Venturelli v. Cincinnati, Inc.

• Citation: 850 F.2d 825
• Decision Date: 11 March 1988
• Docket Number: No. 87-1609,87-1609
• Parties: 26 Fed. R. Evid. Serv. 406, Prod.Liab.Rep.(CCH)P 11,845 Davy VENTURELLI, Plaintiff, Appellee, v. CINCINNATI, INCORPORATED, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 825

850 F.2d 825

26 Fed. R. Evid. Serv. 406, Prod.Liab.Rep.(CCH)P 11,845

Davy VENTURELLI, Plaintiff, Appellee, v. CINCINNATI, INCORPORATED, Defendant, Appellant.

No. 87-1609.

United States Court of Appeals First Circuit.

Heard March 11, 1988.

Decided June 29, 1988.

Rehearing En Banc Denied Aug. 5, 1988.

Thomas D. Burns with whom Christopher A. Duggan and Burns & Levinson, Boston, Mass., were on brief, for defendant, appellant.

William J. Griset, Jr., with whom Arthur P. Skarmeas, and Latti Associates, Boston, Mass., were on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, COFFIN and BREYER, Circuit Judges.

BREYER, Circuit Judge.

The plaintiff in this diversity case, Davy Venturelli, crushed the tip of his left index finger in a "plate-shearing" machine, a machine that cuts strips from large metal plates. He sued the machine's manufacturer, Cincinnati, Inc., claiming that Cincinnati designed the machine negligently and (in 1947) sold the "defective" machine in breach of its warranty of merchantability. The jury rejected Venturelli's negligence claim, but accepted his breach of warranty claim. It awarded him $85,000. Cincinnati appeals from this judgment, basically arguing that the evidence does not support the verdict. We affirm the district court.

I

To understand this appeal, one must first understand how the shearing machine works. The machine cuts sheets of metal, usually steel plates up to 1/2-inch thick (but it can cut other metals of other thicknesses, such as 1-inch thick brass or copper plates). In relevant part, the machine consists of a waist-high cutting platform about 10 feet wide along which the operator pushes the metal plate. At the far end there are blades running the width of the machine. A set of 11 "hold-down" metal cylinders approximately 3 inches in diameter, called "dogs," also runs the width of the machine just in front of the blades, and just in front of the "dogs" there is a kind of metal curtain consisting of 11 "tear-drops," each 2 inches wide. As the operator pushes the steel sheet along the cutting board, the far end of the sheet enters the space (at least 1 1/16-inch wide) between the bottom of the metal "tear-drop" curtain and the top of the cutting board. The sheet passes under the metal "dogs" and in between the blades, coming to rest against the back barrier, which can be adjusted, depending upon the size of the metal piece one wishes to cut. The operator pushes a foot pedal, the 11 "dogs" descend, clamping the steel sheet firmly to the cutting board, and the blades, something like a giant scissors, cut the metal sheet. After removing the back piece of cut metal, the operator can then push the remaining steel plate further into the machine, ready to take the next slice. We have drawn our own rough diagrams to help make clear how we understand the machine to work. See Appendices A, B, infra.

The accident in question took place on October 13, 1981. Venturelli, while pushing a sheet of metal into the gap, put his finger under one of the "dogs." He failed to remove it. He pushed the foot pedal. The "dogs" descended and crushed his finger.

The trial, in large part, consisted of a disagreement among experts about whether Cincinnati made the machine sufficiently safe. Plaintiff's expert said that Cincinnati could, and should, have added such safety devices as (1) an adjustable barrier that would have kept the operator's hands out of the dangerous clamping/cutting "point of operation" area, (2) warning signs or different colored paint which would have alerted the operator more explicitly when he was in danger, or (3) other devices such as "wristlets" that would have physically restrained the operator's hands. Defendant's experts said that Cincinnati had done all that one could have reasonably expected a manufacturer to do, at least in 1947, the date of the machine's manufacture.

The district court asked the jury to provide its verdict in the form of answers to special questions. The questions and answers were as follows:

1. Was defendant's design improper in that there was a likelihood that an experienced worker would be injured?

Answer: Yes

2. Did defendant, as of 1947, fail to exercise reasonable care in attempting reasonably to avoid dangers and anticipate foreseeable risks?

Answer: No

3. Did plaintiff, knowing of a danger, use the machine in a way he knew to be unreasonable?

Answer: No

4. If you answer question No. 3 No, Did plaintiff fail to exercise the degree of care that should be expected of a prudent experienced worker?

Answer: Yes

5. Was plaintiff's injury due, in whole or in part, to lack of adequate indication of the danger by the defendant?

Answer: Yes

6. If, in your answers to the above questions you have found fault by both parties, (Yes to No. 2 and/or No. 5, means fault by defendant. Yes to No. 3 and/or No. 4, means fault by plaintiff), state the proportions of fault.

Plaintiff 50%

Defendant 50%

100%

7. Did defendant take reasonably sufficient steps in attempting to persuade General Ship [plaintiff's employer] to bring the machines safety equipment up to current requirements?

Answer: No

8. If you answer questions No. 1, 2 and 5, or any of them, Yes, What were plaintiff's damages?

Answer: $85,000

The court and parties treated Question 1 as encompassing the issue of warranty liability and Question 2, negligence liability. Since the jury answered Question 2 "no," and since "contributory" or "comparative" negligence does not affect "warranty liability" damages in Massachusetts, Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 353-57, 446 N.E.2d 1033 (1983), the court awarded Venturelli $85,000. The defendant now appeals.

II

We shall deal with each of Cincinnati's claims on this appeal in turn.

1. Appellant first argues that, given the evidence, a reasonable juror could not find a breach of the seller's warranty of merchantability under Massachusetts law. The Massachusetts Supreme Judicial Court has stated the basic standard, which we quote in full:

A warranty of merchantability that goods "are fit for the ordinary purposes for which such goods are used" is implied in a contract for their sale. G.L. c. 106, Sec. 2-314(2)(c) (1984 ed.). The implied warranty of fitness includes uses which are reasonably foreseeable but does not include unforeseeable misuses of a product. Back v. Wickes Corp., supra, 375 Mass. at 640, 378 N.E.2d 964 [1978]. "[A] manufacturer must anticipate the environment in which its product will be used, and it must design against the reasonably foreseeable risks attending the product's use in that setting." Id. at 640-41, 378 N.E.2d 964. Thus, to prove his case a plaintiff asserting a personal injury claim based on a Allen v. Chance Manufacturing Co., Inc., 398 Mass. 32, 33-34, 494 N.E.2d 1324 (1986). Although the matter was strongly contested, we believe a reasonable juror could have found that the plaintiff met this burden of proof. The plaintiff (as the jury found) negligently placed his finger under the "dog." But one might believe that workmen are frequently careless and that a manufacturer should design its machine with that fact in mind. Id. (citing Back v. Wickes Corp., 375 Mass. 633, 640-41, 378 N.E.2d 964 (1978)); DeMedeiros v. Koehring Co., 709 F.2d 734, 738-39 (1st Cir.1983) (under Massachusetts law, worker's "instinctive reactions, momentary inadvertence, or forgetfulness" are part of environment manufacturer must anticipate in the design of industrial machinery); see also Uloth v. City Tank Corp., 376 Mass. 874, 384 N.E.2d 1188 (1978). The defendant pointed out that few, if any, similar machines in 1947 had barriers to keep out fingers, painted "danger areas" in different colors to provide a visual warning, or the like; hence, it says, the Cincinnati plate-shear, which lacked these safety devices, was "merchantable." But plaintiff's expert, using memory and technical books, claimed that better barriers were then technologically and economically feasible, and that a barrier, perhaps leaving a 5/8-inch rather than a 1 1/16-inch gap (but adjustable upwards to permit cutting, say, 1-inch brass or a 1/2-inch "wavy" steel plate) could have better kept out fingers.

breach of an implied warranty of merchantability must prove that at the time of his injury he was using the product in a manner that the defendant seller, manufacturer, or distributor reasonably could have foreseen. See Correia v. Firestone Tire & Rubber Co., supra, 388 Mass. at 357 n. 15, 446 N.E.2d 1033.

Appellant adds that, even if plaintiff met the burden imposed by present law, the law in 1947 was different; and, plaintiff failed to meet the burdens imposed by the law then. The language of the law, however, has not changed radically since 1958. Compare Allen, 398 Mass. at 33-34, 494 N.E.2d 1324, with McCabe v. Liggett Drug Co., Inc., 330 Mass. 177, 181, 112 N.E.2d 254 (1953) ("If the coffee maker was so imperfect in design that it could not be used without the likelihood of an explosion it could be found that the appliance was not reasonably fit for making coffee and therefore not merchantable.") (citations omitted). And, even though the way courts apply that language to the facts may have changed, courts typically apply newer understandings of "old" legal standards to "old" sets of facts. That is to say, they normally treat law as "found," not "made." E.g., Simpson v. Union Oil Co., 396 U.S. 13, 14, 90 S.Ct. 30, 31, 24 L.Ed.2d 13 (1969) (per curiam) ("Formulation of a rule of law in an Article III case or controversy which is prospective as to the parties involved in the immediate litigation would be most unusual, especially where the rule announced was not innovative."); City of Chelsea v. Richard T. Green Co., 318 Mass. 85, 87, 60 N.E.2d 351 (1945) ("The Barry case [re-interpreting tax code] did not change the law. It merely decided what had been the law all of the time, even during the period when the Cable case ...