Reddick v. White Consolidated Industries, Inc.

• Decision Date: 24 February 1969
• Docket Number: No. 1374-1376,1383,1385.,1374-1376
• Citation: 295 F. Supp. 243
• Parties: Kirby Reid REDDICK and Marjorie Reddick Oglesby, Petitioners, v. WHITE CONSOLIDATED INDUSTRIES, INC., Respondent.
• Court: U.S. District Court — Southern District of Georgia

295 F. Supp. 243

Kirby Reid REDDICK and Marjorie Reddick Oglesby, Petitioners, v. WHITE CONSOLIDATED INDUSTRIES, INC., Respondent.

Nos. 1374-1376, 1383, 1385.

United States District Court S. D. Georgia, Augusta Division.

December 13, 1968.

Supplemental Opinion and Order February 24, 1969.

Tom M. Odom and Florence H. Dendy, Millen, Ga.; George W. Fryhofer, Waynesboro, Ga. for plaintiffs.

A. Rowland Dye, Augusta, Ga. for defendant.

ORDER OF COURT ON MOTIONS TO DISMISS

LAWRENCE, District Judge.

These cases grow out of asphyxiations caused by an improperly installed vent connected with a gas heater manufactured by the defendant. Motions to dismiss are addressed to each of the four counts.

The arguments center on the first negligence count, Count I, in which it is alleged that the installer (an independent contractor) read and followed the manufacturer's manual of instructions which came with the packaged appliance. It is claimed that the instructions were wanting both as to completeness and as to necessary warnings. Plaintiff insists that the manual should have embodied recommended instructions of the American Gas Association in respect to installation of gas appliances and piping. Among these are a warning against horizontal runs of pipe under a house greater than 75% of the height of pipe on the outside of the house and use of uninsulated pipe where same is exposed to the cold.

The night after the installation was extremely cold. The complaint states that that fact combined with the improper downward pitch of the vent from the appliance through the floor, the lack of pipe insulation and the long horizontal run of the piping under the house produced a "scientific phenomenon" known as "plugging". So installed, when outside temperatures drop the vent will "plug" with the result that the heater burns improperly and produces carbon monoxide.

Defendant moves to dismiss the actions on the ground that the installation and Operating Instructions were adequate. Its counsel argue that the proximate cause of the asphyxiation was the independent act of the installer in pitching the vent downward at the heater. They point out that the manual cautions against use of "elbows" and that it states that "horizontal runs of flue pipe should be pitched upwards toward the chimney at least ¼ inch per foot of horizontal run".¹ As to the adequacy of the instructions defendant says that it is a universal law of physics that "heat rises" and that the Court should take judicial cognizance of this truth in ruling that no specific caution was necessary concerning vertical downward pitch of the venting.

To all this plaintiff replies that the manual nowhere instructs the installer not to go downward vertically through the floor and then run horizontally on the upward angle specified. Plaintiffs' counsel point out that judicial knowledge does not extend to facts which are not included within universal common knowledge and experience. Rowe v. State, 15 Ga.App. 660, 84 S.E. 132.

When any carbon-containing fuel, such as manufactured or natural gas, is burned in the absence of sufficient oxygen or whenever, for any reason, combustion is incomplete, carbon monoxide will be formed. Odorless, colorless and tasteless, it is the perfect asphyxiant, a subtle, lethal gas that enters the lungs and excludes oxygen from the body by virtue of its combination with hemoglobin. "Ordinary care as to a thing which is subtle, violent and dangerous, such as gas and electricity, may require a greater degree of caution than does an agency which lacks these dangerous properties." Womack v. Central Georgia Gas Company, 85 Ga.App. 799, 803, 70 S.E.2d 398, 403.

"Where a manufacturer of a chattel undertakes by printed instructions to advise of the proper use to be made of the chattel, he assumes the responsibility of giving accurate and adequate instructions with respect to dangers inherent in its use in some other manner." Hartmon v. National Heater Company (1953), 240 Minn. 264, 60 N.W. 2d 804. See also Lovejoy v. Minneapolis-Moline Power Implement Co. (1956), 248 Minn. 319, 79 N.W.2d 688. A supplier of a chattel is under the duty to inform those expected to use the equipment of facts which make it likely to become dangerous. J. C. Lewis Motor Co., Inc. v. Williams, 85 Ga.App. 538, 69 S.E.2d 816; Restatement of the Law, Torts 2d, § 388, p. 300f.

It is, of course, quite conceivable that the formation of lethal gas was proximately and solely caused by the original downward vertical run of the piping and that such method of installation ignored the simple law of physics that hot air is lighter than air of cooler temperature and therefore rises. Under the circumstances, a jury might conclude that no explicit warning or instruction was required and that the installer's breach of so plain a physical law was an intervening cause relieving the defendant of liability for any shortcomings in its manual.

However, the complaint not only indicates that this is a deceptive simplification of complicated matters but also tells me that the vertical downward run of the piping was only a concurrent or contributing cause to the tragedy on the early morning of January 17, 1968. To me the danger is not so obvious as to obviate a warning by the manufacturer or fuller instructions.

Assuming the allegations of the complaint should be proved, a jury could find that the instructions were incomplete or inadequate and that such dereliction amounted to want of the degree of care required of the manufacturer. It could also find that it was negligence not to give a specific warning as to the importance of venting as related to the possibility of carbon monoxide being produced in the heater.² The jury must determine whether such omissions were causally connected with the fatalities. The motion to dismiss Count I is overruled.

Count IV

I will comment first upon the motion to dismiss as to Count IV. This Count adopts the negligence allegations of Count I and adds allegations as to lack of due care in "designing" the manual by not including adequate warnings and instructions and alleges that the appliance constituted a dangerous instrumentality which was not reasonably suited for the purpose intended.

I cannot find any real difference between the two negligence counts. Paragraphs 28-31 of the first Count (except for the allegation as to being "reasonably suited") seem to cover the added subject matter of Count IV. The difference is about the same as that between seraphim and cherubim. Certainly it is insufficient to warrant my letting both counts go to the jury. I will not dismiss Count IV but will strike it as surplusage and as a mere elaboration of Count I. However, if counsel for plaintiff feel that there is a difference of substance I will entertain an amendment adding the matter to Count I. However, I will not permit undertones of implied warranty in a negligence count.

Counts II and III

Count II is based on alleged breach of an implied warranty that the vented gas heater is safe if installed according to the manual and Count III on alleged breach of express warranty by defendant that the heater, for one year, is warranted "to be free from defects in material and workmanship under normal use and service".

In dealing with warranties, express and implied (Sec. 109A-2—313 and 315) the Commercial Code speaks of "goods" and (Sec. 109A-2—105) defines them in terms of physicality. I question whether the sale of a gas appliance includes the accompanying manual of instructions. I doubt also whether a defective manual can be the subject of an implied warranty. It is true that as defined in the Commercial Code an express warranty is an affirmation which relates to the goods and which "becomes part of the basis of the bargain". However, I do not think that Sec. 109A-2—313 goes beyond the physical goods and includes freedom from defect of the manual. Nor do I conceive that the sale of the vented heater carried any implied warranty as to fitness for use of the manual. Incidentally, the express warranty excludes "improper installation".

My feeling is that the sufficiency of instructions or the adequateness of warnings are necessarily matters of negligence under general tort law and are not the subject of warranty, express or implied. However, I am not foreclosing argument on Counts II and III. There are objections pending as to interrogatories and the warranty issues can be argued at the same time, orally or by brief.

OBJECTIONS TO INTERROGATORIES

As to the objections to certain interrogatories, I am aware of the line of decisions to the effect that evidence of post-injury precautionary measures is not admissible and is contrary to public policy. See Flint River Cotton Mills v. Colley, 71 Ga.App. 288, 290, 30 S.E.2d 426; Lacy v. City of Atlanta, 110 Ga. App. 814(4), 140 S.E.2d 144. An exception to this general rule occurs where the subsequent precautionary acts of defendant are relevant to some other issue than that of defendant's liability and negligence. Cf. Great Cosmopolitan Shows v. Petty, 7 Ga.App. 236(2), 66 S.E. 624.

I have one other observation concerning the interrogatories. Does Rule 33 permit me to sustain objections because of the irrelevance of the answers at the trial under circumstances where such information may be germane to the subject matter of the litigation as distinguished from the issues? In this connection see Dimenco v. Pennsylvania R. Co., D.C.Del. 1956, 19 F.R.D. 499; Bogaev v. Murta, Appleton Co., D.C.Pa.1955, 18 F.R.D. 437; Bergen Rambler, Inc. v. American Motor Sales Corp., D.C.N.J.1962, 30 F.R. D. 334. On the other hand, where such an objection is made on a motion to produce it has been held that the changes made in a machine after the injury are not a proper subject of discovery. Hammill v. Hyster Company, D.C.Wis.1967, 42 F.R.D. 173, 174.

SUPPLEMENTAL OPINION AND ORDER

Count IV

On further argument of this case, counsel for plaintiff contend that...