736 F.2d 609 (10th Cir. 1984), 81-1599, Brown v. McGraw-Edison Co.

Docket Nº:81-1599.
Citation:736 F.2d 609
Party Name:Nancy BROWN, Plaintiff-Appellee, v. McGRAW-EDISON COMPANY, a corporation; the American Laundry Machinery Company, a division of McGraw-Edison Company, a corporation; and the American Laundry Machinery Company, a corporation, Defendants-Appellants.
Case Date:June 01, 1984
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 609

736 F.2d 609 (10th Cir. 1984)

Nancy BROWN, Plaintiff-Appellee,

v.

McGRAW-EDISON COMPANY, a corporation; the American Laundry

Machinery Company, a division of McGraw-Edison Company, a

corporation; and the American Laundry Machinery Company, a

corporation, Defendants-Appellants.

No. 81-1599.

United States Court of Appeals, Tenth Circuit

June 1, 1984

Page 610

[Copyrighted Material Omitted]

Page 611

Glen Mullins, Oklahoma City, Okl. (Abel, Musser, Sokolosky & Clark, Oklahoma City, Okl., Ed Abel, Oklahoma City, Okl., was also on brief), for plaintiff-appellee.

J. Warren Jackman, Tulsa, Okl. (Pray, Walker, Jackman, Williamson & Marlar, William D. Lunn, Tulsa, Okl., was also on brief), for defendants-appellants.

Before HOLLOWAY and McWILLIAMS, Circuit Judges, and ARRAJ, District Judge. [*]

HOLLOWAY, Circuit Judge.

Defendants McGraw-Edison Co. and its division, the American Laundry Machinery Co., appeal from an adverse judgment in a products liability action brought by plaintiff Nancy Brown, based on personal injuries she sustained when her hand became caught in a commercial laundry ironer manufactured by American Laundry.

On appeal defendants claim that (1) the trial court erred in refusing to grant defendants' motions for a judgment notwithstanding the verdict and for a new trial since the evidence was overwhelming that the product had been substantially altered after it left the manufacturer's hands; (2) the trial court erred in ruling that excessive coasting of the rollers was an inherent defect in the machine when the uncontroverted evidence was that such condition did not exist in the machine as originally manufactured. We affirm.

I

The ironer involved in this lawsuit, the American Standard Six-Roll Flatwork Ironer, is a large ironer used in commercial cleaning establishments. The operator of the ironer feeds the garments into a feeder belt which carries the garments through a series of six large, steam-heated rollers which press the garments against a truncated steam chest.

At the time of her injury, Brown was an employee of Stillwater Laundry in Stillwater, Oklahoma. IV R. 4. She had been working at the laundry for only two days, and on the ironer in question for approximately fifteen minutes. Id. at 4-5. While attempting to straighten out a wrinkle in a hospital gown which she was feeding into the ironer, her right hand became caught in the gown and was pulled into the hot rollers on the machine. As a result of this incident, Brown's hand was badly burned and three fingers had to be amputated.

Brown brought this products liability action, claiming that the ironer was defective in two respects. First, the electrical shut-off mechanism on the machine was designed and manufactured in such a manner that the rollers on the ironer would continue to coast approximately twelve inches after the machine was shut off, allowing plaintiff's hand to be pulled into the machine and thereby causing her injury. And second, the machine in question did not have a cover over the feeder belt area which would have prevented plaintiff from putting her hand into the ironing mechanism of the machine.

At trial defendants did not dispute that the machine on which plaintiff was injured, involving the electrical shut-off system, was unreasonably dangerous. Rather, they presented testimony seeking to show that the ironer, as originally designed and manufactured, had a mechanical safety device, not an electrical one, which disengaged the rollers very quickly, bringing them to a stop within one inch. Defendants insisted that they could not be held liable for third-party alterations rendering the product defective and that there was no purpose to a safety cover over the feeder belt, given the presence of the original mechanical safety device. 1

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Following a five-day trial to the jury, Brown was awarded damages in the amount of $125,000. Defendants moved for a judgment n.o.v. or a new trial, and the trial court denied both. In overruling these motions, the court observed that defendants presented a "powerful argument" in support of their motions and that "if this case had been tried to the court without a jury a different result may have been obtained ...." I R. 197. The court commented that there was "overwhelming evidence indicating some modifications with respect to the electrical [safety device] ..., [but] the plaintiff ably argues in her response that the matter of the machine coasting after it shut-off is a defect that was inherent and that no modification or change in the switch or electrical wiring or extra guards or any other changes would have anything to do with this defect." Id. at 197-98. The court stated that "the jury was properly instructed on this matter and apparently chose to believe that the changes in the machine did not alter the original situation insofar as proximate cause of this accident is concerned." Id. at 198.

This appeal followed.

II

Defendants argue that the trial court erred in refusing to grant their motion for a judgment n.o.v. Relying on Franklin v. Skelly Oil Co., 141 F.2d 568 (10th Cir.1944), 2 inter alia, they assert that plaintiff's evidence relating to product alteration by defendants was essentially based on "an attenuated string of palpably unreasonable speculations" by plaintiff's "expert," George Greene. Brief of Defendants/Appellants 23, 34.

Defendants say that Greene testified about a machine that he knew virtually nothing about, as shown by his failing to know that there were no bottom rollers on the machine; that he never bothered to investigate whether other manufacturers may have produced replacement parts for the ironer; that he admitted that the parts manual used by the laundry for ordering parts for the machine did not include any electric shut-off switch parts; and that the assumption that the replacement parts which injured plaintiff were manufactured by defendants was contradicted by overwhelming evidence in the record. 3 Defendants accordingly argue that plaintiff's evidence relating to product alterations by defendants was insufficient to raise an issue of fact for a jury. They say that the trial court's statement acknowledging the "overwhelming" evidence of modifications to the machine corroborates their argument.

In this diversity action, the required strength of the evidence to warrant a judgment n.o.v. is governed by federal law. Yazzie v. Sullivent, 561 F.2d 183, 188 (10th Cir.1977). The standard for determining whether to grant a motion for a judgment n.o.v., as for a directed verdict, is

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not whether there is literally no evidence to support the party opposing the motion, but whether there is evidence upon which the jury could properly find a verdict for that party. Hurd v. American Hoist & Derrick Co., 734 F.2d 495, 498-99 (10th Cir.1984). The court may not weigh the evidence, pass on the credibility of witnesses, or substitute its judgment for that of the jury. Yazzie v. Sullivent, 561 F.2d at 188. Rather, it must view the evidence most favorably to the party against whom the motion is made and give that party the benefit of all reasonable inferences from the evidence. Id. On appeal, we employ the same standard of review as does the trial court. Joyce v. Atlantic Richfield Co., 651 F.2d 676, 680 (10th Cir.1981).

Although the sufficiency of the evidence is tested against the federal standard, the underlying cause of action in a diversity case is governed by state law. Peterson v. Hager, 724 F.2d 851, 854 (10th Cir.1984) (opinion on rehearing). Under Oklahoma law a plaintiff suing on a theory of manufacturers' products liability must prove (1) that the product was the cause of the...

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