Sawyer v. Dreis & Krump Mfg. Co.

• Decision Date: 08 May 1986
• Citation: 493 N.E.2d 920,67 N.Y.2d 328,502 N.Y.S.2d 696
• Parties: , 493 N.E.2d 920 Philip SAWYER, Respondent, v. DREIS & KRUMP MANUFACTURING CO., Appellant and Third-Party Plaintiff-Appellant. Cambridge Filter Corporation, Third-Party Defendant-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 696

502 N.Y.S.2d 696

67 N.Y.2d 328, 493 N.E.2d 920

Philip SAWYER, Respondent, v. DREIS & KRUMP MANUFACTURING CO., Appellant and Third-Party Plaintiff-Appellant Cambridge Filter Corporation, Third-Party Defendant-Appellant.

Court of Appeals of New York.

May 8, 1986.

Thomas F. Gleason and Salvatore D. Ferlazzo, Albany, for appellant and third-party plaintiff-appellant.

Nancy L. Pontius, Syracuse, for third-party defendant-appellant.

Irwin Birnbaum and Carrie Lynn Richardson, Syracuse, for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Plaintiff brought this action against the manufacturer of a press brake used to shape sheet metal, defendant Dreis & Krump Manufacturing Company, seeking to recover for injuries he sustained when his hand was crushed in it. Defendant in turn impleaded plaintiff's employer, third-party defendant Cambridge Filter Corporation. Although plaintiff cannot remember the events just prior to the accident and there were no witnesses, he contended at trial that he was injured when he reached under the ram reflexively to secure a piece of slipping sheet metal on the bed of the press. He claimed that as he did so he accidentally stepped on the foot pedal and activated the ram causing it to descend and crush his hand. Defendant contended plaintiff was injured while he was operating the press when his hands, which were holding the metal as the operation requires, were pulled under the ram because plaintiff had not properly secured the metal on the bed of the press. The case was submitted to the jury on theories of negligence and products liability. Under those theories it was plaintiff's burden to establish that the negligent failure of defendant to warn him of the dangers in using the machine caused him injury or that the defendant improperly designed the machine and that his injury was not the result of his misuse of it (Voss v. Black & Decker Mfg., 59 N.Y.2d 102, 106-107, 463 N.Y.S.2d 398, 450 N.E.2d 204; Codling v. Paglia, 32 N.Y.2d 330, 342, 345 N.Y.S.2d 461, 398 N.E.2d 622). The critical question for the jury to determine was what caused the metal to slip, defendant's failure to properly design the machine or warn users of its dangers or plaintiff's failure to properly set it up. Answering that question, the jury found no fault on plaintiff's part and awarded him a substantial verdict, apportioned equally between defendant and the third-party defendant. The Appellate Division affirmed the judgment 112 A.D.2d 751, 492 N.Y.S.2d 250 and we granted leave to appeal.

The principal issue before us is whether the trial court committed error in submitting the question of plaintiff's amnesia to the jury in the absence of expert testimony supporting his claim or causally relating the amnesia to the accident (see, Schechter v. Klanfer, 28 N.Y.2d 228, 321 N.Y.S.2d 99, 269 N.E.2d 812), and in permitting plaintiff's engineering expert to testify how the accident happened. Other issues concern plaintiff's cross-examination of defendant's witnesses about other accidents with the press and the court's failure to charge the weight to be accorded industry safety standards. We find errors with respect to all these issues and therefore reverse.

I

The press brake is a mechanical device which bends sheet metal used in the manufacture of Cambridge's filtration products. When the operator of the machine depresses a foot pedal, located 10 inches off the floor, power is transferred to a ram which then descends 14 inches to the bed of the machine. Metal placed on the bed is pressed to the desired shape by means of various dies inserted in the ram and the bed.

When properly done, the set-up procedure requires that dies be inserted in the ram and the bed first. The ram is then inched to within one-quarter inch of the bed, a marked scrap piece is inserted and the ram is lowered to grab the scrap piece on the mark. L-shaped stops located at the back of the bed are then set and locked in place to ensure that the metal is held in the proper position when the machine forces the dies together to bend it. During bending the operator must use both hands to hold the metal against the stops. When the stops are properly set, the metal pushes against them and remains in place while the machine is in operation.

Plaintiff had worked on press brakes for five years. At trial, he testified that he could not remember how the accident happened but he did remember going around to the back of the machine and locking the stops before using it. He said that his normal set-up practice was to scribe a piece of scrap metal, set it on the bed of the machine and then inch the ram down until it just touched the scrap metal. When the ram engaged the metal at the scribe line, he stopped the ram and went around to the back of the machine and set the stops by butting them up against the metal and tightening them down with a wrench. However, at an examination before trial plaintiff testified that prior to the accident he had set the stops without a piece of scrap metal in the machine. Defendants thus contended that the accident was a result of the plaintiff's negligent set-up procedure because he set the stops by eye without measuring them with a scrap piece.

Plaintiff's foreman testified that he did not see the accident but that he heard metal fall and after the accident he saw a piece of metal hanging out the back of the press. The foreman raised the ram and removed plaintiff's hand. Plaintiff was conscious but quiet, and said to him "I finally done it."

Plaintiff called an engineer as an expert witness to testify about defects in the design of the machine because of the absence of guards and about defendant's failure to adequately warn users of the dangers of the machine. Over objection, he also speculated that the accident happened when plaintiff accidentally hit the foot pedal while trying to retrieve the metal as it fell off the bed.

II

A plaintiff who suffers amnesia as the result of a defendant's acts is not held to as high a degree of proof in establishing his right to recover for injury as is a plaintiff who can describe the events (Schechter v. Klanfer, 28 N.Y.2d 228, 321 N.Y.S.2d 99, 269 N.E.2d 812, supra ). The rule is intended to avoid unfairness to a plaintiff who has suffered amnesia as a result of the accident and who, because he cannot testify to the event, might otherwise be prejudiced by an instruction to the jury that it may draw the strongest inferences against a party who fails to testify or who withholds evidence (see, Noce v. Kaufman, 2 N.Y.2d 347, 353, 161 N.Y.S.2d 1, 141 N.E.2d 529; Matter of Randel, 158 N.Y. 216, 219, 52 N.E. 1106). It is also based, at least in part, on the belief that since the plaintiff is not able to testify, it is unfair to permit defendant to stand mute and defeat the claim (see, Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744). The rule does not entitle the jury to presume plaintiff exercised due care at the time of the accident nor does it shift the burden of proof: plaintiff must still establish a prima facie case. It merely describes a method or approach to weighing evidence and permits the jury greater latitude in drawing inferences favorable to plaintiff (Schechter v. Klanfer, supra; Townley v. Bagby Transfer Co., 19 A.D.2d 757, 241 N.Y.S.2d 492; Cary v. Short, 16 A.D.2d 309, 228 N.Y.S.2d 348; and cf. Amnesiac as Entitled to Presumption of Due Care, Ann., 88 A.L.R.3d 622). A plaintiff entitled to an amnesia charge may prevail on a lighter burden of persuasion but he must make some showing of defendant's fault (see, Jarrett v. Madifari, 67 A.D.2d 396, 404, 415 N.Y.S.2d 644) and his burden is not satisfied if the inferences are equally balanced (see, Cole v. Swagler, 308 N.Y. 325, 125 N.E.2d 592). In New York, contrasted with some other States, the rule may come into play even if there are eyewitnesses (Schechter v. Klanfer, supra ). Because loss of memory is easily feigned, before plaintiff may receive the benefit of the rule, he must prove by clear and convincing evidence that defendant's acts were a substantial factor in causing his condition (Schechter v. Klanfer, supra; see, PJI 1:62, 1:64 & 1986 Cum Supp).

All of this is familiar law. The new issue before us is whether plaintiff must introduce expert evidence to satisfy that burden. In earlier cases involving loss of memory, such evidence was presented and thus the courts had no occasion to decide whether it was required to entitle plaintiff to the benefit of the instruction (see, e.g., Schechter v. Klanfer, supra; Townley v. Bagby Transfer Co., supra; Cary v. Short, supra ). In this case, plaintiff relied solely upon his own statement that he had no memory of the event and of the circumstances surrounding it. He contends that evidence of the nature of the trauma, his lack of outcry at the time and other acts suggestive of a mind not comprehending or understanding the gravity of the accident were enough to have the jury pass on the issue. We hold it was not.

Amnesia, like most medical conditions, is beyond the understanding of laymen and expert evidence on the matter is not only helpful, it is required if plaintiff is to prove the condition by clear and...