Russell v. GAF Corp.

422 A.2d 989
CourtDistrict of Columbia Court of Appeals
DecidedOctober 15, 1980
Docket79-186
StatusPublished
Cited by32 cases

This text of 422 A.2d 989 (Russell v. GAF Corp.) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russell v. GAF Corp., 422 A.2d 989 (D.C. 1980).

Opinion

422 A.2d 989 (1980)

Douglas M. RUSSELL et al., Appellants,
v.
G. A. F. CORPORATION, and Stanley Gleit, Individually, John Olenek, Individually and t/a Gleit, Olenek and Associates, Engineers, Appellees.

No. 79-186.

District of Columbia Court of Appeals.

Argued February 26, 1980.
Decided October 15, 1980.

*990 Aaron M. Levine, Washington, D. C., with whom James E. Turner, Washington, D. C., was on the brief, for appellants. Eric M. May, Washington, D. C., entered an appearance for appellants.

Laurence T. Scott, Washington, D. C., for appellee G.A.F. Corp.

George C. Courtot, Jr., Washington, D. C., entered an appearance for appellees Stanley Gleit and John Olenek.

Before GALLAGHER, MACK and FERREN, Associate Judges.

PER CURIAM:

Appellants Douglas M. Russell, a carpenter who fell and broke his leg when a sheet of corrugated asbestos cement shattered during installation, and his wife, Wanda Russell, sued the manufacturer of the material (G.A.F.) and the engineers of the project (Gleit and Olenek) for damages resulting from their failure to warn that the material should not be stepped on. At the close of plaintiff's evidence, the trial court granted defendants' motions for a direct verdict. We reverse.

I

In essence, appellants (hereafter "appellant," referring to Douglas M. Russell) contend the material looked safe but was not; therefore, a warning was needed. According to appellant, the engineers who designed the project had a duty to place a warning on the plans they sent to the construction site, and the manufacturer had a duty to label each sheet "no step."

The accident occurred as appellant stepped down three or four feet from one level of an interior ceiling being installed in the Lincoln Memorial to a lower portion of the ceiling, onto a sheet of the corrugated asbestos that was lying across steel I-beams. Appellant testified that the asbestos-cement sheets, approximately 4 by 8 feet, 3/8 inch thick, and weighing well over 100 pounds, appeared to be safe to walk on. He also described a simple test performed at the construction site in which the construction foreman directed that a sheet be placed across steel I-beams, and had various workers, including appellant, walk on it. It held their weight. A co-worker testified that he regularly walked on the sheets as he installed them in the ceiling.

Appellee G.A.F. (the manufacturer) published a booklet to be distributed with the material stating that planks or chicken ladders (grids which distribute stress) should be used in all roofing work. The booklet was placed in each bundle of sheets as it left the manufacturer for shipment to a distributor. The distributor in this case testified that he handled the sheets with care, and that in normal practice the informational booklet would go along with the material that he sold. The sheets here were brought by Curtin & Johnson, the building contractor and appellant's employer.

In a deposition, a G.A.F. salesman stated that several persons at G.A.F. were aware that the corrugated asbestos cement commonly was used in the field for roofing without the recommended planks or chicken ladders. He and the distributor were aware of other types of building materials, used in roofing, which were individually labelled "no step" or the like.

Appellant presented a safety expert, who had reviewed the manufacturer's information on the material and the drawings and specifications of the project. In response to a long hypothetical question, the expert stated that in his opinion, the manufacturer did not comport with safe practices and procedures. He said a warning was needed because the material was very brittle, and if there were a small crack or flaw in it, or *991 if it got wet, its strength would be seriously affected, although the change would not be obvious. He further stated that a warning given through a pamphlet stuck in a pile of sheets was insufficient because it could easily be lost at the construction site; thus, safe practice required a warning on each panel.

With respect to appellees Gleit and Olenek, who designed the project, the expert pointed out a national building code (BOCA) section which says the architect has a responsibility to identify in his drawings all specified prefabricated materials and their physical properties. He opined that the project designers should have transferred all information in the manufacturer's instructions about the treatment and installation of the material to the drawings or to the project specifications. Appellee Gleit testified he was familiar with the brochure's caution that planks or chicken ladders should be used on roofing work, but he did not communicate the warning to anyone else because he did not think he was the one responsible for warning the workers.

II

A. Appellant labelled his complaint against the design engineers as a negligence claim, and against G.A.F. as a claim based on both negligence and strict liability in tort. A plaintiff may limit the claim to negligence in failing to warn about foreseeable harm from a product, see Burch v. Amsterdam Corporation, D.C.App., 366 A.2d 1079, 1086 (1976), or claim strict liability for injury derived from the same failure. See Restatement (Second) of Torts § 402A, Comment j (1965). In either case, however, the duty is the same: ordinary care. See Basko v. Sterling Drug, Inc., 416 F.2d 417, 426 (2d Cir. 1969) (Restatement, supra § 402A, Comment k, adopting the ordinary negligence standard of duty to warn). More specifically, whether a manufacturer can be held strictly liable for failure to warn, or held liable only for negligence, the threshold question whether there has been a "failure to warn" (triggering potential liability) is judged by the following standard of care:

The seller or manufacturer of a product whose use could result in foreseeable harm has a duty to give a warning which adequately advises the user of attendant risks and which provides specific directions for safe use. [Burch v. Amsterdam Corp., supra at 1086 (emphasis in original).] [[*]]

The trial court did not follow this standard but mistakenly added an element of "defectiveness" to the Burch test. One of the grounds for granting the directed verdict was the absence of evidence that the sheet was defective when it left G.A. F.'s hands. Of course, there must be a danger to warn about. See Beier v. International Harvester Co., 287 Minn. 400, 402, 178 N.W.2d 618, 620 (1970) (insufficient evidence to show danger of which defendant had a duty to warn in that it was impossible for bolts to become loose while outer nuts were tight). Evidence of a defect is unnecessary, however. A product can be perfectly made and still require directions or warnings on proper use in order to be safe. See Biller v. Allis Chalmers Manufacturing Co., 34 Ill.App.2d 47, 180 N.E.2d 46 (1962) (manufacturer owed duty to warn of latent limitations of even a perfectly made tractor).

B. In deciding whether a directed verdict was properly granted here, we must view the evidence in its aspect most favorable to the appellant, granting appellant all reasonable inferences.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kubicki v. Medtronic, Inc.
District of Columbia, 2018
Kubicki ex rel. Kubicki v. Medtronic, Inc.
293 F. Supp. 3d 129 (D.C. Circuit, 2018)
Mayor and City Council of Baltimore v. Utica Mutual Ins. Co.
802 A.2d 1070 (Court of Special Appeals of Maryland, 2002)
Ferayorni v. Hyundai Motor Co.
711 So. 2d 1167 (District Court of Appeal of Florida, 1998)
Brand v. Mazda Motor Corp.
978 F. Supp. 1382 (D. Kansas, 1997)
Owens-Corning Fiberglas Corp. v. Henkel
689 A.2d 1224 (District of Columbia Court of Appeals, 1997)
McNeil Pharmaceutical v. Hawkins
686 A.2d 567 (District of Columbia Court of Appeals, 1996)
Warner Fruehauf Trailer Co. v. Boston
654 A.2d 1272 (District of Columbia Court of Appeals, 1995)
Interocean Ships, Inc. v. Samoa Gases
23 Am. Samoa 2d 76 (High Court of American Samoa, 1992)
Neff v. Coleco Industries, Inc.
760 F. Supp. 864 (D. Kansas, 1991)
East Penn Manufacturing Co. v. Pineda
578 A.2d 1113 (District of Columbia Court of Appeals, 1990)
Whitehead v. Dycho Co., Inc.
775 S.W.2d 593 (Tennessee Supreme Court, 1989)
Wilkinson v. Bay Shore Lumber Co.
182 Cal. App. 3d 594 (California Court of Appeal, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
422 A.2d 989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-gaf-corp-dc-1980.