Franchetti v. Intercole Automation, Inc., Civ. A. No. 80-361.

• Decision Date: 11 January 1982
• Docket Number: Civ. A. No. 80-361.
• Citation: 529 F. Supp. 533
• Parties: Michael J. FRANCHETTI, Jr., and Diane P. Franchetti, Plaintiffs, v. INTERCOLE AUTOMATION, INC., a California corporation, and Stewart Bolling & Company, Defendants.
• Court: U.S. District Court — District of Delaware

529 F. Supp. 533

Michael J. FRANCHETTI, Jr., and Diane P. Franchetti, Plaintiffs, v. INTERCOLE AUTOMATION, INC., a California corporation, and Stewart Bolling & Company, Defendants.

Civ. A. No. 80-361.

United States District Court, D. Delaware.

January 11, 1982.

David H. Erisman, Conner, Daley, Erisman & vanOgtrop, Wilmington, Del., for plaintiffs.

B. Wilson Redfearn, Tybout, Redfearn, Casarino & Pell, Wilmington, Del., for defendants.

OPINION

MURRAY M. SCHWARTZ, District Judge.

This action for personal injuries was brought by Michael J. Franchetti and his wife, Diane P. Franchetti, both citizens of Delaware, against Intercole Automation, Inc., a California corporation, and Stewart Bolling & Company, an Ohio corporation. Jurisdiction is based on diversity of citizenship. In an earlier opinion the Court denied plaintiffs' motion in limine for a determination that the doctrine of strict tort liability applies in an action for personal injuries caused by defectively designed equipment manufactured, sold and delivered prior to the effective date of Delaware's Uniform Commercial Code. Franchetti v. Intercole Automation, Inc., 523 F.Supp. 454 (D.Del. 1981). Presently before the Court is defendant's motion for summary judgment on plaintiffs' remaining negligence claim.

The relevant facts are largely undisputed and may be briefly stated. On October 3, 1979, plaintiff Michael J. Franchetti suffered injuries when his hand accidentally became caught in a calender operated by his employer Gates Engineering Company. In general terms, a calender is a machine comprised of heavy steel rolls mounted on a frame which, when driven by electric power units, operates in much the same fashion as the wringer units found in the now outdated wringer washing machines. The calender in question incorporated four rolls, heated to a temperature of approximately 180 degrees, through which bulk natural rubber was rolled into rubber sheeting.

While operating the calender, Mr. Franchetti accidentally caught his hand in the "bite" point of two rolls, i.e., the point at which the two in-running rolls, meet. Simply stated, plaintiffs' claim is that defendants were negligent in failing to design and construct the calender with proper safeguards to protect the operators. In addition, plaintiffs allege that defendants were also negligent in failing to adequately warn operators and/or users of the machine as to the dangers caused by its unguarded state.

The calender was manufactured, sold, and delivered by the defendants¹ to another manufacturer in 1949 and resold to Mr. Franchetti's employer in 1956. Although defendants press a number of arguments in support of their motion for summary judgment, in the final analysis their motion rests on two grounds. First, defendants argue that absent any showing of contractual privity plaintiffs' claims of negligence must fail. Acknowledging that Delaware recognizes an exception to the privity requirement where the product causing injury is imminently or inherently dangerous, defendants argue that the calender at issue cannot, as a matter of law, be regarded as imminently dangerous. Second, defendants argue that even if plaintiffs' claim is not barred by lack of privity, defendants were under no duty to either ensure Mr. Franchetti's safety or warn him of any danger which may have existed. Defendants argue that the dangers attendant to working in close proximity to the "bite point" are obvious and that even if the machine were negligently designed, they are protected by the so-called "patent danger rule." Defendants further assert that there is no duty to warn of obvious dangers inherent in the use of their products and that the danger complained of is a matter of common knowledge. Further, defendants argue that they could not foresee the uses to which the calenders would be put and were therefore under no duty to install safety devices which might or might not be effective depending on the circumstances.

A party moving for summary judgment bears a heavy burden. If any material factual issues are in dispute, the motion must be denied. Drexel v. Union Prescription Centers, Inc., 582 F.2d 781 (3d Cir. 1978); Pettinaro Construction Co., Inc. v. Delaware Authority for Regional Transit, 500 F.Supp. 559 (D.Del.1980); Carpenter International, Inc. v. Kaiser Jamaica Corp., 369 F.Supp. 1138 (D.Del.1974). As this is a diversity case, the legal adequacy of plaintiffs' contentions, as well as the sufficiency of defendants' defenses must be gauged by Delaware law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657 (3d Cir.), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980). Each of defendants' contentions will be addressed in turn.

Privity

The general rule in Delaware sales cases is that:

A contractor, manufacturer or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of the article he handles.

Gorman v. Murphy Diesel Co., 42 Del. 149, 153, 29 A.2d 145, 147 (Del.Super.1942);² Moore v. Douglas Aircraft Co., 282 A.2d 625 (Del.Super.1971).

There is, however, a well recognized exception to the general rule which states:

One who sells or delivers an article which he knows to be imminently dangerous to life or limb of another without notice of its qualities is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there were any contractual relations between the parties or not.

Gorman v. Murphy Diesel Co., 42 Del. at 153, 29 A.2d at 147; Behringer v. William Gretz Brewing Co., 3 Story., 53 Del. 365, 169 A.2d 249 (Del.Super.1961). Although the quoted language and early cases might appear to limit the exception to cases involving negligent construction, the Delaware Supreme Court has since recognized that a manufacturer's duty extends to design defects as well. Massey-Ferguson, Inc. v. Wells, 383 A.2d 640 (Del.1978).

Defendant acknowledges the existence of the exception but argues that the machine in question is not imminently³ dangerous. The category of imminently dangerous articles is a vague one. Although it is possible to argue with the conclusions reached on a given set of facts, the cases generally fall into line with the general rule that a product is imminently dangerous when it poses a threat of serious physical harm if it proves to be defective. See Moore v. Douglas Aircraft Co., 282 A.2d 625 (Del.Super.1971). Thus a cardboard carrier which breaks allowing six glass bottles to fall is not imminently dangerous, Behringer v. William Gretz Brewing Co., 3 Story., 53 Del. 365, 169 A.2d 249 (Del.Super.1961), but a yoke and sling apparatus which breaks allowing an airplane engine to fall is. Moore v. Douglas Aircraft Co., 282 A.2d 625 (Del.Super.1971). Similarly, a glass bottle which breaks in a child's hand is not imminently dangerous, Ciociola v. Delaware Coca-Cola Bottling Company, 3 Story., 53 Del. 477, 172 A.2d 252 (Del.1961), but an automobile steering mechanism which collapses is. Dillon v. General Motors Corporation, 315 A.2d 732 (Del.Super.1974).

Defendants argue that the obviousness of the danger presented by the calender as well as the length of time it had been in use without incident, both factors considered by the Court in Gorman v. Murphy Diesel Co., 42 Del. 149, 29 A.2d 145 (1942), require this Court to conclude that as a matter of law the calender was not imminently dangerous. In Gorman, plaintiff alleged that a diesel engine, which had had two prior owners and was purchased some sixteen months before the accident, exploded due to the existence of hidden structural and mechanical defects. In sustaining defendant's demurrer the Court held that based on the allegations of the complaint there was no basis upon which a jury could find that the explosion was proximately caused by some unspecified negligence on the part of the defendant.

In contrast, in the instant case plaintiffs allege that a specific negligent act by defendants — the failure to provide adequate safeguards — was a proximate cause of the injury. The device in question clearly has the potential to seriously injure those who work in its close proximity, or at least the Court is not prepared, on a motion for summary judgment, to hold that it does not.⁴ Neither the length of time the machine was operated without incident nor the obviousness of the danger can alter that fact, though they may be relevant to the issue of defendants' negligence and ultimate liability. Moore v. Douglas Aircraft Co., 282 A.2d at 628.

Patent Danger

Defendants' argue that even if plaintiffs can recover without privity, their claim is barred by the so-called "patent danger rule." As defendants candidly acknowledge, the rule that a manufacturer has no duty to guard against injury from a patent peril or from a source manifestly dangerous, Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950), overruled, Micallef v. Miehle Co., Etc., 39 N.Y.2d 376, 348 N.E.2d 571, 384 N.Y.S.2d 115 (1976), has only been accepted in some jurisdictions. Indeed a recent survey concludes that while the rule appears viable in some seventeen jurisdictions, it has been rejected in eighteen and has been neither accepted nor rejected in sixteen. Darling, The Patent Danger Rule: An Analysis and a Survey of its Vitality, 29 Mercer L.Rev. 583 (1978) (hereinafter "Darling").

Unfortunately, Delaware is cited as being among the sixteen undeclared jurisdictions. Thus this Court must engage in the hazardous chore of predicting the future course of the development of Delaware law. In order to do so the Court must consider the policy considerations underlying decided Delaware cases, the holdings of the lower state courts, scholarly works and analogous decisions from other jurisdictions; but in the final analysis this Court's task remains the determination of what...