United States District Court, Southern District of Illinois, E. St. Louis Division
July 20, 1984
SHARON CRUZ, SPECIAL ADMINISTRATOR OF THE ESTATE OF JOSE M. CRUZ, DECEASED, FOR HER USE AND THE USE OF EDWIN LEE CRUZ AND JOSEPH CRUZ, PLAINTIFFS,
TEXACO, INC., A CORPORATION, DEFENDANT THIRD PARTY PLAINTIFF, V. SIMPSON OIL COMPANY, THIRD PARTY DEFENDANT.
The opinion of the court was delivered by: Foreman, Chief Judge:
MEMORANDUM AND ORDER
Before the Court is a Motion for Summary Judgment filed by
defendant Texaco on
June 20, 1984. In effect, defendant Texaco moves the Court to
reconsider a portion of an Order of Senior Judge William G.
Juergens filed August 31, 1983, in which he denied defendant
Texaco's Motion for Summary Judgment as to Count 2 of the
Jose M. Cruz was killed while driving a winch truck to
transport a piece of oil field equipment known as a gear box with
counterweights. The gear box and counterweights came loose from
the rear end of the winch truck and swung from side to side. As
a result, the winch truck left the road and turned over,
resulting in the death of Jose Cruz. Texaco sold the winch truck
to Simpson Oil Company on June 3, 1980. In Count 2, plaintiffs
allege Texaco negligently failed to warn the deceased that the
winch truck should not be used at highway speeds when heavy
objects are suspended at the rear of the truck. Texaco moves for
judgment in its favor arguing (1) Texaco did not have a duty to
warn the deceased because the alleged dangerous condition was
understood by, and obvious to, the deceased's employer; and (2)
Texaco is not liable to plaintiffs because the truck was sold to
Simpson Oil Company on an "as-is" basis.
While there is no doubt that liability can be imposed in
Illinois under a negligence theory for failure to warn, Kirby v.
General Paving Co., 86 Ill.App.2d, 453, 229 N.E.2d 777 (4th Dist.
1967), the scope of the duty has not been adequately defined. See
Manning v. Ashland Oil Co., 721 F.2d 192, 193 (7th Cir. 1983).
For an analytical framework, Illinois courts have adopted Section
388 of the Restatement (Second) of Torts:
One who supplies directly or through a third person a
chattel for another to use is subject to liability to
those whom the supplier should expect to use the
chattel with the consent of the other or to be
endangered by its probable use, for physical harm
caused by the use of the chattel in the manner for
which and by a person for use it is supplied if the
(a) knows or has reason to know that the chattel is
or is likely to be dangerous for the use for which it
is supplied, and
(b) has no reason to believe that those for whose
use the chattel is supplied will realize its
dangerous condition; and
(c) fails to exercise reasonable care to inform
them of its dangerous condition or the facts which
make it likely to be dangerous.
See Baylie v. Swift & Company, 27 Ill.App.3d 1031,
327 N.E.2d 438, 447 (1st Dist. 1975). Both parties find solace in this
language. Texaco argues plaintiffs have not satisfied subpart (b)
since Texaco had every reason to believe the decedent would
realize the dangerous condition because the decedent's employer
realized the danger. Plaintiffs point out § 388 specifically
refers to those who "use" a chattel and not to those who purchase
Cases construing § 388 have held that a manufacturer or a
supplier need not warn the ultimate user in every case that a
duty to warn is present. For instance, in Jacobson v. Colorado
Fuel and Iron Corporation, 409 F.2d 1263 (9th Cir. 1969),
plaintiff's decedent was killed when a steel strand manufactured
by defendant broke, and plaintiff contended the decedent was
inadequately warned of the danger of over-stressing the strand.
In Jacobson, the decedent was a foreman who performed his job
under the direction of superiors. One of those superiors, the
production manager, admitted knowledge of the danger. The Court
Decedent's employer and its supervising personnel
should have known and actually did know the dangers
inherent in the use of defendant's product in the
hold-down device. Any breach of duty owed to the
decedent with the resultant strict tort liability, if
any, was the liability of decedent's employer and
supervising personnel and not the liability of
defendant. . . .
There is no duty to warn those who simply follow
the directions of the engineers
or technicians, or to put it differently, there is no
duty of a supplier of chattel to foresee that the
engineers or technicians will fail to follow warnings
given or to employ knowledge possessed.
Id. at 1272-73.
Courts have focused on the use of the product that caused the
injury when determining whether a warning to an employer or other
third party is sufficient to insulate a supplier from liability
for an injury to a user of the product. As illustrated in
Jacobson, when the employer or third party is directing the use
of the product, a warning to the employer has been sufficient.
For example, in Hopkins v. E.I. Dupont, 212 F.2d 623 (3rd Cir.),
cert. denied, 348 U.S. 872, 75 S.Ct. 108, 99 L.Ed. 686 (1954),
the Court held the manufacturer of dynamite did not have a duty
to warn an employee about potential danger in the use of dynamite
where blasting operations were supervised by foremen who knew of
the danger. See also Marker v. Universal Oil Company,
250 F.2d 603 (10th Cir. 1957). However, when a product is supplied
directly to the user, and it is used without direction or
supervision, courts have required the supplier to attach a
warning on the product itself. For instance, in Jackson v. Coast
Paint and Lacquer Company, 499 F.2d 809, 812-814 (9th Cir. 1974),
the court imposed on the paint manufacturer the duty to warn the
ultimate user of potential dangers in the use of the paint. The
court reasoned that the act of opening and using paint is not
usually directed by an employer or supervisor. Thus, the fact
that the painting contractor may have known of the danger was
irrelevant to the court. The Jackson court relied heavily on
Davis v. Wyeth Laboratories, Inc., 399 F.2d 121, 130-31 (9th Cir.
1968) where the court held that in a case of a prescription drug,
normally a warning to the physician is sufficient. However, if
the drug is distributed without the intervening supervision of a
physician, a direct warning to the patient was required.
The few cases in Illinois which involve a warning to an
employer or other third party have reached decisions consistent
with Jacobson and Jackson. In Biller v. Allis Chalmers
Manufacturing Company, 34 Ill.App.2d 47, 180 N.E.2d 46 (2d Dist.
1962), a tractor manufacturer had a duty to warn a farm laborer
of the dangers involved with refueling the tractor with propane
gas. Although the court did not directly address why a warning to
the employer would be insufficient, the routine task of refueling
a tractor would not normally be supervised and, thus, the
employer's knowledge would be irrelevant. However, in McKay v.
Upson-Walton Company, 317 F.2d 826 (7th Cir. 1963), a
manufacturer of a block and hook did not have a duty to warn the
ultimate user of the machine's 2 and 1/2 ton capacity where the
capacity was contained in a catalogue furnished to the employer.
The court distinguished Biller and held that the manufacturer had
no duty to anticipate that the instructions in the catalogue
would be carelessly disregarded.
Turning to the evidence, the Court must decide whether a
material issue of fact remains as to whether decedent's employer
knew about the danger created when the loaded winch truck is
driven too fast. A second factual issue is whether the employer
was sufficiently involved in directing the use of the truck to
release Texaco from any duty to warn the decedent directly. Of
course, the burden is on Texaco to show there is no issue of
material fact in dispute. Rose v. Bridgeport Brass Co.,
487 F.2d 804, 808 (7th Cir. 1973).
It is abundantly clear from the deposition evidence submitted
that decedent's employer, Richard Simpson, was knowledgeable
about how to use winch trucks and he fully understood the danger
of driving a loaded truck at highway speeds. Mr. Simpson also
knew that if the load began to sway that the truck should be
stopped immediately. Mr. Simpson built, repaired and maintained
these trucks and he testified he did not need any advice as to
how to operate the truck from Texaco. Since a purpose of a
warning is to apprise a party
of a danger of which he is not aware, Texaco did not owe Simpson
a duty to warn. Kirby v. General Paving Company, supra, at 779.
The evidence also reveals that operating a winch truck was a
complex procedure that involved specific training. Mr. Simpson
delegated the training of decedent to his more experienced
employees, primarily Mark Berkaur (Simpson's deposition at 27-1).
Given the fact that the operation of a winch truck involved
specific training, the Court finds Texaco is entitled to rely on
Mr. Simpson to warn his employees about the inherent dangers
involved in operating the truck. This case is analogous to
Jacobson and Hopkins where a warning to the employee was not
required because a supervisor with knowledge of the danger was
directing the work. The Court finds that Mr. Simpson's knowledge
of the danger of driving the winch truck too fast, coupled with
decedent's training by Simpson's employees, removes any duty of
Texaco to warn the decedent directly.
Accordingly, Texaco's Motion for Summary Judgment on Count 2 is
GRANTED. Since Count I was dismissed in a prior Order of this
Court, the Clerk of Court is hereby ORDERED to enter judgment for
defendant Texaco and against plaintiffs.
IT IS SO ORDERED
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