Phillips v. Kimwood Mach. Co.

CourtSupreme Court of Oregon
Citation269 Or. 485,525 P.2d 1033,99 Or.Adv.Sh. 1337
PartiesHomer O. PHILLIPS, Appellant, v. KIMWOOD MACHINE COMPANY, an Oregon corporation, Respondent. . *
Decision Date06 September 1974

David A. Vinson, Eugene, argued the cause for appellant. With him on the briefs were Sahlstrom, Lombard, Starr & Vinson, Eugene.

Richard Bryson, Eugene, argued the cause for respondent. With him on the brief were Calkins & Calkins, and Bryson & Robert, Eugene.

HOLMAN, Justice.

Plaintiff was injured while feeding fiberboard into a sanding machine during his employment with Pope and Talbot, a wood products manufacturer. The sanding machine had been purchased by Pope and Talbot from defendant. Plaintiff brought this action on a products liability theory, contending the sanding machine was unreasonably dangerous by virtue of defective design. At the completion of the testimony, defendant's motion for a directed verdict was granted and plaintiff appealed.

As is required in such a situation, the evidence is recounted in a manner most favorable to the plaintiff. The machine in question was a six-headed sander. Each sanding head was a rapidly moving belt which revolved in the direction opposite to that which the pieces of fiberboard moved through the machine. Three of the heads sanded the top of the fiberboard sheet and three sanded the bottom. The top half of the machine could be raised or lowered depending upon the thickness of the fiberboard to be sanded. The bottom half of the machine had powered rollers which moved the fiberboard through the machine as the fiberboard was being sanded. The top half of the machine had pinch rolls, not powered, which, when pressed down on the fiberboard by use of springs, kept the sanding heads from forcefully rejecting it from the machine.

On the day of the accident plaintiff was engaged in feeding the sheets of fiberboard into the sander. Because of the defective operation of a press, a large group of sheets of extra thickness was received for sanding. These sheets could not be inserted into the machine as it was set, so the top half of the sander was adjusted upwards to leave a greater space between the top and bottom halves to accommodate the extra thick fiberboard sheets. During the sanding of the extra thick sheets, a thin sheet of fiberboard, which had become mixed with the lot, was inserted into the machine. The pressure exerted by the pinch rolls in the top half of the machine was insufficient to counteract the pressure which the sanding belts were exerting upon the thin sheet of fiberboard and, as a result, the machine regurgitated the piece of fiberboard back at plaintiff, hitting him in the abdomen and causing him the injuries for which he now seeks compensation.

Plaintiff asserts in his complaint that the machine was defective in its design and unreasonably dangerous because (1) 'it * * * could not be operated in the manner and for the purpose for which it was manufactured and sold without throwing back towards the operator panels of material being sanded * * *,' and (2) '* * * it did not * * * contain * * * any guards, catches, shields, barricades or similar devices to protect the operator of said machine from being struck by panels of material thrown back out of the sanding machine * * *.' The two allegations assert substantially the same thing, the first one in general terms, and the second one in particular terms. In effect, they allege the machine was defective and was unreasonably dangerous because there were no safety devices to protect the person feeding the machine from the regurgitation of sheets of fiberboard.

While we do not here attempt to recount all of the testimony presented by plaintiff concerning the defective design of the machine, there was evidence from which the jury could find that at a relatively small expense there could have been built into, or subsequently installed on, the machine a line of metal teeth which would point in the direction that the fiberboard progresses through the machine and which would press lightly against the sheet but which, in case of attempted regurgitation, would be jammed into it, thus stopping its backward motion. The evidence also showed that after the accident such teeth were installed upon the machine for that purpose by Pope and Talbot, whereupon subsequent regurgitations of thin fiberboard sheets were prevented while the efficiency of the machine was maintained. There was also evidence that defendant makes smaller sanders which usually are manually fed and on which there is such a safety device.

It was shown that the machine in question was built for use with an automatic feeder and that the one installed at Pope and Talbot is the only six-headed sander manufactured by defendant which is manually fed. There also was testimony that at the time of the purchase by Pope and Talbot, defendant had automatic feeders for sale but that Pope and Talbot did not purchase or show any interest in such a feeder. Pope and Talbot furnished a feeding device of their own manufacture for the machine which was partially automatic and partially manual but which, the jury could find, at times placed an employee in the way of regurgitated sheets.

There was testimony that at the time defendant's employee inspected the installation of the machine purchased by Pope and Talbot, which inspection was required by their contract, the inspecting employee became aware that the machine was being manually fed. There was no testimony of any warning given by defendant of the danger concerning regurgitated sheets to a person manually feeding the machine. Neither was there any evidence that Pope and Talbot was told that the machine was built for use with a fully automatic feeder and that it was not to be fed manually, nor was the recommendation made to plaintiff's employer that if the machine was to be used without a fully automatic feeder, some sort of safety device should be used for the protection of anyone who was manually feeding the machine. There was evidence that one of Pope and Talbot's representatives was told that the top of the machine should not be raised while sanding was taking place, but there was no evidence of the danger from doing so ever being mentioned.

Defendant contends there is no proper assignment of error because, instead of being designated as an assignment of error, the claim that the trial court should not have granted a directed verdict is designated as an issue on appeal. Because plaintiff's contention upon appeal is clearly evident, we choose in this case to overlook the formal defects in his opening brief which have somewhat been alleviated by his reply brief.

In defense of its judgment based upon a directed verdict, defendant contends there was no proof of a defect in the product, and therefore strict liability should not apply. This court and other courts continue to flounder while attempting to determine how one decides whether a product is 'in a defective condition unreasonably dangerous to the user.' 1 It has been recognized that unreasonably dangerous defects in products come from two principal sources: (1) mismanufacture and (2) faulty design. 2 Mismanufacture is relatively simple to identify because the item in question is capable of being compared with similar articles made by the same manufacturer. However, whether the mismanufactured article is dangerously defective because of the flaw is sometimes difficult to ascertain because not every such flaw which causes injury makes the article dangerously defective. 3

The problem with strict liability of products has been one of limitation. 4 No one wants absolute liability where all the article has to do is to cause injury. To impose liability there has to be something about the article which makes it dangerously defective without regard to whether the manufacturer was or was not at fault for such condition. A test for unreasonable danger is therefore vital. A dangerously defective article would be one which a reasonable person would not put into the stream of commerce If he had knowledge of its harmful character. 5 The test, therefore, is whether the seller would be negligent if he sold the article Knowing of the risk involved. 6 Strict liability imposed what amounts to constructive knowledge of the condition of the product.

On the surface such a test would seem to be different than the test of 2 Restatement (Second) of Torts § 402 A, Comment I., of 'dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.' This court has used this test in the past. 7 These are not necessarily different standards, however. As stated in Welch v. Outboard Marine Corp., 8 where the court affirmed an instruction containing both standards:

'We see no necessary inconsistency between a seller-oriented standard and a user-oriented standard when, as here, each turns on foreseeable risks. They are two sides of the same standard. A product is defective and unreasonably dangerous when a reasonable seller would not sell the product if he knew of the risk involved or if the risks are greater than a reasonable buyer would expect.'

To elucidate this point further, we feel that the two standards are the same because a seller acting reasonably would be selling the same product which a reasonable consumer believes he is purchasing. That is to say, a manufacturer who would be negligent in marketing a given product, considering its risks, would necessarily be marketing a product which fell below the reasonable expectations of consumers who purchase it. The foreseeable uses to which a product could be put would be the same in the minds of both the seller and the buyer unless one of the parties was not acting reasonably. The advantage of describing a dangerous defect in the manner of Wade and Keeton is that it preserves the use of familiar terms and thought processes with which courts, lawyers, and jurors...

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