Hempstead v. General Fire Extinguisher Corporation

• Decision Date: 02 June 1967
• Docket Number: Civ. A. No. 2840.
• Citation: 269 F. Supp. 109
• Parties: Allen A. HEMPSTEAD, Plaintiff, v. GENERAL FIRE EXTINGUISHER CORPORATION and Underwriters' Laboratories, Inc., Defendants.
• Court: U.S. District Court — District of Delaware

269 F. Supp. 109

Allen A. HEMPSTEAD, Plaintiff, v.GENERAL FIRE EXTINGUISHER CORPORATION and Underwriters' Laboratories, Inc., Defendants.

Civ. A. No. 2840.

United States District Court D. Delaware.

June 2, 1967.

James P. D'Angelo, Wilmington, Del., Arthur G. Raynes, Richter, Lord & Cavanaugh, Philadelphia, Pa., of counsel, for plaintiff.

William Prickett, Jr., Prickett, Ward, Burt & Sanders, Wilmington, Del., for defendantGeneral Fire Extinguisher Corp.

H. James Conaway, Jr., Young, Conaway, Stargatt & Taylor, Wilmington, Del., Edward H. Hickey, Bell, Boyd, Lloyd, Haddad & Burns, Chicago, Ill., of counsel, for defendantUnderwriters' Laboratories, Inc.

OPINION

STEEL, District Judge.

Defendant, Underwriters' Laboratories, Inc., ("Underwriters") has moved for summary judgment upon the unverified pleadings, affidavit of W. S. Austin, deposition of plaintiffAllen A. Hempstead,¹ answer of plaintiff to interrogatories of Underwriters, and Underwriters' answers to plaintiff's interrogatories.

Plaintiff is a resident of Virginia, the defendants are Delaware corporations, with their places of business in a state other than Virginia, and the amount in controversy, exclusive of interest and costs, exceeds $10,000.Jurisdiction exists under 28 U.S.C. § 1332(a)(1).

Unless otherwise indicated, the following facts are either undisputed or that version of disputed facts most favorable to plaintiff.

On or about January 27, 1963plaintiff, while employed by the Arlington Towers Apartment, was assisting in putting out a fire in one of its apartment buildings located in Virginia.As a result of an explosion of a fire extinguisher filled with soda acid, which was being operated by a co-worker, plaintiff was injured.The Complaint as amended² charges that the accident was caused by the negligence of General Fire Extinguisher Corporation("General") in manufacturing the extinguisher and in certain other particulars not presently germane.The Complaint also charges Underwriters, a testing company employed by General, with liability upon three theories: first, Underwriters was negligent in approving the design of the fire extinguisher despite the fact that the design was inherently dangerous and reasonably certain to place life or limb in peril or would become so if negligently made and manufactured;³ second, Underwriters was negligent in allowing General to affix its Underwriters official label to the fire extinguisher, stating that it had been inspected and tested for 500 pounds of internal pressure when in fact it had not been; and third, the Underwriters' label so affixed constituted a misrepresentation by Underwriters as to its testing and inspection of the fire extinguisher.⁴This misrepresentation, it is alleged, was accomplished by Underwriters permitting General to affix to the extinguisher the following label:

"Tested 500 pounds The General Detroit Corp. Detroit, Mich., U.S.A.The General Pacific Corp. Los Angeles, Calif., U.S.A.

Underwriters sic Laboratories, Inc., Inspected"

Since jurisdiction is based solely upon diversity of citizenship, the conflict of laws rule to be applied by this Court must conform to that which prevails in the Delaware state courts.Klaxon Company v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477(1941).Since plaintiff was a resident of Virginia and the accident occurred in that commonwealth, a Delaware court would apply the law of Virginia in determining substantive questions of liability.Friday v. Smoot, 211 A.2d 594, 595(Del.Sup.Ct.1965).

The question for determination is whether under Virginia law Underwriters, a testing corporation, can be held liable for plaintiff's injury based upon Underwriters' alleged negligence and misrepresentation when no relationship of privity exists between the parties.

For purposes of the present motion, it will be assumed that Underwriters did in fact negligently approve the design of the fire extinguisher manufactured by General.⁵

Underwriters neither manufactured nor sold the extinguisher.No privity of contract or any other legal relationship existed between Underwriters, the plaintiff, the plaintiff's employer, or plaintiff's co-worker who was handling the extinguisher at the time of its explosion.Because of these undisputed facts, Underwriters contends that under Virginia law it can be under no liability to plaintiff even if it were negligent in approving the design of the fire extinguisher which it denies.

On June 29, 1962, an Act became effective in Virginia which provided that lack of privity between a plaintiff and a defendant is not a defense to an action brought against a manufacturer or seller of goods for breach of warranty, express or implied, or for negligence, if the plaintiff is a person whom the manufacturer or seller might reasonably have expected to use, consume, or be affected by the goods.Code of Virginia § 8-654.3.⁶This statute was in effect when plaintiff was injured.

The statute, it is to be noted, relates only to suits against manufacturers or sellers.Since Underwriters was neither, the statute on its face appears to be without relevance.Underwriters argues, however, that under the principle of expressio unius est exclusio alterius,the statute implicitly reflects a legislative intention to make privity indispensible to liability in a product liability case where, as here, defendant is not a manufacturer or a seller.

No Virginia or other authority cited by Underwriters justifies this interpretation of the 1962 Act, and the judicial history which immediately preceded its enactment tends to refute it.Harris v. Hampton Roads Tractor & Equipment Company, 202 Va. 958, 121 S.E.2d 471(1961), was decided on September 8, 1961, less than four months before Home BillNo. 389, which eventuated in § 8-654.3, was introduced in the Virginia House of Delegates.It held that lack of privity was a bar to an action against a vendor based upon breach of warranty.In addition, on January 15, 1962, only two weeks before Home BillNo. 389 was introduced, the decision in General Bronze Corp. v. Kostopulos, 203 Va. 66, 122 S.E.2d 548(1962), became final.Based in part upon lack of privity it denied a sub-vendee relief against a manufacturer based upon negligence.The promptness with which § 8-654.3 was enacted following the Harris and General Bronze decisions strongly suggests that its passage was designed to prevent any future application of the principles of those cases.SeeEmroch, Statutory Elimination of Privity Requirement in Products Liability Cases, 48 Va.L.Rev. 982, 984 n. 12(1962) hereinafter cited as Emroch.

So that the question whether Virginia would require privity as a condition to product liability in a suit such as the present one finds no clue in the passage of § 8-654.3.The answer must be ascertained from the Virginia decisions, and to the extent necessary, from other recognized sources, such as the Restatement of Law, treatises, law review commentaries and the majority rule.Venuto v. Robinson, 118 F.2d 679, 682(3d Cir.1941), cert. denied, 314 U.S. 627, 62 S.Ct. 58, 86 L.Ed. 504(1941).

MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050(1916) is generally looked upon as a landmark decision in the United States in the field of product liability.There, plaintiff had purchased an auto from a dealer and was injured when a wheel made of defective wood collapsed.Plaintiff sued the manufacturer of the car upon the theory that by purchasing the wheel from another manufacturer and placing it on the car without inspecting it, the defendant became liable.The trial court instructed the jury that an automobile is not an "inherently dangerous" vehicle, in the sense that danger is not to be expected when the vehicle is well constructed.It submitted to the jury the question whether the defendant should have foreseen that the car, if negligently constructed, would become "imminently dangerous."A verdict for the plaintiff was affirmed upon appeal.The applicable law was thus stated at 1053:

"We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction.If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger.Its nature gives warning of the consequences to be expected.If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully."

Judge Cardozo refused to accept what he characterized as the subtle distinction between things "inherently dangerous" and things "imminently dangerous", and stated that the case did not turn upon these verbal niceties.He said at 1055:

"If danger was to be expected as reasonably certain if the thing involved was negligently made, there was a duty of vigilance, and this whether you call the danger inherent or imminent."

While the opinion rejected the "imminently dangerous" phrase as the touchstone of liability, there can be little doubt that it aptly describes an article which, as the Court said at 1053, "* * * is reasonably certain to place life and limb in peril when negligently made * * *." for in those circumstances "its nature gives warning of the consequences to be expected."

In Pierce v. Ford Motor Co., 190 F. 2d 910(4th Cir.1951), cert. denied342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666(1951), the Courtat 914 rejected the contention that because of the then recent decision in Robey v. Richmond Coca-Cola Bottling Works, 192 Va. 192, 64 S.E.2d 723(1951), the doctrine of the MacPherson case was not the law of Virginia.The Court in Pierce said that the reasoning in Robey clearly indicated Virginia's approval...