29 Cal.App.3d 633, 38960, Balido v. Improved Machinery, Inc.

Docket Nº38960
Citation29 Cal.App.3d 633, 105 Cal.Rptr. 890
Opinion Judge[10] Fleming
Party NameBalido v. Improved Machinery, Inc.
Attorney[7] Davis, Flaum & Greene, R. Browne Greene and Edward L. Lascher for Plaintiff and Appellant. [8] Kinkle, Rodiger, Graf, Dewberry & Spriggs, George P. Kinkle, Jr., David L. Jolliffe, Schell & Delamer, Fred B. Belanger and Abe Mutchnik for Defendants and Respondents.
Case DateDecember 26, 1972
CourtCalifornia Court of Appeals

Page 633

29 Cal.App.3d 633

105 Cal.Rptr. 890

Juana BALIDO, Plaintiff and Appellant,

v.

IMPROVED MACHINERY, INC., a corporation, et al., Defendants and Respondents.

Civ. 38960.

California Court of Appeal, Second District, Second Division

Dec. 26, 1972.

As Modified Jan. 8, 1973.

Hearing Denied March 8, 1973.

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Davis, Flaum & Greene and R. Browne Greene, Los Angeles, and Edward L. Lascher, Ventura, for plaintiff and appellant.

Kinkle, Rodiger, Graf, Dewberry & Spriggs, by George P. Kinkle, Jr., Los Angeles, for respondents Improved Machinery, Inc. and Paper Mate Co.

Schell & Delamer, Fred B. Belanger, and Abe Mutchnik, Los Angeles, for respondent Olympic Plastics Co.

FLEMING, Associate Justice.

In 1965 Juana Balido's right hand was crushed when a plastic injection molding press closed as she was adjusting an insert. Balido brought an action for negligence, breach of warranty, strict liability, and intentional misconduct against the manufacturer of the press, Improved Machinery, Inc. (Improved); against the former owner of the press, Paper Mate Manufacturing Company (Paper Mate); and against her employer and the owner of the press at the time of the accident, Olympic Plastics Company, Inc. (Olympic). After the presentation of plaintiff's case, the trial court entered judgment of nonsuit in favor of all defendants. Balido appeals.

In ruling on a nonsuit a court must disregard conflicting evidence, give to plaintiff's evidence all value to which it is legally entitled, and indulge plaintiff in every legitimate inference that may be drawn from the evidence. (Elmore v. American Motors Corp., 70 Cal.2d 578, 583, 75 Cal.Rptr. 652.) The evidence showed:

Improved designed and manufactured the plastic injection molding press in New Hampshire in 1950--1951 and sold it to Paper Mate in California in 1953. Paper Mate sold the press to Olympic in 1958. As originally designed and manufactured, the press contained a lift safety gate which

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when fully closed covered the operating area of the press. As the safety gate turned on its pivot in closing, it triggered an electric limit switch near the gate's pivot point, and the switch in turn activated the press and permitted its platens to close. The electric limit switch, a standard item of equipment procured from another manufacturer, was adjustable, and an improper adjustment of the switch could allow the press to activate while the gate was open as much as 10 degrees, an opening that amounted to five inches at the far end of the gate. In the opinion of two industrial safety engineers the lift gate and electric limit switch as originally designed and installed did not provide adequate safety for the operator of the press.

After the press had been sold to Paper Mate, Improved learned that operators of similar presses were being injured and that a California industrial safety order in effect since 1949 required more comprehensive safety devices for plastic molding presses than Improved had originally installed. Specifically, the industrial safety order required that plastic presses be equipped with either a sliding gate or dual hand controls. (A sliding gate would alleviate the problem of untimely activation, while dual hand controls would keep both operator's hands away from the press during its closing cycle.) Starting in 1954 Improved incorporated into its new presses a package of additional safety devices, which it then offered for sale with free installation to owners of its earlier-model presses. The package included a sliding gate, an additional gate-activated switch that limited the hydraulic system, and a metal bar that held the press platens apart while the gate was open. Paper Mate added the hydraulic limit switch to the press but did not install the other devices. It subsequently sold the press to Olympic.

On several occasions a sales-and-service representative of Improved notified Olympic that the press did not meet California's industrial safety standards and suggested that Olympic purchase Improved's package of additional safety devices for $500. Improved also sent two letters to Olympic pointing out the safety deficiencies of the press and calling attention to the California industrial safety order. These letters are set out below. 1

Olympic did not install any additional safety devices on the press.

On 25 January 1965 Balido was operating the plastic molding press on her job at Olympic. She reported to her supervisor the press was working faster than usual, and the latter told her to be sure the insert did not fall out. During one of the molding operations the insert began to fall out, and Balido opened the gate and put her right hand in the press to adjust the

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insert. The press closed, crushing her hand with 175 tons of pressure and causing her to lose three fingers and part of the fourth on her right hand.

Subsequently, Balido obtained permanent disability benefits for her injuries under workmen's compensation.

At the trial an industrial safety engineer and a state safety engineer testified that in their opinion the accident occurred because the safety devices on the press were inadequate and ineffective.

Olympic. The trial court properly granted a nonsuit in favor of Olympic. The California Workmen's Compensation Law makes the right to recover workmen's compensation the exclusive remedy of an employee against his employer for personal injuries. That remedy includes accidents that involve the employer's willful misconduct, in instances of which the amount of compensation recoverable by the employee may be increased by one half, but not in excess of $7,500. (Lab.Code, §§ 3601, 4553.) Once the jurisdiction of the workmen's compensation law has been properly invoked, it is exclusive. (Scott v. Industrial Acc. Com., 46 Cal.2d 76, 82--83; see Hanna, California Law of Employee Injuries and Workmen's Compensation, 2d ed., vol. 2, § 22.03.)

Olympic employed Balido. She received permanent disability benefits under workmen's compensation for injuries on the job. She had no cause of action against her employer for her injuries, and judgment of nonsuit was properly entered in Olympic's favor.

Paper Mate. The trial court likewise correctly entered judgment of nonsuit in favor of Paper Mate. The only evidence concerning Paper Mate, the prior owner of the press, showed it had been warned of the press's safety deficiencies and had installed a hydraulic safety limit switch before selling the press to Olympic.

Balido's complaint against Paper Mate charged negligence, breach of warranty, and strict liability. The evidence fails to support these allegations. On negligence, there was no evidence that Paper Mate's failure to purchase the entire package of additional safety devices was causally related to Balido's accident. On breach of warranty, there was no evidence that Paper Mate gave any express warranties when it sold the press to Olympic some seven years prior to the accident. And because Paper Mate did not deal in plastic molding presses, it sale of the press did not carry implied warranties of merchantability and fitness for intended use. (Com.Code, § 2314; former Civ.Code, § 1735(2).) On strict liability, there was nothing to suggest that Paper Mate was a conduit for the production

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or distribution of Improved's presses. Paper Mate was no more than a one-time 'occasional seller' who does not become subject to strict liability for manufacturing or design defects. (Silverhart v. Mount Zion Hospital, 20 Cal.App.3d 1022, 1026, 98 Cal.Rptr. 187; Rest.2d Torts, § 402A, comment f.)

Improved. On the cause of action for intentional misconduct the trial court granted a nonsuit in favor of Improved, the manufacturer of the press, because it found no evidence of intentional misconduct and no evidence of any attempt to hide the safety deficiencies in the press. With this conclusion we agree.

There remain for consideration the negligence, warranty, and strict liability counts against Improved. The theory of these counts is that Improved negligently and deficiently designed, manufactured, and sold a press whose inadequate safety devices made it unreasonably dangerous to operate. Although separate counts for negligence, warranty, and strict liability have been pleaded, we view them as stating a single cause of action, in that the complaint seeks damages for personal injuries caused by deficiencies in the design of a manufactured product. As Professor Wade has pointed out, the manufacturer is not an insurer of the safety of its product, and the test for strict liability is the same as that for negligence, except for the element of scienter. (Wade, Strict Liability of Manufacturers, 19 Sw.L.J. 5, 15--17.) Strict liability for deficient design of a product (as differentiated from defective manufacture or defective composition) is premised on a finding that the product was unreasonably dangerous for its intended use, and in turn, the unreasonableness of the danger must necessarily be derived from the state of the art at the time of design. (Thompson v. Package Machinery Co., 22 Cal.App.3d 188, 191--192, 99 Cal.Rptr. 281.) A danger is unreasonable when it is foreseeable, and the manufacturer's ability, actual, constructive, or potential, to forestall unreasonable danger is the measure of its duty in the design of its product. A manufacturer's failure to achieve its full potential in design and thereby forestall unreasonable danger forms the basis for its strict liability in tort. It is a liability whose essence parallels the lack of due care that is the essence of its liability for negligence. It may be seen, therefore, that in...

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