Conger v. Tel Tech, Inc.
| Decision Date | 12 September 1990 |
| Docket Number | No. 890231-CA,890231-CA |
| Citation | 798 P.2d 279 |
| Parties | Prod.Liab.Rep. (CCH) P 12,597 Robert E. CONGER, Plaintiff and Appellant, v. TEL TECH, INC., Defendant and Appellee. |
| Court | Utah Court of Appeals |
Colin P. King (argued), Giauque, Williams, Wilcox and Bendinger, Salt Lake City, for plaintiff and appellant.
Raymond M. Berry (argued), Richard A. Van Wagoner, Snow, Christensen & Martineau, Salt Lake City, for defendant and appellee.
Before BULLOCK, 1 GARFF and JACKSON, JJ.
Plaintiff Robert E. Conger appeals from an adverse jury verdict on negligence, and the trial court's directed verdict striking down his strict product liability claim against defendant Tel Tech. We affirm.
In March 1979, Conger's employer, Meadow Gold, purchased a milk tanker from Western General Dairies. The tanker had two elliptical stainless steel tanks used for transporting milk. A ladder led to the top of each tank. It was Conger's responsibility to collect raw milk with the tanker from several dairy farms and take it to Meadow Gold's processing plant in Salt Lake City. After the milk was pumped out of the tanks, he would clean the inside of each tank. He did this by climbing down into the tanks through an access hatch on each tank and scrubbing the inside with a special brush and detergents.
In May 1979, Meadow Gold entered into an oral agreement with Tel Tech, wherein Tel Tech was to sell and install a cleaning mechanism in the milk tanker. The mechanism consisted of two spray balls, one for each tank, welded to the top of each tank. By attaching a hose to the spray balls, cleaning and rinsing solutions could then be pumped into the tanks without the necessity of anyone climbing inside. The spray balls were placed on top of each tank opposite the ladders, requiring the operator to walk across the top of the tanker from the ladders to the spray balls to attach the hoses. Tel Tech did not install any type of walk protection across the top of the tanker and did not advise Meadow Gold to do so, nor did Meadow Gold inquire about safety measures.
On January 1, 1981, Conger stepped over the tanker's hatch to attach a hose to the spray ball, slipped on a spot of grease or milk fat, and fell from the tanker, suffering serious injuries. He had used the spray balls regularly for over a year without mishap, between three and four hundred times. He had also complained to Meadow Gold management that using the spray balls was unsafe because of the fall hazard.
Conger filed a complaint, naming Tel Tech and others as defendants. The claims against all other defendants were settled. The claim against Tel Tech proceeded to trial. Conger presented evidence on theories of negligence and strict product liability. There was a dispute as to whether Conger should be allowed to present a strict liability theory because the pleadings contained only a negligence claim. However, the trial judge gave Conger leave to amend the pleadings and concluded that Tel Tech, through the course of discovery, had sufficient notice of Conger's strict liability theory to justify amending the pleadings.
After all the evidence was presented, the court granted Tel Tech's motion for a directed verdict against Conger's strict liability claim, so only submitted the negligence claim to the jury. The court instructed the jury to disregard evidence relating to Conger's strict product liability theory. In response to specific interrogatories, the jury concluded that neither Tel Tech nor Conger was negligent.
Conger appeals, primarily on the grounds that (1) the court improperly dismissed his product liability claim; and (2) the court's jury instructions were vague and confusing, thus creating the necessity for a new trial on the negligence theory as well.
In reviewing the directed verdict, we consider the evidence in the light most favorable to Conger. See Gagon v. State Farm Mut. Auto. Ins. Co., 746 P.2d 1194, 1196 (Utah Ct.App.1987), cert. denied, 771 P.2d 325 (Utah 1988). "A directed verdict is only appropriate when the court is able to conclude, as a matter of law, that reasonable minds would not differ on the facts to be determined from the evidence presented." Management Comm. of Graystone Pines Homeowners Ass'n v. Graystone Pines, Inc., 652 P.2d 896, 897-98 (Utah 1982).
Conger presented evidence, largely in the form of expert testimony, to support his theory of strict liability. His expert testified that the installation of spray balls by Tel Tech without providing walk protection for safe access to them created a fall hazard and, as a result, created a defective and unreasonably dangerous product. He testified further that spray balls should never be installed without some sort of walk protection.
The evidence suggests at least two key issues. First, under a strict liability analysis, whether the spray balls sold and installed by Tel Tech constituted a defective product because of the absence of walk protection and, second, whether the spray balls were unreasonably dangerous because of the lack of safe access. Tel Tech claimed, and the trial judge agreed, that the evidence presented by Conger was insufficient as a matter of law to justify a claim in strict liability.
In Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152 (Utah 1979), the Utah Supreme Court adopted the strict product liability doctrine of Section 402A of the Restatement (Second) of Torts. Id. at 158. In order for the theory of strict liability to apply, Section 402A requires that there be a sale of a product which creates an unreasonably dangerous situation for the user. Id. at 156. After hearing the evidence, the trial court found, as a matter of law, that Section 402A did not apply. The evidence was undisputed that the spray balls themselves were not defective, nor was the actual installation of the balls defective.
Conger, however, argues that with the installation of the spray balls, Tel Tech created a complete cleaning system and that the failure to install safety grit strips as part of that system created an unreasonably dangerous condition. Tel Tech counters that (a) the installation of the spray balls was a service; (b) if the installation of safety devices was required, it was part of the installation service; and (c) because it was a service, strict liability does not apply. 2
Tel Tech relies upon Hoover v. Montgomery Ward & Co., 270 Or. 498, 528 P.2d 76 (1974) to support its argument. Hoover was, as here, a negligence and strict liability action wherein Hoover sought to recover from the seller and installer of an automobile tire damages for injuries suffered in a subsequent accident. The trial court refused to submit the issue of strict liability to the jury. The jury subsequently returned a verdict in favor of the defendant on the negligence issue. On appeal to the Oregon Supreme Court, the plaintiff, Hoover, alleged that the defendant, after mounting the tire on the wheel, failed to tighten the lug nuts when installing the wheel on the hub and axle. Thus, Hoover argued, the car became unreasonably dangerous for its intended use even though the tire, itself, was not defective nor improperly mounted on the wheel because the product the defendant sold included not only the tire but also the installation of the tire on the automobile. The Oregon Supreme Court stated that Hoover, 528 P.2d at 77. 3 The court thus declined to adopt Hoover's theory, finding that it Id. at 78.
In the present case, the trial court found Hoover to be persuasive. We agree. Tel Tech's alleged negligence in failing to install grit strips while installing the spray balls is similar to the defendant's failure to safely tighten the lug nuts on the wheel when installing it on the car in Hoover. Because Tel Tech failed to install grit strips, the tanker may have become dangerously defective, but the product which Tel Tech sold and installed, the spray balls, did not become dangerously defective. 4
Conger argues that Tel Tech designed a total cleaning system and the situation, therefore, falls in the same category as cases in which there was a defective design in the original manufacturing process. See, e.g., Brown v. N. Am. Mfg. Co., 176 Mont. 98, 576 P.2d 711 (1978) (...
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