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Falada v. Trinity Industries2/27/2002
fficient evidence to generate an issue of material fact on Trinity's state-of-the-art defense with respect to the workmanship in welding the steel parts together. The state-of-the-art defense refers to what "feasibly could have been done." Chown, 297 N.W.2d at 221. Trinity does not contend that satisfactory welding techniques were not feasible in 1971.
In Dow Chemical Co. v. Royal Indemnity Co., 635 F.2d 379 (5th Cir. 1981), an action was brought for losses sustained when a thin-shelled concrete dome collapsed during construction. Styrofoam(TM) blocks were used to support the dome during construction. The issue was whether the cause of the collapse could be considered a design defect or whether the "welding" of the Styrofoam(TM) was a separate issue, one of workmanship. Id. at 388-89. Dow recognized that workmanship is not a part of design for liability purposes. The fifth circuit approved the district court's finding that
the collapse of the dome was due to the failure of the subcontractor Dow's employees to perform the welding in accordance with these specifications . . . which would constitute a failure of workmanship, not of design.
Although the Dow case involved an application of insurance principles, it supports our view that the fabrication process is not a part of the design of the item being produced.
In deciding whether a process is state of the art, the issue is not whether a concept (here, the attachment of steel ends to a steel cylinder) in general conforms to the state of the art but whether this particular tank "could reasonably and economically" have been made stronger at that time by proper welding. See Chown, 297 N.W.2d at 222; see also Mercer, 616 N.W.2d at 622; Hughes, 522 N.W.2d at 295. We must assume, for summary judgment purposes, that defective welding was the cause of the rupture. Contrary to Trinity's argument, the welding cannot be considered state of the art simply because it was integrated in a design that was generally considered to be state of the art (i.e., a steel cylinder attached to steel end caps). If negligent welding of the tank parts cannot be the basis of liability, as Trinity argues, simply because the concept of attaching steel parts into a tank was state of the art, this would mean that even tanks joined together with putty would be considered state of the art. This clearly cannot be so.
We conclude summary judgment should not have been granted because the plaintiff generated genuine issues of fact with respect to Trinity's state-of-the-art and prior-accident defenses. We reverse and remand for further proceedings.
REVERSED AND REMANDED.
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