Readenour v. Marion Power Shovel, a Div. of Dresser Industries, Inc.
| Decision Date | 13 March 1985 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 149 Ariz. 454,719 P.2d 1070 |
| Parties | Robert READENOUR and Catherine Readenour, husband and wife, Plaintiffs/Appellees, v. MARION POWER SHOVEL, a DIVISION OF DRESSER INDUSTRIES, INC., a Delaware corporation, Defendant/Appellant. 5183. |
| Court | Arizona Court of Appeals |
This product liability case arose on July 10, 1981, when plaintiff/appellee Robert Readenour filed suit seeking to recover compensatory damages against appellant for personal injuries received by appellee while working on a power shovel manufactured by appellant. The action was brought on the theories of negligence and strict product liability, and appellant asserted the affirmative defenses of contributory negligence, assumption of a risk and the statutory defense of product misuse. A.R.S. § 12-683(3). The complaint was amended one month before trial to include a claim for punitive damages. On May 18, 1983, the jury returned verdicts in favor of the appellee, awarding compensatory damages of two million dollars and punitive damages of seven million dollars. On June 7, 1983, appellant filed its motion for judgment n.o.v. and motion for new trial, which were denied on July 7, 1983. This appeal followed.
Marion Power Shovel Company was the designer and manufacturer of a power shovel, model 191M, one of which the Anamax Mining Company ordered in 1966 and which was erected on site in the Anamax copper mine pit located south of Tucson in 1968. The shovel has three large collector rings which are electrical conductors used to transfer electricity within the apparatus. The rings are energized with over 4,000 volts of electricity and are encircled by an eight-inch protective steel skirting or "guard." On December 29, 1979, appellee, a drill and shovel mechanic, was assigned by a supervisor to help service the shovel. During the course of the servicing, appellee began to remove the collector ring shield with a wrench. He apparently dropped his wrench and in attempting to retrieve it, he made contact with the collector rings and received an electrical shock. He sustained burns and ultimately suffered the loss of his right arm.
Appellant has raised five points for our review: (1) Did the trial court commit prejudicial errors in the admission and rejection of evidence? (2) Were the jury verdicts the result of passion and prejudice and misconduct of the prevailing party? (3) Did the trial court err in charging the jury and in refusing instructions requested? (4) Are the verdicts and judgment unsupported by the evidence and contrary to law? and (5) Was the appellant deprived of a fair trial by irregularities in the proceedings below and by the trial judge's abuse of his discretion?
Appellant argues that the court erred in admitting the 1978 national electrical code, which was adopted 10 years after the 191M shovel involved in this case was manufactured. The 1978 code contains a requirement that collector rings be properly guarded. However, neither the 1965 nor the 1968 version of the code, in effect when the shovel was manufactured and built, ever mentioned guarding of collector rings. Appellant argues that the prejudicial effect of its admission was magnified when the appellee's witnesses expressed their opinions that the appellant had a duty to modify its products to conform to the subsequently-adopted code. Appellee argues that the code was admissible to establish the "knowledge of the industry" that collector rings should be adequately guarded. Mr. Cannon, an electrical engineer who testified on behalf of the appellee, gave his opinion that if the rings were not adequately guarded, it would be in violation of the basic purpose of the code. However, we agree with the appellee that his opinion was not strictly based on the 1978 code, but rather he was expressing his opinion on what good electrical practice would be at any time. He also testified that the 1965 and 1978 codes said essentially the same thing in that it was reasonable to protect live parts of electrical equipment against accidental contact. Appellant contends that admission of the code violated A.R.S. § 12-686, which provides:
"In any product liability action, the following shall not be admissible as direct evidence of a defect:
1. Evidence of advancements or changes in the state of the art subsequent to the time the product was first sold by the defendant.
2. Evidence of any change made in the design or methods of manufacturing or testing the product or any similar product subsequent to the time the product was first sold by the defendant."
We do not think § 12-686 is applicable, since the admission of the code was not evidence of changes in the state of the art. In view of the other evidence presented regarding the reasonableness of protecting against contact from electrical equipment, the fact that the machine in question here was "guarded to prevent accidental contact," and since it appears that the 1978 electrical code was a mere codification of what may be deemed to be common sense, 1 we do not believe appellant was prejudiced by the admission of the evidence.
At trial, the appellee introduced evidence of the 1974 modification of the 191M collector ring shield. The shovel as manufactured in 1974 contained a lengthened 12 inch collector ring shield, rather than the eight inch collector ring shield present on the 191M manufactured in 1967-68 in this case. Appellee claims the evidence was admissible because it established that appellant knew of the hazard but that it took no steps to warn or assist existing shovel owners to resolve the safety problem, thereby demonstrating wanton disregard for the safety of those working on its products. A.R.S. § 12-686 precludes evidence of post-sale changes to prove a defect in a product liability action. While state of the art industry standards offered by appellant would be admissible as a defense under § 12-683, reference would necessarily be to the standards in effect at the time of manufacture, not thereafter. See Hohlenkamp v. Rheem Manufacturing Company, 134 Ariz. 208, 655 P.2d 32 (App.1982). Appellee's argument that the modification evidence was only offered for other purposes is not borne out by the record, which shows that the evidence was offered and argued by appellee as direct evidence of a defect. The trial court refused to give appellant's proposed jury instruction number 10, which embodied the rule of A.R.S. § 12-686 and provided:
Equally prejudicial was the trial court's refusal to give appellant's proposed jury instruction number 12:
"In determining whether a product is defective and unreasonably dangerous, you must consider it only as of the time it left the hands of the manufacturer."
See Restatement (Second) of Torts, § 402A (1965).
In Hallmark v. Allied Products Corporation, 132 Ariz. 434, 646 P.2d 319 (App.1982), it was observed that the trial court should insure that evidence is not improperly admitted under a pretext of the "other purpose" exception. The court stated:
"Before evidence of subsequent change may be received as relevant to a proper issue, the trial court must be satisfied that the 'issue on which it is offered is of substantial importance and is actually, and not merely formally in dispute, that the plaintiff cannot establish the fact to be inferred conveniently by other proof, and consequently that the need for the evidence outweighs the danger of its misuse.' " 132 Ariz. at 439, 646 P.2d 319, quoting McCormick, Evidence, § 275(g) at 668-69 (2nd ed. 1972).
While Hallmark concerns a violation of Rule 407, Rules of Evidence, 17A A.R.S., which deals with evidence of repairs subsequent to the date of injury rather than modification evidence under § 12-686, the policy for exclusion or caution in admission would seem to be the same: "By excluding this evidence, defendants are encouraged to make such improvements." 132 Ariz. at 440, 646 P.2d 319.
In this case, the appellee did have other ways of proving notice and duty to warn. Indeed, evidence was admitted which was probative on that issue. We think the admission of the subsequent change evidence was prejudicial and requires reversal of the jury's verdict.
The trial court admitted into evidence a service report dated May 12, 1969, regarding an incident occurring in Pakistan when a mechanic was attempting to repair a leaking lube line on a 191M shovel. The Pakistani mechanic suffered an electrical shock as a result of his attempt to repair the line. While it is true that evidence of previous accidents tends to prove the existence of a dangerous condition, knowledge or notice of the condition, Slow Development Company v. Coulter, 88 Ariz. 122, 353 P.2d 890 (1960), the operative test is that the evidence of the other accident must show that the other accident arose out of a similar situation. Exhibit 167, the report in question, contains the following:
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Readenour v. Marion Power Shovel, a Div. of Dresser Industries, Inc.
...in plaintiffs' favor and against Marion Power Shovel, a division of Dresser Industries, Inc. (defendant). Readenour v. Marion Power Shovel, 149 Ariz. 454, 719 P.2d 1070 (App.1985). The facts necessary to resolve the issues on review are few. Mr. Readenour's arm was amputated after an accide......
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Wilson v. U.S. Elevator Corp.
...to dangers the manufacturer discovers after sale if such dangers existed at the time of sale. Readenour v. Marion Power Shovel, Inc., 149 Ariz. 454, 460, 719 P.2d 1070, 1076 (App.1985) (emphasis added). Thus, Readenour does not stand for the broad proposition at issue here. Furthermore, alt......