Young v. Up-Right Scaffolds, Inc., UP-RIGHT

• Decision Date: 19 December 1980
• Docket Number: No. 79-1961,UP-RIGHT,79-1961
• Citation: 205 U.S. App. D.C. 264,637 F.2d 810
• Parties: Maxwell YOUNG et al., Appellants, v.SCAFFOLDS, INC.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 810

637 F.2d 810

205 U.S.App.D.C. 264

Maxwell YOUNG et al., Appellants, v. UP-RIGHT SCAFFOLDS, INC.

No. 79-1961.

United States Court of Appeals District of Columbia Circuit.

Argued May 13, 1980.

Decided Dec. 19, 1980.

Gerard E. Mitchell, Washington, D. C., for appellants.

Francis J. Prior, Jr., Arlington, Va., for appellee. Robert L. Ellis, Arlington, Va., was on the brief for appellee.

Before TAMM, ROBB and MIKVA, Circuit Judges.

Opinion for the court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

On September 26, 1977, plaintiff Maxwell Young was injured when the scaffolding he was disassembling collapsed. He and his wife sued the company that sold the scaffolding to Young's employer to recover damages for injuries sustained in the accident. The complaint included counts alleging that the defendant was liable in tort on the basis of negligence and on the basis of strict liability for a defective product. The plaintiffs appeal from a jury verdict in favor of the defendant on the ground that, under applicable District of Columbia law, the jury instructions given by the trial judge constituted reversible error. The challenged instructions assumed that local courts would not recognize a strict liability claim sounding in tort for damages sustained as the result of a product defect. Because we agree with plaintiffs that the District of Columbia courts would recognize such claims, we reverse and remand for another trial.

I. BACKGROUND

A. The Accident

In the summer of 1977, the British Embassy purchased span scaffolding from Up-Right Scaffolds, Inc. (Up-Right) to be used in exterior maintenance work at the Embassy. Mr. Moody, an employee and sales representative of Up-Right, visited the Embassy on several occasions and recommended span scaffolding that could be assembled by a single man and would reach certain dormer windows.

Pursuant to these recommendations, the Embassy purchased four span extension sections and one span base section. The dormer windows could be reached by erecting the extension sections on top of the base section. After this scaffolding was delivered, Mr. Moody demonstrated its assembly for the benefit of painters and other workmen. Sales brochures and labels permanently attached to the scaffolding also illustrated the proper assembly method.

Neither the scaffolding labels nor the sales brochures indicated how the base unit On September 26, 1977, Maxwell Young, a carpenter, disassembled a scaffolding tower that had been erected on a flat roof to reach the dormer window. The tower had been erected in the manner approved by Up-Right. While the scaffold was being taken down, it collapsed and injured the plaintiff.

was to be disassembled. Evidence at trial indicated, however, that it was customary to disassemble scaffolding in the reverse order of assembly. Neither the assembly instructions (on the scaffolding labels or in the sales brochures) nor Mr. Moody suggested, however, that there was any danger of collapse if disassembly was not done in that order.

At the time of the collapse, plaintiff Young, who is five feet six inches tall, was standing on a horizontal platform near the bottom of the base unit. He had just finished taking down the scaffold tower and had begun to disassemble the base unit in the sequence in which he had taken down the tower. As he did so, the scaffolding rotated and collapsed, causing the plaintiff to tumble to the ground.

The accident would not have happened if Young had disassembled the base section in the reverse of the order in which it had been assembled, rather than the order in which the upper sections had been disassembled. There was, however, expert testimony that it was foreseeable that a five foot six inch worker would stand on the bottom platform while disassembling the base unit, and would disassemble it in the order in which he had taken down the upper sections.

B. Proceedings Below

Maxwell and Ellen Young filed this complaint on July 11, 1978, in the United States District Court for the District of Columbia, and the case was tried by a six-person jury. Count I was a claim based on strict liability in tort. ¹ The jury instructions, as initially proposed by the court, included an instruction requested by the plaintiffs on the doctrine of strict liability in tort. This instruction was, however, deleted by the trial court over the objection of plaintiffs' counsel and was never given to the jury.

After less than an hour of deliberation, the jury returned a note stating that they found both sides at fault and seeking further guidance. The court instructed the jury that if they found both the plaintiff and the defendant negligent, their verdict should be for the defendant. Shortly thereafter, a verdict for the defendant was returned.

II. APPROPRIATE JURY INSTRUCTIONS

Plaintiffs argue that the trial court erred in (1) instructing the jury to return a verdict for the defendant if both Young and the defendant were negligent, (2) failing to give an instruction on the doctrine of strict liability in tort, and (3) failing to instruct the jury that contributory negligence is not a defense to a strict liability claim.

Defendant argues that the decision below should be affirmed for three reasons. First, the District of Columbia has not adopted the theory of strict liability in tort. Second, liability in this case is based on defective labelling. Even in a strict liability jurisdiction, the appropriate standard of care in such a case is negligence and there was, therefore, no need to give any special or separate strict liability instructions. Third, the error, if any, was harmless because the plaintiff's contributory negligence can be recharacterized as either product misuse or assumption of risk, both of which are valid defenses in strict liability cases.

A. Strict Liability in the District of Columbia

Under the doctrine of strict liability in tort for product defects, a merchant who sells an unreasonably dangerous product to a consumer is liable for resultant injuries In Russell v. GAF Corp., 422 A.2d 989, (D.C.App. 1980), the plaintiff was injured when a sheet of corrugated asbestos cement shattered during installation. The plaintiff sued the manufacturer for failure to warn of an inherent product danger in an action based on both negligence and strict liability. Although the D.C. Court of Appeals did not expressly state that the strict liability claim alone would support liability, the language used does suggest that the court has adopted strict liability:

regardless of fault, or privity of contract. See, e. g., Restatement (Second) of Torts § 402A (1965); 1 R. Hursh & H. Bailey, American Law of Products Liability 2d §§ 4:1, 4:6 (1974); W. Prosser, The Law of Torts § 98 (4th ed. 1971). Although no District of Columbia court has, as yet, found a defendant strictly liable for product defects in an action sounding in tort, D.C. courts have imposed liability in cases involving implied warranties and negligent failure to warn of product dangers without any requirement of privity of contract. In so doing, D.C. courts have indicated their adoption of strict liability.

Appellant labelled his complaint against ... GAF as a claim based on both negligence and strict liability in tort. A plaintiff may limit the claim to negligence in failing to warn about foreseeable harm from a product, ... or claim strict liability for injury derived from the same failure. See Restatement (Second) of Torts § 402A, Comment j (1965).

At 991 (citation omitted).

Several implied-warranty cases provide further support for the proposition that D.C. courts have adopted strict liability. In these cases, liability has been imposed without any requirement of privity of contract or negligence on the part of the defendant. In Cottom v. McGuire Funeral Service, Inc., 262 A.2d 807 (D.C.App.1970), the D.C. Court of Appeals held that a pallbearer, injured when the handle came off a casket, could recover from the seller and the manufacturer of the casket if he could prove that the product entered the stream of commerce in a defective state, that the defect existed at the time of his injury, and that the defect caused the injury. In reaching this conclusion, the court noted that "(t)he differences between strict liability in tort and implied warranty, if any, are conceptual." Id. at 808.

In Berman v. Watergate West, Inc., 391 A.2d 1351 (D.C.App.1978), the D.C. Court of Appeals held that a company marketing defective cooperative apartments could be held liable for damages flowing from the breach of express and implied warranties. Since the defendants were liable under a warranty theory, there was no need to decide whether a claim could be made under a strict liability theory as well. The court nevertheless discussed the history of strict liability and indicated that a strict liability claim would be recognized by D.C. courts.

The court indicated its acceptance of the theory of strict liability by referring to Cottom, discussed above, as "(t)he court decision from which adoption of strict liability in tort can be inferred." Id. at 1357. The court quoted extensively from Cottom and cited, as further support, a decision in which this court concluded that the District of Columbia courts had adopted the theory of strict liability. Id. (citing Stewart v. Ford Motor Co., 553 F.2d 130 (D.C.Cir.1977)).

The defendant attempts to weaken the force of Berman by arguing that the Berman court's reference to Cottom as "(t)he case from which our adoption of strict liability in tort can be inferred" was merely an explanation of the CCH Product Liability Law Reporter's conclusion that D.C. courts have adopted strict liability. It is true that the court referred to CCH's conclusion immediately before making the quoted reference to Cottom. Id. at 1356. But we do not agree that the Berman court was merely explaining CCH's conclusion. The court began a new paragraph with the statement that...