doCanto v. Ametek, Inc.

• Decision Date: 20 May 1975
• Parties: Ezila C. doCANTO et al. 1 v. AMETEK, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 873

328 N.E.2d 873

367 Mass. 776

Ezila C. doCANTO et al. ¹ v. AMETEK, INC.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 6, 1974.

Decided May 20, 1975.

Robert W. Cornell, Boston (John B. Johnson, Boston, with him), for defendant.

Paul R. Sugarman, Boston (David J. Sargent & Charles E. Blumsack, Boston, with him), for plaintiffs.

Before TAURO, C.J., and REARDON, BRAUCHER, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

The defendant, a manufacturer of ironing machinery used in commercial laundries, argues various exceptions arising out of a trial which resulted in verdicts for the plaintiffs aggregating $467,000. ²

On July 16, 1968, Ezila C. doCanto (Ezila) was one of two operators of a 'Troy Speedline 8 Roll Flat Work Ironer' at the Boston premises of Hospital Laundry Association, Inc. (Laundry). The defendant, Ametek, Inc. (Ametek), had sold the ironer to Laundry and installed it in the latter part of 1961. Ezila's job was to put sheets into the ironer from one side, while another operator did so on the other side. As she was feeding a sheet into the ironer that day, her right hand, caught in a sheet, was pulled into the ironer under a safety bar. Although the electricity which powered the ironer shut off when her hand activated the safety mechanism, the momentum of the rollers in the ironer caused her hand to be pulled farther into the machine. The coasting of the machine after the electricity has been shut off is described as overtravel, can be measured in inches and varies with the circumstances, particularly the speed at which the rollers were operating. At the time of Ezila's injury the ironer was operating at its maximum speed, 115 feet a minute. Ezila sustained serious injuries from the heat and pressure of the ironer. Subsequently she lost all of her fingers, except her thumb, and underwent four operations during about eight weeks of hospitalization.

Ametek's challenges to various rulings at trial can be grouped into the following five categories: (1) The judge admitted, for limited purposes, evidence of changes in the design of the ironer by Ametek after the sale to Laundry, but before the accident. The judge (2) denied Ametek's motion for directed verdicts, and (3) refused to give several of Ametek's requests for instructions. (4) The judge declined to grant a new trial (or to revoke his order allowing a count for loss of consortium), rejecting Ametek's argument that our opinion in DIAZ V. ELI LILLY & CO., 364 MASS. ---, 302 N.E.2D 555 (1973)^A, denies recovery on any such claim in these circumstances. (5) Finally, Ametek argues that, because of the excessiveness of the $440,000 verdict in favor of Ezila, the judge should have granted a new trial. Facts relating to each area of contention will be set forth in the relevant discussion below.

1. Evidence of safety features developed by Ametek after the sale of the ironer to Laundry and before Ezila's injury properly was admitted for limited purposes. These design improvements principally involved (a) the addition of a device which reduced the overtravel of the ironer after activation of the safety mechanism, and (b) the relocation of the safety bar farther from the point at which an operator's fingers would be pinched by the pressure rolls of the ironer. The judge allowed evidence of post-sale safety improvements for three purposes: (1) to demonstrate the feasibility of redesign of the machine's safety features; (2) to show Ametek's knowledge, if any, of inadequacies in the 'existing safety features' of the ironer; and (3) to establish Ametek's duty, if any, to warn purchasers of the ironer of any deficiency in the ironer's safety features. The judge instructed the jury that the evidence of safety improvements 'is not in and of itself any evidence of negligence.'

Ametek argues that evidence of pre-injury improvements 'should be considered in the same light as evidence of subsequent improvements or repairs.' The theory behind the general rule which excludes evidence of post-accident improvements as evidence of negligence rests in considerable degree on the belief that a contrary rule would discourage owners from making repairs to dangerous property. Wigmore, Evidence, § 283 (3d ed. 1940).

Without accepting Ametek's premise that evidence of pre-accident safety improvements should be treated the same as evidence of post-accident improvements, we note that evidence of a post-accident improvement may be admissible, in the judge's discretion and subject to limiting instructions, on a variety of other issues in a case. See Wigmore, Evidence, § 283, p. 158 (3d ed. 1940); McCormick, Evidence, § 275, pp. 666--669 (2d ed. 1972); Leach and Liacos, Handbook of Massachusetts Evidence, 201 (4th ed. 1967). See also Federal Rules of Evidence, Rule 407, 28 U.S.C. (Supp., 1975) ^b (as enacted by P.L. 93--595, January 2, 1975, effective July 1, 1975).

This court has permitted the introduction of evidence of post-accident safety improvements for several purposes. For example, evidence of such a change is admissible to prove the practical possibility of making a safety improvement. See Beverley v. Boston Elev. Ry., 194 Mass. 450, 458, 80 N.E. 507 (1907); Coy v. Boston Elev. Ry., 212 Mass. 307, 309--310, 98 N.E. 1041 (1912). Likewise, evidence of such a safety improvement may be admissible on the issue whether the defendant knew or should have known of the danger at the time of the plaintiff's injury. See Reardon v. Country Club at Coonamessett, Inc., 353 Mass. 702, 704--705, 234 N.E.2d 881 (1968). It is clear, therefore, that on the issues of feasibility and knowledge of the risk, two of the three grounds on which the judge admitted evidence of pre-accident safety improvements, post-accident evidence would have been admissible in his discretion. We see no reason why evidence of pre-accident remedial measures should be any less admissible for the same purposes. ³

The evidence of improved safety design did not become inadmissible on the question of feasibility merely because Ametek conceded in a general way that the design improvements were practical. In the judge's discretion, evidence, otherwise admissible, does not lose that status simply because of a general concession made by the party against whom that evidence is offered. Boeing Airplane Co. v. Brown, 291 F.2d 310, 315 (9th Cir. 1961). See COMMONWEALTH V. TORRES, 367 MASS. ---, 327 N.E.2D 871 (1975)^C. We reject any suggestion to the contrary in Conry v. Boston & Maine R.R., 227 Mass. 411, 414--415, 116 N.E. 733 (1917). ⁴

The evidence of pre-accident improvements was admissible also on the third ground specified by the judge: the question of Ametek's duty to warn of any deficiency in the ironer's safety. Ametek contends that by admitting the evidence on this ground, the judge in effect ruled erroneously that there was a continuing duty to warn purchasers of safety improvements made to a machine which was reasonably safe at sale. However, the evidence was not admitted for such a narrow purpose, if indeed it was admitted at all for that purpose. The duty to warn for which the evidence was admitted could have been a duty to warn at the time of sale because the overtravel of the machine when operating at full speed exceeded the distance between the safety bar and the danger point on the rollers. Moreover, a duty to warn of post-sale safety measures may have existed because of the negligent design of the machine as originally sold. Consequently, the admission of the evidence as bearing on a duty to warn of safety deficiencies did not involve necessarily the question of a manufacturer's continuing duty, if any, to notify customers of post-manufacture improvements to a properly designed machine. Ametek did not press the judge for limiting instructions on the scope of the admission of the evidence on the duty to warn, although the judge gave it ample opportunity to do so.

2. Ametek argues in support of its motion for directed verdicts that expert testimony concerning the design safety of the ironer was an indispensable and unsatisfied element of the plaintiffs' case. It contends that, because of the complex technology involved, expert opinion evidence was necessary to prove that Ametek failed to use reasonable care in designing the ironer.

Even if Ametek did not limit the grounds of its motion for directed verdicts to the single, forlorn prospect that this court might overrule Carter v. Yardley & Co. Ltd., 319 Mass. 92, 64 N.E.2d 693 (1946), the judge properly denied Ametek's motion. ⁵ There was ample evidence to support the submission of the case to the jury. The jury could have found, on the basis of their own lay knowledge, that the ironer's overtravel was not consistent with Ametek's duty to design the machine with reasonable care. Carter v. Yardley & Co., Ltd., supra. Moveover, there was evidence that Ametek never advised Laundry of this particular danger. Indeed, Ametek stated in a catalogue that 'a magnetic brake stops the rolls with no coasting from residual momentum.' There was evidence that an Ametek employee who had designed the machine knew that this statement was incorrect. He also believed that a machine which failed adequately to prevent a hand from being pulled into the mechanism was improperly designed and that the ironer did permit a hand to be pulled under the safety bar. Clearly this evidence was sufficient to send the case to the jury on both the question of negligent design and the question of negligent failure to warn. Mealey v. Super Curline Hair Wave Corp., 342 Mass. 303, 305, 173 N.E.2d 84 (1961). Ametek's argument that there was no duty to advise of safety improvements after the sale of the machine could not be raised on this record by a motion for directed verdicts. ⁶

3. The judge committed no error in failing to give certain of Ametek's requested jury instructions.

There was evidence that Ezila's hand was unusually small, smaller than ninety-nine...