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Alder v. Bayer Corp.11/26/2002
r whose knowledge thereof does not make them contributorily negligent, although the supplier has informed the other for whose use the chattel is supplied of its dangerous character.
Restatement (Second) of Torts § 389 (1965). In the instant case, AGFA, like Haukos, functioned as a supplier. The hospital, like Progressive, functioned as a general contractor who employed a subcontractor but retained responsibility for the safety of the environment--in this case the ventilation--which it did not fulfill. Also like Progressive, the hospital expressed a belief that the conditions were safe--that the ventilation was adequate--but failed to investigate. AGFA acknowledged the potential danger to which, like Haukos, it knew that employees of its general contractor would be exposed. In Tallman, we adopted relevant Occupational Safety & Health Association (OSHA) and Utah Occupational Safety & Health Association (UOSHA) standards governing the digging of trenches as evidence of the standard of reasonable care. Id. at 11. Likewise, in the instant case, AGFA's own uncontested safety standards for installation of the Curix provide persuasive evidence of the standard of care.
Therefore, under section 389, the case before us presents at least two issues of triable fact. The first is whether Murray, as AGFA's agent, knew or had reason to know that the Curix was "unlikely to be made reasonably safe" before being put to the expected use in the mammography suite. The second is whether Technicians' experience with the Curix in its various locations, coupled with whatever general knowledge they may have had concerning the hazards of photographic chemicals, defeats their "ignorance of the dangerous character" of the Curix in operation under conditions of inadequate ventilation. We note the difference in the subjective standard of section 388--that AGFA "has no reason to believe" that employees recognized the dangerous condition--and the objective standard of 389--that Technicians were actually ignorant of the danger, regardless of what AGFA subjectively believed.
Thus, to paraphrase Tallman, "even if the [Curix machine] was 'capable of being made safe for use,' the Restatement underscores the importance of a jury deciding whether [AGFA] realized the unlikelihood that [the ventilation] would be [adequate] before the [Curix machine] was used by [the hospital's] employees." Id. at 15. Consequently, a jury could properly find under Tallman that AGFA owed Technicians a duty of care.
Therefore, we conclude that the legal framework exists to create a duty of care running from AGFA to Technicians under Restatement (Second) of Torts sections 324A, 388, and 389. The duty and AGFA's possible breach of that duty are supported by sufficient evidence to raise material issues of triable fact. We hold that determination of the factual elements necessary for duty, breach, and consequent liability are questions for the jury and reverse the summary judgment in favor of AGFA.
II. IS "MULTIPLE CHEMICAL SENSITIVITY" A LEGALLY COGNIZABLE INJURY?
The district court's ruling addressed only those injuries defined by Technicians' experts as multiple chemical sensitivity (MCS). The court found that "MCS is a controversial diagnosis that has been excluded in numerous jurisdictions for lack of sound scientific reasoning and methodology," and noted that "numerous medical organizations, including the American Medical Association, refuse to accept MCS."
The two principal cases relied on by the district court are Bradley v. Brown, 42 F.3d 434 (7th Cir. 1994), and Summers v. Missouri Pacific Railroad System, 132 F.3d 599 (10th Cir. 1997). In Summers, the court obs
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