Daniel Avena v. Clauss & Co., and Third-Party v. Maude James, Inc., Third-Party

I dissent.

In my opinion, the fallacy underlying the conclusion reached by the majority is to be found in its assumption that the function of the steel bands was to enable longshoremen to use them as a grip for their hooks in endeavoring to move a 300 pound container from one position to another — hence, an “intended use.” But “intended” by whom is the real question.

The majority holds that evidence showing that it is customary for longshoremen to place their hooks around the steel bands binding certain cargo and to use the bands for hauling the cargo is sufficient to raise a jury question on…