Buonanno v. Colmar Belting Co., Inc.

FLANDERS, Justice,

concurring in part and dissenting in part.

I concur with respect to the Court’s reversal of the summary judgment concerning Colmar, but I respectfully dissent from the majority’s opinion affirming the summary judgment in favor of EPT for the same reasons indicated in Justice Goldberg’s opinion, albeit I do so, in part, on somewhat different and additional grounds. At oral argument before us, EPTs counsel conceded that, to EPT’s knowledge, every turn clean wing pulley that it manufactured eventually was integrated into a conveyor-belt system that would include one or more dangerous nip points. Moreover, apparently the parties do not dispute that without a guard or protective device of some sort — or at least a warning — t\ese nip points in conveyor-belt systems expose users to an unreasonable risk of suffe&ag a debilitating injury of the kind that the plaintiff sustained in this case. Thus, this % not a situation in wkich some uses of the component part result in a non-dangero\xs integration, whereas others — like the integration into a conveyor-belt system — result in an unreasonable risk of danger to foreseeable users. Rather, as a practical matter, the only known use for EPT’s pulleys (that is, integration into conveyor-belt systems) results in nip points that, without guards or warnings, pose unreasonable risks of harm to foreseeable users. Under these circumstances, I would treat the component pulleys as if they were defective in and of themselves because their only foreseeable use creates an unreasonably dangerous integration.

Under the Restatement (Third) Torts (1998), a component part is defective if, among other things, it contains:

“inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.” Id. § 2(c) at 14.

Here, EPT claimed in its summary-judgment motion that it typically provides purchasers of this type of pulley with three different warnings indicating that they should install guarding. First, it argued that the catalog of the Van Gorp Drives and Component Division of EPT provided a disclaimer:

“SAFETY DEVICES — The products are provided with 'only those safety guards identified herein. It is the responsibility of the purchaser to furnish appropriate guards for machinery parts in compliance with OSHA standards, as well as any other safety devices desired by the purchaser and/or required by law.”

EPT also asserted that Colmar and NEED had a copy of this catalog. Second, EPT claimed that it typically includes a warning relative to the nip-point risk in the boxes that it uses to pack its bushings, which are sub-components of the wing pulley. The warning reads: “CAUTION: Install guards around all drives in accordance with local and national codes.” Third, EPT maintained that all pulleys that it sold in 1993 were affixed with a yellow sticker providing a warning. The warning stated:

“SAFETY DEVICES. THE PRODUCTS ARE PROVIDED WITH ONLY THOSE SAFETY DEVICES IDENTIFIED HEREIN. IT IS THE RE*721SPONSIBILITY OF THE PURCHASER TO FURNISH APPROPRIATE GUARDS FOR MACHINERY PARTS IN COMPLIANCE WITH OSHA STANDARDS, AS WELL AS ANY OTHER SAFETY DEVICES DESIRED BY PURCHASER AND/OR REQUIRED BY LAW.”

The parties here dispute (1) whether the boxes containing the warnings were ever delivered when EPT shipped the wing pulleys to NEED for integration into its conveyor-belt system and (2) whether EPT attached any sticker to the pulleys used in NEED’S conveyor-belt system. In any event, the fact that EPT went to the trouble of printing a warning that was included in at least some of its packing boxes and affixed to certain of its pulleys represents some indication that it was well aware of the unreasonably dangerous condition created by the inevitable integration of its wing pulleys into conveyor-belt systems like the one assembled for NEED. Moreover, because the duty to warn runs to foreseeable users of the product and not just to buyers, warnings in boxes that are discarded after assembly may not be sufficient to alert users like Buonanno to the danger.

Accordingly, it seems to me that a genuine issue of material fact exists over whether the wing pulleys were defective in and of themselves by virtue of EPT’s alleged failure to include some type of warning(s) with and on the pulleys themselves concerning the dangerous nip-point condition that would result from their inevitable integration into NEED’S conveyor-belt system. See Parkins v. Van Doren Sales, Inc., 45 Wash.App. 19, 724 P.2d 389 (1986) (holding that summary judgment was improper in a case involving an injured plaintiffs strict-liability failure-to-warn claim against the manufacturer of component parts which, when integrated into a conveyor-belt system, invariably created nip points and which contained no warning labels, decals, signs, or other instructions relative to these nip points). Such a warning or warnings most likely would have alerted purchasers of the pulleys and/or users of the system that, without a guard around the nip point, use of the system could prove unreasonably dangerous. Viewing the evidence in a light most favorable to the nonmoving party, Buonanno may not have chosen to clear the debris away from the area near the nip point, at least while the system was in operation, if a warning on the pulley had alerted him to the danger of doing so without a safety guard on the nip point.

Accordingly, with respect to EPT, I respectfully dissent from the Court’s decision to affirm the grant of the summary judgment. Rather, I would remand this case to the Superior Court for further proceedings concerning whether EPT’s wing pulley was defective because it failed to include some sort of a feasible guard device like the one used in its other pulleys. Moreover, I also would remand for further proceedings concerning whether the pulley was defective because of the failure to include some type of warning on the pulley itself that would alert users to the nip-point danger. Finally, I agree with and therefore join my colleagues’ decision to reverse the summary judgment concerning Colmar.