Haugen v. Minnesota Mining & Mfg. Co.

• Decision Date: 22 April 1976
• Docket Number: No. 1536--II,1536--II
• Citation: 15 Wn.App. 379,550 P.2d 71
• Parties: Kenneth K. HAUGEN, Respondent, v. MINNESOTA MINING AND MANUFACTURING COMPANY, a corporation, Appellant.
• Court: Washington Court of Appeals

Page 379

15 Wn.App. 379

550 P.2d 71

Kenneth K. HAUGEN, Respondent, v. MINNESOTA MINING AND MANUFACTURING COMPANY, a corporation, Appellant.

No. 1536--II.

Court of Appeals of Washington, Division 2.

April 22, 1976.

Harold E. Winther of Small & Winther, Tacoma, for appellant.

Frank August Peters and H. Frank Stubbs, Tacoma, for respondent.

REED, Judge.

Plaintiff, Kenneth K. Haugen, lost an eye when a grinding disc manufactured by defendant, Minnesota Mining and Manufacturing Company, (hereafter 3M), exploded into three pieces, one of which struck him in the eye. A Pierce County Superior Court jury awarded plaintiff $100,000 for his injuries, and 3M appeals from the judgment entered on that verdict. Although plaintiff's complaint was based on the theories of negligence, breach of express and implied warranties, and strict liability in tort, the case was tried and submitted to the jury on only the latter theory.

Defendant's numerous assignments of error raise five legal issues on appeal: (1) Did plaintiff produce sufficient evidence to avoid defendant's motion to dismiss at the close of plaintiff's case? (2) Did the court correctly instruct the jury on the defense of assumption of risk in a strict liability case? (3) May a manufacturer's failure to warn of a potentially unreasonable danger in a product, by itself, constitute a defect in the product? (4) Did the trial court abuse its discretion by limiting the scope of defendant's inquiry into plaintiff's criminal record? (5) Was defendant prejudiced by plaintiff's counsel's violation of a pretrial order in limine during closing argument? We resolve each issue in plaintiff's favor and affirm the judgment.

The accident resulting in plaintiff's injuries occurred on October 24, 1972 in a radiator repair shop owned and operated by Robert Thomas, a friend of the plaintiff. Plaintiff had voluntarily gone to the shop to assist Thomas in the remodeling of his 1961 Ford van, and was not employed by Thomas. Plaintiff had held numerous jobs requiring the use of power tools and equipment and had received some safety training while employed in such a capacity for the Boeing Company. The accident occurred while plaintiff was making a new dashboard for the van out of hardboard. Having placed the hardboard and the old metal dashboard, which he was using as a pattern, in a vise on a workbench, plaintiff picked up a 'Blue Dart' pneumatic power grinder, attached to which was the allegedly defective grinding disc, and commenced grinding on the hardboard. Plaintiff testified that the following then occurred:

I held the sander . . . and I hit the speed a couple of times to get it spinning, and came down lightly across here. I let off on the trigger and I believe I said something to Bob Thomas about sanding excessively easy, like butter, and then I proceeded to sand across here again, and work on this edge a little bit, and I made one pass down the side, and one pass down again. I got approximately here and was struck in the face, and that's what I know of what I was sanding. I don't know what happened exactly after that.

Testimony of other witnesses revealed that the disc had exploded into three pieces; one piece imbedded itself in a metal can of hand cleaner on the workbench, another flew across the shop and landed 30 feet from the workbench, and the third piece struck plaintiff in the face, slicing through his glasses and causing the loss of an eye.

The power grinder and disc belonged to Leonard Veitenheimer, the proprietor of an auto body shop in the same building as Thomas's radiator shop, who had loaned the tools to Thomas for use during the remodeling of his van. The day before the accident Veitenheimer had placed the disc in question on the grinding machine after which Thomas used it for approximately 30 minutes to an hour to grind rough spots on the metal body of the van. Veitenheimer testified that the type of disc which shattered was designed for use on either metal or wood and depending on the use to which it is put, should last from 3 to 4 days. The plaintiff testified that prior to using the grinding disc on the day of the accident he had inspected it and it appeared 'perfectly new.'

Defendant first argues the trial court erred in denying its motion to dismiss at the close of plaintiff's case. When made in a case before a jury, a motion to dismiss challenging the sufficiency of the plaintiff's evidence is treated as a motion for a directed verdict made pursuant to CR 50(a). See Warren v. Hudson Pulp & Paper Corp., 477 F.2d 229 (2d Cir. 1973). In ruling on a motion for a directed verdict, the court must accept the truth of the nonmoving party's evidence and all reasonable inferences which may be drawn therefrom, interpreting the evidence most strongly against the movant. Leach v. Weiss, 2 Wash.App. 437, 439, 467 P.2d 894 (1970).

To establish a prima facie case in a suit brought upon the theory of strict liability in tort for the manufacture of a defective product, a plaintiff must show (1) there was a defect in the product which existed when the product left the hands of the manufacturer; (2) the defect was not known to the user; (3) the defect rendered the product unreasonably dangerous; and (4) the defect was the proximate cause of the injury. Restatement (Second) of Torts § 402A (1965); Bombardi v. Pochel's Appliance & TV Co., 9 Wash.App. 797, 801, 515 P.2d 540 (1973); Reaff'd as modified, 10 Wash.App. 243, 518 P.2d 202 (1973); Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969).

Plaintiff's expert witness, C. V. Smith, who had vast experience and education in the field of abrasives and had worked extensively with grinding instruments, explained the tests which he had performed on the pieces of the disc in question, and concluded that the disc had shattered because it had been improperly 'heat-cured' during manufacture, rendering it susceptible to softening and 'fluting' when used in a normal manner. This testimony, in conjunction with the plaintiff's statement that the disc appeared to be 'perfectly new' and the testimony concerning its limited prior use, constituted sufficient prima facie evidence that the disc was in a defective condition at the time it left the hands of the manufacturer, thereby satisfying the first requirement established in Bombardi v. Pochel's Appliance & TV Co., supra. That plaintiff was unaware of the specific defect in the grinding disc was clearly established by his statement concerning the apparently 'new' condition of the disc prior to its use by him. That the defect rendered the product unreasonably dangerous and was, prima facie, the proximate cause of plaintiff's injury can be readily inferred from the testimony concerning the details of the accident. Viewing the evidence and the inferences therefrom in a light most favorable to the plaintiff, we are satisfied that a prima facie case was presented and conclude that the trial court was correct in denying defendant's motion to dismiss at the close of plaintiff's case.

3M next assigns error to instruction 18, concerning the defense of assumption of risk:

The defense of assumption of risk has been claimed by defendant as a defense to deny plaintiff's recovery.

Before the doctrine of assumption of risk can apply to deny the plaintiff recovery, it must be proved by the defendant by a preponderance of the evidence, that:

(1) the plaintiff actually knew and appreciated the specific defect involved, and

(2) that actually knowing and appreciating the specific defect involved, that plaintiff voluntarily and unreasonably took his chances and exposed himself to that defect and the resulting danger, and

(3) that this specific known and appreciated defect and danger was the cause of plaintiff's injury.

It is not enough to bar recovery by the plaintiff on the defense of assumption of risk that the plaintiff knew that there was a general danger connected with the use of the product, but rather it must be shown that the plaintiff actually knew, appreciated, and voluntarily and unreasonably exposed himself to the specific defect and danger which caused his injuries.

Defendant contends that the instruction erroneously states the law concerning the defense of 'assumption of risk' in a suit based upon strict liability. In particular, 3M asserts that a plaintiff need not be aware of the specific defect (in this case the allegedly inadequate 'heat-cure') to be said to have assumed the risk of injury. Rather, defendant argues, if a plaintiff is aware of the general danger associated with the use of a particular product he may assume the risk of injury by not taking precautionary measures to protect himself from that danger. Applying this theory to the instant case, defendant directs our attention to the fact that plaintiff was not using safety goggles at the time of the accident even though two pairs were available in the auto body repair shop. This omission on the part of the plaintiff is alleged to constitute an assumption of the risk of injury in light of plaintiff's prior saftey training as to the advisability of using safety goggles when working with power-grinding equipment. Defendant's argument is based upon a misunderstanding of the defense of assumption of risk in a case based upon strict liability.

Assumption of risk is recognized as a defense in a strict liability case under the circumstances explained in comment N of the Restatement (Second) of Torts § 402 A (1965):

Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, Or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonable proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. If the user or consumer discovers the...