House v. Armour of America, Inc., 930552-CA
| Decision Date | 31 October 1994 |
| Docket Number | No. 930552-CA,930552-CA |
| Citation | 886 P.2d 542 |
| Parties | 26 UCC Rep.Serv.2d 721, Prod.Liab.Rep. (CCH) P 14,096 Ann C. HOUSE, individually and as the personal representative of the Estate of Freddie Floyd House, Plaintiff and Appellant, v. ARMOUR OF AMERICA, INC., a California corporation; Lawco Police Supply, a Utah corporation; E.I. DuPont de Nemours, a Delaware corporation; and John Does III through XX, Defendants and Appellees. |
| Court | Utah Court of Appeals |
Stewart M. Hanson, Jr., Charles P. Sampson, and Paul M. Simmons, Salt Lake City, for appellant.
David K. Watkiss, David B. Watkiss, and Carolyn Cox, Salt Lake City, for appellees Armour of America and DuPont.
Tim Dalton Dunn and J. Rand Hirschi, Salt Lake City, for appellee Lawco Police Supply.
Before BILLINGS, GREENWOOD and JACKSON, JJ.
Appellant, Ann C. House (Mrs. House), on behalf of the heirs of Lt. Fred Floyd House (Lt. House), appeals from the summary judgment dismissing her complaint against appellees, Armour of America (Armour), E.I. DuPont de Nemours (DuPont) and Lawco Police Supply Company (Lawco). Mrs. House claims that the trial court erred in granting summary judgment because there were material issues of fact as to whether Lt. House was adequately warned regarding the limitations of his bullet-resistant vest and, thus, whether Lt. House's inadequate knowledge caused his death. We affirm in part and reverse and remand for trial in part.
Summary judgment is only proper when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R.Civ.P. 56(c). "In reviewing a summary judgment, we analyze the facts and inferences in a light most favorable to the losing party." Copper State Leasing Co. v. Blacker Appliance & Furniture Co., 770 P.2d 88, 89 (Utah 1988); accord Canfield v. Albertsons, Inc., 841 P.2d 1224, 1226 (Utah App.1992), cert. denied, 853 P.2d 897 (Utah 1993). In considering a motion for summary judgment, it is improper for the trial court or this court on appeal to weigh the evidence or assess its credibility. Mountain States Tel. & Tel. Co. v. Atkin, Wright & Miles, 681 P.2d 1258, 1261 (Utah 1984); accord Reeves v. Geigy Pharmaceutical, Inc., 764 P.2d 636, 639 (Utah App.1988). In the instant case, the parties submitted an initial pre-trial order setting forth the contested and uncontested issues of fact. We recite the facts as agreed by the parties drawing inferences therefrom in a light most favorable to Mrs. House and we resolve all contested issues of fact in Mrs. House's favor. Blacker Appliance, 770 P.2d at 89.
Mrs. House is the widow of Lt. Fred House and the personal representative of Lt. House's estate. Mrs. House filed this wrongful death action on behalf of Lt. House's heirs, including herself and their three minor children.
Armour is a California corporation engaged in the business of designing, manufacturing, testing and selling bullet-resistant vests or "soft body armor." In addition to soft body armor, Armour also designs, manufactures, tests and sells hard body armor in the form of ceramic plates, which can be inserted into the front or back pocket of certain soft body tactical vests.
Lawco, now defunct, was a Utah corporation engaged in the business of selling law enforcement supplies such as bullet resistant vests. Lawco marketed vests from several different body armor manufacturers.
DuPont is a Delaware corporation that developed, manufactures and sells KEVLAR, the registered trademark for a family of aramid fibers incorporated into the ballistic fabric woven into bullet-resistant vests. DuPont does not manufacture or sell bullet-resistant armor. However, it has extensively tested ballistic fabrics woven from KEVLAR and has encouraged, through brochures and informational videos, law enforcement officers to wear such vests.
In 1973, Lt. House began working as a corrections officer for the Utah State Department of Corrections (Department). Lt. House received significant training during his tenure with the Department, and ultimately advanced to become a member of one of the Department's two Special Weapons And Tactics (SWAT) Teams, a senior supervisor, a Category I weapons instructor, and commander of the canine unit for the Utah State Prison Special Operations Team.
In 1980, when the Department began its SWAT Team program, Lt. House and other team members determined they should purchase bullet-resistant vests. Before purchasing these vests, Lt. House and the other officers researched the various types of body armor available. The team contacted several body armor retailers and sales representatives and invited them to visit the prison to demonstrate the vests and to provide the team with information. The brochure that Armour distributed at that time provided information regarding the four basic grades of soft body armor that Armour then manufactured, as well as a chart of the handgun rounds that each grade could withstand. Armour claims that in addition to making this brochure available to parties interested in purchasing body armor, Armour also included the brochure within the plastic packaging of each Armour vest sold. It is disputed whether the vests purchased by the Department from Lawco were accompanied by, or whether the officers saw and read, this Armour brochure and information booklet. Thus, for purposes of this appeal, we assume that Lt. House and his colleagues did not read the Armour brochure.
In June 1981, the team, after a bidding process, purchased nine Armour AHP concealable vests and one Armour AHP tactical vest plus a hard armor ceramic insert from Lawco. All ten of the vests had an attached label containing the following information:
THIS VEST WILL CONTAIN
44 MAG. 240 GR. (6"' BBL)
357 MAG. 125 FR. SJHP (6"' BBL)
22 MAG. (6"' BBL) 38 CAL 00 BUCKSHOT
NOT FOR A.P. ROUNDS
ARMOUR OF AMERICA
BEVERLY HILLS, CA 90213
DO NOT MACHINE WASH
OR DRY CLEAN
CLEAN WITH DAMP CLOTH AND
SMALL AMOUNT OF SOAP.
In January 1988, following the bombing of a church in Marion, Utah, Lt. House and other members of the Department's SWAT team were called to assist federal and state officers during a thirteen day stand-off with Addam Swapp and other members of the Singer-Swapp family. On January 28, 1988, while carrying out a plan designed by the FBI to apprehend Addam and Jonathan Swapp, Lt. House was shot and killed.
Under the FBI plan, Lt. House and Officer Jerry Pope were to release their dogs from the "Green" house (also called the "Bates" house), a home on the Singer-Swapp compound facing the barricaded Vickie Singer house. Lt. House, Officer Pope and several FBI agents had secreted themselves in the "Green" House to take down Addam and Jonathan Swapp as they walked across the compound to the goat pen to milk the animals. At approximately 8:30 a.m., Addam and Jonathan exited the Vickie Singer house and proceeded across the compound. Each carried a rifle slung over his shoulder. As they returned to the house, Lt. House and Officer Pope were given an order to release their dogs to bring down the two men. Lt. House, who was slightly in front of the other officers, opened the door to the "Green" house and he and Officer Pope alerted and released the dogs. Almost instantly, Timothy Singer began firing rifle shots from an upstairs bedroom of the barricaded Vickie Singer home directly through the open doorway and into the entryway where Lt. House, Officer Pope and several FBI agents were located. Lt. House was fatally shot by one of the first rounds fired. Following Lt. House's death, criminal prosecutions ensued against Timothy Singer and Addam Swapp. See State v. Singer, 815 P.2d 1303 (Utah App.1991); State v. Swapp, 808 P.2d 115 (Utah App.), cert. denied, 815 P.2d 241 (Utah 1991).
Lt. House was wearing his Armour AHP Tactical vest, as well as the hard armor insert, when he was fatally shot by a .30 caliber steel-jacketed round fired from a Plainfield carbine rifle by Timothy Singer. The bullet struck the non-ceramic inside edge of the hard armor chest panel and penetrated through the soft body portion of Lt. House's bullet-resistant vest.
Appellant argues on appeal that there are material issues of fact precluding summary judgment on each of the issues relied upon by the trial judge in granting summary judgment: (1) whether appellees had a duty to warn Lt. House about the capabilities and limitations of his Armour AHP Tactical vest; (2) whether appellees satisfied this duty; (3) whether appellees's failure to warn Lt. House of his vest's limitations proximately caused Lt. House's death; and finally, (4) whether appellee Lawco gave the decedent a warranty of fitness for a particular purpose and thereafter breached that warranty when the vest failed to perform as represented.
Mrs. House alleges that Lt. House's bullet-resistant vest was defective, not due to an inherent design or manufacturing defect, but because appellees failed to adequately warn Lt. House of the limitations and capabilities of the vest.
Under a theory of strict products liability, expressed in section 402A of the Restatement (Second) of Torts and adopted by the Utah Supreme Court, 1 a manufacturer who sells a product in a "defective condition unreasonably dangerous to the user" is strictly liable for any physical harm caused by the defect notwithstanding the fact that the manufacturer "has exercised all possible care in the preparation and sale of his product." Restatement (Second) of Torts § 402A(1), (2)(a) (1965) (hereinafter Restatement). A product is defective or "unreasonably dangerous" to the user if
the product [is] dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer,...
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