Marchant v. Mitchell Distributing Co.
| Decision Date | 27 December 1977 |
| Docket Number | No. 20572,20572 |
| Court | South Carolina Supreme Court |
| Parties | Pershing MARCHANT, Appellant, v. MITCHELL DISTRIBUTING COMPANY, a South Carolina Corporation and Lorain Division of Koehring, a Wisconsin Corporation, Defendants, of whom Mitchell Distributing Company is, Respondent. |
James E. Gonzales, North Charleston, for appellant.
Donald V. Richardson, III, and Charles E. Carpenter, Jr., of Richardson, Plowden, Grier & Hower, Columbia, for respondent.
This action was commenced by appellant Pershing Marchant (Marchant) to recover damages for personal injuries received in a mishap involving the breaking of a cable in the operation of a crane. The crane, described as an LRT series 15H Moto-bout self-propelled hydraulic crane, was manufactured by defendant Lorain Division of KOEHRING, and was sold by a local dealer, defendant-respondent Mitchell Distributing Company (Mitchell), to Marchant's employer, Giant Portland Cement Company, for use at its Harleyville, S. C. plant.
The lower court granted a summary judgment, dismissing the local distributor, Mitchell, as a party defendant. Marchant appeals.
Our opinion deals solely with the action against Mitchell. The claim against Lorain Division of KOEHRING is not here involved.
Marchant's complaint contained three theories of liability: (1) negligence; (2) breach of express and/or implied warranties of merchantability and fitness for a particular purpose; and (3) strict liability. With respect to the cause of action for negligence, Marchant alleged that Mitchell was negligent in one or more of the following particulars: (1) in marketing, selling and/or distributing a defective crane; (2) in failing to warn of the danger of the crane double-blocking (also referred to as two-blocking); (3) in failing to equip the crane with an anti-blocking device; and (4) in selling a crane which by design, construction and lack of appropriate safety devices, was not fit for the purpose for which it was intended.
The actions alleging breach of warranty and strict liability were based on the theory that the absence of a safety attachment called an anti-blocking device rendered the crane unfit for its intended purpose, and in a defective condition unreasonably dangerous to the user. The safety device was an available option purchasable for an additional price. Marchant's employer did not purchase this item.
Mitchell's answer denied liability and contained the following allegations: (1) that the crane was not being used for its intended purpose at the time of the mishap; (2) that the individual who operated the crane at the time of the mishap was inexperienced and caused the cable to break; (3) that Marchant was contributorily negligent in numerous particulars; (4) that the use to which the crane was being put constituted misuse; (5) that there were no warranties, express or implied, made by Mitchell, and there was no privity of contract between Mitchell and Marchant; (6) that Marchant was not a "user or consumer" of the product; (7) that the crane was not designed for the use to which it was being put and such use constituted a substantial change in its condition; (8) that the crane was not in a defective condition unreasonably dangerous to the plaintiff; and (9) that strict liability was not the law in South Carolina at the time the product was sold.
The summary judgment, in favor of Mitchell, was granted based on the following grounds: (1) that there was no actionable negligence on the part of Mitchell which was the proximate cause of any injuries sustained by Marchant; (2) that there was no duty upon Mitchell to equip or sell the crane with an anti-blocking device; and (3) that the crane was not defective. We affirm the lower court.
The basic facts which gave rise to this action are not greatly in dispute. On the afternoon of November 16, 1973, Marchant and two co-workers (Ayers and Murphy) were instructed by a plant foreman to remove some bags which had collected on a conduit. Marchant testified that the conduit was suspended approximately 15-20 feet above the ground, and the foreman told them to use the crane to accomplish this task and told Murphy to operate it. While there is some conflict in the testimony concerning Murphy's experience in operating cranes, and this particular crane, it is admitted that Murphy was not among the crane operators who had been trained by Mitchell to operate this crane.
The crane here involved is a massive, mobile piece of machinery which is equipped with an hydraulic, telescoping boom. The telescoping characteristic enables the length of the boom to be extended up to a distance of 60 feet. A steel cable, attached to a drum inside the crane, runs along sheaves up through the boom. At the end of the cable is a block which can be attached to the object to be hoisted. On the day of the mishap, the block was attached to a bucket, or basket, in which workmen can be elevated. While there is some conflict concerning the source of this particular bucket and whether it was homemade or commercially manufactured, it is admitted that the bucket was not sold by Mitchell. It is also admitted that the bucket contained no interior controls which would allow the passengers to override the controls of the crane operator.
Marchant and Ayers climbed into the bucket and Murphy began manipulating the controls to raise the bucket to the conduit. In order to extend the boom and raise the bucket to the desired position, it is necessary for the operator to "play out" the cable while extending the boom. If the boom is extended to a distance greater than the length of the cable, the block will collide with the sheaves at the end of the boom. Since the block is larger than the sheaves at the boom point, great stress will be placed on the cable. This occurrence is referred to as double-blocking, or two-blocking. Although the operator of the crane can simultaneously "play out" the cable while extending the boom, Murphy chose to "play out" what he thought to be a sufficient length of cable, and then telescope the boom.
Before the bucket carrying Marchant and Ayers reached the conduit, the cable snapped, causing the bucket and workmen to fall to the ground, resulting in personal injuries. Although Murphy testified that he did not believe that the crane two- blocked, the evidence overwhelmingly forces this conclusion.
In considering whether the court was correct in granting the motion for summary judgment, we must construe all ambiguities, conclusions and inferences arising from the evidence most strongly against the moving party. Williams v. Chesterfield Lumber Co., 267 S.C. 607, 230 S.E.2d 447 (1976). Summary judgment is properly granted under Circuit Court Rule 44(c) when there is "no genuine issue as to any material fact . . . " and the "moving party is entitled to judgment as a matter of law. . . . " Sumter Dairies, Inc. v. Pelfrey, S. C., 234 S.E.2d...
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