Barbosa v. Hopper Feeds, Inc.

Decision Date18 April 1989
Citation537 N.E.2d 99,404 Mass. 610
Parties, Prod.Liab.Rep. (CCH) P 12,168 Catherine BARBOSA et al. 1 v. HOPPER FEEDS, INC., et al. 2 Supreme Judicial Court of Massachusetts, Norfolk
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Lane McGovern, Boston, for Cincinnati Milacron, Inc.

John P. Ryan (Robert G. Eaton, Boston, with him), for Hopper Feeds, Inc.

Martin T. Sullivan, Weymouth, for Armstrong World Industries, Inc.

Andre A. Sansoucy (John W. Brister, Richard L. Neumeier & Harley S. Gordon, Boston, with him), for plaintiffs.


HENNESSEY, Chief Justice.

The three defendants appeal from judgments entered against them in this action for personal injury to Catherine Barbosa, and for loss of consortium by her husband and their three minor children. Catherine Barbosa's injury occurred on January 16, 1981, while she was operating a machine for her employer, Armstrong World Industries, Inc. (Armstrong). The defendant, Cincinnati Milacron, Inc. (CM), manufactured the machine in 1942. Armstrong purchased the machine in 1948, and subsequently added an automatic feeder manufactured by Hopper Feeds, Inc. (Hopper). The judgments entered against Hopper and CM are for both the personal injury and consortium claims; the judgments against Armstrong are for the consortium claims only. 3

The judge submitted special questions to the jury. The jury returned verdicts for Catherine Barbosa against CM and Hopper in the amount of $860,000, and attributed 11% of the negligence to her, 44% to CM, and 45% to Hopper. On the consortium claims of the other plaintiffs, the jury assessed damages totalling $364,500 against Armstrong, CM, and Hopper, including an award of damages totalling $17,500 to Ann Margaret Barbosa, Catherine Barbosa's disabled daughter. The three defendants appealed. We granted defendant CM's petition for direct appellate review.

Catherine Barbosa injured her hand while operating a machine which beveled "cots"--small cylindrical pieces of rubber used in the textile industry. The machine contained a rotating wheel with spindles projecting from it. Cots were loaded onto the spindles which rotated the cots into contact with grinding wheels. Barbosa's duties included loading the feeder which placed the cots on the spindles, supplying boxes to receive the finished cots, and starting and stopping the machine as needed.

CM originally manufactured the machine as a grinder in 1942. Armstrong purchased it in 1948 and had CM modify it by adding the spindle wheel. Armstrong subsequently modified the machine several times, changing the machine from a grinder to a beveler, altering the device which loaded the cots onto the spindles, and adding a cot guide. A few weeks before the accident, Armstrong added an automatic feeder manufactured by Hopper, with technical advice from Hopper.

Immediately before her injury occurred, Catherine Barbosa shut off the feeder but left the beveler running. She reached her right hand into the machine to pick up a cot which had fallen onto the base of the machine; she was then unable to pull her hand back out. The spindle turned, forcing her hand further into the machine, and causing several fractures and lacerations. The accident resulted in permanent and significant limitation of the use of her right hand, loss of a finger, and a very weak grasp.


Hopper raises three issues on appeal: (1) the judge's denial of Hopper's motions for directed verdicts and for judgments notwithstanding the verdicts on the ground that Hopper owed no duty to guard the beveling machine or to warn Catherine Barbosa or Armstrong against hazards known to Armstrong; (2) the judge's failure to give certain jury instructions; and (3) the judge's denial of Hopper's motions for a directed verdict and for judgment notwithstanding the verdict with regard to Ann Margaret Barbosa's loss of consortium claim.

a. Hopper's motions for directed verdicts and for judgments notwithstanding the verdicts.

Hopper's principal contention is that Hopper had no duty to warn Catherine Barbosa of any hazards because Armstrong had superior knowledge concerning the machine and exercised exclusive control over it. In evaluating the judge's refusal to grant Hopper's motions for directed verdicts and for judgments notwithstanding the verdicts, we assess whether the evidence, construed in the light most favorable to the plaintiffs, could support verdicts for the plaintiffs. Colter v. Barber-Greene Co., 403 Mass. 50, 54, 525 N.E.2d 1305 (1988), quoting Poirier v. Plymouth, 374 Mass. 206, 212, 372 N.E.2d 212 (1978). "It is axiomatic that, in reviewing the denial of the defendant's motions for directed verdict and judgment notwithstanding the verdict, we will construe the evidence most favorably to the plaintiff[s] and disregard that favorable to the defendant." Cimino v. Milford Keg, Inc., 385 Mass. 323, 326, 431 N.E.2d 920 (1982). The plaintiffs are entitled to the judgments if "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff[s]." MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 140-141, 475 N.E.2d 65, cert. denied, 474 U.S. 920, 106 S.Ct. 250, 88 L.Ed.2d 258 (1985). Poirier v. Plymouth, supra 374 Mass. at 212, 372 N.E.2d 212. Raunela v. Hertz Corp., 361 Mass. 341, 343, 280 N.E.2d 179 (1972). We conclude that the evidence below supported a jury finding that Hopper negligently designed the automatic feeder and thereby increased the danger posed by the machine, and negligently failed to warn of the increased danger.

The plaintiffs presented evidence at trial to show that the automatic feeder was defective, and that it increased the danger posed by the machine. Hopper agreed to design and build a feeder which would feed cots onto the spindles of the beveling machine. The purchase order provided for installation supervision and specifically stated that the unit was "guaranteed" to work with the beveling machine. An expert witness, Bradford Schofield, testified that Hopper's automatic feeder increased the danger to Catherine Barbosa because the feeder restricted the crowded area on the machine, making it more difficult to maneuver in that area, and also because the feeder caused cots to fall into the base of the machine, making it foreseeable that an operator would insert her hand in that area to remove the cots. Schofield also testified that, at the time of the accident, it was technologically and economically feasible to guard the beveling machine. An Armstrong manager testified further that the beveling machine was modified after Catherine Barbosa's injury, suggesting the feasibility of guarding the machine. A plexiglass door was added which covered the open space on the machine and had an automatic shutoff, making it impossible for anyone to insert a hand while the machine was operating. A kickplate which would shut off the machine was also added on the front of the feeder and could be kicked with a foot or knee.

Melvin Jordan, one of the owners of Hopper Feeds, Inc., testified that he knew from the first day of the feeder's installation that if the feeder was not working properly, parts would fall down, and an operator would probably reach down to pick them up without stopping the machine. There was also evidence at trial that Hopper supervised the installation of the automatic feeder and that Hopper guaranteed that the feeder would work in conjunction with the beveling machine.

Hopper, as a product manufacturer, had a duty to anticipate the environment in which its product would be used, and to design against reasonably foreseeable risks attending the product's use in that setting. Colter v. Barber-Greene Co., supra 403 Mass. at 57-58 n. 9, 525 N.E.2d 1305. There was ample evidence from which the jury could conclude that Hopper's automatic feeder was defective because it increased the hazards posed by the beveling machine.

We have previously stated that "a manufacturer of a product, which the manufacturer knows or should know is dangerous by [its] nature or is in a dangerous condition," is under a duty to give warning of those dangers to "persons who it is foreseeable will come in contact with, and consequently be endangered by, that product." Slate v. Bethlehem Steel Corp., 400 Mass. 378, 381, 510 N.E.2d 249 (1987), citing MacDonald v. Ortho Pharmaceutical Corp., supra 394 Mass. at 135, 475 N.E.2d 65. H.P. Hood & Sons v. Ford Motor Co., 370 Mass. 69, 75, 345 N.E.2d 683 (1976). See Mitchell v. Sky Climber, Inc., 396 Mass. 629, 631, 487 N.E.2d 1374 (1986) ("manufacturer ... has a duty to warn foreseeable users of dangers in the use of that product of which [it] knows or should have known"). Hopper argues that it had no duty to warn Barbosa or Armstrong of hazards of which Armstrong was fully aware, and cites Fiorentino v. A.E. Staley Mfg. Co., 11 Mass.App.Ct. 428, 416 N.E.2d 998 (1981). It is true that a manufacturer has no duty to warn a plaintiff who is fully aware of the hazards posed by a product. Id. at 436, 416 N.E.2d 998. This is not such a case. See Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 795, 507 N.E.2d 662 (1987) (where court rejected defendant's claim that employer was in better position than manufacturer to make machine safe for its intended use because employer had owned machine for nine years and was familiar with use of product). See also H.P. Hood & Sons v. Ford Motor Co., supra 370 Mass. at 69, 345 N.E.2d 683 (plaintiff recovered for defendant's failure to warn despite evidence that defendant had informed plaintiff's employer about hazards which caused the accident). 4 The judge properly denied Hopper's motions for directed verdicts and for judgments notwithstanding the verdicts.

b. The jury instructions on Hopper's duty to warn.

Hopper argues that the judge below...

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