648 F.2d 1272 (10th Cir. 1981), 79-1918, Barber v. General Elec. Co.

Docket Nº:79-1918, 79-1926.
Citation:648 F.2d 1272
Party Name:Paul S. BARBER, an Individual, Plaintiff-Appellant, v. GENERAL ELECTRIC COMPANY, a New York Corporation, Defendant-Appellee. WESTERN FARMERS ELECTRIC COOPERATIVE, an Oklahoma Corporation, and Employers Casualty Corporation, an Oklahoma Corporation, Intervenor.
Case Date:May 11, 1981
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1272

648 F.2d 1272 (10th Cir. 1981)

Paul S. BARBER, an Individual, Plaintiff-Appellant,

v.

GENERAL ELECTRIC COMPANY, a New York Corporation,

Defendant-Appellee.

WESTERN FARMERS ELECTRIC COOPERATIVE, an Oklahoma Corporation,

and

Employers Casualty Corporation, an Oklahoma Corporation, Intervenor.

Nos. 79-1918, 79-1926.

United States Court of Appeals, Tenth Circuit

May 11, 1981

Submitted March 19, 1981.

Page 1273

Robert S. Baker and John S. Oldfield, Jr., Baker, Baker & Wilson, Oklahoma City, Okl., for plaintiff-appellant.

B. J. Cooper, Cooper, Stewart & Elder, Oklahoma City, Okl., for defendant-appellee.

Before SETH, Chief Judge, and BARRETT and DOYLE, Circuit Judges.

Page 1274

WILLIAM E. DOYLE, Circuit Judge.

The question which is here presented is whether the trial court erred in granting defendant's motion for summary judgment in a personal injury case which grew out of a high voltage transformer explosion in the course of its being installed.

The occurrence took place on May 27, 1976. The transformer was being installed by the plaintiff Barber and other employees of Western Farmers Electric Cooperative at a Western Farmers sub-station. General Electric had manufactured the transformer at Rome, Georgia and had shipped it to Anadarko, Oklahoma by rail in 1974. Western had stored it for two years. It had been moved to the installation site in May of 1976. During installation there was a malfunction. This caused pressure to build up inside the transformer. A further result was the expulsion of insulating oil through a pop-off valve. There was a protective system which would have caused fuses to blow and turn the circuit off, but it failed to function. Just prior to the explosion Barber had been standing under the pop-off valve, and was covered with the expelling oil. He claims that he was blinded by the oil and while he ran from the vicinity of the expelling oil, he fell and seriously injured himself. Barber's cause of action was based on two theories of strict liability in tort, namely manufacturer's product liability and breach of implied warranty of merchantable quality fitness for its intended use.

General Electric sued Western Farmers Electric Cooperative as a third-party defendant. Employers Casualty Corporation, the Workmen's Compensation carrier, intervened. It alleged a subrogation interest as against General Electric. It also realleged plaintiff Barber's theories of recovery.

The trial court entered summary judgment in favor of General Electric and against plaintiff Barber.

I. The Order of Dismissal

On July 23, 1979 the plaintiff filed a motion for entry of a voluntary non-suit or dismissal without prejudice pursuant to Rule 41(a)(2) of the Rules of Civil Procedure. This was granted. But the following day the court held a hearing to consider General Electric's motion to vacate the motion to dismiss and at the same time to grant defendant's motion for summary judgment. The trial court granted both of these motions. Judgment for the defendant was entered, and it is the propriety of this ruling which is the subject of appeal.

The surrounding facts insofar as they appear in the record are as follows:

Barber filed his complaint on December 1, 1977. General Electric filed its answer on December 22, 1977. Plaintiff then served interrogatories on General Electric on March 7, 1978. General Electric served plaintiff with interrogatories on March 8, 1978. Employers Casualty filed a motion to intervene on March 17, 1978. Both sets of interrogatories were answered. On June 6, 1978, the court entered a protective order having to do with documents and materials produced by the defendant for plaintiff's use. General Electric produced some 25 documents for plaintiff's use.

General Electric filed a third-party complaint against Western Farmers on June 20, 1978. A jury trial was requested. The third-party defendant, Western Farmers, filed an answer to the General Electric complaint on July 10, 1978. Pretrial proceedings were held during October and November, 1978. General Electric served Western Farmers with interrogatories in December, 1978, and served Western Farmers with a request for production of documents, etc. on January 8, 1979. Other motions were filed by Western Farmers, until on January 23, 1979, General Electric filed its motion for summary judgment against plaintiff Barber.

There were further pretrial proceedings on February 20, 1979. Plaintiff filed a brief in answer to that of...

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