Grady v. American Optical Corp.

• Decision Date: 17 December 1985
• Docket Number: 48608,Nos. 48682,s. 48682
• Parties: Prod.Liab.Rep. (CCH) P 10,822 George O. GRADY, Plaintiff-Appellant/Cross-Respondent, v. AMERICAN OPTICAL CORPORATION, Robert A. Nieberding, d/b/a R.A. Nieberding Co., Defendants-Respondents/Cross-Appellants.
• Court: Missouri Court of Appeals

Page 911

702 S.W.2d 911

Prod.Liab.Rep. (CCH) P 10,822

George O. GRADY, Plaintiff-Appellant/Cross-Respondent, v. AMERICAN OPTICAL CORPORATION, Robert A. Nieberding, d/b/a R.A. Nieberding Co. Defendants-Respondents/Cross-Appellants.

Nos. 48682, 48608.

Missouri Court of Appeals,

Eastern District,

Division Two.

Dec. 17, 1985.

Motion for Rehearing and/or Transfer

Denied Jan. 14, 1986.

Application to Transfer Denied

Feb. 18, 1986.

Douglas P. Dowd, Dowd & Dowd, P.C., St. Louis, for plaintiff-appellant/cross-respondent.

Frank N. Gundlach, St. Louis, for defendants-respondents/cross-appellants.

KELLY, Judge.

Plaintiff George O. Grady, following a jury trial, was awarded damages of $350,000.00 against American Optical Company, hereinafter American, and Robert A. Nieberding, d/b/a Nieberding Company, hereinafter Nieberding. Both defendants filed motions for judgment in accordance with defendants' motions for directed verdict, or in the alternative for a new trial, or in the further alternative for remittitur. The trial court sustained the defendants' motions for a new trial but denied their other alternative motions. Defendants have appealed from the order denying their motions for judgment in accordance with their motions for directed verdict.

Plaintiff, hereinafter Grady, has appealed from the order granting defendants a new trial. These appeals were consolidated in this court.

Initially, inasmuch as the granting of the defendants' motions for new trial was to remove an adverse judgment against them, the denial of their motions for judgment n.o.v. neither constitutes a final judgment within § 512.020 RSMo 1978, nor adversely affects or aggrieves them so as to give them standing to appeal. State ex rel. Mather v. Carnes, 551 S.W.2d 272, 279 (Mo.App.1977); Powell v. Watson, 516 S.W.2d 51, 52 (Mo.App.1974).

Despite the fact that this jurisdictional question has not been raised by the parties to this appeal, it is our duty to notice that question ex mero motu, Powell v. Watson, supra, at p. 52, and dismiss the appeals of American and Nieberding for the reasons hereinbefore stated. Mrad v. Missouri Edison Co., 649 S.W.2d 936, 941 (Mo.App.1983).

Dismissal of the appeals of American and Nieberding does not, however, foreclose a challenge to the submissibility of the case against them because this question was preserved in their after-trial motions, and where the record shows that the plaintiff cannot recover under the law and the evidence, we will direct entry of judgment for the defendants and spare another trial. Mrad v. Missouri Edison Co., supra, at p. 942[6, 7].

Grady brought this action under a strict products liability failure to warn theory after a pair of safety glasses allegedly manufactured by American and distributed to Grady's employer, Scullin Steel, by Nieberding shattered causing injuries to Grady.

On appeal American and Nieberding contend that Grady did not make a submissible case because neither defendant owed a duty to plaintiff to warn plaintiff (a) that safety glasses and lenses could be broken by excessive forces because any reasonable wearer of safety glasses and lenses knew that the glasses would break if subjected to excessive forces and Missouri law imposes no duty to warn a consumer of obvious and commonly known dangers; (b) that safety glasses and lenses were not reasonably intended to be worn by consumers to protect them against an explosion of the type mentioned in evidence; and (c) there was no competent evidence that either of the defendants manufactured or sold the safety glasses or lenses worn by Grady at the time of the explosion.

In considering a products liability defendants' contention that plaintiff did not make a submissible case we must view plaintiff's evidence in a light most favorable to plaintiff, give the plaintiff the benefit of inferences reasonably drawn from the evidence and disregard defendants' evidence that does not support plaintiff's case. Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 274 (Mo. banc 1984).

Viewed in this light, the jury could have found from the evidence that Grady worked for Scullin Steel Corporation from 1974 to 1979, and during most of this time as a "burner." His job required that he use an acetylene torch to burn off unwanted steel on castings for railroad cars.

On February 7, 1979, he arrived at work at about 6:00 a.m. and put on his safety equipment, which included a welding hood, safety glasses, a respirator, a fire-retardant jacket, hearing protection, leather leggings, a safety cap, and leather gloves.

After reporting to his work station, Grady had difficulty lighting the tip of his cutting torch and went to the maintenance department in another building at the plant to get a new tip. After he returned to his work place he placed the acetylene torch on a barrel and attempted to light it when an explosion occurred in which both the barrel and the acetylene torch flew into the air. Grady was struck by the acetylene torch causing his nose and cheekbone, as well as the orbit bone beneath his right eye, to fracture, and also shattering the right lens of his safety glasses sending pieces of glass into his right eye. At the time of the explosion his welding hood was not down covering his face.

After the explosion, Grady was taken to the plant nurse and then to Deaconess Hospital. Ester Stanley, a welder, picked up the safety glasses Grady had been wearing and gave them to John Gilliam, the vice-president in charge of the union safety committee; who in turn gave them to either Bernard Lehr, who was at the time safety director, or to Joseph Pavero, who was at the time safety administrator. The glasses were not introduced into evidence at trial; however, Grady testified that the glasses were American glasses; that during the period he worked at Scullin Steel, the company bought only American safety glasses; and that that manufacturer's name was on the frames.

Joseph Pavero, ¹ Safety Director at Scullin Steel, testified that to the best of his knowledge all the safety glasses in use at Scullin Steel in 1979 were American glasses purchased through Nieberding. Bernard Lehr, who was the safety director at the time of this explosion did not testify at trial. Pavero also testified that prior to February 7, 1979, he believed that safety glass lenses were designed to granulate into harmless powder rather than fragment when they broke. He believed that if safety glass shattered it was defective and that what distinguishes safety glass from ordinary glass "is not its ability to withstand a blow but its ability to keep it [the glass] from shattering."

Robert Nieberding also testified that he had sold safety glasses to Scullin Steel for 35 years; and that he did not know these glasses could shatter and splinter and hurt someone's eyes.

The safety glasses manufactured by American had a warning tag attached to the nose bridge when they were originally shipped to a purchaser. The tag contained the following warning:

CAUTION

These hardened glass lenses are impact resistant but are not unbreakable. Clean and inspect lenses frequently. Pitted and scratched lenses reduce vision and seriously reduce protection. Replace immediately. Meets

ANSI Z 87.1-1968

Since this tag was attached to the nose bridge, it had to be removed before the glasses could be worn. None of the witnesses who worked at Scullin remembered seeing these tags.

There was testimony by an expert in the material packaging and handling field who had acted as a consultant to various corporations on legal matters involving the adequacy of warnings. According to his testimony the warning tag was inadequate because of the ease with which it could be removed or could accidently come off. He thought that a warning that the glasses could shatter could have been embossed on the side shields or side frames of the safety glasses and that the warning quoted hereinabove inadequately explained the danger.

An optometrist, Kermit Kors, testified that he had just completed a 3 year study under the auspices of the National Institute of Occupational Safety and Health on the impact resistance of lenses and frames. He testified that heat tempered lenses could shatter and cause eye injury and that it was a popular misconception that safety glasses would not cause harm if they were broken because the fragments would have rounded edges. He said this simply was not the case; that the fragments of a broken safety glass lens do have sharp edges.

There was ample evidence that Grady sustained serious injuries to his right eye because of slivers of glass from the right lens of the safety glasses he was wearing at the time of the explosion.

Grady submitted his claims against American and Nieberding on a "failure to warn" theory of strict products liability. Under this theory a manufacturer and/or distributor can be held strictly liable if injury results from its failure to provide an adequate warning of danger inherent in the use of the product it sells. Duke v. Gulf & Western Manufacturing Company, 660 S.W.2d 404, 418 (Mo.App.1983). However, manufacturers and distributors are not under a duty to provide warnings about dangers which are open and obvious, or which are commonly known. If the user of a product knows or reasonably may be expected to know of a particular danger, strict liability will not result from a failure to warn of that danger. Duke, id., at p. 418; LaPlant v. E.I. DuPont DeNemours and Company, 346 S.W.2d 231, 245 (Mo.App.1961); Restatement (Second) of Torts, § 388 Comment K.

Defendants, American and Nieberding, contend that the danger of glass shattering is a matter of common knowledge and therefore they were under no duty to warn Grady or his employer that safety glass can shatter and cause injury to the wearer's eyes.

We believe it is obvious that untreated glass will break and shatter. The issue here, however, is whether it is commonly known that which is identified as ...