Toth v. Yoder Co.

• Decision Date: 06 December 1984
• Docket Number: No. 82-1280,82-1280
• Citation: 749 F.2d 1190
• Parties: Albert TOTH, et al., Plaintiff-Appellant, v. The YODER COMPANY, a foreign corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1190

749 F.2d 1190

Albert TOTH, et al., Plaintiff-Appellant, v. The YODER COMPANY, a foreign corporation, Defendant-Appellee.

No. 82-1280.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 30, 1983.

Decided Dec. 6, 1984.

Larry A. Smith (argued), Lakin, Worsham & Victor, Southfield, Mich., for plaintiff-appellant.

Timothy D. Wittlinger, Hill, Lewis, Adams, Goodrich & Tait, Richard Sanders (argued), Detroit, Mich., for defendant-appellee.

Before LIVELY, Chief Judge, KRUPANSKY, Circuit Judge, and FAIRCHILD, Senior Circuit Judge. ^*

FAIRCHILD, Senior Circuit Judge.

Plaintiff appeals from a judgment for defendant, entered notwithstanding the verdict in plaintiff's favor. In ordering judgment, the district court stated that if wrong in so doing, the court would grant a new trial on the ground that the verdict is against the great weight of the evidence. We reverse and remand for entry of judgment on the verdict. ¹

The plaintiff, Albert Toth, was injured while operating a cold roll-forming machine manufactured by the defendant Yoder Company and owned by his employer, Modern Materials Corporation. A cold roll-forming machine is equipped with many passes, each pass consisting of an upper and lower shaft, having a set of rolls and spacers of differing sizes, mounted on each shaft. A flat strip of metal, usually from a metal coil, is fed through the machine from pass to pass gradually being formed into the required shape by the opposing rolls. A "nip point" exists where two rolls come together and perform work on the metal strip. The Yoder cold roll-forming machine had twelve passes when Modern Materials first received it from Yoder in 1958 and two more were added later. A clutch bar ran the length of the machine along the front, perpendicular to the shafts, which was pushed toward its right end to engage the clutch and toward its left end to disengage it. The machine could be "jogged" by use of the clutch bar, slipping the clutch to thread the metal gradually through the machine at the beginning of an operation. The machine as delivered was equipped with an on/off switch located at the operator's stand at the entry end of the machine.

Modern Materials made a number of alterations to the Yoder machine between 1958 when it was delivered and 1977 when Mr. Toth was injured. The machine was rewired to provide two toggle type on/off switches at each end of the machine. The main motor drive for the machine was changed from 15 to 30 horsepower. Four "jog buttons" were added along the front of the machine to thread the metal strip through the machine when commencing a run. An air cylinder was attached to the clutch bar so that it operated mechanically rather than manually. Finally, a cord, running the full length of the machine, was added. It could be pulled by hand to shut off the electric motor in an emergency.

On July 11, 1977 plaintiff was advised by an inspector that there was a crease in the aluminum coming out of the machine. Plaintiff cut the strip of aluminum sheet metal, ran out the material then in the machine, shut the machine off, apparently using one of the added toggle switches, and began taking the rolls in the appropriate pass apart to realign a spacer. Mr. Toth was positioned near the end of the pass, and had been taking the rolls off the last pass, putting a spacer on, and had the pass almost back together with the rolls in place, when the machine unexpectedly began to turn the rolls. The plaintiff's hand was drawn into the nip point between the rolls and badly crushed. While the plaintiff was uncertain of what started the machine, it appears that he brushed against one of the jog buttons along the front of the machine, causing the rolls to turn. There were no guards furnished with the machine to prevent the operator or other person from having access to the roll nip points.

The plaintiff alleged that his injury was proximately caused by a design defect of the machine, the absence of guards for the roll nip points. The defendant alleged that the machine as designed and delivered to Modern Materials would not have produced such an accident. As originally designed, an operator could only stop the rolls from turning, so as to dissassemble and realign a pass, by following one of three procedures. First, the operator could turn the main power switch to the off position, shutting off all power to the roll-former. Second, the operator could turn the motor off at the on/off switch located at the operator's stand. Third, the operator could disengage the clutch by using both his hands. Any of these procedures would have prevented the rolls from turning until he or someone else turned the power or motor on, or engaged the clutch. The defendant argued that the accident could only occur as it did because of modifications made by the plaintiff's employer, specifically the on/off toggle switches and the jog buttons, which caused the rolls to turn. The jury returned a special verdict finding that defendant was negligent, that the negligence was a proximate cause of plaintiff's injury, that plaintiff was not guilty of contributory negligence, and that plaintiff's damages amounted to $300,000.

The district court, however, granted defendant's motion for judgment n.o.v., holding that:

[T]he machine that caused the injury to the plaintiff was substantially different than the machine that was manufactured by the defendant. It had been modified in many ways. If the machine had not been modified, the accident could not have happened. When this is the case, the manufacturer of the machine is not liable.... In this case, the records show that the machine as it was manufactured and delivered would not have caused the injury regardless of the claims made by the plaintiff as to the manufacturer's wrongdoing. Thus it seems to the court that the motion for directed verdict should have been granted and that a motion for judgment notwithstanding the verdict should be granted. If the court is wrong in this matter, the court would grant a motion for new trial on the ground that the verdict is against the great weight of the evidence.

(January 20, 1982 Order of the Court, pp 2-3).

The plaintiff contends that the trial court's reasoning erroneously implied that the plaintiff must show that the defect in defendant's machine was the sole proximate cause of the injury rather than showing that the defect was a proximate cause, and further contends that modifications made by plaintiff's employer were not superseding causes of the injury. The defendant contends that judgment n.o.v. was proper because liability may attach to the manufacturer only when the defective product reaches the user or consumer without substantial change in the condition in which it is sold. The defendant argues that when a third party's alterations or modifications of the product cause the injury, the original manufacturer is not liable.

The defendant essentially argues the substantial change standard of Sec. 402A(b) of Restatement (Second) of Torts, which imposes strict liability only where the defective product reaches "the user or consumer without substantial change in the condition in which it is sold." The language chosen by the district court may reflect the same view. It seems likely that if this standard did apply, the modifications made to the machine by the plaintiff's employer would be substantial enough to preclude liability on the part of the manufacturer. However, in Michigan only two theories of recovery are recognized in products liability cases, negligence and implied warranty, not strict liability. Hartford Fire Insurance v. Walter Kidde & Co., 120 Mich.App. 283, 328 N.W.2d 29 (1982); Johnson v. Chrysler Corporation, 74 Mich.App. 532, 254 N.W.2d 569 (1977). Thus the provisions of the Restatement pertaining to strict liability do not appear to apply.

In Michigan, negligent design falls under both a negligence theory and an implied warranty theory of liability because a manufacturer has a duty to produce a reasonably fit product under either concept. Hartford Fire Insurance Co. v. Walter Kidde & Co., 328 N.W.2d at 33; Elsasser v. American Motors Corp., 81 Mich.App. 379, 385, 265 N.W.2d 339 (1978). Under a negligence theory, the plaintiff must establish the traditional common-law elements of duty, breach, damage and causation. (Citation omitted.) To establish breach of implied warranty, the plaintiff must show that a defect in the product, attributable to the manufacturer, caused his injuries.

Abel v. Eli Lilly & Co., 94 Mich.App. 59, 70, 289 N.W.2d 20, 23-24 (1979), modified and affirmed, 418 Mich. 311, 343 N.W.2d 164 (1984). The Court of Appeals of Michigan has stated that a manufacturer's liability is predicated upon whether he has failed to protect against a risk that is unreasonable and foreseeable by the manufacturer. Hartford Fire Insurance v. Walter Kidde & Co., 328 N.W.2d at 33.

In reviewing the grant of a judgment n.o.v., this circuit has long held that the state law standard controls in a diversity case. See Gold v. National Savings Bank of City of Albany, 641 F.2d 430, 434 (6th Cir.1981); Warkentien v. Vondracek, 633 F.2d 1 (6th Cir.1980); Garrison v. Jervis B. Webb Co., 583 F.2d 258 (6th Cir.1978). ² In Michigan, the rule of law with respect to appellate review of judgments n.o.v. appears to be identical to the federal standard, which is referred to as the "reasonable minds" test. Under this standard, a judgment n.o.v. may not be granted unless reasonable minds could not differ as to the conclusions to be drawn from the evidence. Gillham v. Admiral Corporation, 523 F.2d 102, 109 (6th Cir.1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1113, 47 L.Ed.2d 318 (1976). The issue raised by a motion for a judgment n.o.v. is whether there is sufficient evidence to raise a question of fact for the jury. This determination is one of law to be made by the trial court in the first instance. In determining whether the evidence is...