General Elec. Co. v. Bush

• Decision Date: 20 June 1972
• Docket Number: No. 6632,6632
• Citation: 88 Nev. 360,498 P.2d 366
• Parties: GENERAL ELECTRIC COMPANY, a New York corporation, and Westinghouse Air Brake Company, a Delaware corporation, Appellants, v. Dee Ann BUSH, individually, et al., Respondents.
• Court: Nevada Supreme Court

Page 366

498 P.2d 366

88 Nev. 360

GENERAL ELECTRIC COMPANY, a New York corporation, and

Westinghouse Air Brake Company, a Delaware

corporation, Appellants, v. Dee Ann BUSH, individually, et al., Respondents.

No. 6632.

Supreme Court of Nevada.

June 20, 1972.

Rehearing Denied Aug. 30, 1972.

Goldwater, Hill, Mortimer & Sourwine, Ltd., Reno, for appellant General Electric Co.

Rust, Hoffman & Mills, Sacramento, Cal., and McDonald, Carano, Wilson & Bergin, Reno, for appellant Westinghouse Air Brake Company.

Bradley & Drendel, Reno, and Boccardo, Blum, Lull, Niland, Teerlink & Bell, of San Francisco, Cal., for respondents.

OPINION

ZENOFF, Chief Justice.

On October 19, 1968, during the course of his employment, Keith Bush was horribly injured while assisting in the reassembly of a giant vehicle specially designed for use in open pit mining. The accident happened near the Kennecott Copper Company's operation at Ely, Nevada.

The vehicle was a Haulpak, a truck-type that has as one of its major component parts a heavy electrical control cabinet which consists of a metal box weighing about 1,130 pounds and which contain a variety of electrical components such as switches, relays and the like. The entire Haulpak unit was manufactured first and then shipped in parts by rail to Ely to be reassembled by the crew of Pioneer Equipment Company, the dealer, distributor and servicing company. Bush was a member of that crew. Westinghouse Air Brake Company was the primary manufacturer of the unit, General Electric Company designed and manufactured the electrical control cabinet. General Electric's design specified the use of certain eyebolts to which further reference will hereafter be made.

In order to place the cabinet onto the truck it was necessary to lift it by crane by means of a rigging that would be strong enough to get it into the air and placed on the truck chassis. To accomplish this two standard 5/8-inch threaded lifting eyebolts were mounted into metal blocks welded at each end of the cabinet's channelled frame. The eyebolts were manufactured to meet the standards of the American Society of Testing and Materials which for this size bolt was listed as having a minimum breaking strength of 3,900 to 4,000 pounds. Lifting at a 45-degree angle, the eyebolt is rated to withstand bending without cracking.

The eyebolts were in the cabinet at the time the shipment arrived in Ely. The rigging was accomplished with a chain of 5/16-inch gauge, 34 feet long, run through each eyebolt and twice over the hook hanging from the lifting crane. There were double chain legs from the eyes to the hook and the excess chain was wrapped around the hook and legs and securely fastened. In that fashion a triangle was created. None of the evidence established the angle at the base legs to be less than 45 degrees which was the accepted critical safety angle for stress on the eyebolts. The acknowledged criteria is that the nearer to vertical the safer the rig.

No rigging diagram or warning was given by any of the manufacturers. The rigging crew was experienced and professional. A test lift was performed safely, then the cabinet was raised 8 to 12 inches into approximate position above the truck's fender where the cabinet remained suspended for about 20 minutes.

While the crew was aligning the cabinet with the fender and aligning both with the frame one eyebolt broke. This allowed the cabinet to drop at that end and slide down the fender toward the rear of the truck. Bush, who was under the suspended cabinet tending to his duties, was struck on the head and his skull was crushed. His injuries are such that he is among the living dead. He can neither communicate nor do anything for himself, nor will he ever be able to do so. His bowel, bladder and feeding needs must be accomplished for him. His mentality is seriously affected. He is paralyzed below the neck. His left eye is destroyed, his right eye is almost useless and although he does perceive, he is mute. His normal life expectancy is 39 years from the time of trial.

When the accident occurred he was married, his wife was three months pregnant and they had two other children. The jury favored the respondents with a verdict awarding damages to Keith for three million dollars, to his wife, Dee Ann, for $500,000 for loss of consortium and to their three children for $150,000, at $50,000 each, for their loss of companionship. The judgment was rendered against Westinghouse and General Electric, which included costs and disbursements.

The principal defense was that the bolt failed, not because it was defective in material or design, but because the workmen's rigging was not in accordance with the custom and practice to keep the angle at 45 degrees or above. They also sought to assert Bush's contributory negligence and assumption of risk. On appeal, they attack variously the trial court's instructions that related to the manufacturers for failing to warn and instruct the crew on the rigging on the ground that the crew members were professionals and therefore knew or should have known the rigging requirements without a warning; that the damages were excessive and as to the wife and children, that their awards were beyond the law; that they were deprived from showing Bush's contributory negligence should have been an element for jury consideration; that the jury was incorrectly instructed on strict liability upon which doctrine the case was principally tried; and that a fair trial was denied these appellants because they were hastened into trial before they could adequately prepare their defense and that certain procedural steps prevented them from removing the case from the state court to the federal district court.

1. Appellants' first contention is based on the premise that the jury predicated liability on the companies' failure to warn and instruct the reassembly crew. Appellants' position is that such notice and warning is not required when the reassembly crew consists of professionals who not only know how to rig but also know the dangers attendant therewith. Their assignment of error is directed specifically to the trial judge's failure to sustain objections to respondents' line of questioning contrived to establish a duty to give warning.

The evidence showed that the rigging was in accordance with usage and custom in the trade. Had the companies required a different rigging, such as vertical lifts using a spreader bar which the companies claimed should have been done, suitable instructions or warnings to that effect would have been appropriate. Without them the riggers were free to use the accepted method they felt proper. Jacobsen v. Ducommun, Inc., 87 Nev. 240, 484 P.2d 1095 (1971).

2. The trial of the action established that the eyebolt suddenly fractured during a customary lifting operation. The eyebolt was shown to have been defective, possibly from previous use.

We have heretofore held that a defective product is dangerous if it fails to perform in the manner reasonably to be expected in the light of its nature and intended function. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970). Beyond that a product being defective gives rise to strict tort liability even though faultlessly made if it was unreasonably dangerous for the manufacturer or supplier to place that product in the hands of a user without giving suitable and adequate warnings concerning the safe and proper manner in which to use it. Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229 (1970); Johnson v. Standard Brands Paint Co., 274 Cal.App.2d 331, 340, 79 Cal.Rptr. 194 (1969); Barth v. B. F. Goodrich Tire Co., 265 Cal.App.2d 228, 245, 71 Cal.Rptr. 306 (1968); Gherna v. Ford Motor Co., 246 Cal.App.2d 639, 651, 55 Cal.Rptr. 94 (1966); Canifax v. Hercules Powder Co., 237 Cal.App.2d 44, 52--53, 46 Cal.Rptr. 552 (1965).

The doctrine of strict liability for an injury caused by a defective product applies even though the supplier has exercised all possible care in the preparation and sale of his product. Restatement Second of Torts, Sec. 402A(2) (a); cf. Pike v. Frank G. Hough Co., supra. When classifying these riggers as 'professionals' that term is used in the sense of their knowledge and experience in their particular skill, which is a highly variable factor as compared to the true sense of 'professional' applied to doctors, lawyers, engineers and the like. Warning need not be given against dangers which are generally known (Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 858 (5th Cir. 1967)), but the hazard here was not one generally known to these workmen. Nothing in their work experience could have forewarned them of the defective bolt or that a vertical lift was the only safe method of lifting this cabinet.

Under strict liability the manufacturer is entitled to assume that his product will not be subjected to abnormal and unintended uses, and consequently no liability follows an injury resulting from an abnormal or unintended use. International Derrick & Equipment Co. v. Croix, 241 F.2d 216, 222 (5th Cir. 1957). But here, the eyebolts were being used for lifting as intended by a procedure that was approved by custom and usage in the trade. There was no misuse or abuse. The eyebolt was being used in a manner which the seller should have reasonably anticipated. Johnson v. Standard Brands Paint Co., supra; see also Preissman v. Ford Motor Co., 1 Cal.App.3d 841, 82 Cal.Rptr. 108 (1969).

3. We further disagree with appellants when they contend that contributory negligence and assumption of risk should have been allowed as defenses and that the district court erred when it refused to give the jury instructions on either or both. We must say parenthetically, first of all, that the jury might well have concluded from the evidence that Bush, as a member of the rigging team, was properly stationed and doing what he should have been doing when the accident happened. ¹

...