Bernstine v. Textron, Inc.
| Decision Date | 28 June 1989 |
| Docket Number | No. 88-404,88-404 |
| Citation | 546 So.2d 614 |
| Parties | Sam BERNSTINE, Plaintiff-Appellant, v. TEXTRON, INC., et al., Defendants-Appellees. 546 So.2d 614, Prod.Liab.Rep.(CCH)P. 12,283 |
| Court | Court of Appeal of Louisiana — District of US |
Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiff-appellant.
Cook, Yancey, King & Galloway, Albert M. Hand, Jr., Shreveport, Brittain, Williams, McGlathery & Passman, Joe P. Williams, Natchitoches, for defendants-appellees.
Ben Carter, in pro. per.
Before DOMENGEAUX, LABORDE and KING, JJ.
This is an appeal from a judgment denying recovery to the plaintiff, Sam Bernstine, for injuries received as a result of the kickback of a chain saw manufactured by defendant, Textron, Inc. (Homelite Division), and owned by defendant, Ben Carter. Mr. Carter was dismissed from this case via motion for directed verdict, and that dismissal is not at issue herein. The jury found no defect in the chain saw which could have caused plaintiff's accident and returned a verdict in favor of the defendant. We affirm.
At the time of his accident, Mr. Bernstine was a thirty-one (31) year old experienced chain saw user. He owned his own chain saw, a Homelite Model XL-12. Mr. Bernstine contracted to cut down and haul off a large pecan tree stump. His own saw was not working, so he borrowed a Homelite XL-12 from Ben Carter. The only difference between Carter's saw and Bernstine's saw was that the former was equipped with a bow attachment. The bow guide (attachment) is a pear-shaped frame which is attached to the power head. The chain fits around the pear-shaped frame. The space inside the frame is open to allow the cutting of pulpwood without the danger of binding the chain while a small log is cut. Bernstine was not accustomed to a bow saw, and in fact, had never used one. His experience with chain saws was limited to the more common bar saw, which consists of a rectangular arm attached to the power head, around which the chain travels. Although the safety and instruction materials that came with Bernstine's saw did contain detailed information and warnings on the use of the bow saw, the plaintiff acknowledged that he did not read these materials or take any other steps to learn about the proper use of the bow saw.
On the day in question, Bernstine experienced a kickback reaction while using Carter's bow saw. Kickback is described in the Homelite owner's manual as a dangerous reactive force which occurs when solid contact with the moving chain is made with the upper segment of the tip of the bow guide. This force caused the saw to move backward toward the plaintiff's body, resulting in severe lacerations to his face and chest. Bernstine still had some pain and scarring at the time of trial.
Bernstine contends that the chain saw which caused his injuries was defective because it did not have a chain brake to prevent the kickback phenomenon.
The standard for determining liability in a products case was articulated by our Supreme Court in Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (La.1986):
There is general agreement upon the most basic principles of strict tort products liability. In order to recover from a manufacturer, the plaintiff must prove that the harm resulted from the condition of the product, that the condition made the product unreasonably dangerous to normal use, and that the condition existed at the time the product left the manufacturer's control.
484 So.2d at 113. The plaintiff, then, must meet a threefold burden; he must prove causation, defect, and control.
The question of control is not at issue. The plaintiff contends that the chain saw was defective at the time it left Homelite's control because it was not manufactured with a chain brake. Homelite clearly did not install a chain brake on this saw; this is not a situation where a third party may have removed a safety device. The absence of a chain brake, the condition which allegedly renders the product defective, did exist at the time the product left the manufacturer's control. Therefore, the plaintiff has met his burden of proof on this requirement.
We turn now to the questions of whether that condition constituted a defect and, if so, whether the defective condition caused plaintiff's injuries.
Whether a product is defective because of its design is factual and depends on the circumstances of each case. LeBleu v. Homelite Division of Textron, Inc., 509 So.2d 563 (La.App. 3d Cir.1987); Thompson v. Tuggle, 486 So.2d 144 (La.App. 3d Cir.1986), writ denied 489 So.2d 919 (La.1986).
Our review of the record reveals the following undisputed facts. Sam Bernstine was using a Homelite chain saw to which was attached a bow guide. The bow guide was not manufactured by Homelite, and in fact, Homelite literature specifically recommends against the use of a bow guide attachment. However, Homelite acknowledges that its customers may choose to purchase bow attachments for use with Homelite saws, and in anticipation of the problems that a customer may experience because of this alteration, Homelite provides detailed instructions and warnings for its proper use. The Homelite chain saw in question did not have a chain brake, which is a device designed to prevent injury as a result of kickback, but it did have a Safe-T-Tip which prevents the occurrence of kickback on a bar saw. The bar saw, as shipped from the manufacturer, does not have any safety device which is designed to protect against kickback of a bow saw. The bow attachment, however, does have spurs which serve to guide the saw as it travels along...
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Cates v. Sears, Roebuck & Co.
...requirement that the offending condition must exist at the time the product leaves the manufacturer's control. E.g., Bernstine v. Textron, Inc., 546 So.2d 614 (La.1989). The Halphen court noted that products could be unreasonably dangerous: (1) per se, (2) in design, (3) in construction or ......