Barrett v. Atlas Powder Co.

• Decision Date: 21 November 1978
• Citation: 86 Cal.App.3d 560,150 Cal.Rptr. 339
• Court: California Court of Appeals Court of Appeals
• Parties: Nils O. BARRETT, Plaintiff and Appellant, v. ATLAS POWDER COMPANY et al., Defendants and Respondents. Civ. 17225.

Page 339

150 Cal.Rptr. 339

86 Cal.App.3d 560

Nils O. BARRETT, Plaintiff and Appellant, v. ATLAS POWDER COMPANY et al., Defendants and Respondents.

Civ. 17225.

Court of Appeal, Third District, California.

Nov. 21, 1978.

Trezza, Ithurburn, Steidlmayer & Bower and Eugene J. Davis, Yuba City, for plaintiff and appellant, Nils O. Barrett.

Downey, Brand, Seymour & Rohwer and Jeffery H. Speich, Sacramento, for defendant and respondent, Atlas Powder Co.

Memering, DeMers & Ford and Claudia J. Robinson, Sacramento, for defendant and respondent, Downey, Clinch, doing business as Alpha Hardware.

Rust & Armenis and F. Eugene Bailey, Sacramento, for defendant and respondent, American Cyanamid Co.

Diepenbrock, Wulff, Plant & Hannegan and James T. Freeman, Sacramento, for defendant and respondent, E. I. DuPont deNemours and Co.

Ericksen, Mackenroth & Arbuthnot and David E. Mackenroth, Sacramento, for defendant and respondent, Olin Corp.

EVANS, Associate Justice.

Plaintiff, Nils O. Barrett, sought damages for personal injuries from defendants, Atlas Powder Company, Downey Clinch, doing business as Alpha Hardware, Olin Corporation, American Cyanamid Company, and E. I. DuPont deNemours and Company, arising out of an incident in which a 30-year-old blasting cap exploded when handled by plaintiff. The defendants moved for and were granted summary judgment, and plaintiff appeals.

The facts surrounding the accident are not in dispute and indicate that on January 17, 1974, plaintiff, age 20, while at an abandoned gold mine his father had recently purchased, discovered three boxes of blasting caps. While out of the presence of his father, he detonated several of the caps by connecting them to a car battery. Plaintiff discarded one cap which had failed to explode and picked up another; while examining a smudge mark on it, it detonated in his hand causing his injuries. The cap that exploded was found to have been manufactured in the late 1930's or early 1940's, and it is plaintiff's contention that it was manufactured by one of the following defendants: American Cyanamid Company, Atlas Powder, Olin Corporation, or DuPont. Plaintiff also asserts that Downey Clinch, doing business as Alpha Hardware, is responsible in strict liability as the retailer who originally sold the caps to a prior owner of the mine, Joe Brown, who in turn sold the mine to Red Swain from whom plaintiff's father purchased the property.

Of foundational importance to our disposition of this matter are the rules concerning summary judgment. That procedure is set forth in Code of Civil Procedure section 437c. In pertinent part that section reads, "Any party may move for summary judgment in any action . . . if it is contended that the action has no merit . . . .

"The motion shall be supported or opposed by affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice shall or may be taken.

". . .tio

"Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

The basic purpose of the procedure is to eliminate evasive language and clever pleading and ascertain whether the pleading presents triable issues. The court makes its determination upon the content of the "affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice . . . may be taken." A party's pleadings may not be used to oppose the motion for summary judgment (Code Civ.Proc., § 437c; Chesney v. Gresham (1976) 64 Cal.App.3d 120, 131, 134 Cal.Rptr. 238; DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 698, 133 Cal.Rptr. 920). The party opposing a motion for summary judgment which is supported by affidavits, declarations, answers to interrogatories or depositions sufficient to sustain the motion has the affirmative duty to show that triable issues of fact exist. (Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310.) Equally important to our decision are the fundamental products liability axioms that "A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury . . . ." (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, 27 Cal.Rptr. 697, 700, 377 P.2d 897, 900; Price v. Shell Oil Co. (1970) 2 Cal.3d 245, 250, 85 Cal.Rptr. 178, 466 P.2d 722; Cronin v. J. B. E. Olson Corp. (1972) 8 Cal.3d 121, 130, 104 Cal.Rptr. 433, 501 P.2d 1153.) That rule is equally applicable to the manufacturer and the retailer. (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 263, 37 Cal.Rptr. 896, 391 P.2d 168.) However, to establish liability, it is not enough that the action happened, nor may liability inferences favorable to plaintiff be drawn from that fact. The plaintiff must prove by competent evidence that the product was either defective in design or manufacture or both, thus causing the injury (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 676, 117 Cal.Rptr. 1, 527 P.2d 353), or that inadequate warning relative to use of the product was given.

Plaintiff asserts two products liability theories as bases for his claim that the record reveals triable issues of fact concerning liability of each defendant for plaintiff's injuries. They are the defective design and manufacture of the blasting cap and the retail sale of the allegedly defective product without warning of its defect. If either theory is supported by adequate documentation and held viable, granting the summary judgment was error. However, we fail to find merit in either contention.

After the parties had conducted extensive discovery, plaintiff, in response to defendant Alpha Hardware's interrogatory, identified his explosives expert as Oscar Margraf. Defendant also asked the plaintiff if the expert had an opinion as to the cause of the detonation. Plaintiff replied, " 'Without speaking for Mr. Margraf, it is felt that his opinion generally as to the cause of the detonation is that it was caused by the extremely unstable condition of the cap, due to its characteristics and age.' "

Six months later plaintiff, upon inquiry, failed to specify any further expert witnesses, and Mr. Margraf was deposed. The essence of his testimony was that considering the time of manufacture (the late 1930's or early 1940's), the blasting cap had been reasonably designed and was as good as could be then obtained, and that it was made of the "Best available material."

Margraf's testimony on the issue of design was not controverted directly or indirectly. However, plaintiff argues that defendants did not establish that a defect in manufacture was not the cause of the accident, and that the fact of the accident is "some evidence" of manufacturing defect. The law is to the contrary. The defect must be affirmatively established, and an inference of defect as a result of the accident is not to be drawn. (Henderson v. Harnischfeger Corp., supra, 12 Cal.3d 663, 117 Cal.Rptr. 1, 527 P.2d 353.) The data presented in support of the motion for summary judgment dispels completely the theory of design defect. It also proves that the cap was manufactured of the best available material and that by its detonation it was destroyed, precluding any examination to determine whether or not a manufacturing flaw existed at the time it left the hands of the manufacturer which ultimately caused the detonation and injury. In essence, the plaintiff is asking that the doctrine of res ipsa loquitur be applied when considering the propriety of the order granting the motion for summary judgment. That doctrine is not applicable in any action predicated upon the theory of strict liability. (Tresham v. Ford Motor Co. (1969) 275 Cal.App.2d 403, 408, 79 Cal.Rptr. 883.) Moreover, the principles which plaintiff attempts to extract from Mahoney v. Hercules Powder Co. (1963) 221 Cal.App.2d 353, 358, 34 Cal.Rptr. 468, 471, in...