# Petition for Writ of Certiorari — Clark Equipment Co. v. Wirth

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 876

## Text

ad = FILED.
oF 72-66. | JUL 12 1972
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In the Supreme Cowt |

of the United States

OCTOBER TERM, 1971

WILKES WIRTH,
Respondent,
V.
(CLARK EQUIPMENT COMPANY,
a corporation,
Petitioner,
and
MATSON NAVIGATION COMPANY,
a corporation,
Defendant.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

“ ROLAND F. BANKS, JR.

12th Floor Standard Plaza
Portland, Oregon 97204

Counsel for Petitioner
RIDGWAY K. FOLEY, JR.

SOUTHER, SPAULDING, KINSEY,
WILLIAMSON & SCHWABE

Of Counsel

STEVENS-NESS LAW PUB. CO., PORTLAND, ORE. 7-72

SUBJECT INDEX

Opinion Below-......
en

Questions presented for Review

1. Did the United States Court of Appeals for
the Ninth Circuit prejudicially err in vio-
lating the abstention doctrine when it re-
versed defendant’s judgment below and
premised its decision upon a forecast of an
important (and heretofore undecided) pol-
icy issue of Oregon substantive law, when
that identical issue was pending before the
Oregon Supreme Court?

. Did the United States Court of Appeals for
the Ninth Circuit erroneously forecast the

a law of strict liability when it de-
cided that an open, obvious, patent and
known condition could constitute a “defect”
under Restatement § 402A? _ :

. Where the cause was submitted by the Dis-
trict Court to the jury on a negligence the-

ory, and a strict liability count was with-
drawn from the jury’s consideration be-
cause the condition was open and obvious
and defendant received a a verdict, did
the jury, by deciding that the conditions did
not constitute negligence, necessarily decide
sub silentio that any “defective condition”
was not “unreasonably dangerous”?

Statutory Provisions Involved

Statement of the Case
A. Statement of facts
B. Basis for federal jurisdiction

SUBJECT INDEX (Cont.)

Argument
Reasons for Allowing the Writ
1. The Ninth Circuit should have ab-
stained from deciding an important pol-
icy issue of substantive law which was
pending at that very moment before the

gon Supreme Court i
2. The Ninth Circuit erroneously forecast
Oregon law 16

8. Assuming, as the Ninth Circuit did, the
existence of a defect, no reversible error
was committed because the jury verdict
for defendant a jortiori determined that
the product was not “unreasonably dan-
gerous” to the user or consumer ____ 28

Conclusion . 28

INDEX OF AUTHORITIES

Cases Cited

Askew vy. Howard-Cooper Corporation, et al
(Pending—Oregon Supreme Court—Argued
March 1, 1972 9, 10, 11, 16, 18, 45

Anderson v. Klix Chemical Co., 256 Or. 199, 472
P.2d 806 (1970) 25

Bartkewich v. Billings, 482 Pa. 351, 247 A.2d
603 (1968) 49
spe v. Havir Manufacturing Corp., 114 N.J.
uper. 397, 276 A.2d 590 (1971) 19, 49, 50
Blake Vv. Orchards, 249 Or. 487, 437 P.2d 757
(1968 35

Blankenship v. Morrison Machine Company, 255

Page

157 (D. Or. 1969) 25, 36
Brown V. General Motors Corporation, 355 F.2d
814 (4th Cir. 1966) 49, 58

Campo V. Scofield, 301 N.Y. 468, 95 N.E.2d 802
(1950) 52, 54, 55

Cintrone v. Hertz Truck Leasing, etc., 45 N.J.
434, 212 A.2d 769 (1965) ____. 14

City of Chicago v. Atchison, T. & S.F.R. Co.,
357 U.S. 77, 78 S. Ct. 1068, 2 L. Ed. 2d
1174 (1958) 15

Davis v. Mann, 377 U.S. 678, 84 S. Ct. 1441, 12
L. Ed. 2d 609 (1964) - a 14
Doucette v. Vincent, 194 F.2d 834 (1st Cir.
1952) 19, 50

INDEX OF AUTHORITIES (Cont.)

Moore’s Time-Saving Ei :
Inc., 432 F.2d 1088 (7th Cir. 1970) _. 49

Escola v. Coca. Cola Bottling Co. of Fresno, 24
Cal. 2d 458, 150 P.2d 486 (1944) 0)

“ee ae “uwus 213 Or. 522, 326 P.2d 451
58

Fisher v. Johnson Milk Co., 388 Mich. 158, 174
N.W.2d 752 (1970) 49, 58

ear OK Hull Corp., 446 F.2d 34 (9th Cir.
18, 19, 32, 49, 50, 53

Macnee Vv. Forssenius, 380 U.S. 528, 85 S. Ct,
1177, 14 L. Ed. 2d 50 (1965) 14

Heaton v. Ford Motor Co., 248 Or. 467, 485
P.2d 806 (1967) 17, 24, 25, 27, 88, 46, 48

Higgins v. Paul Hardeman, inc., ‘et al, — Mo.
—, 457 S.W.2d 943 (1970)

Jamieson V. Woodward and Lothrop, 247 F.2d
23 (D.C. Cir. 1957) 58, 56

Kaiser Steel Corp. v. W. S. Ranch Co., 391 U.S.
592, 88 S. Ct. 1758, 20 L. Ed. 2d 835 (1968) 15
Katz v. Arundel-Brooks Concrete C
151 ane 731 (Md. App. 1959)
chi

54
Kerber v. American Machine & Foundry Com-
pany, 411 F.2d 419 (8th Cir. 1969) _._. . 58

Louisiana Power & Light Co. v. City of Thibo-
cauxz, 360 U.S. 25, 79 S. Ct. 1070, 3 L. Ed.
2d 1058 (1959)

McGrath v. White Motor 38 Ci 92 Adv. Sh. 777,

— Or. —, 484 P.2d 838 -esifg

McNeese v. Board of Education, 373 U.S. 668,
84 S. Ct. 1433, 10 L. Ed. 2d 622 (1968)

Maas 1969) 10 Ariz. App. 520, 460 P.2d ett i.

Marker v. Universal Oil Products Co., 250 F. 2d
603 (10th Cir. 1957) 52

INDEX OF AUTHORITIES (Cont.)

Meredith v. City of Winter Haven, 320 U.S.
228, 64 S. Ct. 7, 88 L. Ed. 9 (1948) _.___. 13
Mitchell v. Trawler Racer, Inc., 362 U.S. 539,
80 S. Ct. 926, 4 L. Ed. 2d 941 (1960) ___. 19, 50
Morrow Vv. Trailmobile, Inc., 12 Ariz. App. 578,
473 P.2d 780 (1970)
Murphy v. Eaton, Yale & Towne, Inc., 444 F.2d

a 317 6 ae cg ew = 49

yers V. Montgomery Wa ompany,

A.2d 855 (Ct. App. M.D. 1969) 49

Palmer Vv. me ory econeen, Inc., 3 Wash. App.
508, 476 P.2d 713 (1970) 20, 22, 59

Parker Vv. Haesler Plumbing & Heating Com-
pany, 388 P.2d 516 (Wyo. 1964) _.. 53

Pike v. Frank J. Hough Company, 2 Cal. 3d 465,
85 Cal. Rptr. 629, 467 P.2d 229 (1970)
sccnighitdacamanceiaid 8, 20, 21, 22, 37, 38, 39, 40, 58, 59

Posey Vv. Clark Equi t Company, 409 F.2d
560 (7th Cir. 1969) 53

Railroad Commission of ‘Texas v. Pullman Com-

pany 312 U.S. 496, 61 S. Ct. 648, 85 L. Ed.
71 (1941) 12

Reets v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25
L. Ed. 2d 68 (1970) _... 15

Shanklin v. Allis-Chalmers Manufacturing Com-
pany, 254 F. Supp. 223 (S.D. W. Va. 1966) 53
Spector Motor Service, Inc. v. McLaughlin, 323
U.S. 101, 65 S. Ct. 152, 89 L. Ed. 101 (1944) 15
Speyer, Inc. v. Humble Oil & Refining Company,
275 F. Supp. 861 (W.D. Pa. 1967) aff’d
403 F.2d 766 (3d Cir. 1968) 14
Standard Conveyor Company v. Scott, 221 F.2d
Cog. Le ene 53, 56
Stevens v. Durbin-Durco, Inc., 377 S.W.2d 348
GR NE cee a ae 53, 55

Tomicich v. Western-Knapp Engineering Co.,
292 F. Supp. 323 (D. Mont. 1968) Aff’d 423
F.2d 410 (9th Cir. 1970) 18, 48, 53

INDEX OF AUTHORITIES (Cont.)

Tyson v. Long Manufacturing Company, 249
N.C. 557, 107 S.E.2d 170 (1959) 58

Villaneuva v. Nowlin, 77 N.M. 174, 420 P.2d
764 (1956) 4

Warner v. Kewanee Machinery & Conveyor
Company, 411 F.2d 1060 (6th Cir. 1969),
cert. denied 398 U.S. 906, 90 S. Ct. 1685, —

L, Ed. 2d — (1970) -.... ..18, 49, 50
Wights v. Staff Jennings, 241 Or. 301, 405 P.2d
Re 3 Gee 20, 21, 58

Wirth v. Clark Equipment Company, 457 F.2d

Statutes and Censtitutional Provisions
28 U.S.C. : RATS TE a Cece 2, 4, 10, 48
28 U.S.C. § 1291 _._...__. x a: ae
28 U.S.C. : CE Sa OM 10
ath oot & 2°) venta ener: 2, 4, 10, 48

Texts, Treatises and Other Authorities

Foley, Fidgway K. Jr., “A Survey of the Mari-
time Doctrine of Seaworthiness,” 46 Or. L.
Rev. 369 n. 8 silibochetbliemanciaiacion 50

Harper and James, “The Law of Torts” 1545. 40

2 Restatement 347, Torts (2d) § 402A
seocenhisipthed ticuded 3, 22, 27, 33, 34, 36, 46, 47, 48, 59, 60

2 Restatement 352, Torts (2d) § 402A, ~~ : “

In the Supreme Court
of the United States

ie | Ree

OCTOBER TERM, 1971

WILKES WIRTH,
Respondent,
v.
CLARK EQUIPMENT COMPANY,
a corporation,
Petitioner,
and
MATSON NAVIGATION COMPANY,
a corporation,
Defendant.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT

Clark Equipment Company, a corporation, prays
that a writ of certiorari issue out of this Court to re-
view the judgment of the United States Court of Ap-
peals for the Ninth Circuit entered in the above-en-
titled case.

The opinion of the United States Court of Appeals
for the Ninth Circuit is reported at 457 F.2d 1269
(9th Cir. 1972); the full text of the opinion appears
in Appendix A (A. 29-40).' The full text of the order
on petition for rehearing, not being officially or un.
officially reported, appears in Appendix B (A. 41).

The United States District Court for the District
of Oregon entered a judgment based upon a jury ver-
dict rendered in favor of petitioner, Clark Equipment
Company. This judgment has not been reported, of-
ficially or unofficially, and appears verbatim in Ap-
pendix C (A. 42).

JURISDICTION

The judgment sought to be reviewed is dated and
was entered of record on March 16, 1972, and the or-
der of the United States Court of Appeals for the
Ninth Circuit denying petitioner’s petition for rehear-
ing is dated and was entered of record on April 18,
1972.

The statutory provisions believed by the petitioner

' References in this petition are as follows: “A” refers to
Appendix hereto; “Tr.” refers to the transcript of testi-
mony; “R” refers to the record certified and transmitted
from the United States District Court for the District of
Oregon to the United States Court of Appeals for the Ninth
Circuit. Petitioner has requested the Clerk below to certify
and transmit to this Court the entire record, including tran-
script, court files with index thereto, and original exhibits.

to confer jurisdiction upon this Court to review the
judgment in question are: 28 U.S.C. § 1254 and 28
U.S.C. § 2101(c).?

QUESTIONS PRESENTED FOR REVIEW

1. Did the United States Court of Appeals for the
Ninth Circuit prejudicially err in violating the absten-
tion doctrine when it reversed defendant’s judgment
below and premised its decision upon a forecast of
an important (and heretofore undecided) policy issue
of Oregon’s substantive law, when that identical issue
was pending before the Oregon Supreme Court?

2. Did the United States Court of Appeals for the
Ninth Circuit erroneously forecast the Oregon law
of strict liability when it decided that an open, obvi-
ous, patent and known condition could constitute a
“defect” under Restatement § 402A?

3. Where the cause was submitted by the District
Court to the jury on a negligence theory, and a strict
liability count was withdrawn from the jury’s con-
sideration because the condition was open and obvious,
and defendant received a jury verdict, did the jury,
by deciding that the conditions did not constitute neg-
ligence, necessarily decide sub silentio that any do-
fective condition” was not “unreasonably dangerous”?

2 These statutes, in relevant part, are reprinted in Ap-
pendix D (A. 43-44).

*In this petition, petitioner will refer to the concept of
strict liability in tort as embodied in the Restatement as
“Restatement § 402A.” The full citation is 2 Restatement
347, Torts (2d) § 402A, and the comments and illustrations
appended thereto.

STATUTORY PROVISIONS INVOLVED

The following relevant Federal statutes are re
printed in Appendix D: 28 U.S.C. § 1254 (A. 43); 28
U.S.C. § 1201 (c) (A. 48-44).

STATEMENT OF THE CASE
A. Statement of facts.

Petitioner, Clark Equipment Company (herein.
after referred to as “Petitioner” or “defendant”),
manufactured a Clark Van Carrier, used in loading
and unloading operations on the docks. Respondent,
Wilkes Wirth (hereinafter “Mr. Wirth” or “plain.
tiff”), a longshoreman, commenced a bodily injury
action in the United States District Court for the
District of Oregon, based upon diversity of citizen-
ship, against defendant and Matson Navigation Com-
pany. Mr. Wirth’s action arose out of injuries sus-
tained when he was struck by a Clark Van Carrier
in Portland, Oregon on October 16, 1966, in the van
storage area behind the dock at Terminal 4, Pier 2
(R. 1, 23; Tr. 8).

Plaintiff contended that defendant, manufacturer
of the Clark Van Carrier (R. 1, 23), was liable in
negligence and strict liability in tort as the supplier
of unreasonably dangerous equipment. Plaintiff's
case against Matson Navigation Company was found-
ed upon unseaworthiness (R. 1, 23).

Plaintiff’s diversity action was tried against both

5

defendants on September 9 and 10, 1969, before the
Honorable Robert C. Belloni, United States District
Judge for the District of Oregon, sitting with a jury
(Tr. 2, 140). At the conclusion of plaintiff’s case in
chief, the Court granted Matson Navigation Com-
pany’s motion for a directed verdict (R. 1, 32; Tr.
158). Mr. Wirth did not appeal that ruling.

The District Court submitted the case to the jury
against defendant Clark upon the theory of negli-
gence, and withdrew the strict liability count. The
jury returned a verdict for defendant Clark. Judg-
ment was entered in favor of Clark and against plain-
tiff on September 11, 1969 (R. 1, 30).

The evidence revealed that plaintiff was injured
during his employment in a container yard (R. 1, 23;
Tr. 8, 142). Containers constitute a modern method
of handling ships’ cargoes. The cargo is preloaded,
often at some distance from the dock, in “containers”
or “vans” 20 to 24 feet long, and approximately 8
feet wide and 8 feet high, weighing, when fully
loaded, up to 25 tons (Tr. 202, 225, 32). The bulk of
these containers requires special ships, special cranes,
large dock storage yards and special dockside handling
equipment (Tr. 94-99). At Terminal 4, where plain-
tiff was employed, the cargo vans were loaded and
unloaded from trucks and flatbed railroad cars and
shifted about the dock by a Series 510 Clark Van
Carrier manufactured by defendant (R. 1, 23; Tr.
233-235, 200, 224-225, 76-78). The Clark Van Carrier
hoists the cargo van after straddling it. The machine

consists of a large frame, open through the center,
with an engine mounted on top which drives the wheels
by a chain drive. It weighs 30 tons unloaded, operates
forward or backward, can move in a very short radius
and can travel up to 20 miles per hour (Tr. 136, 174,
56, 178, 195, 230; Pl. Ex. 8B, 52D through 52L). The
operator occupies an enclosed cage which shares, with
an engine, a platform jutting out at the top rear of
the machine. When the Clark Van Carrier is driven
forward, a large portion of the machine is forward of
the vehicle operator (R. 256, 99; Pl. Ex. 8B, 52D
through 52L).

Plaintiff contended that the operator of the ma-
chine suffered visual limitation (Tr. 56, 61, 99-100,
106-107, 114-118, 225-226, 228: Pl. Ex. 16A).

Plaintiff was employed as a “block man” (Tr. 9,
10, 66). When the machine straddles a van prepara-
tory to picking up a load from the trailer or flatbed
truck, a block man stands below to release a “dog”
which fastens the van to the trailer. Similarly, when
the Van Carrier places a van down on the trailer of a
flatbed truck, the block man blocks the van to the
trailer by knocking the “dog” into place (Tr. 9, 10,
46, 66, 154). This work compelled plaintiff to be un-
der and around the Clark Van Carrier.

Nevertheless, at or about the time of the accident,
plaintiff was not working, but was “having a cigar-
ette, waiting for something to happen.” {Tr. 15.) No
one actually saw the plaintiff struck, and no one
actually knows where he was at the time of his acci-

7

dent. Piaintiff had no recollection of the incident. The
driver of the Van Carrier looked down the passage-
way where plaintiff was allegedly struck prior to en-
tering it; although possessed of unimpeded visibility
at that time, the operator observed no person there
(Tr. 66, 67). We may logically infer that plaintiff
walked in front of the Van Carrier and suffered his
injury. Both the operator of the Van Carrier and the
plaintiff had worked with the machine in the past and
were familiar with its condition, structure, and op-
eration (Tr. 65, 158, 154).

Plaintiff tried the case on the theory that limita-
tions placed upon the operator’s field of vision made
the Van Carrier dangerous to workmen and impelled
a safer design in respect to safety features and vision
aids. The parties adduced disputed testimony as to the
practicality and necessity of additional safety fea-
tures.

The United States District Court for the District
of Oregon withdrew the strict liability count from
jury consideration because the machine did not have
a concealed defect; instead, the condition was open
and obvious (Tr. 162-163, 256). Notwithstanding this
ruling, plaintiff’s opening brief in the Ninth Circuit
was addressed to the contention that strict liability
applied in Oregon to bystanders. (See Brief of plain-
tiff-appellant, passim.)

Defendant’s response to plaintiff’s arguments
(Brief of defendant-respondent, passim), pointed out
that open and obvious conditions did not constitute

defects under the Restatement § 402A strict liability
theory; thus, the Ninth Circuit was not required to
determine whether or not Oregon would apply strict
liability to the bystanders (Brief of defendant-re.
spondent 10-11). Defendant remarked that plaintiff
had cited no cases discussing the issue of whether or
not strict liability was applicable to open and obvious
conditions (Brief of defendant-respondent 12) and
that the issues argued by the plaintiff were not truly
representative of those raised by the District Court
decision.

In the interim, the California Supreme Court
rendered an aberration entitled Pike v. Frank J.
Hough Company, 2 Cal. 3d 465, 85 Cal. Rptr. 629,
467 P.2d 229 (1970). Plaintiff’s reply brief seized
upon this decision to change the thrust of his appeal
and contend that open and obvious conditions consti-
tuted “defects” under California law; from this prem-
ise, he argued that Oregon would follow California’s
decision (see Reply Brief of plaintiff-appellant, pas-

sim).

An extensive time lag (caused by a heavy case
load) separates briefing and argument in the Ninth
Circuit. During that passage of time, several addi-
tional jurisdictions decided that an open and obvious
condition did not constitute a defect under strict lia-
bility.

“See cases contained in Argument 2, infra, and in Ap-
pendix E. Many of these additional authorities, favoring
petitioner’s position, were forwarded to the United States
oe of Appeals for the Ninth Circuit prior to oral argu-
men

During the instant appeal, the identical question
was wending its way to the Oregon Supreme Court in
a case entitled Claud O. Askew v. Howard-Cooper
Corporation et al. Defendants in each case were repre-
sented by the same attorney. In Askew, the Oregon
circuit court (general jurisdiction trial court) sus-
tained defendant’s motion for judgment of involun-
tary nonsuit on both negligence and strict liability
counts on May 27, 1971. The issue there was identical
to the present case: does an open and obvious condi-
tion constitute a “defect” under strict liability [and
for purposes of negligence considerations] in Oregon?
The plaintiff in Askew perfected his appeal on June
18, 1971.°

The parties argued the instant case before the
United States Court of Appeals for the Ninth Circuit
in San Francisco on December 10, 1971. Briefing in
the Ninth Circuit had been completed prior to the
trial court decision in Askew. During oral argument,
counsel for defendant Clark advised the Ninth Circuit
that the identical issue was pending in the Oregon
Supreme Court, had been briefed, and would be ar-
gued in the near future. Counsel asked the Court to
abstain from ruling in this case to allow the Oregon
Supreme Court to decide the substantive legal issue.
This was the first time that such information reason-

* Relevant portions of respondent’s (defendant’s) brief
in Askew V. Howard-Cooper Corporation, et al are reprinted
herein as Appendix E (A. 45-60), demonstrating the argu-
ment and authorities raised in the Oregon Supreme Court.
This cause was argued before the Oregon Supreme Court
Wednesday, March 1, 1972.

10

ably could be brought to the Ninth Circuit’s attention
because of the timing of the two appeals and the time
lag between briefing and argument in the respective
courts. ®

Despite defendant’s request that the Ninth Circuit
abstain from deciding this important question of Ore.
gon substantive law, pending the Oregon Supreme
Court decision in Askew, the Ninth Circuit rendered
judgment reversing the District Court and remand-
ing this cause for a new trial on March 16, 1972
(A. 29-40). A timely petition for rehearing requested
withdrawal of the opinion and application of the ab-
stention doctrine. The Ninth Circuit denied peti-
tioner’s petition for rehearing on April 18, 1972 (A.
41).

Petitioner Clark Equipment Company prays that a
writ of certiorari issue out of this Court to review
the judgment of the United States Court of Appeals

For the Ninth Circuit.

B. Basis for federal jurisdiction.

District Court jurisdiction is founded upon 28
U.S.C. § 1832, and jurisdiction of the United States
Court of Appeals for the Ninth Circuit is premised
upon 28 U.S.C. § 1291. Jurisdiction of this Court is

©The Ninth Circuit advises counsel that they do in fact
record some oral arguments, but that said arguments, if re-
corded, are not available for any purposes. Counsel had
hoped to transcribe and submit to this Court the record of
the argument wherein he requested the Ninth Circuit to
abstain pending the Oregon Supreme Court decision.

11

based upon 28 U.S.C. § 1254 and 28 U.S.C. § 2101
(c) (A. 48-44).

ARGUMENT

Three fundamental reasons appear for granting
this writ. First, the Ninth Circuit has decided an im-
portant state policy question in the absence of Oregon
law when it should have abstained from so doing since
the identical question had been presented to the Ore-
gon Supreme Court and was pending decision.’

Second, the Ninth Circuit has determined an im-
portant state policy question in conflict with the ap-
plicable Oregon law. The question decided recurs of-
ten. The decision is in derogation of the developing
majority trend throughout the country.

Third, the Ninth Circuit decision ignores the nec-
essary effect of the jury verdict for defendant on the
negligence issue. If the jury determined that defend-
ant was not negligent, a fortiori, the jury determined
that the product was not “unreasonably dangerous”
whether or not it was “defective.”

1. The Ninth Circuit should have abstained from de-
ciding an important policy issue of substantive law which
was pending at that very moment before the Oregon
Supreme Court.

For three decades this Court has developed a doc-
trine requiring federal courts, as the essence of fed-

7 The Askew case was argued by counsel to the Oregon
Supreme Court on Wednesday, March 1, 1972, at 1:30 p.m. ;
the Ninth Circuit opinion was rendered March 16, 1972, and
rehearing was denied April 18, 1972.

12

eralism, to avoid forecasting state law, where there
exists reasonable likelihood that the issue would be de.
cided by the state court in the foreseeable future, In
the instant case, the Ninth Circuit was timely advised
of a pending case in the Oregon Supreme Court which
would decide the substantive issue involved. The
Court was asked to abstain and refused to do go, Its
decision, undoubtedly contrary to the majority trend,
inaccurately forecasts Oregon law.

The abstention doctrine appears to be rooted in
Railroad Commission of Texas v. Pullman Company,
312 U.S, 496, 499, 61 S. Ct. 648, 644-645, 85 L. Ed.
971 (1941). A Texas Railroad Commission order re-
quired that sleeping cars being operated within the
state of Texas be continuously in charge of an em-
ployee having the rank and position of a pullman con-
ductor. The case questioned the constitutionality of
the statute under which this order was promulgated.
This Court remanded the cause to the District Court,
with directions that the parties pursue the action in
the state courts, saying:

“. . - Had we or they [lower court judges] no
choice in the matter but to decide what is the law
of the state, we should hesitate long before re-
jecting their forecast of Texas law. But no mat-
ter how seasoned the judgment of the district
court may be, it cannot escape being a forecast
rather than a determination.”

In the instant case, the Ninth Circuit has predicted
Oregon law incorrectly. This decision disparages the
essence of federalism.

13

Chief Justice Stone provided marrow to the con-
cept in Meredith v. City of Winter Haven, 320 U.S.
228, 64 S. Ct. 7, 88 L. Ed. 9 (1943), when he required
the presence of “special circumstances” in order to
impel federal court declination to answer a question
of state law. Some of the special circumstances dis-
cussed were (1) where abstention is in furtherance
of a recognized and defined public policy, (2) where
the question concerns the fiscal affairs of the state,
(3) where the federal decision would create undue in-
terference with state administrative functions, and
(4) where federal action would cause unnecessary de-
termination of a constitutional question. Particularly
the Court should abstain in the instant case for, as
Chief Justice Stone stated, 320 U.S. at 236, 64 S. Ct.
at 12: 7

“. .. It is the Court’s duty to do so [abstain]

when a suit is pending in the state courts, where
the state questions can be conveniently and au-
thoritatively answered, at least where the parties
to the federal court action are not strangers to
the state action. ...”

This Court further refined the concept in Louisi-
ana Power & Light Co. v. City of Thibodaux, 360 U.S.
25, 79 S. Ct. 1070, 3 L. Ed. 2d 1058 (1959). This di-
versity case concerned a problem of interpretation of
a state eminent domain statute. The Court listed two
important countervailing interests which call for in-
voking the abstention doctrine: (1) the avoidance of
a premature or unnecessary decision of a serious fed-
eral constitutional question, or (2) the avoidance of

t4

the hazard of unsettling some delicate balance in the
area of federal-state relationship. The second reason
was found present by the majority. Mr. Justice Bren.
nan, dissenting, asserted that the issue involved had
been previously settled by the state, 360 U.S. at 35,
79 S. Ct. at 1076. In the present case, undoubtedly
the substantive issue has not been decided by the Ore.
gon Supreme Court, although it is presently pending
before that tribunal. Thus, the abstention doctrine
clearly applies.

Products liability represents “an unsettled state
of the law.’”® Where such a situation exists, federal
courts are clearly justified, in the interest of avoiding
federal-state friction, to stay their hand until the
state has determined its course of action. As said by
this Court in Harman v. Forssenius, 380 U.S. 528,
534, 85 S. Ct. 1177, 1182, 14 L. Ed. 2d 50 (1965):

“. .. The [abstention] doctrine, however, con-
templates a deference to state court adjudication
only be made where the issue of state law is un-
certain.”

Accord, Davis v. Mann, 377 U.S. 678, 690, 84 S. Ct.
1441, 1447, 12 L. Ed. 2d 609 (1964); McNeese y.
Board of Education, 373 U.S. 668, 673-674, 84 S. Ct,

® For example, on the question of whether or not strict
liability in tort extends beyond sellers to lessors, compare
Cintrone Vv. Hertz Truck Leasing, Etc., 45 N.J. 434, 212
A.2d 769 (1965), with Speyer, Inc. vy. Humble Oil & Refin-
ing Company, 275 F. Supp. 861 (W.D. Pa. 1967), aff'd 403
F.2d 766 (3d Cir. 1968). The instant case [see Argument 2,
infra] presents a likewise unsettled area of the law, although
the majority rule recognizes that the condition which is
known and patent, open ard obvious, cannot be “defective.”

15

1438, 1486-1437, 10 L. Ed. 2d 622 (1963); City of
Chicago V. Atchison, T. & S.F.R. Co., 357 U.S. 77,
88, 78 S. Ct. 1063, 1067, 2 L. Ed, 2d 1174 (1958);
Spector Motor Service, Inc. v. McLaughlin, 323 U.S.
101, 105, 65 S. Ct. 152, 154, 89 L. Ed. 101 (1944). In
the instant case, deference to state court adjudication is
impelled because the issue of state law is now uncer-
tain, but is certain to be decided in the near future.

As recently as last year, Mr. Justice Douglas
wrote in Wisconsin v. Constantineau, 400 U.S. 4383, 91
S. Ct. 507, 511, — L. Ed. 2d — (1971):

“, . . Thus, our abstention cases have dealt
with unresolved questions of state law which only
a state tribunal could authoritatively construe.’®

Mr. Chief Justice Burger, dissenting, observed, 400
US. at 442-4438, 91 S. Ct. at 512:

“This very wise doctrine is an essential one of
policy and is a keystone of federalism. . . .”

Abstention is demanded here where the question of
state law is unresolved but will be determined forth-
with by the State Supreme Court. Products liability
represents issues of “vital concern” to the state of
Oregon and presents recurring issues. In that regard,
the language of this Court in Kaiser Steel Corporation
v. W. S. Ranch Co., 391 U.S. 592, 594, 88 S. Ct. 1753,
1754, 20 L. Ed. 2d 835 (1968), concerning a question

° Citing Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788,
25 L. Ed. 2d 68 (1970), and City of Meridian v. Southern
Bell Tel. & Tel. Co., 358 U.S. 639, 79 S. Ct. 455, 3 L. Ed 2d
562 (1959).

16

of water rights in the arid state of New Mexico, seems
salient:

“. + - Sound judicial administration requires
that the parties in this case be given the benefit
of the same rule of law which will apply to all
other businesses and landowners concerned with
the use of this vital state resource.”

Similarly, sound judicial administration demands that
the parties in the instant case be given the benefit of
the identical rule of law which will apply to all other
parties in the future in the state of Oregon in this
vital jural area. The Ninth Circuit erred in refusing
to abstain.

2. The Ninth Circuit erroneously forecast Oregon law.

The manufacturer or seller of a product is not
liable to a remote user, either under strict liability in
tort or negligence theories, if the condition causing
the harm is open, obvious, apparent, patent, and
known to the user. Such a condition does not make
the product defective or unreasonably dangerous, and
the authorities almost universally impel a judgment
for the manufacturer and seller as a matter of law."°

The producer of goods does not retain control of
his product once it enters the stream of commerce.
The manufacturer is not required to build the ultimate
in safety; his duty is merely to produce a product

'© Appendix E (A. 45-60) contains the salient portions
of respondent’s brief in Askew Vv. Howard-Cooper C

orpora-
tion in the Oregon Supreme Court, and sets forth this posi-
tion (as argued to that Court) in greater detail.

17

which is reasonably fit, as represented, without patent
perils. All persons know that heavy instruments will
crush, sharp devices will cut, and that a heavy piece
of machinery will cause injury if one steps in front of
it. The manufacturer need not warn or protect against
such obvious potentialities.

Oregon has adopted the Restatement § 402A con-
cept of strict liability in tort. Heaton v. Ford Motor
Co., 248 Or. 467, 470, 435 P.2d 806 (1967).

Before liability can be imposed upon a manufac-
turer or supplier under this concept, plaintiff must
establish that the product was in a defective condi-
tion when it left the hands of the supplier. A “defec-
tive condition” is defined as “a condition not contem-
plated by the ultimate consumer, which would be un-
reasonably dangerous to him.” Restatement § 402A,
commen. g. In the instant case, the Clark Van Car-
rier was in the identical condition contemplated by
the user and consumer and hence was not defective.
Any limitation on the operator’s vision was known and
apparent to Mr. Wirth and to the operator, both of
whom were familiar with the machine.

Furthermore, liability does not attach unless the
alleged “defective condition” renders the product “un-
reasonably dangerous.” Heaton v. Ford Motor Co.,
supra, 248 Or at 470; Restatement § 402A. The Re-
statement defines “unreasonably dangerous” as “dan-
gerous to an extent beyond that which would be con-
templated by the ordinary consumer who purchases it,
with the ordinary knowledge common to the commun-

18

ity as to its characteristics.” Restatement § 402A,
comment i.

All dangers which the plaintiff asserted were
open, obvious, and fully contemplated by the plaintiff
and his employer. The strict liability in tort doctrine
applies solely to latent or hidden dangers. Maas y,
Dreher, 10 Ariz. App. 520, 460 P.2d 191 (1969).

The decisions from jurisdictions which, like Ore-
gon, follow the Restatement § 402A rule almost uni-
versally deny recovery for injuries allegedly caused by
open and obvious conditions. (See cases collected in
Appendix E (A. 49)."' Included in such decisions
are two from the Ninth Circuit, Hardy v. Hull Cor-
poration, 446 F.2d 34 (9th Cir. 1971), and Tomicich
v. Western-Knapp Engineering Co., 292 F. Supp. 323
(D. Mont. 1968), aff’d 423 F.2d 410 (9th Cir. 1970).
The Ninth Circuit ignored its own decisions here!

The rationale of this norm resembles that ex-
pressed in the myriad negligence decisions collected
in the appendix (Appendix E, A. 52-54). The de
signer, manufacturer, or seller of a product is only
obligated to produce and sell goods which are what
they are represented or purported to be; there is no
legal obligation to create a product embodying only
features representing the ultimate in safety. Warner
v. Kewanee Machinery & Conveyor Company, 411 F.2d
1060, 1066 (Sth Cir. 1969), cert. den. 398 U.S. 906,
90 S. Ct. 1685, — L. Ed. 2d — (1970). Even the

''The New Jersey Court has ruled contrarily since the
Askew brief was filed.

19

shipowner, who owes the absolute warranty of sea-
worthiness, need not supply the newest, best, or safest
for the voyage undertaken. E.g., Doucette v. Vincent,
194 F.2d 834 (1st Cir. 1952).

Products may be used by a consumer for varying
tasks; the user, not the manufacturer, has control
over the device, and the party in control can better
see to safety requirements under particular circum-
stances of use. See, e.g., Hardy v. Hull Corporation,
supra; compare Bexiga v. Havir Manufacturing
Corp., 114 N.J. Super. 397, 276 A.2d 590 (1971)."
In the instant case, the condition was open, obvious,
and well known to the plaintiff and to all who would
use the Van Carrier. The user, the person in control,
was responsible to determine how to best operate the
machine, given the alleged visual limitations. No duty
devolved upon the manufacturer or the seller to pro-
vide plaintiff with a different machine. The Clark
Van Carrier was what it was represented to be and
had no hidden danger.

District Judge William P. Gray, sitting by desig-
nation, authored the Ninth Circuit decision (A. 29).
He recognized that the law of the forum con-
trolled the applicability of the doctrine of strict lia-
bility in diversity cases (A. 32-33); Hardy v. Hull
Corporation, supra, 446 F.2d 34 (9th Cir. 1971). His

'2The shipowner need furnish an “accident-free

ship,” Mitchell v. aa Inc., 362 U.S. 539, 80 S. Ct.
926, 4 L. Ed. 2d 941 (1960).

13 See note 11.

20

discussion of applicability of the doctrine of strict lia-
bility by “bystanders” (A. 33, et seq) is irrelevant to
the decision of the District Court and to this petition,

The Ninth Circuit erroneously relied upon Pike y,
Frank G. Hough Co., 2 Cal. 3d 465, 85 Cal. Rptr. 629,
467 P.2d 229 (1970) (A. 37-40), and remarked:

“The mutual respect held by the courts of
California and Oregon for the developments of
the law in those states is well known and creates
a reasonable inference that the Pike decision
would be considered to be of substantial preceden-
tial value in Oregon.” (A. 38).

By footnote, District Judge Gray noted that the state
of Washington had approved the reasoning in Pike in
Palmer Vv. Massey-Ferguson, Inc., 3 Wash. App. 508,
476 P.2d 713 (1970) (A. 38).

First, mutual respect of jurisdictions notwith-
standing, Oregon has not followed California’s lead
in strict liability cases. For example, strict liability
in tort was introduced to Oregon by Chief Justice
O’Connell’s opinion in Wights v. Staff Jennings, 241
Or. 301, 405 P.2d 624 (1965). In that case, after a
lengthy discussion of California decisions, including
Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d
453, 150 P.2d 436 (1944), the Oregon Supreme Court
rejected this premise saying, 241 Or. at 309:

“. . . It seems to us that the enterprise liability
rationale employed in the Escola case proves too
much and if adopted would compel us to apply
the principle of strict liability in all future cases
where the loss could be distributed.”

21

Thus, at the very outset, the Oregon Supreme Court
rejected California’s premise in the concept of strict
liability in tort. There is no reason to believe that
Oregon will accept California’s Pike aberration in the
instant milieu.

Second, in Pike, the California Court virtually
decreed that it would do as it pleased in the field
without reference to other authority. The Court at-
tempted to distinguish the case by mentioning that
while the defect might be clear to the operator of the
machine (that he could not see a certain distance be-
cause of a blind spot) this “defect” was not necessar-
ily known and perceptible to a bystander (467 P.2d
at 234). In the instant case, the alleged bystander,
Mr. Wirth, knew of the machine and its obvious limi-
tations and there is no question of his awareness equal
to that of the operator. However, assuming that the
defect was “obvious,” California decided that the
“modern trend” would not preclude liability. Of
course, it cited only three law school professors, Har-
per, James, and Noel, as authorities, and ignored the
universal rule to the contrary (A. 58-59). The de-
cision appears to be premised upon “enterprise liabil-
ity,” the doctrine which the Oregon Court expressly
rejected in Wights v. Staff Jennings, supra!

In addition, the California Court failed to come to
grips with the real essence of strict liability. It fo-
cused almost exclusively upon whether or not a jury
question existed as to whether a blind spot made the
machine “unreasonably dangerous,” and entirely

missed the threshold questior, of whether or not the
condition constituted a “deféct.” Thus, the decision
either ignored Restatement § 402A, to which the Ore-
gon Court and many others subscribe, or chose to ap-

ply only a part of the rule.

The identical error permeates the Ninth Circuit

opinion of District Judge Gray. He concludes (A. 40):

“. .. Suffice it to say, at least, that it was for

the jury to determine whether the nature and ex-

tent of the defects in the carrier that caused the
plaintiff’s injuries were obvious to him.”

That begs the question; the issue is whether or not
the Clark Van Carrier was defective. It is easy to de-
cide a case if you assume away the issue.

The Ninth Circuit misplaced reliance upon Pal-
mer V. Massey-Ferguson, Inc., supra, 3 Wash. App.
508, 476 P.2d 713 (1970). This inapposite decision
is distinguished by its facts: the existence of a latent
defect, 476 P.2d at 714:

“Plaintiff turned down the engine to idle
speed, disengaged a belt-tightening device that
acted as a clutch, adjusted the hay pickup mech-
anism and then reached down to adjust the draw-
bar. . . . the characteristic shaking associated
with movement of the baler mechanism ceased be-
fore plaintiff reached under the machine, When
he did so reach, the mechanism was suddenly put
into unexpected motion. Plaintiff’s hand was
struck and then smashed into the front plate,
causing him injury, . . . .” [Emphasis supplied.]

23

The fact that the Washington Appellate Court was
misled by the California decision in Pike v. Frank G.
Hough Co., supra, and cited that case as dicta, is not
likely to mislead the Oregon Supreme Court.

The Ninth Circuit misconceived the issue, begged
the question, and misforecasted Oregon law. Califor-
nia to the contrary notwithstanding, Oregon’s adher-
ence to the Restatement concept will require proof of
a defect before the question of unreasonable danger
is reached, and will determine that an open and ob-
vious condition, one which is patent, known, and ap-
parent to users and consumers, will not render a
product defective.

3. Assuming, as the Ninth Circuit did, the existence
of a defect, no reversible error was committed because
the jury verdict for defendant, a fortiori, determined that
the product was not “unreasonably dangerous” to the
user or consumer.

The District Court submitted the negligence issue
to the jury, which returned a defendant’s verdict. The
record contains substantial evidence to support that
verdict. It cannot be overturned sans legal error and
it cannot be ignored.

In addition, ‘that verdict has a collaterally estop-
ping effect upon the issue of strict liability. If the
decision of the jury necessarily decided the strict lia-
bility issue in salient part, the Ninth Circuit erred
in reversing and remanding the cause for a new
trial.

As we have seen, the Ninth Circuit fell into the

24

Pike trap and assumed away the very issue, that of
defect. The Oregon Supreme Court held that proof of
strict liability in tort is a two-step process in Heaton
Vv. Ford Motor Coompany, supra, 248 Or. 467, 470,
435 P.2d 806 (1967):

“. .. In the case at bar, we now adopt Section
402A and hold that if the product is in fact un-
reasonably dangerous the manufacturer is liable
for the harm caused by such a defect. It is not
necessary to prove the product is ‘ultrahazardous,’
nor that it was placed on the market ‘negligently,’
It is necessary, however, to prove that it is dan-
gerously defective.” [Emphasis supplied. ]

An unreasonably dangerous product which is not de-
fective does not raise the spectre of strict liability in
tort. A defective product which is not unreasonably

dangerous poses no issue of liability. The two tests
must coalesce.

The Oregon Supreme Court in Heaton v. Ford
Motor Co., supra, continued, 248 Or. at 471:

“An article is dangerously defective when it
is in a condition unreasonably dangerous to the
user. Restatement (Second) of Torts § 402A. Un-
reasonable, in this context, means dangerous to
an extent beyond that which would be contem-
plated by the ordinary purchaser. Restatement
(Second) of Torts § 402A, comment ie

Thus, it is clear from the Heaton language that
even if a defect is assumed, as was done by the Ninth
'4The author of Heaton v. Ford Motor Co., supra, is

Justice Goodwin, now of the United States Court of Appeals
for the Ninth Circuit.

25

Cireuit, the product was not unreasonably dangerous
because that is a test of reasonableness identical to
the reasonableness test employed in the negligence
count, and the jury determined the negligence issue
for the defendant.'*> Thus, the Ninth Circuit not only
misforecast Oregon law, but also misapplied it.

State and federal decisions emanating from Ore-
gon presage an identical result. For example, in An-
derson V. Klix Chemical Co., 256 Or. 199, 203, 472
P.2d 806 (1970), defendant argued “Logically failure
to warn (effectively) conceptually resembles negli-
gence, not strict liability.” (Resp. Br. 15). The Oregon
Supreme Court agreed saying:

“ , . Conceptually, defendant appears to be
correct. This aspect of ‘strict liability,’ failure to
warn of the dangers of an otherwise nondefective

product, does revert to a negligence basis for
liability... .”

In other words, Justice Denecke recognized that once
the question of whether or not a “defect” existed was
determined, the remaining issue under strict liability
—whether or not a product was unreasonably danger-
ous—was founded upon negligence concepts.

Judge Kilkenny (now of the Ninth Circuit) seems
to have reached a similar result in Brizendine v. Vis-
ador Company, 305 F. Supp. 157, 159-161 (D. Or.
1969). Heaton v. Ford Motor Co. was cited by Judge
Kilkenny therein for the proposition that a plaintiff

18 This identical argument was made to the Ninth Circuit
on oral argument.

26

can show that a product is defective by (1) proving
a mistake or flaw in the design, (2) proving a mis.
take or flaw in the manufacture, or (3) failing in
proof of (1) or (2), by showing that the product did
not perform in keeping with the reasonable expecta-
tions of the user or consumer “thus creating an infer.
ence of specific defect for the trier of fact. Of course,
the defective condition proved, or inferred, must be
shown to be unreasonably dangerous.” Within that
statement, Judge Kilkenny is speaking of “unreason-
ably dangerous” and “reasonable expectation” which
are negligence terms.

Similarly, in McGrath v. White Motor Corp., 92
Adv. Sh. 777, 787, — Or. —, 484 P.2d 838 (1971),
the Oregon Supreme Court remarked that the plain-
tiff was merely required to prove a “lesser degree of
danger, i.e., unreasonably dangerous” as defined in
the Restatement § 402A. Once again, the Oregon
Court appears to be using the term “unreasonably
dangerous” as analogous to those terms in the negli-
gence milieu.

The latest Oregon decision of importance is Cor-
nelius V. Bay Motors, Inc., 92 Adv. Sh. 799, — Or.
—, 484 P.2d 299 (1971). Justice Tongue wrote, 92
Adv. Sh. at 805:

“Regardless of the application of § 402A to
dealers in used automobiles and to ‘bystanders’
and other third parties, we hold that the facts of
this case were such that the jury could have prop-
erly found that there was no liability under
§ 402A in this case.

27

“By the terms of § 402A, the rule of strict
liability is applicable to the sale of a ‘defective
product unreasonably dangerous to the user or
consumer.’ According to Comment i under
§ 402A:

“«* * *. The article sold must be danger-
ous to an extent beyond that which would be
contemplated by the ordinary consumer who
purchases it, with the ordinary knowledge
common to the community as to its charac-
teristics.’

“This court, in Heaton v. Ford Motor Com-
pany, supra, held that the application of this test
under § 402A is ordinarily a question of fact to
be decided by a jury. Thus, at p 472, we said
that:

“««* * * it is for the jury rather than the

court to say in the ordinary case whether a

given product failed to meet the standard.’
and, at 474:

“The jury is supposed to determine the
basically factual question of what reasonable
consumers do expect from the product.’”
[Emphasis and deletion by Court. ]

The standard of reasonable expectation and reason-
able danger is a fact question to be decided by the
jury; in the case at bar, that fact question is identical
to the fact question posed by the negligence issue and
decided by the jury adversely to the plaintiff. There-
fore, plaintiff was not harmed by his alleged [and as-
sumed] error in removing the strict liability count
from the jury’s consideration, since the jury deter-

28

mined the essential underlying issue, the foundatic nal
fact, contrarily to the piaintiff. a

CONCLUSION

For the reasons set forth, petitioner prays that a :
writ of certiorari issue to the United States Court o
Appeals for the Ninth Circuit. =

Respectfully submitted,

ROLAND F.. BANKS, JR.
12th Floor Standard Plaza
Portland, Oregon 97204
Counsel for Petitioner

Ripeway K. Fouey, Jr.

SOUTHER, SPAULDING, KINSEY,
WILLIAMSON & SCHWABE
Of Counsel

July, 1972

APPENDIX A

WILKES WIRTH,
Plaintiff-Appellant,

v.

CLARK EQUIPMENT COMPANY,
a corporation,
Defendant-Appellee.

No. 25293
United States Court of Appeals,
Ninth Circuit
March 16, 1972.
Rehearing Denied April 18, 1972.

Raymond J. Conboy (argued), Frank Pozzi, of
Pozzi, Wilson & Atchison, Portland, Or., for plaintiff-
appellant.

Roland F. Banks, Jr. (argued), James F. Spiek-
erman, of Souther, Spaulding, Kinsey, Williamson &
Schwabe, John R. Brooke, Portland, Or., for defend-
ant-appellee.

Before HAMLIN and MERRILL, Circuit Judges,
and GRAY, District Judge.*

WILLIAM P. GRAY, District Judge.

The plaintiff in this diversity action was a long-
shoreman on the waterfront at Portland, Oregon,
whose duties required him to work as a part of a crew

*Honorable William P. Gray, United States District
Judge for the Central District of California, sitting by desig-
nation.

attending a thirty-ton motor driven wheeled vehicle,
known as a van carrier, which ran over him, thereby
inflicting severe injuries that included the loss of 9
leg. Defendant Clark Equipment Company had manu-
factured the van carrier and had sold it to Matson
Navigation Company, in whose service it was being
operated at the time of the accident.
The plaintiff sought recovery on the basis of two
separate theories, namely negligence in the design and
manufacture of the carrier, and strict liability by rea-
son of the manufacture ard sale of a carrier that was
in an unreasonably dangerous and defective condition,
At the conclusion of the trial, the judge submitted
to the jury the issue of negligence (and a verdict for
the defendant resulted), but he withdrew from the

jury the matter of strict liability, ruling that, as a
matter of law, the plaintiff could not recover on that
basis. We agree with the plaintiff’s contention, as-
serted at the trial and on appeal, that the issue of
strict liability should have been submitted to the jury,
and we accordingly reverse.

Much of the cargo transported by Matson’s ships
was packed in large wooden vans (or containers or
boxes) whose dimensions were approximately 24’x8’x
8’, and whose loaded weight was many tons, The car-
rier concerned was designed and manufactured for
the purpose of straddling such a van, lifting it from
a flat bed trailer, or from the pavement, or from the
top of another van, and transporting it to another lo-
cation in the waterfront area. Such work requires

$1

that the carrier be a large and heavy machine, and
it is, namely, 26 feet long, 13 feet wide, and 18% feet
high. It can travel] at speeds up to 20 miles per hour.
The operator sits in a cab at the rear of the top of the
vehicle, near the motor. A representative of the de-
fendant testizied that this location of the cab was con-
sidered to be the best place to facilitate the ability of
the operator to drive the carrier and handle the con-
tainers. However, because of the location of the cab,
the forward view of the driver is seriously limited to
the extent that he cannot see the ground for a distance
of 51’ 9” in front of his right front wheel. There was
testimony to the effect that similar carriers “kept
running into things,” and that light poles and fire hy-
drants located in their areas of operation had to be
protected by buffers of concrete or steel.

The carrier did not contain wheel guards, or “cow
catchers,” nor did it contain mirrors or closed circuit
TV cameras and monitors for the purpose of enhanc-
ing the operator’s forward vision, and the testimony
was conflicting as to the practicability of such safety
installations on this machine.

The noise of the engine could be heard all over the
yard, a fact that provided a constant reminder of the
carrier’s presence, but not necessarily of its approach.
The testimony indicated that Matson had affixed a
bell to the carrier that was actuated when the vehicle
was in motion, but this bell could not be heard if the
motor was turning faster than idling.

The plaintiff's function was that of a “block man,”

82

whose duty was to disengage or engage the fasteners
that held a van securely on a trailer, in order to fa-
cilitate the carrier in lifting the van from the trailer
or in depositing it thereon. Thus, the plaintiff’s work
required him regularly to be in close proximity to the

On the occasion of the accident, the crew had com-
pleted its assignments for the day, and the driver was
in the process of moving the carrier to the parking
area. His route took him the length of a 30-foot wide
aisle that was formed by the locations of two rows of
vans. As the driver turned to enter this corridor, he
could see the length of it and did not observe the
plaintiff; after he had proceeded the entire length of
the corridor and had parked the carrier, he learned

that his right front wheel had run over the plaintiff
The evidence indicated that at the time the carrier
proceeded down the corridor, the plaintiff was leaning
against one of the vans that formed the corridor and
was having a smoke.

In light of the foregoing the trial judge was clearly
justified when he ruled that “. . . there is evidence
that this thing, the way it was used, was an ultra-
hazardous piece of machinery and that this condition
caused Mr. Wirth damages.”

The trial judge recognized that the law of the
forum state controls the applicability of the doctrine
of strict liability in a diversity case. Hardy v. Hull
Corporation, 446 F.2d 34 (9th Cir. 1971). He there-
upon undertook to determine how the courts of Ore-

gon would have ruled in this situation, a task that was
made difficult by the absence of any controlling stat-
ute or reported decision. His starting point, as is ours,
was the fact that Oregon has expressly adopted section
402A of the Restatement (Second) of Torts, which
provides, in pertinent part, that “One who sells any
product in a defective condition unreasonably danger-
ous to the user or consumer .. . is subject to liability
for physical harm thereby caused to the ultimate
"user or consumer. . . .”' Heaton y. Ford Motor Co.,
248 Or. 467, 435 P.2d 806 (1967).

The trial court concluded, however, that it would
be an “unwarranted extension” of Oregon law to im-
pose strict liability in favor of a bystander when the
equipment was custom-built to the purchaser’s speci-

fications and contained no concealed defect.

From our own reading of Oregon law, we believe
that to permit the jury in this case to find in accord-

'The full text of section 402A is as follows:

“(1) One who sells any product in a defective con-
dition unreasonably dangerous to the user or consumer
or to his property is subject to liability for physical
harm thereby caused to the ultimate user or consumer,
or to his property, if

(a) the seller is engaged in the business of selling
such a product, and

(b) it is expected to and does reach the user or con-
sumer without substantial change in the condition in
which it is sold.

“ (2) The rule stated in Subsection (1) applies al-_
te)

(a) the seller has exercised all possible care in the
preparation and sale of his product, and
b) the user or consumer has not bought the prod-
= — or entered into any contractual relation with
e er.”

34

ance with strict liability would not have been an un-
warranted extension of Oregon law, if it would have
involved any extension at all.

With respect to the matter of “bystander,” the Re-
statement discussion of section 402A contains a caveat
(1) as to whether such rule covers “. . . harm to per.
sons other than users or consumers.” This caveat
would, of course, include bystanders. |

However, the Restatement comment | asserts that
a “user,” within the meaning of section 402A, need
not have been the purchaser or the owner of the prod-
uct. “He may be a member of the family of the final
purchaser, or his employee, ...” (Page 354) (Em-
phasis added).

Moreover, the comment on the caveat (comment
0) refers to the distinction between users and “casual
bystanders,” such as “employees of the retailer, or
a passer-by injured by an exploding bottle, or a pe-
destrian hit by an automobile.” The comment then as-
serts that “There may be no essential reason why
such plaintffs should not be brought within the scope
of the protection afforded, other than that they do
not have the same reasons for expecting such protec-
tion as the consumer who buys a marketed product;
but the social pressure which has been largely respon-
sible for the development of the rule stated has been
a consumers’ pressure, and there is not the same de-
mand for the protection of casual strangers.” (Pages
356-7).

The plaintiff in this case was not a “casual

35

stranger.” He was an employee of the purchaser of
the machine; his duties as block man were an integral
part of the functioning of the machine; he was obliged
to work in close proximity to the machine; and the
safety deficiencies that the trial court found to ex-
ist in the carrier created a particular hazard to a per-
son in the plaintiff’s position. A trier of fact could
readily have found that the plaintiff was a “user” of
‘the machine and that he was no more a bystander than
was the driver.

On the other hand, the trier of fact could find
“it significant that the plaintiff was not actually per-
forming any duties at the particular moment of the
accident, but instead was, in effect, “standing by,”
and therefore was not a user of the product. Even
under these circumstances, which would label the
plaintiff as a bystander, we conclude that a verdict
in his favor would not be contrary to Oregon princi-
ples with respect to the law of strict liability. This
conclusion has been influenced by several decisions,
none of which are controlling, but which, together,
appear to us to point the way:

(a) In Blake v. Orchards, 249 Or. 437, 487 P.2d
757 (1968), a motor driven brush cutter, manufac-
tured by the defendant, threw a rock which hit and in-
jured the plaintiff, who presumably was a bystander
or was passing by. The trial court submitted to the
jury the issue of strict liability as follows:

“You are instructed that a manufacturer who
makes and sells brush cutting machinery which by

36

reason of a defective design or inadequate guarding
causes an extrahazardous condition for persons in the
vicinity of its use is strictly liable to such persons for
injury and damage caused by such defective design or
such inadequate guarding.” (Page 758).

The jury found for the plaintiff, but the resulting
judgment was reversed by the Oregon Supreme Court
because the plaintiff had pleaded only negligence and
had not asserted a cause of action for strict liability,
However, the opinion permits the inference that the
court had no criticism of the above quoted instruction
as stating the law of strict liability that would be ap-
plicable to the case under appropriate pleading.

(b) Brizendine v. Visador Co., 305 F. Supp. 157
(D. Oregon 1969), involved a door light that had been
manufactured by the defendant and installed on a
door of a church. As one young man undertook to
open the door, he lost his balance and his hand struck
the glass of the door light. The glass shattered and
some of its particles flew into the face of the plaintiff,
who had been standing at or near the door. Judge Kil-
kenny, trying the case without a jury and in applying
Oregon law, found to be present all of the factors nee-
essary for the imposition of strict liability and ren-
dered judgment for the plaintiff accordingly.

(c) In Cornelius v. Bay Motors, Inc., 484 P.2d
299, 302-303 (Or. 1971), the Oregon Supreme Court
assumed, without deciding, that the benefits of the
rule of section 402A extend to bystanders; but it
expressly reserved ruling upon the matter because

37

such a determination was not necessary to the de-
cision. ‘

(d) The opinion in Pike y. Frank G. Hough Co.,
2 Cal. 3d 465, 85 Cal. Rptr. 629, 467 P.2d 229
(1970), was published subsequent to the decision here
appealed from. The facts in the two cases are sub-
stantially identical, the Pike case involving a large
“paydozer” whose function was to spread and tamp
dirt fill deposited by dump trucks. The decedent whose
job it was to direct the trucks to the appropriate spots
for dropping their loads, was standing with his back
to the paydozer and some thirty feet behind it. The
driver of the paydozer, hampered by problems of vis-
ibility similar to those pertaining to the carrier here
concerned backed into the decedent and killed him.
The California Supreme Court reversed a judgment
of nonsuit that had been entered by the trial court
under the assumption that the doctrine of strict lia-
bility was inapplicable. In the course of an extensive
opinion, it was noted that California courts extend
protection to bystanders in products liability cases,
and the opinion concluded as follows:

“Of course, we do not decide whether the pay-
dozer is in fact unreasonably dangerous for its
intended use, but only that plaintiffs’ evidence
was sufficient to support a jury verdict in their
favor. A jury could decide that an earth-moving
machine with a 48-foot by 20-foot rectangular
blind spot was dangerous ‘to an extent beyond
that which would be contemplated by the ordinary
consumer who purchased it [or by a bystander],
with the ordinary knowledge common to the com-

38

munity as to its characteristics.’ (Rest. 2d Torts,
§ 402A, com. i, at p. 352).” (2 Cal. 3d at 477, 85
Cal. Rptr. at 637, 467 P.2d at 237). (Bracketed
clause in the opinion).

The mutual respect held by the court of California
and Oregon for the developments of the law in those
states is well known and creates a reasonable infer.
ence that the Pike decision would be considered to be
of substantial precedential value in Oregon.?

We think that the custom-built concept need not
be fatal to the plaintiff’s case. In the first place, it
was at least a question of fact as to whether the car-
rier was custom-built in any aspect that is relevant
here. The defendant manufactured its carriers only
to order, but the basic structure of the machine here
concerned was as developed and advertised by the
defendant in its series 510. It is true that in the manu-
facture of the subject carrier several modifications
of the series 510 design were made at the suggestion
of the purchaser; but a representative of the defend-
ant admitted in his testimony that none of these,
changes had anything to do with the problem of the
operator’s restricted vision.

Also, even if the machine had been fully custom
made, are by no means convinced that this circum-
stance would prevent this plaintiff from recovery un-

2 We think it of more than geographical significance that
the Court of Appeals of the State of Washington has ex-
pressed approval of the reasoning in Pike. See Palmer v.
Massey-Ferguson, Inc., 3 Wash. App. 508, 476 P.2d 713, 719
(Wash.-App. 1970).

39

der the doctrine of strict liability. Comment g to sec-
tion 402A of the Restatement of Torts says that the
strict liability rule “. . . applies only where the prod-
uct is, at the time it leaves the seller’s hands, in a
condition not contemplated by the ultimate consumer,
which will be unreasonably dangerous to him.” The
evidence at the trial indicated that officials of Matson
were aware of the limited visibility afforded the op-
erator of the carrier, as would be expected if the
product were completely custom made. But there was
no showing that the plaintiff had any such awareness
and, as hereinabove discussed, a jury could readily
find that he was an ultimate “user,” within the mean-
ing of the rule.

We quote again from the opinion in the California
case of Pike v. Frank G. Hough Co., 2 Cal. 3d 465, 85
Cal. Rptr. 178, 467 P.2d 229 (1970) :

“Defendant contends that the danger of being
struck by the paydozer was a patent peril and,
therefore, that it had no duty to install safety de-
vices to protect against an obvious danger. We do
not agree. First, although all vehicles contain the
potential of impact, it is not.necessarily apparent
to bystanders that the machine operator is incap-
able of observing them though they are 30 to 40
feet behind the vehicle and in its direct path. The
danger to bystanders is not diminished because
the purchaser of the vehicle is aware of its defi-
ciencies of design.” At 2 Cal. 8d 473, 467 P.2d
at 234, 85 Cal. Rptr. at 634 (Emphasis in the
opinion).

The Pike opinion goes farther and suggests

40

that “. . . even if the obviousness of the peril is con-
ceded, the modern approach does not preclude liability
solely because a danger is obvious,” and that “ ‘Surely
it is well within the framework and spirit of [recent]
common law modifications to require reasonable care
to protect even the buyer himself from what may be
foreseen as an unreasonable danger to him.” (2 Cal.
3d at 474, 467 P.2d at 235, 85 Cal. Rptr. at 635, quot-
ing from Harper and James, The Law of Torts, page
1545). We need not seek to determine here whether
such a concept would be accepted by the courts of
Oregon. Suffice it to say, at least, that it was for
the jury to determine whether the nature and extent
of the defects in the carrier that caused the plaintiff’s
injuries were obvious to him.

Reversed and remanded for a new trial in ac-
cordance with this opinion.

41

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILKES WIRTH,
Plaintiff-Appellant,
vs.

CLARK EQUIPMENT COMPANY,
a corporation, a
Defendant-Respondent,
and

MATSON NAVIGATION COMPANY,
a corporation,
Defendant.
No. 25,293

On Petition for Rehearing

Before: HAMLIN and MERRILL, Circuit Judges,
and GRAY, District Judge

Respondent’s petition for rehearing herein is de-
nied.

APPENDIX C

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF OREGON

Civil Action File No. 68-318
WILKES WIRTH,

Vs.

CLARK EQUIPMENT COMPANY,
a corporation,
JUDGMENT
This action came on for trial before the Court
and a jury, Honorable Robert C. Belloni, United
States District Judge, presiding, and the issues hav-

ing been duly tried and the jury having duly ren-
dered its verdict,

It is Ordered and Adjudged the plaintiff take
nothing, the action be dismissed on the merits and the
defendant Clark Equipment Company recover of the
plaintiff Wilkes Wirth its costs of action.

Dated at Portland, Oregon, this 11th day of Sep-
tember, 1969.

/s/ Donal D. Sullivan
Clerk of Court
DONAL D. SULLIVAN

43

28 U.S.C. § 1254: Courts of appeals; certiorari; ap-
peal; certified questions
Cases in the courts of appeals may be reviewed by
the Supreme Court by the following methods:
(1) By writ of certiorari granted upon the peti-
tion of any party to any civil or criminal case, before
or after rendition of judgment or decree;

(2) By appeal by a party relying on a State stat-
ute held by a court of appeals to be invalid as repug-
nant to the Constitution, treaties or laws of the United
States, but such appeal shall preclude review by writ
of certiorari at the instance of such appellant, and the

review on appeal shall be restricted to the Federal
questions presented;

(3) By certification at any time by a court of ap-
peals of any question of law in any civil or criminal
case as to which instructions are desired, and upon
such certification the Supreme Court may give bind-
ing instructions or require the entire record to be sent
up for decision of the entire matter in controversy.

28 U.S.C. § 2101. Supreme Court; time for appeal
or certiorari; docketing; stay
as . > 7 *

(c) Any other appeal or any writ of certiorari
intended to bring any judgment or decree in a civil
action, suit or proceeding before the Supreme Court
for review shall be taken or applied for within ninety

ao

days after the entry of such judgment or decree. A
justice of the Supreme Court, for good cause shown,
may extend the time for applying for a writ of certior-
ari for a period not exceeding sixty days.

45

Selected portions from Respondents’ Brief (pp.
7-19) in Claud O. Askew v. Howard-Cooper et al

(pending, Oregon Supreme Court, argued March 1,
1972).

SUMMARY OF ARGUMENT

The manufacturer or seller of a product is not
liable to a remote user, either under strict liability in
tort or negligence, if the condition causing the harm is
open, obvious, apparent, patent, and known to the
user. Such a condition does not make the product
“defective” or “unreasonably dangerous.” The author-
ities admost universally impel a judgment for the

manufacturer and seller as a matter of law.

The producer of goods does not retain control of
his product once it enters the stream of commerce.
The duty of providing a safe place to walk or work
may be visted [sic] only upon one in control. The man-
ufacturer thus need not build the ultimate in safety.
His duty is to produce a product that is reasonably fit,
as represented, without latent perils. All persons know
that heavy instruments will crush, sharp devices will
cut, and a fall from a high place will cause harm.
The manufacturer need not warn or protect against
such obvious potentialities.

46

RESPONDENTS’ ANSWER TO APPELLANT'S
ASSIGNMENT OF ERROR NO. |

The circuit court correctly granted defendants’
motions for judgments of involuntary nonsuit because
the alleged defect was open and obvious to the user.

ARGUMENT

A manufacturer or seller of a product is not liable
to a user or consumer, either under theories of strict
liability in tort or negligence, if the condition alleg-
edly causing the harm was open, obvious and known
to the user or consumer.

A. Strict liability

Oregon has adopted the Restatement concept of
strict liability in tort as expressed in 2 Restatement
347, Torts (2d) § 402A (hereinafter sometimes re-
ferred to for the sake of brevity as “Restatement
402A”). Heaton v. Ford Motor Co., 248 Or 467, 470,
435 P2d 806 (1967).

Before liability can be imposed upon the manufac-
turer or seller under this doctrine, the plaintiff must
establish that the product was in a defective condition
when it left the hands of the supplier. A “defective
condition” is explained:

“9. Defective Condition. The rules stated in
this Section apply only where the product is, at
the time it leaves the seller’s hands, in a condition
not contemplated by the ultimate consumer, which

47

would be unreasonably dangerous to him. * * *.
The burden of proof that the product was in a
defective condition at the time that it left the
hands of the particular seller is upon the injured
plaintiff; and unless evidence can be produced
which will support the conclusion that it was
then defective, the burden is not sustained.” 2
Restatement 351, Torts (2d) § 402A comment
g. [Emphasis supplied. ]

Plaintiff alleged, and attempted to prove, that the
lumberjack was defective
“in that the grease fittings which require
daily lubrication were placed on top of the front
of said loader, which was a portion of said ma-
chine where persons must go, and there were no
necessary ladders, steps, step- plates, foot plates,
running boards, walkways, grab irons, or hand-
rails provided for a safe and adequate means of
access and egress from the top of said front end
of the Wagner loader as above described, and
that said Wagner loader was so designed and
manufactured that it was necessary for a man,
in the proper maintenance of said Wagner loader,
to climb on top of the front end of said Wagner
loader.” (Ab. 21-22).

The lumberjack cannot be said to be “in a condition
not contemplated by the ultimate consumer” as re-
quired by Restatement 402A, comment g.

Both plaintiff and his employer were fully cog-
nizant of these conditions. Mr. Askew admitted that
there was no ladder or other mode of climbing on top
of the lumberjack (Tr. 16) and that there were no

48

obvious means of ascent or descent (Tr. 45). The ma-
chine did not mislead him in any way; indeed, he
clambered up and down the vehicle for many months
_(Tr. 9, 18-20). As plaintiff’s witness, Mr. Buckland,
remarked, there was nothing on the lumberjack which
would cause anybody to believe that the manufacturer
or seller expected them to climb on top of the boom
(Tr. 74-75). The lumberjack service manual did not
suggest scrambling up the machine to perform daily
tasks of lubrication (Ex. 1) and common sense warned
against this procedure.

Furthermore, liability does not attach unless the
alleged “defective condition” renders the product
“unreasonably dangerous.” Heaton v. Ford Motor Co.,
supra, 248 Or at 470; Restatement 402A. “Unreason-
ably dangerous” is defined as:

“i, Unreasonably Dangerous. The rules stated
in this Section apply only where the defective
condition of the product make it unreasonably
dangerous to the user or consumer. Many prod-
ucts cannot possibly be made entirely safe for
all consumption * * *. That is not what is meant
by ‘unreasonably dangerous’ in this Section. The
article sold must be dangerous to an extent be-
yond that which would be contemplated by the or-
dinary consumer who purchases it, with the ordi-
nary knowledge common to the community as to
its characteristics. * * *.” 2 Restatement 352,
Torts (2d) § 402A, comment i. [Emphasis sup-
plied.]

All of the alleged dangers which plaintiff asserted
were open, obvious, and fully contemplated by plain-

49

tiff and his employer. The strict liability in tort rule
applies solely to latent or hidden dangers. Maas v.
Dreher, 10 Ariz App 520, 460 P2d 191 (1969).

The decisions from jurisdictions such as Oregon
which follow the Restatement rule almost universally
deny recovery for open and obvious conditions:

Hardy v. Hull Corp., 446 F2d 34 (9th Cir 1971).

Bartkewich v. Billinger, 432 Pa 351, 247 A2d
603 (1968).

Maas v. Dreher, supra.

Tomicich v. Western-Knapp Engineering Com-
pany, 292 F Supp 323 (D Mont 1968),
aff’d 423 F2d 410 (9th Cir 1970).

Morrow v. Trailmobile, Inc., 12 Ariz App 578,
473 P2d 780 (1970).

Downey v. Moore’s Time-Saving Equipment,
Inc., 432 F2d 1088 (7th Cir 1970).

Warner v. Kewanee Machinery & Conveyor
Company, 411 F2d 1060 (6th Cir 1969),
cert den — US —, 90 S Ct 1685 (1970).

Bexiga v. Havir Manufacturing Corp., 114 NJ
Super 397, 276 A2d 590 (1971).

Fisher v. Johnson Milk Co., 3883 Mich 158, 174
NW2d 752 (1970).

Brown v. General Motors Corporation, 355
F2d 814 (4th Cir 1966).

Cf Myers v. Montgomery Ward & Company,
252 A2d 855, 864 (Ct App Md 1969).
Cf Blankenship v. Morrison Machine Company,

255 Md 241, 257 A2d 430 (1969).

Compare, Murphy v. Eaton, Yale & Towne,
Inc., 444 F2d 317 (6th Cir 1971) (implied
warranty).

—

50

The rationale of the norm is similar to that ex-
pressed in the myriad negligence decisions, infra. The
designer, manufacturer or seller is only obligated to
produce and sell goods which are what they are rep-
presented or purport to be; there is no legal obligation
to create a product embodying only features repre-
senting the ultimate in safety. Warner v. Kewanee
Machinery & Conveyor Company, supra, 411 F2d at
1066. Even the shipowner who owes the absolute war-
ranty of seaworthiness need not supply the newest,
best, or safest appliances, but only those which are
reasonably fit for the voyage undertaken. E.g., Dou-
chette v. Vincent, 194 F.2d 834 (1st Cir. 1952).?

Products may be used by the consumer for vary-
ing tasks; the user, not the manufacturer, has control
of the device, and the person in control can better see
to safety requirements under the particular circum-
stances of use. See, e.g., Bexiga v. Havir Manufactur-
ing Corp., supra; Hardy v. Hull Corporation, supra.
In the instant case, the condition was open, obvious,
and well known to plaintiff (e.g., Tr. 45) and to all
who perceived the lumberjack (Tr. 74-75). The user-
employer, the person in control, was responsible to de-
cide how to lubricate the vehicle. The normal location
for accomplishing routine maintenance is at a hoist,
platform, scaffold or other stable place. Sawmills have
a ready supply of stumps or cut cross-sections which

2 See also, cases collected in Foley, Ridgway K., Jr., “A
Survey of the Maritime Doctrine of Seaworthiness,” 46 Or.
L. Rev. 369, 373, n. 8. The shipowner need not furnish an
“accident-free” ship. Mitchell v. Trawler Racer, Inc., 362
U.S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941 (1960).

51

would form stable platforms from which to grease the
two fittings. Obviously, a small cross-section or step-
ladder was the only necessary equipment because
plaintiff could almost touch the fittings from the
ground (Ex. 5). Routine maintenance is ordinarily
accomplished at a location where all available aids
are easily accessible. No duty devolved upon the manu-
facturer or seller to provide the plaintiff with a dif-
ferent place to perform maintenance or a differently
designed machine.

Plaintiff’s arguments premised upon the defenses
of contributory negligence and assumption of the risk
(App. Br. 5) manifest the muddle of Restatement
402A. Assumption of the risk, not contributory negli-
gence, is a defense to a strict liability claim (Restate-
ment 402A, comment n). Coincidentally, strict liabil-
ity demands that a product be “unreasonably danger-
ous” (Restatement 402A, comments g, i, supra),
which term is defined to exclude open and obvious
conditions. Thus, a finding that a machine is not de-
fective because it was in an open and obvious condi-
tion and therefore not “unreasonably dangerous,” is
not really different in end result from a determina-
tion that a user assumed the risk by subjecting him-
self to a patent “defect” or condition.

Plaintiff asserts that the laborer does not assume
the risk of his employer’s failure to comply with the
law (App. Br. 5). Neither common law nor statute
fastens any duty upon the manufacturer or seller in
this milieu.

e .

Throughout his brief, plaintiff attempts to avoid
the plethora of contrary authority by reliance upon
inapposite premises and employment cases, In answer
to plaintiff’s rhetorical question regarding the manv-
facturer’s duty (App. Br. 6), a different standard of
care applies because the manufacturer has no control
over the instrumentality once it enters the stream of
commerce. The premises owner (App. Br. 8) and the
employer (see App. Br. passim) retain complete con-
trol over premises and instrumentalities. They are
able to and responsible for producing a safe place to
work or walk for the employee or invitee. The sole
duty of the manufacturer is to produce a machine
which performs a particular act or series of acts as
represented. When such a machine is produced and is
not in a defective condition, unreasonably dangerous
to the consumer, the manufacturer’s duty is complete
and he is not liable for injuries arising out of obvious
conditions perceptible to the ordinary user.

B. Negligence

The manufacturer and seller of equipment is not
negligent when he sells a machine with a patent con-
dition perceptible to all comers. So long as the ma-
chine is reasonably fit for the purposes contemplated,
the manufacturer or seller has no duty to guard
against open and obvious “potentialities” of danger.
The authorities for this proposition are legion; some
of the leading cases follow:

Marker v. Universal Oil Products Co., 250 F2d
603 (10th Cir 1957).

Seen,

53

Campo v. Scofield, 301 NY 468, 95 NE2d 802
(1950).

Blankenship v. Morrison Machine Company,
255 Md 241, 257 A2d 480 (1969).

Posey v. Clark Equipment Company, 409 F2d
560 (7th Cir 1969).

Kerber v. American Machine & Foundry Com-
pany, 411 F2d 419 (8th Cir 1969).

Hardy v. Hull Corp., 446 F2d 34 (9th Cir
1971).

Fisher v. Johnson Milk Company, 388 Mich
158, 174 NW2d 752 (1970).

Tomicich v. Western-Knapp Engineering Com-
pany, 292 F Supp 323 (D Mont 1968),
affd 423 F2d 410 (9th Cir 1970).

Stevens v. Durbin-Dureo, Inc., 377 SW2d 343
(Mo 1964). ;

Parker v. Haesler Plumbing & Heating Com-
pany, 388 P2d 516 (Wyo 1964).

Bradshaw v. Blystone Equipment Co. of Ne-
vada, 386 P2d 396 (Nev 1963). (Lessor-
Lessee).

Tyson v. Long Manufacturing Company, 249
NC 557, 107 SE2d 170 (1959).

Standard Conveyor Company v. Scott, 221 F2d
460 (8th Cir 1955).

Jamieson v. Woodward and Lothrop, 247 F2d
23 (DC Cir 1957).

Brown v. General Motors Corporation, 355
F2d 814 (4th Cir 1966).

Shanklin v. Allis-Chalmers Manufacturing
Company, 254 F Supp 223 (SD W Va
1966).

Villaneuva v. Nowlin, 77 NM 174, 420 P2d
764 (1966).

54

See also Katz v. Arundel-Brooks Concrete Cor-
poration, 151 A2d 731 (Md. App 1959),
See also Cornette v. Sergeant Metal Products,
Inc., — Ind App —, 258 NE2d 652 (1970).

The reason for the negligence rule was best ex-
pressed by Justice Fuld in the landmark case of
Campo Vv. Scofield, supra, 95 NE2d at 804:

“If a manufacturer does everything necessary
to make the machine function properly for the
purpose for which it is designed, if the machine
is without any latent defect, and if its functioning
creates no danger or peril that is not known to
the user, then the manufacturer has satisfied the
law’s demands. We have not yet reached the state
where a manufacturer is under the duty of mak-
ing a machine accident proof or foolproof. Just
as the manufacturer is under no obligation, in
order to guard against injury resulting from
deterioration, to furnish a machine that will not
wear out, * * * so he is under no duty to guard
against injury from a patent peril or from a
source manifestly dangerous. To illustrate, the
manufacturer who makes, properly and free of
defects, an axe or a buzz saw or an airplane with
an exposed propeller, is not to be held liable if
one using the axe or the buzz saw is cut by it, or if
someone working around the airplane comes in
contact with the propeller. In such cases, the
manufacturer has the right to expect that such
persons will do everything necessary to avoid
such contact, for the very nature of the article
gives notice and warning of the consequences to
be expected, of the injuries to be suffered. In
other words, the manufacturer is under no duty

55

to render a Machine or other article ‘more’ safe
—as long as the danger to be avoided is obvious
and patent to all.

* * * * *

“* * * in cases dealing with a manufacturer’s
liability for injuries to remote users, the stress
has always been upon the duty of guarding
against hidden defects and of giving notice of
concealed dangers, * * *.”

If the manufacturer’s liability is to be extended, if he
is to be impelled to equip his product with all manner
of safety devices, this determination should be made
legislatively, not judicially. [bid at 805.

In Stevens v. Durbin-Durco, Inc., supra, the court
held that a manufacturer is not an insurer, and that
he is under no duty to make his product accident or
fool proof. The manufacturer must use ordinary care
in the production of goods, and he is liable to a remote
user injured by a latent defect in design or manufac-
ture. 8377 SW2d at 346-347. The extent and limits of
the user’s duty and the manufacturer’s liability de-
pend upon the nature and character of the defect and
user’s knowledge thereof. The manufacturer is not
liable where the-defeet a condition is open, obvious,
and apparent, or where the user had actual knowledge
of the danger or condition. For example, in Stevens v.
Durbin-Durco, Inc., supra, plaintiff charged the man-
ufacturer with failure to equip his machine with safe-
ty devices, to which the Missouri court replied (citing
Campo v. Scofield, supra), 377 SW2d at 348:
“Accordingly, where the product is free of

EEDA
Fes
elit
sede
Bleth
ApL
Beal

very liability plaintiff would fasten on defendants.

The law does not require the designer, seller, or
manufacturer to warn or protect against every injury
which may ensue from the use of a product. Such a
duty dould be onerous, intolerable, unreasonable and
impossible. Almost every physical object can be in-
herently or potentially dangerous. A lead pencil can
stab a man in a vital point; because of that potenti-
ality, can a lead pencil become an “inherently danger-
ous” object? If a person accidentally slips and falls on
a pencil point in his pocket, the pencil producer is not
liable for the ensuing injury. Jamieson v. Woodward
and Lothrop, supra.

On the premises of these authorities, defendants
breached no duty. The condition was patent, not la-
tent. It was apparent to plaintiff. It is obvious that a
person might fall from a lumberjack if he climbed

57

up and down the machine where oil end dust accumu-
lated, where the seller had not provided ladders or
steps. Indeed, plaintiff was specifically warned about
the condition when his employer told him to grease
the machine in this way and before he ever worked on
the vehicle (Tr. 42-43). Objectively, the danger of
falling was just as clear to the user as is the danger
that a wheel may crush, an axe will cut, or a heated
stove will burn. These defendants should not be con-
verted into insurers. Such a burdensome obligation
would impede commerce and thwart ingenuity, be-
cause few manufacturers would undertake production
when faced with such risks, and this failure would
work to the detriment of the consuming public.

Like his strict liability count, plaintiff here rests
his argument upon cases expressing the employer's
duty to provide a safe place to work and decisions con-
cerned with premises liability (Ap. [sic] Br. 6-8)

which cases are obviously distinguishable because of
defendants’ lack of control herein.

It matters little conceptually whether the negli-
gent count is decided semantically on lack of manu-
facturer’s duty or the employer’s contributory negli-
gence as a matter of law. The well-reasoned author-
ities demand a judgment for defendants as a matter
of law. Plaintiff’s excursion into assumption of the
risk (App. Br. 6) adds little to the discussion. The
fact the employee has no duty to inspect the product
and add safety devices does not mean that the manu-
facturer or seller possesses a duty to protect users

Se

58

by safety devices where the condition is patent. See
Fields v. Fields, 213 Or 522, 326 P2d 451 (1958)
(App. Br. 8). If plaintiff's employer required Mr,
Askew to grease the vehicle in this manner, perhaps
he had a duty to add safety devices or to provide a
platform for lubrication. Defendants had no duty be
cause they lacked control.

Faced with a plethora of authority denying recoy-
ery, plaintiff rests his brief on the slender reed of
three cases which are far out of mainstream of opin-
ion (App. Br. 7-8).

In Pike v. Frank G. Hough Company et al, 8
Cal Rptr 629, 467 P2d 229 (1970), the California
court virtually decreed that it would do as it pleased
in the field without reference to other authority. The
court distinguished the case by mentioning that while
the defect might be clear to the operator of the ma-
chine (that he could not see a certain distance behind
because of a blind spot), this “defect” was not neces-
sarily known and perceptible to a bystander (467 P2d
at 234). However, assuming that the defect was “ob
vious,” California decided that the “modern trend”
would not preclude liability. Of course, it cited only
three law school professors, Harper, James, and Noel,
as authority, and ignored the universal rule to the
contrary (Resp. Br. 11, 13-14). The decision appears
premised upon “enterprise liability,” a doctrine ex-
pressly rejected by this Court in Wights v. Staff Jen-
nings, Inc., 241 Or 301, 309 et seq, 405 P2d 624
(1965).

In addition, the California court seemed to fail to
come to grips with the real essence of strict liability.
It focused almost exclusively upon whether or not a
jury question existed as to whether the blind spot
made the machine “unreasonably dangerous,” and en-
tirely missed the threshold question of whether or not
the condition constituted a “defect.” Thus, the decision
either ignored Restatement 402A, to which this Court
and many others subscribe, or it chose to apply only a
part of the rule.

Plaintiff also relies upon a Washington Court of
Appeals case, Palmer v. Massey-Ferguson, Inc:, 3
Wash App 508, 476 P2d 713 (1970), a decision which
the cireuit court below distinguished on the grounds
that an actual latent defect existed (Tr. 157). This
inapposite case is distinguished by its facts, 476 P2d
at 714:

“Plaintiff turned down the engine to idle
speed, disengaged a belt-tightening device that
acted as a clutch, adjusted the hay pickup mech-
anism and then reached down to adjust the draw-
bar. * * * The characteristic shaking associated
with movement of the baler mechanism ceased
before plaintiff reached under the machine. When
he did so reach, the mechanism was suddenly put
into unexpected motion. Plaintiff's hand was
struck and then smashed into the front plate,
causing him injury * * *.”

The fact that the Washington Appellate Court
was misled by the California decision in Pike v. Frank
G. Hough Company et al, supra, and cited that case
as dicta, should not cause the law in Oregon or other
jurisdictions to suffer.

60

Finally, plaintiff relies upon Higgins v, |
Hardeman, Inc. et al, — Mo —, 457 SW2d 4
(1970). The decedent there was inexperienced %
the truck in question, 457 SW2d at 945, and the ser

tive hydraulic lift system probably was dar 2
defective under Restatement 402A. The court

its decision upon the fact that the control rod,
plainly visible, was not an open and obvious «
tion necessarily perceptible to a truck driver (like d
cedent) with 35 years’ experience in the field. 4
SW2d 947. Contrast that to the case at bar wher
the dangers of scrambling up and down a vehicle
lubrication points is manifest to all who will pc :
common understanding.

C. Summary

Under both the strict liability in tort and r
gence counts, the law is clear that the manufactu fi
and seller of equipment containing open and obvious
conditions is not liable for injuries resulting from t :
potential dangers inherent in those conditions ¥ nich b
are perceptible to the normal user. This case does r
present a defective product unreasonably dange *
to the consumer; the product is precisely what t
consumer and consumer’s employee anticipated. e.
vehicle is reasonably fit for the purposes intende ;
A knife will cut, and it may cut a finger as well asa
block of wood. To impose a duty for every cut fin 2
upon the manufacturer of a knife would soon dis apt
all knife production in the United States, and mankind.
would be the loser.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1034%3A1. Public record. Not legal advice.