Blim v. Newbury Industries, Inc.

• Decision Date: 22 June 1971
• Docket Number: No. 567-70.,567-70.
• Parties: Janice K. BLIM, Appellee, v. NEWBURY INDUSTRIES, INC., Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

443 F.2d 1126 (1971)

Janice K. BLIM, Appellee, v. NEWBURY INDUSTRIES, INC., Appellant.

No. 567-70.

United States Court of Appeals, Tenth Circuit.

June 22, 1971.

Donald Patterson, of Fisher, Patterson, Sayler & Smith, Topeka, Kan., for appellee.

Ernest J. Rice and Arthur E. Palmer, of Goodell, Casey, Briman, Rice & Cogswell, Topeka, Kan., for appellant.

Before BREITENSTEIN, ALDISERT^* and McWILLIAMS, Circuit Judges.

ALDISERT, Circuit Judge.

This appeal by a machinery manufacturer from a jury verdict in favor of an injured factory worker presents questions of sufficiency of evidence and alleged errors in the court's charge.

Plaintiff-appellee sustained serious hand injuries on her first day of employment in a Kansas manufacturing plant when a co-worker caused a manually-operated plastic injector press to close upon her hand. She brought a diversity action in negligence and breach of warranty alleging defective manufacture against appellant who designed, manufactured, and sold the press. Evidence was adduced at trial tending to show that within the press there were mechanical malfunctions which interfered with the proper operation of its safety features.

The press was utilized to mold plastic industrial components by means of a form consisting of two platens. One of these was in a fixed position; the other was designed to move laterally when activated by a lever. Plaintiff was injured when her hand was caught between the two platens after her co-employee operated the lever.

An inspection of the equipment shortly after the accident revealed a loose bolt on the plaintiff's side of the press. This bolt was designed to activate a valve which was part of a hydraulic interlocking system which, in turn, operated mechanical drop bars. These bars were to serve as a safeguard to prevent injuries to the hands of operators as they inserted and removed material inside the press. When functioning properly, the bars dropped into position upon the opening of the side door by the operator, thus preventing the lateral action of the movable platen.

Previous to the date of the accident, the drop bars had been removed from the press by plaintiff's employer, who testified that the press could not operate properly with the bars in place because the hydraulic system and the bars were out of synchronization.

It was plaintiff's theory that this malfunction was caused by the loose bolt, resulting from the manufacturer's failure to fasten it with a lock washer. A companion bolt which activated a similar hydraulic valve on the other side of the press was so secured.

Thus, framed for the jury was the issue: did plaintiff's injuries result from the defective manufacture of the product or were the injuries caused by a new and independent intervening cause — the removal of the mechanical drop bars by plaintiff's employer?

Appellant argues that the doctrine of implied warranty was inapplicable as a matter of law because the removal of the mechanical drop bars by the employer constituted a material alteration to the equipment it manufactured. This alteration, appellant urges, constituted an independent and intervening cause of the injury sufficient to bring this case within the teaching of Texas Metal Fabricating Co. v. Northern Gas Products Corp., 404 F.2d 921 (10 Cir. 1968). Applying the substantive law of Kansas, as we must, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), this court held in Texas Metal that a heat exchange manufacturer was not liable for injuries recovered in an explosion of gas which escaped from the exchanger, where the cause of the explosion was the intervening act of the exchanger installer in drilling holes into it to eliminate a rattle. Appellant's reliance upon Texas Metal is misplaced. In that case there was no demonstrated relationship between the rattle (the alleged defect) and the ultimate explosion. At best, there was evidence that the cause of the rattle, a contact between horizontal tubes and baffles within the exchanger, could have eventually produced, at a later date, a hole from which gas could have escaped. But there was no proof relating the alleged defect to the injuries. The difference in product alteration, then, becomes manifest: in Texas Metal, "the record shows with little or no question that the alteration by Fluor caused this puncture in the tube and thus the accident." 404 F.2d at 925. Here, the mechanical drop bars were safety features designed to prevent just such an injury as that sustained by appellee. Since evidence demonstrated that they were already ineffective, their removal could not even exacerbate the hazard; a fortiori, it could not, as a matter of law, constitute a superseding, intervening cause of the injury. In...