower was the warranty and limitation of liability provision at issue in this appeal. The only significant variance between the two contracts was an increase in the tower's price in 1968 to $385,000.

A relatively thin metal structure, the tower was comprised of a mast and three interconnected legs held in balance by guy cables set to an appropriate tension. An antenna was placed on top of the tower for broadcasting television and FM radio signals. Community had the tower regularly inspected and properly maintained. The only significant maintenance operation was retensioning of certain guy cables by an independent contractor retained by Community.

On January 10 and 11, 1975, a severe winter blizzard occurred in the area where the tower was located. During the early morning hours of January 11, as the storm reached its height with wind speeds near the top of the tower of up to 80 miles per hour, the tower collapsed. Expert witnesses called by both sides differed in their opinions as to the cause of the collapse. Community's experts testified that they had eliminated metallurgical or mechanical failure or abnormal wind loading as the cause of collapse. They theorized that the cause was high winds setting up a phenomenon known as mechanical resonance. They concluded that because of the resonance, the tower members "were inadequate to support the load that they sustained." On the other hand, Dresser's experts testified that a combination of ice, snow and wind subjected the tower to a total force greater than the ultimate capacity of its structural elements. They theorized that a substantial accumulation of rime ice ³ on the upper fourth of the tower enlarged the tower surface area exposed to the wind, thereby subjecting the tower members to a greater load than their designed wind loading capacity. Community attempted to refute Dresser's rime ice theory by calling several witnesses who testified that they did not see any such ice on or near the area where the tower collapsed. In turn, Dresser countered Community's theory through expert testimony that relatively constant winds were necessary for resonance to begin, and the winds were gusty and varied in speed and direction at the time of collapse. Furthermore, Dresser argued that the warranty did not guarantee against mechanical resonance, and experts testified that its prevention was beyond the current state of the art.

Creation and Scope of the Warranty.

The specifications incorporated in the sale contract included a specified "Design Wind Load," which set forth the tower's capacity to withstand wind velocity as measured in pounds of pressure per square foot against the flat surfaces of its members. The specification reads: "The tower shall be designed to resist a uniform wind load per drawing T-5172, sheet S-1, 60 psf on flats." The trial court instructed the jury that this specification constituted an express warranty that the structure would withstand wind exerting pressure of 60 pounds per square foot on the flat surfaces of the tower. ⁴ Dresser's advertising materials and the testimony of experts at trial revealed that the wind velocity necessary to create 60 pounds of pressure on the flat surfaces of the tower would be approximately 120 miles per hour. The evidence showed that the wind loading specifications referred, at least in engineering parlance, to "a force caused by the wind that is introduced parallel to the ground . . . (which) would be tending to blow the structure over." ⁵

Dresser argues that the trial court erred in failing to direct a verdict on the express warranty claim or grant it judgment notwithstanding the verdict, because expert testimony that the tower met the design specification was uncontradicted. Community's own experts stated unequivocally that in their opinion the tower conformed in a mathematical or analytical sense to the 60 pounds per square foot wind loading specification. If the warranty may be restricted to the technical specification set forth in the written contract, we would find Dresser's argument convincing. However, we agree with Community that the warranty was amplified, in advertising materials Dresser gave to Community prior to purchase of the first tower, to promise more than mere compliance with technical measurements. In an advertising catalog, Dresser made the following supplementary affirmation:

Wind force creates the most critical loads to which a tower is normally subjected. When ice forms on tower members thereby increasing the surface area resisting the passage of wind, the load is increased.

Properly designed towers will safely withstand the maximum wind velocities and ice loads to which they are likely to be subjected. Dresser-Ideco can make wind and ice load recommendations to you for your area based on U. S. Weather Bureau data. ⁶

Although we agree with Dresser that a seller cannot be held to be the insurer of its product, Dresser nevertheless provided the catalog to Community to induce purchase of its product, and in the absence of clear affirmative proof to the contrary, the above affirmation must be considered part of the " basis of the bargain." S.D. Compiled Laws Ann. § 57-4-26; Comment 3 to U.C.C. § 2-313; Drier v. Perfection, Inc., S.D., 259 N.W.2d 496, 502 (1977); Hawkins Construction Co. v. Matthews Co., 190 Neb. 546, 565, 209 N.W.2d 643, 654 (1973). Standing alone, the statements provide a warranty that Dresser's tower would be properly designed so as to safely withstand the maximum wind velocities and ice loads to which it would likely be subjected. Dresser did not indicate that this broad affirmation was superseded or cancelled by the technical specification in the contract. Cf. Braniff Airways, Inc. v. Curtiss-Wright Corp., 411 F.2d 451, 455 (2d Cir.), Cert. denied, 396 U.S. 959, 90 S.Ct. 431, 24 L.Ed.2d 423 (1969), 400 U.S. 829, 91 S.Ct. 59, 27 L.Ed.2d 59 (1970). When the affirmation is read in tandem with the contract, as part of the "fabric" of the agreement of the parties, See Comment 3 to U.C.C. § 2-313, it enlarges the warranty created by the technical wind loading specification, giving evidence of its full intent and scope. See Collins v. Uniroyal, Inc., 126 N.J.Super. 401, 315 A.2d 30 (1973), Aff'd 64 N.J. 260, 315 A.2d 16 (1974); Fargo Mach. & Tool Co. v. Kearney & Trecker Corp., 428 F.Supp. 364, 371 (E.D.Mich.1977).

We find that the statements in the advertising catalog, which supplement the wind loading specification, could reasonably have been found by the jury to be an affirmation of fact or a promise concerning the actual durability or performance of the tower during the wind and ice storms to which it was likely to be subjected.

Proof of Breach.

Although Dresser's defense was that the tower collapsed by reason of excessive loading due to ice on the tower members, no disclaimer or limitation of the warranty that a properly designed tower would safely withstand the maximum wind and ice loads to which it was likely to be subjected appeared in the advertising materials or the contract. Under the Integrated warranty given, a purchaser could reasonably assume that the tower, if properly designed for its location, would withstand maximum wind speeds to which it was likely to be subjected, even if ice accumulated on the tower members. While the blizzard was a severe one, the evidence does not support the conclusion that the wind alone, or the combination of wind and ice which Dresser claimed caused the collapse, was not within the range of storm conditions to be reasonably contemplated for the...