Pike v. Benchmaster Mfg. Co.

• Decision Date: 17 December 1982
• Docket Number: No. 80-5473,80-5473
• Citation: 696 F.2d 38
• Parties: Estol PIKE, Plaintiff-Appellant, v. BENCHMASTER MANUFACTURING COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 38

696 F.2d 38

Estol PIKE, Plaintiff-Appellant, v. BENCHMASTER MANUFACTURING COMPANY, Defendant-Appellee.

No. 80-5473.

United States Court of Appeals, Sixth Circuit.

Argued March 1, 1982.

Decided Dec. 17, 1982.

Charles A. Taylor, Hughes, Taylor & Elam, Lexington, Ky., for plaintiff-appellant.

W.R. Patterson, Jr., Landrum, Patterson & Dickey, Lexington, Ky., for defendant-appellee.

Before EDWARDS, Chief Circuit Judge, KENNEDY, Circuit Judge, and MARKEY, ^* Chief Circuit Judge.

GEORGE CLIFTON EDWARDS, Jr., Chief Judge.

This case involves an appeal from a District Judge's grant of appellee Benchmaster's motion for judgment non obstante veredicto. The judgment set aside a products liability award of $93,800 entered in favor of the plaintiff after a full jury trial.

It is undisputed that plaintiff Estol Pike lost portions of four fingers while operating a punch press for his employer. The press had been manufactured by defendant Benchmaster in August 1966. It consisted of a ram which was activated by a foot pedal by the operator. The press which delivered 10,000 pounds of pressure at the point of contact was sold by Benchmaster without any safety devices which would insure that the operator's hand would be clear of the die when the ram descended. Defendant did offer a two-handed safety device ("palm buttons") which would have required both of the operator's hands to be out of danger in order for the press to operate. It did so, however, as an option and neither the original nor subsequent purchasers of this press ordered the option. The press was also sold without any shields around the point of operation designed to protect the operator's hands.

When the press was eventually purchased by Pike's employer, it had been altered in one respect (argued to be substantial) in that the foot pedal had been lowered to a position nearer the floor. Although the record is not completely clear on this score, it seems that the original position of the foot pedal may have been as much as six to eight inches above the floor and the changed location of the foot pedal may have been only one to two inches above the floor.

Under the court's instruction, the jury made specific findings. It found (1) that the press, as originally manufactured, was unreasonably dangerous; (2) that this condition was a substantial factor in causing plaintiff's injury; (3) that no subsequent change in the press was a substantial factor in causing the injury, and (4) that plaintiff had not been contributorily negligent.

The jury awarded $93,800 damages and defendant filed a motion for judgment notwithstanding the verdict.

The judgment n.o.v. was granted by the District Judge. He held that the lowering of the floor pedal meant that the press had not reached the plaintiff without a substantial change in the condition in which it was sold. He quoted RESTATEMENT (SECOND) OF TORTS, Sec. 402A (1965), which provided in pertinent part:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

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(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

The District Judge thus accepted the defendant's evidence which tended to show that the lowering of the foot pedal was a substantial change and was the proximate cause of plaintiff's injury. In this diversity action, he cited the leading Kentucky case on products liability, Dealers Transport Co. v. Battery Distributing Co., 402 S.W.2d 441, 446-47 (Ky.1965), for Kentucky's adoption of RESTATEMENT (SECOND) OF TORTS Sec. 402A (1965). Accord Greenman v. Yuba Power 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); Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960).

This Circuit has established a stringent standard for the granting of judgments n.o.v. In National Polymer Products v. Borg-Warner Corp., 660 F.2d 171, 177-78 (6th Cir.1981), we said:

In Reeves v. Power Tools, Inc., 474 F.2d 375, 380 (6th Cir.1973), we stated the standard applicable to a judgment notwithstanding the verdict:

Judgment notwithstanding the verdict is not proper unless the evidence is such that there can be but one reasonable conclusion as to the proper verdict. It should not be granted if there is a conflict in the evidence, and credibility of evidence is not to be considered in passing on a motion for judgment. Greer v. United States, 408 F.2d 631 (6th Cir.1969); Moore's Federal Practice, Par. 50.07(2) (Second Edition).

Thus, if there is sufficient evidence to raise a question of fact for the jury, JNOV is improper. In determining whether the evidence is sufficient, the trial court may neither weigh the evidence, pass on the credibility of witnesses nor substitute its judgment for that of the jury. In deciding the motion, the trial court must view the evidence in a light most favorable to the party against whom the motion is made, drawing from that evidence all reasonable inferences in its favor. Morelock v. NCR Corp., 586 F.2d 1096, 1104-05 (6th Cir.1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979); Gillham v. Admiral Corp., 523 F.2d 102, 109 (6th Cir.1975), cert. denied, 424 U.S. 913, 96 S.Ct. 1113, 47 L.Ed.2d 318 (1976). When reviewing the trial court's decision, an appellate court is bound by the same standard. See O'Neill v. Kiledjian, 511 F.2d 511, 513 (6th Cir.1975).

Further, we observe that in Dealers Transport Co. v. Battery Distributing Co., supra, the Court of Appeals of Kentucky (then Kentucky's highest court) adopted the American Law Institute's "strict liability" rules in relation to products liability (1) One who sells any product in a defective condition unreasonably dangerous to the user or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

RESTATEMENT (SECOND) OF TORTS, Sec. 402A (1965).

We review the key issues of this case with these standards in mind. The issues in this appeal are:

I. Whether plaintiff introduced sufficient evidence to raise a question of fact for the jury as to whether the press was in a "defective condition unreasonably dangerous to the user" when defendant sold it.

II. Whether plaintiff introduced sufficient evidence to raise a question of fact for the jury as to whether the press reached plaintiff "without substantial change in the condition in which it (was) sold."

As we have indicated above, the jury specifically answered both of these questions in favor of the plaintiff. It is, however, our appellate responsibility to determine from the record whether the District Judge was correct in holding that there was no evidence or insufficient evidence to support the jury verdict. We now reverse and reinstate the jury award. Our decision is based on our inspection of the trial record and the trial exhibits of pictures of the press and a description of its operation from the testimony of plaintiff's expert witness. This witness testified that the change in location of the foot pedal, as shown in the record, would not have substantially altered the characteristics of this machine which presented hazards to its operator.

This machine was sold without "palm buttons" which would have required both of the operator's hands to be away from the point of...