Cox v. Oliver Machinery Co.

• Decision Date: 11 May 1987
• Docket Number: No. CA86-02-031,CA86-02-031
• Citation: 534 N.E.2d 855,41 Ohio App.3d 28
• Parties: COX et al., Appellees and Cross-Appellants, v. OLIVER MACHINERY COMPANY, a.k.a. Oliver Machine Company, Appellant and Cross-Appellee.
• Court: Ohio Court of Appeals

Page 28

41 Ohio App.3d 28

534 N.E.2d 855

COX et al., Appellees and Cross-Appellants, v. OLIVER MACHINERY COMPANY, a.k.a. Oliver Machine Company, Appellant and Cross-Appellee.

No. CA86-02-031.

Court of Appeals of Ohio, Twelfth District, Butler County.

May 11, 1987.

Syllabus by the Court

1. Where certain alterations to a product by the consumer are foreseeable by the manufacturer, the fact that such alterations are made does not, by itself, relieve the manufacturer of liability if the product, as altered, causes injury to the consumer.

2. When an excessive verdict is caused by passion and prejudice, the trial court must grant a new trial. If the verdict is excessive, but not influenced by passion or prejudice, the court may reduce the verdict by remittitur to any amount warranted by the evidence.

Lindhorst & Dreidame and James F. Brockman, Cincinnati, for appellees and cross-appellants.

Baden, Jones, Scheper & Crehan Co., L.P.A., and Jack C. McGowan, Hamilton, for appellant and cross-appellee.

PER CURIAM.

On October 1, 1979, plaintiff-appellee, Wayne Cox, was injured while operating an industrial saw manufactured by defendant-appellant, Oliver Machine Company. Appellee's employer, Magnode Products, Inc. ("Magnode"), had purchased the saw--especially designed for cutting aluminum extrusions--from appellant. The saw was equipped with both automatic and manual electrical cycles. The saw miscycled or "double-cycled" during its automatic mode while appellee attempted to remove a piece of aluminum from the blade area. Appellee's left hand was caught under a clamp and his fingers were amputated when the blade moved across his hand.

Appellee and his wife filed suit against appellant under the theories of negligence, breach of warranties, and strict products liability, seeking damages of $1,000,000. At the close of appellee's case-in-chief, appellant moved for a directed verdict on the issue of negligence and products liability. The trial court denied the motion. During its defense, appellant argued that the saw miscycled because Magnode had made substantial alterations to the machine. Appellant also claimed that appellee knew of the saw's tendency to miscycle while on automatic mode, that he was negligent and that he had assumed the risk by using the saw with such knowledge.

The jury returned verdicts of $200,000 for appellee and $100,000 for his wife on her claim for loss of consortium. The jury also answered interrogatories which stated that the saw was in a "defective condition" when manufactured and sold to Magnode and that the defective condition was a proximate cause of appellee's injuries. The jury further found that appellant was negligent but that appellee had neither assumed any risk nor negligently contributed to his own injury. Finally, the jury concluded that the saw was being used in a reasonably foreseeable manner when the accident occurred and that Magnode's acts or omissions were not an intervening or superseding cause of the accident.

Appellant then moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. Appellee, in turn, filed a motion for prejudgment interest. Except for the damages awarded to appellee's wife, the trial court denied appellant's motion for judgment notwithstanding the verdict. With respect to Mrs. Cox's damages, the court found that the jury acted with "passion and prejudice" and had granted an excessive award. The court ordered a remittitur of $60,000 or, in the alternative, a new trial. The court also denied appellee's motion for prejudgment interest.

Appellant has timely appealed the jury's verdict and raises five assignments of error. Appellee filed a cross-appeal with respect to the denial of his motion for prejudgment interest. Appellant's assignments of error read as follows:

First Assignment of Error: "The trial court erred to the prejudice of defendant-appellant in overruling its motion for directed verdict made at the close of plaintiff-appellee's case."

Second Assignment of Error: "The trial court erred to the prejudice of defendant-appellant in overruling its motion for judgment notwithstanding the verdict or for a new trial."

Third Assignment of Error: "The trial court erred to the prejudice of defendant-appellant in refusing to admit testimony concerning statements made by plaintiff's co-workers concerning the miscycling of the saw."

Fourth Assignment of Error: "The trial court erred to the prejudice of defendant-appellant in refusing to admit Exhibit G., a memorandum of a meeting concerning the saw."

Fifth Assignment of Error: "The judgment is against the manifest weight of the evidence and contrary to law."

Appellant's first assignment of error claims that the trial court improperly denied the motion for a directed verdict at the close of appellee's case on the negligence and products liability claims.

In ruling on a directed verdict--or, in our case, considering such a ruling on appeal--a court must construe the evidence most strongly in favor of the non-moving party and determine whether reasonable minds can come to but one conclusion on the evidence submitted, that conclusion being adverse to the non-moving party. Strother v. Hutchinson (1981), 67 Ohio St.2d 282, 21 O.O.3d 177, 423 N.E.2d 467; Love v. Mack Trucks, Inc. (1985), 27 Ohio App.3d 198, 27 OBR 238, 500 N.E.2d 328; and Civ.R. 50(A)(4). If reasonable minds can reach different conclusions, the matter must be submitted to a jury. TLT-Babcock, Inc. v. Service Bolt & Nut Co. (1984), 16 Ohio App.3d 142, 16 OBR 149, 474 N.E.2d 1223. The court considers the motion without weighing the evidence or determining the credibility of witnesses. Eldridge v. Firestone Tire & Rubber Co. (1985), 24 Ohio App.3d 94, 24 OBR 164, 493 N.E.2d 293; Love, supra. A motion for a directed verdict raises a question of law because it examines the materiality of the evidence rather than the conclusions to be drawn from the evidence. Eldridge, supra. Thus, the court does not determine whether one version of the facts presented is more persuasive than another; rather, it determines whether only one result can be reached under the theories of law presented in the complaint. Id.

Appellant submits that a directed verdict was required on the issue of products liability since the saw had been substantially altered and because it was unforeseeable that appellee would continue to use a saw that miscycled. Such position requires an examination of Ohio law as it relates to strict products liability in tort.

An analysis of Ohio law begins with the seminal case of Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267, in which the Ohio Supreme Court adopted 2 Restatement of the Law 2d, Torts (1965) 347, Section 402A. Briefly, Section 402A holds that one who manufactures or sells a product in a defective condition is subject to liability for physical harm caused to the ultimate user or consumer if the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. The Temple court found that the plaintiff's injuries--incurred while the plaintiff operated a punch press--were the result of her employer's action of altering the existing location of the press's activation buttons. According to the court, the employer's alterations constituted a "substantial change" or modification within the meaning of Section 402A and relieved the manufacturer of any liability.

Although Section 402A speaks of products sold in a "defective" condition, there was a conspicuous absence of any original defect in the press when manufactured and sold by the defendant in Temple. To the contrary, the Supreme Court found " * * * that there was no original defect of any sort in the punch press, * * * " Temple, supra, at 323, 4 O.O.3d at 469, 364 N.E.2d at 271, and that the employer's modification of the activation guarding method was the " * * * sole responsible cause of the maiming of * * * [the plaintiff]." Id.

The Temple decision did not answer all questions associated with a strict products liability claim. Since the facts in Temple did not involve a product sold or manufactured in a defective condition, the decision did not " * * * provide a legal standard for the application of strict liability in tort to design defects." Knitz v. Minster Machine Co. (1982), 69 Ohio St.2d 460, 464, 23 O.O.3d 403, 405, 432 N.E.2d 814, 817, certiorari denied (1982), 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 110.

The court in Knitz established a two-prong test for determining whether a product design is in a defective condition. Under one prong, the design is in a defective condition when the product fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Under the second prong, the design is defective when the benefits of the challenged design do not outweigh the risks inherent in the design. Id. at syllabus. See, also, Cremeans v. Internatl. Harvester Co. (1983), 6 Ohio St.3d 232, 6 OBR 302, 452 N.E.2d 1281. Factors relevant to a determination of whether a product design is defective under the risk-benefit standard include, among others, the likelihood that the design will cause injury, the gravity of the danger posed, the cost of an alternative design, and the new or additional harms resulting from the alternative design. Id.; Knitz, supra.

Those Supreme Court cases involving strict products liability causes of action have generally treated such claims within the context of summary judgment proceedings. Normally, such claims have survived manufacturers' summary judgment motions when the plaintiff raises sufficient allegations in the pleadings and evidence to establish a genuine issue of material fact regarding the existence of a design defect. Id.; Cremeans, supra. The court has also found that a substantial alteration subsequent to the manufacture and sale of the product will...