Page v. Smith-Gates Corp., SMITH-GATES

• Decision Date: 01 September 1983
• Docket Number: No. 82-053,SMITH-GATES,82-053
• Citation: 143 Vt. 280,465 A.2d 1102
• Parties: Ronald and Beverly PAGE v.CORPORATION.
• Court: Vermont Supreme Court

Page 1102

465 A.2d 1102

143 Vt. 280

Ronald and Beverly PAGE v. SMITH-GATES CORPORATION.

No. 82-053.

Supreme Court of Vermont.

Sept. 1, 1983.

Robert S. Burke of Richard E. Davis Associates, Barre, for plaintiffs-appellees.

Robert R. McKearin of Dinse, Allen & Erdmann, Burlington, for defendant-appellant.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

UNDERWOOD, Justice.

During the summer of 1975, plaintiff Ronald Page installed heating tape on the water pipes in his trailer in an effort to prevent the pipes from freezing during the winter months. In December of 1975, a short circuit occurred in the heat tape wires and a fire ensued causing $9,000 worth of damage to plaintiffs' trailer. Plaintiffs brought a complaint sounding in negligence and breach of warranty against defendant, the manufacturer of the tape. At the close of the evidence, and over defendant's objection, the trial court allowed plaintiffs orally to amend their complaint to include a claim of strict liability in tort. Restatement (Second) of Torts § 402A (1965); Zaleskie v. Joyce, 133 Vt. 150, 154-56, 333 A.2d 110, 113 (1975).

After trial, the court found the probable cause of the fire to be "a combination between misleading instructions and a degree of carelessness on Mr. Page's part," both of which led to his improper installation of defendant's heat tape. The court found that instead of securing the heat tape's thermostat inside the taping and against the water pipe, plaintiff suspended it outside the insulation. Since defendant's heat tape thermostat was designed to be activated by the temperature of the pipe being heated rather than by the temperature of the air surrounding the pipe, the thermostat kept the heating element working continuously once the cold weather arrived. Eventually the rubber insulation surrounding the heat tape wires melted, thus causing the short circuit which, in turn, caused the fire.

The court characterized as "ambiguous" one portion of the accompanying instructions which stated that the thermostat was to be placed "at the coldest point," without specifying whether this was the coldest point on the pipe or outside the tape in the surrounding air. However, the court went on to find that a "careful and detailed reading" of defendant's instructions in their entirety would resolve any ambiguities, and would eventually lead to proper placement of the thermostat. Nevertheless, the court noted that plaintiff was aware that other brands of heat tape used air-sensing rather than pipe-sensing thermostats, that defendant knew of this difference, and that some of the pipes in plaintiffs' trailer already contained heat tape with an air-sensing thermostat left by the trailer's previous owners. For these reasons, the court concluded that defendant had a duty to explain and emphasize the difference between its installation method and those of its competitors, although it gave no indication whether such duty was grounded in negligence, warranty, or strict products liability. Since this differentiation was not stressed in defendant's instructions, the court found them susceptible to such misapplication as occurred here. Therefore, the court assessed sixty percent of the fire's causation to defendant, forty percent to plaintiffs and entered a judgment entitling plaintiffs to sixty percent of their total damages.

Defendant appeals, claiming that there is no duty on behalf of a manufacturer, whether plaintiffs' complaint sounds in negligence, warranty or strict products liability, to warn of differentiation between its product and those of its competitors. Defendant also contends that the court's finding of ambiguity in one portion of the instructions is without support in the evidence. Plaintiffs cross-appealed, claiming first that ...