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CRUZ v. TEXACO

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,
v.
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

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.

I

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
  supplier
    (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 the item.

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 held:

    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. . . .

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