Eck v. EI Du Pont De Nemours & Company

• Decision Date: 15 May 1968
• Docket Number: No. 16274.,16274.
• Parties: Gilbert Kent ECK, Plaintiff-Appellant, v. E. I. DU PONT DE NEMOURS & COMPANY, a Delaware Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

393 F.2d 197 (1968)

Gilbert Kent ECK, Plaintiff-Appellant, v. E. I. DU PONT DE NEMOURS & COMPANY, a Delaware Corporation, Defendant-Appellee.

No. 16274.

United States Court of Appeals Seventh Circuit.

April 10, 1968.

Rehearing Denied May 15, 1968.

William R. McCain, George A. Hopkins, McCain & Hopkins, Kokomo, Ind., for plaintiff-appellant.

Christopher Kirages, Indianapolis, Ind., Christopher Kirages, Dutton, Kappes & Overman, Indianapolis, Ind., for defendant-appellee.

Before SCHNACKENBERG, CASTLE and KILEY, Circuit Judges.

Rehearing Denied May 15, 1968, en banc.

SCHNACKENBERG, Circuit Judge.

Gilbert Kent Eck, plaintiff, has appealed from a summary judgment in favor of defendant, E. I. Du Pont De Nemours & Company, a Delaware corporation. Plaintiff, a laborer for the Reith-Riley Construction Company, Inc. (hereinafter "Reith-Riley") sought to recover damages for personal injuries, sustained through the alleged tortious conduct of defendant in failing to appropriately warn plaintiff as to the inherent dangers in the use of dynamite by plaintiff's employer, Reith-Riley, and the minimum safety precautions required for its safe use.

Defendant's motion was to dismiss the action or, in the alternative, for summary judgment. It was supported by affidavits of defendant's distributor and its works manager, accompanied by a printed pamphlet entitled "Ditching and Field Clearing with Dynamite" (hereinafter sometimes denoted "the Field Clearing pamphlet"). Defendant also submitted an empty top half of a box used to contain its dynamite, as well as an insert normally placed in said box, entitled "Prevention of Accidents in the Use of Explosives" (hereinafter sometimes denoted "insert").

Plaintiff submitted interrogatories and answers of defendant thereto, an affidavit of plaintiff's foreman, David Plugh, as well as depositions of J. R. Haines, defendant's distributor, and Lynn Parsons, the retailer who sold said dynamite to plaintiff's employer. Included in defendant's answer to interrogatory 23, relative to how far is a safe distance as prescribed in defendant's insert, is a reference to pages 36-39 of its published pamphlet "Ditching and Field Clearing with Dynamite". This reference relates "safe distance" to the size of the dynamite charge used, the nature of the soil and the tree stump to be cleared, and to "* * * the duty of one in charge to make certain that all persons are at a safe distance or under sufficient cover." It is stated that this pamphlet "is available without charge to customers purchasing Du Pont dynamite". (Emphasis supplied.) Page 39 of that pamphlet suggests that as a precaution in field clearing "make sure that all persons * * * are beyond the range of flying fragments". The affidavit by David Plugh states that he "was not aware of the existence of any `Ditching and Field Clearing with Dynamite' manual," or that a "minimum `safe distance' from the blast was listed as 500' to the windward side in field clearing procedures."

The court below on the basis of the record found there was no genuine issue as to any material fact, that plaintiff had no claim and that defendant was entitled to summary judgment as a matter of law.

From the findings of fact it appears that the defendant manufactured, packaged and sold through its independent distributor, J. R. Haines, Inc., to the Lizton Lumber Company, in Lizton, Indiana, a sealed carton containing dynamite. The sealed carton had enclosed inside a four-page insert which set forth an extensive list of "do" and "don't" instructions for the proper use of high explosives and dynamite, calling to the user's attention the availability of additional information. The Lizton Lumber Company subsequently sold this carton of dynamite to the plaintiff's employer, Reith-Riley. Plaintiff in the scope of his employment as a laborer for that firm, on the day in question, was assisting David Plugh, its blasting foreman in the setting and detonating of dynamite charges. The dynamite contained in the carton was removed and a charge was set and detonated by the foreman. An unknown flying object thrown by the force of this explosion struck plaintiff. It was the explosion of dynamite by Reith-Riley at a time when plaintiff was dangerously close, according to the test prescribed by defendant's publication, "the Field Clearing pamphlet" which injured plaintiff and precipitated this law suit against defendant.

Plaintiff contends that, under applicable law as applied to the facts in this case, defendant completely failed to demonstrate that it made known the dangers inherent in the handling of dynamite of which it was fully aware. In support of that contention the "Restatement of Torts", § 388 is cited, viz.

"Chattel Known to be Dangerous for Intended Use.

One who supplies * * * Du Pont * * * through a third person J. R. Haines, Inc. and Lizton Lumber Company, Inc. a chattel dynamite for another Reith-Riley to use is subject to liability to those whom the supplier should expect to * * * be endangered by its probable use plaintiff for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and,

(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous."

Plaintiff points out that the factual situation revealed by this record clearly shows that defendant was aware of its responsibility in the distribution of high explosives in the use of which various persons, including workmen, would be exposed to injury if proper knowledgeable safeguards were not scrupulously observed. In fact it took a step toward meeting this responsibility by enclosing, in its cartons of dynamite, instructions for its safe use. It also prepared the "Field Clearing pamphlet" which specifically provides for the blaster to stand at least 500 feet from the nearest portion of the shot, when firing the blast. While this language in the pamphlet might serve to inform anyone who knew of its contents of the danger of remaining closer than 500 feet to the blast at the time it occurred, obviously the pamphlet would be no protection to one who knew nothing of its contents. Nevertheless, defendant aruges that the danger from flying fragments was known by the blasting foreman, David Plugh, because "* * * it is impossible to find that this blasting foreman could reasonably not have known of the danger of flying fragments."

There is no contention in this case (and on the evidence in the record there could be no such contention) that plaintiff knew the contents of the "Field Clearing pamphlet" or had been informed by anyone of its contents. The failure of plaintiff to have knowledge of this pamphlet or its contents is factually explained by the testimony of J. R. Haines, the Du Pont distributor at Bloomington, Indiana. He admitted in his deposition that he had received no special training from Du Pont with respect to handling explosives; that he did not know of any training programs available through any sources with respect to their use; that to be a distributor for Du Pont one had to be aggressive, but that he had not known of any requirements with respect to the use of dynamite that a distributor must have; that the said pamphlet was available to his customers, if they wanted it and requested it. He added that the "Do's and Don'ts" in each box of explosives go to anybody who bought it.

Lynn Parson, manager of Lizton Lumber Company,...