John O'connell, V Macneil Wash Systems Limited
49161-3
Wash. Ct. App.Sep 12, 2017Background
- O’Connell purchased a MacNeil car wash system via MacNeil’s independent distributor; MacNeil provided equipment lists, layout drawings, and shop drawings for installation but did not design the building.
- MacNeil’s package did not include or recommend safety bollards at the tunnel entrance; MacNeil’s representative told O’Connell the correlator would safely guide vehicles onto the conveyor.
- While directing a customer into the wash, O’Connell was struck when a vehicle unexpectedly accelerated off the correlator and struck him; he later installed bollards at his expense.
- O’Connell sued under the Washington Products Liability Act (RCW 7.72), alleging MacNeil was a product manufacturer/seller of the relevant product and that the system was unreasonably unsafe by design (no bollards) and for lack of adequate warnings.
- Expert declarations: O’Connell’s human-factors expert (Sloan) opined bollards would have reduced the risk and were low cost; MacNeil’s consultant (Miller) opined bollards are not industry standard and the correlator is not intended to contain out-of-control vehicles.
- Trial court granted summary judgment to MacNeil on renewal; Court of Appeals reversed, finding genuine issues of material fact on manufacturer status, design defect, and failure-to-warn theories and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MacNeil is a "manufacturer" or product seller of the relevant product | MacNeil provided, designed the component layout and shop drawings for the system and sold the assembled system; thus it is a manufacturer of the relevant product | MacNeil was only a component supplier and did not design the building or create a finished product that caused the injury | Genuine issue of material fact exists; evidence could support finding MacNeil a manufacturer under RCW 7.72 definitions |
| Design defect — risk-utility (failure to include bollards) | Bollards would have materially reduced foreseeable risk, were low cost, and practicable; omission made system unreasonably unsafe | Bollards are not industry standard and not required; correlator-conveyor functions as intended and is not designed to restrain out-of-control vehicles | Genuine issue of material fact under risk-utility; summary judgment improper |
| Design defect — consumer expectation (absence of bollards) | MacNeil’s marketing and assurances ("dependable" system; correlator would guide vehicles) create expectations; ordinary user may not expect lack of bollards | Industry practice does not include bollards; danger is obvious from working near moving vehicles | Genuine issue of material fact whether product was more dangerous than ordinary consumer would expect; summary judgment improper |
| Failure to warn — both risk-utility and consumer expectation | MacNeil should have warned that correlator-conveyor may not prevent sudden vehicle accelerations and recommended bollards | Risk is obvious; no duty to warn of obvious dangers; correlator not intended to restrain uncontrolled vehicles | Genuine issue of material fact whether hazard was foreseeable and warning feasible; summary judgment improper |
Key Cases Cited
- Parkins v. Van Doren Sales, Inc., 45 Wn. App. 19 (component parts sold to be assembled may render seller a product manufacturer under the Act)
- Sepulveda-Esquivel v. Central Machine Works, Inc., 120 Wn. App. 12 (seller of an isolated component not intended as the finished assembly may not be liable)
- Simonetta v. Viad Corp., 165 Wn.2d 341 (limits on duty to warn for component suppliers under common-law negligence)
- Soproni v. Polygon Apt. Partners, 137 Wn.2d 319 (industry custom is relevant but not required to defeat summary judgment in products cases)
- Ayers By & Through Ayers v. Johnson & Johnson Baby Prods. Co., 117 Wn.2d 747 (elements of products liability under the Act)