Wirth v. Clark Equipment Company, 25293.
| Decision Date | 18 April 1972 |
| Docket Number | No. 25293.,25293. |
| Citation | 457 F.2d 1262 |
| Parties | Wilkes WIRTH, Plaintiff-Appellant, v. CLARK EQUIPMENT COMPANY, a corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Raymond J. Conboy (argued), Frank Pozzi, of Pozzi, Wilson & Atchison, Portland, Or., for plaintiff-appellant.
Roland F. Banks, Jr. (argued), James F. Spiekerman, of Souther, Spaulding, Kinsey, Williamson & Schwabe, John R. Brooke, Portland, Or., for defendant-appellee.
Before HAMLIN and MERRILL, Circuit Judges, and GRAY, District Judge.*
The plaintiff in this diversity action was a longshoreman on the waterfront at Portland, Oregon, whose duties required him to work as a part of a crew attending a thirty-ton motor driven wheeled vehicle, known as a van carrier, which ran over him, thereby inflicting severe injuries that included the loss of a leg. Defendant Clark Equipment Company had manufactured the van carrier and had sold it to Matson Navigation Company, in whose service it was being operated at the time of the accident.
The plaintiff sought recovery on the basis of two separate theories, namely negligence in the design and manufacture of the carrier, and strict liability by reason of the manufacture and sale of a carrier that was in an unreasonably dangerous and defective condition.
At the conclusion of the trial, the judge submitted to the jury the issue of negligence (and a verdict for the defendant resulted), but he withdrew from the jury the matter of strict liability, ruling that, as a matter of law, the plaintiff could not recover on that basis. We agree with the plaintiff's contention, asserted at the trial and on appeal, that the issue of strict liability should have been submitted to the jury, and we accordingly reverse.
Much of the cargo transported by Matson's ships was packed in large wooden vans (or containers or boxes) whose dimensions were approximately 24' x 8' x 8', and whose loaded weight was many tons. The carrier concerned was designed and manufactured for the purpose of straddling such a van, lifting it from a flat bed trailer, or from the pavement, or from the top of another van, and transporting it to another location in the waterfront area. Such work requires that the carrier be a large and heavy machine, and it is, namely, 26 feet long, 13 feet wide, and 18½ feet high. It can travel at speeds up to 20 miles per hour. The operator sits in a cab at the rear of the top of the vehicle, near the motor. A representative of the defendant testified that this location of the cab was considered to be the best place to facilitate the ability of the operator to drive the carrier and handle the containers. However, because of the location of the cab, the forward view of the driver is seriously limited to the extent that he cannot see the ground for a distance of 51' 9" in front of his right front wheel. There was testimony to the effect that similar carriers "kept running into things," and that light poles and fire hydrants located in their areas of operation had to be protected by buffers of concrete or steel.
The carrier did not contain wheel guards, or "cow catchers," nor did it contain mirrors or closed circuit TV cameras and monitors for the purpose of enhancing the operator's forward vision, and the testimony was conflicting as to the practicability of such safety installations on this machine.
The noise of the engine could be heard all over the yard, a fact that provided a constant reminder of the carrier's presence, but not necessarily of its approach. The testimony indicated that Matson had affixed a bell to the carrier that was actuated when the vehicle was in motion, but this bell could not be heard if the motor was turning faster than idling.
The plaintiff's function was that of a "block man," whose duty was to disengage or engage the fasteners that held a van securely on a trailer, in order to facilitate the carrier in lifting the van from the trailer or in depositing it thereon. Thus, the plaintiff's work required him regularly to be in close proximity to the carrier.
On the occasion of the accident, the crew had completed its assignments for the day, and the driver was in process of moving the carrier to the parking area. His route took him the length of a 30-foot wide aisle that was formed by the locations of two rows of vans. As the driver turned to enter this corridor, he could see the length of it and did not observe the plaintiff; after he had proceeded the entire length of the corridor and had parked the carrier, he learned that his right front wheel had run over the plaintiff. The evidence indicated that at the time the carrier proceeded down the corridor, the plaintiff was leaning against one of the vans that formed the corridor and was having a smoke.
In light of the foregoing the trial judge was clearly justified when he ruled that ". . . there is evidence that this thing, the way it was used, was an ultra-hazardous piece of machinery, and that this condition caused Mr. Wirth damages."
The trial judge recognized that the law of the forum state controls the applicability of the doctrine of strict liability in a diversity case. Hardy v. Hull Corporation, 446 F.2d 34 (9th Cir. 1971). He thereupon undertook to determine how the courts of Oregon would have ruled in this situation, a task that was made difficult by the absence of any controlling statute or reported decision. His starting point, as is ours, was the fact that Oregon has expressly adopted section 402A of the Restatement (Second) of Torts, which provides, in pertinent part, that "One who sells any product in a defective condition unreasonably dangerous to the user or consumer . . . is subject to liability for physical harm thereby caused to the ultimate user or consumer. . . ."1 Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967).
The trial court concluded, however, that it would be an "unwarranted extension" of Oregon law to impose strict liability in favor of a bystander when the equipment was custom-built to the purchaser's specifications and contained no concealed defect.
From our own reading of Oregon law, we believe that to permit the jury in this case to find in accordance with strict liability would not have been an unwarranted extension of Oregon law, if it would have involved any extension at all.
With respect to the matter of "bystander," the Restatement discussion of section 402A contains a caveat (1) as to whether such rule covers ". . . harm to persons other than users or consumers." This caveat would, of course, include bystanders.
However, the Restatement comment l asserts that a "user," within the meaning of section 402A, need not have been the purchaser or the owner of the product; "He may be a member of the family of the final purchaser, or his employee, . . . ." (Page 354) (Emphasis added).
Moreover, the comment on the caveat (comment o) refers to the distinction between users and "casual bystanders," such as "employees of the retailer, or a passer-by injured by an exploding bottle, or a pedestrian hit by an automobile." The comment then asserts that "There may be no essential reason why such plaintiffs should not be brought within the scope of the protection afforded, other than that they do not have the same reasons for expecting such protection as the consumer who buys a marketed product; but the social pressure which has been largely responsible for the development of the rule stated has been a consumers' pressure, and there is not the same demand for the protection of casual strangers." (Pages 356-7).
The plaintiff in this case was not a "casual stranger." He was an employee of the purchaser of the machine; his duties as block man were an integral part of the functioning of the machine; he was obliged to work in close proximity to the machine; and the safety deficiencies that the trial court found to exist in the carrier created a particular hazard to a person in the plaintiff's position. A trier of fact could readily have found that the plaintiff was a "user" of the machine and that he was no more a bystander than was the driver.
On the other hand, the trier of fact could find it significant that the plaintiff was not actually performing any duties at the particular moment of the accident, but instead was, in effect, "standing by," and therefore was not a user of the product. Even under these circumstances, which would label the plaintiff as a bystander, we conclude that a verdict in his favor would not be contrary to Oregon principles with respect to the...
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