Davis v. Globe Mach. Mfg. Co., Inc., 49923-3

• Court: United States State Supreme Court of Washington
• Writing for the Court: STAFFORD; WILLIAM H. WILLIAMS, C.J., UTTER, BRACHTENBACH, DOLLIVER, and DIMMICK, JJ., and CUNNINGHAM
• Citation: 684 P.2d 692,102 Wn.2d 68
• Parties: Alice J. DAVIS, Petitioner, v. GLOBE MACHINE MANUFACTURING COMPANY, INC., Respondent.
• Docket Number: No. 49923-3,49923-3
• Decision Date: 21 June 1984

Page 68

102 Wn.2d 68 684 P.2d 692 Alice J. DAVIS, Petitioner,
v.
GLOBE MACHINE MANUFACTURING COMPANY, INC., Respondent. No. 49923-3. Supreme Court of Washington,
En Banc. June 21, 1984.

Page 69

[684 P.2d 694] Wolfstone, Panchot, Bloch & Kelley, J. Porter Kelley, Seattle, for petitioner.

Davies, Pearson, Anderson, Seinfeld, Gadbow, Hayes & Johnson, Edward S. Winskill, Tacoma, for respondent.

STAFFORD, Judge.

On April 1, 1977, petitioner Alice Davis was injured while cleaning a glue spreading machine at Hines Lumber Mill (Hines) in Oregon. The glue spreader was manufactured by respondent Globe Machine Manufacturing Company (Globe). Davis brought this products liability action against Globe on theories of strict liability and negligence.

Globe began manufacturing glue spreaders in 1951. The precise date of manufacture of the machine by which Davis

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was injured was not ascertainable. It was determined, however, to have been manufactured some time between the 1950's and early 1960's. Hines purchased the used machine from Everett Plywood about 1976.

The Globe machine spread glue on a plywood core in preparation for the application of the veneer. The spreader had two rollers, meeting at a "nip point", through which the core was drawn and coated with glue. Because precise metering of the glue was necessary, the machine was cleaned after each shift.

The glue spreader's infeed apron had to be removed during cleaning. Globe had designed the machine with a safety switch which disengaged, shutting the machine off, when the infeed apron was removed. Globe sold the machine with the safety switch unconnected but instructions for its wiring were included. The machine which injured Davis lacked this safety switch; however, neither the date of its removal nor the owner at the time of removal is known.

[684 P.2d 695] Hines had wired a stop bar across the front of the machine which stopped the machine when pressed. An on-off push-button was located on the machine at a height of about six feet.

During the cleaning procedure, the cleaner would remove the infeed apron, drain glue from the reservoirs, and soak the reservoirs with water. While the reservoirs were soaking, the machine was left running in low gear. Next, the cleaner would hose the machine with a mixture of steam and water. The cleaner would then scrape parts of the infeed and outfeed sides of the machine. Dried glue and debris remaining on the axles or a brass scraper bar adjacent to the end of rollers, which could not be removed by hosing, would be removed either by tool or hand.

At the time of her accident, Davis was wearing oversized gloves. While the rollers were turning, she attempted to remove a glob of glue from a supporting bracket of the scraper bar. Her glove came in contact with the rollers and her arm was drawn into the rollers. As a result, her arm had to be amputated above the elbow.

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There was considerable conflicting testimony regarding the safety of the machine's design. Davis called two expert witnesses. Leslie Ball testified that the hazard presented by the Globe machine was at the "nip point". He described a number of different designs by which the hazard could have been eliminated. He also stated that the machine's warnings and instructions were inadequate. Daniel Solomonson testified that the machine was dangerous because of the necessity of working close to the nip point in order to effectively clean the machine. He stated that the safety switch designed for use on the machine could not be used efficiently because the rollers had to be turning during the cleaning procedure. Solomonson also discussed a number of alternative designs which he believed would have eliminated the hazard.

Globe also called expert witnesses. Clifford Pearson testified that while a guard would contribute to the safety of the machine during operation, it would not contribute to its safety during the cleaning process. Frank Roberts testified that the machine was adequately guarded for steam and hose cleaning but should be shut off for manual cleaning. Gordon Robinson testified that the machine was reasonably safe but that Davis had taken an unreasonable risk when she placed her hand close to the moving rollers.

Davis testified that she was aware the nip point was dangerous. She further stated that, in demonstrating the cleaning process, the Hines foreman manually removed material while the rollers were turning. The testimony of several employees indicated that they reached into the machine to clean debris while the rollers were turning.

At the close of plaintiff's case, the trial judge dismissed the negligence claim. The trial judge stated that even assuming plaintiff had established a standard of care, it was "difficult to conclude" there had been any violation of that standard. The trial judge further stated that there was not a "scintilla of evidence" that any breach of duty was the proximate cause of plaintiff's injury.

The trial judge submitted the case to the jury, however,

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on the theory of strict liability. The jury returned a verdict for Globe, responding "No" to the following interrogatory: "Did the defendant supply a product which was 'not reasonably safe' at the time it left defendant's control or fail to give an adequate warning necessary to make the use of the product reasonably safe?"

The Court of Appeals affirmed. The petition for review raises the following issues:

1) Did the trial court err in dismissing petitioner's negligence claim?

2) Did the trial court err in instructing the jury that Globe had no duty to make post-sale modifications for safety or efficiency?

3) Did the trial court err in instructing the jury on assumption of risk?

[684 P.2d 696] 4) Did the trial court abuse its discretion in admitting evidence of a defense verdict in another trial involving injuries caused by a Globe glue spreader?

We find no error and affirm.

At the outset, we note this case arose prior to the effective date of the new Washington products liability act, RCW 7.72, therefore the act is inapplicable.

I

Petitioner asserts the trial court erred in dismissing her claim of negligence, contending she presented sufficient evidence to take the case to the jury. Respondent argues that the negligence claim became moot when the jury found the product reasonably safe under the strict liability test. Contrary to respondent's assertion, however, we have held that strict liability and negligence are not mutually exclusive theories of recovery. Ulmer v. Ford Motor Co., 75 Wash.2d 522, 531, 452 P.2d 729 (1969). See also Palmer v. Massey-Ferguson, Inc., 3 Wash.App. 508, 514, 476 P.2d 713 (1970). Negligence and strict liability are not mutually exclusive because...