Vaughn v. Edward M. Chadbourne, Inc.

• Decision Date: 03 January 1985
• Docket Number: No. AX-403,AX-403
• Citation: Vaughn v. Edward M. Chadbourne, Inc., 462 So.2d 512, 10 Fla. L. Weekly 95 (Fla. App. 1985)
• Parties: 10 Fla. L. Weekly 95 Algie F. VAUGHN, as Personal Representative of the Estate of Mary Emma Vaughn and Algie F. Vaughn, Individually, Appellant, v. EDWARD M. CHADBOURNE, INC., Appellee.
• Court: Florida District Court of Appeals

Page 512

462 So.2d 512

10 Fla. L. Weekly 95

Algie F. VAUGHN, as Personal Representative of the Estate of Mary Emma Vaughn and Algie F. Vaughn, Individually, Appellant, v. EDWARD M. CHADBOURNE, INC., Appellee.

No. AX-403.

District Court of Appeal of Florida First District.

Jan. 3, 1985.

Norton Bond, Pensacola, for appellant.

Donald H. Partington and Millard L. Fretland, Clark, Partington, Hart, Hart & Johnson, Pensacola, for appellee.

ERVIN, Chief Judge.

In this action for personal injuries and wrongful death, appellant, Algie Vaughn, seeks review of an order granting summary judgment in favor of a roadway contractor and manufacturer of paving materials, defendant below. We reverse.

In January of 1981, appellant and his wife, Mary Vaughn, traveled north by car on Walton County Road 1087, and while Mary Vaughn drove the car within legal speeds and approached a curve, the car's left wheels encountered a two-inch drop-off in the center of the two-lane road. Mary Vaughn lost control and the car skidded across the road twice before rolling over. The accident caused Mary Vaughn's death and severely injured Algie Vaughn. The drop-off from the northbound lane to the southbound lane initiated the accident.

Appellee paves and grades roadways and parking lots, and manufactures all of its paving materials. With a sand-asphalt mix manufactured in its own plant, appellee paved Road 1087 in October and November of 1978, under a contract with the Florida Department of Transportation (DOT). During the paving process, DOT tested the sand-asphalt mix at appellee's plant and at the paving site. After the mix and paving work met all state tests and specifications, the state returned the road to Walton County for maintenance on April 24, 1979. After that date, appellee was not responsible for inspection or maintenance of Road 1087 and did no further work or repairs.

In late 1980, a Walton County commissioner, on official business, inspected the section of Road 1087 where the Vaughns' accident occurred. The commissioner noticed a wearing away of Road 1087's southbound lane and told the county's engineering consultant. Walton County, however, took no steps to repair the drop-off before the Vaughns' accident. Other uncontroverted evidence reveals that the eroding or wearing away of the 1978 resurfacing caused the drop-off in Road 1087. Furthermore, if Walton County had reasonably inspected the road within a week of the accident, the drop-off would have been apparent.

Appellant's complaint contains three theories of liability: breach of warranty, negligence and strict liability. While the trial court gave no reason for its summary judgment, the two issues argued below and on appeal are: (1) Whether appellee can be held strictly liable under Section 402A of the Restatement (Second) of Torts; and (2) whether the chain of proximate causation was broken when the defect became patent and was in fact observed by a Walton County commissioner. Since resolution of the proximate cause issue in appellee's favor covers all three theories of liability, it was probably the basis of the summary judgment. We address the first issue also, however, because of its importance to appellant's strict liability theory.

Appellant relies in part on Hardin v. Montgomery Elevator Co., 435 So.2d 331 (Fla. 1st DCA 1983), for the proposition that a product manufactured and then incorporated into an improvement to real property falls under section 402A. The defendant in Hardin manufactured an elevator which was installed in a college building. After plaintiff was injured in the elevator, she sued under a strict liability theory. The specific holding in Hardin is that "[w]hether the product is placed on the market by the manufacturer who knows it is not to be used 'without inspection for defects' is not a defense to a claim of strict products liability under section 402A, as adopted by the Florida Supreme Court." 435 So.2d at 337 (emphasis in original). While not specifically addressing the issue of whether improvements to real property fall under section 402A, the court did find "particularly compelling" that the theory of strict liability had previously been applied to the manufacturers of elevators in several cases. Id. at 336.

Appellant also relies on Halpryn v. Highland Insurance Co., 426 So.2d 1050 (Fla. 3d DCA 1983). The plaintiff in Halpryn, after falling on a wet, freshly painted concrete driveway, sued the paint manufacturer on strict liability grounds. The appellate court affirmed a directed verdict for the manufacturer, because there was no evidence that a "defect" in the paint caused the injury. As in Hardin, while concentrating on another issue, the Halpryn court apparently assumed that paint, as an improvement to real property, falls under section 402A's coverage. Appellant also argues that Gory Associated Industries, Inc. v. Jupiter Roofing and Sheet Metal, Inc., 358 So.2d 93 (Fla. 4th DCA 1978), supports reversal in the instant case. While a roofing tile manufacturer was held liable for defective tiles in Gory, the opinion addresses only the question of damages and does not state which theory of liability the trial court relied upon. The instant appellee argues that Halpryn and Gory are distinguishable because they concern products "merely incorporated" into a structural improvement, instead of comprising the entire...