CITE: 106 Wn.2d 73, 720 P.2d 787
MELE v. TURNER
CAUSE NUMBER: 51333-3
FILE DATE: June 12, 1986
CASE TITLE: John Mele, Respondent, v. Charles Turner,
et al, Petitioners.
[1] Negligence - Furnishing Chattel - Likelihood of Harm - Competency of User - Determination. The supplier of a chattel is under no duty to question the competency of an adult user of the chattel who has the apparent ability to safely use that particular chattel and has no obvious physical or mental impairment.
[2] Negligence - Furnishing Chattel - Warning - Necessity Obvious Danger. The supplier of a chattel has no duty to warn a user of a danger which is obvious from a casual inspection.
[3] Negligence - Furnishing Chattel - Lawn Mower - Obviousness of Danger. The fact that a rotating lawn mower blade is not clearly exposed to the user does not render it a hidden and latent danger.
NAMES OF CONCURRING OR DISSENTING JUDGES: Pearson, Utter, and Dore, JJ., and Winsor, J. Pro Tem., dissent by separate opinion; Callow, J., did not participate in the disposition of this case.
NATURE OF ACTION: A person injured when he placed his hand in or under a running lawn mower sought damages from the owner of the mower and the person who arranged for use of the mower.
Superior Court: The Superior Court for King County, No. 81-2 14297-4, Jack P. Scholfield, J., entered a summary judgment in favor of the defendants on March 12, 1982.
Court of Appeals: By an unpublished opinion noted at 37 Wn. App. 1076, the court REVERSED the summary judgment.
Supreme Court: Holding that there was no duty as a matter of law for the owner to question the plaintiff's competency or knowledge of the danger, the court REVERSES the Court of Appeals decision and reinstates the summary judgment of dismissal.
COUNSEL: LEE, SMART, COOK, MARTIN & PATTERSON, P.S., INC., by JOHN Q. POWERS, BRIAN F. KREGER, and GARY HOUSE, for petitioners.
CHRISTOPHER C. PENCE and KELBY FLETCHER, for respondent.
AUTHOR OF MAJORITY OPINION: Andersen, J.-
MAJORITY OPINION:
FACTS OF CASE
At issue here is whether an adult, who was mowing his neighbors' lawn using the neighbors' rotary lawn mower, is entitled to recover damages from his neighbors for injuries which resulted when he put his hand in or under the running mower. We hold that under the facts presented, he is not.
On June 19, 1980, Ann Garrett told neighbor Dolores Turner that her 13-year-old son would mow the Turners' lawn using the Turners' rotary lawn mower. The next day, however, the boy was unable to mow the lawn, so his mother asked plaintiff, an 18 (almost 19)-year-old student at Northwestern University, if he would do so. Plaintiff agreed.
Garrett's son showed plaintiff the push-type, Sears, Roebuck rotary lawn mower, told him how to start it, what area to mow and where to put the grass clippings. The boy then went home.
After plaintiff had been mowing for about 20 minutes, Mrs. Turner returned home from work. Plaintiff told her that he was substituting and she agreed to this arrangement. She determined that plaintiff knew which areas to mow and stated that they would discuss payment afterward. Plaintiff did not indicate that he was having any difficulty with either the lawn mower or his lawn mowing task. Satisfied, Mrs. Turner went inside the house.
Plaintiff mowed for 1 to 11/2 hours without incident. He emptied the grass catcher periodically as it became full and each time noticed that grass clippings accumulated around the mouth of the mower's discharge chute as well as in front of the chute. Without turning the mower off, plaintiff would sweep away these clippings with his left hand. After doing this a few times, and in the course of doing it again, he placed his fingers under the chute and into the mower housing. The spinning rotary blade hit his hand, causing injury to four fingers.
Plaintiff sued both the Turners and the Garretts, alleging that they had breached duties to provide him with a safe lawn mower and to warn him of the dangers associated with running the mower. The trial court granted defendants' motions for summary judgment, stating that
"plaintiff injured his hand by putting it into the whirling
cutter blade when the lawnmower was running; that there
was no duty on the part of any of the defendants to warn
the plaintiff, who was a college student, that if he put
his fingers into the whirling blade he could suffer serious
injury.
In an unpublished opinion, the Court of Appeals reversed the trial court and remanded for trial. «1»
«1» MELE v. TURNER, 37 Wn. App. 1076 (1984).
We granted review.
Whether or not the defendants owed a duty to the plaintiff is a question of law for this court. «2»
«2» PEDROZA v. BRYANT, 101 Wn.2d 226, 228, 677 P.2d 166 (1984); BERNETHY v. WALT FAILOR'S, INC., 97 Wn.2d 929, 933, 653 P.2d 280 (1982).
Accordingly, two principal issues are here presented.
ISSUES
ISSUE ONE. Under the facts of this case, did the defendants breach a duty owed to the plaintiff under Restatement (Second) of Torts 390?
ISSUE TWO. Under the facts of this case, did the defendants breach a duty owed to the plaintiff under Restatement (Second) of Torts 388?
DECISION
ISSUE ONE.
CONCLUSION. No evidence was presented that the defendants knew or had reason to know that the plaintiff, an 18-year-old college student, would likely use an ordinary walk-behind rotary lawn mower in a manner involving unreasonable risk of harm to himself. Thus the Court of Appeals erred when, on the basis of Restatement (Second) of Torts 390, it reversed the trial court's entry of a summary judgment of dismissal.
Restatement (Second) of Torts 390 (1965) reads as follows:
"Chattel for Use by Person KNOWN TO BE INCOMPETENT
One who supplies directly or through a third person
a chattel for the use of another WHOM THE SUPPLIER KNOWS
OR HAS REASON TO KNOW TO BE LIKELY BECAUSE OF HIS YOUTH,
INEXPERIENCE, OR OTHERWISE, to use it in a manner involving
unreasonable risk of physical harm to himself and others
whom the supplier should expect to share in or be endangered
by its use, is subject to liability for physical harm
resulting to them.
(Italics ours.) This is the law of this State. «3»
«3» BERNETHY, at 933; CAMERON v. DOWNS, 32 Wn. App. 875, 878, 650 P.2d 260 (1982).
"This Section deals with the supplying of a chattel to a person INCOMPETENT to use it safely . . ." (Italics ours.) «4»
«4» Restatement (Second) of Torts 390, comment B (1965).
The kinds of "incompetency" which come within this rule are set forth in the "Illustrations" prepared by the authors of the Restatement. These include: giving a loaded gun to a feebleminded child of 10; permitting a 10-year-old child, who has never driven an automobile before, to drive one; permitting one's chauffeur, who is in the habit of driving at excessive speeds, to drive the car on an errand of his own; lending one's car to a friend to drive to a dance, knowing that the friend habitually becomes intoxicated at dances; and renting an automobile to a person who says that he plans to drive it from Boston to New York in 3 hours to win a bet. «5»
«5» Restatement (Second) of Torts 390, comment B, illustrations 1-5 (1965).
Washington cases have followed this pattern, holding that liability may be imposed under section 390 for selling a gun to an intoxicated person «6»
«6» BERNETHY v. WALT FAILOR'S, INC., SUPRA.
and for lending an automobile to someone known (or who should have been known) to be a reckless driver and likely to become intoxicated and drive. «7»
«7» CAMERON v. DOWNS, SUPRA.
[1] Even if we assume that there is evidence of the plaintiff's "incompetency" to operate a rotary lawn mower sufficient to survive a motion for summary judgment, we are still left with a total dearth of evidence that the defendants knew or should have known of that incompetency. There is simply nothing in the record to show that the plaintiff was "likely because of his youth, inexperience, or otherwise, to use [the rotary mower] in a manner involving unreasonable risk of physical harm to himself and others". «8»
«8» Restatement (Second) of Torts 390 (1965).
There is no requirement of law or reason mandating that someone asking a neighbor to mow a lawn must question that neighbor's competency when he is a college student 2 months shy of 19 who lacks obvious physical or mental impairment.
ISSUE TWO.
CONCLUSION. Where the alleged "dangerous condition" of the lawn mower was both obvious and known to the plaintiff, the defendants owed him no duty to warn of such condition. The plaintiff has no cause of action under Restatement (Second) of Torts 388.
Plaintiff also argues that he has a claim under Restatement (Second) of Torts 388 (1965), which reads:
"Chattel Known To Be Dangerous for Intended Use
One who supplies directly or through a third person
a chattel for another to use is subject to liability to
those whom the supplier should expect to use the chattel
with the consent of the other or to be endangered by its
probable use, for physical harm caused by the use of the
chattel in the manner for which and by a person for whose
use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is
or is likely to be dangerous for the use for which it
is supplied, AND
(b) HAS NO REASON TO BELIEVE THAT THOSE FOR WHOSE
USE THE CHATTEL IS SUPPLIED WILL REALIZE ITS DANGEROUS
CONDITION, AND
(c) fails to exercise reasonable care to inform them
of its dangerous condition or of the facts which make
it likely to be dangerous.
(Italics ours.) This is also the law of this State. «9»
«9» FLEMING v. STODDARD WENDLE MOTOR CO., 70 Wn.2d 465, 467 68, 423 P.2d 926 (1967).
A warning was stamped on the lawn mower casing: "Keep hands and feet from under mower". The plaintiff says he didn't see this because it was obscured by grass clippings and otherwise not apparent. He then argues that the tendency of the wet grass to accumulate near the mouth of the mower's discharge chute, together with the spinning blade just inside the discharge chute, created a dangerous condition about which the defendants should have warned him.
[2] In order to have a claim under section 388, a party must satisfy all three subsections (a), (b) and (c). For the sake of this summary judgment proceeding, we will assume that either the accumulation of wet grass by the mower's discharge chute or the spinning blade behind the mouth of the discharge chute, or both, rendered the mower "dangerous for the use for which it is supplied". Section 388(a). Before he can establish that a duty to warn of these conditions arose, however, plaintiff must show that his neighbors had no reason to believe he would realize the mower's potential danger. Section 388(b).
As to this, the Restatement instructs:
" WHEN WARNING OF DEFECTS UNNECESSARY. ONE WHO SUPPLIES
A CHATTEL TO OTHERS TO USE FOR ANY PURPOSE IS UNDER A
DUTY TO EXERCISE REASONABLE CARE TO INFORM THEM OF ITS
DANGEROUS CHARACTER IN SO FAR AS IT IS KNOWN TO HIM, OR
OF FACTS WHICH TO HIS KNOWLEDGE MAKE IT LIKELY TO BE DANGEROUS,
IF, BUT ONLY IF, HE HAS NO REASON TO EXPECT THAT THOSE
FOR WHOSE USE THE CHATTEL IS SUPPLIED WILL DISCOVER ITS
CONDITION AND REALIZE THE DANGER INVOLVED. It is not
necessary for the supplier to inform those for whose use
the chattel is supplied of a condition which a mere casual
looking over will disclose, unless the circumstances under
which the chattel is supplied are such as to make it likely
that even so casual an inspection will not be made. (Second italics ours.) Restatement (Second) of Torts 388, comment K (1965).
In this regard, the policy of Restatement (Second) of Torts 388 is similar to that of Restatement (Second) of Torts 402A. «10»
«10» SEE Restatement (Second) of Torts 402A, comment J (1965); HAYSOM v. COLEMAN LANTERN CO., 89 Wn.2d 474, 479, 573 P.2d 785, 93 A.L.R.3d 86 (1978).
As this court held in a section 402A products liability action against a manufacturer,
"a warning need not be given at all in instances where
a danger is obvious or known. «11»
«11» HAYSOM, at 479.
The danger involved in this case was both known and obvious to the plaintiff. He stated that each time he emptied the grass catcher, he noticed that there was some grass at the opening of the discharge chute and cleaned it with his hand before replacing the catcher. As he candidly admitted in the affidavit he filed in opposition to the defendants' motions for summary judgment,
"I OBVIOUSLY REALIZED THAT ONE SHOULD NOT PUT HIS HAND
UNDER THE MACHINE WHERE THE BLADE RUNS . . . «12»
«12» Affidavit of John Mele, at 3.
(Italics ours.)
[3] Since the "dangerous condition" of the lawn mower that the plaintiff had been using for 1 to 1 1/2 hours before his injury was obvious and known to him according to his own affidavit, the defendants had no legal duty to warn him of such a condition. Our conclusion in this regard is unaffected by the plaintiff's statement that "I could not see the turning blade and I believed it did not extend where I was reaching." «13»
«13» Affidavit of John Mele, at 2.
The blade did not come out of the housing containing it to strike the plaintiff's fingers; the plaintiff admitted that he knew he should not put his hand under the mower. Furthermore, as held in RAGSDALE v. K-MART CORP., 468 N.E.2d 524, 527 (Ind. Ct. App. 1984), another rotary lawn mower case:
"The fact that the mower blade is not clearly exposed
to the user of the mower does not make it a hidden, and
thus latent, danger.
The plaintiff's remaining contentions under common law master/servant principles essentially overlap his contentions under Restatement (Second) of Torts 388 and 390. Even were we to agree that plaintiff was an employee of some or all of the defendants at the time of his injury, we find our analysis regarding plaintiff's earlier arguments dispositive of his master/servant contentions.
The trial court's order granting summary judgment for the defendants on liability was proper. «14»
«14» CR 56(c); WILSON v. STEINBACH, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
The Court of Appeals is reversed and the trial court's judgment is reinstated.
CONCURRING JUDGES: Dolliver, C.J., and Brachtenbach, Goodloe, and Durham, JJ., concur.
AUTHOR OF DISSENTING OPINION: Pearson, J. (dissenting)-
DISSENTING OPINION: The majority incorrectly frames the issue in this case as whether plaintiff "is entitled to recover damages from his neighbors for injuries which resulted when he put his hand in or under the running mower." Majority opinion, at 74. In reality, the issue before the trial court, the Court of Appeals, and now this court, is whether the defendants had a duty to warn plaintiff of the lawn mower's dangerous condition. The majority apparently believes this case presents an issue of liability when, in fact, the issue is one of duty. The distinction is important. This court's function is to determine whether defendants owe a particular duty to the plaintiff; but it is the jury's function to determine whether the defendants should be held liable for a breach of that duty. By transmogrifying a duty question into a liability question, the majority usurps an important function of the jury. Accordingly, I dissent.
The procedural context of this case is important. It comes to us after the trial court granted defendants' motion for summary judgment, holding that, AS A MATTER OF LAW, the defendants had no duty to warn plaintiff of the lawn mower's dangerous condition. Because the trial court decided this case on an order of summary judgment, this court must engage in the same inquiry as the trial judge. WILSON v. STEINBACH, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). A summary judgment pursuant to CR 56(c) can be granted only if there is no genuine issue as to ANY material fact, and the moving party is entitled to judgment as a matter of law. WILSON, at 437. In reviewing the motion for summary judgment, this court "must consider all facts submitted and all reasonable inferences from the facts in the light most favorable to the nonmoving party", WILSON, at 437, in this case plaintiff.
In FLEMING v. STODDARD WENDLE MOTOR CO., 70 Wn.2d 465, 467 68, 423 P.2d 926 (1967), this court adopted Restatement (Second) of Torts 388 (1965). Section 388 defines the liability of a supplier «15»
«15» Because I do not believe the Garretts are "suppliers" within the contemplation of Restatement (Second) of Torts 388, I would not apply 388 analysis to plaintiff's claim against them. I express no opinion on the question of whether the Garretts owed plaintiff some duty under other principles of tort law.
of a dangerous chattel for failure to disclose the danger to the user. This duty to disclose arises if the supplier
" (a) knows or has reason to know that the chattel
is or is likely to be dangerous for the use for which
it is supplied, and
(b) has no reason to believe that those for whose
use the chattel is supplied will realize its dangerous
condition . . .
Restatement (Second) of Torts 388 (1965); FLEMING, at 468. If these two conditions are satisfied, the supplier has a duty to disclose. The supplier is liable for a user's injuries, however, only if he "fails to exercise reasonable care to inform [the user] of its dangerous condition or of the facts which make it likely to be dangerous." Restatement (Second) of Torts 388(c) (1965).
Although a duty issue constitutes a pure question of law, a determination that a duty exists under 388 requires a certain amount of fact-finding. In particular, the court must determine whether the supplier knew or had reason to know the chattel was dangerous. 388(a). Furthermore, the court must determine whether the supplier had reason to believe the user realized its dangerous condition. 388(b). Because these factual questions must be answered before a court can resolve the legal question of whether a duty attaches, summary judgment on the duty question would be appropriate only if there was no genuine issue as to these material facts. A genuine issue exists if reasonable persons could reach more than one conclusion. CF. MORRIS v. MCNICOL, 83 Wn.2d 491, 494-95, 519 P.2d 7 (1974).
As I interpret 388, a supplier of a chattel has a duty to disclose if the supplier knew the chattel was dangerous and had no reason to believe the user recognized the danger. In this case, reasonable persons arguably could reach but one conclusion on the factual question of whether defendants knew or had reason to know the rotary lawn mower was dangerous. Reasonable persons could differ, however, on the question of whether the defendants had no reason to believe plaintiff realized its dangerous condition. The record clearly shows the plaintiff had never used the defendants' mower before the day of the accident. Furthermore, there is no evidence that the defendants had ever observed plaintiff using a similar type of lawn mower. In short, I fail to see how the majority could arrive at the factual conclusion, implicit in its holding, that the defendants did have reason to believe the plaintiff understood the dangers of that particular type of mower.
The majority points to a portion of plaintiff's affidavit in which he stated that he "obviously realized that one should not put his hand under the machine where the blade runs . . ." Majority opinion, at 80. Based on this statement, the majority concludes that "[s]ince the 'dangerous condition' of the lawn mower . . . was obvious and known to him . . . the defendants had no legal duty to warn him of such a condition." Majority opinion, at 80. I have two responses to the majority's analysis.
In the first place, I believe the majority places far too much weight on plaintiff's statement that he realized the dangers associated with placing one's hand "under" a running lawn mower. Plaintiff did not thrust his hand "under" the defendants' mower, as the majority suggests, but rather swept away grass clippings that accumulated at the discharge chute. The mower blade apparently reaches quite near the chute's mouth, but is difficult to observe due to the speed of the blade's rotation. Unlike those who normally operated this mower and were aware that the discharge chute frequently clogged, plaintiff was unaware of the danger of sweeping accumulated clippings from the chute's opening.
Regardless, the question under 388(b) is not whether the danger was obvious to plaintiff, but rather whether the defendants had reason to believe that plaintiff realized its dangerous condition. As stated above, there is a dearth of evidence in the record suggesting that the defendants had reason to believe plaintiff realized the dangers associated with that particular mower. I do not suggest that the defendants could not adduce such evidence, but rather that such evidence does not exist in the record before this court. Without such evidence, I am unable to conclude that, as a matter of law, the defendants had no duty to warn plaintiff of the mower's dangerous condition. Accordingly, I would affirm the Court of Appeals decision reversing the trial court's entry of summary judgment, but under Restatement (Second) of Torts 388, rather than 390.
CONCURRING JUDGES: Utter and Dore, JJ., and Winsor, J. Pro Tem., concur with Pearson, J.
POST-OPINION INFORMATION: