# Alder v. Bayer Corp., AGFA Div.

> Utah Supreme Court · November 26, 2002 · 461 Utah Adv. Rep. 11

URL: https://www.frixlaw.com/law-library/cases/9784929

## Case

- **Full name:** Leslie ALDER, AKA Leslie Roberts, and Jackie Jones, Plaintiffs and Appellants, v. BAYER CORPORATION, AGFA DIVISION, Defendant and Appellee
- **Court:** Utah Supreme Court
- **Decided:** November 26, 2002
- **Citations:** 461 Utah Adv. Rep. 11; 61 P.3d 1068; 2002 UT 115; 2002 Utah LEXIS 175; 2002 WL 31654722
- **Precedential status:** Published
- **Opinion:** Dissent by Wilkins
- **Judges:** Howe, Durham, Russon, Howe'S, Durrant, Wilkins
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9784929

## Opinion text

WILKINS, Justice,
dissenting:
¶ 91 I respectfully dissent. I would affirm the trial court’s summary judgment in favor of defendants Bayer Corporation, AGFA Division (now known as AGFA Corporation) on the basis that the defendants (“AGFA”) owed *1091 no duty to the plaintiffs upon which a cause of action for negligence can be pursued. As a result, I would not reach the other issues addressed by the lead opinion.
¶ 92 AGFA Corporation entered into a contract with LDS Hospital to supply the x-ray processing equipment giving rise to this action. As part of that contract, AGFA informed its customer, LDS Hospital, of the ventilation requirements of the equipment, and of the risks involved from inadequate ventilation. LDS Hospital undertook to provide the ventilation for the equipment. There is no evidence in the record suggesting that AGFA had any responsibility under the contract with LDS Hospital to install, inspect, or approve the ventilation arrangements made by the hospital.
¶ 93 The plaintiffs have not made, and cannot support, a cause of action based on claims that the machine was defective or unreasonably dangerous when purchased, since they used the machine without problems for a period of years prior to its relocation into the new space prepared by the hospital. The only possible remaining claims raised by the plaintiffs sound in tort, based on claims of negligence.
¶ 94 I will assume, for purposes of this analysis, that the plaintiffs suffered the injuries of which they complain, and incurred them entirely as a result of exposure to chemical fumes emitted by the AGFA equipment located at their place of employment within LDS Hospital. These assumptions, many of which AGFA does not concede, still leave the plaintiffs without a cause of action if no tort duty exists running from AGFA to the plaintiffs. Absent such a duty, any discussion of the plaintiffs’ other issues on appeal, namely the questions of legal causation, differential diagnosis as a basis for expert medical testimony, and the nature of the plaintiffs’ injuries, become moot questions. Absent a duty, we need not reach any of those other issues, since no cause of action would lie against AGFA.
¶ 95 I cannot identify any source of a duty sufficient to hold AGFA hable in tort to plaintiffs for the failure of the hospital’s ventilation system. The AGFA representative and service person did not, at any time, test the ventilation system installed by the hospital. However, under the contractual arrangement between AGFA and the hospital, AGFA had no responsibility to test the ventilation system. AGFA supplied the hospital with the specifications required for the ventilation of the equipment, and warned the hospital of the dangers associated with inadequate ventilation. When asked by the hospital staff, or representatives of the hospital, AGFA’S representative questioned the adequacy of the ventilation, and suggested the hospital assure it had been correctly and adequately provided. There is nothing in the record to suggest that any defect in operation or maintenance of the equipment was the cause of the injuries of which the plaintiffs complain. All of the evidence in the record, and all reasonable inferences that can be drawn from the evidence in support of the claims of the plaintiffs, suggest that the plaintiffs’ exposure to the fumes was the result of a failure of the ventilation system, not any failure of maintenance or operation of the equipment itself.
¶ 96 The ventilation system was designed, installed, and operated by the hospital. AGFA only undertook the duty of installing the machine in its new location in the mammography suite and of maintaining it. The AGFA specifications for the equipment clearly described the ventilation requirements for the machine, and directed the hospital to consult with the AGFA representative if there was any doubt about that requirement. When the hospital had concerns about the ventilation requirements for the equipment, it consulted the AGFA representative. However, there is no evidence that the hospital ever asked AGFA to correct the ventilation problem or to verify the adequacy of the existing ventilation system installed by the hospital, that AGFA assumed any responsibility for the adequacy of the ventilation system, or that AGFA acted to verify, correct, or assume responsibility for the ventilation system installed by the hospital.
¶ 97 I disagree that when AGFA undertook the contractual duty to install and maintain the equipment in the room designed and built by the hospital, it undertook the responsibility to guarantee that the hospital had *1092 installed the ventilation system in accord with AGFA’S directions.
¶ 98 The admitted agreement between AGFA and the hospital was an allocation of the risks inherent in the installation, maintenance, and operation of the equipment. Those two parties chose to allocate the risks as they did. It is improper for us to attempt to redistribute those responsibilities by resort to previously unadopted and inapplicable provisions of the Restatement (Second) of Torts.
¶ 99 Finally, given the posture of the case as presented on appeal, the parties are bound by the facts they have presented and those unco'ntested facts before the trial court when the motion was decided. I would not remand with instructions for factual findings when the facts needed to support the tort theory advanced by the plaintiffs were not placed in contest in the record before the trial court.
¶ 100 I would affirm the decision of the trial court. On the uncontested facts, the plaintiffs cannot establish a tort duty owed them by AGFA, and as such, their claims must fail.
¶ 101 Associate Chief Justice DURRANT concurs in the dissenting opinion of Justice WILKINS.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9784929. Public record. Not legal advice.