Orfield v. International Harvester Company, Civ. A. No. 3137

• Decision Date: 21 February 1975
• Docket Number: 3155.,Civ. A. No. 3137
• Citation: 415 F. Supp. 404
• Parties: Perry W. ORFIELD, Plaintiff, v. INTERNATIONAL HARVESTER COMPANY, Defendant. Perry W. ORFIELD, Plaintiff, v. POWER EQUIPMENT COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

415 F. Supp. 404

Perry W. ORFIELD, Plaintiff, v. INTERNATIONAL HARVESTER COMPANY, Defendant.

Perry W. ORFIELD, Plaintiff, v. POWER EQUIPMENT COMPANY, Defendant.

Civ. A. Nos. 3137, 3155.

United States District Court, E. D. Tennessee, Northeastern Division.

February 21, 1975.

Martin Heller, Philadelphia, Pa. and Bernard E. Bernstein, Knoxville, Tenn., for plaintiff.

N. R. Coleman, Jr., Greeneville, Tenn., Robert R. Campbell, George D. Montgomery, Knoxville, Tenn., for defendant.

MEMORANDUM OPINION AND ORDER

NEESE, District Judge.

These are diversity actions, 28 U.S.C. §§ 1332(a)(1), (c), for damages under product liability. They were consolidated for purposes of trial, bifurcated as to the respective issues of liability and damages, and proceeded initially to trial on the issue of liability only. At the conclusion of the plaintiff's proof as to liability, each defendant moved for a directed verdict, Rule 50(a), Federal Rules of Civil Procedure, on the ground that the evidence was insufficient to support a verdict by the jury for the plaintiff. Those motions were taken under advisement.

The plaintiff claimed that each defendant sold to his employer a bulldozer in a defective condition which was unreasonably dangerous to him, as a user thereof; that each defendant was engaged in the business of selling such machines; that such bulldozer was expected to and did reach him as such user without substantial change in the condition in which it was sold on each such occasion; and that physical harm resulted to him from such defective and unreasonably dangerous condition. 2 Restatement of the Law (Second), Torts (2d) 347-348, § 402A.

It was stipulated by all the parties that the plaintiff Mr. Perry W. Orfield was operating a tractor (bulldozer) manufactured by the defendant International Harvester Company and sold to the defendant Power Equipment Company in June, 1969, and then sold by the latter company at about the same time to Mr. Orfield's employer, Wilson and Clark, Inc. It was stipulated also that on September 8, 1972, while Mr. Orfield was operating this bulldozer, a tree fell across the operator's seat thereof and struck him. Mr. Edward B. Landry, a safety engineer, testified inter alia that, in his opinion, this bulldozer was defective and unreasonably dangerous to Mr. Orfield as a user thereof, in that it was not equipped at the pertinent times with a safety device in the form of a canopy guard.

The plaintiff Mr. Orfield testified inter alia that he was fully aware before and at the time of the foregoing accident that the bulldozer he was operating was not equipped with a canopy guard; that he had operated the particular bulldozer, which he was operating when injured, many times previously; that he had utilized this and other bulldozers before in the same type of windrowing¹ operations, in which he was engaged at the time he was injured; that he had operated bulldozers many times previously, some of which were equipped with canopy guards and some of which were not so equipped; that bulldozers equipped with canopy guards are much safer for their operators than those not so equipped, because canopy guards protect bulldozer operators from risk of injury from falling or flying trees, limbs, brush, rocks, etc.; that windrowing operations were known to him before this accident to be "* * * extremely dangerous * * *", because objects are prone to "* * * spring up and fly back * * *" and strike the operator of a bulldozer; that he knew he might be hurt in such manner by engaging in a windrowing operation without the protection of a guard canopy on the bulldozer he was operating; and that he was injured on this occasion when a black oak tree, some 50 feet long with a diameter of about 10 inches, was "* * * triggered * *" from a 90° angle to his right in the windrowing process and struck him across his chest.

He also testified that he had been operating bulldozers, including those similar to the one he was operating when injured, for a period of 30 years; professed knowledge of every facet of the operations of a bulldozer and other heavy equipment; had discussed with his employer's foreman the fact that canopy guards should be added onto all his employer's bulldozers; and, although he had never been injured previously by the falling of a tree across the operator's seat of a bulldozer, he knew that a variety of accidents could result, and had resulted, from the use of a canopyless bulldozer in windrowing operations.

The aforementioned rule of strict liability without a specific showing of fault "* * * applies only where a product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate * * * user * * *, which will be unreasonably dangerous to him. * * *" 2 Restatement of Torts, supra, at 351, sub-§ g. Of course, only Mr. Orfield himself knows what he contemplated, but from his direct testimony, the only logical inference is that he contemplated the condition of this bulldozer which would be dangerous to him when he used it. It thus appears, as a matter of law, that the bulldozer in question was not shown by the plaintiff's proof to be "defective" at the pertinent times, as that term is utilized in the foregoing rule.

Even if it be assumed arguendo, that such bulldozer was in a defective condition at the pertinent times because the condition of the bulldozer was not contemplated by Mr. Orfield, the evidence showed without dispute that it was not unreasonably dangerous to him, as that term is utilized in such rule. The strict liability rule...