782 F.2d 585 (6th Cir. 1986), 84-3874, Briney v. Sears, Roebuck & Co.

Docket Nº:84-3874.
Citation:782 F.2d 585
Party Name:Peter R. BRINEY, et al., Plaintiffs-Appellants, v. SEARS, ROEBUCK & COMPANY, et al., Defendants-Appellees.
Case Date:January 28, 1986
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 585

782 F.2d 585 (6th Cir. 1986)

Peter R. BRINEY, et al., Plaintiffs-Appellants,

v.

SEARS, ROEBUCK & COMPANY, et al., Defendants-Appellees.

No. 84-3874.

United States Court of Appeals, Sixth Circuit

January 28, 1986

Argued Nov. 13, 1985.

Page 586

Lee E. Plakas (argued), Tzangas, Plakas & Mannos, Canton, Ohio, for plaintiffs-appellants.

George J. Moscarino, Peter A. Carfagna, Jones, Day, Reavis & Pogue, Cleveland, Ohio, Paul G. Crist (argued), for defendants-appellees.

Before MARTIN, CONTIE and WELLFORD, Circuit Judges.

CONTIE, Circuit Judge.

Plaintiffs Peter and Carolyn Briney, in this products liability action, appeal from the district court's order granting defendants' motions for directed verdict on two design defect claims and from the jury's adverse judgment on the remaining failure to warn and instruct claim, asserting various flaws in the jury instructions. For the reasons set forth below, we reverse in part and affirm in part.

I.

In 1977 Peter Briney purchased a Sears Craftsman 10-inch electric table saw which was manufactured by Emerson Electric Company (Emerson) and marketed by Sears, Roebuck & Company (Sears). The table saw was accompanied by an Owner's Manual which contained assembly, operation, repair and general safety instructions. Briney testified that he assembled the saw according to the Manual's directions and had referred to the Manual on other occasions.

On November 23, 1980, Briney was using the table saw to make a combination mailbox and planter. In order to complete this project, Briney determined that it would be necessary to make a relatively complex cut known as a compound mitre cut. A compound mitre cut is a combination of a bevel cut and a mitre cut. This means that the saw blade is tilted at an angle other than being perpendicular to the table--the blade is therefore beveled--, and that the workpiece itself is pushed toward the blade at an angle other than 90 degrees, which is a mitre cut. Although the Owner's Manual contains illustrations of a bevel cut and a mitre cut, it does not contain one for a compound mitre cut. The instructions state that for a bevel cut, the workpiece should be pushed toward the blade from the right side of the blade. 1 The mitre cut illustration has the workpiece on the left side of the blade. The only description of a compound mitre cut is the definition which states that it is a combination of a mitre and a bevel cut.

To complete this compound mitre cut, Briney decided to work on the left-hand side of the blade. He discovered that when he pushed the wood close to the blade, the blade guard "interfered" with--came into contact with--the rotating blade, damaging the guard and preventing him from completing this cut. Briney then removed the entire blade guard assembly. 2 After removing the guard assembly, Briney completed one cut without incident. On the next cut, however, which was either a straight bevel cut or a compound mitre cut, 3 the workpiece and Briney's left hand

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were pulled into the blade and he sustained serious injuries.

Peter and his wife Carolyn filed a suit against Emerson and Sears for personal injuries and loss of consortium in the United States District Court for the Northern District of Ohio pursuant to diversity jurisdiction. Design defect claims were based on both strict liability and negligence theories. The remaining claim was based on a theory of failure to warn and failure to instruct. The case was tried before a jury, but after hearing all the evidence the district court granted both Sears' and Emerson's motions for directed verdict with respect to the design defect claims, as well as Sears' motion for directed verdict on the negligent failure to warn and instruct claim. On the remaining claim against Emerson, the jury returned a verdict against the Brineys.

The appellants argue that the district court erred in directing a verdict against them on the design defect claims. They also contend that the jury verdict must be set aside because of various jury instruction errors.

II.

When exercising diversity jurisdiction, a federal district court must apply the forum state's standard for directed verdict since the federal rule governing directed verdicts, Fed.R.Civ.P. 50(a), does not specify a standard for granting or denying such a motion. Arms v. State Farm Fire & Casualty Co., 731 F.2d 1245, 1248 (6th Cir.1984). Appellate courts apply the same standard when reviewing a lower court's grant of a directed verdict motion. Hersch v. United States, 719 F.2d 873, 877 (6th Cir.1983).

In Ohio, the civil rule governing the standard for granting a directed verdict motion states in full:

When a motion for a directed verdict has been properly made, and the trial court, after construing the evidence most strongly in favor of the party against whom the motion is directed, finds that upon any determinative issue reasonable minds could come to but one conclusion upon the evidence submitted and that conclusion is adverse to such party, the court shall sustain the motion and direct a verdict for the moving party as to that issue.

Ohio R.Civ.P. 50(A)(4) (emphasis added). In determining whether reasonable minds can reach but one conclusion, the court cannot "consider the weight of the evidence nor the credibility of the witnesses in disposing of a directed verdict motion." Strother v. Hutchinson, 67 Ohio St.2d 282, 284, 423 N.E.2d 467 (1981) (per curiam). In order to avoid an adverse directed verdict ruling, a plaintiff must have produced evidence which supports "every element essential to establish liability, or produce evidence of a fact upon which a resonable inference may be predicated to support such element." Id. at 285, 423 N.E.2d 467.

Therefore, this court must determine, when viewing the evidence in the light most favorable to the appellants, whether they presented some evidence on every element of a negligent design claim and strict liability in design claim or whether reasonable minds could reach only the opposite conclusion.

A.

A defective design claim premised on a negligence theory has three basic elements: (1) duty to design against reasonably foreseeable hazards; (2) breach of that duty; and (3) injury, which was proximately caused by the breach. Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). A product need not be "accident or foolproof, but safe for the use for which it was intended." Gossett v. Chrysler Corp., 359 F.2d 84, 87 (6th Cir.1966). See also Temple v. Wean United, Inc., 50 Ohio St.2d 317, 326, 364 N.E.2d 267 (1977); Sours v. General Motors Corp., 717 F.2d 1511, 1517 (6th

Page 588

Cir.1983). In the instant case, it is necessary to determine whether the plaintiffs produced evidence that Peter Briney was injured as a result of Emerson's failure to design against a reasonably foreseeable hazard. The test for determining whether a particular hazard is foreseeable, is "whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act." Menifee, 15 Ohio St.3d at 77, 364 N.E.2d 267.

Appellants' key witness was Simon Tamny, a mechanical engineer. Mr. Tamny had examined the table saw's design and was asked to opine as to the causes of Peter Briney's accident and how it might have been prevented through design changes. Tamny testified that it was reasonably foreseeable that (1) an owner of this table saw would attempt a compound mitre cut from the left-hand side of the blade, and (2) an owner would remove the blade guard after discovering that, because of interference between the guard and the saw blade, he could not complete a cut which the machine was designed to accomplish. Tamny testified further that he had developed a modification for the blade guard that would have prevented the guard from being pushed into the blade. He also opined that had a hold-down clamp, which is an optional device, been used or if the mitre gauge had been designed so that it could not be used in the left channel when the saw was beveled, Briney's injuries could have been avoided.

Tamny was of the opinion that the instructions provided in the Manual did not adequately describe how a compound mitre cut should be performed. He also testified, however, that the adequacy of the instructions did not necessarily affect one's determination as to whether a particular design was defective since an Owner's Manual can always be lost. Therefore, he testified that one must judge the table saw's defective character by its design and not its instructions.

Tamny opined further that the blade guard design violated Section 6.1.2.4 of the American National Safety Institute's (ANSI) Safety Requirements for Woodworking Machinery, which provides:

The hood shall be so mounted as to insure that its operation will be positive, reliable, and in true alignment with the saw; and the mounting shall be adequate in strength to resist any reasonable side thrust or other force tending to throw it out of line.

Tamny testified that the blade guard did not properly maintain its alignment when there was a reasonable side thrust. Appellants assert that Tamny's opinion is further evidence of negligent design of the blade guard. 4

The district court reasoned that a directed verdict was appropriate because the blade guard design did not constitute a defect, and did not proximately cause Briney's injuries. The district court relied on Tamny's testimony that the blade guard design technically constituted a "flaw" rather than a "defect" because the interference itself does not cause injury. He went on to say, however:

The fact that the guard crowds into the blade in the picky use of the language is called a flaw. I mean it doesn't work...

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