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Askew v. Howard-Cooper Corp.

October 19, 1972

ASKEW, APPELLANT,
v.
HOWARD-COOPER CORPORATION ET AL, RESPONDENTS



Appeal from Circuit Court, Deschutes County. John M. Copenhaver, Judge.

Wendell E. Gronso, Burns, argued the cause for appellant. With him on the brief were Claud A. Ingram, John Day, and Cramer, Gronso & Pinkerton, Burns.

Ridgway K. Foley, Jr., Portland, argued the cause for respondents. With him on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe, and Roland F. Banks, Jr., Portland.

Holman, Justice. O'Connell, Chief Justice, and Denecke, Howell and Bryson, Justices. McAllister, Justice, dissenting.

Holman

Plaintiff was injured while greasing a log lifting and handling machine manufactured by the defendant F.W.D. Wagner, Inc., and sold by the defendant Howard-Cooper Corporation. The complaint alleged both strict liability and negligent design in separate counts. The trial court granted a nonsuit and plaintiff appeals. The issue is whether there was sufficient evidence to take the case to the jury on either count.

The machine, called a lumberjack, was owned by the Edward Hines Lumber Co., and plaintiff had been employed about four months prior to his injury to operate the machine on the swing shift. Zerk fittings were located all over the machine, which plaintiff was

required to lubricate daily by injecting grease into the fittings with a grease gun furnished by the employer.

The machine was on wheels and was mobile. It had two large claws upon a boom which would roll logs onto two blades that protruded from the bottom of the machine. The claws would clasp several logs against the blades and the machine would then move them to where they were required. Plaintiff was instructed by his employer to set the boom in a certain position and then to climb up onto its top for the purpose of greasing the fittings there. With the boom in that position, the fittings were approximately ten feet off the ground.

Plaintiff was injured while descending the boom after he completed greasing the fittings. His foot slipped on a hose coupling and he fell to the ground. Grease and oil tended to accumulate and to make slippery the areas he had to climb and descend in the course of greasing the fittings.

The lumberjack was not equipped with ladders, steps, rails, or other means to climb to the top of the boom. Plaintiff contends that the failure to make the fittings accessible from the ground or to provide some safe means of access to the boom rendered the machine unreasonably dangerous.

The manufacturer of a chattel may be liable in negligence for its faulty design. The Restatement (Second) of Torts ยง 398 provides:

"A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure ...


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