 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Alder v. Bayer Corp.11/26/2002
y of those other issues, since no cause of action would lie against AGFA.
I cannot identify any source of a duty sufficient to hold AGFA liable in tort to plaintiffs for the failure of the hospital's ventilation system. The AGFA representative and service person did not, at any time, test the ventilation system installed by the hospital. However, under the contractual arrangement between AGFA and the hospital, AGFA had no responsibility to test the ventilation system. AGFA supplied the hospital with the specifications required for the ventilation of the equipment, and warned the hospital of the dangers associated with inadequate ventilation. When asked by the hospital staff, or representatives of the hospital, AGFA's representative questioned the adequacy of the ventilation, and suggested the hospital assure it had been correctly and adequately provided. There is nothing in the record to suggest that any defect in operation or maintenance of the equipment was the cause of the injuries of which the plaintiffs complain. All of the evidence in the record, and all reasonable inferences that can be drawn from the evidence in support of the claims of the plaintiffs, suggest that the plaintiffs' exposure to the fumes was the result of a failure of the ventilation system, not any failure of maintenance or operation of the equipment itself.
The ventilation system was designed, installed, and operated by the hospital. AGFA only undertook the duty of installing the machine in its new location in the mammography suite and of maintaining it. The AGFA specifications for the equipment clearly described the ventilation requirements for the machine, and directed the hospital to consult with the AGFA representative if there was any doubt about that requirement. When the hospital had concerns about the ventilation requirements for the equipment, it consulted the AGFA representative. However, there is no evidence that the hospital ever asked AGFA to correct the ventilation problem or to verify the adequacy of the existing ventilation system installed by the hospital, that AGFA assumed any responsibility for the adequacy of the ventilation system, or that AGFA acted to verify, correct, or assume responsibility for the ventilation system installed by the hospital.
I disagree that when AGFA undertook the contractual duty to install and maintain the equipment in the room designed and built by the hospital, it undertook the responsibility to guarantee that the hospital had installed the ventilation system in accord with AGFA's directions.
The admitted agreement between AGFA and the hospital was an allocation of the risks inherent in the installation, maintenance, and operation of the equipment. Those two parties chose to allocate the risks as they did. It is improper for us to attempt to redistribute those responsibilities by resort to previously unadopted and inapplicable provisions of the Restatement (Second) of Torts.
Finally, given the posture of the case as presented on appeal, the parties are bound by the facts they have presented and those uncontested facts before the trial court when the motion was decided. I would not remand with instructions for factual findings when the facts needed to support the tort theory advanced by the plaintiffs were not placed in contest in the record before the trial court.
I would affirm the decision of the trial court. On the uncontested facts, the plaintiffs cannot establish a tort duty owed them by AGFA, and as such, their claims must fail.
Associate Chief Justice Durrant concurs in the dissenting opinion of Justice Wilkins.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Utah Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|