Babylon v. Scruton

• Decision Date: 20 January 1958
• Docket Number: No. 97,97
• Citation: 138 A.2d 375,215 Md. 299
• Parties: Guy Graham BABYLON v. Ralph H. SCRUTON.
• Court: Maryland Court of Appeals

Page 299

215 Md. 299

138 A.2d 375

Guy Graham BABYLON v. Ralph H. SCRUTON.

No. 97.

Court of Appeals of Maryland.

Jan. 20, 1958.

Stanford Hoff and Donald C. Sponseller, Westminster (Charles F. Wagaman, Hagerstown, on the brief), for appellant.

Robert E. Clapp, Jr. and Sherman P. Bowers, Frederick (Norman I. Broadwater, Hagerstown, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

Scruton, the appellee, was the superintendent of a contracting firm, who fell to the ground when a concrete slab he was installing as part of the roof of the building under construction broke as he stepped on it. Babylon, the owner of the building and also the manufacturer of the slab, appealed from the judgment entered against him on the verdict of the jury in favor of Scruton. Babylon argues that his prayer for a directed verdict at the end of the testimony and his motion n. o. v. should have been granted.

Babylon is a manufacturer of concrete burial vaults in Carroll County. After planning the project and discussing it with the contractor for several years, he engaged him to build a new plant that was to have a roof of concrete slabs. Babylon in the earlier phase of the project had borrowed forms from another vault plant that had made similar slabs for use as a roof, and manufactured some three hundred slabs which he stored, set up on edge on railroad ties, for several years, awaiting the time he would be ready to use them. Each slab was eight feet long, two feet wide and one inch thick, with a flange on each side, tapering from one and one-half to two and one-half inches. Each slab was reinforced through its middle by a section of ten gauge welded wire netting and most of them were further reinforced by two three-eighths inch solid steel rods, eight feet long, one on each side.

When the time came, in the building operation, to begin the roofing, Scruton asked Babylon how the slabs were made. He says he was told that they were made of one part concrete, one part sand, and one and a half parts stone, and that each was reinforced, along both its sides, by the eight-foot solid steel rods, and in the middle by wire netting. Being satisfied, Scruton began the roofing. The slabs were lifted by a crane to the roof level and piled there. Then one by one they were slid into position, each end resting on a steel beam. Each was inspected by the workmen before it was put in place. After a slab was set, it was necessary to stand on it to clean its edges and put a roofing compound or adhesive on it. Babylon knew this, having watched the work going on. On the third day of the roofing, Scruton, having inspected a slab and found no imperfections, chips or cracks, stepped on it. As soon as he did so, it broke in the middle and threw him to the ground.

An inspection of the two halves of the broken slab showed that its rod reinforcement had not been two solid eight-foot rods but four four-foot rods, two on each side with an overlap in the middle of an inch or two, and that the concrete had broken jaggedly across the slab just at the point of overlap.

We find there was no error in sending the case to the jury and in denying the motion for judgment n. o. v. The law now generally is that a seller or other supplier for a consideration of a chattel may be liable for harm to the person or property of a person who may be expected to be in the vicinity of the chattel's probable use if he has failed to exercise reasonable care to make the chattel safe for the use for which it is supplied. Prosser, Torts (2nd ed.) Ch. 17, Sec. 84; 2 Harper & James, The Law of Torts, Sec. 28.2; Restatement, Torts, Sec. 388. The principle has been recognized and applied in Maryland. Kaplan v. Stein, 198 Md. 414, 420, 84 A.2d 81. One who supplies a chattel to another to use for the supplier's business purposes 'knowing it to be or to be likely to be dangerous for the use for which it is supplied' is subject to liability. Restatement, Torts, Sec. 391. So, too, is a manufacturer of a chattel, which, unless carefully or properly made 'he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured * * *'.

Restatement, Torts, Sec. 395. Comment (b) of this section says that it is not necessary that the chattel be intended to affect, preserve or destroy human life. 'The purpose which the article, if perfect, is intended to accomplish is immaterial. The important thing is the harm which it is likely to do if it is imperfect.' Comment (c) goes on to point out that a manufacturer is required to exercise reasonable care in manufacturing any article which, if carelessly manufactured, is likely to cause more than trivial harm to those who use it. Reasonable care in manufacture includes the adoption and use of a plan or design which, if properly followed, will produce an article safe for the use for which it is produced, the selection and use of proper materials and parts, and the making of such tests during manufacture and after the article is completed as the maker 'should recognize as reasonably necessary to secure the production of a safe article * * *'.

Harper and James, in Sec. 28.3 at page 1540 of the work cited, in referring to manufacturers of chattels, say the law is that: 'His specific obligations may be roughly divided into two categories: the first concerns the design, plan, structure, and specifications for the product; the second concerns miscarriages in the process of manufacture because of which the product is not what was intended--it is 'defective' in some respect. * * * Design or specification quite consciously and deliberately adopted may well lead (e. g., through oversight, miscalculation, or a desire to skimp costs) to a characteristic of the product having so little utility that most people would readily call it a 'defect,' and reasonable care would call for a better product rather than a warning.'

In Sec. 28.4 they say: 'The maker of an article for sale or use by others must use reasonable care and skill in designing it and in providing specifications for it so that it is reasonably safe for the purposes for which it is intended, and for other uses which are foreseeably probable. And a person who undertakes such manufacturing will be held to the skill of an expert in that business and to an expert's knowledge of the arts, materials, and processes. Thus he must keep reasonably abreast of scientific knowledge and discoveries touching his produce and of techniques and devices used by practical men in his trade. He may also be require to make tests to determine the propensities and dangers of his product.'

Testing the sufficiency of the evidence, as the rule requires, in the scale that assumes the truth of all evidence and all natural and legitimate inferences it permits, which tend to support the plaintiff's claims, and resolves all conflicts in the evidence in the plaintiff's favor, we see enought to support a jury finding that Babylon, who was both the manufacturer and supplier for his own business purposes of the defective chattel, did not use reasonable care in the making of the slab that broke; that he knew or should have known that it would not, or well might not, be safe for the use for which it was intended and that its defects in construction were a proximate cause of the harm that came to Scruton.

Babylon had never made similar slabs before. He sought no advice as to design or construction. Nevertheless, the slabs, if reinforced with a solid rod on each side, were safe and adequate. Tests were made on one such slab, and it held seven or eight hundred pounds. The evidence supported two possible findings as to the slab that broke. The jury could have determined that it was the only slab that had been made with two four-foot rods on each side. Before the accident Babylon told Scruton that each slab had two eight-foot rods. After the accident he told an insurance claims representative that some of the slabs had an eight-foot rod on one side and two four-foot rods on the other side because he had been 'running short on material' and that slabs so built 'basically should have been sufficiently strong enough to carry the weight'. When the claims representative asked him about the slab that broke, '...