Wright v. Stang Mfg. Co. (54 Cal. App. 4th 1218, 1997)

Opinion

LILLIE, P. J.

In this product liability action, plaintiff Skip Wright, a firefighter employed by the City of Glendale, was injured when a “deck gun” or water cannon mounted on a firetruck broke loose while under pressure from the water pump, throwing Wright in the air and onto the ground with the deck gun landing on him. Plaintiffs appeal from summary judgment granted in favor of defendants, collectively referred to herein as Stang, the alleged successors of the corporation which manufactured the deck gun. The issues on appeal are whether the trial court correctly determined that “There is no evidence provided that the deck gun was defective. The piece of pipe that disengaged was not part of the deck gun and was requested and installed by another party. . . . [Tjhere is no duty to warn regarding a 17 year old component part that was not defective.”

Factual and Procedural Background

On November 14, 1994, plaintiff Skip Wright filed a complaint against Stang, among others, for negligence, strict liability, and breach of warranties; plaintiff Debbie Wright asserted a claim for loss of consortium. The complaint alleged that while Skip Wright was in the course and scope of his employment as a firefighter for the City of Glendale on November 15, 1993, he was using a Stang Manufacturing Company deck gun attached to a Seagrave fire engine; the deck gun broke loose and failed while under pressure, throwing him into the air and onto the ground, with the deck gun landing on him.

The most comprehensive evidence in our record setting out the details of the accident is provided by the declaration of Ralph Craven (Craven), plaintiffs’ expert consultant who is a fire apparatus expert and president of the National Institute of Emergency Vehicle Safety; Craven inspected the fire engine involved in the incident herein, including the deck gun and the riser to which it was attached; he also viewed a videotape of the incident that resulted in plaintiff’s injuries. According to Craven, water was being supplied to the deck gun from a water tank on the fire truck; when the water supply was exhausted, a hydrant connection was made and the engineer on the fire truck activated a valve that allowed the water to flow through the pump directly to the deck gun; the pump revolutions were high and the water pressure generated a nozzle reaction, known in the industry as a “water hammer.” A water hammer occurs when water is rapidly turned on and off, causing force to be generated which is more than four to six times the applied force; a nozzle reaction occurs, which, in turn, causes reactionary forces on the attachments, including the riser, to which the deck gun was attached with a three-inch threaded riser pipe. In this case, the threaded riser pipe did not fail or break at its connection with the deck gun, but the riser broke at the point it was mounted on the fire truck. In Craven’s opinion, “the deck gun and its attachments separated from the fire truck mounting, thereby causing the plaintiff’s injuries, as a result of this nozzle reaction combined with the absence of a flange mounting system and the presence of corrosion on the riser that was used in place of flanges, as well as inadequate thread depth engagement on the riser pipe, and the fact that the riser was made out of material of insufficient strength.”

The deck gun apparently was manufactured in 1977 by Stang Hydronics; the successor to Stang Hydronics is defendant Stang Enterprises, Inc. For purposes of the summary judgment motion, and this appeal, the Stang defendants provided no evidence to explain the nature of their relationship to Stang Hydronics and they did not provide sufficient evidence to negate the assertion that they are liable as successors to the manufacturer of the deck gun under principles set out in Ray v. Alad Corp. (1977) 19 Cal.3d 22 [136 Cal.Rptr. 574, 560 P.2d 3]. Rather, defendants’ summary judgment motion assumed for the sake of the motion only that they are successors to the manufacturer of the deck gun, but maintained that (1) there is no evidence that the deck gun was defective because it did not fail, (2) a component part manufacturer is not liable for failure to warn when the final product is subsequently packaged, labeled and marketed by another manufacturer, and (3) defendants as alleged successor corporations to the manufacturer, have no duty to warn.

In support of their motion for summary judgment, defendants asserted, and plaintiffs agreed, that the following facts were undisputed: The three-inch riser pipe remained attached to the deck gun at the time of plaintiff’s accident, and the threaded pipe did not shear at its connection with the deck gun; the steel which comprises the deck gun did not fail; according to blue prints, a flange mount system was available and could have been utilized by the City of Glendale. Defendants supported their motion with the declaration of Duane Bergmann, a licensed mechanical engineer, who stated that he inspected the deck gun and riser pipe; the pipe did not fail at the connection point with the deck gun; it was his opinion that the threaded mounting area of the deck gun was adequate; the threaded mounting of the deck gun did not fail, and the material which comprises the deck gun did not fail.

Defendants also asserted that they did not manufacture the deck gun, and had no involvement with it, but plaintiffs disputed those assertions on the ground that the evidence did not establish the relationships among the various defendants, or defendants’ relationships with the manufacturer of the deck gun. Thus, plaintiffs maintained that even if it were undisputed that defendants did not manufacture or distribute the deck gun, that fact alone would not entitle them to summary judgment. (See fn. 1, ante.)

In opposition to the motion, plaintiffs argued (1) that the fact that the deck gun itself did not fail does not preclude a finding that it was defective based on the lack of sufficient warnings about the proper maintenance of the gun, its attachments, and proper mounting; and (2) a component part manufacturer may be held liable for a failure to warn under the instant circumstances. Plaintiffs’ opposition was supported with the declaration of Craven, who stated that based on his inspection of the fire engine and deck gun, his viewing of the videotape of the incident involving plaintiff, and his education and experience, he was of the opinion “that the deck gun and its attachments separated from the fire truck mounting, thereby causing the plaintiff’s injuries, as a result of this nozzle reaction combined with the absence of a flange mounting system and the presence of corrosion on the riser that was used in place of flanges, as well as inadequate thread depth engagement on the riser pipe, and the fact that the riser was made out of material of insufficient strength.”

Craven further declared that he was of the opinion “that Stang, as the manufacturer and seller of the deck gun, had a duty to warn the user of the deck gun regarding the potential hazards of a water hammer and the nozzle reaction that occurs as a result thereof, which warning must necessarily include a reference to the need for proper inspection and maintenance of the deck gun, including periodic inspection for the presence of corrosion, proper threading of attachments, and use of a flange mounting system or attachments made of industrial heavy steel or other materials that resist corrosion. In this regard, it is foreseeable to anyone familiar with fire apparatus that water hammer nozzle reactions can occur and that steel components on deck gun attachments have a tendency to rust and corrode through normal use and that this can result in failure of any attachments, including risers like the one used here. In the case of the deck gun in question, Stang did not provide any of the aforementioned warnings and, it is my opinion that, had such a warning been given in this case and the deck gun maintained and inspected in accordance with same, this incident could have been prevented in that the corrosion that was present in the riser would have been detected and replaced before the incident and/or the effects of the water hammer nozzle reaction would have otherwise been reduced. [U The subject deck gun should have also been installed with a flange mounting surface due to the effects of water hammers and nozzle reaction on the mounted deck gun such as occurred in this case. . . . [I]f a flange type system had been used, the incident in question here would not have occurred. This is due to the fact that the forces created by the water hammer nozzle reaction would have been adequately distributed so as to be able to handle the forces by distributing the load. This is accomplished by increasing the mounting surface area, thereby decreasing the pounds per square inch of reactionary forces. The flange type system would have also provided a system that allows for easier inspection of the deck gun and all attachments in order to ascertain whether corrosion was present in either the deck or any attachments, including risers.”

Craven also concluded that because Stang did not design the deck gun with a flange mounting system, Stang as manufacturer had a duty to inform the installer and user of the deck gun that it must be installed in such a manner to safely handle the forces that would be generated during normal and foreseeable use, including those of water hammers; in this regard, it is the fire department that would necessarily be responsible for maintenance of the deck gun and attachments. In addition, Craven opined, the correct riser pipe was not used, nor was the riser installed with adequate thread depth to provide adequate strength. In this case, steel or galvanized steel pipe was used rather than industrial heavy weight steel, which has twice the thickness of typical steel or galvanized steel; in addition, when steel or galvanized steel pipe is used, the amount of the base material is reduced dramatically during the thread-cutting process, resulting in a loss of strength in the pipe and its ability to resist corrosion over time. Thus, Craven was of the opinion that the failure to use the correct pipe and the lack of adequate thread depth on the riser, “when subjected to the water hammer nozzle reaction caused the separation of the riser.”

Relying upon Craven’s declaration, plaintiffs asserted that the following nine material facts relating to product defect and causation were in dispute: (1) whether the deck gun was defective in that it was manufactured and sold without adequate warnings of proper maintenance of the gun and its attachments; (2) whether the gun was defective in that it was manufactured and sold without adequate warnings concerning proper mounting of the deck gun; (3) whether the deck gun was defective in that it was not designed with a flange mounting system; (4) whether the incident giving rise to this action was caused by conditions that generated a nozzle reaction and a high level of water pressure, that in turn caused the riser attachment to the deck gun to separate from the fire truck mounting; (5) whether the riser separated as a result of the combination of the presence of corrosion on the riser, inadequate depth engagement on the riser pipe, and improper pipe materials; (6) whether the incident would have occurred had the deck gun been designed with a flange mounting system or had adequate warnings about use of such a system been given; (7) whether the incident would have occurred had the riser been regularly inspected for corrosion; (8) whether it was foreseeable to a supplier of fire apparatus parts that steel components have a tendency to rust and corrode through normal use and can result in failure of attachments, including risers; and (9) whether it is foreseeable to a supplier of fire apparatus parts that conditions may exist during firefighting operations that cause a water hammer effect to occur.

After hearing on the summary judgment motion, the court issued an order granting the motion. The order stated in pertinent part: “[T]he moving [parties are] entitled to summary judgment as a matter of law for the following reasons. There is no triable issue of fact regarding whether or not the deck gun is defective. There is no evidence provided that the deck gun was defective. The piece of pipe that disengaged was not part of the deck gun and was requested and installed by another party. The court finds that there is no duty to warn regarding a 17 year old component part that was not defective. The court further finds that the plaintiffs’ expert declaration did not provide sufficient evidence to overcome the holding in Union Bank v. Superior Court (1995) 31 Cal.App.4th 573 [37 Cal.Rptr.2d 653],”

Plaintiffs filed timely notice of appeal from the judgment.

I

Summary Judgment Principles

“ ‘Summary judgment is appropriate only if the evidence shows there is no triable issue of any material fact, and that the moving party is entitled to judgment as a matter of law. The trial court’s obligation in ruling on a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues themselves. When making that determination, the trial court must strictly construe the affidavits of the moving party, and liberally construe those of the dpponent. . . .’ [Citation.] [¶] . . . We independently review the record to determine whether the moving party is entitled to judgment as a matter of law.” (Schwoerer v. Union Oil Co. (1993) 14 Cal.App.4th 103, 110 [17 Cal.Rptr.2d 227].) “If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. ‘The moving defendant whose declarations omit facts as to any such theory . . . permits that portion of the complaint to be unchallenged.’ ” (Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 13 [5 Cal.Rptr.2d 377].) Thus, even if no opposition is presented, the moving party still has the burden of eliminating all triable issues of fact. (Ibid.)

In the instant case, the cause of action for strict products liability alleges that the deck gun was “defectively designed, manufactured, assembled, labeled, distributed, advertised, marketed, sold, inspected, tested, or maintained.” Thus, the pleading is broad enough to allege all three theories of product defect. There are commonly three types of product defects. “First, there may be a flaw in the manufacturing process, resulting in a product that differs from the manufacturer’s intended result. . . . [