Smith v. Walter C. Best, Inc.

Citation927 F.2d 736
Decision Date05 November 1990
Docket NumberNo. 90-3077,90-3077
PartiesProd.Liab.Rep.(CCH)P 12,768 David H. SMITH and Louise Smith, his Wife, v. WALTER C. BEST, INC., a Corporation, Pennsylvania Glass Sand Corporation, a Corporation and Combustion Engineering, Inc., a Corporation, Third Party Defendants, Manley Brothers, Keener Sand and Clay Co., Whitehead Brothers, Negley Fire Clay Company, Magneco Metrel, Inc., American Colloid and Cedar Heights Co. David H. SMITH and Louise Smith, his Wife v. WHITEHEAD BROTHERS COMPANY. David H. SMITH and Louise Smith, his Wife v. MANLEY BROTHERS. David H. Smith and Louise Smith, his wife, Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Janice M. Savinis, Thomas W. Henderson, Craig Vandergift (argued), Henderson & Goldberg, Pittsburgh, Pa., for appellants.

J.W. Montgomery, III (argued), Debra B. Todd, Laura A. Meaden, Curt Vazquez, Cohen & Grigsby, Pittsburgh, Pa., for appellee Pennsylvania Glass Sand Corp.

Julie A. Maloney, William M. Wycoff, Stephen J. Poljak, Thorp, Reed & Armstrong, Pittsburgh, Pa., for appellee Manley Bros.

Louis Anstandig, Anstandig, Levicoff & McDyer, Pittsburgh, Pa., for appellee Keener Sand and Clay Co.

P. Brennan Hart, Zimmer Kunz Loughran Hart, Lazaroff Trenor Banyas & Conaway, Pittsburgh, Pa., for appellee Whitehead Bros.

Before MANSMANN, ALITO and GARTH, Circuit Judges.


MANSMANN, Circuit Judge.

In this products liability action, we are asked to review the district court's determination that Ohio law does not recognize a cause of action based upon strict liability for failure to warn and to examine the district court's evaluation of the sophisticated purchaser defense in the context of negligent failure to warn.

Recent Ohio case law establishes the viability of a claim based upon strict liability for failure to warn; the standard governing the manufacturer's duty under this theory is identical to that applicable in cases alleging negligent failure to warn. While the district court erred in predicting that the Ohio Supreme Court would not recognize such a claim, we conclude that this error was harmless. The district court properly resolved the claim of negligent failure to warn by granting summary judgment for the defendants. We predict that the same result would obtain in Ohio under a theory of strict liability for failure to warn. We will, therefore, affirm the order of the district court.


On October 4, 1985, David Smith and his wife filed suit in the United States District Court for the Western District of Pennsylvania claiming injury as a result of Mr. Smith's inhalation of silica dust contained in sand supplied by various parties to his employer, Valley Mould & Iron Company in Hubbard, Ohio.

During the period from 1956 until 1984, Mr. Smith was employed at Valley Mould as a foundry laborer, caster, chainman, shake-out man, and chipper. Smith contends that in each of these jobs, he came into contact with sand and, as a result of this contact, developed silicosis.

The Smiths' original complaint named as defendants three companies allegedly having supplied sand to Valley Mould: Walter C. Best, Inc.; Pennsylvania Glass Sand Company and Combustion Engineering, Inc. Smith sought to hold these defendants liable for breach of warranty, negligence, and strict liability based upon their failure to provide him with direct warnings concerning the consequences of long-term inhalation of silica dust.

In July, 1986, Best and Pennsylvania Glass Sand filed a complaint in order to join as third-party defendants, Manley Brothers, Whitehead Brothers, Keener Sand and Clay Company, Negley Fire Clay Company, Magneco Metrel, Inc., American Colloid, and Cedar Heights Company. 1 In March, 1987, Smith filed two additional complaints adding Whitehead and Manley as defendants and on June 30, 1987, Pennsylvania Glass Sand filed a motion for summary judgment on behalf of itself and the remaining defendants.

In January, 1990, the three pending actions were consolidated for all purposes and summary judgment was granted in favor of defendants Pennsylvania Glass Sand and Best and third-party defendants Manley, Keener and Whitehead. In awarding summary judgment, the district court concluded that Pennsylvania choice of law principles required that the claims presented be evaluated under the substantive law of Ohio and that Ohio law does not recognize the application of strict liability to claims premised on a failure to warn. The court also found that the defendant sand suppliers had no duty to warn Smith of potential hazards associated with inhalation of silica dust as Smith was employed by a knowledgeable purchaser of silica-containing sand.

It is from the January, 1990 grant of summary judgment that Smith appeals.


In viewing the circumstances of this case against the background of the Pennsylvania choice of law rule, the district court correctly determined that the substantive tort law of Ohio should control. On appeal, the Smiths challenge the district court's conclusion that Ohio law does not recognize the application of strict liability in cases involving failure to warn.

Subsequent to the district court decision and during the pendency of this appeal, the Ohio Supreme Court resolved this issue in a manner not predicted by the district court. In Crislip v. TCH Liquidating Company, 52 Oh.St.3d 251, 556 N.E.2d 1177 (1990) the Ohio court resolved all doubt concerning availability of strict liability in cases alleging failure to warn when it concluded that "An individual injured by a known dangerous product may prosecute a strict liability claim arising from allegations of inadequate warning." 556 N.E.2d at 1180.

In holding that Ohio recognizes the applicability of strict liability to cases involving failure to warn, the Ohio Supreme Court explained that while the theory of negligence focuses upon the duty of a cautious prudent manufacturer and strict liability analysis focuses instead on consumer expectations, "[c]ommentators and courts have long recognized that both approaches deal with the same question of foreseeability of harm, and are therefore '... two sides of the same standard.' " 556 N.E.2d at 1182 (quoting Welch v. Outboard Marine Corp., 481 F.2d 252, 254 (5th Cir.1973). Thus "[a] manufacturer which would be negligent in marketing a given product, considering its risks, would necessarily be marketing a product which fell below the reasonable expectations of consumers who purchase it." Id. (quoting Phillips v. Kimwood Machine Co., 269 Ore. 485, 493, 525 P.2d 1033, 1037 (1974)).

Under Ohio law as articulated in Crislip, the standard imposed upon the defendant meeting a claim of strict liability based upon a failure to warn is the same as that imposed upon the defendant faced with a claim of negligent failure to warn. Under either theory, "there will be no liability unless it be shown that the manufacturer failed to take the precautions that a reasonable person would take in presenting the product to the public." Id. Thus, in Crislip where the jury found that the defendant had made the requisite showing with regard to the claim of negligent failure to warn, the trial judge's decision directing a verdict on the strict liability claim was harmless error; the jury's finding for the defendant on the claim of negligent failure to warn necessarily meant that it would have reached the same result on the strict liability claim.

In light of Crislip, the critical factor in this case becomes whether the district court erred in granting summary judgment to the defendants on the claim of negligent failure to warn.


In evaluating the Smiths' claim of negligent failure to warn, the district court concluded that the defendants were entitled to summary judgment on the basis of what it referred to as the "knowledgeable purchaser defense." The theory underlying this defense is that sellers should be permitted to "shift liability to their immediate purchasers if they reasonably warned those purchasers.... Moreover, sellers act reasonably if they do not warn intermediate purchasers of dangers of which the intermediate purchasers are already knowledgeable." Note, Failures to Warn and the Sophisticated User Defense, 74 Va.L.Rev. 579, 589 (1988). According to this theory, then, liability for failure to warn should fall upon the knowledgeable purchaser having access to the end user.

The parties here do not contest the district court's consideration of the defense or its prediction that the defense would be recognized in Ohio. 2 The Smiths argue, instead, that the district court failed to consider properly one of the factors to be weighed in determining the availability of the defense.

The district court began its analysis with Section 388 of the Restatement (Second) Torts (1971), which sets out the general principles governing a product supplier's obligation to warn users of hazards associated with that product. Comment n to Section 388 delineates the circumstances in which a warning to a knowledgeable intermediary can serve to absolve a supplier of its duty to warn. No rigid rules determine whether a seller is justified in relying on an intermediary to communicate potential hazards to ultimate users. Comment n instead lists several factors to be considered in determining whether a seller has acted reasonably in relying on an intermediary to pass on relevant information.

These include (1) the dangerous condition of the product; (2) the purpose for which the product is used; (3) the form of any warnings given; (4) the reliability of the third party as a conduit of necessary information about the product; (5) the magnitude of the risk involved; and (6) the burdens imposed on the supplier by requiring that he directly warn all users.

Goodbar v. Whitehead Brothers, 591 F.Supp. 552, 557 (W.D.Va.1984) aff'd sub nom. Beale v. Hardy, 769 F.2d 213 (4th Cir.1985).

The "comment recognizes that a balancing of these...

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