Opposition — Marine Development Corp. v. Heiman

SEP 2 1976

MICHAEL RODAK, JR..CLERK

IN THE !

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No. 6- ] 6 D

MEDLIN MARINE, INCORPORATED,

Petitioner,

VS

MRS. ALANA G. HEIMAN, in Her Own Right; SANDRA JEAN HEIMAN, by

MRS. ALANA G. HEIMAN, Her Mother and Next Friend; and H. MAURICE

MITCHELL and JOSEPH W. GELZINE, Co-Administrators in Succession

With Will Annexed of the Estate of Max Heiman, Deceased, and

MARINE DEVELOPMENT CORPORATION,

Respondents.

On Petition for Writ of Certiorari to the United States Court of Appeals

for the Eighth Circuit

BRIEF FOR MEDLIN MARINE, INCORPORATED,

IN OPPOSITION

WILLIAM H. SUTTON

The First National Building, Twentieth Floor

Little Rock, Arkansas 72201

Counsel for Petitioner

ETT ETS

St. Louis Law Printing Co., Inc., 812 Olive Street 6310! 314-231-4477

fa. al

Page

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CITATIONS

Cases

Barth v. B. F. Goodrich Tire Company, 61 Cal. Rptr. 306 10

Borel v. Fibreboard Paper Products Corporation, 493 F.

ee ee SE ee vba duuduae eae ead bones 8

Burbage v. Boiler Engineering & Supply Company, 433

_e & Fe Ferree ere 10

Johnson v. Kosmos Portland Cement, 64 F.2d 193 (6th

eh SE 6 cues cB a P RGM CURD OATES UKE E eS eNKaNES 5

Suvada v. White Motor Company, 210 N.E.2d 182 (IIl.

ey er ere re er er rere 10

Texaco v. McGrew Lumber Company, 254 N.E.2d 854,

Se Ye ED oo cowed sae teusecesececn 10

Tromza v. Tecumseh Products Company, 378 F.2d 601,

Ss Ue eee GD ore ccenccecnccccconces 10

Tucson Industries, Inc. v. Schwartz, 108 Ariz. 464, 501

oe re re ee 9

Miscellaneous

Frumer & Friedman, Products Liability, §9.01 ........ 10

Frumer & Friedman, Products Liability, §16A(4)(b)(i) ... 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

cca

MEDLIN MARINE, INCORPORATED,

Petitioner,

VS.

MRS. ALANA G. HEIMAN, in Her Own Right; SANDRA JEAN HEIMAN, by

MRS. ALANA G. HEIMAN, Her Mother and Next Friend; and H. MAURICE

MITCHELL and JOSEPH W. GELZINE, Co-Administrators in Succession

With Will Annexed of the Estate of Max Heiman, Deceased, and

MARINE DEVELOPMENT CORPORATION,

Respondents.

On Petition for Writ of Certiorari to the United States Court of Appeals

for the Eighth Circuit

BRIEF FOR MEDLIN MARINE, INCORPORATED,

IN OPPOSITION

OPINIONS BELOW

The per curiam order of the Court of Appeals, not yet re-

ported, appears in Appendix B of Petitioner's Petition for a Writ

of Certiorari. The Panel Opinion of the Court of Appeals, not

reported, appears in Appendix F of Petitioner's Brief. The Sup-

plemental Memorandum Opinon of the District Court appears

=

in Petitioner's Appendix G. The Memorandum Opinion of the

District Court filed of record on March 7, 1975, appears in Pe-

titioner’s Appendix I. The District Court's Findings of Fact

appear in Petitioner’s Appendix J.

JURISDICTION

The Judgment of the Court of Appeals, was entered on May

14, 1976. A timely Petition for Rehearing was denied on May

7, 1976, and Petitioner's Petition for a Writ of Certiorari was

filed within ninety (90) days of that time. This Court's jurisdic-

tion is invoked under 28 U.S.C. §1254(1).

QUESTION PRESENTED

Whether the Eighth Circyit Court of Appeals properly held

that Marine Development, Inc. had a duty to warn Boatel and

the Heimans, that its air conditioning system could be installed

in the Heiman yacht in such a way as to draw from the engine

compartment.

ST.«TEMENT

This is an admiralty case brought pursuant to Rule 9 (h) of the

Federal Rules of Civil Procedure by the Estate of Max Heiman,

Deceased, Mrs. Alana Heiman and Sandra Heiman against

Boatel, the manufacturer of the boat; Kohler, the manufacturer

of a gasoline powered generator on the boat; Marine Develop-

ment, Inc., the manufacturer of an air conditioning unit on the

boat: and the respondent, Medlin Marine, Inc., the retailer of

the boat.!

1 The Respondent in this action, Medlin Marine, Inc., has peti-

tioned this Court for a Writ of Certiorari requesting that this Court

review the decision of the lower court in refusing to grant it indem-

nity from Marine Development, Inc., and in allowing the addition

of an inflation factor to the award for loss of contributions.

~_—

The evidence showed that carbon monoxide gas was created

by the burning of a gasoline powered generator built by Kohler

Corporation. The design of the craft called for the gas to be

exhausted at the stern of the boat just below the waterline.

Immediately over the exhaust outlet, there was an overhang with

four water drainage holes in the bottom of it. The holes were

concealed so as not to be visible when the boat was in the water.

Since there was a vacuum in the engine compartment caused by

the generator’s need for air, the exhaust fumes were sucked

through the four holes back into the engine compartment.

Between the engine compartment and the living quarters of

the boat there was a non-airtight wall. Without the air con-

ditioning operating, there would be a slight draw of air from

the living quarters to the engine compartment due to the vacuum

created by the generator. Thus, although potential for danger

existed, real Ganger was not present until the flow of air was

reversed.

The return air of the air conditioning equipment proved to be

the agent for reversal and it was installed by Boatel near a

passage that led to the engine compartment.

Marine Development Corporation, according to the findings

of the Court, did not know that its equipment could be installed

in such a way as to draw from the engine compartment and,

therefore, gave no warning of this danger.

The Court concluded that Boatel, Inc., the manufacturer of

the boat, was negligent and liable to the plasntiffs in strict lia-

bility. Marine Development, the air conditioning manufacturer,

was found negligent for failure to warn and liable in strict lia-

bility. Medlin Marine, as seller of the boat to Heiman, was

found liable in strict \sability and implied warranty. Kohler was

found not to be liabie. As between Boatel and Marine Develop-

ment, the Court assessed fault as follows:. Boatel 80%: Marine

aniiiies

Development 20%. Medlin was given judgment for indemnity

against Boatel. In a Supplemental Opinion the Court denied

Medlin’s claim for indemnity against Marine Development hold-

ing instead that Medlin and Marine Development were equally

at fault.

ARGUMENT

Respondent respectfully submits that petitioner’s petition for

a writ of certiorari should be denied for the reason that the lower

court decision regarding the liability of Marine Development

Corporation was based on the application of accepted tort prin-

ciples to the facts of this case.

The Petitioner misinterprets the reasoning of the lower Court

in assessing liabiiity against it. The Trial Judge found that Ma-

rine Development knew, or should have known, that its air

conditioning unit could be installed in such a way as to draw

air from the engine compartment. In addition, the Court found

that Marine Development knew that the engine compartment

on the Heiman yacht was not airtight. The Court concluded

that all parties knew, or should have known, that during the

life of the yacht the exhaust system could, and probably would,

malfunction causing carbon monoxide to enter the engine com-

partment. Based on those findings the Court found that Marine

Develépment had a duty to warn Boatel and the Heimans that

its air conditioning system could be installed in such a way

as to draw from the engine compartment.

In the instant case, carbon monoxide did not enter the en-

gine compartment from a faulty exhaust system, nevertheless,

carbon monoxide did, in fact, get into the engine compartment

and from there it was drawn into the living quarters of the

yacht by Marine’s air conditioning system.

The law in the United States is that where the results of

the defendant's negligence are foreseeable the fact that the re-

sult is brought about by a source not foreseen does not change

his duty, nor his liability for the resulting injuries. The landmark

case of Johnson v. Kosmos Portland Cement, 64 F.2d 193, 6th

Cir. 1933, is directly in point. In that case the defendant failed

to clean the residue out of an oil barge leaving it full of explo-

a oan

sive gas. A fire and explosion occurred when the barge was

struck by lightning. In holding that, although the lightning

was not foreseeable, the defendant’s negligence was the cause

of the resulting injuries and damages, the Sixth Circuit stated:

“We think the true rule to be that when the thing done pro-

duces immediate danger of injury, and is a substantial fac-

tor in bringing it about, it is not necessary that the author

of it should have had in mind the particular means by

which the potential force he has created might be vitalized

into injury.”

The present case presents basically the same situation. Ma-

rine, by failing to warn Boatel and the Heimans that its air

conditioning system could be installed in such a way as to draw

air from the engine compartment, created a dangerous situation.

With the knowledge that the Trial Court found Marine had, or

should have had, that carbon monoxide could get into the en-

gine compartment and that Marine’s air conditioning could be

installed in such a way as to draw air from the engine compart-

ment, Marine had a duty to warn of that danger. What was

foreseeable from is failure to warn, that is, carbon monoxide

getting into the engine compartment and being drawn into the

living quarters, is exactly what happened. The fact that the

carbon monoxide came from the portholes in the transom, other

than a faulty exhaust, should not and does not alter Marine’s

responsibility for negligently failing to warn of the danger. The

noted authority, Deam Prosser, in his handbook on Torts states

the rule thusly:

“* * * if the result is foreseeable, the manner in which it

is brought about need not be, and is immaterial.”

In the instant case the fact that the carbon monoxide got into

the engine compartment from an unexpected source does not

change Marine’s duty to warn nor its responsibility for the

breach of that duty.

—_— =

Marine next argues that it had no duty to warn because the

danger of installing the air conditioning system as it was installed

in the present case was an obvious danger. This argument com-

pletely ignores the evidence in the case. The Trial Court, sitting

as a fact finder, after hearing all of the evidence, made the fol-

lowing findings of fact from the bench:

The Court has already found that Marine did not [1783]

really understand and appreciate the effect of the improper

location of its units in terms of the hazard to life and health

involved, although it did understand the effects of such im-

proper location upon the efficient operation of its cooling

and heating equipment.

The Court finds and concludes that defendant, Marine De-

velopment Corporation, should have known of ihe hazard

to life and health posed by the improper installation of its

equipment; and, therefore, that it should have warned Boatel

in a clear and unequivocal way concerning same.

A manufacturer must know the nature and propensities of

its products and warn of dangers created by that nature and

those propensities. In this connection a distinction must be

drawn between the duty to give adequate instructions and

directions for the use or installation of a product, on the

one hand, and the duty to warn of potential hazards which

might result from deviations from such directions or in-

structions, on the other hand.

Here Marine did not know the hazards and, therefore, did

not warn against them. Its instructions requiring that the

cooling unit be located in the space to be cooled or heated

and that such units should be installed so that there would

be an adequate path for the air to circulate freely into the

units from the space being coole 4 and then from the units

back to the space being cooled were obviously and clearly

[1784] directed toward the objective of the efficient utiliza-

tion of the equipment for heating and cooling.

antes

In the eyes of Marine Development Corporation the im-

proper installation of a cooling unit in a space other than

that to be cooled would greatly interfere with the efficient

operation of the equipment. That it might also act as a

pump to draw any carbon monoxide which might be in the

engine compartment was not known or considered by

Marine prior to the investigation of this tragedy. (Pages

1461-1462).

Marine did not know of the danger involved in installing its

air conditioning system in the manner it was installed in the pres-

ent case, yet they now argue that the danger was obvious. Ma-

rine’s position in this regard is similar to that of the defendants

in the case of Borel v. Fibreboard Paper Products Corporation,

493 F.2d 1976 (Sth Cir. 1973). In that case plaintiff was seri-

ously injured as a result of working with asbestos over a long

period of time. The defendants argued on the one hand that

danger from working with asbestos was not known to them within

a certain time frame and the danger to the plaintiff was unfore-

seeable. As a second argument, they contended that the danger

was obvious to the plaintiff. In dealing with this position, the

Court stated:

“As previously mentioned, the foreseeability of the danger

must be measured in light of the manufacturer's status as

an expert and the manufacturer’s duty to test its product.

In these circumstances, we think the jury was entitled to

find that the danger to Borel and other insulation workers

from inhaling asbestos dust was foreseeable to the defend-

ant at the time the products causing Borel’s injuries were

sold. * * *. Here, the defendants gave no warning at all.

They attempt to circumvent this finding by arguing, dis-

ingenuously, that the danger was obvious.”

Referring to the defendant's argument as anomalous, the Court

easily concluded that the evidence on obviousness was not “so

compelling that reasonable and fairminded persons would have

_ ea

concluded that Borel discovered the defect and was aware of the

danger, and nevertheless proceeded unreasonably to make use

of the product.

The Trial Court found that both Boatel and Marine were

ignorant of the potential dangers involved in the air condition-

ing system. That ignorance does not relieve Marine of its lia-

bility for failing to warn of the dangers involved in the installa-

tion of its air conditioning system. Marine had a duty to know

the propensities of its air conditioning system. In Tucson In-

dustries, Inc. v. Schwartz, 108 Ariz. 464, 501 P.2d 936 (1972),

the Court stated:

“The maker of an article for sale or use by others must

use reasonable care and skill in designing it and provid-

ing specifications for it so that it is reasonably safe for the

processes for which it is intended and for uses which are

foreseeable probably [sic]. A person who undertakes such

manufacturing will be held to the skill of an expert in

that business and to an expert's knowledge of the art, ma-

terials and processes. Thus he must keep reasonably abreast

of scientific knowledge and discoveries touching his prod-

uct and the techniques and devices used by practical men

in his trade. He may also be required to make tests to de-

termine the propensities and dangers of his product.”

Marine was woefully short of complying with the above rule.

Being ignorant of the propensities and potential dangers of

its product, it is hardly in a position to avoid liability on the

grounds that such dangers were obvious to others.

Marine, throughout its brief, argues that it had no duty to

warn because it was merely a component part manufacturer.

We do not understand the comfort which that argument seems

to give Marine. Component part manufacturers are held to the

same duty of care as manufacturers of other articles for sale.

They are required to use ordinary care in the manufacture and

—

sale of their products. It is clear from the cases that compo-

nent part manufacturers, just like manufacturers of completed

products, must use ordinary care and may be held liable in neg-

ligence or strict liability when they breach their duty of care.

See Barth v. B. F. Goodrich Tire Company, 61 Cal. Rptr. 306;

Suvada v. White Motur Company, 210 N.E.2d 182 (Ill. 1965);

Burbage v. Boiler Engineering and Supply Company, 433 Pa.

319, 249 A.2d 563; Tromza v. Tecumseh Products Co., 378

F.2d 601, 605-06, 3rd Cir. (1967); Texaco v. McGrew Lum-

ber Company, 254 N.E.2d 854, 117 Ill. App. 2d 351 (1969).

Commenting that the old case of McPherson v. Buick Motor

Company left open the question as to whether the component’s

part’s manufacturer would be liable, Frumer and Friedman,

Products Liability, $9.01 comments:

“There is no good reason why he shouldn't be. Subsequent

New York decisions and the cases generally make it clear

that the manufactufer of a component part is just as liable

for defects in the part due to his negligence as any other

manufacturer.”

As to the liability of components’ parts’ manufacturer in strict

liability cases, Frumer and Friedman, Products Liability §16A

(4) (b) (i) states:

“The view expressed in connection with the warranty cases,

that assembler and the manufacturer of the component

parts should both be strictly liable in warranty, leaving the

assembler to his remedy against the part manufacturer by

the way of indemnity, is the same as that applied to the sit-

uation under discussion. The strict tort liability cases are

in accord with the above view that the rule applies to the

manufacturer of a component part.”

The failure to warn duty is upon the component's part’s manu-

facturer when he has, or should have, knowledge concerning

the propensities of his product which the further processor or

assembler may not have.

ax 1f ao

In the instant case, Marine was more than a mere component's

part’s manufacturer. The Trial Court made the following find-

ings of fact:

“It is further clear from the evidence that Marine Develop-

ment Corporation sells more than off-the-shelf products to

its customers, whether those customers be the manufacturers

of boats or its franchise dealers.

Marine, in fact, offers advice and assistance with respect

to the design and installation of components which it manu-

factures.

“Based on the above, it is clear that Marine, with its

superior knowledge and skill, had the duty to warn not

only Boatel but the Heimans also that the air condition-

ing system that it manufactured could be installed in such

a way as to draw from the engine compartment. That fail-

ure to warn proximately caused the death of Mr. Heiman.

CONCLUSION

Respondent respectfully submits that Marine Development's

Petition for Certiorari should be denied for the reasons that under

the law and the facts of this case Marine's liability was properly

decided by the Trial Judge who heard the evidence.

Respectfully submitted,

SMITH, WILLIAMS, FRIDAY,

ELDREDGE & CLARK

The First National Building

Twentieth Floor

Little Rock, Arkansas 72201

By WILLIAM H. SUTTON

Attorney for Petitioner

Medlin Marine, Incorporated