Appeal from Superior Court of Cowlitz County. Docket No: 93-2-01091-6. Date filed: 02/02/95. Judge signing: Hon. Randolph Furman.
Authored by J. Dean Morgan. Concurring: Karen G. Seinfeld, John E. Turner
The opinion of the court was delivered by: Morgan
MORGAN, J. -- Randall Gall alleges he was injured when the truck he was driving lost its brakes and went out of control. He sued the truck's lessor, McDonald Industries, Inc., for negligence. McDonald moved for an order of summary judgment, which the trial court granted. Taking the facts and reasonable inferences in the light most favorable to Gall, *fn1 we reverse and remand for trial.
In late September and early October 1991, Gall was an employee of West Company Construction. One of his duties was driving trucks.
In late September, West leased a dump truck from McDonald Industries. The truck had six wheels, two in front and four in back. Affixed to each wheel was a brake caliper which, when activated, applied force to the wheel and slowed the truck.
The brake calipers were activated by "an air-over-hydraulic brake system" *fn2 that had two parts. One part served the two front wheels, while the other part served the four rear wheels. Each part of the system depended on hydraulic pressure "of a very high magnitude" *fn3 being contained within steel tubing, called brake lines. If the steel tubing failed, and hydraulic pressure escaped, the brakes would not function.
West leased the truck pursuant to a written lease agreement with McDonald. The agreement recited that West had inspected the truck and was receiving it "in good and safe operating condition;" that West would maintain the truck at its own expense; that McDonald "shall not be liable for any loss, damage, or expense . . . arising out of . . . the operation of" the truck; that McDonald's liability "is limited to repair or replacement of parts or equipment;" and that West "hereby assumes liability for and agrees to defend and save [McDonald] harmless from any and all claims of liability, loss or damage, including but not limited to claims for property damage, personal injury or death, arising out of or incidental to operation, use, or possession of" the truck. *fn4 As a consequence of the lease, the truck was delivered to West's job site, where McDonald had stationed one of its employees, George Curry. Curry's function was "to repair problems that occurred" with McDonald's equipment. West, however, was responsible for "normal maintenance." *fn5
Shortly after the truck arrived at the job site, Curry inspected it and discovered that the brake assembly on one of the right rear wheels was leaking brake fluid. Curry felt this problem should be corrected because, "had I left it alone[,] the brake fluid would have all run out." *fn6 He did not, however, have the parts he needed to make permanent repairs. Hence, he fashioned what he later described as a "makeshift repair." *fn7 He took the steel tubing that carried hydraulic pressure to the affected wheel and, in his words, "folded it over four times on top of itself and then smashed it with a hammer." *fn8
Curry's makeshift repair disabled the brake on the affected wheel, leaving the truck with five instead of six brakes. It also generated, for reasons explained more fully below, a high risk that all four of the truck's rear brakes would fail simultaneously.
After completing his makeshift repair, Curry spoke with Mike West, owner of West Company Construction. According to Curry, I didn't give him any advice because he is the corporate owner, I gave him his options. Option  being send the truck back,  get another truck down there or  run this one as is with the stipulation on the side that the operators check the brake fluid twice a day, only to cover myself. *fn9 As far as the record shows, Curry was unaware of, and did not mention to West, the risk that all of the truck's rear brakes might fail simultaneously.
West decided to go ahead and use the truck. According to his affidavit, I believed then, as I believe now, that the truck would safely function if it was operated correctly.
I decided, based on my experience and background in the industry, that truck number TH482 could be safely operated with one of the brakes plugged off and gave that instruction to West Company Construction employees. *fn10
On October 4, 1991, about four days after Curry made his makeshift repair, Gall was driving the truck down an incline when its brakes failed. *fn11 The truck went out of control, collided with a large mound of dirt, and Gall was allegedly injured.
On October 4, 1993, Gall sued McDonald for damages. On October 21, 1994, McDonald moved for summary judgment. Gall did not make a cross-motion, but he responded to McDonald's motion with the affidavit of a registered professional engineer. According to that affidavit, Curry's makeshift repair consisted of totally disconnecting the hydraulic brake line from the caliper assembly on the right side wheel of the rear rear axle. The end of the separated steel tubing brake line was then "folded over four times on top of itself and then smashed with a hammer". This action . . . compromised the performance of the vehicle's ...