Riсhard HURD v. Daniel HURD, Sr. and Clark Equipment Company
Supreme Judicial Court of Maine
January 2, 1981
Argued Nov. 3, 1980.
423 A.2d 960
Appeal dismissed.
All concurring.
Jerome S. Goldsmith (orally), Michael L. Rair, Law Student, Bangor, for plaintiff.
Rudman, Winchell, Carter & Buckley, Clark P. Thompson (orally), Michael P. Friedman, Bangor, for Clark Equipment Co.
Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, and GLASSMAN, JJ., and DUFRESNE, A. R. J.
McKUSICK, Chief Justice.
In this negligence and breach of warranty action plaintiff Richard Hurd appeals from the dismissal by the Superior Court (Penobscot County), after trial without a jury, of his claims against his fathеr and employer, Daniel Hurd, Sr. (defendant Hurd), and the manufacturer, Clark Equipment Company (defendant Clark), that arose out of a 1971 farm accident involving a front-end loader. We affirm the judgment entered for both defendants.
Beginning in 1966, plaintiff worked as a laborer on his father‘s cattle and dairy farm in Bradford. At the time of the accident in 1971, plaintiff was 27 years old. Earlier in 1971, plaintiff‘s father, defendant Hurd, purchased a used Michigan 55A front-end loader from a construction company in either Augusta or Hallowell. The loader had been manufactured by defendant Clark in 1960 and had had several intermediate owners. On November 20, 1971, defendant Hurd told plaintiff and two other employees to use the loader to move a hay conveyor that had been blown over by the wind. Plaintiff had operated the front-end loader on several occasions previously. Defеndant Hurd did not further instruct plaintiff on how the conveyor should be moved, nor was he present at the worksite. Once there, the other two employees attached the conveyor to the loader‘s bucket with a chain, and plaintiff, who was operating the loader, raised the conveyor off the ground by lifting the bucket to its highest position. At that point, plaintiff left the loader‘s cab to assist the men on the ground. Since the bucket was still in its highest position, plaintiff, in order both to descend from and to remount the machine, had to move under the boom arms that attached the bucket to the loader‘s body behind the cab. After assisting his companions on the ground, plaintiff mounted the loader from the right side, where the lever that controlled the boom arms was located. As he was getting back into the cab, he brushed against the lever, causing the boom аrms to come down rapidly with great force. Plaintiff was crushed by the right boom arm and his back was broken.
In his suit jointly against the father-employer and the loader‘s manufacturer, plaintiff claimed his father, defendant Hurd, was negligent both in furnishing him an unsafe place to work and in failing to warn him of the hazard involved in operating the loader.1 Plaintiff claimed that the manufacturer, defendant Clark, had committed a breach of the warrantiеs of the loader‘s merchantability and fitness for its intended purpose, and was negligent in failing to design the loader in such a way as to prevent the unintended activation of the boom arms and in failing to warn the loader‘s users of the dangers inherent in using it as it was constructed. At the conclusion of plaintiff‘s case, the Superior Court justice in a bench ruling dismissed plaintiff‘s negligence claim against his father. He subsequently issued a written opinion also dismissing plaintiff‘s claims against the manufacturer, basing dismissal of the warranty claim on lack of privity and dismissal of the negligence claim on a finding that defendant Clark had not violated any duty of care in designing the loader or in failing to warn of its dangers.
I. THE CLAIMS AGAINST THE FATHER-EMPLOYER
The case at bar involves an issue of first impression for this court, namely, the effect of the comparative negligence
The enactment of
We now examinе whether the trial justice in the case at bar committed reversible error in dismissing the employee‘s suit against his father-employer. The justice granted that defendant‘s motion to dismiss at the close of plaintiff‘s case. With direct relevance to that circumstance,
After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant . . . may move for a dismissal оn the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff. . . .
The justice had before him the complaint asserting a breach by the employer of a duty “to furnish the plaintiff with a front end loader free from defects and one which could be used with safety without endangering those using the same.” In oral argument immediately before the justice ruled, counsel restated plaintiff‘s argument that the employer had not provided a safe machine to his son. From the colloquy of counsel and the court and from the justice‘s oral ruling, it is clear that he determined that plaintiff‘s negligence in not protecting himself against the obvious dangers of the loader exceeded any negligence on the father-employer‘s part, whether in failing to provide a reasonably safe workplace or to warn of any danger inherent in the use of the machine. It is true that the justice did not fully spell out his reasoning in terms of the comparative negligence statute; but he had no need to do so. It is clear that he did in fact compare the negligence of the employee with that of the employer. We are not at all willing to assume that the experienced trial justice, having also had his attention specifically called to plaintiff‘s argument, overlooked the employer‘s duty to provide a safe place to work. The evidence adequately supports the justice‘s implicit finding that the employee‘s total negligence equalled or exceeded the total negligence of the employer. We therefore affirm his dismissal of the suit against defendant Hurd.
II. THE CLAIMS AGAINST THE MANUFACTURER
The trial justice determined that plaintiff‘s claims against the manufacturer for breach of warranties of merchantability and fitness for an intended purpоse were barred under McNally v. Nicholson Mfg. Co., Me., 313 A.2d 913 (1973), because of the lack of privity between plaintiff and defendant Clark. He also dismissed plaintiff‘s negligence claim against Clark, concluding that plaintiff simply had not demonstrated any negligence on the part of that defendant. Because neither plaintiff nor defendant Hurd ever had any contractual privity with the manufacturer and for the same reasons relied upon in our disposition of similar claims against a manufacturer in Burke v. Hamilton Beach Division, Me., 424 A.2d 145 (1981), decided today, we hold that plaintiff‘s claims against defendant Clark for breach of warranty and for negligence are both barred by the parties’ lack of privity.
A. The breach of warranty claim
The front-end loader that is the focus of the present controversy was manufactured and first sold by defendant Clark in 1960. The manufacturer‘s liability is thus determined by the law of Maine as it existed in 1960. See LaRue v. National Union Electric Corp., 571 F.2d 51, 55 (1st Cir. 1978) (dictum construing Maine law); McNally v. Nicholson Mfg. Co., supra, at 927. At that time in Maine, the requirement of privity bаrred a breach of warranty suit against a defendant with whom the plaintiff had not contracted. Pelletier v. Dupont, 124 Me. 269, 276, 128 A. 186, 189 (1925); see also Sams v. Ezy-Way Foodliner Co., 157 Me. 10, 17-18, 170 A.2d 160, 165 (1961). Beginning in 1963, a series of legislative enactments first limited the requirement of “horizontal” privity by permitting suit against a seller of defective goods by a household or family member or a guest of the purchaser, P.L. 1963, ch. 362, § 1, enacting
B. The negligence claim
As to plaintiff‘s negligence claim against the manufacturer, we have no occasion to review the trial justice‘s evidentiary determination that the manufacturеr was not negligent. Under the 1960 Maine law applicable to plaintiff‘s claim, plaintiff‘s lack of privity with the manufacturer barred him also from recovery for negligence, as it did for breach of warranty.
In Maine in 1960, a plaintiff who was not in privity with a manufacturer was barred not only from asserting a breach of warranty claim against that manufacturer but also, in most instances, from suing him on the ground of negligence as well. See McNally v. Nicholson Mfg. Co., supra at 925, citing Flaherty v. Helfont, 123 Me. 134, 137, 122 A. 180, 181 (1923). The Flaherty case introduced to Maine law the doctrine of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), which pеrmitted plaintiffs injured by “imminently dangerous” instrumentalities to maintain negligence actions against manufacturers regardless of nonprivity. As this court clearly stated in the McNally case, however, Flaherty did not amount to an all-encompassing embrace of the MacPherson approach, but rather made only a very narrow exception to the privity bar. As McNally further makes clear, we have never judicially abrogated the privity requirement with respect to negligence suits, 313 A.2d at 924-25. Finally, as noted above, the post-1960 statutory changes in Maine‘s privity laws were not retrospective. Our determination of plaintiff‘s negligence claim against defendant Clark must thus be made under the case law existing in 1960 when the front-end loader by which plaintiff was later injured was sold by the manufacturer. See generally Burke v. Hamilton Beach Division, supra at 150.
That case law compels us to hold that plaintiff‘s negligence claim against defendant Clark is barred by his lack of privity with the manufacturer. Until the 1969 enactment of
The entry must be:
Appeal denied.
Judgments affirmed.
GLASSMAN, J., with whom GODFREY, J., joins, concur in a separate opinion.
GLASSMAN, Justice, with whom GODFREY, Justice, joins, concurring.
I fully concur with the mandate of the Court that the judgments be affirmed in this case. Because of my disagreement with the reasoning in part II(B) of the Court‘s opinion, I am compelled to write a sepаrate opinion.
At the close of all the evidence, the Superior Court Justice filed a written order for entry of judgment dealing with the claims against the defendant Clark Equipment Co. Referring to the negligence claim against that defendant, the Justice wrote: “The plaintiff has failed to sustain his burden of proving negligent design or failure to warn.” That conclusion is fully supported by the evidence, and it is upon that basis that I join in affirming the judgment of the court below as to that issue. The opinion of this Court purports to decide an issue neither presented to nor ruled upon by the Superior Court, namely, whether lack of privity bars the plaintiff‘s negligence claim. That issue was not presented to this Court by the record below nor was it argued in the briefs filed by the parties. Under such circumstances, I deem it totally inappropriate for this Court to purport to rule upon an issue which is not before it, particularly in light of the uncertainty in our law.
The development of the law of negligence relating to the liability of a manufacturer, seller, or supplier of an allegedly defective chattel has been fully explored too many times to require full development here. It is necessary, however, to sketch that development in very broad outline. In 1842, the Court of Exchequer by way of dictum mаde a statement which gave rise to the principle that a manufacturer, supplier, or seller of a defective chattel was liable in negligence only to those with whom he was in privity of contract.1 Starting with the case of Thomas v. Winchester, 6 N.Y. 397 (1852), an exception to this rule developed with regard to articles “imminently” or “inherently” dangerous to human safety. In 1916, Justice Cardozo wrote his famous opinion in MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), from which the modern rule developed that the manufacturer, seller, or supplier, without regard to privity of contract, is liable where substantial harm is to be anticipated if a chattel is negligently made or designed and that negligence proximately causes an injury.
Surprisingly, this Court has had little occasion to address this problem. My research discloses no Maine case which squarely holds that lack of privity is a defense to an action based upon negligence against a supplier or manufacturer for injuries caused by a defective chattel.2 In 1923, this Court decided Flaherty v. Helfont, 123 Me. 134, 122 A. 180 (1923). In the course of the opinion by way of dicta, the Court stated:
“The general rule is that no liability attaches for injury to persons who cannot be brought within the scope of the contract.”
But in case of substances or instrumentalities which are imminently dangerous the rule is subject to an exception. Id. at 137, 122 A. at 181 (citations omitted).
The basis of the Court‘s decision, however, was that the allegedly defective condition was not the cause of the accident. In Estabrook v. Webber Motor Co., 137 Me. 20, 15 A.2d 25 (1940), although citing Flaherty v. Helfont, supra, the Court ruled that proposed amendments to a declaration were insufficient in that they did not allege the defect with sufficient particularity.
In Lajoie v. Bilodeau, 148 Me. 359, 93 A.2d 719 (1953), this Court upheld the presiding Justice‘s refusal to direct a verdict for a defendant-bottler of ginger ale in an action for negligence resulting from the
Finally, in McNally v. Nicholson Manufacturing Co., Me., 313 A.2d 913 (1973), this Court had before it оn report the question of whether the third count of a complaint based upon a theory of strict liability in tort stated a claim upon which relief could be granted. The Court dismissed that count of the complaint for failure to state a claim upon which relief could be granted, ruling that the law of Maine did not include a tort doctrine of strict product liability. In the course of that opinion, again by way of dicta, the Court nоted:
The MacPherson v. Buick approach was assimilated into the law of Maine in 1923 by Flaherty v. Helfont, 123 Me. 134, 122 A. 180 (1923). It was absorbed, however, not as an outright repudiation of past doctrinal error but as reaffirming “privity” to be the general governing principle subject to the exception . . . . Id. at 924.
Nor does the legislative action in 1969 in any way reveal what the common law of this state was before or after 1969. The statute enacted in 1969, P.L. 1969, ch. 327, amended
The opinion of the Court in this case implicitly assumes we are bound by the doctrine of stare decisis to recognize the following three legal principles:
- Lack of privity is a bar to an action for negligence against a manufacturer for injuries resulting from a defect in a chattel.
- An exception to the foregoing rule exists for instrumentalities which are “inherently dangerous.”
- An instrumentality is not inherently dangerous unless the defect is latent.
Although those principles were once stated by this Court by way of dicta in 1923 and repeated by way of dicta fifty years later, never have those principles become a part of the law of the State of Maine through a direct pronouncement by this Court in a case in which such a pronouncement was necessary to the decision of the Court.
I yield to no one in my insistence upon institutional integrity through adherence to the doctrine of stare decisis. We are bound by the law. However, the judiciary fulfills its lawmaking function only by deciding concrete cases. Nowhere is the judiciary granted authority to make pronouncements as law when those pronouncements are not necessary to the decision of a specific case before a court. It is particularly inappropriate for this Court to consider itself bound by dicta when the rules announced in those dicta have been repudiated throughout the United States.
I find it unnecessary to state how I would rule on the open question of whether lack of privity is a bar in a products liability action based on negligence since that issue is not properly before us. I see no оccasion to add to the non-binding comments made upon this subject. I will be prepared to state my views when the issue is appropriately before the Court in a case in which it is necessary to the decision of the Court and in which the issue has been fully briefed by the parties.