Bibby

The major issue to be decided in this case is whether plaintiffs have presented a triable issue of material fact based upon the dual capacity exception to the usual exclusivity of the workers’ compensation remedy, when they have been unable to controvert evidence that the “product” involved in an industrial accident had not been completed at the time of the accident.

Summary of Facts and Proceedings

Cecil Bibby (Bibby) was employed by Central Industrial Engineering Company, Inc. (Central) as a fitter, and his job entailed tack-welding pieces to steel beams. On April 26, 1980, Bibby had tack-welded a plate onto a beam, which was then hoisted to be moved across the shop for final welding and inspection. While the beam was being moved, either the plate affixed to it broke or it slipped out of its sling, causing it to fall on Bibby, crushing and killing him.

Plaintiffs, Bibby’s parents, filed a suit for wrongful death against Central on March 26, 1981, seeking to recover on theories of strict products liability and breach of warranty. After a relatively lengthy period of discovery (more than one year), Central sought an award of summary judgment, arguing that plaintiffs…