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Alder v. Bayer Corp.11/26/2002
be contemplated by the ordinary and prudent buyer, consumer or user of that product in that community considering the product's characteristics, propensities, risks, dangers and uses together with any actual knowledge, training, or experience possessed by that particular buyer, user or consumer.
Technicians have not alleged that the Curix was defective or unreasonably dangerous when purchased. Indeed, the facts would not support such an allegation since Technicians used the processing machine without problems for several years prior to its reinstallation in the smaller, windowless mammography suite. Cf. Slisze v. Stanley-Bostitch, 1999 UT 20, 10, 979 P.2d 317 (declining to find "less safe" product unreasonably dangerous). Rather, Technicians contended that AGFA was negligent in its installation and maintenance of the Curix processor in the new location. Section 78-12-25(3) provides a four-year statute of limitation for claims of negligence. Technicians brought this action within four years of discovery of their injuries, and therefore this action is not time barred. SeeSlisze, 1999 UT 20, 8 (plain language of the product liability statute does not preclude common law negligence claims).
B. Duty of Care
Initially, we note that because this case is before us on a grant of summary judgment we must decide only what the law and the evidence indicate that Technicians have a right to attempt to prove. What they actually can prove is a determination for the trier of fact. Consequently, if the legal framework exists for a duty of care, contingent upon proof of specific facts supported by evidence in the record, we must remand to the trial court for factual determinations.
The district court determined that Technicians could not prove that AGFA had a duty relative to the hospital's ventilation system or other legal duty "sufficient to support a claim of negligence." To establish a duty, Technicians rely most relevantly on the Restatement (Second) of Torts, sections 324A and 388. We shall discuss each of these sections in turn.
Section 324A of the Restatement (Second) of Torts states:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of the reliance of the other or the third person upon the undertaking.
We have not previously addressed section 324A. However, other courts have adopted the duty to third parties that section 324A imposes. The Seventh Circuit Court of Appeals in Figueroa v. Evangelical Covenant Church, 879 F.2d 1427 (7th Cir. 1989), recognized that section 324A creates liability to a third party in a party who undertakes a duty to a second party for the benefit of the third party. Id. at 1434 (applying Illinois law). The Figueroa court relied on Scott & Fetzer Co. v. Montgomery Ward & Co., 493 N.E.2d 1022 (Ill. 1986) (holding that section 324A applied to impose a duty on a fire-warning system company toward businesses adjacent to the one to which it provided services), and Eichler v. Plitt Theatres, Inc., 521 N.E.2d 1196 (Ill. App. Ct. 1988) (holding that section 324A applied to impose a duty on theater toward persons coming onto adjacent parking lot where owner of lot relied on theater to remove sn
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