Smith v. Ontario Sewing Machine Co., Ltd.

• Citation: 249 Ga. App. 364,548 S.E.2d 89
• Decision Date: 25 April 2001
• Docket Number: No. A01A0837.,A01A0837.
• Court: United States Court of Appeals (Georgia)
• Parties: SMITH v. ONTARIO SEWING MACHINE COMPANY, LTD. et al.

548 S.E.2d 89

249 Ga. App. 364

SMITH v. ONTARIO SEWING MACHINE COMPANY, LTD. et al.

No. A01A0837.

Court of Appeals of Georgia.

April 25, 2001.

Butler & MacDougald, Daniel MacDougald III, Atlanta, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Earl W. Gunn, Ashley P. Nichols, Atlanta, for appellees. ELDRIDGE, Judge.

This is an appeal from the grant of summary judgment to the manufacturer-seller in a fact-intensive product liability case based upon proximate cause involving the post-sale warnings, i.e., a mop assembly machine that had a cutter blade activated without the controls being activated by the plaintiff. The plaintiff, Regina Smith, was injured after the post-sale notice was sent by Ontario Sewing Machine Company, Ltd. to her employer, Wilen's Mop Manufacturing; the notice only warned the employer to stop using the machinery and to purchase a more expensive newer model to avoid the dangerous manufacturing design of the old equipment. The notice did not identify the design defects or any method to correct the danger other than to stop using the machine. The trial court found that Wilen's failure to stop using the dangerous machinery after this notice was the supervening proximate cause of plaintiff's injury. Ontario initially took remedial steps to correct what it believed was the cause of two prior injuries by moving the control buttons apart and by recessing them. But when these remedial steps failed to prevent further injuries, Ontario took no further steps to correct the dangerous design defect other than to send the post-sale warning to Wilen. When Wilen notified Ontario, both verbally and in writing, that it could not take the machines out of service, Ontario was in negotiation with Wilen over making corrections or sale of new machinery at the time of plaintiff's injury. Ontario had the duty not only to adequately warn of the danger from its product's defective design, but also to exercise ordinary care to correct the danger, which duty was not relieved by the acts or omissions of Wilen, because Ontario had actual notice that Wilen would not stop using the machinery. Thus, Ontario should have reasonably foreseen that its concurrent negligence with Wilen's negligence would cause further injuries to employees if the defect was not corrected. Therefore, we reverse, because the issue of proximate cause in this case is for the jury.

On July 22, 1998, while working as a temporary production worker for Wilen, with only ten weeks experience, Smith had her hand badly cut by the cutter blade when the cutter blade activated without the two separated control buttons being pushed simultaneously and intentionally by the operator. She did not know that Ontario had given Wilen a "recall" notice or that two employees had previously been injured when the blade activated spontaneously, as in her case.

In order to operate the mop making machine the operator reaches under the blade cage, which also acts as a clamp for the yarn while the blade is activated, pulls a bundle of yarn under the cage and over the blade opening, and only then the cutting blade activates when the operator pushes two control buttons simultaneously with separate hands. To carry out this full operation, the operator's hands have been removed from under the cage and the cutting area and are on the control buttons.

The cutter blade is a retractable 10" rotary blade mounted under the table, like a table saw, which blade rises through the blade opening when activated. After the desired length of yarn is pulled across the blade, the cage/clamp comes down, and the blade comes up on activation by pressing the two buttons. Upon release of the buttons, the blade stops and retracts below the opening. Plaintiff was taught that this was the correct way to operate the machine, and there is no evidence to the contrary.

Plaintiff had some general concern that placing her hand under the cage/clamp and across the blade opening could be dangerous; however, to activate the blade required that both hands be free from the area of danger and used to depress the two buttons; therefore, her hands were safe when pushing the buttons. She did not know that the blade could activate without the control buttons being pressed, so she had no actual and subjective knowledge of the real danger in this case.

On July 22, 1998, plaintiff reached with her left hand above the blade opening to grasp the yarn, when the cage/clamp came down and the blade came up, cutting her hand without both control buttons being depressed.

Plaintiff's expert testified that the defect causing the injuries was that the circuit control design allowed spontaneous activation if the control circuit valves of the pneumatic control system malfunctioned; this constituted a violation of American National Standards Institute standards. Notably, this was not the defect identified by Ontario and known by Wilen.

Several production workers testified that they had seen the blade activate without the buttons being pushed prior to plaintiff's injury. Prior to plaintiff's injury, two other workers had been injured by the activation of the blade without the buttons being pressed. The first was in September 1994. On November 25, 1996, a second employee was injured when the blade spontaneously activated. All of this was known by Ontario prior to plaintiff's injury. Ontario failed to exercise ordinary care to investigate properly and to discover the cause of the injuries; it identified a defect that did not cause the injuries and sought to correct the wrong defect. Ontario believed that a design defect allowed operators to depress the buttons with their bodies accidentally activating the blade. In early 1996, Ontario redesigned the controls by moving them farther apart so that the operator's body could not depress them and later made the buttons recessed after the second injury, because it still believed that the buttons were being depressed accidentally by the operators. Both Ontario and Wilen held this wrong belief that the operators had depressed the buttons with their bodies and believed that moving the buttons farther apart and recessing them corrected the danger.

On September 19, 1997, Ontario sent to Wilen what it denominated a "Re-call of cut-off option on DD-16 machines," but it failed to identify any defect or specific danger in the notice. The "recall" notice stated:

As you are aware, there have been two incidents where serious operator injury occurred while using equipment. In order to avoid any possibility of further injuries, we are recalling this equipment. You are hereby advised to immediately cease use of this equipment, and to disable operation by removing electrical and compressed air supplies to it. You will be reimbursed for the actually paid cost of this equipment as per our records on receipt of the equipment, complete and in working order, by us. We will arrange for pickup or shipment of the equipment in our plant. This offer to reimburse the full invoice cost is valid for 90 days. We have designed a new feeder/cutter machine which provides improved safety and productivity, which could be used to replace the re-called cut-off options. Please let me know at your earliest convenience when this equipment is available for return.

On October 2, 1997, Dietmar Jeske, the principal at Ontario who had redesigned the controls, was notified by Joe Wilen in writing and earlier by telephone that Wilen could not and would not remove the cutter without an immediate replacement cutter, because this would shut down all production. Jeske and Wilen had agreed that 90 days was insufficient time to resolve the problem. Wilen also reminded Jeske in the letter that, during Jeske's September 24, 1997 visit and inspection at the Wilen plant after the notice, they had agreed "that it may be possible to secure the existing cutters." Wilen also wrote that Wilen's position was that Ontario should correct the problem at its expense and that Ontario said that this would cost too much. Wilen reminded Jeske that Wilen's downtime to change over the cutter machines would be considerable. He stated, "Wilen should not be made to carry the burden of additional costs due to the engineering design that Ontario feels is unsafe." Thus, Wilen and Ontario fought over money, while the true defect remained unidentified and uncorrected, resulting in plaintiff's injuries.

Jeske denied the delay agreement and testified that Wilen refused the "recall" and threatened suit. But, Jeske admitted that he was aware, prior to plaintiff's injury, that another customer at its own expense had modified the equipment to make it equivalent to the new and improved equipment offered in the "recall" letter. Such customer modification did away with the need for replacement of all the machinery. However, Ontario never told Wilen that self-help remedial action was possible.

After plaintiff's injury and at Wilen's own expense, Wilen modified the defective control system for all the cutters, eliminating the defects causing the injuries, at a cost of $400 per unit. Thus, the evidence showed that two reasonable, quick, and relatively inexpensive remedial redesigns existed that users made themselves to eliminate the dangerous defects; this is compared to defendant's third solution, which was costly in down-time or lost production time from production and in money for purchase of Ontario's new generation of equipment. Ontario demanded in the "recall" notice that Wilen replace Ontario's old generation machine with a new generation machine.

To determine the issue of proximate cause of plaintiff's injuries, Ontario's different duties must be analyzed to determine as a mixed question of law and fact supervening proximate cause versus concurrent proximate cause, as well as the question of plaintiff's assumption of risk.

(a) Georgia law imposes on the manufacturer of personal property the duty to exercise ordinary care...