Valdez v. J. D. Diffenbaugh Co.

• Decision Date: 18 September 1975
• Citation: 124 Cal.Rptr. 467,51 Cal.App.3d 494
• Court: California Court of Appeals Court of Appeals
• Parties: Alfredo L. VALDEZ, Plaintiff, Respondent and Cross-Appellant, v. J. D. DIFFENBAUGH CO., a corporation, Defendant, Appellant and Cross-Respondent, and Beattie Metal Products, Inc., a corporation, and J. W. Minder Chain and Gear Company, a corporation, Defendants, Cross-Appellants and Cross-Respondents, Liberty Mutual Insurance Company, a corporation, Intervenor, Respondent and Cross-Appellant. Civ. 13539.

Page 467

124 Cal.Rptr. 467

51 Cal.App.3d 494

Alfredo L. VALDEZ, Plaintiff, Respondent and Cross-Appellant, v. J. D. DIFFENBAUGH CO., a corporation, Defendant, Appellant and Cross-Respondent and Beattie Metal Products, Inc., a corporation, and J. W. Minder Chain and Gear Company, a corporation, Defendants, Cross-Appellants and Cross-Respondents Liberty Mutual Insurance Company, a corporation, Intervenor, Respondent and Cross-Appellant.

Civ. 13539.

Court of Appeal, Fourth District, Division 2, California.

Sept. 18, 1975.

Thompson & Colegate and Amil Roth for defendant, appellant and cross-respondent, J. D. Diffenbaugh Co., a corporation

Thomas M. Eckhardt, Robert C. Youmans, Jim Gallion, C. L. Vineyard and Marshall Miles, San Bernardino, for plaintiff, respondent and cross-appellant, Alfredo L. Valdez.

Morgan, Wenzel & McNicholas and Dennis J. Sinclitico, Los Angeles, for intervenor, respondent and cross-appellant, Liberty Mut. Ins. Co.

Bruggeman & Smith and Cyrus J. Lemmon, San Bernardino, for defendant, cross-appellant and cross-respondent, Beattie Metal Products, Inc., a corporation.

King & Mussell and Ronald A. Burford, San Bernardino, for defendant, cross-appellant and cross-respondent, J. W. Minder Chain and Gear Co., a corporation.

OPINION

KERRIGAN, Associate Justice.

A production worker ('Plaintiff') employed by a pipe manufacturing concern sustained severe personal injuries when he was caught and crushed between a huge piece of pipe and an oven door. The pipe was traveling on a conveyor as it approached the door. It was held in place at each end by a cart. The carts moved along the production line on tracks, pulled by a chain, with the chain being situated between the tracks. The employee was either traveling on the front cart or passing in front of it just before the accident. The carts failed to stop and the oven door failed to open, resulting in serious injuries to the employee's pelvis, back and left leg.

The employee collected workmen's compensation benefits from his employer's compensation carrier. He also filed an independent action against three firms: the oven supplier, the conveyor system supplier, and the general contracting firm ('Defendants') which built the plant and which also made repairs and modifications on the conveyor and oven.

The lawsuit was predicated on three theories: negligence, warranty and strict liability in tort ('products liability'). The employer's workmen's compensation carrier ('Intervenor') intervened in the action for the purpose of recovering the benefits it had advanced to the injured employee. The court instructed the jury on the theories of warranty and strict liability as to the two suppliers and the contractor. Negligence was an issue as to the contractor only. The jury returned a general verdict against all three firms for $350,000; in addition, the jury made the following special findings:

Special Finding No. 1:

'Was United Technology Center (plaintiff's employer) negligent? Yes.'

'If you have answered the question one in the affirmative, question two: Did that negligence concur with the negligence of Defendant Diffenbaugh (the repairer) as a proximate cause of the injuries and damages suffered by the Plaintiff? No.'

Special Finding No. 2:

'Did United Technology Center (plaintiff's employer) assume the risk of harm from a defect in the product causing injury to the Plaintiff? No.'

Special Finding No. 3:

'Was . . . (plaintiff's employer) a manufacturer or designer of the equipment alleged to be defective in this case? No.'

The three defendants made motions for judgment notwithstanding the verdict and for a new trial. The court denied the motions for judgment notwithstanding the verdict. However, the court granted the motion for a new trial of the oven supplier (Beattie) and the conveyor installer (Minder); the court also stated that it would be inclined to grant the contractor's motion for new trial on the theories of warranty and products liability but inasmuch as there was sufficient evidence to sustain the verdict against the contractor on the basis of negligence, the contractor's motion for a new trial was denied.

The contractor appeals from the judgment. The injured employee and the employer's compensation carrier appeal from the order granting the suppliers' motions for a new trial. In turn, the suppliers cross-appeal from the judgment as originally entered.

We have determined that the $350,000 judgment against the contractor should stand; that the trial court properly denied the judgment n.o.v.; and that the order granting the suppliers a new trial be affirmed.

FACTS

United Technology Center ('UTC'), a subsidiary of United Aircraft, developed a new process for manufacturing pipe and constructed a pilot plant at Sunnyvale for the purpose of testing the process. As a result of the Sunnyvale experiment, company officials evidently felt that the new process had great promise. Accordingly, a corporate decision was made to build a production plant at Riverside. UTC utilized its own personnel and various independent contractors in designing the Riverside plant. It then retained J. D. Diffenbaugh Co. ('Defendant') as general contractor to build the factory.

Pipe is composed of many substances such as resin, fabric and sand. While UTC's precise methods of making pipe constitute trade secrets, a motion picture of the Riverside production line was shown in the trial court ¹ and the court and jury were thus provided with a general view of operations at the Riverside facility.

The resinous pipe material, mixed with strands of fabric and sand, is wrapped and coated around a long, solid metal core or rod. This core or rod is called a 'mandrel' and inasmuch as the liquid material is applied over the core, the size of the mandrel governs the size of the pipe to be made. ² After the soft, liquid wrapping is applied, it is necessary for the large, heavy mandrels to be carried by carts from the start of the production line to the ovens for hardening or molding.

Consequently, UTC decided to install a chain-drag conveyor system (one somewhat similar to the type used in automatic car washes) for the purpose of carrying the mandrels from the initial stages of production through the curing process. ³ Tracks (like railroad or trolley tracks) were built on each side of the chain. These rails accommodated the mandrel carts. Two carts were used to carry the mandrel--one on each end. Mandrel carts have wheels and are equipped with a type of 'tongue' or 'hook' which, when placed in a down position and attached to a 'dog' or pin in the chain, furnish movement of the carts and mandrels from place to place during the production process. The cart could be stopped simply by lifting the tongue or hook off the chain and motive power thereby ceased.

UTC ordered the conveyor system, the carts, and the hooks from J. W. Minder Chain and Gear Co. ('Defendant'). The system was installed by Minder after Diffenbaugh finished the plant.

The curing ovens through which the conveyor system and carts ran were furnished and installed by Beattie Metal Products, Inc. ('Defendant') after the plant was built. These ovens were long chambers through which the conveyor chain moved through a slot in the floor. The ovens were large enough to accommodate two long pipes. At each end of the oven were doors which opened and closed, on the guillotine principle, by use of a manual control. The doors and control system were also furnished and installed by Beattie.

When the conveyor was installed by Minder, there was a mechanical cam to stop the cart about two feet from the oven door whenever the oven door was in a closed position. When the door was in the down position and the blade of the door rested on the floor, the mechanical cam was situated in a lifted position where it would disengage or delatch the cart hook when the front cart reached the point of the cam. However, the mechanical cam would not work if the oven door was not completely closed or if the hooks on the cart were bent.

During the first few months of production, there were many 'bugs' in the production line. The mandrels and carts were colliding with the closed oven doors at several points throughout the plant; the hooks on the carts were bending; the oven doors were not closing flush with the floor; and the mechanical cams in front of the oven doors were not functioning properly. In fact, the conveyor system and cart utilized in conjunction with oven No. 4 (the one involved in this accident) did not operate properly in that the mandrel carts would not move automatically through the conveyor system towards oven No. 4 unless someone stood on the hook on the front of the cart ('rode the cart') to maintain the necessary pressure for the drag conveyor to move the cart and its load.

Instead of recalling Minder for the purpose of repairing the bent metal hooks or Beattie for the purpose of correcting the oven doors and mechanical cams, UTC decided to recall the general contractor, J. D. Diffenbaugh Co., for the purpose of effecting the repairs. Diffenbaugh furnished UTC with iron workers and millwrights on an hourly basis for that purpose. UTC supervisory personnel advised the iron workers and millwrights what the problems were and what had to be done.

In addition to building the plant, Diffenbaugh had done some of the initial construction of the conveyor as a subcontractor of Minder. However, most of Diffenbaugh's work on the conveyor and ovens was performed after the ovens and conveyor were installed. Diffenbaugh's employees reworked the carts, replaced hooks, removed, installed and replaced oven doors, worked on the limit switches and repaired the conveyor chain. Diffenbaugh installed an air-actuated cam a few feet in front of the oven door of oven No. 4 and also installed a fail-safe device on the oven door itself. The fail-safe consisted of an inclined plane of metal up which the mandrel cart hook would theoretically...