Davis v. Niagara Mach. Co.
| Decision Date | 27 July 1978 |
| Docket Number | No. 45050,45050 |
| Citation | 90 Wn.2d 342,581 P.2d 1344 |
| Court | Washington Supreme Court |
| Parties | , 1978 O.S.H.D. (CCH) P 22,965 Loren DAVIS, Respondent, v. NIAGARA MACHINE COMPANY, a Foreign Corporation, Appellant, v. BUYKEN STAMPING & MACHINE WORKS, a Washington Corporation, Respondent. |
Reed, McClure, Moceri & Thonn, William R. Hickman, Anne Bradley, Seattle, for appellant.
Detels, Draper & Marinkovich, R. A. Bergman, Seattle, for respondents.
Niagara Machine Company appeals from a summary judgment dismissing its third-party claim for indemnification against Buyken Stamping & Machine Works in a personal injury action brought by Buyken's employee against Niagara. The trial court dismissed the claim on the ground that Buyken was immune from suit under RCW Title 51, the industrial insurance act. The Court of Appeals certified the case to this court. We affirm the trial court.
In 1924, Niagara manufactured a punch press which was sold in 1925. The machine was capable of performing numerous operations and no all-inclusive guard could properly protect the operator from all of the possible dangers associated with its use. Thus, the machine was sold without a guard with the expectation that it would be equipped by the purchaser to safely perform the particular task required of it.
Buyken purchased the punch press second- or third-hand in the 1950's. In 1971, Martin, a Buyken employee, was injured when he tripped the foot pedal which activates the machine, while his hands were in the cutting die area. An action brought by Martin against Niagara was settled.
Following that settlement, Niagara sent a letter to Buyken informing it of the Martin lawsuit. The letter advised that certain operations should not be performed on the machine unless a point of operation guard was in place, and requested that enclosed warning tags be placed on the press. The tags read:
WARNING
To prevent serious bodily injury
Never place any part of your body under the slide (ram) or within the die area unless power is off, flywheel is stopped and the slide (ram) is blocked up.
Never operate, install dies or maintain this machine without proper instruction and without first reading and understanding the operator's or machine manual.
It is the employer's responsibility to implement the above and also to provide proper dies, guards, devices or means that may be necessary or required for any particular use, operation, set-up or service.
Buyken did not install a point of operation guard, but did attach one of the tags to the press on which Martin had been injured. Buyken also requested additional tags, which Niagara supplied.
In 1975, Davis, a Buyken employee, injured the fingers of his left hand on the same press and in much the same way as had Martin. Davis applied for and received workman's compensation under the industrial insurance act. He then brought an action against Niagara asserting that the press was unsafe and designed in a dangerously defective manner.
Niagara responded by filing a third-party claim against Buyken, alleging that Buyken's failure to provide a point of operation guard was the cause of Davis's injury. Niagara demanded indemnity and reimbursement from Buyken.
The trial court granted Buyken's motion for summary judgment, holding that under RCW Title 51 Buyken was immune from liability. Niagara appeals from that judgment. Davis's claim against Niagara was settled prior to the time the appeal was heard in this court.
Niagara posits the issues to be determined on appeal as follows: (1) Whether this court should limit the broad language of Montoya v. Greenway Aluminum Co., 10 Wash.App. 630, 519 P.2d 22 (1974), in light of the injustice it works in this case; and (2) Whether a machinery manufacturer held strictly liable without proof of negligence to an injured workman, may maintain an action for damages, indemnity or contribution from the workman's employer where the employer was negligent with respect to both the workman and the manufacturer, but where there is no express contract of indemnity between the employer and manufacturer.
Initially, we must reject any consideration of Niagara's contribution claim. That theory of recovery was not presented to the trial court and, accordingly, is not at issue on appeal. Talps v. Arreola, 83 Wash.2d 655, 658, 521 P.2d 206 (1974).
As to the claim of indemnity, Niagara must first establish that a recognized ground for imposing indemnity against Buyken exists. Thereafter, it may be faced with the contention that such liability is within the immunity provided to employers by RCW Title 51. Montoya v. Greenway Aluminum Co.,supra; Tucci & Sons, Inc. v. Carl T. Madsen, Inc., 1 Wash.App. 1035, 467 P.2d 386 (1970).
Niagara bases its indemnity claim against Buyken upon three separate grounds: (1) that Buyken breached a duty to Niagara, arising under RCW 49.17, the Washington Industrial Safety and Health Act of 1973 (WISHA) and 29 U.S.C. § 651 et seq. (1970), the federal Occupational Safety and Health Act (OSHA); (2) that Buyken breached a duty to provide a point of operation guard which it undertook when it attached a warning tag to the punch press at Niagara's request; and (3) that any liability Niagara had to Buyken's employee, Davis, was a consequential damage of Buyken's breach of an implied contract not to use the press in a dangerous manner.
As to the first of these grounds, WISHA and OSHA do establish regulations governing the use of a punch press such as the one involved here. From the record it appears that the relevant regulations under both acts were violated by Buyken's operation of this press. These standards should be enforced and it is disturbing to learn of similar accidents some years apart, apparently indicating a failure on the part of the state to enforce safety regulations. However, without some indication from the legislature, we are unable to find that these regulations create a duty running from the owner of a machine to its manufacturer. While a duty may, in some circumstances, be founded on a statute or regulation, that duty extends only to persons in the class intended to be protected by the statute or regulation. Wells v. Vancouver, 77 Wash.2d 800, 804, 467 P.2d 292 (1970). OSHA and WISHA were enacted to assure safe and healthful working conditions for employees. See 29 U.S.C. § 651 (1970); RCW 49.17.010. We are not referred to any provision of either act which suggests an intent to protect third-party manufacturers. Since both acts were intended only to protect the class consisting of employees and workers, they do not create a duty in the employer which extends to the manufacturer. 1 Accordingly, Niagara's contention that an indemnity claim could be grounded on these statutes is without merit.
Regarding Niagara's second claim, we do not find in the actions of the parties or in the sparse exchange of correspondence between them anything that may be construed as an assumption by Buyken of a duty to do anything more than it did. Even in the context of the previous injury to Martin and the resulting lawsuit, the exchange of letters indicates at most that Buyken undertook to attach the tags. We can find no promise, express or implied, that it would do more. Buyken did not agree to limit the use of the press in the manner Niagara advised nor did it agree to indemnify Niagara for any liability it might incur as a result of improper use.
We also find Niagara's third ground in support of its indemnity claim to be without merit. The...
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