Seibel v. Symons Corp.

• Citation: 221 N.W.2d 50
• Decision Date: 26 June 1974
• Docket Number: No. 8928,8928
• Parties: Robert SEIBEL, Plaintiff and Appellee, v. SYMONS CORPORATION, also known as Symons Mfg. Co., Defendant and Appellant. Civ.
• Court: United States State Supreme Court of North Dakota

Page 50

221 N.W.2d 50

Robert SEIBEL, Plaintiff and Appellee, v. SYMONS CORPORATION, also known as Symons Mfg. Co., Defendant and Appellant.

Civ. No. 8928.

Supreme Court of North Dakota.

June 26, 1974.

Rehearing Denied Aug. 26, 1974.

Syllabus by the Court

1. A warning of danger from foreseeable misuse of a product must be adequate to point out the danger of injury to be reasonably anticipated from misuse, and the warning must be clear and reasonably adapted to be communicated to persons in the zone of danger.

2. Where danger to an employee or ultimate user may be reasonably anticipated, a warning to an intermediate employer or supplier does not necessarily insulate the manufacturer from liability. The means of communicating the warning must be such as to be reasonably expected to reach, and be understood by, the employee or other user.

3. Withdrawal by the court of defenses of contributory negligence and assumption of risk is proper where facts are such that defenses could not be sustained.

4. A quotient verdict is not shown by mere fact that verdict is not given in round numbers.

5. A quotient verdict is improper only if arrived at in accordance with a prior agreement to be bound by the quotient computation.

Degnan, McElroy, Lamb, Camrud & Maddock, Grand Forks, for plaintiff and appellee.

Letnes & Marshall, Grand Forks, for defendant and appellant.

VOGEL, Judge.

The defendant, Symons Corporation (hereinafter manufacturer), has appealed from an order of the trial court denying its motion for judgment notwithstanding the verdict in the alternative for a new trial, following entry of judgment based on a jury verdict in favor of the plaintiff in the amount of $25,033.90.

This is a products liability case in which the plaintiff, Robert Seibel (hereinafter employee), who was injured while working for Morrison-Knudsen & Associates (hereinafter employer), seeks recovery for injuries from the manufacturer, which manufactured steel concrete forms called 'Symons Superforms,' on which the employee was working when he fell and was injured as a result of the breaking of a weld on a V-shaped end-rail support rod to which he had attached the lanyard of his safety belt while he was in the process of assembling the steel concrete forms. The employee's claim is based on express warranty, implied warranty of fitness, and negligence in design or manufacture. The defendant interposed several defenses, including assumption of risk, contributory negligence, that it had adequately warned the employee of the danger which caused his injury, and that the manufacturer was insulated from liability by reason of its issuance of a warning to the employer as to the danger.

Morrison-Knudsen is a large contractor. At the time of this industrial accident it was involved in building a Missile Site Radar (MSR) complex associated with the Anti-Ballistic Missile Site located in the area adjacent to Nekoma, North Dakota. The components of the Symons Superform System, with the aid of the technical manual supplied by the manufacturer to its vendee, Morrison-Knudsen, were to be assembled at the contract site by Morrison-Knudsen into what are called 'gang sections.' These gang sections are then moved from place to place on the jobsite by cranes and trucks, and when placed in position the Symons Superform System acts as a mold for the placement of concrete to cast concrete walls. When the concrete has hardened, the forms are removed by crane and set into the next position for the casting of more concrete walls. The gang forms are disassembled and reassembled on the jobsite from time to time to accommodate different wall-forming requirements.

At the time of this industrial accident, two such gang sections had been set up facing each other to form the mold into which concrete would be poured to form a concrete wall of an elevator shaft. To complete the assembly it was necessary for Morrison-Knudsen's workmen to put into place ties to provide the necessary spreader action between the gangs in order to maintain accurate concrete wall thickness. This is accomplished by placing 'she-bolt' ties through the gangs. One employee works on each side of the outer surface of the two facing gangs of Symons Superforms. The injured employee was working on one side of these gangs while in the process of inserting and securing a she-bolt tie. He had climbed some 16 or 18 feet above the bottom of the gang, where he attached his safety belt lanyard to one of the V-shaped end-rail support rods in order that he might have both hands free with which to work. The employee relied on his safety belt to keep him in a vertical position. While he was standing with his feet on one of the horizontal crossbars of the gang, the light weld at the end of the V-shaped end-rail support rod, around which he had placed the lanyard of his safety belt, gave way and the lanyard slipped off the end of the V-shaped rod causing him to fall approximately 16 or 18 feet onto a wooden platform below. His injuries were serious.

At the close of the plaintiff's case and again at the close of the entire case, the manufacturer moved for a directed verdict on several grounds, one of which was that the evidence established that the manufacturer had given its vendee (the employer) adequate warning not to hang off V-shaped end-rail support rods. It argued that failure to pass on the warning to the employees was the fault of the employer and not the manufacturer, and that there could be no recovery from the manufacturer by the employee on the basis of the failure of the manufacturer-vendor to warn the vendee's employee. The motion was resisted, and the trial court denied it. The action was submitted to the jury, and after entry of judgment the manufacturer moved to have the verdict and judgment set aside, and to have judgment entered in accordance with its motion for a directed verdict. It also moved in the alternative for a new trial, pursuant to Rule 50(b), N.D.R.Civ.P. Both motions were denied by the trial court.

When the manufacturer, as vendor of the Symons Superform, made delivery of the Superform to the employer at its jobsite in a semi-disassembled state for assembly and use, it furnished the employer with several copies of a technical manual containing instructions for the assembly and use of the Symons Superform. The manual is a book about one inch thick, containing about 115 pages. The first three pages are a section headed 'Introduction.' On page 3 of this section appears the following:

'E. SAFETY

'1. Horizontal crossmembers and the vertical rod facilitate easy, safe climbing and safety belt attachment. DO NOT HANG OFF V-SHAPED END RAIL SUPPORT RODS.

'2. All connections are bolted eliminating falling connecting hardware.'

The sentence 'DO NOT HANG OFF V-SHAPED END RAIL SUPPORT RODS' is described to us by the manufacturer as the warning which it issued to the employer and the employee.

There is no evidence that the so-called warning was ever communicated to the employee. There is evidence that the manuals were received by the employer and were discussed at some meetings of its employees.

The location and appearance of the V-shaped end-rail support rods was such that the jury could find that using them for support was a reasonable use, in the absence of an adequate warning not to do so.

This action is against the manufacturer only. The negligence, if any, of the employer is relevant only if it is the sole proximate cause of the plaintiff's injury. For the purpose of this appeal we may assume that the employer was negligent and consider only the question of whether the manufacturer was also negligent.

Much of the dispute in this case rages around the adequacy of the so-called warning and whether the communication of the warning to the employer insulates it from liability toward the injured employee.

In Lindenberg v. Folson, 138 N.W.2d 573 (N.D.1965), we quoted with approval Section 398 of Restatement of the Law, Torts 2d, as follows:

'A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel lawfully or to be in the vicinity of its probable use for bodily harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.' 138 N.W.2d 573, at 582.

In the same case we held that

'. . . a manufacturer supplying a machine has a duty to exercise reasonable care to inform the user of any dangerous condition and character of the machine when put to the use for which it was manufactured and sold, where such danger is known or which reasonably should have been known by the manufacturer in the exercise of ordinary care.' 138 N.W.2d 573, at 582.

And we quoted from 76 A.L.R.2d 96 as follows:

'One who has been injured by a product may seek to hold the manufacturer or seller liable on the theory that the design of the product made it dangerous and, apart from whether it was negligence so to design it, negligence inhered in a failure to warn of the danger.' 138 N.W.2d 573, at 582.

The primary questions before us are whether the sentence quoted above from the technical manual constitutes an adequate warning of the danger which the jury found to be inherent in the foreseeable use of the product and whether the fact that the manufacturer communicated the sentence to the employer insultates the manufacturer from liability for the injury to the employee.

The trial court instructed the jury:

'A manufacturer of goods has a duty to use reasonable care in the design of, in the materials used in, in the assembly of, and to inspect the goods to protect those who will use the goods from unreasonable risk of harm while the goods are being used for their intended purpose and while the goods are being used for any purpose which could be reasonably expected. This duty extends to any person using the goods or in the area of its use...