Gall v. McDonald Industries
| Decision Date | 27 November 1996 |
| Docket Number | No. 19161-0-II,19161-0-II |
| Citation | 926 P.2d 934,84 Wn.App. 194 |
| Court | Washington Court of Appeals |
| Parties | Randy GALL and Joanne Gall, husband and wife, and the marital community composed thereof, Appellants, v. McDONALD INDUSTRIES, a Washington corporation, Respondent. |
Geri Ann Simeon Baptista, Seattle, for Respondent.
Wayne L. Williams, Rolland, O'Malley, Williams & Wyckoff, Olympia, for Appellants.
Randall Gall alleges he was injured when the truck he was driving lost its brakes and went out of control. He sued the truck's lessor, McDonald Industries, Inc., for negligence. McDonald moved for an order of summary judgment, which the trial court granted. Taking the facts and reasonable inferences in the light most favorable to Gall, 1 we reverse and remand for trial.
In late September and early October 1991, Gall was an employee of West Company Construction. One of his duties was driving trucks.
In late September, West leased a dump truck from McDonald Industries. The truck had six wheels, two in front and four in back. Affixed to each wheel was a brake caliper which, when activated, applied force to the wheel and slowed the truck.
The brake calipers were activated by "an air-over-hydraulic brake system" 2 that had two parts. One part served the two front wheels, while the other part served the four rear wheels. Each part of the system depended on hydraulic pressure "of a very high magnitude" 3 being contained within steel tubing, called brake lines. If the steel tubing failed, and hydraulic pressure escaped, the brakes would not function.
West leased the truck pursuant to a written lease agreement with McDonald. The agreement recited that West had inspected the truck and was receiving it "in good and safe operating condition;" that West would maintain the truck at its own expense; that McDonald "shall not be liable for any loss, damage, or expense ... arising out of ... the operation of" the truck; that McDonald's liability "is limited to repair or replacement of parts or equipment;" and that West "hereby assumes liability for and agrees to defend and save [McDonald] harmless from any and all claims of liability, loss or damage, including but not limited to claims for property damage, personal injury or death, arising out of or incidental to operation, use, or possession of" the truck. 4
As a consequence of the lease, the truck was delivered to West's job site, where McDonald had stationed one of its employees, George Curry. Curry's function was "to repair problems that occurred" with McDonald's equipment. West, however, was responsible for "normal maintenance." 5
Shortly after the truck arrived at the job site, Curry inspected it and discovered that the brake assembly on one of the right rear wheels was leaking brake fluid. Curry felt this problem should be corrected because, "[h]ad I left it alone[,] the brake fluid would have all run out." 6 He did not, however, have the parts he needed to make permanent repairs. Hence, he fashioned what he later described as a "makeshift repair." 7 He took the steel tubing that carried hydraulic pressure to the affected wheel and, in his words, "folded it over four times on top of itself and then smashed it with a hammer." 8
Curry's makeshift repair disabled the brake on the affected wheel, leaving the truck with five instead of six brakes. It also generated, for reasons explained more fully below, a high risk that all four of the truck's rear brakes would fail simultaneously.
After completing his makeshift repair, Curry spoke with Mike West, owner of West Company Construction. According to Curry,
I didn't give him any advice because he is the corporate owner, I gave him his options. Option being send the truck back, get another truck down there or run this one as is with the stipulation on the side that the operators check the brake fluid twice a day, only to cover myself.[ 9
As far as the record shows, Curry was unaware of, and did not mention to West, the risk that all of the truck's rear brakes might fail simultaneously.
West decided to go ahead and use the truck. According to his affidavit,
I believed then, as I believe now, that the truck would safely function if it was operated correctly. I decided, based on my experience and background in the industry, that truck number TH482 could be safely operated with one of the brakes plugged off and gave that instruction to West Company Construction employees.[ 10
On October 4, 1991, about four days after Curry made his makeshift repair, Gall was driving the truck down an incline when its brakes failed. 11 The truck went out of control, collided with a large mound of dirt, and Gall was allegedly injured.
On October 4, 1993, Gall sued McDonald for damages. On October 21, 1994, McDonald moved for summary judgment. Gall did not make a cross-motion, but he responded to McDonald's motion with the affidavit of a registered professional engineer. According to that affidavit, Curry's makeshift repair
consisted of totally disconnecting the hydraulic brake line from the caliper assembly on the right side wheel of the rear rear axle. The end of the separated steel tubing brake line was then "folded over four times on top of itself and then smashed with a hammer". This action ... compromised the performance of the vehicle's braking system (only 5 brakes working instead of 6) and it initiated a failure that ultimately culminated in the total loss of braking effort on 4 of the 6 wheels.
12. Because the pressure that can occur in a hydraulic brake line is of a very high magnitude, the tubing must be treated with great care to avoid cracking. The steel tubing is manufactured by a unique and special process and the subsequent forming of the brake lines, for a specific application, is extremely critical. This criticality is exemplified by the refusal of aftermarket parts outlets (and tubing and fitting stores) to fabricate replacement brake lines for hydraulic braked vehicles. They don't want to be exposed to the risk associated with improperly flaring or bending the steel tubing. For the brake tubing to maintain it's [sic] integrity, it must be mandrel bent only. That is the walls of the tubing must be supported by an accommodating tool when it is formed.
13. ... [T]he temporary "fix" applied to the brake line on the [truck at issue here] violated all of the practices and procedures essential to maintaining the integrity of the tubing.... The act of hand bending (without a mandrel) the tubing "four times on top of itself" most certainly initiated cracks in the steel tubing at each bend. The ultimate damaging event came when the folded termination of the tubing was "smashed with a hammer". This act assured that a failure was initiated at each bend and probably in the resulting straight sections of the tubing as well.
14. While the temporary plugging of the brake line appeared to be performing it's [sic] intended function, and the brake line appeared to be intact, every application of brake pressure and every bump in the haul road surface induced a cyclical load on the damaged (due to the "fix") brake line. When the crack(s) propagated, as a result of the road induced vibration and the internal cyclical pressure variations, to the point where the tubing could no longer contain the hydraulic pressure attendant with downhill braking, the tubing fractured creating a massive catastrophic leak in the rear portion of the split brake system.
15. Because it is a closed system, the internal pressure went to zero psi when it was vented to atmosphere by the leak. Zero pressure meant zero brake force, and there was no way to replenish the required pressure in the rear system.... There is no possible way that such a deficiency in the brake effectivity could accommodate a loaded haul truck descending an 18 percent grade....
16. The root cause of the accident ... was the brake line failure that resulted from the temporary repair made to the brake line at the right rear rear wheel of the truck. Had the necessary repair been performed in a proper manner, the catastrophic brake fluid leak would not have occurred and the driver of the truck would not have lost control due to the inability of the truck braking system to maintain a desired speed on the 18 percent down grade.[ 12
The trial court granted McDonald's motion, and Gall filed this appeal.
Preliminarily, McDonald argues that its lease agreement with West limits its liability to Gall. We disagree. Generally, a person may contract to exculpate himself or herself from the consequences of ordinary negligence. 13 Like any contract, however, a contract purporting to exculpate can be enforced only against those party to it. 14 Thus, it cannot reduce or diminish the legal rights of those not party to it. Given that Gall was not a party to the McDonald-West lease agreement, that agreement does not affect his rights against McDonald. 15
We turn then to the substance of the case. Gall's only claim is one of common law negligence. 16 He is entitled to a trial unless McDonald demonstrates 17 that he cannot establish duty, breach, proximate cause, or damage. 18 For purposes of this appeal, McDonald does not contest Gall's ability to establish damage. Hence, we consider duty, breach, and proximate cause.
Duty is a question of law. 19 Necessarily, then, it should be defined generally, without reference to the facts or parties in a particular case. 20
Duty has three facets. (1) By whom is it owed? (2) To whom is it owed? (3) What is the standard of care? The first question defines an obligated class, while the second defines a protected class. 21
Here, all three facets are embodied in the following principles. Generally, the supplier of a chattel owes a duty of reasonable care when it delivers a chattel for use by another. 22 The supplier may be a manufacturer, 23 23 a retail seller, 24 a non-commercial vendor, 25 a lessor, 26 a repairer, 27 a...
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