Hartman v. Opelika Mach. and Welding Co., TT-50
| Decision Date | 28 May 1982 |
| Docket Number | No. TT-50,TT-50 |
| Citation | 414 So.2d 1105 |
| Parties | Ida Jean HARTMAN, Appellant, v. OPELIKA MACHINE AND WELDING COMPANY and United States Fidelity and Guaranty Company, Appellees. |
| Court | Florida District Court of Appeals |
R. P. Warfield and James M. Barton, II, of Levin, Warfield, Middlebrooks, Mabie, Rosenbloum & Magie, Pensacola, for appellant.
Charles C. Sherrill and Larry Hill, of Sherrill, Moore & Hill, Pensacola, for appellees.
In this products liability action, Ida Jean Hartman appeals from a final judgment in favor of appellee, Opelika Machine and Welding Company, the manufacturer of an allegedly defective product which purportedly caused certain personal injuries suffered by her at the Monsanto Textiles Company mill where she worked. Appellant Hartman relies for reversal upon several asserted trial errors, only two of which merit extended discussion: (1) Whether the entry of a directed verdict for appellee on the theory of strict liability was reversible error, and (2) whether it was reversible error for the trial judge to allow Opelika to present evidence of Monsanto's design changes in the spin buggy after the accident. We find the first assigned point requires reversal, but affirm the latter.
Appellant was employed by Monsanto as a drawtwist operator. Her job was to take finished yarn from one drawtwist machine, put the spools of finished yarn onto the arms of a spin buggy, and move on to the next machine. The spin buggy had a rectangular base, and was mounted on four wheels so that it could be rolled by the operator along the plant floor from machine to machine. At each end of the spin buggy's rectangular base were stanchions to which were welded several projecting arms made of aluminum tubing, that served as handles for moving the buggy and to hold the bobbins of yarn. The accident occurred while appellant was walking backwards, pulling at the same time the top arm of the buggy with her right hand, when the arm handle broke off, thereby causing her to fall onto the concrete floor.
Appellant's three-count fifth amended complaint sought recovery on the theories of implied warranty, negligence, and strict liability. Prior to trial, a summary judgment was granted in favor of Opelika on the strict liability count, insofar as any design defect was concerned, upon uncontradicted evidence that the spin buggy was fabricated by Opelika based upon a design and specifications furnished by Monsanto. At trial, after all evidence for plaintiff and defendant had been presented, the trial court directed a verdict for Opelika on the strict liability count, as to any manufacturing defect, and submitted the case to the jury on the counts charging breach of implied warranty and negligence. As to those theories, the jury returned verdicts absolving Opelika from liability.
Although the record before us does not disclose the trial judge's reasons for directing a verdict on the strict liability count at the close of all the evidence, we presume from Opelika's arguments here and in the court below that the trial judge was persuaded by Opelika's "stream of commerce" argument. Opelika maintains that a manufacturer which fabricates and supplies a product solely for the use of a single purchaser, using a design, plans and specifications furnished by the purchaser, is not "engaged in the business of selling such a product" within the meaning and intent of Section 402A, Restatement of Torts (Second). If this were the basis for the court's decision, it was without legal foundation. Opelika was in the business of manufacturing and supplying products such as the spin buggy to independent customers, and we find no authority to suggest that Opelika's liability for a defectively welded part should be determined on different principles than for a manufacturer who places its product on the market for sale to the general public. Section 402 of the Restatement of Law of Torts (Section), defining strict liability, "applies to any manufacturer of ... a product [for use or consumption], to any wholesale or retail dealer or distributor ...." See comment f to Section 402A.
The arguments made by defendant here should be compared with those of the defendant manufacturers in Foster v. Day & Zimmermann, 502 F.2d 867 (8th Cir. 1974) and Challoner v. Day & Zimmermann, Inc., 512 F.2d 77 (5th Cir. 1975), to the effect that because they assembled certain military products according to the government's specifications and design, and sold the products exclusively to the government, they were not part of the distributive process. Both courts rejected these arguments, holding that strict liability applies to a situation which is essentially commercial in nature, involving the transmission of the product into the stream of commerce.
Opelika's stronger argument is that notwithstanding the fact that the lower court may have erred in granting the motion for directed verdict on Hartman's strict liability claim, the error was harmless only because the charge given to the jury on implied warranty, being substantially similar to that of strict liability was, in effect, an instruction which was tantamount to strict liability. Opelika relies upon a decision of the Fourth District Court of Appeal, Sansing v. Firestone Tire and Rubber Company, 354 So.2d 895 (Fla. 4th DCA 1978), in which the court held that no error occurred due to the trial court's dismissal of plaintiff's strict liability claim because the charge given the jury on breach of implied warranty closely paralleled that given on strict liability. Had the same or substantially similar charge been given by the court to the jurors in the case below as was given them in Sansing, we would have no difficulty in agreeing that the directed verdict on the strict liability claim was harmless. The trial court's instruction in Sansing was, however, far different from that given here. Compare the charge given below 1 with that given the jury in Sansing. 2
The Sansing instruction substantially approximates the standard instruction presently provided juries in strict liability actions, to the effect that "[a] product is defective if it is in a condition unreasonably dangerous to the user and the product is expected to and does reach the user without substantial change affecting that condition." See Standard Instruction PL-4. 3 On the other hand, the charge given here was patterned after Standard Instruction PL-2, relating to the implied warranty of merchantability, stating that "[a] product is defective if it is not reasonably fit for the uses intended or reasonably foreseeable by (defendant)." 4 Obviously, then, both the standard instruction on strict liability and the instruction given by the trial court in Sansing on breach of implied warranty of merchantability emphasize--unlike the charge given here--the unreasonably dangerous condition of a product that may cause physical harm to the user. The failure to charge the jury on a product's potential affinity for causing injury is a serious omission. As Professor Wade 5 has observed Wade, On the Nature of Strict Liability for Products, 44 Miss.L.J. 825, 832 (1973).
Instead of advising the jury that a defendant may be liable for manufacturing a defective product which may be so unreasonably dangerous as to cause physical harm to a human being, the charge given below stresses the contractual relationship between the buyer and the seller, or the idea of a contractual action for failure of the plaintiff to receive what had been contracted for. Indeed, the various remedies afforded the respective parties under Part VII of the UCC relating to sales (2.701-.724) underscore such contractual relationships. As examples, the buyer's remedies include his right to cancel the contract, to recover damages for non-delivery of the goods, to obtain specific performance or replevy the goods, etc., UCC 2.711; yet, only one remedy is permitted him in the event he suffers personal injuries, and it is limited to consequential damages resulting from the seller's breach which are "proximately resulting from any breach of warranty." Section 672.715(2)(b), Florida Statutes (1979) (UCC 2.715(2)(b)). Thus, the reasonable fitness test for determining whether goods are merchantable
was never intended to be a test for ascertaining when a maker would be liable for damages incurred by those who were physically harmed. This is apparent from the fact that the Uniform Commercial Code provides for recovery of damages for physical harm as consequential damages from a breach of warranty and only then if that damage proximately results from the breach of warranty. This means at the very least that physical harm from such unfitness must be reasonably foreseeable.... [T]his is a circuitous route to saying that the product is unreasonably dangerous.
Keeton, 6 Product Liability and the Meaning of Defect, 5 St. Mary's L.J. 30, 37 (1973) (footnotes omitted) (emphasis in original).
An additional problem stemming from the indiscriminate application of the implied warranty standard to a strict liability action is the measure of damages awardable. As we previously observed, one who seeks damages for personal injuries in an action founded on breach of implied warranty may receive them only if they "proximately result ... from any breach of warranty." Section 402A, however, does not limit the recovery of damages to those which are proximately caused by a product's defectiveness, but instead uses the words, "harm thereby caused ...," thus suggesting that it may have been the drafters' intention to require the plaintiff to prove only that the defective product was the factual cause of...
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