Eastman v. Stanley Works

• Citation: 180 Ohio App.3d 844,2009 Ohio 634,907 N.E.2d 768
• Decision Date: 12 February 2009
• Docket Number: No. 08AP-197.,08AP-197.
• Parties: EASTMAN, Appellee, v. The STANLEY WORKS et al., Appellant.
• Court: United States Court of Appeals (Ohio)

907 N.E.2d 768

180 Ohio App.3d 844

2009-Ohio-634

EASTMAN, Appellee, v. The STANLEY WORKS et al., Appellant.

No. 08AP-197.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided February 12, 2009.

Lamkin, Van Eman, Trimble, Beals & Dougherty, L.L.C., Timothy L. Van Eman, and Keri N. Yaeger, Columbus, for appellee.

Gallagher Sharp, Joseph W. Pappalardo, Kristen L. Wedell, and Colleen A. Mountcastle, Cleveland, for appellant The Stanley Works.

SADLER, Judge.

{¶ 1} Defendant-appellant, The Stanley Works, appeals from the judgment of the Franklin County Court of Common Pleas, entered upon a jury verdict finding appellant liable on the claims of plaintiff-appellee, Shawn L. Eastman, for strict product liability and negligence.

{¶ 2} Appellant manufactures tools, including the tool subject of this case, the Stanley Fat Max 22 hammer ("FM22"). Appellee is a framing carpenter who was injured on April 23, 2004, when one of the claws of his FM22 broke off, flew into his left eye, and ruptured his left eyeball. Appellee's injuries resulted in permanent disfigurement and vision loss in the left eye. Appellee filed the instant action against appellant, alleging claims of both strict product liability for defective manufacturing under R.C. 2307.73(A)(1) and 2307.74, and common law negligence. On December 17, 2007, following a week-long trial, the jury found in appellee's favor on both claims.

{¶ 3} We begin by recapitulating the relevant facts adduced below. Appellee is a framing carpenter by trade and had been working in that trade for ten years at the time of the accident. Appellee's work involved continuous use of a hammer. He estimated that he makes at least 300 strikes with his hammer per day. He would also use the claw end of his hammer to break the metal straps used to secure bundles of roof trusses. Appellee testified that this is a common and accepted practice among framing carpenters. Appellant's in-house engineer, Steven Crosby, and its manager of products support, Steven Gemmall, both corroborated appellee's testimony that this is an acceptable use for a hammer like the FM22.

{¶ 4} In January 2004, appellee began using the FM22 at issue. Then, on April 23, 2004, while attempting to break a metal strap on a bundle of roof trusses, one of the claws of appellee's FM22 broke off, flew into appellee's left eye, and ruptured the eyeball. At the time of his accident, appellee was not wearing safety goggles. He testified that this was because the day was rainy and the ground was muddy, and he could not see through the goggles as a result. His co-worker testified that the rainy and muddy conditions on the day in question would cause rain and mud to build up on the goggles and would cause the goggles to fog.

{¶ 5} Appellee conceded that it is always safer to wear safety goggles when using a hammer. Appellee conceded that the FM22 bore a sticker warning that users should wear safety goggles because "tools or struck objects may chip." However, he stated that because he was not using the FM22 to strike an object, he did not anticipate the danger of the tool chipping. Gemmall conceded that appellee's FM22 did not "chip" and that an entire claw snapped off. He agreed that appellant did not warn users about the risk of an entire claw snapping off with force sufficient to rupture the user's eyeball. Gemmall also testified that he did not expect users to anticipate such a risk when deciding whether safety goggles were necessary.

{¶ 6} Engineer Greg Dubois testified as an expert on behalf of appellee. He examined and tested appellee's FM22. He concluded that the FM22 had experienced a "quench crack," which means that it had developed a crack as a result of not being properly cooled after being heat-treated. Gemmall agreed that a quench crack would be a manufacturing defect. One of the reasons that Dubois felt there had been a quench crack was, he stated, that there was evidence of intergranular failure. However, he did not have any photographic evidence of this.

{¶ 7} Crosby, a metallurgical expert, agreed that there had been a crack in appellee's FM22, but he testified that there is no metallurgical evidence that it was a quench crack. First, he explained that the so-called intergranular failure, upon which Dubois had based his opinion, was evidence of a "ductile rupture failure," which is inconsistent with a quench crack. Crosby also explained that a quench crack would be located at the "V," or "crotch," formed by the hammer and the claw, while the crack in appellee's FM22 was located at the "shear lip," which is "further down" from the crotch than a quench crack would be located.

{¶ 8} Crosby's theory was that the FM22 cracked and broke due to appellee's misusing and abusing the hammer. When it was brand new, the FM22's head had a checkered face covered with pyramid-like shapes for a better grip on struck objects. At the time of the accident, the checkers or pyramids were completely gone, and the face was smashed completely flat. Both Dubois and Crosby opined that this was a deformed hammer. Crosby opined that such deformity would not be expected on a hammer used only for framing purposes, though he admitted that appellant has not tested the FM22 to determine what it "should" look like after normal use by a framing carpenter. Appellee testified that it usually takes about two years for a hammer's head to become completely flat. He denied abusing the FM22 in the three-month period in which he had used it. Dubois testified that another of appellee's hammers, which had not been manufactured by appellant, was worn flat and was cracked. Crosby testified that abuse of a hammer can lead to a crack, which can cause separation of a claw.

{¶ 9} Dubois's file on this case contained a rule promulgated by the American Society of Mechanical Engineers ("ASME"), which stated that "nail hammers shall not be used to strike hard or hardened objects such as rocks, bricks, concrete, masonry nails * * *." Appellee had admitted that he routinely used the FM22 to strike concrete nails. The trial court refused to allow appellant to cross-examine Dubois about this ASME standard because it was written by and for engineers, not hammer users. The court concluded, therefore, that the rule was not binding upon appellee. The court also noted that the FM22 contained no manufacturer's warning against using the FM22 on masonry nails. Appellant put the standard into the record by proffer.

{¶ 10} Robert St. John is appellant's director of engineering for its consumer-tools division. He testified that he has personally observed the manufacturing procedures that are used in the Taiwanese plant in which appellee's FM22 was made. He stated that the plant's manufacturing procedures complied with appellant's specifications for the FM22. He further testified that quality engineers audit and process every shipment of Stanley hammers that leaves the factory. He testified that appellant's written procedures and specifications call for testing of each hammer to ensure the absence of quench cracks. However, the only evidence he produced showing that testing had actually been performed was his testimony that he observed compliance with the written procedures and specifications during his numerous visits to the Taiwanese manufacturing facility. He admitted on cross-examination that he did not have any documents to corroborate testing of appellee's FM22.

{¶ 11} Following his injury, appellee underwent two surgeries and suffered permanent vision loss. Appellee returned to work in July 2004, with no restrictions. He later re-injured his eye in an incident unrelated to the present action, and that injury caused him not to work from November 27, 2004, through December 2004. Until a few days before trial, he had not seen an ophthalmologist since May 2005.

{¶ 12} Appellee has worked continuously since January 2005. At the time of trial, he worked full-time, which, he explained, is not 52 weeks per year and 40 hours per week in the construction business; rather, because his portion of construction occurs outdoors, it is subject to changes in seasons and weather. At the time of his injury, appellee was earning $10 per hour. At the time of trial, he was earning $14 per hour and had been earning that rate of pay for two years preceding the trial.

{¶ 13} Appellee's witness, Dr. Bruce Growick, a vocational rehabilitation expert, reviewed appellee's educational and work history, and his physical abilities and eye impairment. Based on this information, Dr. Growick opined that appellee is qualified to perform only 15 to 20 percent of the unskilled jobs for which he had been qualified prior to the incident in question. Dr. Growick acknowledged that appellee is presently working in his former position; therefore, that position is not among the 80 to 85 percent of jobs for which appellee is no longer qualified as result of his injury. He also admitted that it would be speculative to state that appellee would be unable to perform his job at a particular point in the future.

{¶ 14} Dr. Richard Palfin is an economist who testified on appellee's behalf. Dr. Palfin reviewed documentation of appellee's pre- and post-injury earnings, his medical records, and Dr. Growick's vocational analysis. Based upon all of those records, Dr. Palfin calculated the present value of the annual percentage of appellee's lost earning capacity. On cross-examination, he conceded that he had based his annual earnings calculation on a 52-week year. He also testified that he had not taken into account the seasonal nature of appellee's work and the fact that appellee's work weeks were not uniformly 40-hour weeks. Therefore, Dr. Palfin had used an annual future wage of $29,120, while appellee's annual salary prior to the accident was only $21,350.03. Dr. Palfin did not assign a starting year for when appellee would experience loss of earning capacity; rather, he stated, it would be up to the...