Alderman v. Wysong & Miles Co.

• Citation: 486 So.2d 673,11 Fla. L. Weekly 865
• Decision Date: 10 April 1986
• Docket Number: No. BD-481,BD-481
• Parties: 11 Fla. L. Weekly 865 Sherry ALDERMAN, as Personal Representative of the Estate of James F. Alderman, Deceased, Appellant, v. WYSONG & MILES COMPANY, a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 673

486 So.2d 673

11 Fla. L. Weekly 865

Sherry ALDERMAN, as Personal Representative of the Estate of James F. Alderman, Deceased, Appellant, v. WYSONG & MILES COMPANY, a corporation, Appellee.

No. BD-481.

District Court of Appeal of Florida,

First District.

April 10, 1986.

Fred Tromberg, William C. Gentry and John A. Tucker of Bedell, Dittmar, DeVault, Pillans & Gentry, P.A., Jacksonville, for appellant.

James C. Rinaman, Jr. and Nicholas V. Pulignano, Jr. of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellee.

SMITH, Judge.

Appellant Sherry Alderman appeals from an adverse jury verdict in favor of appellee in this products liability action. She contends that the trial court erroneously failed to instruct the jury on the inapplicability of contributory negligence by failing to discover or guard against a defect as a defense to a strict liability action. Appellant also contends that the trial court erred in allowing appellee to introduce evidence of certain alleged industry-wide standards concerning safety and products design, and in sustaining appellee's objection to appellant's attempt to introduce evidence of subsequent remedial measures taken by appellee. Finding no reversible error, we affirm.

Appellant and her husband, James F. Alderman, who died prior to trial, filed an amended complaint alleging that James Alderman (hereinafter decedent) sustained serious, eventually fatal, internal injuries as the result of being crushed underneath a machine press brake manufactured by appellee Wysong & Miles Company (Wysong). The complaint sought recovery based upon theories of negligence, strict liability, and breach of an implied warranty of merchantability. In support of the strict liability theory, appellant alleged that Wysong's press brake was defectively designed in that it had a tendency to overturn due to top-heaviness. ¹

On the date of the accident, January 21, 1983, decedent was employed by Johnson's Crane Service of Jacksonville, Florida as a "rigger," a job entailing the removal and installation of heavy industrial machines and equipment. As part of his duties decedent--along with two other riggers, Phil Harbison and Butch Carter--was assigned to install a Wysong Model 150 press brake at another Jacksonville company, Metal Fabricators. This press brake, approximately nine feet high, twelve feet wide, and weighing 26,000 pounds, was initially delivered to the Metal Fabricators shop building by flatbed truck. It was then lowered by crane onto movable dollies. Lacking roof clearance to move the press brake to its final destination by crane, the Johnson's rigging crew began to push the press brake by hand, utilizing "come-a-longs" and chains to pull the press brake inch-by-inch. The riggers were able to change the press brake's direction of movement only by raising it on industrial jacks, then repositioning the dollies. According to Harbison and Carter the Johnson's rigging crew, including decedent, was aware of the top-heavy nature of press brakes in general, including Wysong's Model 150 press brake. Therefore, they attempted to keep the press brake level at all times during its installation.

The accident involving decedent and the Wysong press brake occurred subsequent to the riggers' successful maneuvering of the press brake to its final resting place in the Metal Fabricators Building. At this point, the riggers raised the press brake with two industrial jacks, and began to remove the dollies underneath the machine so that it could be lowered onto metal plates, and later welded to the floor. The riggers then lowered two sets of "leveling bolts," located on the press brake's foot pads, one and a half to two inches, to allow the press brake to be lowered onto the floor, after which time the industrial jacks would be removed. Harbison lowered the front, top-heavy, end of the press brake onto its resting place, and removed his industrial jack. However, when Carter attempted to perform the same actions at the press brake's rear, it toppled over onto decedent.

According to an instruction manual which accompanied the Wysong press brake, the leveling bolts were to be lowered only where the machine was to be set down onto a concrete floor, at which time the leveling bolts would be screwed into the floor in order to provide additional stability while the press brake was operated. The instruction manual did not suggest lowering the leveling bolts when the press brake was to be lowered onto sheet metal and welded to the floor. Harbison and Carter both testified that neither they nor decedent had read the aforementioned instruction manual. Harbison explained that because of their awareness of both the top-heaviness of press brakes and the existence of numerous safe methods of moving such machines, riggers commonly did not read such instruction manuals.

Appellant sought to prove at trial that the Wysong Model 150 press brake was defectively designed in that its weight distribution between front and back rendered it unreasonably dangerous in all foreseeable uses due to its alleged tendency to tip over even when kept perfectly level. In support of this theory, appellant presented the testimony of Dr. Igor Paul, a professor of mechanical engineering at MIT. Dr. Paul testified that general engineering principles suggested that industrial machines be designed with a weight distribution, front to back, of no more than two to one, and a "stability ratio," described by Dr. Paul as the ratio between the height of a machine's center of gravity and the shortest distance of its base, of no more than three to one. Dr. Paul calculated that the Wysong Model 150 press brake had a weight distribution ratio of seven to one, based on his finding that the press brake's center of gravity was located thirteen inches from the front end of the machine. According to Dr. Paul, these characteristics of the Wysong press brake rendered it likely to topple over even when only slightly unbalanced; that being so, Dr. Paul opined, the press brake was unreasonably hazardous in all of its foreseeable uses. Dr. Paul suggested a number of feasible design alternatives which, he felt, would reduce this top-heaviness, including increasing the size of the machine's foot pads, moving the location of its leveling bolts forward, and providing explicit markings on the press brake to indicate proper jacking points. Finally, Dr. Paul suggested that the instruction manual accompanying the press brake should state more clearly the machine's instability.

In contradiction to Dr. Paul's testimony, Wysong produced the testimony of Joseph L. Schwalje and Chris Zeilenga. Schwalje, a consulting engineer and retired professor of engineering, testified that Wysong's Model 150 press brake was in compliance with applicable industrial standards concerning its stability and weight distribution, and thus was reasonably safe for all intended uses, including installation. Specifically, Schwalje calculated the press brake's weight distribution as two to one (two-thirds of the weight in front, one-third in back--"front" and "back" delineated by the machine's center of gravity), which Schwalje characterized as within the industry norm. He also testified that Wysong's instruction manual adequately described the safety hazards involved in installing the Wysong press brake since, according to Schwalje, installers of such machines were aware of the top-heaviness of press brakes. Accordingly, Schwalje testified, the Wysong press brake was not defectively designed, but met accepted industrial standards of construction and design.

Similar testimony was offered by Chris Zeilenga, a professional engineer employed by a competitor of Wysong in the press brake manufacturing industry. Zeilenga testified that Dr. Paul's term "stability ratio" was meaningless as a normative reference to a press brake's stability, but rather, was simply a statement of fact concerning the distances measured. Zeilenga further testified that, based on standards published by the American National Safety Institute (ANSI), it was the responsibility of persons who installed press brake to exercise due care in the installation of these machines, based upon their known instability. ² Therefore, Zeilenga opined, the Wysong press brake involved in this litigation was not defectively designed. Furthermore, according to Zeilenga, the instruction manual Wysong provided with its press brake also met ANSI, as well as industry, standards concerning the manual's warning of the press brake's top-heaviness.

The jury, in a special verdict form, answered in the negative the question: "Did defendant Wysong and Miles Company place the press brake on the market with a defect which was a legal cause of damage to plaintiff?" The jury likewise found no negligence on Wysong's part which was a legal cause of the accident. The jury was thus not required to (and accordingly did not) answer another question on the verdict form concerning the existence any negligence on decedent's part as a legal cause of the accident.

Appellant's principal point on appeal concerns the trial court's refusal to instruct the jury that the failure of decedent or his co-riggers to discover or guard against the possibility of the Wysong press brake's alleged design defect was not a legal defense to a strict liability claim. ³ Appellant asserts that the law as reflected by the requested instruction is well recognized in Florida, citing West v. Caterpillar Tractor Company, Inc., 336 So.2d 80, 90 (Fla.1976), and Cassisi v. Maytag Company, 396 So.2d 1140, 1152, n. 26 (Fla. 1st DCA 1981). Appellant argues that the trial court's denial of her requested jury instruction, or alternative request for a special verdict form requiring the jury to state whether or not they found such a failure of discovery to be the legal cause of appellant's damages, misled the jury into believing it could find that a design defect in the Wysong press brake was not the...