Brown v. North Am. Mfg. Co.

• Decision Date: 02 March 1978
• Docket Number: No. 13706,13706
• Citation: 576 P.2d 711,35 St.Rep. 194,176 Mont. 98
• Parties: Deane BROWN, Plaintiff and Respondent, v. NORTH AMERICAN MANUFACTURING COMPANY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 711

576 P.2d 711

176 Mont. 98

Deane BROWN, Plaintiff and Respondent, v. NORTH AMERICAN MANUFACTURING COMPANY, Defendant and Appellant.

No. 13706.

Supreme Court of Montana.

Submitted Sept. 28, 1977.

Decided Feb. 9, 1978.

Rehearing Denied March 2, 1978.

Murphy, Robinson, Heckathorn & Phillips, I. James Heckathorn (argued), Kalispell, for defendant and appellant.

Morrison, Hedman and Trieweiler, Frank B. Morrison, Jr. (argued), Whitefish, McGarvey, Lence & Heberling, Kalispell, for plaintiff and respondent.

HARRISON, Justice.

Plaintiff Deane Brown lost his left leg in the auger of a self-unloading feed wagon known as a "Grain-O-Vator", manufactured by defendant North American Manufacturing Co., an Iowa corporation. In his original complaint, plaintiff specified negligence and strict liability in tort as theories supporting a damage recovery.

The trial of the cause ultimately proceeded on the strict liability theory alone. Discovery consisted of depositions of the parties and certain anticipated witnesses for plaintiff. The case was tried before a jury in the District Court, Flathead County, beginning October 19, 1976. The jury returned a verdict for plaintiff in the amount of $318,167 and judgment was entered thereon. Defendant then filed motions for judgment notwithstanding the verdict or alternatively, for a new trial. The District Court denied both motions. Defendant appeals from the judgment and denial of its post-trial motions.

For reasons set forth in this opinion, we find no errors were committed requiring either reversal of the judgment, a new trial or imposition of judgment notwithstanding the verdict.

The facts are:

In November 1970, plaintiff Deane Brown purchased a piece of farm equipment known as a Grain-O-Vator. The feed machine was approximately one year old at the time of purchase. The machine was manufactured by defendant North American Manufacturing Co.

During the next three years, the equipment was operated and serviced by plaintiff's son, Calvin Brown. Plaintiff used the machine a few times prior to the accident involved here.

The central function of the Grain-O-Vator is feed unloading and distribution. The feed contained in a large bin drops through an opening into a transfer auger, and is moved to an area where it is picked up and expelled through a spout. Attached to the bin, just over the transfer auger, is a curved metal door known as an "excess door". The door was hinged at the bottom on the particular model owned by plaintiff, and was held closed at the top by two springs. The purpose of the excess door was to provide a "relief valve". When excess feed pressure is exerted against the transfer auger, the door is forced open, and the excess feed pressure relieved. The feeder is operated by a power-take-off system, when attached to a tractor.

Just prior to the accident plaintiff, an experienced farmer/rancher, 51 years of age, was operating the feeder. The feed had ceased coming out of the spout. Plaintiff descended from the tractor and left the power-take-off system running, to observe if any mechanical problem existed. His intent was to first view the interior of the bin. There was no ladder or other means provided on the machine for access to a view of the bin. The height of the bin had been increased by extension boards furnished by defendant.

Plaintiff mounted the machine by first placing his right foot on an iron reinforcement bar to the side of the transfer auger; then placed his left foot on the excess door covering the transfer auger. For his third step, he placed his right foot on a "gusset" just above and to the right of the excess door, with his left foot in the air above the excess door. Plaintiff observed feed in the bin, stepped down with his left foot, without looking down, intending to again place it on the excess door. The excess door had come open and, as a result, plaintiff stepped directly into the transfer auger. His left leg was pulled in and amputated by the mechanism. Plaintiff was alone and remained caught in the machine for some time before he was taken out and given medical aid.

At trial, plaintiff testified that during his prior limited experience with the machine, the excess door had not come open. While recognizing the area surrounding the excess door would be dangerous if the excess door were open, he stated he had no expectation the door would simply "come open" and felt that the auger area, as covered, was not dangerous. Plaintiff further testified that no warning concerning the excess door appeared anywhere on the Grain-O-Vator.

Carlton Zink was the plaintiff's expert witness. He has a Bachelor of Science degree in agricultural engineering from the University of Nebraska. Later he served for 12 years in charge of the tractor testing laboratory in Lincoln, Nebraska. From 1950 to 1968, he worked for John Deere Company and after 1952 he "took on the responsibility for product safety for John Deere as a corporate representative in product safety." He worked with the National Safety Council on "farm safety" and was a president of the Farm Conference. He was a member of the National Institute for Farm Safety, the American Society of Agricultural Engineers, the Society of Automotive Engineers and the National Safety Council. From 1952 to 1968, he was involved with the development of safety design for John Deere Company.

Zink testified the American Society of Agricultural Engineers recognized the need to effectually shield augers as early as 1964 or even 5 years earlier. Further, the Grain-O-Vator in question failed to conform to accepted safety design requirements in three particulars, rendering the equipment unreasonably dangerous to the user: 1) The lack of effective shielding of the transfer auger because of the excess door being hinged at the bottom, and much more susceptible to entry when open. 2) No ladder or other means was provided for gaining visual access to the bin. 3) No danger warnings appeared on the equipment or in the instruction manual.

An expert called by defendant was of the opinion the Grain-O-Vator was not defectively designed.

The owner and principal officer of defendant, Elmer K. Hanson, testified he had designed the excess door. He indicated that prior to 1958, the door had been hinged at the top, but the design was modified so the door was hinged at the bottom in later models for added utility. He further stated that at the present time, the Grain-O-Vator is marketed with the excess door bolted on firmly and it cannot come open without manual removal. He admitted the Grain-O-Vator displayed no warnings, and no ladder or other access to a view of the interior of the bin was provided. However, he consistently maintained the machine was nondefective, and satisfied industry safety standards.

Various exhibits were admitted throughout the course of the trial consisting primarily of pictures and diagrams of the Grain-O-Vator, and a movie introduced by plaintiff demonstrating the steps taken by plaintiff as he mounted and attempted to dismount the Grain-O-Vator, as portrayed by his son Calvin. The jury was also afforded an opportunity to view the particular Grain-O-Vator involved in the accident. At the close of the testimony and ensuing arguments, a jury verdict was returned in plaintiff's favor.

We summarize the issues raised on this appeal:

1) Was there sufficient evidence to support a finding the product was in a "defective condition unreasonably dangerous to the user or consumer? " 2) Was there sufficient evidence to support a finding that an unreasonable danger or hazard existed which required a warning?

3) Was there sufficient evidence to support a finding that the alleged defective condition was a proximate cause of injury to plaintiff?

4) Did plaintiff, by his actions, assume the risk as a matter of law?

5) Did the District Court err in giving its instruction on the law of assumption of the risk?

6) Did the District Court err in giving its instruction concerning the elements of proof in a strict liability action?

7) Did the District Court err in admitting into evidence the movie prepared and offered by plaintiff?

Issue 1. Defendants contends the evidence adduced at the trial failed to satisfy the elements of a strict liability action as set forth in 2 Restatement of Torts 2d, § 402A. Rather, it is maintained, the sole conclusion supported by the evidence is that the danger was "open and obvious" to plaintiff and therefore a complete bar to recovery. In support of the latter contention, defendant relies on the holding of cases from certain jurisdictions that a product is not "defective" or "unreasonably dangerous" if the danger occasioned by its use is open and obvious to the user. Tomicich v. Western-Knapp Engineering Company (9th Cir. 1970), 423 F.2d 410; Morrow v. Trailmobile Inc. (1970), 12 Ariz.App. 578, 473 P.2d 780; Zahora v. Harnischfeger Corp. (7th Cir. 1968), 404 F.2d 172; Halpern v. JAD Const. Corp. (1960), 27 N.Y.Misc.2d 675, 202 N.Y.S.2d 945.

This Court, in Brandenburger v. Toyota Motor Sales, U. S. A., Inc. (1973), 162 Mont. 506, 513, 513 P.2d 268, adopted the core definition of the doctrine of strict liability, set forth in 2 Restatement of Torts 2d, § 402A:

" '(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

" '(a) the seller is engaged in the business of selling such a product, and

" '(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

" '(2) The rule stated in Subsection (1) applies although

" '(a) the seller has exercised all possible care in the preparation and sale of his product, and

" '(b) the user or consumer has not bought the product or entered into any contractual relation with the seller.' " 162 Mont. 513, 513...