Rodriguez v. Besser Co.

• Decision Date: 03 May 1977
• Docket Number: No. 1,CA-CIV,1
• Citation: 115 Ariz. 454,565 P.2d 1315
• Parties: Trinidad RODRIGUEZ, Appellant, v. BESSER COMPANY, a Foreign Corporation, Appellee. 3113.
• Court: Arizona Court of Appeals

Page 1315

565 P.2d 1315

115 Ariz. 454

Trinidad RODRIGUEZ, Appellant, v. BESSER COMPANY, a Foreign Corporation, Appellee.

No. 1 CA-CIV 3113.

Court of Appeals of Arizona, Division 1, Department A.

May 3, 1977.

Rehearing Denied June 9, 1977.

Review Denied June 28, 1977.

Jack Levine, Phoenix, for appellant.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P. C. by Richard J. Woods, Phoenix, for appellee.

OPINION

NELSON, Presiding Judge.

Plaintiff, Trinidad Rodriguez, brought suit against the defendant, Besser Company, seeking to recover for personal injuries he suffered when he was injured on a piece of heavy machinery manufactured by the defendant. The case was tried to a jury on a negligence theory and the jury returned a defense verdict. ¹ Plaintiff now appeals from the judgment entered in favor of the defendant and the trial court's denial of his motion for a new trial.

The principal issue on appeal is whether a manufacturer has a duty to warn of hazards created by a third party modification of its product. The other issues concern the giving of certain instructions and the exclusion of evidence. For the reasons stated below, we find no error and affirm the judgment.

In July 1967 Besser sold a cement block cubing machine ² which it manufactured and designed to plaintiff's employer, Superlite Company, and installed the machine at Superlite's Tempe, Arizona plant. The cuber was designed to automatically stack cement blocks into palletized cubes to facilitate handling and storage of the blocks. The machine required an attendant to oversee its operation and to correct malfunctions and other problems, but not to physically operate the machine since its operation was automatic.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Whenever there was electric power to the machine, conveyors adjacent to the attendant's platform supplied by Besser were in motion. Other parts of the machine, including portions of the number four pattern transfer (hereinafter "PTN 4"), the mechanism involved in the accident, were in motion only when electric power was triggered by blocks being conveyed into that portion of the cuber. When electric current was flowing to the PTN 4 large "paddles," or metal bars, revolved, sweeping rows of concrete blocks onto a stripper sheet for lowering to their final storage position. Only a mechanical jam-up would prevent the paddles from moving when the PTN 4 motor was on.

As designed by Besser and delivered to Superlite, the PTN 4 was enclosed by metal on four sides and only its top, approximately nine feet above the ground, was exposed. The attendant's platform was approximately four feet above the ground and did not extend into the area of the PTN 4. A control panel was located at the end of the platform and operated as a barrier between the attendant and the PTN 4. One function of the platform and control panel was to guard the attendant from the exposed top of the PTN 4 by isolation. As originally designed, a person would not have been able to place his hand into the top of the PTN 4 while he was standing on the platform.

The purpose of the cuber attendant, in this case the plaintiff, was to stand on the platform to oversee the operation of the machine. If a block broke or became misaligned, he was to push an emergency stop button on the control panel at the end of the platform to cut off electricity to the machine. If for some reason the button malfunctioned and power was still on, the conveyors in front of the platform provided by Besser would remain in motion, giving him notice that the machine was still on.

Approximately two weeks after the cuber was installed, after it had left the possession and control of Besser, Superlite, without prior notification or consultation with Besser, installed a new platform at a higher level than the original, which extended in front of and around the side of the PTN 4. Testimony at trial indicated the reason for the new platform was to provide safer, easier access to the PTN 4. The new platform destroyed the guarding by isolation provided by the original platform and placed the attendant in close proximity to the moving paddles of the PTN 4. Besser received notice of the modification from its own representatives sometime after the new platform was installed.

At the time of his accident on April 28, 1970, some 32 months after the platform modification, plaintiff was working as the cuber attendant. The exact sequence of events leading to plaintiff's accident is unclear. However it appears that while standing on the modified platform plaintiff leaned into the top of the PTN 4 where his head was crushed against the wall of the machinery by a revolving paddle. As a result, he suffered extensive brain damage and the loss of an eye.

The first issue raised is a very narrow one. Plaintiff contends the trial court erred in refusing to permit argument and to instruct the jury that Besser had a duty to warn Superlite of the danger created by placing a man on the new platform in close proximity to the unguarded paddles of the PTN 4. This duty, plaintiff argues, arose at the time Besser was notified of the modification.

In connection with this argument, it is important to bear in mind that plaintiff is not arguing that the exposed portion of the PTN 4 created an unreasonable risk of danger to the cuber attendant with respect to the machine as originally delivered. While he does argue that it was a "potential hazard" because it was unguarded, he is able to relate this hazard to the attendant only in conjunction with the installation of the higher platform by Superlite. Although plaintiff was permitted to present expert testimony that methods other than isolation were available to guard the PTN 4 paddles at the time it was designed, Besser was under no duty to produce a machine which incorporated only the ultimate in safety features. Morrow v. Trailmobile, Inc., 12 Ariz.App. 578, 473 P.2d 780 (1970); Marker v. Universal Oil Products Company, 250 F.2d 603 (10th Cir. 1957). It is undisputed that the platform, as originally designed, functioned to guard the cuber attendant from the revolving paddles of the PTN 4 and that it was neither expected nor required that he have direct access to the PTN 4 from the original platform. Thus, we begin with the premise that the cuber as designed, manufactured and delivered did not present an unreasonable risk of harm with respect to the injury-causing apparatus and that so long as its safety features were maintained as designed, the PTN 4 paddles posed no danger to the cuber attendant while standing on the original platform.

The question then is whether Besser, as the manufacturer of a product which when sold was free from the danger which caused plaintiff's injury, was under a duty to warn of dangers created by a postmanufacture modification over which it had no control and of which it had no notice until after the modification.

The determination of whether a duty exists is a question of law, solely for the court. Barnum v. Rural Fire Protection Company, 24 Ariz.App. 233, 537 P.2d 618 (1975). With respect to a manufacturer's liability in negligence for failure to warn of product-related dangers, certain well established principles have emerged.

The manufacturer of a product must warn of dangers which he knows or should know are inherent in its use. See Restatement (Second) of Torts §§ 388, 389, 394 (1965); Annot., 76 A.L.R.2d 9, 16 (1961). Cf. Witt Ice & Gas Co. v. Bedway, 72 Ariz. 152, 231 P.2d 952 (1951). This duty may be a continuing one applying to dangers the manufacturer discovers after sale. Prosser, The Law of Torts 647 (4th ed. 1971); do Canto v. Ametek, Inc., 328 N.E.2d 873 (Mass.1975); Comstock v. General Motors Corporation, 358 Mich. 163, 99 N.W.2d 627 (1959).

For negligence to exist there must be a reasonably foreseeable risk. Arizona Public Service Company v. Brittain, 107 Ariz. 278, 486 P.2d 176 (1971). If no risk of harm can reasonably be foreseen from the use of a product, negligence cannot be predicated on such use. Lovejoy v. Minneapolis-Moline Power Implement Company, 248 Minn. 319, 79 N.W.2d 688 (1956). When a product is safe for use as intended, a manufacturer has no duty to warn of dangers inherent in its use in an improper or unlikely manner, including unforeseen alterations or modifications of the product. Annot., 41 A.L.R.3d 1251, § 2 (1972). See 2 Hursch, American Law of Products Liability § 8.1 et seq. (1976). Compare Morrow v. Trailmobile, Inc., supra.

The cases upon which plaintiff relies in urging us to extend these rules to encompass a duty to warn of dangers after a product has left a manufacturer's control did not involve user alterations of products which made the products dangerous. Rather, they were either totally irrelevant or they involved products which were dangerous when sold and the theories discussed therein are consistent with those previously reviewed in this discussion. ³ These cases are all distinguishable from the one now before us, in which a product was designed with such safety devices that no danger from the injury-causing apparatus existed so long as the machine was maintained and used in the condition in which it was sold and installed. The danger from the PTN 4 paddles arose only after Superlite installed the second platform.

The determination that one is or is not under a legal duty to protect another from harm, that is, that one has or does not have an obligation to conform to a legal standard in light of the risk involved, necessarily involves a multitude of policy considerations. And, when we hold that no duty exists, we mean that the burden of holding otherwise is too great.

"The duty to warn rests on foreseeability. If a chattel is sold that is free from defects in manufacture and design and is not dangerous if used as intended, the manufacturer is not liable for results caused by improper use of the chattel or changes...