A vendor who fails to exercise ordinary care to ascertain the true condition and safety of the instrumentality, and chooses to sell without notice or warning of the dangerous characteristics and dangers inherent in use thereof is liable for injuries proximately caused by use of the instrumentality.Bower v. Corbell, 1965 OK 163, ยถ 32, 408 P.2d 307, 315-16. For purposes of this motion and in construing the evidence in Petrotub's favor, the failure of Petrotub's casing (joints and/or couplings) to meet API specifications will be treated as a defect that, given the intended use of the casing, was dangerous.
Since Crane has not been overruled or restricted, we conclude that an injured Plaintiff has a right to pitch his theory of recovery upon the time-honored doctrines of negligence with its corresponding common law defenses, with little regard to privity. Jamison v. Reda Pump Co., 190 Okla. 593, 126 P.2d 71 (broken electric switchbox); Auten v. Livingston, 201 Okla. 467, 207 P.2d 256 (allegedly defective vulcanizing machine); McAlester Coca-Cola Bottling Company v. Lynch, Okla., 280 P.2d 466 (exploding soft drink bottle); Bower v. Corbell, Okla., 408 P.2d 307 (defective power saw); Barnhart v. Freeman Equipment Co., Okla., 441 P.2d 993 (defective tie rod assembly on vehicle). Another field where liability without privity has grown in Oklahoma as it has elsewhere is with respect to food.
The plaintiff insists on strict liability and the defendant is not objecting. We find nothing in Bower v. Corbell, Okla., 408 P.2d 307, or in Barnhart v. Freeman Equipment Co., Inc., Okla., 441 P.2d 993, which imposes a more stringent duty on a manufacturer than that imposed by the trial court in its instructions. Plaintiff relies heavily on Larsen v. General Motors Corporation, 8 Cir., 391 F.2d 495.
A vendor who fails to exercise ordinary care to ascertain the true condition and safety of the instrumentality, and chooses to sell without notice or warning of the dangerous characteristics and dangers inherent in use thereof is liable for injuries proximately caused by use of the instrumentality.Bower v. Corbell, 408 P.2d 307, 315-16 (Okla. 1965); see also Swift, 310 P.3d at 1133 ("Under a negligence theory of recovery, a seller or supplier of a product has a duty to use reasonable care to provide adequate warnings or instructions to avoid injury to a foreseeable plaintiff."); Restatement (Second) of Torts ยง 401 (1965) (setting forth a standard substantially similar to Corbell). "In addition, although a seller generally does not have a duty to inspect products, such a duty may arise if it knows or has reason to know that the product is or is likely to be dangerous."
This court stated in Marion Machine, Foundry Supply Co. v. Duncan, 187 Okla. 160, 101 P.2d 813, 816 (1940) that ordinary hauling by truck is not inherently dangerous; an automobile is not an inherently dangerous machine; and therefore, a shipper is under no duty in this state to ascertain whether the motor carrier has complied with the motor vehicle laws or to inquire into the nature and adequacy of his equipment. The proposition that a motor vehicle is not an inherently dangerous instrumentality had been at least impliedly overruled by Bower v. Corbell, 408 P.2d 307, 313 (Okla. 1965): "* * * An automobile is not inherently dangerous within itself.
We have approved the doctrine established in MacPherson, supra, in cases involving liability of the manufacturer of defective products. Bower v. Corbell, Okla., 408 P.2d 307; Crane Company v. Sears, 168 Okla. 603, 35 P.2d 916. The principles of law declared therein are applicable to cases involving negligence in repairing, modifying or altering a product. The evidence submitted by plaintiff establishes at least a prima facie case for submission to the jury as to Freeman Equipment Company.
The only limitation upon the employment of circumstantial evidence to establish the essential elements in a cause of action based upon negligence is that the inferences drawn therefrom be legitimate and rational and beyond the realm of conjecture and speculation. Bower v. Corbell, Okla., 408 P.2d 307; Guerrero v. Tiblow, Okla., 382 P.2d 120; and Coe v. Esau, Okla., 377 P.2d 815. The single inference from the circumstantial evidence necessary to the prima facie showing required of plaintiff is the propelling of the drill stem.
Defendant cites as authority for this argument the annotation in 33 A.L.R.2d 539. Examination of cases annotated in support of such argument reflects that such cases involved facts neither present in, nor analogous to, the situation presented in this appeal. The argument that this machine was neither imminently nor inherently dangerous also was a subject of discussion in our recent decision in Bower v. Corbell, Okla., 408 P.2d 307, p. 313. We there stated that an automobile is not considered inherently dangerous, but when serviced and set in motion it becomes an inherently dangerous contrivance.
Davis v. Wyeth Laboratories, Inc., 399 F.2d 121, 128 (9th Cir. 1968) (Emphasis added). See also, O.S. Stapley Co. v. Miller, 447 P.2d 248, 252 (Ariz. 1968); Toole v. Richardson-Merrell,Inc., 60 Cal.Rptr. 398, 413-414 (1967); Yarrow v. SterlingDrug, Inc., 263 F. Supp. 159 (D.S.D. 1967); Bower v. Corbell, 408 P.2d 307 (Oklahoma, 1965). Even prior to the incorporation of ยง 402A of the Restatement of Torts, 2d, into our case law, and beginning with the landmark cases of Ebbert v. Philadelphia Electric Co., 330 Pa. 257, 198 A. 323 (1938), and Maize v. Atlantic Refining Co., 352 Pa. 51, 41 A.2d 850 (1945), our courts have recognized an affirmative duty on the part of a vendor to warn against dangers arising from the use of its product.