# Opposition Brief — Williams v. Brasea, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 906

## Text

LIBRARY CREE ee
SUPREME COURT, U. & SEP 13 1975

TRUS TVA © 2. CLERK

OcTOBER TERM 1975

NO. 75-209

ROY C. WILLIAMS,
Petitioner

Vv.

BRASBEA, INC., VESSEL CIAPESC I, her engines, etc.,
BENDER WELDING & MACHINE COMPANY, INC.,
and CONSTRUCTION MACHINERY COMPANY,

Respondents

BRIEF OF RESPONDENT, CONSTRUCTION
MACHINERY COMPANY, IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI

M. W. MEREDITH, JR.
FINLEY L. EDMONDS
P. O. Drawer 2624
Corpus Christi, Texas 78403
Attorneys for Respondent,
Construction Machinery Company
Of Counsel:

MEREDITH & DONNELL
P. O. Drawer 2624
Corpus Christi, Texas 78403

Alpha Law Brief Co., One Main Plase, No. 1 Main St., Houston, Texas 77002

SUBJECT INDEX

We GE I Sian Si ckccnnscacecnccecdncccc..:
Questions Presented for Review:

I.

II.

Iil.

WHETHER THE COURT OF APPEALS WAS
CORRECT IN HOLDING THAT THE WINCH
OF CONSTRUCTION MACHINERY COMPANY,
AS DESIGNED, WAS NEITHER DEFECTIVE
NOR UNREASONABLY DANGEROUS ........

WHETHER THE COURT OF APPEALS WAS
CORRECT iN HOLDING THAT THE WINCH
OF CONSTRUCTION MACHINERY COMPANY,
AS DESIGNED, WAS NOT THE PROXIMATE
CAUSE OF PETITIONER’S INJURIES ........

WHETHER THE COURT OF APPEALS WAS
CORRECT IN STATING THAT PETITIONER’S
INJURIES WERE CAUSED BY IMPROPER
USE OF THE WINCH PORT CATHEAD BY
PETITIONER AND/OR SEAMAN EDWARD
MEINE. bASKRELNS50400 ob4N sha Ne ERA dadsKckoeed

I. DETERMINATION OF THE QUESTION OF

II.

INCORPORATION OF STRICT PRODUCT LIA-
BILITY INTO FEDERAL MARITIME LAW WAS
UNNECESSARY, AND THE COURT OF AP-
PEALS’ DEFERRAL OF DETERMINATION OF
THE QUESTION PRESENTS NO CONFLICT
WITH ANY OTHER COURT OF APPEALS ...

IN RESORTING TO THE THEORY OF STRICT
PRODUCT LIABILITY SET OUT IN THE RE-
STATEMENT (SECOND) OF TORTS, SEC. 402A,
THE COURT OF APPEALS DID NOT FAIL OR
REFUSE TO APPLY FEDERAL MARITIME
LAW TO PETITIONER’S CLAIM AGAINST
CONSTRUCTION MACHINERY COMPANY ..

“s OM” Ww &>

10

PI Eee

2 SRNR MRSA ONT

II

Page
III. THE COURT OF APPEALS CORRECTLY HELD
THAT THE WINCH OF CONSTRUCTION MA-
CHINERY COMPANY, AS DESIGNED, WAS
NEITHER DEFECTIVE NOR UNREASONABLY

DANGROUS oc ccccctseccececcccccccentceces 12

A. The Theory of Strict Product Liability ........ 12

B. Enhancement of Injuries ..........cecseccees 17

C. Evidence of Available Safety Design .......... 21

D. Strict Liability in Terms of Conduct .......... 22

E. Critique of Petitioner’s Arguments on CMC’s Duty 23
IV. THE COURT OF APPEALS CORRECTLY HELD
THAT THE WINCH OF CONSTRUCTION MA-
CHINERY COMPANY, AS DESIGNED, WAS

NOT THE PROXIMATE CAUSE OF PETITION- ie

BE ESE oh bench eckdenaccentasnvcncess 29

A. Foreseeability of the Risk ..............e0005 29

BD. COMBO ENPOE asc sec cccsccccscccscccecccece 31
V. EITHER PETITIONER’S CONDUCT CONSTI-
TUTES ASSUMPTION OF THE RISK, OR SEA-
MAN TERRY’S CONDUCT CONSTITUTES MIS-
USE OF THE WINCH WHICH WAS THE IN-
TERVENING CAUSE OF PETITIONER'S IN-

ps Gary errr rr rey ee rer rere eT ee 32

A. Petitioner’s Assumption of the Risk ........... 33

B. Terry’s Unintended Misuse ................+. 36
VI. THE DECISION OF THE COURT OF APPEALS
WITH RESPECT TO BENDER AND BRASEA

Be GAPE Ween aberdashiccdvewecnesdsananer 38

Pic I Se cade ak an be tens dnse0 sk Se senasnnne 38

Me. WMNRTy COTO onc ccc ccc cccccncen 38

Se WN IES oh Si cnecdccewtdi ccencecnenes 40

Ee Pee ETT TTT TeT eT TT TETEET ET TET T 40

NUT EE oe cs hk cs kod Faleeen sc Aha D SD 42

ir
TABLE OF AUTHORITIES
CASES Page
Brody v. Overlook Hospital, 66 N.J. 448, 332 A.2d 596

CEDURE) oc cb Pas hbs ccd antd i cwhesesicbernschecbinad 24
Brown v. General Motors Corp., 355 F.2d 814 (4th Cir.

SNe GU Ge, Be Was BORO bck ce seivaccksdasinsss 36, 37
Brown v. Quick Mix Co., 454 P.2d 205 (Wash. Sup. 1969) 26
Cronin v. J.B.E. Olson Corp., 501 P.2d 1153 (Cal. Sup.

POUED -SeNERGSRbEWSRARNE5 40-008 650 Ck ENED OCR EMCEE SS 23, 24, 26
Downey v. Moore’s Time-Saving Equipment, Inc., 432 F.2d

OU RUM GE, WUE We hacen acdncecrcsuessbesisiecas 36, 37
Elder v. Crawley Book Machinery Co., 441 F.2d 771 (3d

CU WOOD Kone hak en sh okh s55 6466002 Vouk ans cecncsis 27,34
Eshbach v. W. T. Grant’s & Co., 481 F.2d 940 (3d Cir.

SUED © PUntkGhude GaN Gena vendee can Cabndesneseedenes 29, 30, 31
Ethicon, Inc. v. Parten, 520 S.W.2d 527 (Tex. Civ. App.—

Houston [14th Dist.] 1975, no writ hist.) ............ 31
Evans v. General Motors Corp., 359 F.2d 822 (7th Cir.

PTET CT Te eTTTT eee ET TULLE TULLE TTT 19, 20
Glass v. Ford Motor Co., 304 A.2d 562 (N.J. Sup., Law

eee prrysis TVTCT TITTLE PTT Tee ee 24
Hartman v. Miller Hydro Company, 499 F.2d 191 (10th

Cc BOOED MAS URAC e Chane chkee densest Sewecasacceves 18
Hartzell Propeller Co., Inc. v. Alexander, 485 S.W.2d 943

(Tex. Civ. App.—Waco 1972, writ ref. mre.) ........ 31
Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841 (Sth

i, Fe en ee lala Cancukaniensach ene 14, 22, 29, 31, 36
Henrich v. Cutler Hammer Co., 460 F.2d 1325 (3rd Cir.

HONE, cAA se kRpkesdeaw sd dncesecdacdaqsccssacasxane 34
Hoover v. O. M. Franklin Serum Co., 444 S.W.2d 596 (Tex.

NG NEARS Nea GORE epee 31
Johnson v. United States, 74 F.2d 703, 704 (2d Cir. 1935) 35
Kaczmarek v. Mesta Machine Company, 463 F.2d 675 (3d

om ihe ee F S| srrrrryvirerrrrer rr eree 30
Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir.

(| GRRE RH ESE Na RRS Aa ine a 18, 19, 20, 22
Layne & Bowler Corp. v. Western Well Works, Inc., 261

TR, SER FOE CAGES) ca nccardcrssasccacccesscousees 41
Leistra v. Bucyrus Erie Company, 443 F.2d 157 (8th Cir.

ROPE) Waccecusiereccdacccuseteres sas rcassccarvees 36
Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631

CB GO, TURE) sinc s ene s cttewedsesesccarsescesas 9, 10, 11, 23
Luque v. McLeon, 501 P.2d 1163 (Cal. Sup. 1972)....... 26

a a

IV
CASES Page
McDevitt v. Standard Oil Company of Texas, 391 F.2d 364
MRSA MURTY: ch ndhs skates dahon cloaks hana ches 36

McKee v. Brunswick Corp., 354 F.2d 577 (7th Cir. 1965) 11, 23
Messick v. General Motors Corp., 460 F.2d 485 (Sth Cir.

INE ih Ah Ad Shes Gan Gtia heel deat cn cME’ ddcaases 27, 36
Nanda v. Ford Motor Co., 509 F.2d 213 (7th Cir. 1974). .19, 21, 22
Powell v. E. W. Bliss Co., 346 F. Supp. 819 (W.D. Mich.

‘it ) Pr eerreer Ter eT TTTe CT TEP ETT TTT Terr ere rere 27
Rice v. Sioux City Memorial Park Cemetery, 349 U.S. 70

CE eee es cia eek ee Aa x beds wt vs 41
Ross v. Up-Right, Inc., 402 F.2d 943 (Sth Cir. 1968)..... 14, 36

Rourke v. Garza, 511 S.W.2d 331 (Tex. Civ. App.—Houston
[ist Dist.] 1974, writ granted, 18 Tex. Sup. Ct. Jr. 169

ee | BT Terre eee Tee CTT EEE ee 28
Schneider v. Chrysler Motors Corp., 401 F.2d 549 (8th Cir.

i ee ka 36, 37
Suvada v. White Motor Company, 32 Ill. 2d 612, 210 N.E.

“T= BRR ere ie tae il
Texsun Feed Yards, Inc. v. Ralston Purina Company, 447

Fe ee NOTED nse SG c Sew acdaeiusedi's sees 34
Tomicich v. Western-Knapp Engineering Company, 423 F.

ee Sh San ee 36, 37
Turner v. Big Four Automotive Equipment Corp., 511 F.2d

Bee SUE St SPED. pcb ccne sed eserscscccdudsonsnaes 20
Walsh v. Miehle-Goss-Dexter, Inc., 378 F.2d 409 (3d Cir.

of ares rere r terre Tere Tree Te Pere rer rT ye 27
Weakley v. Fischbach & Moore, Inc., 515 F.2d 1260 (Sth

Ss POE Sic tikn chi us uh bes oan ts Naka bastoese conscnss 25

FEDERAL RULES OF CIVIL PROCEDURE

Se Ses IS Os GG sh nea donsbvsbipenevedsucuss 38
RESTATEMENTS
RESTATEMENT (SECOND) OF TORTS, Sec. 402A
EUUEEE ‘Wdenieennuaavass 5,10, 11, 12, 13, 17, 18, 23, 30, 34, 35, 36
LAW REVIEWS
Keeton, Products Liability—Inadequacy of Information, 48
as Pe COPE RGD DEKE Chien ev eR ea RAN aha eeoenias 22
Keeton, Products Liability & The Meaning of Defect, 5 St.
Mary's 0.5. 90, 32 C1978) occ wnweseecsccsisccesanccs 24
Wade, Strict Tort Liability of Manufacturers, 19 Sw. L.J. 5

MN wales ycusias chaser eecasubcandslusant 14, 16, 22, 31

UR TNT iste Tae re OE TT RT
me ae? Oe Bae es <

IN THE

Supreme Court of the United States

OCTOBER TERM 1975
NO. 75-209

ROY C. WILLIAMS,
Petitioner

Vs

BRASEA, INC., VESSEL CIAPESC I, her engines, etc.,
BENDER WELDING & MACHINE COMPANY, INC.,
and CONSTRUCTION MACHINERY COMPANY,
Respondents

BRIEF OF RESPONDENT, CONSTRUCTION
MACHINERY COMPANY, IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORARI

Respondent, Construction Machinery Company, prays
that the Petition of Roy C. Williams for Writ of Certiorari
be refused. In support of that prayer, Respondent would
respectfully show the following:

QUESTION PRESENTED FOR REVIEW

In response to Petitioner’s statement of Question II of
his “Questions Presented for Review” (Pet. for Writ, p.

2

2), Respondent submits that in the said Question II
Petitioner commits two errors. First, he erroneously as-
sumes the defective condition of the ship’s equipment
which is contrary to the holdings of the Court of Appeals
below. Second, he raises a policy question about the
applicability of general maritime law, which question is
not even presented by the opinion of the Court of Appeals
below. Instead, Respondent submits, the issues of law
actually presented relevant to the claim of Petitioner
against this Respondent can be stated as follows:

I

WHETHER THE COURT OF APPEALS WAS
CORRECT IN HOLDING THAT THE WINCH
OF CONSTRUCTION MACHINERY COMPANY,
AS DESIGNED, WAS NEITHER DEFECTIVE
NOR UNREASONABLY DANGEROUS.

II

' WHETHER THE COURT OF APPEALS WAS
CORRECT IN HOLDING THAT THE WINCH

OF CONSTRUCTION MACHINERY COMPANY,
AS DESIGNED, WAS NOT THE PROXIMATE
CAUSE OF PETITIONER’S INJURIES.

III

WHETHER THE COURT OF APPEALS WAS
CORRECT IN STATING THAT PETITIONER’S
INJURIES WERE CAUSED BY IMPROPER USE
OF THE WINCH PORT CATHEAD BY PETI-
TIONER AND/OR SEAMAN EDWARD TERRY.

3
STATEMENT OF THE CASE

With respect to Petitioner’s strict product liability
claim against this Respondent, most of the relevant facts
are discussed by the Court of Appeals in its opinion
which is reported at 497 F.2d 67 (See Appendix, Petition
for Writ, p. 56 et seq.). For the purposes of the argument
below, Respondent would state the following facts,
especially those relating to the issue of the design of
Respondent’s winch.

Essentially, Petitioner’s claim against this Respondent
is that the failure of Respondent to design into its winch
some sort of brake for the port cathead enhanced his
injuries. The accident itself—Petitioner’s hands becoming
entangled with the taught line on the suddenly turning
cathead—was caused by a combination of his carelessness
and the intentional re-engaging of power to the winch
by his co-worker, Edward Terry.

For the “failure” to design and manufacture such a
brake, the District Court held Respondent liable on its
interpretation of the theory of strict product liability.
However, the District Court specifically held that Re-
spondent was not negligent. The finding of strict product
liability was reversed by the Court of Appeals, and Re-
spondent (CMC) was ordered dismissed as a party
defendant. The appellate court found substantial evidence
to support the trial court’s conclusion of no negligence.

In reversing, the Court of Appeals held that the CMC
winch was neither defective nor unreasonably dangerous.
497 F.2d at 79 (App., Pet. Writ, pp. 76-78). Important
to this determination was the testimony which revealed
that winches, and especially winches on shrimp boats,

4

are practically never equipped with braking devices. It
was testified that ninety to ninety-five percent of the
market for shrimp boat winches is commanded by four
makes, including CMC, and none of these winches have a
separate brake on the winch cathead. In fact, there was

no direct evidence of a winch with a brake on a shrimp
boat.

Of the shrimpers who testified, the Petitioner had 41
years experience on shrimp boats. Robert N. Jenkins
was a captain for 26 years on shrimp boats. Edward
Terry had 15 to 20 years experience. Jerry Richo, the
third crew member on the CIAPESC I at the time of the
accident had 27 years of shrimping experience. All of
these men were familiar with winches, similar to CMC’s,
and none had any brakes on the catheads. No one
testified about any similar accident or injury.

All the crewmen on the CIAPESC I knew and appre-
ciated how the winch worked. They knew the CMC
winch lacked any brake. They knew it continued to turn
several times after the power was dis-engaged.

Also relevant to the appellate court’s holding are the
facts that catheads are practically indispensable to the
' shrimping business and that the installation of a brake
would substantially increase the cost of the winch.

Agreeing with the District Court, the Court of Appeals
» concluded that the cause of the accident and Petitioner’s
) injuries was the action in turning on the power to the
* winch while Petitioners hands were on the whipline
+ and in close proximity to the cathead. The Court of
- Appeals further concluded that the lack of any brake
” was not the proximate cause of the injuries.

ar

5

Depending on whether the Petitioner had ordered Terry
to re-engage power to the winch, one or the other of
the men misused the product. If Petitioner gave the order,
the appellate court surmised, his assumption of the risk
could be properly inferred based upon the relevant find-
ings of the District Court. If he did not give the order,
then Terry’s unanticipated product misuse —he did in-
tentionally engage power — could be inferred.

SUMMARY OF THE ARGUMENT

Most of Petitioner’s allegations relate to issues not
in this case. All of his allegations are without merit. None
warrant the granting of a writ.

In relying upon the theory of strict product liability
set out in the American Law Institute’s Restatement
(Second) of Torts, Sec. 402A (1965), the Court of Ap-
peals was consistent with the few other courts of appeals
that have considered claims of strict product liability in
maritime cases. The opinion of the appellate court below
is not in conflict with any decision by this Supreme Court
or with any other court of appeals. In claiming that
the lower court failed to apply federal maritime law, the
Petitioner fails to demonstrate any substantive conflict
between maritime law and the material holdings of the
court below.

His complaint about the lower court’s refusal to
decide whether maritime law incorporates the theory of
strict product liability is wholly lacking. The deferral
of the decision for an appro! riate case certainly does not
conflict with the one other court of appeals which has
acknowledged the incorporation.

6

No error is shown in the appellate court’s holding
that the CMC winch was neither defective nor unreason-
ably dangerous. Most of the cases cited are not in point,
and none require any different result under maritime law.

Because Petitioner can show no error in the lower
court’s finding favorable to this Respondent on the de-
fective condition issue, then his other allegations become
academic. Foreseeability is an element of the theory
of strict liability in defective design cases. It is a vital
factor in measuring the magnitude of any risk for pur-
poses of balancing any such magnitude against the utility
of the risk.

The Court of Appeals correctly ruled against Pe-
titioner on the causation issue. Respondent’s winch didn’t
cause the accident. The accident was caused by the ir-
responsible conduct of either Petitioner Williams or Terry
or both. This was a unique incident for which Respondent
should not be held strictly liable.

Moreover, as the Court of Appeals notes, in addition
to there being no showing of defective condition or of
proximate causation, the evidence supported findings of
Williams’ assumption of the risk (if he gave the order)
or unanticipated product misuse by Terry (if no such
order were given). As previously stated, the misuse of
the winch by Williams and/or Terry—turning on the
power when the whipline was tangled on the winch and
while Williams’ hands were on the line and in close
proximity to the winch cathead—caused the accident
and the injuries.

With respect to Petitioner’s claims concerning the
lower court’s holdings relevant to Terry and Brasea, the
lower court correctly remanded the case for the District

7

Court to make a finding on whether Petitioner gave the
alleged order to Terry to re-engage power to the winch.
If Petitioner gave the order, then Terry and Brasea
should not be held liable for negligence. If Petitioner
did not, then Terry and Brasea were negligent.

Finally, since the District Court’s finding of unsea-
worthy condition was specifically buttressed by its
incorrect findings of defective condition of the CMC
winch and the Bender installation of certain equipment,
the Court of Appeals correctly set aside the unseaworthy
condition finding.

REASONS FOR REFUSING TO GRANT THE WRIT

Respondent submits that review on writ of certiorari
should not be granted. None of the issues promptly before
this Court in this case warrant the granting of a writ.
The reasons for refusing to grant the writ are many,
and may be summarized as follows:

1. The decision of the Court of Appeals below is
not in conflict with any decision of any other court of

appeals.
2. The decision is not in conflict with any decision of
this Supreme Court.

3. No important question of federal law is raised by
the case which needs to be settled by this Court now.

4. The Court of Appeals has not decided any federal
question in a way in conflict with applicable decisions
of this Court.

5. No necessity has been shown to call for an exercise
of this Court’s power of supervision.

8

6. At best, the Petitioner has raised abstract ques-
tions of law the resolution of which will not alter the
holdings of the Court of Appeals.

7. At best, Petitioner raises issues the resolution of
which are of importance to the parties, but not signifi-
cant to the public.

As to this Respondent, CMC, Petitioner asserts a
number of propositions none of which are meritorious,
or, at least, are material to the decision of this case.
Respondent will respond to Petitioners argument by be-
ginning first with the allegations relating to incorporation
of the theory of strict product liability into federal mari-
time law. Next, Respondent will deal with the allegations
relating to the law applied by the Court of Appeals to
the strict product liability issues raised in the case. Then
Respondent will discuss the soundness of the reversal by
the Court of Appeals of the district court’s holding re-
spondent liable solely under the theory of strict product
liability.

I

DETERMINATION OF THE QUESTION OF IN-
CORPORATION OF STRICT PRODUCT LIA-
BILITY INTO FEDERAL MARITIME LAW WAS
UNNECESSARY, AND THE COURT OF AP-
PEALS’ DEFERRAL OF DETERMINATION OF
THE QUESTION PRESENTS NO CONFLICT
WITH ANY OTHER COURT OF APPEALS.

Immaterial to the resolution of this case, and certainly
no ground for reversal, is Petitioner’s complaint about

9

the refusal of the Court of Appeals “. . . to consider the
question of whether the law of strict product liability is
now incorporated in the maritime law. . .” (Pet. for Writ,
p. 16). To the contrary, the court considered the ques-
tion, but thought it best to leave open the question of
incorporation. 497 F.2d at 78 (App., Pet. for Writ,
p. 74).

It would not have advanced Petitioner’s cause if the
Court of Appeals had acknowledged such an incorpora-
tion. Why? The reason is stated in that court’s opinion:
“(E]ven if products liability law is to be incorporated
into our general maritime law, there can be no liability
under the facts of this case.” bid.

Petitioner’s argument that the refusal of the Court of
Appeals to consider the incorporation is in conflict with
other decisions is totally without merit. As pointed out
by the Court of Appeals, various district courts have split
on the issue of incorporation, and only one Circuit Court
has so far passed judgment on the issue—in favor of the
incorporation. Lindsay v. McDonnell Douglass Aircraft
Corp., 460 F.2d 631 (8th Cir. 1972, 497 F.2d at 78
(App., Pet. Writ, p. 74). It goes without saying that
the court’s deferral of resolution of the question certainly
presents no conflict with the affirmative holding in the
Lindsay case, nor with any other case in which the issue
has been considered.

Thus, the significant issues are whether the theory of
strict product liability applied both by the Court of
Appeals and the District Court is a correct one, assuming
the viability of incorporation, and whether the Court
of Appeals’ application is correct.

; cemeanlaces |

10

II

IN RESORTING TO THE THEORY OF STRICT
PRODUCT LIABILITY SET OUT IN THE
RESTATEMENT (SECOND) OF TORTS, SEC.
402A, THE COURT OF APPEALS DID NOT FAIL
OR REFUSE TO APPLY FEDERAL MARITIME
LAW TO PETITIONER’S CLAIM AGAINST CON-
STRUCTION MACHINERY COMPANY.

Petitioner argues that “. . . the Court of Appeals re-
fused to apply federal maritime law in determining the
legal rights and obligations governing Petitioner’s claims
against Bender and CMC. . .” (Pet. Writ, p. 14). Related
is his attack on the validity of the lower court’s applica-
tion of the American Law Institute’s Restatement (Sec-
ond) of Torts, Sec. 402A (1965). (Pet. Writ, p. 14, pp.
19 et seq.).

The arguments put forth by Petitioner are without
merit. Unquestionably, in its discussion of its reasons for
holding CMC not liable in tort under the theory of strict
product liability, the Court of Appeals relied upon the
Restatement of Torts 2d, Sec. 402A, and the accom-
panying Commentary prepared by the American Law
Institute. Just where is the error? What is that “federal
maritime law” of strict product liability which Petitioner
accuses the Court of Appeals of ignoring? Petitioner fails
to reveal its substance or source.

There is no developed body of “federal maritime law”
of strict product liability different from that stated in
the Restatement. The only Circuit Court, the Eighth,
which has specifically incorporated into federal maritime
law the theory of strict product liability, Lindsay v.

11

McDonnell Douglas Aircraft Corp., 460 F.2d 631 (8th
Cir. 1972), specifically applied the said Restatement:

“We hold that the correct law to be applied to this
case is expressed in Restatement (Second) of Torts
§ 402-A (1965), as it is the best expression of the
doctrine as it is generally applied, and for the
additional reason that several federal courts have
previously used that section in maritime cases [cases
cited]. Lindsay, 460 F.2d at 636.

One other Circuit appears to have applied the theory
of strict product liability in a case within its admiralty
jurisdiction. McKee v. Brunswick Corp., 354 F.2d 577
(7th Cir. 1965). There the theory was applied to fix
liability on the seller of the vessel for injuries to passen-
gers. However, the Seventh Circuit did not purport to
incorporate the theory into federal maritime law. Rather,
the Seventh Circuit appears to have referred to Illinois
law. Illinois had adopted the rules of strict liability in
tort, without any requirement of privity between the man-
ufacturer and/or seller and the user and/or consumer.
Suvada v. White Motor Company, 32 Ill. 2d 612, 210
N.E.2d 182 (1965); McKee, 354 F.2d at 583. In-
terestingly enough, the Illinois Supreme Court had noted
that the views expressed in Suvada coincided with the
position taken in Section 402A of the Restatement!
McKee, supra.

In holding that CMC and Bender were liable to the
Petitioner on strict product liability grounds, the District
Court used the language of the Restatement to state the
legal theory (App., Pet. Writ, p. 44). Petitioner was
satisfied with the application of the Restatement then.

| eee ee

12

In his briefs and argument before the Court of Ap-
peals, Petitioner sought to uphold the decision of the
District Court, relying upon his and the District Court’s
construction of the Restatement. Not until the Fifth
Circuit construed the rule of the Restatement to exonerate
CMC and Bender did Petitioner waver in his belief in
that statement of the law. Now he attempts to discredit
the Restatement by attempting to show that some state
courts may have applied portions of the Restatement
somewhat differently. Suffice it to say that Petitioner
presents no different interpretation by any Circuit Court,
or district court, on the liability issues presented in the
instant case. Nor does Petitioner even present any rele-
vant and differing interpretation applied by any state
jurisdiction.

il

THE COURT OF APPEALS CORRECTLY HELD
THAT THE WINCH OF CONSTRUCTION MA-
CHINERY COMPANY, AS DESIGNED, WAS
NEITHER DEFECTIVE NOR UNREASONABLY
DANGEROUS.

A. The Theory of Strict Product Liability

The District Court found CMC not negligent. CMC
was held liable to Petitioner solely upon the trial court’s
construction of the theory of strict product liability as
stated in § 402A of the Restatement. In reversing the
District Court, the Court of Appeals held that CMC did
not breach any duty to Petitioner, in a strict product
liability sense, and, even if so, CMC’s winch was not
the legal cause of Petitioner’s injuries, in a strict product
liability sense.

13

The CMC winch had no braking mechanism on either
of the catheads. The Court of Appeals, in effect, found
that CMC owed no duty to Petitioner to design any
braking mechanism into its winch. In terms of the
Restatement, the appellate court held that the winch was
neither “defective” nor “unreasonably dangerous”. 497
F.2d at 79 (App., Pet. Writ., pp. 77-78).

According to the theory of strict liability set forth in
the Restatement of Torts 2d, Sec. 402A...

“One who sells any product in a defective condition
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 con-
sumer, or to his property, .. .”

The Court of Appeals observes that Section 402A sets
out three requirements for strict liability—(1) the
product must be “in a defective condition”; (2) it must
be “unreasonably dangerous to the user”; and (3) it must
be the “cause” of the injury. 497 F.2d at 78 (App.,
Pet. Writ, p. 74). When referring to the requirement
of a defective condition, the usual situation involves a
product which was not manufactured as intended. There
was a miscarriage in the manufacturing process; it is an
“impure” product. However, the instant case involves a
winch which was manufactured just as it was designed or
intended. Instead, the “defective condition” is alleged to
be the design of the winch without a brake on the port
cathead.

The Court of Appeals correctly notes that in these
product design cases the phrase “defective condition”
has no meaning independent from the requirement that

14

the product also be “unreasonably dangerous”. 497 F.2d
at 79 (App. Pet. for Writ, p. 77). See, for example,
Ross v. Up-Right, Inc., 402 F.2d 943 (Sth Cir. 1668);
Wade, “Strict Tort Liability of Manufacturers”, 19 S.W.
L.J. 5, 15 (1965). The product is “defective” only be-
cause its design made it unreasonably dangerous to the
user.

Stated generally, CMC had the duty to design, manu-
facture, and sell a winch the use of which is not un-
reasonably dangerous, or, to state it another way, a
product at least reasonably safe to use.

The doctrine of strict liability does not require a per-
fectly safe or “fool-proof” product. Strict liability, by its
terms, does not automatically apply just because use
of the product entails some risk or danger. It applies only
when use of the product is “unreasonably” dangerous. As
the Court of Appeals had observed before, the require-
ment that the defect, to create liability, render the product
unreasonably dangerous refiects a realization that many
products have both utility and danger. Helene Curtis
Industries, Inc. v. Pruitt, 385 F.2d 841 (Sth Cir. 1967).
In fact, it has been said that, in these defective design
cases, the courts must balance the utility of the risk
against the magnitude of the risk from use of the product
to determine whether the use is unreasonably dangerous.
Pruitt; Wade, supra.

To balance the utility and the magnitude of any
relevant risk posed by the absence of an “adequate
braking mechanism” on the port cathead, the risk must
be defined. The risk is that which satisfaction of the
duty (assuming such a duty) would have avoided. The
risk with which we are concerned here was the risk of

15

aggravation of an injury from an accident caused by
the irresponsible conduct of Petitioner Williams and/or
Seaman Terry in turning back on the power to the
winch port cathead.

Should CMC be held liable for failing to anticipate
and guard against the irresponsible individual conduct
of Williams and Terry which merged to cause the acci-
dent? More specifically, did CMC have any duty to design
to avoid enhancement of injuries caused by a unique
“misuse” of its product? CMC emphatically replies “No.”
CMC had no reason to anticipate and to guard against
the subject occurrence.

This being the only accident involving a shrimp boat
winch in the evidence, obviously the magnitude of the
risk was very slim, if not negligible. There is no evidence
in the record of any frequency of occurrence of this sort
of accident. Thus, this case is unique whereas, for ex-
ample, automobile collisions and lawnmower accidents
occur frequently.

What was the utility of the risk? It means a less ex-
pensive product, one less difficult to install, and one less
difficult to use (R. 964-970). This type of winch, having
no separate brake on the cathead, was common in the
industry. Williams and his crew were familiar with this
kind of winch and used it for many tasks. No brake was
needed in order for the cathead to perform its intended
functions—to pull in lines for anchors, for nets, for cargo.

After balancing the utility of the risk of aggravation
with the slight degree of risk (one incident!), CMC
contends the conclusion to be overwhelmingly in favor or
utility. The winch was simply not “unreasonably danger-

AO MP RBC ns,

16

ous” under the theory of strict product liability. Hence,
such a duty (to add a separate brake to the catheads)
should not be imposed.

Wade has set out a number of factors which he believes
should be considered in making the determination of
whether a product is unreasonably dangerous:

“(1) The usefulness and desirability of the product.

(2) The availability of other and safer products to
meet the same need,

(3) The likelihood of injury and its probable serious-
ness,

(4) The obviousness of the danger,

(5) Common knowledge and normal public expecta-
tion of the danger (particularly for established
products),

(6) The avoidability of injury by care in use of
the product (including the effect of instructions
or warnings), and

(7) The ability to eliminate the danger without seri-
ously impairing the usefulness of the product
or making it unduly expensive.” Wade, supra,
at 17.

After examining the record and the findings of the
District Court, the Court of Appeals applied the fore-
going factors or variables to the evidence and found:

“Paraphrasing the variables suggested by Dean
Wade, 19 S.W.L.J. at 17, we find the following
in support of a ‘cost outweighs benefit’ conclusion
here: (1) catheads are practically indispensable to
the shrimping business; (2) few, if any, are equipped
with a braking device, (3) the likelihood of injury

m eM St RE, KO NS a eed s, PE eee GED oh = Bo Pe2-seIRe. ~ ” - :
RE AS NT RO ag EA IMLS CILIA MOP LASSE TSIM. Tn eae Sere Sets haa ee ee

17

is remote, limited to peculiar circumstances such
as occurred in this unusual case; (4) the inherent
danger is obvious to all; (5) injury could have been
avoided but for the misuse of the product; and (6)
installation of a brake would substantially increase
the cost of the winch.” 497 F.2d at 79 (App.,
Pet. Writ, pp. 77-78).

It is submitted that, in order to hold CMC liable for
any of Williams’ injuries, this Court must ignore the few
limitations in the Restatement theory of strict product
liability and make that additional “giant leap” to absolute
liability in the broad area of products liability. To sus-
tain Petitioner’s claim against CMC, this Court would
have to hold that product liability exists whenever an
injury occurs or is enhanced in connection with the
use of a product. No court, state or federal, has gone
so far. Even Petitioner is reluctant to urge such a propo-
sition. Petitioner couches his relevant arguments in terms
of the assumed “defective” condition of CMC’s winch.

B. Enhancement of Injuries

It is clear that the alleged defect, the absence of an
“adequate braking mechanism”, did not cause the acci-
dent. It was Williams’ and/or Terry’s conduct which
caused the accident from which Williams’ injuries
stemmed. Instead, the trial court found the absence of
an “adequate braking system” to be a producing caus*
of injuries to Williams. The “defect” enhanced or aggr:-
vated Williams’ injuries. Even in the trial court’s opinion,
it was the return of power to the winch, causing the cat-
head to turn again, which caused the accident. With this
return of power, Williams was caught in the line because
his hands were too near the cathead.

2S ARM Ne aR UR AP wate cong

18

Thus, this case falls into the category of the few cases
in which the absence of a safety device allegedly aggra-
vated or enhanced the plaintiff's injuries, rather than
caused the accident.

With respect to this danger or risk of enhancement,
reference should be made to Comment i of the Restate-
ment which further clarifies the rule by explaining that,
to be unreasonably dangerous, the product. . .

“. . . must be dangerous to an extent beyond that
which would be contemplated by the ordinary con-
sumer who purchases it, with the ordinary knowledge
common to the community as to its characteristics.”

As already pointed out, the relevant danger or risk,
which is the focal point of the hypothetical cathead
brake, was the enhancement or aggravation of injuries
initiated by the conduct of a third party —i.e., Terry
turning the power back on. Since everybody was aware
the cathead had no separate brake, how can it be said
that it posed a greater danger than that “. . . contemplated
by the ordinary consumer [or user] . . . with the ordinary
knowledge common to the community as to its character-
istics? The Court of Appeals agrees. 497 F.2d at 79
(App., Pet. Writ, p. 77).

This aspect of the liability issue was recently similarly
construed by the Tenth Circuit in a diversity case, Hartman
v. Miller Hydro Company, 499 F.2d 191 (1974), in
which the court applied the Restatement and cites Com-
ment i thereto.

It has been held that recovery can be had under §402A
where the lack of a proper safety device constitutes a
defective design. Larsen v. General Motors Corp., 391

19°

F.2d 495 (8th Cir. 1968), Minnesota law applied; Nanda
v. Ford Motor Co., 509 F.2d 213 (7th Cir. 1974),
Illinois law applied and Larsen followed. In these cases
the crucial issue is whether the scope of the manufacturer’s
duty was broad enough to require him to provide the
subject safety device.

In Larsen, the court held that in light of the well-known
risk of automobile collisions an automobile manufacturer
has the duty to design his cars so as to avoid unreasonable
risks of harm to the user. Involved there was the claim
that the improper placement of the steering assembly
enhanced the driver’s injuries in a collision.

In Nanda, the court held the manufacturer liable for
injuries to passengers because of the absence of a fire
wall between the passenger compartment and the gas tank.
The court reasoned that because of the likelihood of rear-
end collisions and consequent serious injuries to pas-
sengers, the manufacturer had a duty to install a fire wall.

There is a split of authority over the issue of whether
the auto manufacturer must design to abate injuries from
the “second collision”. The leading case for the opposite
view is Evans v. General Motors Corp., 359 F.2d 822
(7th Cir. 1966), Indiana law applied. Involved in Evans
was the plaintiff's claim that because of an “X” frame
in the 1961 Chevrolet station wagon, instead of a per-
imeter or side frame, the collision of decedent’s auto with
another automobile allowed the left side to collapse in
upon the decedent, inflicting fatal injuries. Observing that
the manufacturer had no duty to make his cars accident
proof, the Court exonerated the manufacturer by holding
that his duty to design safely went no farther than to
design so as to enable the automobile to function as a

.

eae Mariners

Grohl ee PERG PAPAS aE GG eR PEELE ese be BE cae ne

20

form of transportation. The duty did not include any
requirement of designing so as to abate collision injuries.
As a matter of law, collisions are not within the scope
of an auto’s intended use.

A recent case following Evans is that of Turner v.
Big Four Automotive Equipment Corp., 511 F.2d 133
(Sth Cir. 1975), applying Mississippi law which dis-
allows liability for enhancement.

Even Larsen does not support the district court’s hold-
ing against CMC. The alleged “defective” condition, the
placement of the steering assembly, was latent or hidden.
The alleged defective condition here was open and obvious
to all. Secondly, the steering design would function with-
out the required extra effort of a man, but man’s extra
effort is required in the instant case. Someone would have
had to apply the brake, if there had been one. The steer-
ing assembly in the Corvair was not located like those
in other vehicles. Also, Larsen was decided on a negligence
theory. In fact, the court expressly made no comment on
the issue of strict liability or implied warranty of mer-
chantability. Larsen, 391 F.2d at 506.

Finally and importantly, the Larsen court was con-
fronted by a set of risks far greater in magnitude than
that presented here concerning CMC’s winch. The Larsen
decision turns on the court’s finding that the magnitude
of the risk or involvement of the manufacturer’s vehicle
with other vehicles in injury-producing accidents broadens
the automobile manufacturer’s duty to provide a safe
vehicle for its “intended use”. See Larsen, at 502. Also
significant is the emphasis placed by the court on the fact
that injuries from automobile collisions “. . . are readily
foreseeable as an incident to the normal and expected

2h:

use of an automobile. . . Collisions with or without fault
of the user are clearly foreseeable by the manufacturer
and are statistically inevitable.” bid. See also, Nanda,
supra.

Obviously, the magnitude of the risk of injury prevalent
in an automobile situation is not the same as that of
CMC’s winch. No evidence was produced of any injury
to a seaman in the use of the winch cathead, such as
happened to Williams.

C. Evidence of Available Safety Design

As found by the Court of Appeals, the evidence was
clear that winches with brakes were non-existent on
trawlers used by the shrimping industry. 497 F.2d at 79
(App., Pet. Writ, p. 76). In fact, there was no evidence
in the record of similar winches having brakes on their
catheads (R. 968-9). None of the witnesses were familiar
with one on a shrimp boat (Jenkins, R. 567; Williams,
R. 799; Koloc, R. 979; Richo Deposition 35; Bender,
R. 1211).

Anthony R. Koloc, the sales engineer for CMC, called
by the Plaintiff-Petitioner under the adverse party rule,
testified about the practical design problems in adding
some type of brake. (R. 848, 964, 969-970). No expert
testimony was adduced to support the contention that the
design was unreasonably dangerous.

The conclusion is inescapable that the trial court
premised its conclusion of strict liability upon a mere
concept with no supporting evidence as to practicality,
as to design, as to cost, as to demand, etc. As the Court
of Appeals concluded, the only evidence on these factors
supports a legal conclusion of no duty to design and

«7 mereeneronal

Av MEER LLIN ABER E SILL IGE TIE

LEASE ALT OLE HEIN FOS

22

manufacture a brake on the cathead. The district court
speculated and built inference on top of inference.

In the cases allowing recovery under the doctrine of
strict liability upon a safety design defect theory, affirma-
tive evidence was always produced of existing safer de-
signs, usually along with affirmative expert testimony.
Larsen, supra; Nanda, supra.

D. Strict Liability in Terms of Conduct

The terminology of the doctrine of strict liability char-
acterizes the product rather than the defendant’s conduct.
But it has been observed that the issue can be phrased in
terms of a defendant’s conduct. Pruitt, 385 F.2d at 850;
Wade, supra; Keeton, “Products Liability—Inadequacy of
Information”, 48 T.L.R. 398. First, assume that the de-
fendant had knowledge of the risks involved in use of
the product. Then, “for the design to be unreasonably
dangerous, it must be so dangerous that a reasonable man
would not sell the product if he knew the risks involved.”
Pruitt, Id.; Wade, supra at 10.

Again, applying the above test, the result should be the
same here. Even from the advantage of hindsight, can it
be said that, as a matter of law, CMC had a duty to
provide a brake for the cathead? Discussed above are the
considerations of utility of use of the winch which by far
outweigh the incidental risk of enhancement of injuries
from an accident caused by someone’s misuse of the
winch.

The only evidence produced by Plaintiff relevant to the
degree of risk of enhanced injury in use of the winch
cathead is that of his own accident. Isn’t it strange that
a design which has been used for years and years by

23

countless numbers of people without serious harm is now
condemned as unreasonably dangerous to life and limb?

Just because this accident happened is not sufficient
justification for imposing a duty to anticipate the realiza-
tion of what was a unique event.

E. Critique of Petitioner’s Arguments on CMC’s
Duty

Arguing the existence of conflict between the decision
by the lower court and decisions by other federal courts
over the “correct” interpretation of Section 402A, Restate-
ment, Petitioner fails to cite any federal cases in conflict.
Again, there are only a few in the maritime field and none
are in conflict with the decision here. Lindsay, supra;
McKee, supra.

Relying exclusively upon a California case, Petitioner
asserts that liability under Section 402A is not predicated
on whether the product was “unreasonably dangerous”,
but, instead, is established “simply” by showing the
product was “defective” and tha: the defect proximately
caused the harm to a foreseeable user of the product. Cronin
v. J.B.E. Olson Corp., 501 P.2d 1153 (Cal. Sup. 1972).
See Pet. for Writ, p. 22. Although the California Supreme
Court has held that California law now requires proof
only of a defective condition, as that court was quick to
point out in Cronin, there remains the judicial task of
applying the defectiveness standard to the facts of each
case. 501 P.2d at 1162. In limiting a plaintiff’s burden
in a strict product liability case in California, the Cali-
fornia Supreme Court by no means intended to make
sellers and manufacturers liable for all injuries involving
the use of its products. There remains “. . . the necessity
of proving that there was a defect in the manufacture or

on sore

SELENA LER IE ING OE

Feces re

Se re oS a ed ah:

SBS Sat NAR OL ei

Be cos Sasa
LuERTY

24

design of the product and that such defect was a proxi-
mate cause of the injuries.” 501 P.2d at 1162.

As it may relate to defective design cases, Keeton has
criticized the Cronin opinion. Keeton, “Products Liability
and the Meaning of Defect,” 5 St. Mary’s L. J. 30 (1972).
For cases of defective design, Keeton argues that the term
“unreasonably dangerous” helps to define the term “de-
fect.”

A second case cited by Petitioner in line with the
Cronin case is an opinion by a New Jersey Superior Court,
Law Division. Glass v. Ford Motor Co., 304 A.2d 562
(N.J. Super., Law Div. 1973). The trial judge opined that
the jury instruction should be on the defectiveness stand-
ard alone. However, the Supreme Court of New Jersey has
not gone that far, having recently acknowledged the Glass
opinion but reserving the issue. Brody v. Overlook Hos-
pital, 66 N.J. 448, 332 A.2d°596 (1975).

No federal case is cited by Petitioner in which the
plaintiff's burden has been restricted to a showing of
defective condition only. Especially, there are no federal
maritime cases on the point.

Assuming, arguendo, that only defective condition need
be found, without an additional finding that the defect
was unreasonably dangerous, nevertheless Petitioner’s
challenge to the Court of Appeals decision is without
merit. Was the winch defective because it had no separate
brake on the port cathead? The Court of Appeals speci-
fically answered “No”. 497 F.2d at 79 (App., Pet. Writ,
p. 77).

Nowhere in his Petition for Writ does the Petitioner
cite any affirmative authority for his proposition that the

25

winch was defective. Among the cases cited in this portion
of his argument (Pet. Writ, pp. 23-24), Petitioner cites
another very recent opinion by the lower appellate court:
Weakley v. Fischbach & Moore, Inc., 515 F.2d 1260
(Sth Cir. 1975). However, the court held in Weakley
that the contractor had failed to establish a design defect
in the subject electrical isolator switch.

The contractor attempted to show that the switch was
defective because there were other design alternatives
which, had they been adopted, would have prevented the
accident or minimized its consequences. To that argument,
the Fifth Circuit replied:

“Such a showing, by itself, is insufficient to establish
liability [authority cited]. It is one thing to show that
the defendant might have designed a safer product;
quite another to show that the product he did design
was unreasonably dangerous. The defendant is not
obligated to design the safest possible product, or one
as safe as others make or a safer product than the
one he has designed, so long as the design he has
adopted is reasonably safe [authority cited]. Weak-
ley, 515 F.2d at 1267.

Similar to the instant case, in Weakley the contractor
produced no evidence that the design deviated from ac-
cepted industrial practice, nor did it produce any expert
testimony to support its contention that the design was
unreasonably dangerous, nor did it produce any evidence
of previous accidents or previous switch failures, 515 F.
2d at 1268-1269. It is submitted that the reasoning in
Weakley, if anything, bolsters this decision by the Court
of Appeals.

26

The next case cited by Petitioner is a California opinion
that was handed down by that state supreme court on the
same day it announced its opinion in Cronin, supra. Luque
v. McLeon, 501 P.2d 1163 (Cal. Sup. 1972). In Luque
the user of a rotary lawnmower slipped on wet grass and
fell backward. His hand slipped through the opening for
ejecting cut grass and into the blade.

The sole issue on appeal in Luque was whether the
defendant was entitled to an instruction on tthe plaintiff's
awareness of the absence of a safety guard ower the open-
ing.

The case is not in point on the duty issue. In fact, the
court there notes that such an injury was foreseeable, that
safety guards were available and would have cost the
manufacturer about One Dollar to install. Luque, supra.
While such injuries with rotary lawnmowers occur fre-
quently, there is no evidence in our record of any similar
accident with a winch on a shrimp boat in an industry
many decades old. Further, there is no evidence of any
other winches with brakes on shrimp boats, and there was
uncontroverted evidence as to the substantial additional
cost to be incurred in designing and installing such a hy-
pothetical brake.

Neither in point is Brown v. Quick Mix Co., 454 P.2d
205 (Wash. Sup. 1969). The case is also concerned with
the effect of the plaintiff's awareness of the alleged defect.
Interestingly, the plaintiff there testified that he wasn’t
aware of the particular danger. More importantly, the
danger was the cause of the accident rather than the cause
of enhancement of injuries resulting from any other cause,
as here. In Brown the plaintiff's hand slipped between a

27

centralizer pipe or tube and the flights of an auger inside
the tube. Also, the accident occurred when product being
used exactly as intended, unlike in our case.

Decided in Messick v. General Motors Corp., 460 F.2d
485 (Sth Cir. 1972) was the issue of whether the plain-
tiff had assumed the risk. There was no issue as to the
defective and unreasonably dangerous condition of the
product. No issue of defective and unreasonably dangerous
condition of product was before the court in Elder v.
Crawley Book Machinery Co., 441 F.2d 771 (3rd Cir.
1971). At issue in Walsh y. Miehle-Goss-Dexter, Inc.,
378 F.2d 409 (3rd Cir. 1967) was the trial court’s fail-
ure to properly instruct as to the standard of care to be
exercised by workmen in cleaning moving machinery.

The Powell case cited by Petitioner is a negligence case.
Powell v. E. W. Bliss Co., 346 F. Supp. 819 (W.D. Mich.
1972). The court found that the manufacturer breached
a duty to the operator of an industrial punch press. The
machine continued to cycle after the power turned off due
to flywheel momentum. To turn off the machine, the op-
erator had to remove a safety device from her hand. The
device was designed to keep the operator’s hand out of
the press area!

The accident in Powell occurred because of the ma-
chine’s cycling coupled with an inadequately designed
safety device which device was designed to meet an ob-
vious and foreseeable danger. Further, there was evidence
of realistic possibilities for a better flywheel brake, better
guarding devices and some kind of effective warning to
new operators of the nonobvious danger of continued
cycling after power disconnect. Powell, supra.

‘

RENIN MN eM MINED ENTS HTH!

28

Only one of the cases cited by Petitioner, at page 24,
even involves the issue of defective condition unreason-
ably dangerous to user. Rourke v. Garza, 511 S.W.2d
331 (Tex. Civ. App.—Houston [Ist Dist.] 1974,
writ granted) .’ Involved in Rourke were scaffolding planks
or boards delivered without 2” x 4” “cleats” on the ends
to prevent horizontal or longitudinal slippage while in use
on the scaffolds. The boards slipped and plaintiff fell
through.

Distinguishing Rourke from the case at hand is the tes-
timony in Rourke by the contractor-users of the scaffolding
that it was customary in the geographic area (Galveston,
Texas) for the boards to come from suppliers with
“cleats”. Also, they testified that it was common knowl-
edge that it is dangerous to use the boards without
“cleats”. But they did. The employee was injured. And
the effect to be given the contractor’s knowledge is an
issue in the appeal before the Texas Supreme Court.
18 Tex. Sup. Ct. Jr. 169 (Jan. 18, 1975).

Contrary to Petitioner’s conclusion stated on page 24
of his Petition, the foregoing cases do not support the
District Court’s findings on strict product liability. Nor do
they materially conflict with the opinion of the Court
of Appeals. Simply put, Petitioner fails to show error in
the Court of Appeals’ determination that CMC’s winch
was neither defective nor unreasonably dangerous.

1. It is not final. The Rourke case is presently pending on appeal
before the Texas Supreme Court, the appeal involving, inter alia, the
findings of defective condition unreasonably dangerous to plaintiff
user. 18 Tex. Sup. Ct. Jr. 169 (Jan. 18, 1975).

29

IV.

THE COURT OF APPEALS CORRECTLY HELD
THAT THE WINCH OF CONSTRUCTION MA-
CHINERY COMPANY, AS DESIGNED, WAS
NOT THE PROXIMATE CAUSE OF PETITION-
ER’S INJURIES.

A. Foreseeability of the Risk.

Having held that the winch design neither rendered the
winch defective nor unreasonably dangerous to Petitioner
the Court of Appeals proceeded to also find against Peti-
tioner on the causation portion of the liability equation.

The Court of Appeals says that CMC occupies a posi-
tion nearly identical to Bender. 497 F.2d at 79 (App.,
Pet. Writ, p. 78). In its discussion of the causation issue
relevant to Bender’s strict product liability, the Court
concludes that the requisite foreseeability was lacking,
citing its opinion in Helene Curtis Industries, Inc. v.
Pruitt, 385 F.2d 841 (1967), wherein the court discusses
the need, in abreaction cases, to balance the utility of the
risk against the magnitude of the risk from use of a
product. As the Fifth Circuit notes in its opinion here,
the logic of Helene Curtis is applicable to cases of defec-
tive design.

Petitioner argues that “common law foreseeability has
no place in the concept of strict product liability cases
involving defective design”. (Pet. for Writ, p. 24). In
support of his proposition, Petitioner cites several Texas
court cases, but only one federal court of appeals opinion:
Eshbach v. W. T. Grant’s and Company, 481 F.2d 940
(3rd Cir. 1973).

|
x
“> ilies |

30

Far from ruling out foreseeability in defective design
cases, the Third Circuit in Eshbach acknowledges the
viability of “foreseeability” in defining the duty of the
seller. 481 F.2d at 943. The seller is charged with “. . .
foreseeing the probable results of the normal use of the
product or a use which can be reasonably anticipated”,
citing its previous decision in Kaczmarek v. Mesta Ma-
chine Company, 463 F.2d 675 (3d Cir. 1972). 481 F.2d
at 943.

Perhaps what misleads Petitioner about Eshbach is the
fact that the court in Eshbach reversed and remanded the
defendant’s judgment because of certain contradictions it
found in the district court’s charge. The Eshbach court
was of the opinion that the district court in its charge
incorrectly implied that the seller’s liability under the
Restatement theory of strict tort liability hinged on the
seller’s having foreseen the precise manner in which the
injury occurred. Although the charge also contained an
accurate instruction as to the tort theory, the Eshbach
court was concerned about the possible resulting jury
confusion.

It is interesting to note that the Third Circuit qualifies
its discussion of “foreseeable use” by pointing out that
the concept does not include “unintended use”. Eshbach,
481 F.2d at 943 (see footnote). This portion of the
opinion is relevant to the instant case. Here, the Fifth
Circuit postulates that the use of the winch when the
injury occurred was not a foreseeable use. It was an
unintended use. The winch was not intended to be powered
when a line is tangled. Petitioner was injured because of
the deliberate and intentional misuse of the winch. Ir-
respective of whether Petitioner gave the alleged order to
Terry to engage the power, the fact is that the power was

31

engaged intentionally by Terry. It was this act of Terry’s
which caused the accident in the opinions of both courts
below.

Aside from Eshbach, Petitioner cites three Texas cases,
two of which are inferior appellate court opinions
[Ethicon, Inc. v. Parten, 520 S.W.2d 527 (Tex. Civ. App.
—Houston [14th Dist.] 1975, no writ hist.); Hartzell
Propeller Co., Inc. v. Alexander, 485 S.W.2d 943 (Tex.
Civ. App.—Waco 1972, writ ref. n.r.e.)]; and only one
of which is a state supreme court opinion which is not
in point because it involved an impure product, one not
manufactured as intended [Hoover v. O.M. Franklin Serum
Co., 444 $.W.2d 596 (Tex. Sup. 1969)].

Respondent submits that “foreseeability” of the injury
is a necessary element in the theory of strict product
liability as generally applied. Whether it be considered a
part of the issue of scope of duty, or a part of the causa-
tion inquiry, it is a critical element in determining the
magnitude of the risk in the use of a product. Pruitt,
supra; Wade, supra. It is an especially critical element
when the defect alleged is a design defect, moreover, a
safety design intended to avoid enhancement of injury,
rather than to avoid the accident itself.

B. Cause-in-fact.

More support appears in favor of the lower appellate
court’s holding of no legal causation when the facts as
to the occurrence of the accident are reviewed. It is un-
clear from the record, and the district court made no
finding, as to how long the cathead continued to turn
under power after Williams became tangled in the line.
Then only uncertain estimates were given as to how many
turns it made after the power was disengaged.

A Meme IB 4

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bit es

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J ota leant Ga a ea Teed BEA

32

The trial court’s determination of causation was prem-
ised upon a bunch of inferences. If the cathead had had
a brake and if someone had had the presence of mind to
apply it and if the brake could have stopped the cathead
sooner than it did on its own, then... If, if, if...

If there had been a brake, would Terry have applied it?
He was the one who got out of the way when he saw
what had happened. Would Williams have applied it?
He was too busy trying to get his hand out of the rope
to collect his thoughts to reach for and apply a brake.
Would Richo have applied it? He was the most likely
candidate. But he was at the back of the boat. If and
when he applied a brake, would it have been soon enough?

It is CMC’s contention that the trial court’s finding
that failure to provide an adequate brake caused enhance-
ment of Williams’ injuries was based entirely on a strained
and speculative inferential chain of “ifs,” but no facts.
Thus, there is no showing of cause-in-fact, as a matter
of law.

V.

EITHER PETITIONER’S CONDUCT CONSTI-
TUTES ASSUMPTION OF THE RISK, OR SEA-
MAN TERRY’S CONDUCT CONSTITUTES MIS-
USE OF THE WINCH WHICH WAS THE IN-
TERVENING CAUSE OF PETITIONER’S _IN-
JURIES.

Once again, the Petitioner fails to show any conflict
between the Court of Appeals treatment of product mis-
use and assumption of the risk with that of any other
court of appeals in a case involving maritime law.

33

Petitioner’s argument at pages 25-27 of his Petition
for Writ assumes a defective condition. But the Court of
Appeals specifically found no defective condition and
no causation. It is submitted that the Court of Appeal’s
product misuse findings should be treated as the sole
independent and intervening legal causes of the accident
and the injuries. No primary liability was established.
Only Williams and/or Terry’s misuse of the winch was
established.

A. Petitioner’s Assumption of the Risk.

As to the effect to be given Petitioner’s assumption of
risk (if he gave the order), Petitioner’s argument is
academic. It is academic because of the Court of Appeal’s
finding of no primary liability on the part of CMC or
Bender.

In the view of the District Court, Petitioner’s negli-
gence was in the placement of his hands on the line
and in close proximity to the winch. The District Court
made no finding on whether Petitioner gave the alleged
order to Terry to re-engage power ( App., Pet. Writ,
pp. 48-49). Terry was considered negligent for his failure
to ascertain whether Williams’ hands were a safe distance
from the winch when he re-engaged power (App., Pet.
Writ, p. 41).

The Court of Appeals held that the pivotal issue is
whether the alleged order was given to re-engage power
to the winch. If Petitioner, the master, gave the order,
Terry was not negligent in obeying. If Petitioner did not,
then Terry’s negligence in re-engaging power was the
intervening cause of the accident. In the latter case,
Petitioner’s positioning of his hands was not a contribut-

he WESC DG, SERL PEE DIESEL LR SEITE

34

ing proximate cause of his injury. 497 F.2d at 73-74
(App., Pet. Writ, pp. 62-66).

Given the positioning of Petitioner’s hands and as-
suming the direct order, such conduct does constitute
assumption of the risk. Petitioner voluntarily encountered
a known and appreciated danger. Henrich v. Cutler Ham-
mer Co., 460 F.2d 1325 (3rd Cir. 1972); Texsun Feed
Yards, Inc. v. Ralston Purina Company, 447 F.2d 660
(5th Cir. 1971); Elder v. Crawley Book Machinery Co.,
441 F.2d 771 (3rd Cir. 1971); Restatement (Second)
of Torts, § 402A, Comment n, at 356. In the Elder case,
supra, it was pointed out that where a person who knows
of the defect nevertheless chooses to use the product, the
manufacturer’s obligation to furnish a safe product has
been waived by the consumer’s choice to chance the
danger involved in the defect.

In the Henrich case, supra, the plaintiff was injured
while making an adjustment on a “slitter” machine.
Contrary to instruction, plaintiff failed to disengage the
power by throwing a power disconnect switch. One was
on the machine and a second was located in the area
proximate to the machine. Prior to the accident the slitter
machine’s electrical control system had been malfunction-
ing and was being serviced. Two co-workers were in the
area. Plaintiff sued on a theory of strict liability.

From an adverse jury verdict, he appealed, arguing that
he couldn’t be held responsible for the danger the
machine might be activated by human intervention or
some defect. The court held that “. . . it was within the
jury’s province to find that plaintiff's knowledge of de-
fects of the electrical control system, combined with his
disregard of the instructions to disengage the power,

35

amounted to a voluntary assumption of a known danger.”
460 F.2d at 1326, 1327.

Within the context of federal maritime law, assumption
of risk has been defined as follows:

“A seaman to whom two ways were available, one
dangerous and the other safe, assumed whatever
risk was involved in taking the dangerous course
when he selected it through his personal choice and
not because of any compulsion or ignorance of the
situation. Johnson v. United States, 74 F.2d 703,
704 (2d Cir. 1935).”

Hence, the definition of assumption of risk under
federal maritime law is equivalent to the definition used
by the cases in which § 402A has been applied. An
unreasonable voluntary encounter plus knowledge of
the defect constitutes assumption of risk.

Now, as to whether to treat assumption of risk as a
bar to recovery or to apply comparative negligence,
Petitioner cites no authority involving treatment of the
defense in a maritime law case involving a claim of
strict product liability. Notwithstanding, it should be kept
in mind that nowhere in its opinion does the Court of
Appeals hold that assumption of risk, or misuse, as
defenses, are complete defenses in bar to recovery. Nor
did the Court, for that matter, specifically consider them
as justifying application of comparative negligence rules.

The fact of the matter is that the lower court holds that
CMC—and Bender—was not liable to Petitioner in the
first place. There was no primary liability to defeat by
defenses of assumption of risk and misuse.

Kegon bg

36
B. Terry’s Unintended Misuse.

Turning to the matter of Terry’s negligence, his con-
duct in re-engaging power constitutes misuse, mishandling
or abnormal handling, which is a defense to strict product
liability. In addition to the lower court, at least four
other Circuits have so applied the Restatement in diversity
cases: Fourth Circuit in Brown v. General Motors Corp.,
355 F.2d 814 (1966), cert. den. 386 U.S. 1036; Seventh
Circuit in Downey v. Moore’s Time-Saving Equipment,
Inc., 432 F.2d 1088 (1970); Eighth Circuit in Schneider
v. Chrysler Motors Corp., 401 F.2d 549 (1968); and
Ninth Circuit in Tomicich v. Western-Knapp Enginecring
Company, 423 F.2d 410 (1970).

The Fifth Circuit has previously applied the Restate-
ment rule on product misuse in Messick v. General Mot-
ors Corp., 460 F.2d 485 (1972), Ross v. Up-Right, Inc.,
402 F.2d 943 (1968), McDevitt v. Standard Oil Com-
pany of Texas, 391 F.2d 364 (1968) and Helene Curtis
Industries, Inc. v. Pruitt, supra.

Analogous is the Eighth Circuit opinion in Leistra v.
Bucyrus-Erie Company, 443 F.2d 157 (1971). A negli-
gence case, there the plaintiff and a co-worker were
using the drum on a crawler-type crane for an unintended
purpose. A steel cable used to raise and lower the load
had spilled out beyond the confines of the drum, and
had become wedged between the drum and an adjacent
circular chain called the “power-down” chain which
operates as a brake in controlling the downward move-
ment of the load. After trying to dislodge the wedged
cable by hand, the plaintiff resorted to using a crowbar.
At this time the power to the drum was disengaged. Then
the crane operator engaged power to move the drum back

37

and forth. The power-down chain snapped and struck the
plaintiff in the face causing his injuries. The drum and
power-down unit were recessed in the cab, but unshielded.

The Court held that the legal cause of the plaintiff's
injuries was the misuse of the product—turning the drum
while the cable was wedged—and not the absence of a
safety shield from the chain.

In Tomicich, supra, the plaintiff was trying to clean
accumulation of mud from one of the sheaves running
a conveyor belt. The Ninth Circuit affirmed summary
judgment for the defendant. Important to its decision was
the plaintiff's familiarity with moving equipment and the
availability of safer ways to clean the sheave. CMC would
submit that Tomicich is a well-reasoned authority for
holding Williams’ and Terry’s misuse bars recovery
against CMC.

The plaintiff's disregard of the known risk completely
barred his recovery in Downey, supra [mechanical rug
washer] and in Brown, supra [co-worker touched bull-
dozer starter motor, Starting motor and bulldozer, while
plaintiff was sitting on track with legs between track
and the body].

The Eighth Circuit refused to discard the standard of
strict liability and hold the manufacturer an insurer in
Schneider, supra. The plaintiff injured his eye when look-
ing through the side vent mirror of his car in the dark.
The glass pierced his eye. Among other things that court
held the plaintiff had misused the side mirror by using it
for an unintended purpose.

When Terry deliberately turned the power back on, he
and Williams were using the winch for an unintended pur-

Pager; 4

38

pose. Obviously, the winch cathead was not intended to
run while a seaman attempts to untangle his line. This was
misuse and such should bar any recovery against CMC.
Such misuse was the independent cause of the injuries.

VI.

THE DECISION OF THE COURT OF APPEALS
WITH RESPECT TO BENDER AND BRASEA IS
CORRECT.

A. Bender.

Turning to Petitioner’s contentions concerning the Court
of Appeals decision as it appertains to Bender and Brasea,
this Respondent submits that no material or relevant rea-
sons have been offered by Petitioner which would warrant
this Court’s exercise of its writ power. Much of the above
discussion on the relevant concepts of the law of strict
product liability applies equally to Bender. The shortcom-
ings and irrelevancies in Petitioner’s argument as it applies
to CMC also exist in his challenge of Bender’s dismissal
from the case.

B. Unseaworthy Condition.

With respect to his challenge of the court’s opinion as
it relates to Brasea and the claimed unseaworthy condi-
tion of the vessel, Petitioner again attempts to frame his
argument by raising issues which are simply not in the
case in its present posture. Petitioner asserts that the lower
court failed to apply maritime law, that the lower court
treated assumption of risk and intervening negligence as
defenses in bar, and that the court violated the require-
ment of the “clearly erroneous” rule. Rule 52(a), Federal
Rules of Civil Procedure.

39

To the contrary, the Court of Appeals, on motion for
rehearing, merely amended its previous opinion by hold-
ing that Petitior-r was not entitled to judgment in rem
against the vess.i. (App., Pet. Writ, p. 82). The in rem
liability of the vessel was premised on the District Court’s
finding of unseaworthy condition. That finding, in turn,
was specifically premised upon the District Court’s finding
of strict product liability against Bender and CMC. In the
opinion of the District Court, it was the defective and
unreasonably dangerous condition of CMC’s winch and
Bender’s installation of certain equipment which caused
the vessel to be unseaworthy (See footnote, App., Pet.
Writ, pp. 81-82).

As the Court of Appeals reasoned, since it had exon-
erated both CMC and Bender of liability and held that
neither CMC’s winch nor Bender’s installation of equip-
ment created any defective and unreasonably dangerous
condition(s), then there were no findings of the District
Court left upon which to premise any finding of unsea-
worthy condition.

Petitioner offers absolutely no authority or reasoning
to refute that conclusion. There are no conflicting deci-
sions on the relevant issue of law. The court did not fail
to apply maritime law. Petitioner is undone on this point
by the limited specifics underlying the finding of unsea-
worthy condition in the District Court's opinion.

No issue of the treatment or effect of defenses is in-
volved. There’s no violation of the “clearly erroneous”
rule. It is just that no unseaworthy condition exists, as a
matter of law.

CPS mt ay EMR Ne? snr

40

C. Terry’s Conduct.

Another contention involving Brasea is that raised un-
der the third portion of Petitioner’s argument having to
do with the effects of his and Terry’s conduct (Pet. Writ,
pp. 29 et seq). Basically, the Court of Appeals states that
given the alleged order by Petitioner, Terry was only doing
his duty and had no additional duty to ascertain, in the
face of the order, whether Petitioner was in a position of
safety. The master ordered him to engage the power and
he did.

If Petitioner gave no such order, then Terry was negli-
gent in engaging power to the winch.

Because the District Court was of the opinion that
Terry was negligent irrespective of such an order, that
court felt it unnecessary to find whether such an order
was given. However, since in the view of the Court of
Appeals Terry was not negligent if such an order was
given, then a resolution of the narrow fact issue becomes
crucial. The Court of Appeals did not shift any burden
of proof from Brasea to Williams. Instead, it remanded
for the District Court to make the additional finding re-
quired by the Court of Appeal’s application of the mari-
time law to Terry’s duty as a seaman.

CONCLUSION

Despite all of Petitioner’s attempts at formulating issues
that may appear significant, the real issues actually in this
case on appeal are not so significant and only involve the
parties. The material issues in the case would not appear
to involve “. . . principles the settlement of which is of
importance to the public as distinguished from that of the
parties . . .”; nor does the case pose any “. . . real and

41

embarrassing conflict of opinion and authority between
the circuit courts of appeal . . .” Layne & Bowler Corp.
v. Western Well Works, Inc., 261 U.S. 387, 393 (1923).

All the seemingly significant issues argued by Petitioner
are actually academic. They do not warrant this Court’s
review. Rice v. Sioux City Memorial Park Cemetery, 349
U.S. 70 (1955).

Presented here is the Court of Appeal’s holdings, as a
matter of law, that CMC’s winch was neither defective
nor unreasonably dangerous, and that there was no legal
causation.

The Fifth Circuit did not refuse to apply maritime law.
No conflict of authorities is demonstrated by Petitioner.
The issue about incorporation of strict product liability
into maritime law is not only irrelevant to a decision of
the case, but, moreover, untimely given the scarcity of
consideration of the issue among the circuit courts.

For the reasons stated, Respondent, Construction Ma-
chinery Company, respectfully submits that the opinion
of the Court of Appeals is in all respects correct, and that
the Petition of Roy C. Williams for Writ of Certiorari
should be refused.

Respectully submitted,

M. W. MEREDITH, JR.

FINLEY L. EDMonps

Attorneys for Respondent,

Construction Machinery Company
Of Counsel:

MEREDITH & DONNELL
P. O. Drawer 2624
Corpus Christi, Texas 78403

rien Bei. |

42

CERTIFICATE OF SERVICE

The undersigned hereby certifies that three copies of the
foregoing Brief in Opposition to Petition for Writ of Cer-
tiorari have been deposited with the United States Postal
Service, with proper first-class postage affixed thereto (in
the case of Cleveland & Shaaber, air mail postage pre-
paid), certified mail, return receipt requested, addressed
to each of the following counsel: J. Robert McKissick,
Law Offices of William R. Edwards, P. O. Drawer 480,
Corpus Christi, Texas 78403, and Cleveland & Shaaber,
Barnett First National Bank Building, Jacksonville, Flor-
ida 32202, Attorneys for Petitioner Roy C. Williams; A.
J. Watkins, Watkins & Marshall, 750 The Main Building,
Houston, Texas 77002, attorney for Bender Welding &
Machine Company, Inc.; and Mr. Charles D. Kennedy,
Suite 3710, One Shell Plaza, Houston, Texas 77002 and
Mr. Jack G. Carinhas, Jr., P. O. Box 71, Brownsville,
Texas 78520, attorneys for Petitioner Brasea, Inc., on this
day of September, 1975.

M. W. MEREDITH, JR.

FINLEY L. EDMONDS

Attorneys for Respondent,
Construction Machinery Company

™/™

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1377%3A3. Public record. Not legal advice.