Peterson v. Safway Steel Scaffolds Co., 15340

• Decision Date: 18 February 1987
• Docket Number: No. 15340,15340
• Citation: 55 USLW 2524,400 N.W.2d 909
• Parties: , Prod.Liab.Rep.(CCH)P 11,313 Garold PETERSON, Plaintiff and Appellant, v. SAFWAY STEEL SCAFFOLDS COMPANY of South Dakota and Hi-Lo Powered Scaffolding, Inc., Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 909

400 N.W.2d 909

55 USLW 2524, Prod.Liab.Rep.(CCH)P 11,313

Garold PETERSON, Plaintiff and Appellant, v. SAFWAY STEEL SCAFFOLDS COMPANY of South Dakota and Hi-Lo

Powered Scaffolding, Inc., Defendants and

Appellees.

No. 15340.

Supreme Court of South Dakota.

Feb. 18, 1987.

Bradley G. Bonynge, Sioux Falls, for plaintiff and appellant.

Arlo D. Sommervold of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, for defendant and appellee Safway Steel Scaffolds Co. of South Dakota.

Danforth, Danforth & Johnson, Sioux Falls, for defendant and appellee Hi-Lo Powered Scaffolding, Inc.

WUEST, Chief Justice.

This is an appeal from the trial court's grant of summary judgment against the plaintiff in a personal injury case. He appeals. We reverse.

Appellant, Garold Peterson (Peterson), was an employee of Gage Brothers Concrete Products in Sioux Falls, South Dakota. On September 28, 1983 Peterson and a co-worker, Warren Kramer (Kramer), were washing and inspecting concrete panels on a Citibank building utilizing scaffolding equipment leased from Safway Steel Scaffolds Company (Safway) and manufactured by Hi-Lo Powered Scaffolding, Inc. (Hi-Lo), defendants and appellees.

The scaffold equipment and four roof hooks were on the job site when appellant and Kramer arrived the morning of the accident. The two men set up the equipment employing the roof hooks. Upon raising the stage upward, however, the men discovered that it was being drawn too close to the side of the building. Kramer, appellant's supervisor, discussed the problem with Fred Gage his supervisor and former safety director of Gage Brothers. Gage decided to go along with Kramer's suggestion to utilize parapet clamps instead of roof hooks since the parapet clamps suspended the cables further away from the side of the building.

Kramer had some prior experience with the parapet clamps and the scaffolding that was being used, but appellant had never worked on scaffolding and had no experience with the equipment. Therefore, Kramer instructed appellant how to rig the clamps so that while appellant moved the clamps on the roof Kramer could move the stage at ground level to begin work on another section of the building. However, Kramer in fact did not know how to properly use the parapet clamp, and both he and the appellant rigged the clamps to the top of the parapet wall in a backwards position. The end of the clamp that was designed to absorb the weight of the scaffolding faced inward instead of outward, and the end of the clamp that was supposed to face inward to receive a tieback cable or anchoring line was used to suspend the scaffolding. While Kramer had used the clamps in this manner on several other occasions, a tieback cable had always been attached to the clamps as required. On this occasion, a tieback was not used because there were no anchor points on the roof. Moreover, since the parapet wall was not tall enough or thick enough to properly accept the clamp, the workers improvised by placing blocks of wood against the wall and tightening the clamps against them.

Kramer rented the parapet clamps from Safway, but he was not given the safety, operating, maintenance and parts manual. Safway had allegedly given such a manual to a Gage Brothers employee previously when the other scaffolding equipment was rented and delivered to the job site. However, any manual that may have been given to the employee was apparently not left at the job site with the other equipment, but may have been given to Fred Gage.

As Kramer and the appellant raised the scaffolding for the third time, the appellant looked up and noticed that the clamp on his end was bending inwards. He shouted a warning to Kramer and reached for the motor to lower the scaffolding, but before he could do so the clamp came off the wall and the platform fell. Kramer and the appellant fell approximately five feet until they were caught by their safety lines. Appellant's arm was injured when it either became caught in the safety rope or was struck by a piece of equipment.

Appellant brought suit against Safway under strict liability, negligence and warranty theories. Safway filed a third party complaint against Hi-Lo seeking indemnity for any recovery against it by the appellant and requesting a determination of the relative degrees of fault as between Safway and Hi-Lo. Appellant later joined Hi-Lo with Safway as a defendant by an amended complaint. Both defendants moved for summary judgment, which was granted.

Appellant states in his brief that while he raises only the strict liability issue against both defendants, he does not mean to imply that he waives an appeal of the warranty and negligence claims. However, having failed to raise any argument or authority in support of the warranty and negligence claims, we hold he has abandoned any appeal on those issues. "SDCL 15-26A-60(4) and (6) require that appellant's brief contain a concise statement of the legal issues, related argument and citation of authorities supporting the argument ... Appellant's failure to comply with SDCL 15-26A-60 is a waiver of all issues not raised, briefed and argued." Graham v. State, 328 N.W.2d 254 (S.D.1982). We review the strict liability issues.

South Dakota adopted the rule of strict liability in tort as expressed in RESTATEMENT (SECOND) TORTS Sec. 402A (1965), in Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973). See Zacher v. Budd, 396 N.W.2d 122 (S.D.1986); Hamaker v. Kenwel-Jackson Machine, Inc., 387 N.W.2d 515 (S.D.1986).

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer * * *.

REST.2d, supra, Sec. 402A(1). Strict liability requires that the product be defective and unreasonably dangerous. Zacher, supra. "The rule in this section applies to any person engaged in the business of selling products for use or consumption. It therefore applies to any manufacturer of such a product, to any wholesaler or retail dealer or distributor ..." REST.2d, supra, comment f.

Three broad classes of defects have emerged: manufacturing defects where individual products within a product line are improperly constructed, design defects involving the entire product line, and defect by failure to properly warn or instruct users of a product where such failure renders the product hazardous. 2 Frumer & Friedman, Products Liability Sec. 3.03[f][i] (1986). The warning issue is important. The warnings contained on a product, as well as warnings that are missing, are just as important in strict liability as in negligence and warranty. This is because an otherwise properly manufactured and well-designed product may be found to be defective without an adequate warning. Frumer, supra, Sec. 3.03[f][vi].

In strict liability the plaintiff need not prove scienter of the defendant, i.e., that defendant knew or should have known of the harmful character of the product without a warning. Lancaster Silo & Block Co. v. Northern Propane Gas Co., 75 A.D.2d 55, 427 N.Y.S.2d 1009 (1980). Liability arises from selling any product in a defective condition unreasonably dangerous to the user or consumer. It is the unreasonableness of the condition of the product, not of the conduct of the defendant, that creates liability. Jackson v. Coast Paint and Lacquer Co., 499 F.2d 809 (9th Cir.1974).

"In a products liability action based on negligence, the proof must show that the manufactuer or seller failed to exercise reasonable care to inform those expected to use the product of its condition or the facts which make it likely to be dangerous." Jahnig v. Coisman, 283 N.W.2d 557, 560 (S.D.1979); RESTATEMENT (SECOND) OF TORTS Sec. 388 (1965). "Strict liability in products liability cases, on the otherhand, relieves the plaintiff of the burden of proving negligence by the manufacturer." Jahnig, supra; Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973); REST.2d, Sec. 402A, Comment a. The issue under strict liability is whether the manufacturer's failure to adequately warn rendered the product unreasonably dangerous without regard to the reasonableness of the failure to warn judged by negligence standards. Hamilton v. Hardy, 37 Colo.App. 375, 549 P.2d 1099 (1976). "For purposes of the strict tort claims, but not for purposes of the negligence claim, knowledge of the potential risk is imputed to the manufacturer. The manufacturer cannot defend, as he could in a negligence case, on grounds that, at the time of production, he neither knew nor could have known of the risk." R. Dugan, Reflections on South Dakota's Trifucated Law of Products Liability, 28 S.D.L.Rev. 259 (1983); See Beshada v. Johns-Manville Products Corp., 90 N.J. 191, 447 A.2d 539 (1981); Freund v. Cellofilm Properties Inc., 87 N.J. 229, 432 A.2d 925, 929-31 (1981). Whether a manufactuer knew or should have known of a particular risk involves technical issues which do not easily admit to evidentiary proof and which lie beyond the comprehension of most jurors. By placing the risk of ignorance upon the manufactuer, the rule advances the policy of enterprise liability underlying strict tort liability.

Dugan, supra; See, e.g., GRYC v. Dayton-Hudson Corp., 297 N.W.2d 727 (Minn.1980); REST.2d, Sec. 402A, supra, Comment c.

It provides the manufacturer with an incentive to conduct the research necessary to provide safer design and warnings, matters uniquely with in his control. Through insurance and increased product prices, this approach shifts the cost of unknowable and unpreventable risks from the injured party to the consuming public. On the other hand, in that risk-utility-cost considerations remain relevant for the manufacturers ultimate liability, the rule accords with the sentiment against insurer-like liability for manufacturers. Finally, the distinction overcomes the anomaly that, as applied without regard to the distinction,...