Forrest City Mach. Works, Inc. v. Aderhold, 81-17

• Decision Date: 26 May 1981
• Docket Number: No. 81-17,81-17
• Citation: 616 S.W.2d 720,273 Ark. 33
• Parties: FORREST CITY MACHINE WORKS, INC., Appellant, v. Rayburn ADERHOLD et al., Appellees.
• Court: Arkansas Supreme Court

Page 720

616 S.W.2d 720

273 Ark. 33

FORREST CITY MACHINE WORKS, INC., Appellant, v. Rayburn ADERHOLD et al., Appellees.

No. 81-17.

Supreme Court of Arkansas.

May 26, 1981.

Rehearing Denied June 29, 1981.

Wildman, Harrold, Allen, Dixon & McDonnell by Robert M. Johnson and Thomas J. Walsh, Jr., Memphis, Tenn., and Tom B. Smith of Shaver, Shaver & Smith, Wynne, for appellant.

Laughlin, Halle, Regan, Clark & Gibson, Memphis, Tenn., and H. David Blair, Batesville, for appellees.

DUDLEY, Justice.

Appellee, Rayburn Wayne Aderhold, by his guardian and parents, sued appellant, Forrest City Machine Works, for personal injuries sustained in a 1977 farm accident involving a grain cart which was manufactured by appellant in 1956. Aderhold, who was eight years old at the time of the accident, had accompanied his uncle to a farm where the uncle and two of Aderhold's young cousins worked. One of the cousins, a thirteen-year-old, was operating a tractor with a grain cart attached by means of an open power take-off line shaft which was controlled by the tractor operator. Aderhold had climbed up on the cart while the shaft was in motion and was told to get off. When he was climbing back down the ladder, he caught his pants leg on a part of the machinery and his leg was pulled into the rotating shaft. He sustained multiple leg fractures, had various operations, and is now disabled. Appellee sued appellant and the owner of the farm, who is not involved in this appeal, on theories of negligence and strict liability. A Cross County circuit court jury awarded appellee $235,000 compensatory damages plus $500,000 punitive damages.

The appellant contends that the issue of negligence should never have been submitted to the jury because: (1) As a matter of law, an open and obvious hazard is not unreasonably dangerous, and the manufacturer has no duty to warn of such a hazard; (2) there is no substantial evidence that appellant failed to comply with the 1956 state of the art concerning safety features on grain carts; (3) regardless of the theory applied, as a matter of law the circumstances leading to the accident were not foreseeable.

Under the "open and obvious" rule, a manufacturer of a product has no duty to guard against or give notice of dangers which are obvious or patent to the user. See Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). We have never followed this rule in Arkansas, and do not now adopt it. The Florida Supreme Court in Auburn Machine Works Co. v. Jones, 366 So.2d 1167 (1979) wisely observed:

The patent danger doctrine encourages manufacturers to be outrageous in their design, to eliminate safety devices, and to make hazards obvious. For example, if the cage which is placed on an electric fan as a safety device were left off and someone put his hand in the fan, under this doctrine there would be no duty on the manufacturer as a matter of law. So long as the hazards are obvious, a product could be manufactured without any consideration of safe guards ...

The patent danger doctrine protects manufacturers who sell negligently designed machines which pose formidable dangers to their users.

Manufacturers in Arkansas are not and should not be relieved of the duty to exercise due care in the design and manufacture of equipment merely because the dangerous feature is clearly exposed to those foreseeably using the machine. However, there is no duty on the part of a manufacturer to warn of a danger when the dangerous defect is open and obvious. As stated in Larson Machine v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980): "One cannot be heard to say that he did not know of a dangerous condition that was so obvious that it was apparent to those of ordinary intelligence." One must use ordinary care to protect himself from an apparent danger, and he may be barred from recovery from the manufacturer on grounds of contributory negligence or assumption of the risk, but this is for the jury to determine. See Larson, supra. The open and obvious rule will not serve as a defense, as a matter of law, to all bases of liability.

Appellant contends that there was insufficient evidence for the jury to conclude that the grain cart was manufactured in a manner that did not comply with the state of the art at the time of manufacture, and therefore, as a matter of law, it is not liable for a negligent design or negligent manufacturing. Even if "state of the art" were the Arkansas test, there is substantial evidence to support the jury finding that appellant's grain cart was not manufactured in accordance with customary procedures at that time. According to the record, by 1956, the time of manufacture, various other manufacturers were using safety devices to shield the power take-off unit.

Compliance with industry customs is not a defense as a matter of law to a negligence action. As we stated in Verson Allsteel Press Co. v. Garner, 261 Ark. 133, 547 S.W.2d 411 (1977):

(W)hile we consider this evidence (safety standards) ... pertinent and relative to the determination reached, such evidence is not controlling, i. e., customary methods, or accepted standards, are not at all conclusive and negligence may exist notwithstanding the fact that the method adopted was in accordance with customary procedures. (Emphasis added.)

Appellant argues that it was not reasonably foreseeable that an eight-year-old would climb upon the cart, or that anyone would use the grain cart ladder while the machine was in operation, or that anyone would be oblivious to the danger of an open spinning power shaft.

This Court, in a 1962 products liability case, ruled that a manufacturer who fails to use reasonable care in the design and manufacture of a product is liable not only for the harm which may come to users of the product, but also for harm which may come to a person who may reasonably be expected to come into contact with the product. International Harvester Co. v. Land, 234 Ark. 682, 354 S.W.2d 13 (1962).

Viewing the evidence most favorably to appellee, we cannot say there was no substantial evidence from which the jury could find it was customary in Arkansas for youngsters to be operating farm machinery and that it was not unusual for an eight-year-old farm boy to be attracted to such machinery. The record shows that farming in Arkansas is frequently a family operation and all family youngsters may be expected to come into contact with the family's farm machinery. The record also contains sufficient evidence from which the jury could find that one might use the ladder on the grain cart while the power take-off was engaged.

Appellant next contends that even if it was negligent in the design and manufacture of the cart, appellee's injuries, as a matter of law, were proximately caused by his own assumption of the risk and by intervening causes.

In Capps v. McCarley and Co., 260 Ark. 839, 544 S.W.2d 850 (1976), we held that assumption of risk bars recovery where (1) a dangerous condition exists which is inconsistent with the injured party's safety, (2) the injured person is actually aware of the condition and appreciates the danger, and (3) the injured person voluntarily exposes himself to the danger which produces the injury. However, under this harsh doctrine, it is not sufficient for the defendant to prove that the plaintiff was generally aware of risks or dangers of coming into contact with the product, but rather the defendant must prove that the plaintiff had knowledge of the specific danger and that he fully comprehended and appreciated that danger. As said in Price v. Daughtery, 253 Ark. 421, 486 S.W.2d 528 (1972):

Assumption of risk occurs only when the injured person actually knows and appreciates the danger. The standard is a subjective one, being based upon what the particular person in fact sees, knows, understands, and appreciates. McDonald v. Hickman, 252 Ark. 300, 478 S.W.2d 753 (1972).

In order for appellant to prevail upon this point, we would have to hold, with all inferences in favor of appellee, that intelligent persons could only conclude that this eight-year-old child knew and appreciated the dangerous proximity of the grain cart's ladder to the drive shaft, and that as he climbed down the ladder, the shaft could become entangled with his pants, pull him from the ladder and horribly injure him. We do not find this strong proof in the record that was abstracted and affirm the trial judge in ruling that assumed risk was for the jury to decide. Likewise, we affirm the trial judge in submitting the issue of intervening cause to the jury.

Ark.Stat.Ann. § 85-2-318.2 (Supp.1979), the statutory adoption of strict liability, was enacted in 1973. The grain cart was manufactured in 1956, and obviously was designed before being produced. The accidental injury occurred after enactment of the statute. The trial court applied the statute and appellant argues that this violated the prohibition against retroactive application of legislation.

We find no constitutional or statutory prohibition to prevent the application of this statute in this case. The only express provisions in the Federal Constitution against retroactive laws forbid Congress to pass ex post facto laws or bills of attainder, Article I, § 9, No. 3, and forbid states to pass ex post facto laws, bills of attainder, or laws which impair the obligation of contract, Art. I, § 10, No. 1, Article 2, § 17 of the Arkansas Constitution also applies to bills of attainder, ex post facto laws and laws which impair the obligation of contracts. Many types of retroactive laws are not covered by these express prohibitions.

The due process clauses are frequently held to prevent retroactive legislation from taking property belonging to one and giving it to another, without regard to any prior relations between the parties. To determine if one has a protected property right the courts often look to see if a right has vested. Bryant Smith, in his articles, "Retroactive Laws and Vested...