576 F.2d 97 (5th Cir. 1978), 76-1045, Hagans v. Oliver Machinery Co.

Docket Nº:76-1045.
Citation:576 F.2d 97
Party Name:Curtis HAGANS, Plaintiff-Appellee, v. OLIVER MACHINERY COMPANY, Defendant-Appellant, v. CENTURY MACHINERY COMPANY, Defendant, Texas Employers' Insurance Company, Intervenor-Appellee.
Case Date:July 10, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 97

576 F.2d 97 (5th Cir. 1978)

Curtis HAGANS, Plaintiff-Appellee,





Texas Employers' Insurance Company, Intervenor-Appellee.

No. 76-1045.

United States Court of Appeals, Fifth Circuit

July 10, 1978

Page 98

Frank Owen, III, Herbert E. Cooper, El Paso, Tex., for defendant-appellant.

Robert D. Earp, El Paso, Tex., for C. Hagans.

Tom R. Coffield, Jr., Dallas, Tex., John A. Grambling, El Paso, Tex., for Texas Employers Ins. Co.

Appeal from the United States District Court for the Western District of Texas.

Before TUTTLE, COLEMAN and RONEY, Circuit Judges.

RONEY, Circuit Judge:

In this products liability diversity action, plaintiff Curtis Hagans recovered a $50,000 jury verdict for injuries sustained while operating an industrial table saw manufactured 30 years before by defendant Oliver Machinery Company. Finding no substantial evidence to support plaintiff's claims of strict liability and negligence on the part of the manufacturer, we reverse.

Defendant Oliver Machinery Company is a leading manufacturer of industrial wood-cutting equipment, including commercial table saws. The saw involved in this case, a 2000 pound tilting arbor miter saw designed for industrial use, was manufactured by defendant in 1942 and delivered to the United States Navy. Shortly after World War II, the saw was sold to Century Machinery Company, who in 1960 resold the machine to plaintiff's employer, Utility Trailer Company of El Paso, Texas.

On October 11, 1971, plaintiff seriously injured his left hand while operating the saw. According to plaintiff, he was feeding a board into the saw when the circular blade hit a knot in the wood, causing the board to jerk up abruptly. As the board descended, plaintiff's left hand, which he had been using to steady the board, fell onto the circular blade. 1 Plaintiff's ring finger was completely severed and his middle finger severely lacerated as a result of the accident.

Plaintiff sued in federal district court on theories of strict liability and negligent design, contending that the saw should have been equipped with permanent safety devices or with adequate warnings of the dangerous nature of the machine. After a two-day trial, a jury returned a $50,000 verdict for plaintiff. 2 Defendant appeals,

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arguing that the district court erred in denying defendant's motions for directed verdict and for judgment notwithstanding the verdict.

In determining whether the evidence in this case was sufficient to create a question for the jury, we are guided by standards enunciated in Boeing v. Shipman, 411 F.2d 365 (5th Cir. 1969). All of the evidence must be considered, but in a light which draws all reasonable inferences most favorably to plaintiff's case. The case was properly submitted to the jury if the record contains evidence that would lead reasonable and fair minded men exercising impartial judgment to different conclusions. If, on the other hand, the facts and inferences point so strongly and overwhelmingly in favor of defendant that reasonable jurors could not arrive at a contrary verdict, defendant is entitled to judgment. See id. at 374-75; Simien v. S. S. Kresge Co., 566 F.2d 551, 556 (5th Cir. 1978). We have carefully considered the record in the light most favorable to plaintiff and find no substantial evidence to support plaintiff's theories of negligence and strict liability. Accordingly, the district court should have entered judgment for defendant.

Strict Liability

When sold by defendant in 1942, the saw was equipped with a guard assembly that fit over the saw blade. Incorporated into the guard assembly was an antikickback device that prevented the wood from being thrown back by the saw blade at the operator. Because certain important operations could not be performed on the saw with the guard in place, it was designed to be removable. The saw was apparently still equipped with this safety device when sold to plaintiff's employer in 1960, but the guard was not attached to the saw when plaintiff was injured. The record contains no indication when or why the safety device was removed. It is undisputed that plaintiff's injury would have been avoided had the blade guard been attached.

  1. Design Defect

    Under the theory of products liability expressed in § 402A of the Restatement (Second) of Torts 3 and adopted by the Supreme Court of Texas, McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967), a manufacturer who sells a product in a "defective condition unreasonably dangerous" is strictly liable for physical harm caused by the defect to the product's user even though the manufacturer "has exercised all possible care in the preparation and sale of his product." A product is "unreasonably dangerous" only if it is "defective," 4 whether designed defectively or improperly and produced as designed, or designed perfectly but improperly or defectively produced. Henderson v. Ford Motor Co., 519 S.W.2d 87, 92 (Tex.1974).

    Because many products have both utility and danger, the alleged defect is required to render the offending product "unreasonably dangerous" before strict liability is imposed. A product is unreasonably dangerous if its utility does not outweigh the magnitude of the danger inhering in its introduction into commerce. Borel v. Fibreboard

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    Paper Products Corp., 493 F.2d 1076, 1087 (5th Cir. 1973) (applying Texas law), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974).

    In balancing utility against danger, the court must not monocularly view the scales from the standpoint of either the user, whose injury convinces him positively that the product is unreasonably dangerous, or the manufacturer, whose profit motive may unduly interfere with his objective evaluation of the product's dangers. Rather, the court is required to consider the legitimate interests of both sides, cognizant that the user is entitled to expect that the product has been properly designed to meet the demands of its intended and proper usage without deficiencies rendering it unreasonably dangerous, but also cognizant that the manufacturer is not an insurer of his product, charged by the law to design every part to be the best that science can produce or to guarantee that no harm will come to the user. Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974). The standard to be applied in the balancing process can thus be expressed from the perspectives of both seller and user: a product is defective and unreasonably dangerous if a reasonable seller aware of the dangers involved would not sell the product or if the risk of injury exceeds that contemplated by an ordinary and reasonable consumer. Welch v. Outboard Marine Corp., 481 F.2d 252, 254 (5th Cir. 1973); see Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1273-74 (5th Cir.) (applying Texas law), cert. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974); General Motors Corp. v. Hopkins, 548 S.W.2d 344, 347 n.1 (Tex.1977).

    In evaluating a manufacturer's liability for injuries caused by his inevitably hazardous product, a court must first determine whether the product is so unsafe that marketing it at all is "unreasonably dangerous per se" and, if not, then determine whether the product has been introduced into the stream of commerce without sufficient safeguards, thus rendering it "unreasonably dangerous as marketed." Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1273 (5th Cir.) (applying Texas law), cert. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974); see, e. g., Keeton, Products Liability Inadequacy of Information, 48 Tex.L.Rev. 399, 406 (1970).

    Plaintiff Hagans argued to the jury that the removable blade guard assembly should have been designed into the saw as an unremovable safety feature through welding, rivets, or other means of permanent attachment. In support of this contention, plaintiff produced evidence that defendant had known in 1942 that commercial table saws annually accounted for a large number of industrial accidents, that technology was available in 1942 to permanently attach the blade guard assembly to the saw, and that plaintiff's injury would have been avoided had the saw been equipped with the blade guard.

    Defendant introduced evidence that in 1942 the saw exceeded industry safety practices and national and associational safety standards, that few competing manufacturers of commercial table saws included blade guards of any kind as standard equipment, and that as of the time of the injury no competitor manufactured an industrial table saw equipped with a permanently affixed blade guard. More importantly, it was undisputed that permanent attachment of the blade guard assembly would substantially limit the saw's usefulness. Common woodworking functions such as dadoing and rabbeting could not be performed on the saw with the guard in position. Indeed, the safety device had to be removed in order to straight-cut pieces of lumber of certain widths. As defense expert witness Professor Ralph Barnett observed, if the blade guard assembly had been welded or otherwise permanently attached to the saw, "(y)ou would wind up with a commercial . . . heavy-duty industrial machine which is not capable of cutting the most ordinary four by eight sheet of plywood . . . ." Plaintiff offered no evidence that in 1942 a permanent guard assembly could have been devised which would protect the operator during every woodworking operation performable on the saw.

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    A finding for plaintiff on the issue of defective design ignores the fact that "(s)afety is not the only criterion a manufacturer considers when designing a product." Ward v. Hobart Mfg. Co., 450 F.2d 1176, 1184 (5th Cir. 1971). When designing the saw at issue here, the Oliver Machinery Company was faced with the difficult task of reconciling its safety concerns with the realities of a...

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