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Maddox v. River & Sea Marine, Inc. (11/8/96), 925 P 2d 1033
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NOTICE: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
JERRY MADDOX, )
) Supreme Court No. S-6582
Appellant, )
) Superior Court No.
v. ) 3KN-92-854 CI
)
RIVER & SEA MARINE, INC. ) O P I N I O N
)
Appellee. ) [No. 4423 - November 8, 1996]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kenai,
Charles K. Cranston, Judge.
Appearances: Michael W. Flanigan, Walther &
Flanigan, Anchorage, for Appellant. Michael
D. Corey, Sandberg, Smith, Wuestenfeld &
Corey, Anchorage, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh, Justices, and
Carpeneti, Justice pro tem.
CARPENETI, Justice pro tem.
EASTAUGH, Justice, dissenting.
I. INTRODUCTION
This is an appeal from a superior court decision granting
summary judgment to defendant River and Sea Marine, Inc. (River and
Sea), and dismissing the negligence claim of plaintiff Jerry Maddox
(Maddox). The case involves the scope of a seller's duty to warn
the purchaser of, or make safe, a chattel dangerous for its
intended use. The dispute arose when Maddox injured his back while
attempting to detach from his truck a boat and trailer purchased
from River and Sea. Because we find that material issues of fact
are in dispute concerning the defendant's duty, we reverse the
superior court's grant of summary judgment and remand for further
proceedings.
II. FACTS AND PROCEEDINGS
Maddox purchased a used power boat and trailer from River
and Sea on August 29, 1990, in Kenai. River and Sea is a retail
seller of boats, motors, trailers, snowmachines, and all-terrain
vehicles. Maddox had owned three power boats and trailers before
purchasing this boat from River and Sea, and had worked as a boat
salesman. The boat and trailer had been leased for two years to
another customer. The boat and trailer, made by different
companies, were paired by River and Sea. When Maddox purchased the
boat, it was still in the possession of the prior lessee. The
trailer had been left at River and Sea. Maddox attached the empty
trailer to his truck at River and Sea, then retrieved the boat from
its location on the river. (EN1)
Several days later, Maddox decided to detach the boat and
trailer from his truck. When he attempted to do so, he found that
the tongue-jack supplied with the trailer was broken. (EN2) He
then attempted to remove the trailer from his truck by hand. In
the process he injured his back, allegedly due to the excessive
weight of the boat-trailer combination.
Maddox testified at his deposition that he first
attempted to lift the boat at the trailer hitch but "[i]t wouldn't
come off, so I got back in the truck, put the truck in reverse,
[and] hit the gas sharply"in order to break loose the trailer
clamp. He returned to the trailer and then attempted to lift the
boat with his back under the bow, five to six feet from the end of
the trailer's tongue. Maddox submitted the affidavit of Robert
Kintzele (Kintzele), a legal investigator hired by Maddox who
stated that he had examined the boat-trailer combination and that
the tongue-weight as the combination was configured at the time of
the injury was 394 pounds. (EN3)
After the injury, Maddox took the trailer back to River
and Sea and requested that they reduce the tongue-weight. They did
so, apparently by relocating the axle of the trailer. According to
the Kintzele affidavit, after this adjustment the tongue-weight was
285 pounds.
Maddox filed suit against River and Sea, claiming that
his injury was a result of River and Sea's negligence in selling
him an improperly matched boat and trailer and a broken tongue-
jack. Maddox alleged that the boat and trailer were incorrectly
paired, resulting in an excessive tongue-weight. Therefore, Maddox
contended, the weight of the boat-trailer combination and the
broken tongue-jack constituted a dangerous condition rendering
River and Sea liable in light of its failure to warn him of it.
(EN4)
River and Sea moved for summary judgment, arguing that it
had no duty to provide Maddox with a boat-trailer combination that
could be raised by hand, that if such a duty was owed it was not
breached, and if the duty was both owed and breached Maddox's
injuries were not caused by the breach. After briefing and
argument, the superior court granted River and Sea's motion for
summary judgment, stating: "while the court is not saying the
defendant is free from any duty with respect to the plaintiff, as
the plaintiff has described the duty for which the defendant should
be held liable, the court can find none." Maddox appeals.
III. DISCUSSION
In review of summary judgment, we must determine whether
there are any genuine issues of material fact, and whether the
moving party was entitled to judgment as a matter of law. "The
court must draw all reasonable inferences in favor of the non-
moving party and against the movant." Swenson Trucking &
Excavating, Inc. v. Truckweld Equip. Co., 604 P.2d 1113, 1116
(Alaska 1980).
As a general rule, issues of negligence such as those
presented by this case are not susceptible to summary judgment due
to the highly circumstantial judgments required in their
determination, but should be resolved by trial in the ordinary
manner. Webb v. City & Borough of Sitka, 561 P.2d 731, 735 (Alaska
1977). As we noted in that case, the reason for this rule is
because of the elusive nature of the concept
of negligence, the determination of the
existence of which requires the forming of a
judgment as to the reasonableness of the
conduct of the parties in the light of all the
circumstances of the case. If reasonable
minds could draw different inferences and
reach different conclusions from the facts the
issue must be reserved for trial.
Id., (quoting Gross v. Southern Ry. Co., 414 F.2d 292, 297 (5th
Cir. 1969) (citations omitted)). (EN5)
A. Scope of Seller's Duty to Warn Purchaser of, or Make
Safe, Products Dangerous for Their Intended Use
The superior court concluded that River and Sea did not
owe Maddox a duty with regard to the configuration of the boat-
trailer combination. Specifically, the trial court found that
River and Sea did not have a duty to configure the boat-trailer
combination in such a way that it could be detached manually. With
due respect to the trial court, we see the issue as being
different: It is whether River and Sea owed Maddox a duty to
configure the boat-trailer combination properly or to warn him that
it was not so configured.
The concept of "duty"in negligence encompasses a broad
range of policy considerations underlying the determination when,
and to what extent, an individual should bear the costs of a given
activity. See Busby v. Municipality of Anchorage, 741 P.2d 230,
233 (Alaska 1987) (listing factors relevant to analysis). Courts
have long recognized that a seller must shoulder some
responsibility for the costs imposed by defective or dangerous
products. Prince v. Parachutes, Inc., 685 P.2d 83, 87 (Alaska
1984); see also MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053
(N.Y. 1962) (duty of manufacturer).
The outcome of this case turns upon the scope of a
seller's duty to protect the customer from hazards potentially
posed by the seller's product. According to the Restatement
(Second) of Torts
[o]ne who supplies directly or through a third
person a chattel for another to use is subject
to liability to those whom the supplier should
expect to use the chattel with the consent of
the other or to be endangered by its probable
use, for physical harm caused by the use of
the chattel in the manner for which and by a
person for whose use it is supplied, if the
supplier
(a) knows or has reason to know that the
chattel is or is likely to be dangerous for
the use for which it is supplied, and
(b) has no reason to believe that those
for whose use the chattel is supplied will
realize its dangerous condition, and
(c) fails to exercise reasonable care to
inform them of its dangerous condition or of
the facts which make it likely to be
dangerous.
Restatement (Second) of Torts sec. 388 (1965). (EN6) While we have
not explicitly adopted Section 388, we have referred to it.
Saddler v. Alaska Marine Lines, Inc., 856 P.2d 784, 788 (Alaska
1993). Prior cases have recognized a duty to warn, breach of which
may result in strict liability. Prince, 685 P.2d at 87; Patricia
R. v. Sullivan, 631 P.2d 91, 102 (Alaska 1981).
River and Sea suggests that it had no duty to Maddox,
under Section 388 or otherwise, to protect him from the weight of
the boat-trailer combination because: (1) it was not foreseeable
that he would attempt to detach the trailer by hand; and (2) the
danger posed by the weight was obvious.
B. Foreseeability of Detaching Trailer by Hand
Under the Restatement, and under general negligence
principles, the ambit of one's duty does not extend beyond
foreseeable consequences. Palsgraf v. Long Island R.R. Co., 162
N.E. 99, 101 (N.Y. 1928) ("If the harm was not willful [one who
seeks redress at law] must show that the act as to him had
possibilities of danger so many and apparent as to entitle him to
be protected against the doing of it."). Comment (e) to Section
388 states:
[O]ne who lends a chattel to another to be put
to a particular use for which, though
defective, it is safe, is not required to give
warning of the defect, although he knows of
its existence and knows that it makes the
chattel dangerous for other uses, unless he
has reason to expect such other uses.
Restatement (Second) of Torts sec. 388 cmt. e (1965) (emphasis
added). See also W. Page Keeton et al., Prosser and Keeton on the
Law of Torts sec. 96, at 687 (5th ed. 1984); Division of
Corrections v. Neakok, 721 P.2d 1121, 1125 (Alaska 1986) ("The most
important single criterion for imposing a duty of care is
foreseeability."). This doctrine reflects a basic understanding
that it is both inequitable and inefficient to hold a person liable
for risks of which he or she is unaware.
1. Propriety of summary judgment on foreseeability
We conclude that Maddox satisfied his burden by
presenting evidence sufficient to create a genuine dispute
regarding the foreseeability of detaching the trailer by hand.
Therefore summary judgment should not have been granted on this
basis.
River and Sea supported its motion with the deposition of
Peter Thomson (Thomson), the majority shareholder and president of
River and Sea. Thomson testified that the primary safety concern
in balancing boat-trailer combinations is creating enough weight at
the tongue to firmly attach the trailer to the towing vehicle. He
further stated that given the wide variations in the design and
weight of boats, boat-trailer combinations similar in size to
Maddox's often could not be lifted by hand. Based on this
evidence, River and Sea argued before the superior court that
suppliers could not reasonably expect individuals to manually
detach trailers and therefore could not be held liable for injuries
caused during such use of its product.
However, the record also contained evidence suggesting
that it was foreseeable that the boat-trailer combination would be
lifted by hand. Maddox offered the deposition of Robert Paulk
(Paulk), a former River and Sea employee who stated that "it is
well known that boat users are frequently in a position where they
have to lift the tongue by hand due to tongue jack failure, which
is common with excessive tongue weights such as these." Thomson
admitted during his deposition that both he and the previous owner
of the boat had lifted this boat-trailer combination by hand. He
further testified that a permissible maximum tongue-weight was
"[b]etween a hundred and 200 pounds,"and that any more was "more
awkward than is necessary." In addition, the tongue-jack provided
with the trailer was defective. While River and Sea was not aware
of this, a jury may well find that it should have been, as the
trailer was in its possession when Maddox purchased it.
Drawing all reasonable inferences in favor of Maddox,
this evidence creates a material dispute over the foreseeability of
Maddox's attempt to lift the boat-trailer combination by hand.
Therefore we hold that summary judgment could not be granted on
this basis.
 C. Obviousness of Danger Posed by Excessive Weight
River and Sea also argues that the danger posed by the
weight of the boat-trailer combination was an obvious danger, for
which it should not be held responsible.
1. Absence of duty to warn of obvious dangers
Courts appear universally to agree with the Restatement
that a seller is not liable for injuries caused by an obviously
dangerous product. See, e.g., Mele v. Turner, 720 P.2d 787, 790
(Wash. 1986) (no liability arising from failure to warn of obvious
danger); Nichols v. Westfield Indus., Ltd., 380 N.W.2d 392, 400
(Iowa 1985) (supplier's duty is to warn of dangers which are not
obvious with respect to use of the chattel in the condition in
which it is supplied). As Section 388(b) suggests, "[i]t is not
necessary for the supplier to inform those for whose use the
chattel is supplied of a condition which a mere casual looking over
will disclose, unless the circumstances under which the chattel is
supplied are such as to make it likely that even so casual an
inspection will not be made." Restatement (Second) of Torts sec.
388 cmt. k (1965).
Judge (now Justice) Breyer in applying Maine law refused
to impose liability for injury caused by an obviously dangerous
condition. "[I]f the law required suppliers to warn of all obvious
dangers inherent in a product, þ[t]he list of foolish practices
warned against would be so long, it would fill a volume.þ" Plante
v. Hobart Corp., 771 F.2d 617, 620 (1st Cir. 1985) (citation
omitted). We have refused to impose strict liability based upon
failure to warn of "hazards or dangers that would be readily
recognized by the ordinary user of the product." Prince, 685 P.2d
at 88. See also W. Page Keeton et al., Prosser and Keeton on the
Law of Torts sec. 96, at 686-87 (5th ed. 1984).
These cases and the Restatement are based on the
rationale that once aware of the danger posed by a hazardous item,
the purchaser is in the best position to evaluate the risks of
operation and to make the decision whether to assume or avoid those
risks. Richard A. Epstein, Modern Products Liability Law 94-95
(1980). The provider of a good generally has superior information
regarding the potential hazards posed by the good; the law
presumes, however, that once in possession of this information the
user of the good is in a better position to evaluate the risks and
avoid accidents in connection with use.
The decision to place the risk of dangerous products upon
a fully-informed user gains further support in the context of the
particular injury at issue in this case. Given the wide range of
individual sizes and strengths, the person lifting a weighty object
is the best judge of his or her ability to lift it safely. (EN7)
Not only is the risk of injury particularly "obvious"to the person
lifting the object, it is extremely difficult for the seller to
perceive. This fact does not relieve the seller, however, of the
prior duty to inform the purchaser of the weight of the boat-
trailer combination; that duty is relieved only if the purchaser
may reasonably be expected to become aware of the weight before
placing himself or herself in danger.
2. Propriety of summary judgment based on obviousness
of danger
Summary judgment was appropriate, therefore, if there was
no dispute from the evidence that River and Sea could reasonably
have expected Maddox to be aware of the tongue-weight and the
danger it posed without any warning from River and Sea. See
Andrulonis v. United States, 924 F.2d 1210, 1222 (2d Cir. 1991),
vacated, 502 U.S. 801 (1991), result reinstated, 952 F.2d 652 (2d
Cir. 1991), cert. denied, 112 S. Ct. 2992 (1992) (inquiry into
obviousness of danger depends not upon actual knowledge of user but
upon whether the danger was sufficiently obvious that it would be
unreasonable to impose a duty to warn upon the supplier). If so,
the risk posed by the boat-trailer combination was obvious and
Maddox properly bears responsibility for any injury he suffered in
assuming it. A review of the evidence leads us to conclude that
summary judgment could not properly be granted on this basis.
Maddox testified at his deposition that he did not feel
the full force of the tongue-weight until he removed the tongue
from the hitch. At that point he had no choice whether to lift the
tongue, as he already bore its full weight. River and Sea
presented no evidence suggesting that Maddox would have been aware
of the magnitude of the tongue-weight before he removed the tongue
from the hitch. (EN8) Thomson testified during his deposition that
tongue-weights vary substantially even between boats of similar
length, and that it is quite difficult to predict how heavy a boat-
trailer combination will be. The Paulk affidavit suggested that
the proper tongue-weight of the boat-trailer combination sold to
Maddox would be between 80 and 159 pounds. Drawing all inferences
in favor of Maddox, reasonable minds could differ based upon this
evidence as to whether Maddox should have appreciated the risk of
injury before lifting the tongue.
Weight is generally obvious to a person lifting an object
directly from the ground, before one actually lifts the object.
However, the tongue-weight of the boat-trailer combination is
largely determined by the placement of the axle of the boat
trailer. Accordingly, the weight of this object was not obvious in
advance. Moreover, the tongue-weight was partially borne by the
hitch as Maddox removed it.
The evidence leaves in material dispute the question
whether Maddox could reasonably be expected to realize the hazards
associated with lifting the trailer. Under these circumstances,
summary judgment should have been denied. The danger of injury
inherent in detaching the trailer manually was not sufficiently
obvious to relieve River and Sea of any duty to warn Maddox of the
weight of the combination. (EN9)
D. Causation
River and Sea argues, in the alternative, that summary
judgment was appropriate because Maddox's injuries were not caused
by the weight of the tongue. We may affirm the superior court's
decision to grant summary judgment on alternative grounds. Wright
v. State, 824 P.2d 718, 720 (Alaska 1992) ("This court is not bound
by the reasoning articulated in the trial court and can affirm a
grant of summary judgment on alternative grounds."). River and Sea
contends that because Maddox placed himself five to six feet from
the end of the tongue, he subjected himself to greater force than
if he had lifted the trailer at the end. Accordingly, River and
Sea argues that his improper positioning, rather than the excessive
tongue-weight, caused Maddox's injury. We decline to affirm on
this ground.
Morris v. Farley Enters., Inc., 661 P.2d 167 (Alaska
1983), enunciates a two-part test of legal causation in negligence
cases. First, plaintiff must show that the accident would not have
happened "but for"the defendant's negligence. Second, the
negligent act must have been so important in bringing about the
injury that a reasonable person would regard it as a cause and
attach responsibility to it. Id. at 169. Given the standard of
review in cases involving summary judgment, we conclude that
summary judgment could not be granted on the evidence presented.
The only evidence concerning the tongue-weight was that
contained in the Kintzele affidavit, which states that as the
trailer was configured at the time of Maddox's injury the weight at
the end of the tongue was 394 pounds. It was presumably (EN10) heavy
enough to cause some injury to Maddox, even if he had positioned
himself at the safest point. A jury could reasonably conclude that
but for River and Sea's failure to warn Maddox, or make the
combination less heavy, Maddox would not have suffered injury. Cf.
Great Atl. & Pac. Tea Co. v. Lang, 291 S.W.2d 366, 367 (Tex. Civ.
App. 1956) (finding no liability of employer to employee for back
injury suffered while lifting heavy crate, where "[t]here was a
safe way by which [plaintiff] could have performed this task if he
had chosen to use it."). Similarly, a reasonable jury could regard
River and Sea's alleged negligence as a cause of Maddox's injury.
While Maddox may have been comparatively negligent in
positioning himself improperly while lifting the boat and hence
partially responsible for his injuries, see Kaatz v. State, 540
P.2d 1037, 1049 (Alaska 1975) (plaintiff's damages reduced in
proportion to amount of negligence attributable to plaintiff),
River and Sea has presented no evidence suggesting that Maddox's
action was the sole cause of his injury. See Dura Corp. v. Harned,
703 P.2d 396, 406 (Alaska 1985) ("The issue of proximate cause is
normally a question of fact for the jury to decide and becomes a
matter of law only where reasonable minds could not differ.").
E. River and Sea's Failure to Discover Faulty Tongue-Jack
Maddox also presents an alternative negligence theory,
based upon the faulty tongue-jack. (EN11) The superior court made
no findings as to whether River and Sea's failure to discover the
faulty jack was negligent, and the record contains little evidence
supporting or refuting such a conclusion. This theory does not
present a sufficient basis upon which to affirm the trial court.
(EN12)
IV. CONCLUSION
We REVERSE the superior court's grant of summary judgment
and REMAND the case for further proceedings.
EASTAUGH, Justice, dissenting.
I agree with the court's discussion of the controlling
legal principles, but disagree with the result it reaches. In my
view, the alleged danger was obvious. Under Restatement (Second)
of Torts section 388 (1965), River & Sea could not be expected to
believe that users of the boat and trailer combination would fail
to "realize its dangerous condition." River & Sea consequently
owed Maddox no duty to protect him from the "dangerous condition"
presented by the excessive tongue weight.
The court correctly notes that "a seller is not liable
for injuries caused by an obviously dangerous product." Op. at 10
(citing Mele v. Turner, 720 P.2d 787, 790 (Wash. 1986); Nichols v.
Westfield Indus., Ltd., 380 N.W.2d 392, 400 (Iowa 1985)). It
concludes, however, that "[t]he evidence leaves in material dispute
the question whether Maddox could reasonably be expected to realize
the hazards associated with lifting the trailer,"and therefore
reverses the summary judgment. Op. at 14.
As the court recognizes, the danger posed by attempting
to lift an obvious weight is usually obvious. Op. at 11-12. See
Cotton v. Morck Hotel Co., 201 P.2d 711, 718 (Wash. 1949).
Assuming for sake of discussion that the weight of some
objects might present dangerous conditions actionable under
Restatement section 388, (EN1) that is not the case here. The
tongue weight was inevitably disclosed and obvious to any person
who sought to unhitch the trailer. A person unhitching the trailer
had to lift the hitch, and thus the tongue, several inches to clear
the towing ball on which the hitch rested. Maddox testified that
it was an inch and seven-eighths or a two-inch standard ball. To
unhitch the trailer, he had to raise the tongue some inches
vertically to clear the top of the ball attached to his truck. The
user consequently could assess the full tongue weight before the
hitch cleared the top of the ball; before the hitch cleared the
ball, the user could always release the weight, allowing the hitch
to drop safely over the ball. The full weight thus became obvious
during the lift. The potential danger (any discrepancy between the
user's lifting ability and the undisclosed tongue weight) was
inevitably disclosed to the user.
This method of discerning the tongue weight is more
valuable to a consumer than a written disclosure. Except perhaps
for skilled weight lifters, written disclosure of a non-trivial
weight would help few consumers decide whether they could safely
lift an object. Most would have to do what reasonable persons must
be expected to do: assess the weight against their own abilities
while taking up the tongue weight and raising the hitch. The
ineffectiveness of disclosure confirms the infirmity of imposing a
duty here. Apart from fluctuations resulting from what the boat
was carrying and where the contents were located relative to the
trailer's axle, disclosing tongue weight would reveal to few
consumers whether they could safely unhitch the trailer by hand.
Nothing about the boat and trailer combination sets it
apart from other moderately heavy products provided to consumers.
If there were legal justification for imposing a duty to disclose
weight in this case, it would logically extend to other consumer
products, including televisions, stoves, and refrigerators. It
should apply to outboard motors, because of the danger consumers
might injure themselves lifting the motors from ground level or
removing them from boat transoms.
Likewise, any duty to disclose the tongue weight of an
eighteen-foot boat and trailer combination would apply to all boat-
trailer combinations. It would apply to smaller boat-trailer
combinations because some owners are foreseeably less able than
Maddox. It would apply to much larger boat-trailer combinations,
because some users will inevitably fail to appreciate that the
weight exceeds their ability to lift safely and because tongue
weights will inevitably exceed the capabilities of any consumer.
It is irrelevant that Maddox's trailer and boat may have been
mismatched and that the tongue weight was "excessive." The tongue
weight of a properly matched and adjusted boat and trailer could
still exceed the safe lifting capabilities of some consumers.
No purchaser reasonably could have expected from the
appearance of the boat and trailer that the tongue weight would be
trivial and could be safely lifted by all consumers, regardless of
their strength, infirmity, age, experience, or intelligence.
Maddox submitted evidence the tongue weight should have been
between 100 and 200 pounds. Some consumers are incapable of safely
lifting such weights, but that does not mean the failure to
disclose them creates a duty under section 388.
Knowledge of gravity must be imputed to all consumers.
I would find no duty given the salient facts of this case: a
vertical lift of a non-trivial weight with opportunities to compare
the weight with the user's ability to lift and to safely release
the weight if it seemed excessive. I would affirm the summary
judgment.
ENDNOTES:
1. Because the boat was in the water, Maddox was not required to
lift the boat and trailer combination at this time.
2. The "tongue"of the trailer is that portion that extends
forward to attach to the towing vehicle. A tongue-jack is a device
that raises the tongue in order to attach or detach the trailer.
3. The term "tongue-weight"refers to the amount of force
required to raise the trailer at the end of the tongue.
4. Maddox does not claim that River and Sea is liable in strict
product liability, or breach of express or implied warranty.
5. River and Sea argues that issues of duty are not "issues of
negligence,"and therefore that the preference for trial
determination does not apply here. This court has previously
applied the general rule against summary judgment in cases
determining whether a duty exists. See, e.g., Saddler v. Alaska
Marine Lines, Inc., 856 P.2d 784, 787 (Alaska 1993). The same
circumstantial judgments are required in such cases as in other
negligence cases.
6. Maddox cites Restatement sec. 392 in his opening brief.
Section 392 "states the rule under which a peculiar liability is
imposed upon one supplying chattels for another's use because of
the fact that the use is one in which the supplier has a business
interest." Restatement (Second) of Torts sec. 392 cmt. a (1965).
As the chattel in this case was not supplied for any use in which
River and Sea had a business interest, the general rule stated in
Section 388 applies.
7. In holding that his employer was not liable for back injuries
suffered by a bellboy while attempting to lift a heavy suitcase,
the Washington Supreme Court observed:
Any person of intelligence can estimate his
own physical strength. . . . [N]o emergency
[is] alleged. By a reasonable exercise of his
faculties, [plaintiff] could have estimated
his own strength and his ability to move the
box in any particular manner. . . . In [such]
a case as this, when it appears that
information concerning a task assigned by an
employer to an employee, or the opportunity to
acquire such information, is shared equally by
the persons concerned, . . . the general rule
is that the employer is not liable for an
injury suffered by the employee.
Cotton v. Morck Hotel Co., 201 P.2d 711, 718 (Wash. 1949).
8. Maddox's experience as a boat salesman may have made it more
reasonable for River and Sea to assume that he was aware of the
hazard posed by manual lifting. However, Maddox testified in his
deposition that he had not previously sold trailers.
9. For a case in which the danger of lifting was obvious and led
to a contrary result, compare Pratt v. Lifemark Corp., 531 So. 2d
488, 490 (La. App. 1988), writ denied, 536 So. 2d 1214 (La. 1989)
(in holding that hospital owed no duty to physician injured while
lifting heavy patient due to slight likelihood of such injury,
court notes "[s]ome risks are reasonable and the individual
encountering such risks bears the responsibility of dealing with
and/or avoiding them. Here the risk was injury to the plaintiff's
back as he lifted and pushed the heavy patient. This was an
obvious and reasonable risk which the defendant had no duty to
protect against.").
10. No evidence on this point was adduced before the trial court.
It cannot be said that there is no doubt that a tongue-weight of
this magnitude cannot cause injury.
11. Maddox alleges that River and Sea violated its duty to him by
providing a trailer with a defective jack. We infer that the
negligent conduct to which he refers is River and Sea's failure to
detect the faulty jack.
12. The issues discussed in this opinion are also likely to arise
under a failure to inspect theory. In determining whether the
broken jack proximately caused Maddox's injury, the trial court
will have to determine whether his attempt to manually detach the
trailer was foreseeable in light of the circumstances. See W. Page
Keeton et al., Prosser and Keeton on the Law of Torts sec. 42, at
274 (5th ed. 1984) (noting similarity of proximate cause and duty
analysis).
ENDNOTES (Dissent):
1. Thus, some objects might theoretically mislead users into
assuming that they are not weighty, at all. A reasonable user
might be exposed to danger by lifting the object in a manner ill-
suited to hefting a heavy weight. One who sells a leaden pillow
might, therefore, be subject to liability for failing to warn a
purchaser that its weight is dangerously greater than it appears to
be. Perhaps an object's weight might also pose a non-obvious
hazard if a consumer could set it into downward motion without
first lifting its full weight. Forsman v. Seattle Elec. Co., 109
P. 121 (Wash. 1910).
Where a party undertakes to raise a heavy body
from the ground, he has notice of the weight
before the danger period arrives. It is very
different, however, where one undertakes to
unload an object from a wagon or a car, and
has no notice other than the appearance of the
object, until the weight is upon him and the
danger period at hand. In brief, in the one
case he can desist when the danger becomes
apparent, and in the other he cannot.
Id. at 122.
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