use it or occupy it or share in its use with the consent of such person, irrespective of whether the supplier has any particular person in mind. Restatement, section 388, comment a.
Unlike the strict liability imposed on a seller of a product by section 402A of the Restatement, and unlike the duty of care imposed on the manufacture of a product, a supplier of a chattel has no duty under section 388 to test or inspect or even make a cursory examination to ascertain the existence or non-existence of a dangerous condition. Section 388 requires only that the supplier warn of those dangers of which he is actually aware or has information which should make him aware that such a dangerous condition exists. Sears, Roebuck & Co. v. Marhenke, 121 F.2d 598, 600 (9th Cir. 1941); McMeekin v. Gimbel Bros., Inc., supra ; Ebbert v. Philadelphia Electric Co., supra ; Restatement, sections 12(1) and 388. In addition to the liability imposed under section 402A, there is, of course, also liability upon the manufacturer of a product for failure to exercise due care. The manufacturer is required to carefully design and fabricate his product and is required to make such inspections and tests during and after manufacture as are reasonably necessary to secure a safe product. Sieracki v. Seas Shipping Company, Inc., 149 F.2d 98, 99-100 (3d Cir. 1945), aff'd, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099, reh. denied, 328 U.S. 878, 66 S. Ct. 1116, 90 L. Ed. 1646 (1946); Ebbert v. Philadelphia Electric Co., supra ; Restatement, section 395, comments e and f. In contrast, the supplier of a chattel is not liable under section 388 when he exercises reasonable care to give those whom he may expect to use the chattel any information as to the dangers in the chattel of which he is actually aware or, from information which he possesses, should be aware. Tohan v. Joseph T. Ryerson and Son, Inc., 165 F. Supp. 638, 641 (E.D. Pa. 1958), rev'd on other grounds, 265 F.2d 920 (3d Cir. 1959); Restatement, section 388, comment b and comment g. Except in exceptional circumstances, such as where the product is incapable of any safe use, or such as where the person to whom the chattel is supplied is obviously likely to misuse it, a supplier who has given such information to the persons through whom the chattel is supplied is entitled under section 388 to assume that it will not be used in an unsafe manner. Marker v. Universal Oil Products Company, supra, at 607 (1957); Brandon v. Yale & Towne Manufacturing Co., 220 F. Supp. 855 (E.D. Pa. 1965); Restatement, section 388, comments g and n. A supplier of a chattel manufactured by another but marketed as his own product is held to the same standard of care as a manufacturer. Forry v. Gulf Oil Corp., 428 Pa. 334, 237 A.2d 593, 599 (1968); Restatement, section 400; Ebbert v. Philadelphia Electric Co., supra. The duty of a supplier of a chattel under section 388 should also be distinguished from the duty of a supplier who furnishes chattels for his own business purpose pursuant to section 392 of the Restatement. There a supplier has the duty to exercise reasonable care to make the chattel safe for the use for which he has supplied it. The duty under section 392 also requires the supplier to make a reasonable inspection of the chattel. Fullard v. Pittsburgh Urban Re-Development Authority, 222 Pa. Super. 184, 293 A.2d 118 (1972); Restatement, section 392 comment a.
The duty to warn under section 388 applies only to latent dangers. The supplier is not required to warn if he has reason to expect that the users of the chattel will discover its condition and realize the danger involved. Kerber v. American Machine & Foundry Co., 411 F.2d 419 (8th Cir. 1969); Burgess v. Montgomery Ward and Company, 264 F.2d 495 (10th Cir. 1959); Marker v. Universal Oil Products Company, supra ; Jamieson v. Woodward & Lothrop, 101 U.S. App. D.C. 32, 247 F.2d 23 (1957); Tomao v. A.P. DeSanno & Son, Inc., supra ; Yaun v. Allis-Chalmers Manufacturing Co., 253 Wis. 558, 34 N.W. 2d 853 (1948). If a mere casual observation will disclose the danger, the supplier has no duty to warn unless the circumstances under which the chattel is supplied are such as to make it unlikely that even so casual an inspection will be made. Restatement, section 388, comment k.
There is ordinarily no duty to give a warning to members of a profession against dangers generally known to members of that profession. Morrocco v. Northwest Engineering Co., 310 F.2d 809 (6th Cir. 1962); Sawyer v. Pine Oil Sales Co., 155 F.2d 855 (5th Cir. 1946); Littlehale v. E.I. du Pont de Nemours & Co., 268 F. Supp. 791, 798 (S.D.N.Y. 1966); Oettinger v. Norton Company, 160 F. Supp. 399 (E.D. Pa. 1957), aff'd, 253 F.2d 712 (3d Cir. 1958).
Since a supplier of a component part is under no duty to warn the subsequent assembler of dangers which are generally known in the assembler's profession, the supplier has no duty to warn the assembler's employees. Marker v. Universal Oil Products Co., supra; Littlehale, supra.
Section 389 of the Restatement reads as follows:
Chattel Unlikely to be Made Safe for Use. One who supplies directly or through a third person a chattel for another's use, knowing or having reason to know that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put, is subject to liability for physical harm caused by such use to those whom the supplier should expect to use the chattel or to be endangered by its probable use, and who are ignorant of the dangerous character of the chattel or whose knowledge thereof does not make them contributorily negligent, although the supplier has informed the other for whose use the chattel is supplied of its dangerous character.
Under section 389 a supplier of a chattel who has informed the persons to whom he supplied the chattel of its dangerous condition may be held liable to persons ignorant of the dangerous condition of the chattel if he knows or has reason to know that the chattel is unlikely to be made reasonably safe before being put to its expected use. Cush v. Pittsburgh et al., supra, at 362. If the supplier of a chattel knows or has information from which a person of reasonable intelligence would infer that it is unlikely that the chattel will be made reasonably safe, the fact that he has informed the person through whom the chattel is supplied does not absolve him from liability. However, a supplier has no duty under section 389 to determine whether the chattel will be made reasonably safe -- liability arises only when the supplier knows or has information from which he should know that there is a substantial probability that the chattel will not be made safe before it is used. Among the circumstances which render it unlikely that it will be made safe are knowledge of the fact that the chattel will be used so soon after it is turned over that it is substantially certain that no change will be made or that the person through whom it is supplied is financially incapable of making it safe, or is notoriously careless. Cush v. Pittsburgh et al., supra ; Restatement, section 389, comment c. There are also some chattels which are so unsafe for the use for which they are likely to be put that the supplier cannot reasonably assume that the warning will be effective. Restatement, section 389, comment c. Section 389 imposes liability upon the supplier in those situations.
As indicated above and for the reasons hereinafter stated, sections 388 and 389 do not impose liability on the defendant, G.E., in this case. Lockett contends that G.E. was under a duty to furnish a guard for the gears which were supplied to Sun Ship. Section 388 and 389 do not impose a duty on the supplier of a product to supply a guard -- these sections merely require a supplier to exercise reasonable care to inform the users of a chattel of the latent dangers involved in its use, and even then only where the supplier knows or from information which the supplier possesses, he should know of the danger. The duty does not arise where the supplier is not aware and has no information from which it should reasonably infer that the user will not realize its dangerous condition. Lockett has made no claim that the gears were defective in and of themselves. As his expert witness testified, gears which are assembled without a guard are dangerous (N.T. 3-30). G.E. would be merely under a duty to warn of any latent dangers which are likely to arise in the expected use of the gears. For example, if G.E. knew or had reason to know that the gears were not safe for operation at certain speeds, or, if, because of a latent condition of the gears, they were unsuitable for certain uses, G.E. would have a duty to warn of these latent dangers. Tomao v. A.P. DeSanno & Son, Inc., supra. As a supplier under section 388, G.E. was under no duty to make inspections and tests and was under no duty to find out whether Sun Ship would install the guard prior to operation of the gears. Compare Smith v. Hobart Manufacturing Co., 302 F.2d 570 (3d Cir. 1962). If any party would have had a duty to warn of the danger in the operation of the assembled gears, it would have been Sun Ship who assembled the component parts supplied by G.E. into the vessel. The gears only became dangerous, if at all, when operated by Sun Ship without a guard. See Croteau v. Borden Co., 277 F. Supp. 945 (E.D. Pa. 1968), aff'd 395 F.2d 771 (3d Cir.).
In order for the plaintiff to recover in an action predicated on section 388, he must prove, inter alia, (1) that the defendant knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied; (2) that the defendant has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; (3) that the plaintiff is a person whom the defendant should expect to use the chattel with the consent of the other or to be endangered by its probable use.
In this case the plaintiff was required to establish that the defendant, G.E., knew or had reason to know that the gears were dangerous or were likely to be dangerous for the use for which they were supplied. Although G.E. undoubtedly knew that the split ring gear and the pinion gears would be assembled and installed on the driveshaft in the engine room of the vessel, there is no evidence that G.E. knew or had reason to know that the gears would be operated without a guard by the employees of Sun Ship or that the gears would be operated without a guard at such a slow speed that their movement would not be obvious to someone in the vicinity. As previously stated, G.E. did not have a duty to test or supervise the installation of the gears as a mere supplier. While there was evidence that G.E. maintained an employee permanently on the premises of Sun Ship, the employee was not called to testify and there was no evidence that G.E. knew of facts from which it should have inferred that the unguarded gears would be operated during the construction of the ship. Any conclusion as to the knowledge of G.E.'s employee by virtue of his mere presence at the shipyard would be pure conjecture. Furthermore, there was evidence in the record in Lockett's case that Sun Ship's drawings indicated that Sun Ship would supply and install the guard. The gears were supplied by G.E. on the basis of specifications supplied by Sun Ship. It was clear that Sun Ship would assemble and install the gears on the driveshaft. Lockett did not contend, and there was no evidence, that the gears were inherently dangerous, defective or improperly designed. Lockett based his case on the sole contention that the operation of gears without a guard was dangerous.
In McMeekin v. Gimbel Brothers, Inc., supra, a five-year old child was struck in the eye by an unidentified object which his father, as his natural guardian, contended was thrown from the grass chute of the lawn mower which the father was operating in another part of the yard. There, as here, the theory of liability was based upon the duty imposed on the supplier of the lawn mower under section 388. The plaintiff contended that the lawn mower was dangerous since the supplier knew or should have known that it had a capability of expelling objects over 150 feet at a lethal speed. Judge Marsh of the United States District Court for the Western District of Pennsylvania granted a directed verdict at the close of the plaintiff's evidence. In denying the plaintiff's post-trial motions, he concluded, inter alia, that the plaintiff failed to produce sufficient evidence to enable a jury to find liability under section 388 and stated, at 898:
In our opinion plaintiffs failed to bring their case within the purview of § 388, for it was not shown that the defendant knew, or from facts known to it should have realized, that the mower was or was likely to be dangerous for the use for which it was supplied. The accident itself is the only fact in the case which would tend to prove that the mower was a dangerous instrument . . . . Plaintiffs failed to meet their burden that the retailer knew or should have realized that a dangerous condition existed. [Citations omitted.]
Where there is no proof of a dangerous instrumentality, and no proof of a defect or improper design making an otherwise harmless instrument dangerous, of which defendant retailer knew or should have known, it follows that the retailer has no duty to warn of product-connected dangers. [Citations omitted.]