Bailey v. V & O Press Co., Inc.

• Citation: 770 F.2d 601
• Decision Date: 16 August 1985
• Docket Number: No. 84-3001,84-3001
• Parties: 19 Fed. R. Evid. Serv. 109, Prod.Liab.Rep.(CCH)P 10,638 George BAILEY, Plaintiff-Appellant, v. V & O PRESS COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 601

770 F.2d 601

19 Fed. R. Evid. Serv. 109, Prod.Liab.Rep.(CCH)P 10,638

George BAILEY, Plaintiff-Appellant, v. V & O PRESS COMPANY, INC., Defendant-Appellee.

No. 84-3001.

United States Court of Appeals Sixth Circuit.

Decided Aug. 16, 1985.

Argued March 5, 1985.

Alan I. Goodman (argued), Cleveland, Ohio, Edward Swartz, Swartz & Swartz, Boston, Mass., for plaintiff-appellant.

James F. Sweeney, Michael R. Gallagher, George W. Lutjen (argued), Davis & Young, John M. Cronquist, Cronquist, Smith, Marshall & Kagel, Andrew P. Buckner, Weston, Hurd, Fallon, Paisley & Howley, Cleveland, Ohio, for defendant-appellee.

Before MERRITT and KENNEDY, Circuit Judges, and WEICK, Senior Circuit Judge.

WEICK, Senior Circuit Judge.

Plaintiff-Appellant, George Bailey (Bailey), seeks reversal of a judgment entered by the district court upon a jury verdict in favor of the defendant-appellee on the issue of strict liability in tort in this diversity action in which Bailey also alleged breach of warranty and negligence. Bailey asserts that the district court erred in refusing to apply Ohio's comparative negligence statute, Ohio Revised Code Sec. 2315.19, which on its face is limited to negligence actions, to this case, which was submitted to the jury only on Bailey's strict tort liability claim. We affirm the district court's refusal to extend the application of O.R.C. Sec. 2315.19 to actions based on strict tort liability. Bailey also contends that the district court erred in instructing the jury on Bailey's assumption of risk and in refusing to instruct that the defendant could be held strictly liable for failing to comply with industry standards. We find no error in the district court's instructions on these matters. Finally, Bailey asserts that the district court improperly admitted testimony regarding safety standards set forth in the Occupational Health and Safety Act (OSHA), the Ohio Industrial Code, and standards of the American National Safety Institute (ANSI). In addition, Bailey challenges the court's refusal to instruct the jury that the weight afforded such testimony should be limited in light of the court's ultimate refusal to admit these standards into evidence. While we decline to hold that the initial admission of these standards, offered to demonstrate industry standards with respect to Bailey's negligence claims, was improper under Ohio law, we hold that the district court's refusal to give a curative instruction regarding the weight of this evidence with respect to Bailey's strict liability claim, once the evidence of negligence was withdrawn, was prejudicial, consistent with our recent opinion in Minichello v. U.S. Industries, 756 F.2d 26 (6th Cir.1985). We therefore reverse and remand this case for proceedings consistent with the reasoning set forth below.

I.

Bailey was injured on February 21, 1979, while employed at the Anchor Template Die Company (Anchor). Bailey was working on a 71 ton punch press when someone called him from across the room, he turned, and accidentally stepped on the press' foot pedal, activating the machine and causing the ram of the press to fall on his left hand, which had passed into the area where the ram descended, or the point of operation. As a result, appellant lost all or part of four fingers.

The press was manufactured in 1954 by the appellee, V & O Press Company. At the time of the accident, the machine was owned by Bailey's employer, Anchor. When the machine was originally sold and subsequently, when sold to Anchor, it lacked a safety guard or other mechanism which would have prevented a point of operation accident. In addition, no warnings were affixed to the press. Anchor, however, had either manufactured or purchased various protective devices for the press, including a point of operation guard. This guard had been removed by Anchor prior to the time of the accident, however, because it was ill-suited for the particular work which it was performing. The machine had never malfunctioned. Bailey could not sue his employer, Anchor, because of the Workman's Compensation Act in Ohio.

Bailey was hired by Anchor approximately three weeks prior to his accident. His employer had specifically instructed him how to use the press and had warned him to keep his hands clear of the machine before activating it. Bailey had successfully operated the press on the day before as well as the day of the accident.

Bailey brought this action against, among other defendants, the appellee, alleging that the manufacturer's failure to install a safety guard to protect against this type of accident rendered it unreasonably dangerous. Bailey sought damages for such failure based on V & O's alleged negligence, breach of warranty, and strict liability, under Ohio law. Appellee denied all charges and asserted that Bailey was contributorily negligent, had assumed the risk, and that intervening acts of third parties were the cause of plaintiff's injuries.

During the parties' opening statements, Bailey unsuccessfully objected to appellee's references to OSHA and ANSI standards which placed the duty to guard power presses on the employer or user of the machine.

In support of his contention that the press was unreasonably dangerous when sold, Bailey offered expert testimony that the machine was defective because it lacked a point of operation guard or other safety device and because it displayed no warnings to put the operator on notice of its dangerous propensity. Bailey's expert also testified that other manufacturers offered presses with more extensive safety features at the time this machine was sold which, if incorporated, would have prevented this kind of accident. In addition, evidence demonstrated that appellee offered a safety guard for this press in the late twenties and early thirties which, if used, would have prevented this type of point of operation accident.

In defense, appellee sought to demonstrate that the numerous uses and applications of power presses preclude manufacturers from providing a universal guarding device and that, consequently, the responsibility for guarding rests with the employer or user. In support of this contention, appellee questioned several witnesses regarding the practicality of guarding presses and also regarding various safety standards embodied in OSHA and ANSI, placing the responsibility for guarding on the employer, and Ohio law, requiring the employer to maintain a safe work place. Bailey objected to some of the testimony regarding safety standards because the standards were not published until after the press was made and because the regulations were directed at employers and did not relieve manufacturers of their responsibility to produce safe machinery. Bailey's objections were overruled and the text of the relevant provisions was read to the jury and commented upon by both parties' experts.

In addition, appellee elicited testimony from its own expert that it was clearly understood in the industry, although not specifically codified until after the press in question was made, that the employer was responsible for guarding.

At the close of the evidence, Bailey reiterated his objection to the admissibility of the OSHA, ANSI, and Ohio standards. The court sustained Bailey's objections and refused to admit the regulations for the jury's consideration, noting that they were originally admitted in relation to other segments of appellant's claims.

The jury was instructed on the law of strict liability and, over Bailey's objection, assumption of the risk. The court refused Bailey's requested instructions on negligence, contributory negligence principles, and that the defendant may be held strictly liable for failing to comply with industry standards. In addition, the court refused to give a limiting instruction regarding the weight and relevance to be accorded industry standards embodied in OSHA, ANSI and Ohio law. The jury returned a general verdict in favor of the defendant.

II.

We must first determine whether the district court reversibly erred in refusing to instruct the jury on the principles of comparative negligence, consistent with O.R.C. Sec. 2315.19, in this strict liability action. In diversity cases, the doctrine announced in Erie Railroad v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), dictates that federal courts must apply the law of the state's highest court. If the highest court has not spoken, the federal court must ascertain from all available data what the state law is and apply it. Sours v. General Motors Corporation, 717 F.2d 1511, 1514 (6th Cir.1983); Clutter v. Johns-Manville Sales Corp., 646 F.2d 1151, 1153 (6th Cir.1981); Orfield v. International Harvester Co., 535 F.2d 959 (6th Cir.1976).

Since the Ohio Supreme Court has not addressed the issue sub judice, we must consider all relevant data to determine whether that court would apply the principles of comparative negligence to strict liability actions. ¹ The sources of data which may guide our inquiry include the decisional law of the Ohio Supreme Court in analogous cases and relevant dicta in related cases, McKenna v. Ortho Pharmaceutical Co., 622 F.2d 657, 662-63 (3d Cir.1980), cert. denied, 449 U.S. 976, 101 S.Ct. 387, 66 L.Ed.2d 237 (1980); C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, Sec. 4507 (2d ed. 1982). The decisional law of Ohio appellate courts, Waltzer v. Transidyne General Corp., 697 F.2d 130 (6th Cir.1983); Tomlinson v. McCutcheon, 554 F.Supp. 186, 188 (N.D.Ohio 1982); and Ohio trial courts, Bradley v. General Motors Corp., 512 F.2d 602, 605 (6th Cir.1975); Wolf v. Gardner, 386 F.2d 295, 297 (6th Cir.1967) (common pleas decisions have weight to extent reasoning and conclusions persuasive), are accorded weight, although a federal court is not bound by lower court determinations if convinced by other data that the state's highest court would determine otherwise. See Commissioner v. Estate of Bosch, 387 U.S. 456, 462-66,...