Clark v. Boeing Co.

• Citation: 395 So.2d 1226
• Decision Date: 24 March 1981
• Docket Number: No. 80-127,80-127
• Parties: Waltraud Mary Sexsmith CLARK and Richard J. Clark, her husband, Appellants, v. The BOEING COMPANY, a foreign corporation doing business in Florida and Government Products Division of Pratt and Whitney, a Subsidiary of United Technology, Inc., a foreign corporation doing business in Florida, Appellees.
• Court: Court of Appeal of Florida (US)

Page 1226

395 So.2d 1226

Waltraud Mary Sexsmith CLARK and Richard J. Clark, her husband, Appellants, v. The BOEING COMPANY, a foreign corporation doing business in Florida and Government Products Division of Pratt and Whitney, a Subsidiary of United Technology, Inc., a foreign corporation doing business in Florida, Appellees.

No. 80-127.

District Court of Appeal of Florida, Third District.

March 24, 1981.

Ezzo, Garel & Saylor and Bruce Saylor, Miami, for appellants.

Paul & Thomson and Jon W. Zeder and Jerold I. Budney and Saturnino E. Lucio, II and Richard Ovelmen, Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael J. Murphy, Miami, for appellees.

Before BARKDULL, SCHWARTZ and BASKIN, JJ.

BASKIN, Judge.

Appellants challenge the dismissal with prejudice of their amended complaint against the Boeing Company as aircraft manufacturer and against United Technologies, Inc. as engine manufacturer. They seek to recover damages for injuries sustained by Mrs. Clark, a flight attendant, when she opened the aft door at the captain's insistence in order to assist a passenger who arrived late. When Mrs. Clark opened the door, the engines were running and the pilot was preparing for takeoff. Mrs. Clark contends the trauma occasioned by the noise and jet fuel emission led to her contracting multiple sclerosis. Her husband seeks damages for medical costs, loss of his wife's services, companionship and affection, and for mental strain and anguish. We find no error in the trial court's dismissal of the Clarks' complaint, and we affirm.

The amended complaint charged that the Boeing Company was negligent in its design of the aircraft. According to the complaint, Boeing should have known that the B-727 rear-mounted engines were too close to the door and stairway and should have foreseen that under normal circumstances people using the door and stairway would suffer injury. The complaint contended that Boeing had a duty to install an interlocking device to prevent the door from opening while the engines were operating, and that its failure to do so constituted negligence.

In a second count, predicated upon strict liability, the amended complaint charged that Boeing sold the aircraft in an unsafe, defective condition without warnings. The amended complaint alleged, in addition, breach of express warranties as well as of implied warranties of merchantability and fitness for a particular purpose, also predicated upon the aircraft's defective design.

United Technologies, claim the Clarks, was also negligent in selling its engines without warnings or a safety system and should be held strictly liable. In addition, United is charged with liability for breach of warranties resulting from defective engine design. Neither the airline nor the captain employed during that flight were named as parties to the action.

I. Negligence.

In order to establish negligence, appellants must prove the existence of a duty to protect them, a breach of that duty, and injury sustained as a proximate cause of the breach. Blackton Building Supply Co. v. Garesche, 383 So.2d 250 (Fla.5th DCA 1980); Welsh v. Metropolitan Dade County, 366 So.2d 518 (Fla.3d DCA 1979); Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla.2d DCA 1976).

After careful examination of the allegations contained in the amended complaint, we are unable to find either the existence of a duty owed the Clarks by appellees, or the breach of a duty owed them. Appellees had no duty to warn users of obvious dangers. Brown v. General Motors Corp., 355 F.2d 814 (4th Cir.1966), cert denied, 386 U.S. 1036, 87 S.Ct. 1474, 18 L.Ed.2d 600 (1967); Wickham v. Baltimore Copper Paint Co., 327 So.2d 826 (Fla.3d DCA), cert. denied, 339 So.2d 1173 (Fla.1976); Reyes v. Zbin, 217 So.2d 150 (Fla.3d DCA), appeals dismissed without opinion, 225 So.2d 530 (1969); May v. Allied Chlorine & Chemical Products, Inc., 168 So.2d 784 (Fla.3d DCA 1964). Mrs. Clark was aware that opening the door would expose her to noise and fumes. She voiced her objections to the captain. Appellees had no duty to warn under these circumstances.

II. Strict Liability.

In order to establish strict liability, appellants must allege and prove the manufacturer's relationship to the product in question, the defect, the unreasonably dangerous condition of the product, and the existence of a proximate causal connection between the condition and the user's injuries or damage. The test is whether or not the product was reasonably safe for its intended use as manufactured and designed when it left the plant of the manufacturer. West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976) (quoting the Restatement (Second) of Torts § 402A (1965)). The concept of strict liability does not make the manufacturer or seller an insurer. West v. Caterpillar Tractor Co., Inc., supra.

Pleadings must contain ultimate facts supporting each element of the cause of action. Woodcock v. Wilcox, 98 Fla. 14, 122 So. 789 (1929). Mere conclusions are insufficient. Maiden v. Carter, 234 So.2d 168 (Fla.1st DCA 1970). The amended complaint fails to plead ultimate facts establishing the elements of strict liability, that is, that the product was defectively designed or unreasonably unsafe for its intended use when it left the manufacturer.

It is not itself a breach of duty to supply materials which are reasonably safe and customarily used, even though the material might conceivably be made more safe, nor must the manufacturer make his product 'more' safe when the danger to be avoided is obvious to all. See Evans v. General Motors Corporation, 359 F.2d 822 (7th Cir.1966); Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950).

Royal v. Black and Decker Manufacturing Co., 205 So.2d 307, 310 (Fla.3d DCA), cert. denied, 211 So.2d 214 (Fla.1968) ¹ (footnote omitted). The claim that defects in the engine or aircraft were the proximate cause of appellant's multiple sclerosis appears only as a conclusion and not through well-plead allegations.

A knowing misuse of a manufacturer's product creates no liability on the part of the manufacturer. Under that circumstance, the sole cause of the injury is the misuse of the product. Orfield v. International Harvester Co., 535 F.2d 959 (6th Cir.1976); Kroon v. Beech Aircraft, 465 F.Supp. 1223 (M.D.Fla.), aff'd, 628 F.2d 891 (5th Cir.1980). Watson v. Lucerne Machinery & Equipment, Inc., 347 So.2d 459 (Fla.2d DCA), cert. denied, 352 So.2d 176 (Fla.1977). Appellant, an experienced flight attendant, was well aware of the danger.

III. Breach of Warranties.

The amended complaint fails to plead a cause of action for breach of warranties, either express or implied. There is no allegation that the aircraft failed to carry its passengers safely or that noise-free engines were warranted by the manufacturer. Furthermore, the engine manufacturer, United, merely sold the engines and is not alleged to have placed them on the aircraft. No warranty exists as to the use of the aircraft in the manner attempted by Mrs. Clark; operation of the airplane during the boarding of passengers is not an alleged standard of use. Unreasonable exposure to a known and appreciated risk bars recovery in an action based upon implied warranty as well as in an action for negligence. West v. Caterpillar Tractor Co., Inc., supra.

The allegations of the amended complaint, if taken as true, are insufficient to sustain a recovery under any theory. For these reasons, we affirm the trial court's dismissal.

Affirmed.

SCHWARTZ, Judge (specially concurring).

I concur in affirmance on the sole ground ¹ that the amended complaint failed to allege either that the airplane was "defective" in any way or that there was any danger concerning which a warning need by given. The plaintiffs' theory seems to be that Boeing ² should not have placed the jet engines on the wing so close to the cabin where an occupant would be affected by their noise and fumes. It is a simple fact, however, that jet engines do, and, by their nature, must make noise and emit vapors. Neither exposing persons on the plane (any more than those on the...