Pust v. Union Supply Co.

• Decision Date: 16 December 1976
• Docket Number: No. 75--384,75--384
• Citation: 561 P.2d 355,38 Colo.App. 435
• Parties: , 23 UCC Rep.Serv. 600 Larry E. PUST, Plaintiff-Appellant, Cross-Appellee, v. The UNION SUPPLY COMPANY, a Colorado Corporation, Defendant-Appellee, Third-Party Plaintiff, Cross-Appellant, v. HOLLEY SUGAR CORPORATION, a New York Corporation, Third-Party Defendant- Appellee, Cross-Appellee, Cross-Appellant. . III
• Court: Colorado Court of Appeals

Page 355

561 P.2d 355

38 Colo.App. 435, 23 UCC Rep.Serv. 600

Larry E. PUST, Plaintiff-Appellant, Cross-Appellee, v. The UNION SUPPLY COMPANY, a Colorado Corporation, Defendant-Appellee, Third-Party Plaintiff, Cross-Appellant, v. HOLLEY SUGAR CORPORATION, a New York Corporation,

Third-Party Defendant- Appellee, Cross-Appellee,

Cross-Appellant.

No. 75--384.

Colorado Court of Appeals, Div. III.

Dec. 16, 1976.

Rehearing Denied Jan. 13, 1977.

Certiorari Granted March 14, 1977.

Selected for Official Publication.

Carrigan & Bragg, P.C., Douglas E. Bragg, Denver, for plaintiff-appellant, cross-appellee.

Yegge, Hall & Evans, John R. Trigg, Philip E. Lowery, Denver, for defendant-appellee, third party plaintiff, cross-appellant.

Zarlengo, Mott & Zarlengo, John C. Mott, Denver, for third party defendant-appellee, cross-appellee, cross-appellant.

STERNBERG, Judge.

In this products liability case, the trial court, at the close of all the evidence, dismissed the complaint which was based on strict liability and implied warranty. The plaintiff Larry Pust appeals contending that the issues should have been submitted to the jury. Defendant Union Supply Company cross-appeals, alleging error in certain evidentiary rulings, as well as the dismissal of its third-party complaint for indemnity against Holly Sugar Corporation. ¹ While we agree with the trial court's evidentiary rulings, we conclude that the court erred both in dismissing the complaint and the third-party complaint and we therefore reverse the judgments.

Pust was employed by Holly in a sugar beet refining plant in Sidney, Montana. He worked in an area at the plant near a conveyor belt which was propelled by a motor driven roller, and which carried pulp for processing. There was evidence that Pust's job required him to reach under the conveyor belt with a flat metal pole to scrape away loose pulp. While performing this task, his arm was caught, drawn under the roller, and nearly severed from his body at the shoulder.

Pust's injuries resulted in a amputation of his arm and part of his shoulder; however, a contributing cause to the amputation was the negligence of Pust's treating physician. A malpractice suit against that physician was settled for $67,000, and a covenant not to sue was executed. Pust also recovered approximately $25,000 from Holly under the Montana Workmen's Compensation law.

The details of design and manufacture of the conveyor system are these: The engineering department of Holly prepared bid drawings and sent them to potential manufacturers. Defendant Union, the low bidder, prepared its own drawings of the conveyor system and sent them back to Holly. Union's plans made certain changes in the component parts and added mechanical engineering specifications. Union had portions of the system built by various subcontractors, partially assembled the conveyor, and shipped it in sections to Holly. Holly provided the motor, conveyor belting, and supporting structure and assembled the entire system in its plant.

I. STRICT LIABILITY

Colorado has adopted the doctrine of strict liability as stated in Restatement (Second) of Torts § 402A. Hiigel v. General Motors Corp., Colo., 544 P.2d 983 (1975); Bradford v. Bendix-Westinghouse Auto Air Brake Co., 33 Colo.App. 99, 517 P.2d 406 (1973). Section 402A provides:

'(1) 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 physicial harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.'

At the trial Pust Produced evidence, some of which Union contested, that (1) there is a clear, well recognized danger in the 'nip point' portion of the conveyor system, that being the area under the belt and near the spinning roller where items are subject to being drawn into the conveyor system, (2) this hazard could be eliminated by installing an inexpensive and easily manufactured guard, which is used on many conveyor systems, and (3) in the absence of guards, at a minimum, a warning should be placed on the conveyor indicating the hazard involved in the nip point. Thus, if the strict liability doctrine applies to manufacturers of component parts, as well as to manufacturers of finished products, there was an evidentiary foundation requiring submission of the case to the jury. In order to determine whether strict liability does so apply, the principal issue in this appeal, we must analyze a manufacturer's duty to provide safety devices and warnings.

A. Failure to Provide the Guards

Pust contends that Union's failure to provide guards may constitute a defect under § 402A. We agree.

It is the law in Colorado that a properly manufactured product is defective if its Design is unreasonably dangerous. Bradford v. Bendix-Westinghouse Auto Air Brake Co., supra. Union contends, however, that Holly designed the conveyor and that Union is therefore not liable for failing to design and specify guards. Union asserts that manufacturers of defective products, who leave the design or assembly to others, are not to be held responsible for any injury caused by such product.

We see no reason to distinguish between manufacturers or sellers and designers. Section 402A makes no such distinction. Comment f. thereto provides:

'The rule stated 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 product, to any wholesale or retail dealer or distributor . . ..' (emphasis supplied)

Since it merely manufactured what Holly asked it to, Union argues that it could not be expected to add guards when none were requested. This suggests that Union was relieved of any duty it may have had under 402A if it justifiably believed that the purchaser, Holly, would provide such safety devices. We are not persuaded by this argument.

In Bexiga v. Havir Manufacturing Corp., 60 N.J. 402, 290 A.2d 281, 285 (1972), the Supreme Court of New Jersey, on facts similar to those here, held:

'Where a manufacturer places into the channels of trade a finished product which can be put to use and which should be provided with safety devices because without such it creates an unreasonable risk of harm, and where such safety devices can feasibly be installed by the manufacturer, the fact that he expects that someone else will install such devices should not immunize him. The public interest in assuring that safety devices are installed demands more from the manufacturer than to permit him to leave such a critical phase of his manufacturing process to the haphazard conduct of the ultimate purchaser. The only way to be certain that such devices will be installed on all machines--which clearly the public interest requires--is to place the duty on the manufacturer where it is feasible for him to do so.'

See also Vandermark v. Ford Motor Co., 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168 (1964).

The public policy reasons for holding installation of safety devices to be a non-delegable duty are compelling. As stated in 402A, Comment c.:

'(T)he justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; . . . that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.'

See Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Scott v. Dreis & Krump Manufacturing Co., 26 Ill.App.3d 971, 326 N.E.2d 74 (1975); Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 105 Cal.Rptr. 890 (1973); Ford Motor Co. v. Matthews, 291 So.2d 169 (Miss.1974); Rhoads v. Service Machine Co., 329 F.Supp. 367 (E.D.Ark.1971); Wheeler v. Standard Tool & Manufacturing Co., 497 F.2d 897 (2d Cir. 1974); and Note, 86 Harv.L.Rev. 923 (1973).

Union contends that the Bexiga rule applies only to finished products and therefore is inapplicable here because the conveyor, as delivered, was not a finished product, but rather consisted of component parts to be assembled by Holly. Indeed, the trial court dismissed Pust's suit based primarily on this argument. This was error.

The cases of Jordan v. Whiting Corp., 49 Mich.App. 481, 212 N.W.2d 324 (1973), and Lockett v. General Electric Co., 376 F.Supp. 1201 (E.D.Pa.1974), Aff'd, 511 F.2d 1394 (3d Cir. 1975), relied upon by Union did not arise under § 402A and are factually distinguishable. Also, in a caveat to § 402A, it is stated:

'The Institute expresses no opinion as to whether the rules stated in this Section may not apply

(1) to harm to persons other than users or consumers;

(2) to the seller of a product expected to be processed or otherwise substantially changed before it reaches the user or consumer; or

(3) To the seller of a component part of a product to be assembled.' (emphasis supplied)

However, 402A, Comment p. states:

'It seems reasonably clear that the mere fact that the product is to undergo processing, or other substantial change, will not in all cases relieve the seller of liability under the rule stated in this Section.'

And, in Hiigel v. General Motors Corp., supra, the court stated:

'(C)omment q under 402A, suggests . . . that where there is no change in the component part itself, but it is merely incorporated into something Larger, the strict liability will be found to carry through to...