Sell v. Bertsch and Co., Inc.

• Decision Date: 04 January 1984
• Docket Number: Civ. A. No. 80-2437,82-2171.
• Citation: 577 F. Supp. 1393
• Parties: Jeffrey N. SELL, et al., Plaintiffs, v. BERTSCH AND COMPANY, INC., Defendant. Jeffrey N. SELL, Plaintiff, v. INTERSTATE MACHINERY COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

577 F. Supp. 1393

Jeffrey N. SELL, et al., Plaintiffs, v. BERTSCH AND COMPANY, INC., Defendant.

Jeffrey N. SELL, Plaintiff, v. INTERSTATE MACHINERY COMPANY, Defendant.

Civ. A. Nos. 80-2437, 82-2171.

United States District Court, D. Kansas.

January 4, 1984.

Craig A. Strayer, Daniel R. Brown, Paul L. Redfearn, Robert J. Perkins, William H. Pickett, P.C., Kansas City, Mo., Reginald LaBunker McCullough, Wareheim & LaBunker, Topeka, Kan., for plaintiffs.

Stewart L. Entz, Richard D. Anderson, Colmery, McClure, Funk, Letourneau & Entz, Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, Kan., for Bertsch & Co., Inc.

Roseann Oliver, Phelan, Pope & John, Chicago, Ill., Francis D. Menghini, McAnany, Van Cleave & Phillips, Thomas F. Fisher, Bradley J. Baumgart, Shughart, Thomson & Kilroy, Kansas City, Mo., Donald Patterson, Fisher, Patterson, Sayler & Smith, Topeka, Kan., for Interstate Machinery Co., Inc.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

These two product liability actions have been consolidated for all purposes. Plaintiff seeks to recover for damages which occurred when he became entangled in the in-running nip point of a steel plate rolling machine.

Plaintiff's injuries were sustained on June 21, 1979, while he was working the night shift for the We-Mac Manufacturing Company in Atchison, Kansas. Defendants are Bertsch and Company, Inc., the manufacturer of the machine, and Interstate Machinery Company, which sold the machine as a used machine to We-Mac.

This matter is before the court on the separate motions of defendants for summary judgment on all of plaintiff's claims. The parties have completed extensive discovery, and the court is now prepared to rule.

Bertsch manufactured the machine and sold it to Groen Manufacturing Company in 1925. The transactions involving the machine for almost forty years are not known by the court, but in 1964 Interstate sold the used machine to We-Mac with a thirty (30)-day express warranty.

The steel rolling machine is designed and used to roll sheets of steel into cylindrical forms in the manufacture of large tanks. Employees of We-Mac who operate the machine guide steel into the in-running nip point of the machine, a source of potentially severe hazard to one whose hand becomes entangled in it.

As designed, there were no barrier guards to prevent a human hand from entry into the nip point. Bertsch contends that a barrier guard would have neutralized some of the functions for which the machine was designed. The evidence submitted to the court in reference to this point is controverted.

Interstate, the seller, in 1964 was engaged in the buying and selling of used machinery. Though Interstate has sold some new machinery, it has never sold new machinery manufactured by Bertsch. Interstate did advertise its used machinery and the sale of this particular machine was occasioned by an advertisement in a used machinery directory.

The deposition testimony and exhibits are conclusive that Interstate did not repair or remanufacture this machine before selling it to We-Mac, nor did Interstate add or delete any component parts or hold itself out to have done any of the above activities. At most, Interstate cleaned and painted the machine prior to sale, and perhaps reattached any parts that had become dismantled in shipping.

The decision to purchase this machine was made by Eugene McCarty, president and co-owner of We-Mac. Before this purchase, McCarty had purchased two other steel rolling machines for use at the We-Mac plant and was otherwise familiar with the use of such machines from prior work experience. After acquiring this machine, but long before the accident herein, We-Mac designed a similar machine and provided sketches to Jenkins Machine Company to machine and forge the parts. We-Mac personnel constructed the base and electrical controls and motor mounts for the machine they designed.

The machine with which this lawsuit is concerned had undergone many changes in the time We-Mac owned it. We-Mac built and installed its own feed cable to make fourteen-, twelve- and ten-gauge material for 300 gallon, 520 gallon, and 1,000 gallon tanks. The drop hinge on the machine, a safety device for some of the machine's uses, was never used by We-Mac. We-Mac also replaced the machine's motor and drive train, and devised its own air brake on the spindle. Several other changes in the operation of the machine had been made by We-Mac for its purposes.

We-Mac never purchased any parts from Bertsch or Interstate and no one from Bertsch can recall ever seeing or inspecting the machine prior to the accident herein. We-Mac did not possess a Bertsch owner's manual for this machine. Training for operators of the machine was handled "one on one" by personnel at We-Mac.

Following the enactment of the Occupational Safety and Health Act in the 1970s, Bertsch developed an emergency stop system for the machine and sent a letter to Groen Company, the initial purchaser of the machine. No letter was sent to Interstate or We-Mac, and there is no indication that Bertsch ever knew Interstate or We-Mac owned the machine at any time.

In order to rule favorably on defendants' motions for summary judgment, the court must determine that the matters considered in connection with the motions disclose "that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Rule 56(c), Federal Rules of Civil Procedure. The principal inquiry is therefore whether a genuine issue of material fact exists. Dalke v. The Upjohn Co., 555 F.2d 245 (9th Cir.1977); Hanke v. Global Van Lines, Inc., 533 F.2d 396 (8th Cir. 1976). A motion pursuant to Rule 56 will be denied unless the movant demonstrates beyond a reasonable doubt that he is entitled to a favorable ruling. Madison v. Deseret Livestock Co., 574 F.2d 1027 (10th Cir.1978); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33 (10th Cir.1975). Pleadings and documentary evidence are to be construed liberally in favor of a party opposing a Rule 56 motion. Harman v. Diversified Medical Investments Corp., 488 F.2d 111 (10th Cir.1973), cert. denied, 425 U.S. 951, 96 S.Ct. 1727, 48 L.Ed.2d 195 (1976).

Plaintiff alleges defendants should be liable to him under theories of strict liability, negligence and breach of warranty for (a) failure to design and equip the machine with guards or safety mechanisms to prevent operator entanglement in the in-running nip point, and (b) failure to warn plaintiff or other users of the severe hazards associated with the use of the machine and of entanglement in the in-running nip point.

As to strict liability, the Kansas Supreme Court has adopted Restatement (Second) of Torts § 402A Brooks v. Dietz, 218 Kan. 698, 545 P.2d 1104 (1976), which provides as follows:

"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer 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."

To be "unreasonably dangerous," a product must be "dangerous to an extent beyond that which would be contemplated by the ordinary person who uses it, with the ordinary knowledge common to the community as to its characteristics." Lenherr v. NRM Corp., 504 F.Supp. 165, 172 (D.Kan.1980).

In this case, the questions of whether this product was "defective" or "unreasonably dangerous" at the time of manufacture are fact questions to be determined by the jury. Manufacturers may not be held strictly liable for failure to design safety features if the technology to do so is unavailable at the time the product is made. Rexrode v. American Laundry Press Co., 674 F.2d 826 (10th Cir.1982). The evidence presented to the court is inconclusive as to the feasibility for the manufacturer of appropriate safety devices in 1925, the year of initial manufacture and sale.

Bertsch contends that it should not have to go to trial on the strict liability or negligence issues because the negligence of We-Mac was a superseding cause of plaintiff's injuries as a matter of law.

Bertsch relies on Restatement (Second) of Torts § 452(2), which states: "Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor's negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause."

Causation is an element to be proved by plaintiff in presenting his case. In order to recover in a products liability action, plaintiff must prove that the defective product is the actual and proximate cause of the injury. Wilcheck v. Doonan Truck & Equipment, Inc., 220 Kan. 230, 552 P.2d 938 (1976).

Kansas follows a comparative fault doctrine which is specified by statute. K.S.A. 60-258a. There can be more than one party at fault in an injury and the comparative fault of all the actors, including those who cannot be formally joined as parties or held legally responsible, is determined in one action. Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 374, 634 P.2d 1127, 1132 (1981). The doctrine of comparative fault applies to claims based on strict liability. Kennedy v. City of Sawyer, 228 Kan. 439, 452, 618 P.2d 788, 798 (1980).

The question of causation in a product liability case is one for resolution by the jury in the absence of conclusive proof that makes only one result possible. Palmer v. Ford...