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Alder v. Bayer Corp.11/26/2002
tion. A jury could find that AGFA's "failure to exercise reasonable care" in assuring that the total installation met AGFA's own safety standards actively "increased the risk of harm" under section 324A subsection (a).
Since the three subsections are stated in the alternative, meeting any one would suffice. In the instant case, however, AGFA's actions arguably fulfilled all three. AGFA met subsection (b) when it attempted to "improve the fume problem," seeinfra 70, by installing the vent kit. By so doing, it undertook at least some portion of the duty for disposing of chemical emissions, which the hospital originally owed to Technicians through proper operation of its ventilation system. See Canipe, 736 F.2d at 1062-63 ("Subsection (b) comes into play as long as the party who owes the plaintiff a duty of care has delegated to the defendant any particular part of that duty.").
The record is also replete with evidence of the hospital's reliance on AGFA's procedures. As the Fifth Circuit stated in Canipe, " he reliance element of subsection (c) is satisfied if, in relying on the defendant's undertaking, the employer 'neglect or reduces ' its own safety program." Id. at 1063 (citation omitted). Thus, upon the facts before us there is at least a triable issue as to whether the hospital, seeing AGFA's efforts to improve the air quality, relied upon AGFA for that function and thus neglected to examine and improve its own ventilation system, fulfilling subsection(c).
Additionally, AGFA may be subject to liability as a "supplier" under section 388, which provides:
One 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 a 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 § 388 (1965). This court adopted section 388 as Utah law in Schneider v. Suhrmann, 8 Utah 2d 35, 37, 327 P.2d 822, 823 (1958). The Schneider court stated:
Plaintiff bases his claim of negligence against the supplier upon the doctrine, of which we do not doubt the correctness, that the supplier of a commodity . . . is subject to liability to those whom he should expect to use it if the supplier (a) knows of its dangerous potential, (b) knows or reasonably should know that the user will not realize the danger, and (c) the supplier fails to use reasonable care to safeguard against the danger or to inform the user of the facts which make it likely to be dangerous. Id. (citing Restatement of Torts § 388).
In the instant case, the foundational provision of section 388 is met because the Curix processing machine was supplied by AGFA for x-ray processing use by Technicians, as installed by AGFA in the new mammography suite. AGFA's agent, Murray, testified that he had received training on the AGFA safety standards and the dangers of chemical exposure. He was also well aware of the ventilation requirements. Moreover, the instructions from AGFA product specialist George Cervenka to Murray that he test the ventilation are, inter alia, evidence of both AGFA's and Murray's
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