Clement v. Rousselle Corp.

• Decision Date: 10 July 1979
• Docket Number: No. GG-480,GG-480
• Citation: 372 So.2d 1156
• Parties: Darthy Ann CLEMENT, Appellant, v. ROUSSELLE CORPORATION, formerly Service Machine Company, Inc., a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

Page 1156

372 So.2d 1156

Darthy Ann CLEMENT, Appellant, v. ROUSSELLE CORPORATION, formerly Service Machine Company, Inc., a foreign corporation, Appellee.

No. GG-480.

District Court of Appeal of Florida, First District.

July 10, 1979.

Rehearing Denied Aug. 2, 1979.

Steven H. Gary, of Green, Simmons, Green & Hightower, Ocala, for appellant.

Marion R. Shepard, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee.

BOOTH, Judge.

This cause is before us on appeal from a judgment entered on a jury verdict in favor of defendant in a suit for negligence, breach of warranty and strict liability in the manufacture of a punch press machine. Plaintiff below, appellant herein, injured her hand in an accident in August of 1973 while operating the punch press manufactured by defendant in 1962. The machine was owned and maintained by plaintiff's employer, Spicer Industries, a non-party.

Plaintiff proved that the machine was sold by defendant without a guard device, and sought to prove that this constituted a breach of duty on the part of defendant and a cause of the accident. There were no eyewitnesses to the accident and plaintiff herself could not say what actually happened to cause her hand to come under the moving part of the press.

Defendant presented evidence that the employer had the duty to outfit the machine with a guard device suitable to the use of the machine in the employer's shop. Defendant further introduced evidence that industry standards and regulations adopted after the sale but prior to the accident placed the duty on the employer, rather than the manufacturer, to outfit the machine with a guard device.

On appeal, plaintiff contends that the trial court erred in allowing defense counsel to argue that the contributory negligence of Spicer Industries was the cause of the injury, and in failing to instruct the jury to disregard defense counsel's closing argument regarding the contributory negligence of Spicer Industries. ¹ Plaintiff also contends that the trial court erred in allowing into evidence the American National Standards Institute Standards (ANSIS) and Occupational Safety and Health Law Regulations (OSHA) standards promulgated in 1971, after defendant sold the drill press, but prior to the accident.

After careful consideration of the arguments and briefs of counsel and review of the record in the cause, we conclude that the judgment below be affirmed. The jury was entitled to find on the evidence presented that defendant's negligence, if any, in failing to attach a point of operation guard to the drill press it sold in 1962 was not the proximate cause of plaintiff's injury in 1973. The trial court correctly allowed defendant's argument to the jury as to the negligence of Spicer Industries, and introduction into evidence of the 1971 industry standards and government regulations.

Plaintiff contends that because defendant's answer failed to allege as an affirmative defense the negligence of Spicer Industries, no evidence or argument on that point was proper. This contention confuses contributory negligence, which is an affirmative defense to be specially pleaded, with proximate cause, a requirement of plaintiff's cause of action put at issue by a general denial. ² A defendant who has answered with a general denial, is entitled to prove, and to argue to the jury, that the accident was due solely to the negligence of a person not party to the suit. Crews v. Warren, 157 So.2d 553 (Fla. 1st D.C.A. 1963); Green v. Kersey, 189 So.2d 236 (Fla. 2nd D.C.A. 1966); Isaacs v. Powell, 267 So.2d 864 (Fla. 2nd D.C.A. 1962); Alves v. Adler Built Industries, Inc., 366 So.2d 802 (Fla. 3d D.C.A. 1979). The rule is not changed by the fact that the third party is, as here, immune from suit by the plaintiff. In the Isaacs and Alves cases supra, the non-party, whose negligence was held properly considered as the proximate cause of the injury, was a parent of the plaintiff and Immune from suit. Immunity from suit does not prevent the defendant, an outsider to the immune relationship, from proving that the negligence of the immune non-party was the sole cause of the accident. ³

Appellant contends, however, that the Workmen's Compensation Act is violated if the employer, who is immune from suit in tort by his employee, can be considered by the jury as the entity whose negligence was the sole proximate cause of the injury. In support of this contention, appellant relies on authorities which hold either (1) the jury cannot be informed that plaintiff in the tort action has workmen's compensation benefits ⁴ or (2) that the contributory negligence of plaintiff's employer may not be imputed to plaintiff in the tort action so as to reduce the damages recovered. ⁵ Here the court granted plaintiff's motion in limine, without objection by defendant; that defense witnesses be instructed to make no express or implied reference to workmen's compensation. That ruling was complied with. No mention was made of workmen's compensation, nor did the defendant here plead, seek to prove, or argue, that the employer's contributory negligence should be Imputed to plaintiff so as to reduce damages.

In Santiago v. Package Machinery Company, 123 Ill.App.2d 305, 260 N.E.2d 89 (1970), the court considered and rejected a contention similar to that of plaintiff herein. The Santiago case was an action in negligence and strict liability against the manufacturer of a plastic injection molding machine for injuries received by the plaintiff while operating the machine on the job. The jury verdict returned for defendant was affirmed on appeal, the court holding (260 N.E.2d at 92, 93):

"Plaintiff contends that the trial court erred in admitting evidence which in her words 'allowed the defendant to interject the negligence of the plaintiff's employer as a defense.' . . . Defendant, on the other hand, contends that it is always permissible to admit evidence offered for the purpose of proving that the conduct of another was the Sole proximate cause of the injury.

The instant case was tried on two counts one charging negligence and the other charging strict liability in tort. If the plaintiff is to prevail, she must prove that her injuries were proximately caused by defendant's negligence . . . or by a condition of the product which was unreasonably dangerous and in existence at the time it left the defendant's control . . . Manifestly then the defendant could avoid all liability by proving that the Sole proximate cause of the injury was the conduct of another. We find no error in the admission of evidence supporting this contention." (emphasis theirs)

In Gates & Sons, Inc. v. Brock, 199 So.2d 291 (Fla. 1st D.C.A. 1967), this court affirmed a verdict for plaintiff in a suit against the manufacturer of a snap-tie device which broke causing the plaintiff's scaffold to fall. This Court ruled that hospital bills reflecting payment of workmen's compensation were probably excluded because receipt of workmen's compensation benefits was not material. On close reading, however, the opinion indicates that the negligence of the employer, As a sole proximate cause of the accident, was a factor considered by the jury. The opinion points out that plaintiff's employer did not give a specific warning to its employees to refrain from attaching scaffold brackets to snap-ties they knew to be bent, and notes the testimony of a metalurgical engineer that the broken snap-tie had no inherent defect in the metal but broke because of a 42.5 degree bend. This evidence went to the employer's negligence, in allowing use of bent snap-ties, as proximate cause of the accident. ⁶ This court held a jury question was presented on the question of proximate cause, stating:

"Next, the question of proximate cause is raised. Rather than delve into all the testimony of the witnesses, we think it sufficient to say that the testimony presented on product design And use was of such nature as to generate a jury question on the issue of proximate cause and the jury was properly instructed in this regard . . ." (e. s.)

A jury question on proximate cause was also presented in the instant case. Plaintiff's own testimony supports the jury verdict based either on the employer's negligence or a combination of the negligence of the employer and the plaintiff. The jury verdict can also be supported by evidence tending to establish that there was no breach of duty on the part of the manufacturer.

Plaintiff also contends that the trial court erred in allowing into evidence ANSI and OSHA Standards, which were promulgated after the manufacture and sale of the drill press in question here, but prior to the accident. These standards were admissible for several reasons. First, to refute plaintiff's claim of a Continuing duty on the part of the manufacturer to track down and locate the owner of a drill press sold eleven years previous so as to warn of the danger of...