Davis v. Berwind Corp.

Decision Date19 May 1994
Citation640 A.2d 1289,433 Pa.Super. 342
Parties, Prod.Liab.Rep. (CCH) P 13,863 Kimberly DAVIS v. BERWIND CORPORATION, Bepex Corporation and Boldt Industries Inc. Appeal of BERWIND CORPORATION and Bepex Corporation.
CourtPennsylvania Superior Court

Gary B. Cutler, Philadelphia, for appellant.

Bruce Baron, Philadelphia, for Davis, appellee.

Angelo L. Scaricamazza, Jr., Philadelphia, for Boldt, appellee.



This is an appeal from an order of the Court of Common Pleas of Philadelphia County denying defendants' post-trial motions for a new trial or judgment notwithstanding the verdict and entering judgment against defendants Berwind Corporation (Berwind) and Bepex Corporation (Bepex). We reverse.

Plaintiff Kimberly Davis was employed as a quality control inspector for Keystone Equity Meats (Equity) in Folcroft, Pennsylvania. Equity supplies hamburger patties to McDonald's restaurants. Ms. Davis was responsible for operating a blender in the meat formulation system. The blender, a Reitz blender, was manufactured by Bepex. It mixed lean and fat cow and steer meats into regulation quality as specified by McDonald's. In addition to operating the Reitz blender to mix the meat, Ms. Davis was responsible for testing the mixture to assure that it fell within a range of certain fat content specifications. Once the specifications were met, Ms. Davis would then operate the blender on its discharge mode to release the meat into a hopper where it would be carried on a conveyor belt to the next phase of the processing.

On the day in question, Ms. Davis lost three fingers on her right hand while operating the blender on its discharge mode; she apparently had reached into the area of the discharge doors to remove meat which had accumulated in the hopper. Her hand then came into contact with the rotating blades.

Equity's meat formulation system was designed and manufactured by Boldt Industries, Inc. (Boldt). Equity purchased the equipment in 1979. The Boldt system incorporated the Reitz blenders manufactured by Bepex, a company owned by Berwind at the time.

The Bepex blenders were manufactured and sold with an interlocking electropneumatic safety device. This safety device required an operator to use both hands to depress valves to open the discharge doors and release the meat; if the valves were released, that is, if both hands were taken off the valves, the discharge doors would automatically close. The purpose for this safety device was to prevent an operator's hands from coming anywhere near the rotating blades. 1

In addition to the electropneumatic safety device, Bepex included on the blender visible warnings instructing operators to keep their hands and fingers away from the discharge doors. A decal was affixed to the blender, warning: DANGER, KEEP FINGERS OUT OF DOOR OPENINGS. This warning was included on the Rietz blender when it was manufactured. Further, in the manual provided by Bepex, Bepex warned against removing the interlock device:

Do not operate unless guards and safety devices are in place and are working. The electropneumatic control is considered an integral part of blender and should not be removed or modified to preclude the safety interlock feature ... Both discharge job button and valve control handles must be held in position by the operator during the entire discharge cycle. This interlocking feature forces the operator to use both hands to keep discharge doors open and screws running.

Bepex included the product manual with blenders sold to Boldt. Boldt, after purchasing the blenders, included the product manual with the system it sold to Equity. 2

Shortly after Equity installed the meat formulation equipment, Equity removed the safety device from the blenders. By removing the safety device, employees could operate two Reitz blenders at one time; the operators did not have to continually keep both hands occupied in order for the discharge door to open. Although the modifications created a risk that the operators' hands or fingers might be caught in the blades of the blender without the shield of the discharge door, the alteration enabled Equity to increase production without increasing labor force costs.

Following Davis's accident, she filed a product liability action against Berwind Corporation, Bepex Corporation and Boldt. A jury trial commenced before the Honorable Ethan Allen Doty. Although Davis conceded that Equity had removed the safety device and that the accident could not have occurred without the removal of the safety device, she nonetheless contended that it was foreseeable that the device would be removed. Thus, Davis argued, Bepex had failed to provide adequate warnings in light of the foreseeability that the purchaser would remove the safety device. Specifically, Davis argued that Bepex failed to provide warnings that the blades would continue to rotate after the machine was turned off. This argument was advanced despite the warning in the Bepex blender product manual that purchasers not remove the electropneumatic safety device.

At the close of Davis's evidence, Berwind and Bepex filed a motion for non-suit. The court denied this motion and the trial proceeded. Berwind and Bepex defended on the theory that that Equity's removal of the safety devices was the proximate cause of Davis's injury. The case was submitted to the jury on Section 402A theory of liability against Berwind and Bepex as manufacturer of the blender and a section 402B claim against Boldt as the seller of the blender. The trial court refused to amend a jury charge so that Boldt could be identified as the manufacturer of the meat formulation system for purposes of determining whether Boldt should be held liable under section 402A.

Appellants also contended that Davis's attorney improperly insinuated that Berwind and Bepex were placing blame on an absent party. The court instructed the jury as follows: "Equity is not present for reasons which do not concern you." The court refused to elaborate as to why Equity was not present.

The jury returned a verdict in favor of plaintiff Davis and defendant Boldt, and against defendants Berwind and Bepex. The jury awarded damages in the amount of $400,000.00 against Berwind and Bepex.

Berwind and Bepex filed timely post-trial motions, and Davis filed a request for delay damages. Following briefing and argument, the court denied Berwind's and Bepex's post-trial motions and granted Davis's request for delay damages in the amount of $213,725.92. This appeal followed. Berwind and Bepex raise the following issues:

(1) Whether the trial court erred in refusing to enter judgment n.o.v. for appellants where the evidence presented at trial, viewed in the light most favorable to the verdict winner, was insufficient as a matter of law to support the jury's verdict that the product was defectively manufactured?

(a) whether the trial court erred in refusing to enter judgment n.o.v. where the jury found appellants strictly liable for failure to warn even though plaintiff failed to prove that she would have altered her conduct in the presence of a warning?

(b) whether the trial court erred in refusing to enter judgment n.o.v. where the jury's finding was contrary to the charge given by the trial court and contrary to the law of this Commonwealth?

(2) Where the undisputed evidence at trial established that defendant Boldt was the designer and manufacturer of a meat formation system which incorporated blenders manufactured by appellants, did the lower court err in refusing to grant a new trial where it erroneously charged the jury that Bepex was the manufacturer of the product and Boldt was the seller?

(3) Whether the trial court erred in refusing to instruct the jury that the plaintiff's employer was not a defendant in this case because of the immunity provided under the Workers' Compensation Act after plaintiff's counsel opened the door to such instruction by making statements in its closing arguments regarding the absence of plaintiff's employer in the case?

When reviewing a trial court's order denying a motion for a new trial, this court must determine whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corporation, 513 Pa. 411, 521 A.2d 413 (1987). The standard of review when considering an order denying judgment n.o.v. is the same standard employed by the trial court: the appellate court must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every inference which can reasonably be drawn from the evidence and rejecting all unfavorable testimony and inferences. Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478 (1984). Judgment n.o.v. may be granted only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Id.

The appellants maintained throughout trial, and now on appeal, that Ms. Davis intended to clear the meat from the front of the discharge doors without using the shovels or hooks provided by Equity for this task, and, since she had no intention of placing her hand inside the door, an additional warning that the ribbons of the blender would continue to turn after the power was turned off (a delay factor of which Ms. Davis was apparently unaware prior to the accident) would have made no difference. The reason for this, appellants argue, is because the warnings would have affected her behavior only if she had intended to place her hands inside the discharge door.

Appellants also argue that it was admitted by plaintiff that her employer, Equity, had removed the safety system and that had the safety device been in place, the accident would not have occurred. Appe...

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