Drabik v. Stanley-Bostitch, Inc., STANLEY-BOSTITC
| Decision Date | 14 July 1993 |
| Docket Number | STANLEY-BOSTITC,INC,No. 92-3246,92-3246 |
| Citation | 997 F.2d 496 |
| Parties | 39 Fed. R. Evid. Serv. 262, Prod.Liab.Rep. (CCH) P 13,564 Leonard DRABIK, Appellee, v., Defendant, Bostitch, a Division of Textron, Inc., Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Richard A. Ahrens, St. Louis, MO, argued (John E. Hall and David R. Buchanan, on brief), for appellant.
Paul L. Redfearn, Kansas City, MO, argued (Daniel R. Brown, on brief), for appellee.
Before FAGG and MAGILL, Circuit Judges, and STUART, * Senior District Judge.
This is a products liability case and our jurisdiction is based on diversity of citizenship. In May 1987, Leonard Drabik sustained head and brain injuries from a nail discharged by a pneumatic nailing tool while constructing a storage shed with another individual named Charles Daniels. Drabik sued the manufacturer under § 402A of the Restatement (Second) of the Law of Torts, contending that the nailer was negligently designed and was a defective product. A jury awarded Drabik $1.5 million in actual damages and $7.5 million in punitive damages. This appeal followed. For the reasons discussed below, we remand this case for a new trial on the issue of liability and the issue of damages.
The product at issue in this case is a model N16CT pneumatic nailer manufactured in September 1984 by appellant Bostitch Division of Textron, Inc. (Bostitch). This nailer is a hand held tool attached to a compressed air supply which generates sufficient power 1 to drive nails ranging from two to three-and-one-half inches in length. The N16CT is a "contact trip" nailer. Contact trip nailers have two devices that must both be engaged in order for the nailer to be actuated, i.e., to discharge a nail. The first device, the contact trip itself, is a work contact element--a spring-loaded, telescoping, conical device on the tip of the instrument that is engaged when it is pressed against any surface. The second device, the trigger, is located on the handle of the nailer and it is squeezed by the operator's finger, much like the trigger of a gun.
With a contact trip nailer, both the trigger and the contact trip must be depressed in order for a nail to be ejected, but it does not matter which is depressed first. In other words, if the contact trip is engaged and then the trigger is pulled, a nail will be discharged. Similarly, if the trigger is depressed first and the contact trip then becomes engaged, either intentionally or inadvertently, a nail will also be discharged. With a contact trip nailer, a user can drive a series of nails without having to squeeze the trigger each time. This is accomplished by holding the trigger down and simply moving and pressing the nailer's contact trip against the work. In this opinion, this process will be referred to as bump-firing.
A contact trip nailer can also be used for a process called placement firing. When using the tool in this manner, the user would leave his finger off the trigger and depress the contact trip against the precise location for the nail. After engaging the contact trip, the user would then squeeze the trigger to actuate the nailer.
Charles Daniels and Leonard Drabik had been friends for over a dozen years prior to the accident. Daniels was in the home improvement trade and had a sideline business constructing and selling storage sheds. Drabik helped Daniels in the shed construction business in exchange for a share of the profits. The two men worked out of Daniels' garage and driveway area. Typically, they would build the front, back, side wall, and roof sections in Daniels' garage and then assemble the pieces at the customer's home.
The day of the accident, the two men were constructing a side wall. A side wall consisted of two long 2 X 4s, called the top plate and bottom plate, held together by a series of shorter 2 X 4 studs which were then covered by siding. In building the side wall, the men would first nail together the top plate, the bottom plate, and the two end studs to form a rectangle. The remaining 2 X 4 studs were filled in at sixteen-inch intervals by first nailing them into the top plate and then the bottom plate. The two men had marked the locations where the shorter studs were to be placed underneath the top plate. The side wall was approximately forty inches high.
At the time of the accident, the men were working inside Daniels' garage with the side wall standing up instead of laying flat. Drabik and Daniels testified that they had the wall standing up because it was somewhat crowded in the garage and this also prevented them from having to bend over so much. Daniels admitted that they would have had room to lay the wall out flat, however.
Daniels was on Drabik's right and both men were on the same side of the wall. Drabik was facing the wall directly, and was holding the top plate. Daniels was also facing in the direction of the wall, but was turned slightly towards Drabik, so that Daniels was not squarely addressing the wall. Drabik was placing a shorter stud between the top plate and the bottom plate. The stud was the first one in from the outer edge of the original rectangle. Because the marks were underneath the top plate, Drabik had to bend down and look underneath the top plate to line up the stud correctly. Daniels held the nailer in his right hand with his left hand at his side. After Drabik lined up the stud, Daniels reached over with the nailer and bump-fired two nails into the top plate to fasten it to the shorter stud. It was after Daniels had driven the two nails that Drabik's head contacted the nailer and the injury occurred.
Daniels testified that immediately before the accident, Drabik had been looking up underneath the top plate. Daniels bump-fired the two nails and then Drabik got up and walked away from him. As Daniels was in the process of returning the nailer to his right side, he realized that the nailer had gone off a third time, injuring Drabik. Daniels said he did not expect Drabik to be in the path of the nailer. On cross-examination, Daniels admitted that he was "more or less" reaching over Drabik to bump-fire the nails. Tr. Vol. II at 222. Daniels also admitted that he could have done the nailing by placement firing instead of bump-firing, i.e., engaging the contact trip first and then pulling the trigger rather than having the trigger pulled first and then depressing the contact trip to actuate the tool.
According to Drabik's testimony, he had placed the stud underneath the top plate and then "backed off" while still holding the top plate. Daniels bump-fired two nails into the work. The second nail caused the stud to twist. Drabik then testified that he was going to grab his hammer and knock the stud around into place but he said nothing to Daniels about what he was intending to do. Drabik reached down and turned up to look underneath the top plate just as Daniels was drawing the nailer away from the work and returning it to his right side. At that time the left side of Drabik's head engaged the contact trip and the tool discharged, driving a nail into his brain. Drabik admitted on cross-examination that he could have been positioned on the opposite side of the wall from Daniels instead of next to him on the same side of the wall.
There was no evidence of a manufacturing defect or a product malfunction. The evidence was clear that Drabik's head bumped into the contact trip while Daniels' finger was depressing the trigger, thus actuating the nailer. Plaintiff's and defendants' experts testified that the nailer had worked exactly as designed.
Daniels had been involved in carpentry work all his life. He had worked primarily in the home improvement business and had experience with a variety of power tools. For four or five years prior to 1987, Daniels had worked with contact trip pneumatic nailers similar to the N16CT. Daniels testified that he understood the two uses of the nailer, bump-firing and placement firing. He testified he had heard of other people being injured by inadvertent actuation of a contact trip nailer, though he had never personally experienced an injury. Daniels also testified that he knew if the contact trip bumped into a person while the operator held the trigger depressed, the nailer would discharge into the person.
Daniels was the owner of the nailer involved in the injury. However, Daniels had not purchased the nailer. He received it from a customer in exchange for the construction of a storage shed a few weeks before the accident. It was the first pneumatic nailer he had personally owned. Daniels did not receive an owner's manual in the exchange, and at the time he received the tool, there were no warning labels on it.
Drabik was also an experienced carpenter who had been involved in construction work since 1970. Drabik had worked periodically in most of the construction trades and had once built a house for himself. He testified he had worked with various power tools including pneumatic nailers. By his estimate, Drabik had individually operated a contact trip nailer on forty to fifty occasions prior to the accident and had been part of a crew which used a nailer an additional one hundred to one hundred fifty times. Drabik testified that he considered both Daniels and himself to be experienced in working with contact trip pneumatic nailers.
Drabik had also heard of people being injured by contact trip nailers though he personally had never witnessed an injury. Drabik testified that he believed he and Daniels had at one time discussed the possibility of "people getting shot with [a nailer]." Tr. Vol. V at 988. In a deposition read into the record at trial as admissions at the close of defendants' case, Drabik gave the following testimony:
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