Braxton v. Rotec Industries, Inc., 4291-III-0

• Decision Date: 25 August 1981
• Docket Number: No. 4291-III-0,4291-III-0
• Citation: 633 P.2d 897,30 Wn.App. 221
• Parties: Wardell BRAXTON and John Iverson, Plaintiffs, and Michael Huntington, Appellant, v. ROTEC INDUSTRIES, INC., a corporation, Respondent.
• Court: Washington Court of Appeals

Page 221

30 Wn.App. 221

633 P.2d 897

Wardell BRAXTON and John Iverson, Plaintiffs, and Michael Huntington, Appellant, v. ROTEC INDUSTRIES, INC., a corporation, Respondent.

No. 4291-III-0.

Court of Appeals of Washington, Division 3, Panel Two.

Aug. 25, 1981.

Reconsideration Denied Sept. 16, 1981.

Michael E. de Grasse, Critchlow, Williams & Schuster, Richland, for appellant.

Robert R. Redman, Gavin, Robinson, Kendrick, Redman & Mays, Yakima, for respondent.

GREEN, Judge.

Michael Huntington, one of the plaintiffs in this products liability action, appeals from a jury verdict in favor of defendant, Rotec Industries. The issues presented are whether the court erred in (1) giving and failing to give certain instructions concerning Rotec's duty to warn, and (2) refusing to instruct the jury that negligence is not an element of Mr. Huntington's case. We affirm.

Hoffman Construction Co. purchased a concrete conveyor system, referred to as a "swinger" from Rotec Industries for use in constructing a nuclear reactor in Benton County. The swinger is a revolving conveyor belt system supported by a vertical column referred to as a "pogo stick." In its instruction manual, Rotec suggested the pogo stick could be mounted by embedding it in cement or bolting it to a concrete slab through a baseplate. It could also be supported by guy wires. If guy wires were used, the manual supplied the suggested cable size, breaking strength, tension and weave for the cables depending upon the height of the pogo. The pogo stick, guy wires and hardware to support the swinger were to be supplied by the purchaser, Hoffman.

In the spring of 1976, Hoffman's supervisors and engineers erected the swinger, which arrived at the construction site unassembled. A pogo stick between 20 and 30 feet tall was mounted to a baseplate and supported by guy wires. One of Rotec's employees aided in assembling the system and instructed some of Hoffman's employees, including Mr. Huntington, regarding its operation and maintenance. However, he did not instruct them concerning the erection of the supporting structure. The Hoffman employees who were present while the swinger was being assembled and erected each received the instruction manual.

In the course of its normal use, over a period of several months, the system was disassembled and reassembled. On September 16, 1976, the system collapsed injuring three employees. They brought this action for personal injuries, alleging the system was unreasonably dangerous and Rotec was strictly liable for defective design, manufacture, installation and service. Rotec answered, alleging the injuries were caused by the acts or omissions of Hoffman and the injured employees.

The testimony at trial was conflicting as to the cause of the accident. The record shows the cable used for the guy wires was smaller in diameter than the cable size suggested by the manual. Rotec's expert testified a guy wire was improperly spliced. An employee testified Mr. Huntington was aware of and concerned about this splice while operating the system. On the other hand, Mr. Huntington's expert testified the manual did not instruct when guy wires should be used or specify the type of steel required. It was also his opinion the manual should have warned of the consequences resulting from the use of improper cables.

The jury returned a verdict in favor of Rotec as to all plaintiffs. In its answer to a special interrogatory as to Mr. Huntington, the jury found the swinger was not unreasonably dangerous. He appeals.

First, Mr. Huntington contends the court erred in refusing to give his proposed instructions which state:

Each plaintiff was an ultimate user or consumer of the defendant's product. That the defendant might have warned the plaintiffs' employer does not satisfy its obligation to warn the plaintiffs.

Any knowledge on the part of the plaintiffs' employer of the hazards or dangers presented by the defendant's product is not a defense to the plaintiffs' claims. ¹

He argues failure to give these instructions may have confused the jury about Rotec's duty to Huntington as an ultimate user of the conveyor system.

It is well established that instructions must be considered in their entirety. State v. Fernandez, 28 Wash.App. 944, 954, 628 P.2d 818 (1980). The wording of an instruction is within the court's discretion and an instruction may be refused even though it correctly states the law. Bryant v. Department of Labor and Industries, 23 Wash.App. 509, 512, 596 P.2d 291 (1979); Enslow v. Helmcke, 26 Wash.App. 101, 104, 611 P.2d 1338 (1980); State v. Evans, 26 Wash.App. 251, 262, 612 P.2d 442 (1980). Instructions are sufficient if they (1) permit each party to argue his theory of the case, (2) are not misleading, and (3) when read as a whole properly inform the trier of fact of the applicable law. State v. Mark, 94 Wash.2d 520, 522, 618 P.2d 73 (1980); State v. Theroff, 95 Wash.2d 385, 389, 622 P.2d 1240 (1980).

Here, the court, in other instructions informed the jury Rotec had a duty to the ultimate user of its product:

(1) One who sells any product that is not reasonably safe to the user or consumer is liable for physical harm thereby proximately caused to the ultimate user or consumer, if (a) the seller is engaged in the business of selling such product; and (b) the product is expected to and does reach the user or consumer without substantial change in the condition in which it was sold.

(2) This rule applies although (a) the seller has exercised all possible care in the preparation and sale of its product; and (b) the user or consumer has not bought the product from or entered into any contractual relationship with the seller.

(Italics ours.) Another instruction given by the court stated:

A product may be faultlessly manufactured and designed, yet still not be reasonably safe when placed in the hands of the ultimate user without first giving adequate instructions or warnings concerning the manner in which to use the product safely.

(Italics ours.) These instructions were broad enough to allow Mr. Huntington to argue his theory that Rotec owed a duty to him as the ultimate user of the swinger.

Huntington further contends his proposed instructions were necessary in light of other instructions given by the court:

The defendant is under no duty to instruct or warn the user of any dangers associated with defendant's product if such dangers are obvious or known to the user.

If you find that any dangers associated with defendant's product were obvious or known to the user then you cannot find that the product was rendered unreasonably dangerous because of inadequate instructions or warnings.

The defendant was under no duty to warn plaintiffs' employer regarding any dangers resulting from the improper use or assembly of the product defendant sold to plaintiffs' employer if you find that plaintiffs' employer knew or should have known of such dangers.

He argues it was error to give these instructions because they permitted the jury to conclude Rotec's duty to warn was owed only to the employer, Hoffman. Further, he argues the instructions erroneously imply Hoffman was an intermediary or superseding cause of the injury, cutting off Rotec's duty to warn the employees. We disagree.

These instructions are accurate statements of the law. See Haysom v. Coleman Lantern Co., 89 Wash.2d 474, 573 P.2d 785 (1978); Little v. PPG Industries, Inc., 92 Wash.2d 118, 123, 594 P.2d 911 (1979). Although the instruction regarding Rotec's duty to warn the employer was unnecessary since Hoffman was not a party to the action, it could not have misled the jury. Huntington was not precluded from arguing that even though the dangers associated with Rotec's product may have been obvious to the...