Gordon v. Niagara Mach. and Tool Works

• Citation: 506 F.2d 419
• Decision Date: 13 January 1974
• Docket Number: No. 74-2319,74-2319
• Parties: Mrs. Ivy L. GORDON, Plaintiff-Appellee, v. NIAGARA MACHINE & TOOL WORKS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 419

506 F.2d 419

Mrs. Ivy L. GORDON, Plaintiff-Appellee, v. NIAGARA MACHINE & TOOL WORKS, Defendant-Appellant.

No. 74-2319.

United States Court of Appeals, Fifth Circuit.

Jan. 13, 1974.

Allan D. Shackelford, Clarksdale, Miss., for defendant-appellant.

Charles C. Finch, Batesville, Miss., Henry Woods, Little Rock, Ark., D. Briggs Smith, Jr., Batesville, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before COLEMAN, CLARK and RONEY, Circuit Judges.

COLEMAN, Circuit Judge.

This diversity action for damages for personal injury was brought by Mrs. Ivy Gordon, a Mississippi citizen, against Niagara Machine and Tool Works, a New York Corporation. On February 9, 1969, four fingers were severed from Mrs. Gordon's left hand when the jaws of a power press manufactured by Niagara unexpectedly came together while she was operating the machine. After a Bench trial, there was judgment for the plaintiff on the theory that Niagara had breached its duty to warn Mrs. Gordon of the dangerous nature of the machine and that this omission was a proximate cause of the injury. Damages were assessed in the sum of $73,470.55.

The District Judge specifically declined to decide the case as one of strict liability in tort. He would not apply Section 402(a) of the Restatement. He decided it altogether as 'negligent failure to warn', Section 388 of the Restatement of Torts.

We reverse and remand for further proceedings not inconsistent herewith.

FACTS

The power press, a giant machine standing ten feet high and capable of exerting sixty tons of pressure, was manufactured by Niagara and delivered to Poloron, a New York Corporation on October 12, 1954. Five years later, Poloron shipped the machine to its Batesville, Mississippi plant, where Mrs. Gordon eventually became employed.

The primary function of the machine is simple. The moving upper jaw is designed to come down upon the stationary lower jaw. The upper jaw can be set to operate either continuously or, as was true in this case, upon the manual command of an individual operator.

When the machine was delivered in 1954 the manual command device was a foot treadle, installed by Niagara. Poloron later replaced the foot treadle with a palm button system. This push button system used air pressure to activate the press. The system was supposedly safer than the foot treadle because it had to be operated by the use of both hands, thereby presumably assuring that an operator could not activate the machine while either hand was inside it. This particular press button system, installed by Poloron, was manufactured by Schreder Corporation. Niagara manufactured similar palm button systems, however, and knew that they were used by many press owners.

As delivered to Poloron, the machine's jaws did not themselves close together, one upon the other. The machine became 'operational', and thus potentially dangerous to users, only after the installation of dies within the jaws.

Since the machine could be used for many diverse functions, depending upon the type die used, the installation of dies and guards was left to the purchaser. ¹

When it delivered the press to Poloron, Niagara sent along a pamphlet warning, which read as follows:

'Never place your hands under the slides or between the die unless the power is off and the slides blocked up.'

Poloron did not pass this warning on to its employees.

Niagara did not place a warning directly on the machine. It relied on the notice given Poloron.

From and after 1954 Niagara had no further contact with the press. It had nothing to do with the type of work to which the machine was assigned, nor with the installation of any dies or guards necessitated by the work. For fifteen years Niagara had heard nothing further from the machine, while Poloron used it in New York and Mississippi.

Mrs. Gordon had four months experience in Poloron's Batesville, Mississippi plant. So far as this record shows, Poloron had never given her any warning that the machine might malfunction. She had been running it for two weeks. On the morning of the injury she was using the machine to trim the sides of an ice chest liner. As she removed a piece of cut material from the machine, the upper jaw unexpectedly closed on four fingers. She had not pressed the two palm buttons, which was ordinarily required to make the upper jaw of the press descend upon the lower jaw.

A fair appraisal of the evidence clearly indicates that nobody knew then, or knows now, what caused the machine to malfunction.

The expert witnesses for the plaintiff said that the most likely cause for the malfunction was clutch failure. This opinion, however, was based on the possibility that dirt or other foreign matter could have invaded the clutch. A thorough inspection of the machine immediately after the accident revealed no such intrusion. Thus, the hypotheses of these witnesses are seriously open to the objection that they are without a basis in fact.

Defendant's experts said that the most likely cause of the malfunction was failure of the Poloron installed palm activation device. This testimony was based on certain idiosyncracies noted in the air pressure operation of the device.

THE LAW

The judgment for the plaintiff was expressly grounded on the Restatement of Torts, Second, Section 388:

'388. Chattel Known to be Dangerous for Intended Use

'One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier

'(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and

'(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and

'(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.'

The Mississippi Supreme Court has never expressly approved or adopted this particular portion of the Restatement. There can be little doubt, however, that upon the presentation of an appropriate case it would do so. For example, in State Stove Manufacturing Company v. Hodges, 189 So.2d 113 (Miss., 1966) the Court adopted Section 402(a) of the Restatement. It overruled the previously existing Mississippi case law on the subject.

The District Court found that Niagara knew that its machine was likely to be dangerous when used in a secondary operation for manual feeding; that whatever the reason for a repeat action of the press, when on a single-stroke cycle, serious injury would befall an operator whose hands were within the danger zone; and the machine when operated manually and set on single-stroke cycle could not be completely 'fail safe' and accident free.

This satisfied the requirements of Section 388 of the Restatement from the beginning through paragraph (a). It cannot be denominated as clearly erroneous because the written warning given Poloron upon delivery of the press would permit a reasonable inference that Niagara knew the nature of its press.

The Court further found that this was a danger which a machine operator like Mrs. Gordon would have no reason to know of or be aware of because of a reliance upon the belief that the machine would stop always after one cycle and could be fed manually. It was not an obvious danger, it was a latent, hidden and unknowable danger to one untrained in the mechanical operation and understanding of this power press.

At to what Mrs. Gordon did not know and could not, in the exercise of her own resources, have known, this finding is supported by the record, and, in the event of liability, negates a reduction of the recovery for contributory negligence.

The Court further held, however, that this satisfied the second prerequisite of Section 388, that is, of Section 388(b). This sub-section imposes liability only if Niagara had 'no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition.' In other words, for recovery against Niagara it would have to be shown by a preponderance of the evidence and inferences reasonably to be drawn therefrom that in 1954 Niagara had 'no reason to believe that those for whose use the press was supplied would realize its dangerous condition.' The District Court made no explicit finding on this point but appears to have considered that this requirement was met by Mrs. Gordon's individual lack of knowledge in 1969, or her inability to learn of it solely by her own resources. This, we think, was not enough to have met the standard prescribed by Section 388(b).

The Comment on Section 388(b) (Page 306) states that the supplier's duty to warn exists 'if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved'.

There is evidence in the record from which it could be inferred that Niagara had reason to expect that from warnings by the employer the ultimate user of the machine would discover the danger of double tripping. There is no evidence, that we can find, addressed to the point that the manufacturer had no reason for such an expectation. We are of the opinion that there should be a new trial on this issue, in which the parties may fully develop the record and the trial court may make specific findings.

The Court further found that Niagara failed to exercise reasonable care under the circumstances to bring home to press operators, whomever they might be, notice of the dangerous latent condition and to warn them, in clear and positive terms, against the hazards of hands and arms coming in contact with the danger zone of the...