Lambertson v. Cincinnati Corp.

• Court: Minnesota Supreme Court
• Writing for the Court: SHERAN
• Citation: Lambertson v. Cincinnati Corp., 257 N.W.2d 679, 312 Minn. 114 (Minn. 1977)
• Decision Date: 04 February 1977
• Docket Number: Nos. 45790,45810,s. 45790
• Parties: , 100 A.L.R.3d 335 Lynder LAMBERTSON, Respondent, v. CINCINNATI CORPORATION, f. k. a. Cincinnati Schafer Co. of Cincinnati, defendant and third-party plaintiff, Appellant, v. HUTCHINSON MANUFACTURING AND SALES, INC., third-party defendant, Respondent.

Page 679

257 N.W.2d 679

312 Minn. 114, 100 A.L.R.3d 335

Lynder LAMBERTSON, Respondent, v. CINCINNATI CORPORATION, f. k. a. Cincinnati Schafer Co. of

Cincinnati, defendant and third-party plaintiff, Appellant, v. HUTCHINSON MANUFACTURING AND SALES, INC., third-party

defendant, Respondent.

Nos. 45790, 45810.

Supreme Court of Minnesota.

Feb. 4, 1977.

Rehearing Denied Oct. 5, 1977.

Syllabus by the Court

In an action for personal injuries caused when an employed worker's arm was crushed in a press brake, the jury assigned causative fault 15 percent to the employee, 25 percent to the manufacturer of the machine, and 60 percent to the employer and fixed the damages at $40,000. On appeal it is held:

1. Appellant manufacturer has failed to demonstrate an abuse of discretion with respect to the admission of evidence of safety standards.

2. There was no evidence of assumption of risk requiring submission of this issue to the jury.

3. The award of damages was not excessive.

4. The manufacturer is entitled to contribution from the employer in an amount not to exceed the compensation benefits paid or to be paid by the employer to the employee because of the accident.

Lasley, Gaughan, Reid & Stich and Robert T. Stich, Minneapolis, for appellant.

Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan and O. C. Adamson II, Mary Jeanne Coyne, Minneapolis, for Lambertson.

Fitch & Johnson and Raymond W. Fitch, Minneapolis, for respondent.

Considered and decided by the court en banc.

SHERAN, Chief Justice.

Cincinnati Corporation, defendant and third-party plaintiff in a personal injury/product liability action, appeals from a judgment of the district court which awarded a worker $34,000 in damages but denied defendant manufacturer contribution from an employer which was partly at fault for the accident. We reverse in part and remand with instructions.

Cincinnati is the manufacturer of a press brake, a large machine used for bending metal. The brake has a large vertical ram which moves up and down. Dies are placed on the ram and on the bed of the machine, and metal to be bent is placed between the ram and the bed. When the ram comes down onto the metal, a bend, or brake, is made in the metal at the point where the die on the ram matches the die in the bed. The movement of the ram is controlled by the operator by means of a single foot pedal at the base of the machine.

Cincinnati sold a press brake to Hutchinson Manufacturing and Sales, Inc., plaintiff's employer. On April 25, 1972, plaintiff was assisting a coemployee in the operation of the press brake. The coemployee was controlling the foot pedal, and plaintiff was placing long metal strips between the ram and the bed and removing them after they had been bent. As the ram was being raised after one cycle, a piece of metal which had been bent fell to the side of the bed opposite to the side where plaintiff was working. Plaintiff reached through the jaws of the machine to retrieve the piece of metal, but his coemployee had kept his foot on the pedal, thus permitting the ram to descend again, crushing plaintiff's arm between the ram and the bed.

After recovering workers' compensation from Hutchinson, plaintiff brought this action against Cincinnati. Plaintiff testified that he had never operated the press brake before and did not know it was capable of double cycling, i. e., continuing through another cycle without the ram's stopping at the top. He testified that he knew he should not have put his arm between the jaws, but that he did not know that his coemployee still had his foot on the pedal or that the ram would descend again before he could retrieve the piece of metal.

Plaintiff introduced expert testimony and safety rules and regulations from which the jury could have found that certain safety devices and features could have been installed on the press brake at the time of its manufacture and sale to Hutchinson in 1967, and that such devices would have prevented the accident. Sufficiency of this evidence to support a finding of negligence on the part of Cincinnati is not contested on this appeal. Cincinnati does, however, ask for indemnity from Hutchinson based on events occurring after 1967.

In 1969, after representatives of Cincinnati viewed the particular uses to which the press brake was put at Hutchinson, Cincinnati offered to Hutchinson (at Hutchinson's expense) two changes in the machine: (1) Operation by two or more palm buttons or foot switches; (2) automatic stoppage of the ram at the top of the cycle i. e., no double cycling. These changes apparently were declined. In 1971, Cincinnati sent out a sales pamphlet to all owners of its press brakes describing a Waveguard safety device, an electronic sensing device designed to detect foreign matter in the press and stop the press if such matter were present. Hutchinson did not order or install such a device. There was testimony by plaintiff's expert from which one could conclude that the absence of two of these offered features the automatic stop and the electronic sensor constituted defects in the machine that were causally related to this accident.

When plaintiff's left forearm was crushed in the press brake, both bones were broken in such a way that the lower part of the arm was at a 90-degree angle to the upper part. It took 5 to 6 minutes to reverse the press and extricate his arm. He reported considerable pain. The fractures were surgically set and he was hospitalized initially for 10 days. During the succeeding 2 months his cast had to be removed and replaced 5 times so that the wound could be cleaned and X-rays taken. The fractures did not unite properly, and subsequent surgery was necessary. The bones were reset, using steel plates and screws. Plaintiff remained in a cast until February 1973, received medication for pain, and underwent physical therapy to regain the use of his arm. He was unable to work for a year after the accident and sustained an approximately $6,000 wage loss plus $2,600 in medical expenses.

The case was submitted to the jury on special verdict on a theory of negligence. The jury found all parties causally negligent and apportioned their comparative negligence as follows: Plaintiff 15 percent; Cincinnati 25 percent; Hutchinson 60 percent. The jury found damages of $40,000. The trial court ordered judgment against Cincinnati for $34,000, the full amount of the verdict less 15 percent for plaintiff's negligence, and denied Cincinnati's claim for contribution or indemnity from Hutchinson.

Four issues are raised on appeal:

(1) Did the trial court err in admitting certain safety regulations and excluding others?

(2) Did the trial court err in refusing to instruct on assumption of risk?

(3) Was the jury's award of $40,000 damages excessive?

(4) Did the trial court err in refusing to grant contribution or indemnity to Cincinnati?

1. Cincinnati challenges three evidentiary rulings of the trial court: (1) Admission of a 1960 American Standard Safety Code section on power presses; (2) withdrawal of a 1971 American National Safety Standard Requirement; and (3) exclusion of a 1973 American National Standard Safety Requirement for the Construction, Care and Use of Power Press Brakes. The trial court adopted a consistent approach in ruling on the proffered safety standards. It excluded all standards promulgated after 1967, the date of manufacture of the press involved in the instant case, apparently on the theory that Cincinnati could not be held accountable for such standards. It admitted the 1960 standard, based on expert testimony that it applied to Cincinnati's 1967 press. The manufacturer made no offer of proof below nor any argument in this court that shows the trial court's approach to be so clearly wrong as to constitute an abuse of its broad discretion in deciding upon the relevancy of evidence. Since no such showing is made, we reject the manufacturer's argument.

2. Cincinnati further assigns as error the failure of the trial court to instruct on assumption of risk. Since this was a post-Springrose v. Willmore, (292 Minn. 23, 192 N.W.2d 826 (1971)) case, assumption of risk would not have been submitted as a separate defense in any event, but would have been apportioned with comparative negligence. In our recent decision in Evanson v. Jerowski, Minn. 241 N.W.2d 636 (1976), we approved and applied the definition and elements of assumption of risk as set forth in 4 Hetland & Adamson, Minnesota Practice, Jury Instruction Guides (2 ed.), Instruction 135 S:

"Assumption of risk is voluntarily placing (oneself) (one's property) in a position to chance known hazards. To find that a person assumed the risk you must find:

"1. That he had knowledge of the risk.

"2. That he appreciated the risk.

"3. That he had a choice to avoid the risk or chance it and voluntarily chose to chance it." (Italics supplied.)

Applying this test, there is no evidence in the record that the employee voluntarily chose to encounter a known risk. The employee testified that he did not know that his coemployee's foot was still on the pedal and that he did not know that the machine could double cycle without stopping. While the employee did exclaim in the moments immediately following his injury that he should not have reached through the machine, the manufacturer points to no evidence that would permit a jury to infer that he was fully aware of how the machine operated and yet tried to reach in and out fast enough to avoid the ram. Absent this kind of evidence, a line of recent decisions of this court holds that submission of or a finding of assumption of risk is improper. See, e. g., Olson v. Hansen, 299 Minn. 39, 216 N.W.2d 124 (1974); Vanden Broucke v. Lyon County, 301 Minn. 399, 222 N.W.2d 792 (1974); Parr v. Hamnes, 303 Minn. 333, 228 N.W.2d 234 (1975). Therefore, failure to instruct on assumption of risk was not error in the instant case.

3. Defendant also asserts that the...