Hagan v. EZ Mfg. Co.

• Decision Date: 05 May 1982
• Docket Number: No. 81-2212,81-2212
• Parties: Jerry Wayne HAGAN, Plaintiff-Appellant, v. EZ MANUFACTURING COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1047

674 F.2d 1047

Jerry Wayne HAGAN, Plaintiff-Appellant, v. EZ MANUFACTURING COMPANY, Defendant-Appellee.

No. 81-2212.

United States Court of Appeals, Fifth Circuit.

May 5, 1982.

Maurice Amidei, Houston, Tex., for plaintiff-appellant.

Robert Ramey, H. Kent Twining, Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, RANDALL and TATE, Circuit Judges.

WISDOM, Circuit Judge:

This products liability case involves an electric saw which allegedly was unreasonably dangerous because of a design defect. On the record before us, we are compelled to hold that the district court acted properly in granting the defendant's motion for a directed verdict. The plaintiff failed to present sufficient evidence for the case to go to the jury on allegations of a design defect and of a failure to warn causing the accident. We hold that, as a matter of law, the doctrine of products liability does not require a manufacturer to build a failsafe product.

I.

The plaintiff/appellant, Jerry Wayne Hagan, is a resident and citizen of Houston, Texas. The defendant/appellee, EZ Manufacturing Co., is a Pennsylvania corporation which manufactures and sells gang saws. The defendant designed, manufactured, delivered, and installed one of its saws at a plant belonging to the Burgess Manufacturing Co. of Guthrie, Oklahoma.

Hagan was a resident of Guthrie, Oklahoma, and was employed at the Burgess plant at the time of his injury. He had previously worked as a machinist, a mechanic, and had done some electric wiring. At the defendant's plant Hagan headed the department which sawed raw material for warehouse pallets and operating materials for crates. He supervised ten to twelve persons working with a notching machine, a milling machine, a triple saw, and principally, the gang saw in question.

The intended use of the saw was to cut or mill wood to various lengths, shapes, and sizes. The saw was designed with a side panel which opens to permit changing the blade or removal of weak or rotten wood that would frequently jam the saw. The record discloses that wood became smashed, thus jamming the saw about three to six times daily. In such cases, a worker would usually reach inside the saw with his hand and pull out the wood, but only after turning off the power.

The allegedly defective saw was part of a system which included a console located ten feet away, connected by wired conduits. The console was the power center of the system and included a functional red light indicator and the key to turn the power on and off. The system lacked a warning light, a buzzer, an automatic cut-off switch, or a close-at-hand manual cut-off power switch.

There was no device that would indicate at the site of the saw that the electric current was running. Ed Zimmerman, the President of the defendant company and designer of the saw in question, testified that it would have been feasible at a cost of about $200 to install a light, buzzer, or automatic cut-off switch on the side panel. The sides of the saw failed to carry a warning sign. But there were signs in large letters at the front and back of the saw, warning against operating the machine without guards and cautioning the operator to keep his hands clear when the machine was operating. According to the evidence adduced at trial, Hagan was well aware of the danger of putting his hand in the saw while the power was on. He had frequently instructed the crew whom he supervised not to remove any wood without first turning off the power.

According to the district court's findings of fact, on August 13, 1979, Hagan went to work as usual at 7:00 a. m. At the job he noticed that the saw was shut down. He went over to investigate, for it was his job to keep the assembly line moving. As he approached the saw, Hagan noticed that a side panel had been removed. The men were attempting to extract a piece of wood which was clogging the saw.

Hagan did not know whether the power was on or off. The saw was noisy when running, but it was not noisy now. The rollers and blades were not running. Hagan saw broken pieces of wood in between the blades. He took hold of a piece of wood and pulled it out of the jammed saw. As he did, the wood came in contact with the microswitches between the rollers, activating the rollers. The rollers came down and caught the plaintiff's hand between the wood and the top down-clamped roller.

The purpose of the rollers is to put pressure on a piece of wood or cant to force it through the saw blade. In operation, the rollers are activated by the microswitches which are on a little rubber flap that sticks up. When the cant freezes over the switch, it pushes the switch over and activates the hydraulic rollers. Each of these rollers comes down and clamps on the wood with about 600 pounds of pressure.

In this case, when the saw became operational upon the removal of the wooden block, the roller came down and clamped on Hagan's fingers. He jerked his hands up as the rollers came down, but his left middle finger was nearly torn off and his right little finger was smashed. Both fingers are stiff, thick, sore, and permanently injured. At the trial a physician testified that in reasonable medical probability, the plaintiff suffered a 10 percent loss of function as a result of the injury. The scarring affects his enjoyment of life; in particular, the stiffness of the fingers impairs his guitar playing, one of his favorite sidelines.

The plaintiff filed a diversity suit for personal damages against the defendant on March 19, 1980, for the injuries he sustained. In April 1981, the plaintiff presented his case-in-chief based upon products liability concepts of design, manufacturing, and warning defects. The district court apparently granted the defendant's motion for directed verdict on three grounds: (1) that there was no legally competent evidence concerning the issue of defective design; (2) that there was no evidence that any failure to warn was a producing cause of the injury; and (3) that the plaintiff assumed the risk of any dangers incident to the use of the product. The district court signed and entered final judgment for the defendant on April 27, 1981.

II.

In this diversity suit, the substantive law of Oklahoma applies. Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Porter v. American Optical Corp., 5 Cir. 1981, 641 F.2d 1128. The Oklahoma Supreme Court has set out the elements of proof in a products liability case in the seminal case, Kirkland v. General Motors Corp., Okl.1974, 521 P.2d 1353. Under Oklahoma law, there are three elements of products liability: First, the plaintiff must prove that the product was the cause of the injury; second, the plaintiff must prove that a defect existed in the product at the time it left the manufacturer's control; and third, the plaintiff must prove that the defect made the product "unreasonably dangerous ", to the extent beyond which would be contemplated by the ordinary purchaser. 521 P.2d at 1355; Sterner Aero Ab v. Page Airmotive, Inc., 10 Cir. 1974, 499 F.2d 709, 713.

The court in Kirkland adopted the Restatement (Second) of Torts § 402A (1965), which bases liability on the two critical concepts of "defective condition" and "unreasonably dangerous". With regard to the "defective condition" requirement, Comment g to § 402A Restatement (Second) of Torts at 351 states:

"The rule stated in this Section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him."

With regard to the "unreasonably dangerous" requirement, Comment i to § 402A Restatement (Second) of Torts at 352 states:

"The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common in the community as to its characteristics."

A majority of the courts have required a plaintiff to prove both the defective condition and the unreasonably dangerous nature of a product. See, e.g., Kleve v. General Motors Corp., Iowa, 1973, 210 N.W.2d 568; Brown v. Western Farmers Ass'n, 1974, 268 Or. 470, 521 P.2d 537; and Jagmin v. Simonds Abrasive Co., 1973, 61 Wis.2d 60, 211 N.W.2d 810. Some courts have eliminated the "unreasonably dangerous" requirement. See, e.g., Cronin v. J.B.E. Olson Corp., 1972, 8 Cal.3d 121, 104 Cal.Rptr. 433, 501 P.2d 1153; and Glass v. Ford Motor Co., 1973, 123 N.J.Super. 599, 304 A.2d 562. Other courts have eliminated the "defective condition" requirement. See, e.g., Ross v. Up-Right, Inc., 5 Cir. 1968, 402 F.2d 943; and Seattle-First National Bank v. Tabert, 1975, 86 Wash.2d 145, 542 P.2d 774. In interpretating the Oklahoma law, the Tenth Circuit proceeded on the basis that both requirements must be satisfied. Bruce v. Martin-Marietta Corp., 10 Cir. 1976, 544 F.2d 442, 447. We proceed on the same basis. See Freund v. Cellofilm Properties, Inc., 1981, 87 N.J. 229, 432 A.2d 925, 935-36, comparing the law in different jurisdictions.

III.

Motions for a directed verdict have a high mortality rate in this circuit. Nevertheless, in the proper case they protect the integrity of the law from the vagaries of the civil jury system.

As noted, the district court found first that there was "no legally competent evidence that the product in question was defectively designed". The plaintiff failed to produce expert testimony on the design and safety engineering aspects of the saw. ¹ There was, however, some evidence that installation of a safeguard might have prevented the accident. For example, Ed Zimmerman, the President of the defendant company and designer of the saw, admitted that a cut-off, an interlock switch, or other protective device was feasible at a reasonable cost. The trial judge concluded, however, that this bit of testimony was not...