Evelyn M. Edwards, Administratrix of the Estate of Rolf S. Edwards, Deceased v. Mazor Masterpieces, Inc., a Corporation

295 F.2d 547

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 15, 1961
• Docket: 16205
• Status: Published

Opinions

EDGERTON, Circuit Judge.

Appellee sold appellant a folding sofabed which she and her family used several years, chiefly closed as a sofa but sometimes open as a bed, without accident. But when appellant came home on July 9, 1958, she found the dead body of her 12-year-old son inside the closed sofabed. When the coroner arrived, the bed was open and the boy’s body was lying on it covered with perspiration.

Appellant brought this suit as her son’s administratrix for wrongful death and damages under the survival act. The complaint alleges among other things that “death was due to the negligence and carelessness of the defendant in selling the aforementioned sofa bed which was unsafe, defective and not fit for the use intended. * * * ” The District Court granted appellee’s motion for summary judgment. We think the court erred.

One who supplies a chattel for another to use is liable for bodily harm caused by the intended use if he “(a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and 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 of the facts which make it likely to be so.” Restatement, Torts (1934) § 388. Prosser, Torts (2d ed. 1955) § 84; James, Products Liability, 34 Texas L.Rev. 44, 218 (1955). Cf. West Disinfecting Co. v. Plummer, 44 App.D.C. 345; Jamieson v. Woodward & Lothrop, 101 U.S.App.D.C. 32, 37, 247 F.2d 23, 28.

Rule 84 of the Federal Rules of Civil Procedure [28 U.S.C.A.] states that the “forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.” Form 9, entitled “Complaint for Negligence”, alleges that “On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.” Form 9 does not suggest what the nature of the defendant’s alleged negligence may have been. It may have consisted, e. g., in driving too fast, driving while drunk, driving with bad brakes or an otherwise defective car, or keeping an inadequate lookout. Appellant’s complaint in the present case is similar. Like Form 9, it pleads no evidence.

There were affidavits tending to show the bed was safe, and also an affidavit of the coroner tending to show it was dangerous. The coroner’s affidavit said that after the boy’s body was removed from the bed, “a policeman placed his weight on the middle right side facing it from the front to the head & the bed closed on its own accord.” In answer to appellant’s interrogatory 28, “Are there any safeguards to prevent the sofa bed from closing after it is opened from its closed position?” appellee said: “Yes, when it is fully open for use.” In answer to interrogatory 29, “If the answer to 28 is yes, describe these safeguards and furnish diagrams and pictures as to its construction”, appellee said: “It locks when open full for use.” These answers suggest that appellee may have known there was nothing to prevent the bed from closing when it was partly but not fully opened.

After summary judgment had been granted, in support of a motion for reconsideration the plaintiff filed a safety engineer’s affidavit that “unless locked in the open position the bed can snap shut upon the occupant under certain conditions of use likely to occur particularly with a child. It is opened from a couch to a bed by grasping the cross bar that becomes the outer end of the bed and pulling it out as far as it will go. This requires very little strength * * * but it does not lock in the open position unless this outer end of the bed is also lifted some 12 to 15 inches when fully extended. That requires more strength and would be difficult for a child of less than teen age unless he was quite robust.”

If the case had gone to trial the plaintiff might have been able to produce evidence enough to satisfy a jury, as a matter of reasonable probability, that the bed was dangerous; that the defendant knew, or from facts known to him should have realized, that it was likely to be dangerous; that he had no reason to think the purchaser would realize the danger; that he made no reasonable effort to give warning of the danger; and that the danger caused the boy’s death. Reasonable doubts might well have remained, but a civil case need not be proved beyond reasonable doubt. A fair preponderance of the evidence, a fair balance of probability, is all that is required. Rule 56(e), F.R.Civ.P., provides that a summary judgment shall be rendered “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The Rule “authorizes summary judgment only where * * * it is quite clear what the truth is, * * * the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.” Sartor v. Arkansas Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967. And “doubts as to the existence of a genuine issue of a material fact must be resolved against the party moving for summary judgment.” Dewey v. Clark, 86 U.S.App.D.C. 137, 143, 180 F.2d 766, 772. In this case “the pleadings, depositions, and admissions on file, together with the affidavits” do not make “clear what the truth is.” Genuine issues of negligence, causation, and damages remain to be tried.

Reversed.