Rekab, Inc. v. Frank Hrubetz & Co.

• Citation: 274 A.2d 107,261 Md. 141
• Decision Date: 03 March 1971
• Docket Number: No. 260,260
• Parties: REKAB, INC. v. FRANK HRUBETZ & COMPANY, Inc.
• Court: Court of Appeals of Maryland

Page 141

261 Md. 141

274 A.2d 107

REKAB, INC. v. FRANK HRUBETZ & COMPANY, Inc.

No. 260.

Court of Appeals of Maryland.

March 3, 1971.

Albert D. Brault, Rockville (Brault, Scott & Brault, Rockville, on the brief), for appellant.

J. Joseph Barse, Washington, D. C., for appellee.

Argued before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY and DIGGES, JJ.

McWILLIAMS, Judge.

George Washington Gale Ferris (1859-1896) was a successful engineer. He is remembered for what was perhaps the least of his accomplishments-the Ferris wheel. We shell be concerned here with a mutation of its countless progeny. This one is known as the 'Hydraulic Paratrooper Ride.' Built by the appellee (Hrubetz) for the appellant (Rekab) it was put into service at Rekab's Glen Echo Amusement Park in the spring of 1963. On 27 July 1964 it collapsed, injuring Delores Hardy who thereafter sued both Hrubetz and Rekab. Her claim was settled by the entry of a consent judgment in the amount of $85,000. In satisfaction of the judgment Hrubetz and Rekab each paid $42,500, each reserving the right to recover that amount from the other. Hrubetz sued Rekab, in August 1968, in the Circuit Court for Montgomery County. Rekab counterclaimed against Hrubetz. The first trial, in October 1969, was abortive-the jury was unable to agree. The second trial took place before Miller, J., without a jury, in June 1970. Hrubetz prevailed and from the ensuing judgment Rekab has appealed. In reciting the facts our use of 'Hrubetz' will indicate either the appellee or its principal stockholder and guiding spirit, Frank Hrubetz. The Baker we shall refer to is the owner and president of the appellant.

Hrubetz, a mechanical engineer, has been manufacturing 'rides' for amusement parks at his plant in Salem, Oregon, since 1940. His products are highly regarded. Essentially they employ a large wheel from the perimeter of which are suspended seats for the patrons. The wheel is then made to rotate around a spindle, also called an axle or shaft. While the carrousel rotates in a horizontal plane and the Ferris wheel in a vertical plane, Hrubetz fastens his spindle to the top of a stout mast, setting the spindle at an angle of 45 degrees. Thus his wheel rotates in a plane halfway between the horizontal and the vertical. He dubbed it the 'Spitfire' and during the succeeding 20 years he made and sold a number of them, one variation of which he called the 'Paratrooper.' Without exception, it seems, they functioned safely and satisfactorily.

In 1962 it occurred to Hrubetz that the 'Paratrooper' might be more exciting and, of course, more profitable if the mast, or boom as he termed it, could be raised and lowered. When lowered the patrons could embark just as if they were boarding a carrousel. The operator could then cause the wheel to rotate and at the same time, using a hydraulic ram, raise the boom to an angle of about 45 degrees. After a minute or two the boom could be lowered and the rotation braked to a stop. The patrons would then disembark and the cycle could begin again. Calling it the 'Hydraulic Paratrooper' he designed and built three of them. One was sold to an amusement park in Rye, New York; another went to Asbury Park, New Jersey. The third was bought by Baker who knew Hrubetz, having done business with him before. The instructions which came with the Hydraulic Paratrooper contained a paragraph cautioning the operator in lowering the boom to 'feather' the hydraulic control value so that the boom would come to rest slowly and gently. In August 1963 Hrubetz visited one of the two parks in the New York area to observe the operation of its Hydraulic Paratrooper. He noticed that when the boom was lowered the hydraulic valve was not being feathered properly by the operator and that as a result the boom came down 'against its lower support with considerable shock' causing undesirable oscillations which placed unforeseen strains on the spindle. After reviewing his original calculations he decided to redesign ¹ the spindle so as to strengthen it. Using the same 1040 carbon steel he increased the diameter of the spindle from 5 1/2 inches to 6 1/2 inches. The corresponding increase in strength was said to be about 90 percent.

On 5 February 1964 Hrubetz sent the following letter to Baker:

'This is to advise that we are shipping via motor freight (from Oregon) a new main spindle shaft and new main bearing for your Paratrooper. We have decided to replace your original main spindle shaft for the reason that we believe that this part is subjected to strains which were not originally considered. We wish to assure you that of the three units with this size shaft in service there has been no trouble, and that this action on our part is purely precautionary.

'We expect to do this work at our expense and have engaged Mr. Fred Cerbini of Coney Island to make the installation. Please advise us when the shipment arrives in order that we may make final arrangements to do the job.

'Trusting this finds you well and with our kindest personal regards, we are,' The same letter was sent to each of the other two purchasers.

The spindle and bearing, total weight 420 pounds, arrived at Glen Echo on 19 February. Emory Crouch, Baker's superintendent, opened the crate, identified the contents, and then placed it in one of the park warehouses. Baker, who lives in Florida, telephoned Crouch and told him to advise Hrubetz of the arrival of the spindle and then put it away 'until Mr. Cerbini showed up.' He made no mention of the letter. Crouch told Hrubetz the spindle had arrived and by a telegram dated 9 March Hrubetz directed Cerbini to go to Glen Echo and install it.

At this point the record becomes somewhat less than clear. Hrubetz said he heard nothing from either Rekab or Cerbini for 'two or three weeks.' Then, he said, he learned from Crouch that Cerbini had not appeared. He called Cerbini who told him 'his wife had been in a terrible automobile accident(,) * * * (and that she) had been in the hospital unconscious for over ten days.' Cerbini said 'she was getting better' and that he would go to Glen Echo 'shortly.' He tried, without success, to get in touch with Cerbini on several occasions thereafter. He called Crouch to find out if Cerbini had turned up. He was told, he said, that 'they had gotten tired of waiting for * * * (Cerbini) and had made the repairs themselves.' It appears to be conceded that Cerbini had no special skill or expertise in this regard and that any competent mechanic could have burned out the 5 1/2 inch spindle and installed the 6 1/2 inch replacement. Hrubetz heard nothing more until after the accident when Crouch called and said 'the main shaft (spindle) broke.' Hrubetz asked if it was 'the new shaft.' Crouch replied 'no, we never put the new one in.'

Crouch said he had asked Hrubetz if he 'could go ahead and have the shaft installed' but that Hrubetz told him 'no one could install it but his factory mechanic.' About a week or ten days before opening date, 1 April, Crouch said he spoke to Hrubetz again and told him that he (Crouch) was 'going to put the ride together' and that if Hrubetz wanted to replace the shaft he would have to 'take the ride down * * * and put it back (at Hrubetz's expense).' Crouch denied he ever told Hrubetz that he had replaced the shaft. Crouch never saw Hrubetz's letter to Baker of 5 February but he said Baker told him the reason for replacing the shaft was 'to strengthen the ride.' Had he seen the letter, he said, he 'would not (have) put the ride together.'

Dr. Carl Zapffe, a consulting metallurgist, whose expertise was not questioned, testified that Hrubetz had miscalculated the safety factor in designing the spindle. Judge Miller found that Hrubetz 'used an improper design' and 'that he failed to take into account the manner in which * * * (the) ride would be operated when put to use.' Hrubetz replaced the spindles on the other two rides (at Rye and Asbury Park); nothing had gone amiss in the operation of either of them however.

The determinative issue, we think, is whether, in the circumstances revealed by this record, Hrubetz's letter of 5 February 1964 together with the delivery of the new spindle and main bearing amounted to a sufficient warning to Rekab of the likelihood of trouble. In 1 Frumer and Friedman, Products Liability, it is said:

'The manufacturer's duty is not just to use reasonable care in designing or manufacturing his product. There may be a duty to warn even though the product is perfectly made. Many cases apply to the rule that the manufacturer is under the duty to adequately warn of foreseeable and latent dangers attendant upon proper and intended use of his product.' § 8.01, p. 143.

'Even if there is no duty to warn at the time of the sale, facts may thereafter come to the attention of the manufacturer which make it imperative that a warning then be given.' § 8.02, p. 148.3.

Rekab insists the warning must be accurate, strong, clear, appropriate and readily noticed, and that any ambiguity in the words used must be construed against the one who chose them. There is no doubt that many decisions have applied all or some of those criteria. ² It seems to us, however, that reasonableness, in the circumstances here present, is the concept to be applied. We said in Levin v. Walter Kidde & Co., Inc., 251 Md. 560, 564, 248 A.2d 151, 154 (1968),

'The duty owed is a reasonable warning, not the best possible warning. The obviousness of the danger to the customer is a factor to be considered in determining the adequacy of the warning.'

We regard as significant the fact that neither Crouch nor Baker were strangers to the amusement park business. Crouch, who was 64 years old at the time of trial, testified that he had been employed at Glen Echo Park continuously since February 1924. He operated rides until 1929 when he became the electrician. In 1953 he was made superintendent. Baker said he 'bought the park in 1955...