Brown v. Glade and Grove Supply, Inc., s. 93-1089

• Citation: 647 So.2d 1033
• Decision Date: 21 December 1994
• Docket Number: Nos. 93-1089,93-2672,s. 93-1089
• Parties: 20 Fla. L. Weekly D23, Prod.Liab.Rep. (CCH) P 14,132 Patricia BROWN, as Personal Representative of the Estate of Daniel Brown, deceased, Appellant/Cross-Appellee, v. GLADE AND GROVE SUPPLY, INC., Earl Stewart and Glades Equipment Co., Appellees/Cross-Appellants, v. MRS MANUFACTURING, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1033

647 So.2d 1033

20 Fla. L. Weekly D23, Prod.Liab.Rep. (CCH) P 14,132

Patricia BROWN, as Personal Representative of the Estate of Daniel Brown, deceased, Appellant/Cross-Appellee, v. GLADE AND GROVE SUPPLY, INC., Earl Stewart and Glades

Equipment Co., Appellees/Cross-Appellants, v. MRS MANUFACTURING, Appellee.

Nos. 93-1089, 93-2672.

District Court of Appeal of Florida,

Fourth District.

Dec. 21, 1994.

Rehearing Denied Jan. 26, 1995.

Claudia B. Greenberg, and John M. Abramson of Abramson & Magidson, Miami, for appellant/cross-appellee.

Kevin J. Carroll of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee/cross-appellant--Glade & Grove Supply.

Roy W. Jordan, Jr. of Law Office of Roy W. Jordan, Jr., West Palm Beach, for appellees/cross-appellants--Glades Equipment and Earl Stewart.

Diane H. Tutt of Diane H. Tutt, P.A., Fort Lauderdale, and Mark W. Hektner of Behan & Hektner, Palm Beach Gardens, for appellee.

PARIENTE, Judge.

The issue before us is the propriety of granting final summary judgment in favor of all defendants in this products liability lawsuit involving a tractor. Because we find that issues of fact remain as to defective design and negligent failure to inspect, we reverse summary judgment in favor of the manufacturer, MRS Manufacturing Co., Inc. (MRS), and the seller, Glades Equipment Co., Inc. (Glades Equipment). We do, however, affirm summary judgment in favor of Glade and Grove Supply Company, Inc. (Glade and Grove), the successor corporation to Glades Equipment.

INTRODUCTION

On March 27, 1985, plaintiff's decedent, Daniel Brown, Jr., died as a result of injuries sustained when the tractor he was operating for his employer, U.S. Sugar Corporation (U.S. Sugar), rolled over. The tractor, manufactured by MRS had a separate steering system to control the rear wheels. When operating the tractor in the field, this rear steering system was desirable as it would enable the operator to make tighter turns and allow "crabbing," a four-wheel steering technique used in the field. On the road, however, operation of the tractor without a lock-out pin in place to prevent the inadvertent engagement of the rear wheel steering system and to stabilize the rear wheels would render the tractor unreasonably dangerous and prone to roll-over. One of the few undisputed facts in this case is that at the time of this accident a lock-out pin was not in place.

Following the accident, plaintiff filed suit against MRS, Glades Equipment, and Glade and Grove, under strict liability and negligence theories. Plaintiff's theory of defective design is two-pronged. First, plaintiff asserts defects in the design of the rear wheel steering system. Plaintiff's experts, by deposition and affidavit, specifically criticized the design of the lock-out pins, the overall design of the hydraulic steering system, which could cause rear wheel shifting at normal road speeds, and the placement of the lever for the rear wheel steering, which could cause inadvertent actuation of the rear wheels. Second, plaintiff asserts design defects in the warnings, including the failure to apprise the user of the dangers of driving the vehicle on the road without the proper lock-out of the rear wheel steering system.

STRICT LIABILITY

In granting summary judgment, the trial court found that strict liability and negligence theories did not apply, as a matter of law, because the manufacturer provided adequate warnings in the instruction manual concerning the dangers of using the tractor without the lock-out pin. To buttress its conclusion, it reasoned that because a tractor is not "inherently dangerous," strict liability is inapplicable.

Strict liability turns on the question of a defective design which renders a product unreasonably dangerous. Whether or not a product is "inherently dangerous" is not determinative of the applicability of strict liability. Radiation Technology, Inc. v. Ware Constr. Co., 445 So.2d 329 (Fla.1983). "The phrase 'inherently dangerous' is merely a descriptive factual conclusion, largely of historical interest, which has lost most of its utility with the evolution of products liability." Id. at 331. Indeed, the seminal case of West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), which adopted the doctrine of strict liability in Florida, involved a road grader, a product not unlike a tractor. A product may be in a defective condition due to a design defect, a manufacturing defect or defective warning. See Ford Motor Co. v. Hill, 404 So.2d 1049 (Fla.1981); LeMaster v. Glock, Inc., 610 So.2d 1336 (Fla. 1st DCA 1992); Cassisi v. Maytag Co., 396 So.2d 1140, 1145 (Fla. 1st DCA 1981).

By focusing on the issue of warnings, the trial court disregarded the disputed factual issue of defective design of the rear steering system raised by plaintiff's engineering experts. Even if the warnings were adequate as a matter of law or unnecessary because of the obviousness of the danger, this would not remove from the jury the issue of defective design of the rear steering system.

WARNINGS

By granting summary judgment, the trial court also impermissibly removed the issue of defective warnings from the jury's consideration. Plaintiff's expert testified that failure to place the warnings on the tractor was "contrary to safe custom and practice." The mere existence of warnings in an instruction manual is not dispositive of the adequacy of the warnings for several reasons. A warning may be defective not only by virtue of inadequate wording, but as a result of its location and the manner in which the warning is conveyed. See Salozzo v. Wagner Spray Tech Corp., 578 So.2d 393 (Fla. 3d DCA 1991). For example, even if the language contained in the instruction manual adequately apprised a user of the dangers, a jury could find the warning defective because it was not permanently affixed to the tractor. See, e.g., Lopez v. Southern Coatings, Inc., 580 So.2d 864, 865 n. 2 (Fla. 3d DCA 1991) (manufacturer owes a duty to the user to warn of its producer's dangerous propensities and, therefore, that an employer or supervisor has been warned is of little import where the employee-user has not received the warning).

Had the instruction manual been kept with the tractor by the employer and thus available to plaintiff's decedent, which it was not, a question of fact still exists as to whether the "warning" language contained in the manual adequately apprises a user of the serious risk of injury or death resulting from nonuse of lock-out pins. The instruction manual provided by MRS gave no warning of

the risk of roll-over. It contained, the following language:

CAUTION

DO NOT USE THE REAR WHEEL STEERING LEVER AT HIGH SPEEDS. WHEN TRAVELLING, INSTALL THE REAR STEERING LOCKOUT.

Advising a user to operate a tractor with the lock-out pins in place is an instruction, not a warning. A warning should contain some wording directed to the significant dangers arising from failure to use the product in the prescribed manner, such as the risk of serious injury or death. American Cyanamid v. Roy, 466 So.2d 1079, 1082 (Fla. 4th DCA 1984) ("The warning should be of such intensity as to cause a reasonable man to exercise for his own safety caution commensurate with the potential danger").

Further, the danger of roll-over from nonuse of a lock-out pin is not the type of "obvious" danger to which this court referred in Cohen v. General Motors Corp., Cadillac Div., 427 So.2d 389 (Fla. 4th DCA 1983) so as to lead to the conclusion that no warning was required. Rather, a manufacturer and supplier of a product who knows or has reason to know that the product is likely to be dangerous in normal use has a duty to warn those who may not fully appreciate the possibility of such danger.

CAUSATION

Defendants contend that summary judgment was appropriate as plaintiff offered little more than the mere speculation of her experts on the issue of whether the...