Orfield v. International Harvester Co.

• Decision Date: 07 May 1976
• Docket Number: No. 75-1757,75-1757
• Citation: 535 F.2d 959
• Parties: Perry W. ORFIELD, Plaintiff-Appellant, v. INTERNATIONAL HARVESTER COMPANY and Power Equipment Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 959

535 F.2d 959

Perry W. ORFIELD, Plaintiff-Appellant, v. INTERNATIONAL HARVESTER COMPANY and Power Equipment Company Defendants-Appellees.

No. 75-1757.

United States Court of Appeals Sixth Circuit.

Argued Feb. 4, 1976.

Decided May 7, 1976.

Martin Heller, William R. H. Broome, Philadelphia, Pa., Bernard E. Bernstein, Knoxville, Tenn., for plaintiff-appellant.

George D. Montgomery, Robert R. Campbell, Knoxville, Tenn., N. R. Coleman, Jr., Greeneville, Tenn., for defendants-appellees.

Before PHILLIPS, Chief Judge, and WEICK and MILLER, ^* Circuit Judges.

PER CURIAM.

This is an appeal from a directed verdict for the defendants granted at the close of the plaintiff's proof in a products liability action. Jurisdiction of the district court was properly invoked under 28 U.S.C. § 1332 because of diversity of citizenship and the requisite jurisdictional amount.

Plaintiff Perry W. Orfield had worked for many years as an operator of heavy equipment and had operated bulldozers both with and without steel canopy guards. On September 8, 1972, while in the employ of Wilson and Clark, Inc., he was directed by his foreman to use a particular bulldozer to windrow, or arrange in long piles, uprooted brush and trees on a construction site near Johnson City, Tennessee. The bulldozer was not equipped with an overhead protective canopy.

While plaintiff was engaged in the windrowing operation, he was struck in the chest by a fifty foot long black oak tree. Plaintiff did not see the tree until just before it struck him and he testified that something "triggered" the tree off so that it approached him from the right at a ninety degree angle.

Plaintiff-Orfield was aware that the bulldozer had no canopy guard and he was aware that windrowing trees and brush with a bulldozer not so equipped was a dangerous operation. According to his testimony, the danger could come from debris rolling over the top of the front blade or springing back from the sides of the blade or from "small stuff" hanging in the track and hitting the operator from behind as the tracks rotated in a forward direction. Orfield testified that he appreciated the safety provided by canopy guards and that he and other employees had mentioned this fact to the foreman. He explained that he engaged in the windrowing operation despite his awareness of the danger because he was afraid he would lose his job if he refused.

The bulldozer on which plaintiff was injured was manufactured by defendant International Harvester and sold to defendant Power Equipment Company. The latter company sold it to plaintiff's employer in 1969. Canopy guards were then in general use and commonly known as an effective means of protecting the bulldozer operator. Plaintiff's expert testified that in his opinion the bulldozer was defective and unreasonably dangerous when it left the hands of International Harvester without a canopy guard. He also testified that a guard would not adversely affect the operation of the bulldozer, would add only two to three per cent to the cost of the machine, and would have completely prevented plaintiff's injury. International Harvester now ships all bulldozers with canopy guards as standard equipment and has done so since 1971, a year before plaintiff's injury and two years after the machine in question was built.

The district court, relying on Section 402A of Restatement of Torts, Second, (1965) ¹ and comments g ² and i ³ to that Plaintiff argues that in directing a verdict for defendants, the district court did not correctly apply Tennessee law. Although we have found no Tennessee case which could be characterized as definitive on the exact issue before us, we do find from the decisions of the Supreme Court that it has approved the basic rule of Sec. 402A of the Torts Restatement and in addition has given convincing indications that it would also approve comments g and i to that section.

section, held that the bulldozer was not defective or unreasonably dangerous to the plaintiff. This conclusion was based on findings that plaintiff "contemplated" the condition of the bulldozer and that the bulldozer was not "dangerous to an extent beyond that which would be contemplated by an operator of long experience . . . , with the ordinary knowledge common to the community of bulldozer operators as to the characteristics of bulldozers in windrowing operations." Because plaintiff testified without contradiction that he was aware of the condition of the bulldozer and also that he was aware of the danger involved in conducting the windrowing operation with a bulldozer without a canopy guard, the court found that Orfield had failed to prove that the product was defective and unreasonably dangerous, both essential elements of his claim. The critical findings and conclusions of the district court in directing a verdict for the defendants are set forth in the appendix attached hereto.

In Ford Motor Company v. Lonon, 217 Tenn. 400, 398 S.W.2d 240 (1966), the Supreme Court of Tennessee first indicated its approval of the strict liability principle embraced in Sec. 402A of the Restatement of Torts, Second, (1965). After quoting that section, the Supreme Court stated, 217 Tenn. 420-22, 398 S.W.2d 249-50:

It should be noted that the above section requires the plaintiff to establish that the product, when it left the hands of the manufacturer or other supplier, was at that time in both a defective and unreasonably dangerous condition. This section already has been approved by many courts. See for example, Greenman v. Yuba Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1963); Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 (1963); Santor v. A. & M. Karagheusian, 44 N.J. 52, 207 A.2d 305 (N.J.1965). It recently was followed by the Supreme Court of Illinois in Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). It was there stated with reference to the general question of whether a manufacturer should be held liable for dangerous defects in his product without privity and without actual proof of negligence:

"The recent and often cited cases of Henningsen v. Bloomfield Motors, Inc., (1960) 32 N.J. 358, 161 A.2d 69, 75 A.L.R.2d 1; Greenman v. Yuba Power Products Inc., (1963) 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 and Goldberg v. Kollsman Instrument Corporation, (1963) 12 N.Y.2d 432, 240 N.Y.S.2d 592, 191 N.E.2d 81 typify the increasing number of decisions which are extending the concept of strict liability to the manufacturers of products whose defective condition makes them unreasonably dangerous to the user or consumer. At the time Professor Noel wrote his article, Strict Liability of Manufacturers, for the May 1964 issue of the American Bar Journal (50 A.B.J. 446) he listed cases from twenty different jurisdictions (50 A.B.J. 446, 449 n. 15) as supporting It might be added that the torts writers who have most recently dealt with this subject have advocated adoption of the above quoted section 402A, and have found that now about half the states in the country have accepted the general principles adopted by the American Law Institute in that section, after full discussion of the matter extending over a period of several years. See for example Wade, Strict Tort Liability of Manufacturers, 19 Sw.L.J. 513 (1965); Noel, Products Liability of Retailers and Manufacturers in Tennessee, 32 Tenn.L.Rev. 207, 237-261 (1965). There seems to be no unfairness in holding that a manufacturer who markets a product which is not only defective but unreasonably dangerous should be responsible for any physical harm which results to person or property, even though no privity of contract and no negligence can be established. It might be added that where the plaintiff can sustain the heavy burden of showing, as he must, that the product was in a dangerously defective condition at the time it left the hands of the manufacturer, it is quite likely that some negligence was involved even though this cannot be proved. See Wade, supra, 19 Sw.L.J. 5, (1965); Noel, Products Liability of Manufacturers To Manufacturers of Products The Drift Toward Strict Liability, 24 Tenn.L.Rev. 963, 1012-13 (1957).

the rule. While some of these decisions are not rendered by the highest court of the State, or are rendered by a Federal court noting the lack of authority in that State, on close examination are not clear cut on the matter, they nevertheless support his statement that 'The decisions since 1960, * * * , particularly the ones in the Henningsen, Greenman and Goldberg cases, may well turn the tide (to strict liability) in the near future as to many kinds of products.' (50 A.B.J. 446, 449.) More recent cases are collected in 1 Hursch, American Law of Products Liability, sec. 6.62 (Supp.1965) and 1 Frumer & Friedman, Products Liability, secs. 16, 16A (Supp.1964)"

We regard it as significant that the first sentence in the above quotation was not derived by the court from the bare language of Sec. 402A. The sentence is actually a synthesis of portions of the language of comments g and i to Sec. 402A, and thus may be taken as tacit approval by the court of these comments, in addition to the basic rule itself.

Ford Motor Company v. Lonon, supra, was soon followed by the opinion of the Supreme Court in Olney v. Beaman Bottling Company, 220 Tenn. 459, 462, 418 S.W.2d 430, 431 (1967), in which Sec. 402A was directly approved as the law of Tennessee:

We recognize that strict liability exists upon the manufacturer of a product without fault on his part, under the circumstances outlined in 2 RESTATEMENT, Second, Torts § 402-A (1965). This result was foreshadowed by the opinion of this Court in the case of Ford Motor Company v. Lonon 217 Tenn. 400, 398 S.W.2d 240 (1966). This is a development in the law of torts which seems justified where the conditions specified in the RESTATEMENT are established by proof.

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