Rabon v. Automatic Fasteners, Inc.

• Decision Date: 12 April 1982
• Docket Number: No. 79-2994,79-2994
• Citation: 672 F.2d 1231
• Parties: 10 Fed. R. Evid. Serv. 851, 1982 O.S.H.D. (CCH) P 26,018 David A. RABON, Plaintiff-Appellee, v. AUTOMATIC FASTENERS, INC., et al., Defendants, AUTOMATIC FASTENERS, INC., and Omark Industries, Inc., Defendants-Appellees, v. HARDAWAY CONSTRUCTION COMPANY, INC., Third Party Defendant-Appellant. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1231

672 F.2d 1231

10 Fed. R. Evid. Serv. 851, 1982 O.S.H.D.

(CCH) P 26,018

David A. RABON, Plaintiff-Appellee, v. AUTOMATIC FASTENERS, INC., et al., Defendants, AUTOMATIC FASTENERS, INC., and Omark Industries, Inc., Defendants-Appellees, v. HARDAWAY CONSTRUCTION COMPANY, INC., Third Party Defendant-Appellant.

No. 79-2994.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

April 12, 1982.

John E. Houser, Jacksonville, Fla., for third party defendant-appellant.

Marks, Gray, Conroy & Gibb, John R. Saalfield, Jacksonville, Fla., for Automatic Fasteners, Inc.

Charles Cook Howell, III, Jacksonville, Fla., for Omark Industries, Inc.

W. C. Gentry, Jacksonville, Fla., for David A. Rabon.

Appeal from the United States District Court for the Middle District of Florida.

Before TUTTLE, TJOFLAT and KRAVITCH, Circuit Judges.

TJOFLAT, Circuit Judge:

In the course of his employment for Hardaway Construction Company (Hardaway), David Rabon was struck above the left eye by a 21/2 inch nail which was shot from a powder actuated stud gun by a co-employee. Rabon brought a diversity action against Omark Industries, Inc. (Omark), the manufacturer of the stud gun, and Automatic Fasteners, Inc. (Automatic), the distributor of the stud gun. ¹ Omark and Automatic brought a third party indemnity action against Hardaway. The jury found that Omark and Automatic were liable to Rabon for $200,000 and that Omark and Automatic were entitled to complete indemnification from Hardaway. The district court entered judgment accordingly. Hardaway appeals the judgment for indemnity on several grounds. We affirm.

I.

Hardaway argues first that under Florida law ² it cannot be required to indemnify Omark and Automatic and that the district court therefore should have granted its motion to dismiss the third party complaint. ³ We disagree. On the facts as the jury was authorized to find them, Florida indemnity law would permit a judgment against Hardaway.

Rabon was employed as a carpenter's helper by Hardaway, the general contractor for a portion of Amelia Island Plantation near Jacksonville, Florida. Hardaway purchased Omark powder actuated stud guns from Omark's distributor, Automatic. A stud gun is used to drive nails into concrete and other hard surfaces, and operates on the order of a .22 pistol, using a .22 cartridge to propel the fastener through the barrel and into the desired surface.

Through Automatic, Omark undertook to train and instruct users of its powder actuated tools by making a company representative available on the job site to train personnel who might use them. Thus, when Automatic's salesman, Wiggins, first sold stud guns to Hardaway, he informed Hardaway that only trained operators should use them and that he would be available to instruct Hardaway's employees in their use. Hardaway agreed to make its employees available to Wiggins for training, and assumed responsibility to identify, locate, and organize the workers Wiggins was to train. Wiggins subsequently visited the construction site regularly and was available to instruct employees as they were hired. Included in the training was the warning that nails should not be fired into concrete less than three inches from its edge.

Carl Jackson went to work for Hardaway in February of 1974 as a carpenter's helper. He had never before used a stud gun and was not asked by Hardaway about his prior experience with the tool. Jackson was issued a stud gun on his first day on the job and at no time received instruction in its use.

On April 15, 1974, Jackson and Rabon were working on a roof at the Amelia Island construction site. Jackson, attempting to secure a board to the edge of the underlying concrete, fired his stud gun into the concrete less than three inches from the edge. The nail went through the board, ricocheted out of the concrete, and traveled upward into Rabon's eye.

Rabon alleged in his complaint that Omark and Automatic were strictly liable because the stud gun was defective by reason of insufficient warning and training in its use, and, alternatively, that Omark and Automatic negligently performed their duty to warn or train users of the stud gun, an inherently dangerous instrumentality. Omark and Automatic denied liability and further answered that if they were liable, it was due not to their independent conduct but to Hardaway's breach of its agreement to make its employees available for instruction in use of the stud gun. Alleging derivative liability for Hardaway's active fault, Omark and Automatic sued Hardaway for indemnity. Hardaway contends that on the stated facts it cannot be liable to the defendants under Florida law.

In Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979), the Supreme Court of Florida faced the question whether a manufacturer sued for breach of warranty may bring a third party action for indemnity against the plaintiff's employer. Edwards, an employee of Houdaille Industries, was killed when a steel cable used in the manufacture of concrete beams broke while being stretched through a beam mold. Edwards' personal representative sued the manufacturer of the steel cable, Florida Wire, for wrongful death, alleging that Florida Wire had breached an implied warranty of fitness by providing a defective cable. Florida Wire filed a third party indemnity action against Houdaille, alleging that if Florida Wire were negligent, its negligence was merely passive, while that of Houdaille was active. Under the traditional Florida test for implied indemnity, Florida Wire's passive negligence would have provided a valid basis for its recovery over.

The trial court granted Houdaille's motion for summary judgment on the third party complaint, concluding that if Florida Wire was liable to Edwards, it was necessarily for breach of warranty or some other wrongdoing which could only be characterized as active negligence. The district court of appeal reversed, holding that a manufacturer of a product is entitled to bring an action in implied indemnity against an employer who has, through active misuse of the product, caused injuries to its employee. On certiorari, the Supreme Court of Florida quashed the decision of the court of appeal and ordered the summary judgment for Houdaille reinstated.

The supreme court held that, "absent a special relationship between the manufacturer and the employer which would make the manufacturer only vicariously, constructively, derivatively, or technically liable for the wrongful acts of the employer, there is no right of indemnification on the part of the manufacturer against the employer." 374 So.2d at 492. The court suggested that the court of appeal had improperly used the traditional indemnity concepts of active and passive negligence by weighing the fault of the manufacturer against the fault of the employer; in the context of implied indemnity, those terms meant nothing more than fault or no fault. Id. at 493. In applying this test, the court held, it is improper to weigh the relative fault of the parties.

Under Houdaille, if the plaintiff's recovery is necessarily based on the culpable conduct of the defendant, then no cause of action for indemnity will lie. ⁴ Furthermore, a third party indemnity action will survive a motion to dismiss only if the third party complaint alleges: (1) that there existed a special duty running from the indemnitor to the indemnitee; (2) that the indemnitor breached that duty; (3) that the plaintiff's injuries resulted from the breach; and (4) that the indemnitee can be held liable for the injuries resulting to the plaintiff from the indemnitor's acts. ⁵

Defendants Omark and Automatic reason that they were held liable to Rabon on one of two theories: either they were strictly liable as the manufacturer and the distributor of a product defective by reason of insufficient warning and instruction, or else they were liable for their breach of the nondelegable duty to warn prospective users of the hazards of the stud gun, a dangerous instrumentality under Florida law. In either case, Omark and Automatic argue, their liability was merely vicarious and was occasioned solely by Hardaway's negligent breach of its special duty to them to make its employees available for training, thus entitling them to indemnity.

If Rabon's sole claim had been in strict liability, the defendants' theory would fail. Florida law regards one who is strictly liable as being at fault, that is, not merely vicariously liable. West v. Caterpillar Tractor Company, Inc., 336 So.2d 80 (Fla.1976); see Chesrow, Howard, and Howard, Fault and Equity: Implied Indemnity after Houdaille, 34 U.Miami L.Rev. 727, 734 (1980). For that reason, one who is strictly liable cannot recover indemnity under Houdaille. Ford Motor Co. v. Hill, 381 So.2d 249 (Fla. 4th Dist.Ct.App.1979).

However, Rabon stated a cause of action not only in strict liability, but also in negligence. The negligence theory was that the stud gun is a dangerous instrumentality, that the manufacturer and the distributor of a dangerous instrumentality have a nondelegable duty to warn those who might use it of its dangerous potentialities, ⁶ and that the defendants negligently performed their duty to warn all the Hardaway employees who used stud guns of their dangers. The defendants urge that if they were liable to Rabon on the negligence theory, their liability was only vicarious and was the product of Hardaway's failure to discharge its obligation to make the workers available for instruction. Thus, they argue, they are entitled to indemnity under Houdaille.

In light of Houdaille, the determinative inquiry is whether a party liable in negligence for its nonperformance of a nondelegable duty may be without fault and merely vicariously liable for a third party's breach of its obligation to discharge or help discharge the first party's duty. Phrasing the question more elegantly, "whether one may delegate a nondelegable duty," a Florida court...