Marchant v. Lorain Division of Koehring, 20846

• Decision Date: 09 January 1979
• Docket Number: No. 20846,20846
• Court: South Carolina Supreme Court
• Parties: Pershing MARCHANT, Appellant, v. LORAIN DIVISION OF KOEHRING, a Wisconsin Corporation, Respondent.

Page 189

251 S.E.2d 189

272 S.C. 243

Pershing MARCHANT, Appellant, v. LORAIN DIVISION OF KOEHRING, a Wisconsin Corporation, Respondent.

No. 20846.

Supreme Court of South Carolina.

Jan. 9, 1979.

James E. Gonzales, North Charleston, for appellant.

William L. Pope and J. Christopher Henderson, of Robinson, McFadden, Moore & Pope, Columbia, for respondent.

A. Hoyt Rowell, III, Charleston, Chairman of S. C. Trial Lawyers Association, for amicus curiae.

NESS, Justice:

This is a products liability case. Appellant Marchant brought suit against the crane manufacturer (Lorain) for injuries he received when a crane "double blocked," and the bucket in which he was riding crashed to the ground. The trial court granted the manufacturer's motion for summary judgment as to all three theories of liability negligence, strict tort and warranty. We reverse.

In granting Lorain's motion, the trial court relied on Marchant v. Mitchell Distributing Co., 270 S.C. 29, 240 S.E.2d 511 (1977), a companion suit against the distributor of the crane. While we concluded the distributor was entitled to summary judgment on the facts presented there, that decision did not resolve the issues presented in this appeal. As we stated in Mitchell :

"Our opinion deals solely with the action against Mitchell. The claim against Lorain Division of KOEHRING is not here involved." 270 S.C. at 32, 240 S.E.2d at 511.

The awarding of summary judgment, though justified in some instances, is a somewhat anticipatory method of resolving a lawsuit. Therefore, in reviewing a summary judgment, all the evidence and reasonable inferences to be drawn therefrom are construed in the light most favorable to the party opposing the motion. Williams v. Chesterfield Lumber Co., 267 S.C. 607, 230 S.E.2d 447 (1976). We conclude there was sufficient evidence to create a jury issue regarding the liability of the manufacturer to appellant Marchant.

All the evidence indicates the accident occurred because the crane "double blocked." "Double" or "two blocking" happens when the crane's boom is extended farther than the length of the cable, causing the cable to sever. Lorain was aware of the crane's tendency to double block as it manufactured and sold an optional stock limit switch, or anti-two blocking device.

There is ample authority for the proposition that a manufacturer's failure to install safety devices may result in liability. According to 72 C.J.S. Supp. Products Liability § 22, p. 33:

"A product without necessary safety devices may be found defective so as to impose liability on its manufacturer or supplier. Whether couched in terms of negligence or otherwise, a manufacturer has a duty to exercise legal care in safeguarding his products against reasonably foreseeable risks."

Similarly, it is stated in 63 Am.Jur.2d, Products Liability, § 68, p. 75:

"Negligence in design, giving rise to liability for product-caused harm, has been found to inhere in failure to install a guard, shield, or similar protective or safety device . . ."

Section 398 of the Restatement, 2d of Torts (1965) provides:

"A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design."

See also Pike v. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229 (1970); Bexiga v. Havir Manufacturing Corp., 60 N.J. 402, 290 A.2d 281 (1972); Coger v. Mackinaw Products Co., 48 Mich.App. 113, 210 N.W.2d 124, (1973); Higgins v. Paul Hardeman, Inc., 457 S.W.2d 943 (Mo.App.1970).

Critical to our decision in Mitchell was the fact that the distributor of the crane was not responsible for its design or assembly. Here, however, we are confronted with allegations of negligent design lodged against the manufacturer. In view of Lorain's awareness of the incidence of double blocking as evidenced by its manufacturer of a preventive device, a jury issue was raised as to whether Lorain's failure to incorporate the limit switch onto the crane rendered it liable for negligent design.

Regarding the strict liability cause of action, this Court recognized in Mitchell that "a failure to incorporate into a product a safety feature or device may constitute a defective condition of the product." 270 S.C. at 36, 240 S.E.2d at 514. However, competent evidence must be adduced to establish that absent such a safety device, the product is unreasonably dangerous to the user. Mitchell, supra. The record in Mitchell was barren of any competent evidence that the crane was unreasonably dangerous absent incorporation of the safety feature.

The instant record, however, contains the detailed affidavit of John E. Sims, a design engineer. Sims averred the crane was designed in such a manner as to make predictable the two blocking syndrome. He stated that it was foreseeable in construction work that men would be aboard a bucket connected to the crane when the two blocking would occur. This additional evidence was sufficient to present a jury issue regarding whether the crane was unreasonably dangerous without the incorporation of a safety device. In Bexiga v. Havir Manufacturing Corp., supra, 290 A.2d at 285 the Supreme Court of New Jersey stated:

"We hold that where there is an unreasonable risk of harm to the user of a machine which has no protective safety device, as here, the jury may infer that the machine was defective in design unless it finds that the incorporation by the manufacturer of a safety device would render the machine unusable for its intended purposes."

The trial court also erred in concluding as...