Hardy v. Hull Corporation
Decision Date | 16 August 1971 |
Docket Number | No. 25576.,25576. |
Citation | 446 F.2d 34 |
Parties | Guylene HARDY, Appellant, v. HULL CORPORATION, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Lester Engeler, U. S. Atty., Canal Zone (argued), for appellant.
James W. Hill (argued), of Shimmel, Hill & Bishop, P. C., Phoenix, Ariz., for appellee.
Before BARNES, JERTBERG and KOELSCH, Circuit Judges.
This is an appeal from a directed verdict rendered in favor of Hull Corporation, the manufacturer of a mold press sold by Hull to Motorola, Inc., appellant's employer. Appellant was working the press when injured, at which time her thumbs were burned and crushed after insertion in the heated press while it was in operation. Appellant urges the press was defectively designed, and relies on negligence, strict liability, and implied warranty. We affirm the directed verdict.
At the time the press was purchased by Motorola, Inc., safety gates were available for the press, but were not purchased by Motorola. Molds for use in the machine were similarly available, but Motorola chose to make and use its own. There were in evidence facts on which the trial court concluded Motorola had made modifications in the machine itself after purchase, during the five years it owned and operated it. Appellant and all other employees had been instructed that if anything went wrong with the operation of the press, to stand back and call the operator's supervisor. These instructions were not followed by the plaintiff in this case.
We need not delve into the questions of whether appellant was guilty of contributory negligence, or assumed the risk involved. Nor need we discuss any problems of warranty, as a basis for products liability, inasmuch as liability can properly rest on tort, rather than contract law, and thus avoid the complications of privity, or the lack of it. Cf. Bailey v. Montgomery Ward & Co., 6 Ariz.App. 213, 431 P.2d 108, 110-112; (1967); Prosser, 69 Yale Law Journal, 1099, 1134 (1960).
Under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we are bound by the law of the forum state in diversity cases, of which this is one. "Strict Tort Liability", as set forth in § 402A of the Restatement of Torts (Second) (1965) is applicable in Arizona. (O. S. Stapley Co. v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968)). Section 402A provides:
The Arizona law was further set forth relatively recently in Maas v. Dreher, 10 Ariz.App. 520, 460 P.2d 191 (1969), rev. denied by Arizona Supreme Court (1970), which points out that "strict liability" does not mean "absolute liability," (id. at 192) (citing and relying upon Campo v. Scofield, 301 N.Y. 468; 95 N.E.2d 802 (1950), and interpreting Stapley v. Miller, supra, and § 402A of the Restatement (Second)), and said:
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