Ward v. Hobart Manufacturing Company

• Citation: 450 F.2d 1176
• Decision Date: 14 October 1971
• Docket Number: No. 30809.,30809.
• Parties: Mrs. Frances Buckley WARD, Plaintiff, Appellee, Cross-Appellant, v. The HOBART MANUFACTURING COMPANY, Defendant, Appellant, Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

450 F.2d 1176 (1971)

Mrs. Frances Buckley WARD, Plaintiff, Appellee, Cross-Appellant, v. The HOBART MANUFACTURING COMPANY, Defendant, Appellant, Cross-Appellee.

No. 30809.

United States Court of Appeals, Fifth Circuit.

October 14, 1971.

COPYRIGHT MATERIAL OMITTED

Jerry O. Terry, P. D. Greaves, Gulfport, Miss., William H. Wallace, Cleveland, Ohio, Greaves & Terry, Gulfport, Miss., James T. Crowley, Thompson, Hine & Flory, Cleveland, Ohio, for defendant-appellant.

Leonard A. Blackwell, Jr., Estes & Blackwell, Gulfport, Miss., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and GEWIN and MORGAN, Circuit Judges.

GEWIN, Circuit Judge:

The resilient springboard of diversity jurisdiction once again catapults the federal courts into the midst of state tort law. In this nonjury, products liability case, Mrs. Frances Ward, appellee, cross-appellant (Mississippi resident), seeks to recover damages for severe injuries sustained to her right hand while cleaning a meat grinder manufactured by Hobart Manufacturing Company (Hobart), appellant, cross-appellee (citizen of Ohio). The district judge made extensive findings of fact and conclusions of law which are set forth in his memorandum opinion reported in 317 F.Supp. 841 (S.D.Miss. 1970). He determined damages to be in the amount of $30,000 but reduced that sum to $15,000 because of the contributory negligence of Mrs. Ward, in accordance with the comparative negligence rule of Mississippi.¹ We find the district court in error in certain of its key findings of fact and conclusions of law and reverse for the reasons which follow.

In her cross appeal, Mrs. Ward contends that the lower court erred in finding her guilty of contributory negligence and thus in reducing her damages. Because we reverse as to liability on the part of Hobart it is unnecessary to consider this contention.

Hobart raises several issues on appeal, but in view of our conclusion with respect to two of those issues we find it unnecessary to reach the others.² The district court found Hobart liable on two grounds: (1) negligence in the design of the grinder and (2) negligence in failing to warn of the danger involved in using the grinder. Hobart argues that both conclusions are erroneous.

In order to follow clearly the reasoning upon which we base our reversal, a review of the facts is necessary. In 1965, Mrs. Ward and her husband purchased a second hand meat grinder, Model Number 4332, designed and manufactured by Hobart in 1948.³ It was used in their small restaurant.

When this grinder was sold to the original purchaser,⁴ part of its standard equipment was a detachable guard and feed pan as well as a stomper (for pushing meat into the machine), which were intended as safety devices to protect the hands of the user from coming in contact with the "worm mechanism" or auger of the grinder. The guard and pan were attached to the grinder proper by bolts. Included with each Model Number 4332 was a set of instructions which in part warned that the user's hands should be kept out of the hopper (into which the meat was fed) while the grinder was in operation. From the evidence presented, Hobart, in 1948, was apparently the only manufacturer of meat grinders which included a safety guard of any kind with its product. When the Wards purchased this second hand grinder they did not receive the guard and feed pan, stomper, or warning instructions. There was no evidence that Hobart had any knowledge of the sale to the Wards.

During the period of almost two years between the date of purchase by the Wards and Mrs. Ward's injury, the grinder was in constant use, being operated every other day both by Mrs. Ward and her husband. At the trial, Mrs. Ward testified that she had taken the grinder apart several times to clean it. She also testified that on one occasion prior to her accident she used a hammer handle as a stomper to push meat into it; the handle was caught in the worm and ground up.

On June 29, 1967, Mrs. Ward was doing last minute cleaning around the machine. It had been taken apart and cleaned by her husband earlier in the day. At the trial she described how her injuries occurred:

Q. Will you tell the Court how you were injured, so far as you can remember, on that day?

A. Well, its hard for me to remember, but I was wiping the machine and it has on the back a switch and evidently in wiping it I could have turned it on and off inadvertently, but it was not on at the time I looked down in to be sure I was going to wipe down in where we put the meat to be sure it was good and clean, and I was just going to go over to clean it.

Q. And then what happened?

A. It caught my hand.

Upon cross-examination she further testified:

Q. Did you recall looking over into the bell?

A. I looked into the bell but whether I even noticed the worm I\'m not sure.

Q. In fact, you don\'t know whether you turned it on or off or just what the machine was to your recollection?

A. I do know that I would not have stuck my hand down in the machine, knowing as much as I do about it, with it turned on.

It was demonstrated at the trial and acknowledged by Mrs. Ward that the worm continues to turn after the grinder is turned off. She estimated that it ran for about a minute after being cut off. Her expert testified that it continued to run from two to twenty seconds. It was further demonstrated at the trial that the turning worm could be heard from a distance of approximately twenty-five feet after the grinder was shut off.

At the time of the injury Mrs. Ward's husband responded to her cry for help. He testified that when he reached her, the switch was in the "off" position. One of her fingers was completely cut off and severe injuries to other fingers necessitated their surgical amputation.

In this diversity case we are bound by Erie principles and the law of Mississippi controls.⁵ The difficulty presented arises from the fact that neither the district court nor the parties have cited a decision by the Mississippi courts clearly delineating the state law in a "pure" negligent design case. Our research has not revealed such a decision.

The Mississippi case most nearly in point is Harrist v. Spencer-Harris Tool Co.⁶ In Harrist, the plaintiff alleged that the negligent manner in which an oil drilling rig was planned, designed and manufactured, constituted a breach of an implied warranty owed by the seller to the purchaser. The plaintiff, as an employee of the purchaser, urged abrogation of the privity requirement which then prevailed in Mississippi and which permitted only parties to the sales contract to recover.⁷ The state supreme court, however, found it unnecessary to rule on the privity question holding that without regard to privity, because the alleged defects were not "latent or concealed" it would be required to affirm the judgment for the manufacturer.⁸ The court in Harrist followed what appears to be the general rule in negligent design cases: where the alleged danger is open and obvious and the manufacturer has done everything necessary to insure that the machine will function properly for its designed purpose any duty owed to a future user⁹ has been fulfilled.

However, the district court in the instant case stated that this "concept has been replaced under the modern decisions by the rule that the creation of an `unreasonable' danger is enough to establish negligence."¹⁰ We cannot agree with the district court's conclusion as to the "modern decisions", nor do we consider it appropriate to rely solely upon Harrist and the "latent or concealed" or "open and obvious" rule. Although here we are presented with the particular problems involved in evaluating a manufacturer's design, the case is still based on negligence. Consequently, we look beyond Harrist to other Mississippi law for guidance on its general negligence principles.

The district court concluded that the Mississippi Supreme Court "impliedly" approved a negligent design action in Walton v. Chrysler Motor Corporation.¹¹ Walton, however, was decided on principles of strict liability, not negligence. The court's enumeration of the elements of a negligence action was simply as an aid in its differentiation of negligence and strict liability.¹²

Despite its strict liability character, Walton serves to remind us of the four basic elements of a traditional negligence action: (1) plaintiff must be protected under some rule of law against defendant's conduct (duty); (2) defendant's conduct must have violated this duty (breach); (3) plaintiff's injury must be the result of defendant's conduct (causal relationship); and (4) plaintiff must have suffered a loss (damage).¹³ Only when items (1) and (2) are shown is it possible to proceed to a consideration of item (3) since a duty and a breach of that duty are essential to a finding of negligence under the traditional and accepted formula.¹⁴ A defendant's act or failure to act may be the cause in fact of another's injury, but if the act was not negligent there is no liability. It is in the determination of negligence that we feel the lower court erred. It is our conclusion that the lower court's finding of negligence both in the design of the grinder and in the failure to warn are clearly erroneous.¹⁵ We turn first to the claim of negligent design.

I. Negligent Design

Without question Hobart was under a duty to design a reasonably safe meat grinder. Hobart does not contest this obligation; it does contest the district court's finding that its design was unreasonable. Such a determination must not be made in the abstract; it is necessary to measure the reasonableness of a product's design against objective standards. The criteria most frequently applied have been: (1) the conformity of defendant's design to the practices of other manufacturers in its industry at the time of manufacture;¹⁶ (2) the open and obvious nature of the alleged danger;¹⁷ and (3) the extent of the claimant's use of the very product alleged...