 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Alder v. Bayer Corp.11/26/2002
awareness of a safety compliance issue. Therefore, a jury could find that the facts present here meet the requirements of subsection(a).
Murray arguably had no reason to believe, as required in subsection (b), that Technicians were aware of the dangers associated with the Curix machine in the mammography suite environment since they had used it for several years in other locations without problems. Moreover, Technicians' awareness of the chemical irritation that they experienced does not, without more, presuppose an understanding of the potential for serious, long-term, irreversible harm.
Comment b to section 388 states that " fortiori, one so supplying a chattel is subject to liability if by word or deed he leads those who are to use the chattel to believe it to be of a character or in a condition safer for use than he knows it to be or to be likely to be." In this case, Murray failed to protest the continued operation of the Curix. Whether his actions led the hospital and Technicians to believe that the machine was in a condition safer than he knew it was "likely to be" raises an issue of triable fact.
Additionally, Utah law as established in Schneider, goes beyond the language of the Restatements by augmenting the supplier's duty to inform with a duty to "use reasonable care to safeguard against the danger." Therefore, a jury could find that AGFA breached its duty by failing to take reasonable measures to prevent the exposure. Even in the absence of that finding, there is a triable issue as to adequate warning. The dissent is accurate in its observation that AGFA communicated to the hospital the requirement for ten complete air exchanges per hour. However, that warning arguably falls short of informing the user Technicians of the facts which made the Curix machine "likely to be dangerous." These facts could be found to include disclosure of the specific, serious, long-term effects of chemical exposure, since that was the real danger and the one giving rise to the alleged injuries.
Finally, we note the strikingly analogous legal scenario presented by Tallman v. City of Hurricane, 1999 UT 55, 985 P.2d 892. In Tallman, the city of Hurricane hired Progressive Construction Company to install water lines. Id. at 2. Progressive then subcontracted with Haukos to dig the trenches in which Progressive employees would lay the pipe. Id. Progressive had a contractual responsibility to provide "all trench protection and shoring" which it did not fulfill. Id. Progressive employee Tallman was killed when a rock falling from an unshored trench wall struck him on the head. Id. Progressive believed that the trenches had been dug in solid rock, but no engineer investigated to verify this. Id. at 3.
In our analysis, we analogized the digging of a trench to the manufacture of a chattel, with associated duties under Restatement (Second) of Torts section 389. Id. at 9-15. We wrote that, "even if the trench was 'capable of being made safe for use,' the Restatement underscores the importance of a jury deciding whether Haukos realized the unlikelihood that shoring would be completed before the trench was used by Progressive's employees." Id. at 15.
Section 389 states:
One who supplies directly or through a third person a chattel for another's use, knowing or having reason to know that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is subject to liability for physical harm caused by such use to those whom the supplier should expect to use the chattel or to be endangered by its probable use, and who are ignorant of the dangerous character of the chattel o
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.
|
|