975 F.2d 48 (2nd Cir. 1992), 1132, Lavoie v. Pacific Press & Shear Co., a Div. of Canron Corp.

Docket Nº:1132, Docket 91-7774.
Citation:975 F.2d 48
Party Name:Kathy L. LAVOIE, formerly known as Kathy L. LaBelle, Plaintiff-Appellee, v. PACIFIC PRESS & SHEAR COMPANY, A DIVISION OF CANRON CORP., and Canron Corp., Defendants-Appellants.
Case Date:September 10, 1992
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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975 F.2d 48 (2nd Cir. 1992)

Kathy L. LAVOIE, formerly known as Kathy L. LaBelle,




and Canron Corp., Defendants-Appellants.

No. 1132, Docket 91-7774.

United States Court of Appeals, Second Circuit

September 10, 1992

Argued March 27, 1992.

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[Copyrighted Material Omitted]

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Frederick S. Lane, III, Burlington, Vt. (Robert H. Erdmann, Dinse, Erdmann & Clapp, of counsel), for defendants-appellants.

Robert G. Cain, Burlington, Vt. (Christopher J. McVeigh, Paul, Frank & Collins, Inc., of counsel), for plaintiff-appellee.

Before: NEWMAN and CARDAMONE, Circuit Judges, and SAND, District Judge. [*]

CARDAMONE, Circuit Judge:

This appeal presents a question of waiver. After a young industrial worker suffered a severe injury caused by the equipment she was operating, she sued and obtained a substantial verdict at the hands of a jury. The equipment maker asserts for the first time on appeal that written questions and a verdict form submitted by the trial judge and responded to by the jury resulted in an inconsistency that entitles it to a new trial. Because defendant had ample opportunity--as well as notice of the possible inconsistency to which it presently objects--throughout the entire trial proceedings from pre-trial conference to judgment, yet failed to speak, it must now be ruled that it should hold its peace.

Defendants Pacific Press & Shear Company (Pacific) and Canron Corp., its corporate parent (collectively Pacific or defendant), appeal from a judgment of the United States District Court for the District of Vermont (Coffrin, J.) entered following a jury verdict finding defendants liable for negligently injuring plaintiff Kathy Lavoie during her course of employment with the General Electric Company (GE). While operating a hydraulic brake press used for sheet metal forming, plaintiff's left hand was crushed, resulting in the loss or partial loss of three fingers and the loss of use of a fourth finger. The jury found in response to written questions submitted by the court that Pacific was not strictly liable and had not breached a warranty of merchantability or a warranty of fitness for a particular purpose. But in answering the same submitted questions, it did find Pacific negligent and held it liable for 85 percent of plaintiff's injuries. The jury awarded her $412,250 in damages. Insisting the answers to the interrogatories are irreconcilably inconsistent and that the verdict is not supported by the evidence, Pacific brings the present appeal seeking a new trial. We affirm.


On February 13, 1985, Kathy LaBelle Lavoie, an employee of GE in Burlington, Vermont, was assigned to operate a hydraulic press brake that was designed, manufactured, and sold by Pacific Press, a division of Canron Corporation. She had recently finished GE's two year apprentice program and had become a full-time hourly machine operator in the company's sheet metal fabrication facility, though with only 25 hours experience operating defendant's press brake.

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The events surrounding the accident are not fully known because there were no witnesses and Lavoie experienced traumatic amnesia as a result of her injuries. Coemployees who observed Lavoie operating the press brake stated she was operating the machine carefully and in a normal fashion prior to the accident. They said they heard her suddenly scream and found her collapsed at the machine with her left hand crushed between its "jaws". After she was released from the machine and was waiting for medical attention, Lavoie told them she had "tripped and kicked it," probably meaning she had accidently triggered the foot pedal, the sole means of activating the press brake. The location of injuries on Lavoie's hand indicated she might have tripped and caught it in the tooling area of the machine as she attempted to break her fall. The manager of safety at the GE plant tested the machine immediately after the accident and found it functioning properly. Lavoie, who was 21 years of age at the time, incurred medical and hospital expenses in the amount of $34,745.28 and lost $36,724.95 in wages. She has since resumed her employment with GE in a salaried manufacturing position in the materials purchasing department.

Pacific sold the model J110-8 hydraulic press brake to GE in 1972. It is capable of exerting up to 110 tons of compressive pressure in its tooling area, and is designed to accept a variety of tool and die shapes, permitting it to form an almost infinite number of different shapes of metal. Allegedly because Pacific could not predict what applications GE sought for its machine, it was delivered without safety equipment. The press brake was actuated solely by a foot pedal whose entry port had no guard. Its unguarded entry port permitted the machinery to be accidentally started by the inadvertent entry of foreign objects or by an operator's foot. And, because the foot pedal was attached to the machine by a long, flexible cable, it could be positioned adjacent to the machine as well as at a distance far from it.

GE was not an expert in equipping press brakes with safety devices, and had little experience in retrofitting such machines. In 1983 it added three safety devices to the press brake, two of which were not favored or used by employees because they were either inadequate or hazardous themselves. The third was a "light curtain", a device that could sense a foreign object--such as a person's hand or arm--within the tooling area and would stop the machine. The light curtain GE installed was not integrated with the press brake's power supply, a condition that permitted operation of the machine without the use of the safety device. After the accident, this safety device was found to be functioning properly but apparently was not in operation at the time of the accident.

Plaintiff presented evidence at trial showing that, even without knowing the particular uses a customer planned for Pacific's press brake, it was economically and technologically feasible for defendant at the time of the sale to equip the machine with numerous safety devices recognized in the industry, ones that were provided by other manufacturers on similar machines. For example, Pacific's press lacked an operator handle bar designed to help the operator maintain her balance; it had no emergency stop switch; and its foot control pedal design did not include a device to prevent accidental activation by the operator. In each case, plaintiff's proof showed the safety devices had been identified in the industry as recommended minimum safety standards in its American National Standard Safety Requirements.

Lavoie also claimed two other safety devices were economically and technologically feasible and did not depend on the particular use a customer planned for the press brake. Dual hand controls were recognized in the industry as effective means for activating the machine while preventing an operator's hands from entering the tooling area during the machine's cycle. An "interlocked" light curtain also could have been included with the machine. An interlocked light curtain is one that is electrically integrated with the press brake itself; as such, the machine cannot operate when the light curtain is turned off.

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Lavoie offered considerably more evidence, including the fact that despite Pacific's statements to the contrary, the press had no safety devices and did not comply with OSHA regulations. Further evidence relating to the post-sale duty to warn issue was presented reflecting that defendant was aware of at least 33 similar accidents involving severe injuries to the hands of operators using its hydraulic press brake, 22 of which resulted in litigation, and all of which occurred prior to Lavoie's accident. Despite this knowledge, Pacific never contacted GE to warn it of the dangers its machine posed, to inquire into the adequacy of GE's selection of retrofitted safety devices, or to advise GE of the availability of improved safety devices meeting industry standards and the functional limitations of other safety devices considered inadequate by the industry.

Plaintiff filed suit in the District of Vermont in February 1989 alleging defendants were liable in strict liability for selling a product that was unreasonably dangerous, for breach of implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose, and for negligence. A trial on the merits was held from May 14-25, 1991. At the conclusion of the trial, following a precharge conference, the jury was instructed on the law pertaining to these four alternative theories of liability. The trial court instructed the jury specifically on the theory of negligence as separate and independent from the strict liability and the two warranty theories. No objection was made by defendant at the charging conference or during the charge itself regarding any inconsistency between the different theories of liability, nor did defendant interpose an objection respecting the submission of separate interrogatories and separate general verdict forms to the jury pertaining to each theory.

Although the jury found Pacific not liable for breach of either warranty or on grounds of strict liability, it found both plaintiff and defendant negligent and assigned 85 percent of the liability, or $412,250 in damages, against defendant. Subsequent to the verdict, the jurors were individually polled, and a bench conference was held with counsel. Again, inconsistency of the verdicts was not raised on any of these occasions.

After the jury was discharged and before the judgment was entered, defendant moved on May 30, 1991 for judgment notwithstanding the verdict or, in the alternative, for a new trial. Pacific declared that insufficient evidence supported the jury's...

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