Brizendine v. Visador Company, 25208.

• Decision Date: 29 December 1970
• Docket Number: No. 25208.,25208.
• Parties: Susan D. BRIZENDINE, by her Guardian, David W. Brizendine, Appellee, v. VISADOR COMPANY, a Texas corporation, and Pittsburgh Plate Glass Company, a Delaware corporation, Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

437 F.2d 822 (1970)

Susan D. BRIZENDINE, by her Guardian, David W. Brizendine, Appellee, v. VISADOR COMPANY, a Texas corporation, and Pittsburgh Plate Glass Company, a Delaware corporation, Appellants.

No. 25208.

United States Court of Appeals, Ninth Circuit.

December 29, 1970.

LaMar Tooze, Jr. (argued), of Stephen R. Frank, E. Richard Bodyfelt, Tooze, Powers, Kerr, Tooze & Peterson, Portland, Or., for appellants.

Carl G. Helm (argued), La Grande, Or., Edwin J. Welsh (argued), Portland, Or., for appellee.

Before HAMLEY and WRIGHT, Circuit Judges, and LINDBERG, District Judge.^*

HAMLEY, Circuit Judge:

After a non-jury trial in this diversity action to recover damages for personal injuries, the district court granted judgment for plaintiff Susan D. Brizendine and against Visador Company (Visador), and Pittsburgh Plate Glass Company (PPG). PPG alone appeals.

On the night of November 12, 1964, Susan and other high-school age parishioners of First Christian Church, La Grande, Oregon, were standing in the lobby of the church prior to the commencement of a church youth group meeting. Susan was standing near the doorway to the lobby. When one of the boys arrived and attempted to open the door, he lost his balance. His hand struck a 10" × 10" pane of glass in the upper half of the door panel. The glass shattered and a piece lodged in Susan's eye, causing serious injuries. This action followed.

Defendant Visador manufactures door window insert frames, purchases glass cut to size by the glass manufacturers, assembles the frames with the glass in place, and distributes the assembled inserts, "door lites," for sale in the usual channels of commerce throughout the United States. Visador manufactured the door lite here in question.

The glass which shattered was single strength B grade (SSB) glass, which, in the trade, ranges in thickness from .085" to .095". This particular insert, containing the SSB glass, came into the hands of Visador's Oregon distributor and was purchased from the distributor by Miller's Cabinet Shop in La Grande. The shop installed the door lite in the church door in question.

More than a month prior to the trial, PPG formally admitted that it manufactured the pane of glass contained in the door lite.¹ Shortly before the trial plaintiff came into possession of information which led it to believe that this particular pane of glass was not within the normal thickness range of SSB glass, but had an actual thickness of only .076", or .009" thinner than the minimum thickness of SSB glass. Glass of this thickness is properly classified "picture" glass instead of "single strength" glass.

Plaintiff thereupon submitted revisions in the proposed pretrial order which would expressly assert, as one contention, that PPG is liable because the particular pane in question was not as thick as required for SSB glass. PPG opposed approval of the revisions, stating that theretofore no such contention had been advanced and that, up to then, plaintiff had based its case solely on the proposition that SSB glass is generically unfit for use in 10" × 10" door lites used in public buildings. PPG also urged that, if such revisions were approved, the company should be granted a continuance in order to prepare to meet the new contention, and should be permitted to withdraw its admission that it manufactured the pane which shattered.

At first the trial court appeared to accept PPG's argument, manifesting that intent by striking certain language from the revised form of pretrial order.² Later, however, plaintiff was permitted to develop its SSB "undersize" contention at the trial, and PPG was denied permission to withdraw its admission that it manufactured the pane of glass here involved.

On the basis of findings and conclusions reported in 305 F.Supp. 157 (D. Or.1969), the court entered judgment for plaintiff, awarding $150,000 general damages, and $1,664.93 special damages.

The court predicated liability upon both strict liability and negligence. As to strict liability, the district court held that (a) SSB glass is intrinsically unsafe for public doors, as PPG knew or should have known thereby giving rise to a duty on the part of PPG to warn users of such glass of the danger involved in such a use, or to call the attention of such users to the need for and availability of safer glass, which duty PPG did not fulfill, although it knew or should have known that its SSB glass would be used in public doors; and (b) as an additional ground of liability, this particular pane was defective in that it was not within the accepted range of thickness of SSB glass. As to negligence, the district court's theory was the same as its (a) theory under strict liability, as set out above. The district court did not include, in its negligence theory of liability, any finding or conclusion to the effect that this particular pane was undersize for SSB glass.

On this appeal PPG argues: (1) the trial court erred in refusing to allow PPG to withdraw its admission that it manufactured the glass in question; (2) the trial court erred in allowing plaintiff to interject the "undersize" argument on the eve of the trial or, in the alternative, in failing to grant PPG a continuance; (3) the trial court erred in finding that the deviation in thickness of this particular pane was a proximate cause of plaintiff's injuries; and (4) the trial court erred in finding that: (a) PPG's SSB glass was unreasonably dangerous, (b) PPG breached a duty to warn others that SSB glass was unsafe for the use to which it was put by Visador and others in the distribution chain, and (c) such breach of duty was a proximate cause of the injury.

We turn first to a consideration of this fourth argument. It is concerned wholly with the question of whether PPG is liable because it gave no warning that SSB glass is not safe for use in doors in high traffic areas where contact with the glass is likely to occur. The district court relied upon this theory as one of its grounds for holding PPG liable under the concept of strict liability and as its only ground for holding PPG liable under the concept of negligence.

As PPG concedes, insofar as a duty to warn is concerned, there is no essential difference in the evaluation of a manufacturer's conduct under strict liability or negligence theories. A recent statement of Oregon law on the duty of the manufacturer to issue a warning is contained in Anderson v. Klix Chemical Co., Or., 472 P.2d 806 (1970). The court there observed that failure to warn, as a theory of recovery in tort, does revert to a negligence basis for liability. We accordingly direct our attention to the negligence aspect of the case.

In Anderson, the Oregon court indicated that a manufacturer's duty to warn arises when it is reasonably foreseeable to the manufacturer that the product would be unreasonably dangerous if distributed without a warning. The court below found that PPG knew, or should have known, that SSB glass was unsafe for use in doors in high traffic areas, such as here. The court also found that PPG supplied SSB to Visador for use in door lites; that PPG knew the marketing practices of Visador; and that those practices would result in use of the door lite in locations where safety required heavier glass.³ Given this knowledge the court below held that PPG had a duty to warn of the dangers involved. There is ample evidence to support the findings. Under Oregon law we believe these facts compel the conclusion that PPG had a duty to warn of the foreseeable dangers involved.

In Anderson, Restatement (Second) of Torts, § 388, quoted in the margin,⁴ was cited with approval. The court below found each of the elements or conditions necessary to predicate liability upon negligent failure to warn.⁵ Physical harm was caused plaintiff by the use of the SSB pane in the church door, and the door, with the glass, was being used in the manner intended. One entitled to enter the church was trying to open the door.⁶ PPG had no reason to believe that Miller's Cabinet Shop or the church would realize the danger of using SSB glass in such an installation.⁷ PPG failed to exercise reasonable care to inform the shop and the church of the dangerous condition or the facts which made it likely that it would be dangerous to use the SSB pane in the church door.⁸

PPG does not appear to contest the trial court's finding that SSB is not safe for use in doors used by the public. PPG does not take issue with the trial court's finding that heavier glass was readily available at a tolerable cost differential. Nor does it question the trial court's finding that PPG knew of Visador's practice of selling to a general market where the product was likely to be installed in a great variety of locations, including those where heavier glass, or safety glass, would be required.⁹

PPG's principal argument with respect to the negligence aspect of the case seems to be that, even if the glass in the Visador lite can fairly be characterized as unreasonably dangerous in this specific application, it can only be so characterized by virtue of an improper use to which PPG's product was put by Visador and others in the distributive chain; and that the record contains nothing to indicate that PPG authorized, participated in, or controlled the conduct of Visador.

What gave rise to PPG's duty to warn was its knowledge that some of this glass would probably be installed in doors used in public buildings, and PPG's lack of reason to believe that those buying door lites containing the glass would appreciate the danger. Thus PPG's assertion that the SSB pane was safe for "normal" handling has a faulty factual premise. PPG knew that it was "normal" for the door lites containing SSB to be installed in doors in public buildings.

Moreover, the fact that Visador incorporated the glass into door lites does not insulate PPG from liability here. In Anderson v. Klix Chemical Co., Ore., 472 P.2d 806 (1970),...