Russell v. G. A. F. Corp., 79-186.

• Decision Date: 15 October 1980
• Docket Number: No. 79-186.,79-186.
• Citation: 422 A.2d 989
• Parties: Douglas M. RUSSELL et al., Appellants, v. G. A. F. CORPORATION, and Stanley Gleit, Individually, John Olenek, Individually and t/a Gleit, Olenek and Associates, Engineers, Appellees.
• Court: D.C. Court of Appeals

422 A.2d 989

Douglas M. RUSSELL et al., Appellants, v. G. A. F. CORPORATION, and Stanley Gleit, Individually, John Olenek, Individually and t/a Gleit, Olenek and Associates, Engineers, Appellees.

No. 79-186.

District of Columbia Court of Appeals.

Argued February 26, 1980.

Decided October 15, 1980.

Aaron M. Levine, Washington, D. C., with whom James E. Turner, Washington, D. C., was on the brief, for appellants. Eric M. May, Washington, D. C., entered an appearance for appellants.

Laurence T. Scott, Washington, D. C., for appellee G.A.F. Corp.

George C. Courtot, Jr., Washington, D. C., entered an appearance for appellees Stanley Gleit and John Olenek.

Before GALLAGHER, MACK and FERREN, Associate Judges.

PER CURIAM:

Appellants Douglas M. Russell, a carpenter who fell and broke his leg when a sheet of corrugated asbestos cement shattered during installation, and his wife, Wanda Russell, sued the manufacturer of the material (G.A.F.) and the engineers of the project (Gleit and Olenek) for damages resulting from their failure to warn that the material should not be stepped on. At the close of plaintiff's evidence, the trial court granted defendants' motions for a direct verdict. We reverse.

I

In essence, appellants (hereafter "appellant," referring to Douglas M. Russell) contend the material looked safe but was not; therefore, a warning was needed. According to appellant, the engineers who designed the project had a duty to place a warning on the plans they sent to the construction site, and the manufacturer had a duty to label each sheet "no step."

The accident occurred as appellant stepped down three or four feet from one level of an interior ceiling being installed in the Lincoln Memorial to a lower portion of the ceiling, onto a sheet of the corrugated asbestos that was lying across steel I-beams. Appellant testified that the asbestos-cement sheets, approximately 4 by 8 feet, 3/8 inch thick, and weighing well over 100 pounds, appeared to be safe to walk on. He also described a simple test performed at the construction site in which the construction foreman directed that a sheet be placed across steel I-beams, and had various workers, including appellant, walk on it. It held their weight. A co-worker testified that he regularly walked on the sheets as he installed them in the ceiling.

Appellee G.A.F. (the manufacturer) published a booklet to be distributed with the material stating that planks or chicken ladders (grids which distribute stress) should be used in all roofing work. The booklet was placed in each bundle of sheets as it left the manufacturer for shipment to a distributor. The distributor in this case testified that he handled the sheets with care, and that in normal practice the informational booklet would go along with the material that he sold. The sheets here were brought by Curtin & Johnson, the building contractor and appellant's employer.

In a deposition, a G.A.F. salesman stated that several persons at G.A.F. were aware that the corrugated asbestos cement commonly was used in the field for roofing without the recommended planks or chicken ladders. He and the distributor were aware of other types of building materials, used in roofing, which were individually labelled "no step" or the like.

Appellant presented a safety expert, who had reviewed the manufacturer's information on the material and the drawings and specifications of the project. In response to a long hypothetical question, the expert stated that in his opinion, the manufacturer did not comport with safe practices and procedures. He said a warning was needed because the material was very brittle, and if there were a small crack or flaw in it, or if it got wet, its strength would be seriously affected, although the change would not be obvious. He further stated that a warning given through a pamphlet stuck in a pile of sheets was insufficient because it could easily be lost at the construction site; thus, safe practice required a warning on each panel.

With respect to appellees Gleit and Olenek, who designed the project, the expert pointed out a national building code (BOCA) section which says the architect has a responsibility to identify in his drawings all specified prefabricated materials and their physical properties. He opined that the project designers should have transferred all information in the manufacturer's instructions about the treatment and installation of the material to the drawings or to the project specifications. Appellee Gleit testified he was familiar with the brochure's caution that planks or chicken ladders should be used on roofing work, but he did not communicate the warning to anyone else because he did not think he was the one responsible for warning the workers.

II

A. Appellant labelled his complaint against the design engineers as a negligence claim, and against G.A.F. as a claim based on both negligence and strict liability in tort. A plaintiff may limit the claim to negligence in failing to warn about foreseeable harm from a product, see Burch v. Amsterdam Corporation, D.C.App., 366 A.2d 1079, 1086 (1976), or claim strict liability for injury derived from the same failure. See Restatement (Second) of Torts § 402A, Comment j (1965). In either case, however, the duty is the same: ordinary care. See Basko v. Sterling Drug, Inc., 416 F.2d 417, 426 (2d Cir. 1969) (Restatement, supra § 402A, Comment k, adopting the ordinary negligence standard of duty to warn). More specifically, whether a manufacturer can be held strictly liable for failure to warn, or held liable only for negligence, the threshold question whether there has been a "failure to warn" (triggering potential liability) is judged by the following standard of care:

The seller or manufacturer of a product whose use could result in foreseeable harm has a duty to give a warning which adequately advises the user of attendant risks and which provides specific directions for safe use. [Burch v. Amsterdam Corp., supra at 1086 (emphasis in original).] [^*]

The trial court did not follow this standard but mistakenly added an element of "defectiveness" to the Burch test. One of the grounds for granting the directed verdict was the absence of evidence that the sheet was defective when it left G.A. F.'s hands. Of course, there must be a danger to warn about. See Beier v. International Harvester Co., 287 Minn. 400, 402, 178 N.W.2d 618, 620 (1970) (insufficient evidence to show danger of which defendant had a duty to warn in that it was impossible for bolts to become loose while outer nuts were tight). Evidence of a defect is unnecessary, however. A product can be perfectly made and still require directions or warnings on proper use in order to be safe. See Biller v. Allis Chalmers Manufacturing Co., 34 Ill.App.2d 47, 180 N.E.2d 46 (1962) (manufacturer owed duty to warn of latent limitations of even a perfectly made tractor).

B. In deciding whether a directed verdict was properly granted here, we must view the evidence in its aspect most favorable to the appellant, granting appellant all reasonable inferences. Corley v. B P Oil Corp., D.C.App., 402 A.2d 1258, 1263 (1979); St. Paul Fire & Marine Insurance Co. v. James G. Davis Construction Corp., D.C. App., 350 A.2d 751, 752 (1976); Gaither v. District of Columbia, D.C.App., 333 A.2d 57, 59 (1975).

We conclude the evidence here was sufficient to support an inference that G.A.F. knew or should have known of a danger sufficiently serious to require a warning. The safety expert testified that the material could be dangerous when used in roofing work without planks or chicken ladders because the sheets were brittle and would not support a person's weight if a hairline crack developed. The material also would be weakened if wet. Even if a sheet were in perfect condition, the expert concluded (using the manufacturer's own data) that a sheet would support only 365 pounds. If a potential construction worker weighed 240 pounds, the resulting safety factor would be only 1.5, whereas accepted practice required a safety factor of 4.

In addition to the existence of a danger which creates a duty to warn, however, plaintiff must show that the manufacturer actually failed to warn. The trial court concluded that the warning G.A.F. gave through its brochure was sufficient as a matter of law. We disagree and find that the adequacy of the warning was put in issue by appellant's evidence. See Burch v. Amsterdam Corp., supra, at 1086-87 (sufficiency of a particular warning is ordinarily a jury question).

The question here is whether a warning is adequate when it is conveyed by a manufacturer to a Middleman, but fails to reach the person at risk. The Restatement (Second) of Torts § 388, Comment n (1965) contains a helpful framework for the analysis of this question.

Giving to the third person through whom the chattel is supplied all the information necessary to its safe use is not in all cases sufficient to relieve the supplier from liability. It is merely a means by which this information is to be conveyed to those who are to use the chattel. The question remains whether this method gives a reasonable assurance that the information will reach those whose safety depends upon their having it. [Id. at 308]

The Restatement suggests a balancing of four factors to determine if the warning given to the middleman is reasonably certain to reach those in the field: (1) the risk of injury; (2) the seriousness of harm which might result; (3) the practicability and expense of placing a warning directly on the product; and (4) the reliability of the middleman as a conduit of the warning. Id.

We have already stated that the danger of an injury was in issue. The risk of injury as elucidated by the safety expert may not have been great, but a jury could reasonably have concluded that the gravity of an accident resulting from falling through a roof would have been great. The overall magnitude of the risk is determined...