Thursby v. Reynolds Metals Co.

• Decision Date: 13 December 1984
• Docket Number: AR-429,Nos. AQ-315,s. AQ-315
• Parties: 10 Fla. L. Weekly 586, 39 UCC Rep.Serv. 1625 Laverine THURSBY and Wynell Thursby, Appellants, v. REYNOLDS METALS COMPANY, a Delaware corporation, and Liberty Mutual Insurance Company, a corporation, Appellees.
• Court: Florida District Court of Appeals

Page 245

466 So.2d 245

10 Fla. L. Weekly 586, 39 UCC Rep.Serv. 1625

Laverine THURSBY and Wynell Thursby, Appellants, v. REYNOLDS METALS COMPANY, a Delaware corporation, and Liberty Mutual Insurance Company, a corporation, Appellees.

Nos. AQ-315, AR-429.

District Court of Appeal of Florida,

First District.

Dec. 13, 1984.

As Amended on Denial of Rehearing

March 6, 1985.

Rehearing Denied April 9, 1985.

Dana G. Bradford, II, and Lawrence J. Hamilton, II, of Gallagher, Baumer, Mikals & Bradford, Jacksonville, for appellants.

Herbert R. Kanning, P.A., and Jack W. Shaw, Jr., P.A., of Mathews, Osborne, McNatt, Gobelman & Cobb, Jacksonville, for appellees.

AS REVISED ON DENIAL OF REHEARING

SMITH, Judge.

Appellants appeal from a final judgment after a jury verdict in favor of appellees in this products liability action, as well as a final judgment taxing costs. Appellants sought recovery from the appellees ¹ based on theories of negligence, breach of express and implied warranty, and strict liability, alleging that appellee Reynolds Metal Company ("Reynolds") negligently designed and manufactured a machine used by appellant Laverine Thursby's employer, Metal Container Corporation, in the manufacture of aluminum cans. Appellants rely upon a series of alleged trial errors for reversal. Finding no error requiring reversal, we affirm the judgment below.

At the time of the accident, which occurred January 5, 1977, appellant Laverine Thursby was employed by the Metal Container Corporation ("Metal Container") of Jacksonville, Florida. Metal Container had contracted with Apache Container Corporation ("Apache") for Apache's purchase and subsequent modification of appellee Reynolds' Mark III Draw and Iron Press, which as modified was to be installed on Metal Container's aluminum can production assembly line. ² Reynolds was to build the press in conformity with the specifications of Apache; Apache was then to install its own computer control system as part of the system used to operate Metal Container's whole automated production line.

The function performed by the press was to stretch a piece of aluminum into a can by use of a piston. Occasionally, the press would fail to form a perfect can, causing the malformed piece of aluminum to become caught in the press, and requiring its removal before the machine could resume operation. Appellant's job was to clear this aluminum from the press so that the next can could be made. This portion of the press was guarded by a door which had to be removed to accomplish this operation. Inside the guard door was a limit switch which would activate when the door was opened, disengaging the piston's flywheel and applying a brake. Once this occurred, the jammed aluminum could then be cleared safely.

As the machine was designed, opening the guard door would not result in turning off the electric current to the press. Thus, the proper procedure for clearing aluminum from the press required the operator to (1) hit an emergency stop switch, which would turn off all power to the press, (2) hit an oil switch which would prevent oil from spitting out of the press, and (3) open the tool guard door, which would activate the limit switch. On the date of his accident, Thursby attempted to clear an aluminum piece from the machine by hitting the oil switch and activating the limit switch, but not the emergency stop. Appellant's fingers were injured when the piston stroked while his fingers were still inside the press.

At trial, two theories were offered as to what caused the piston to stroke, causing appellant's injuries. Testimony by two expert witnesses for appellant indicated that the accident was caused by failure of the limit switch inside the guard door. These experts suggested a number of alleged deficiencies in Reynolds' design of the press as facilitating the occurrence of limit switch failure. ³ Appellee Reynolds presented testimony suggesting that "electronic noise" from the work environment had been detected by the press's computer, whose "modified logic circuit" reacted to the noise by instructing the press's piston to stroke, notwithstanding its other safety devices.

As one point on appeal, appellants contend that the trial court committed reversible error by excluding evidence showing a post-accident design change made on the press by an employee of Metal Container. Appellants proffered evidence to show that subsequent to the accident, the employee examined the press's limit switch and decided to replace the limit switch with a "proximity switch," which, the employee felt, would function more reliably. Appellants urge that this evidence should have been admitted, citing this court's decision in Hartman v. Opelika Machine and Welding Co., 414 So.2d 1105 (Fla. 1st DCA 1982), pet. for rev. den., 426 So.2d 27 (Fla.1983). In Hartman, this court found that where subsequent remedial measures were taken by a third party who was not a party to the litigation, the policy underlying the rule of exclusion now embodied in Section 90.407, Florida Statutes, was not offended. ⁴ The Hartman court found that the rule is based on the notion "that owners would be discouraged from attempting repairs that might prevent future injury if they feared that evidence of such acts could be introduced against them," quoting Denolf v. Frank L. Jursik Co., 395 Mich. 661, 238 N.W.2d 1, 4 (1976), and that the policy reasons underlying the rule of exclusion are absent where the subsequent remedial measures are taken by someone not a party to the action. 414 So.2d at 1110.

Hartman is factually distinguishable from the case at bar. In Hartman, the defendant sought introduction of the evidence of subsequent remedial measures, a change in design, in an attempt to focus blame for the accident on the third party, who was not a party to the lawsuit, rather than itself. In such circumstances, the policies advanced by Section 90.407 are not implicated because the evidence does not tend to prove "negligence or culpable conduct" on the part of the defendant before the court. In finding no reversible error on this point, the Hartman court simply determined that it would "prefer the rule of admissibility under the limited circumstances applicable to this case...." Id. at 1110.

Here, on the other hand, the evidence of post-accident changes proffered by appellants was clearly designed to show "negligence or culpable conduct" on the part of Reynolds in the design or manufacture of the press. Thus, the evidence was offered for a purpose for which its use is prohibited under Section 90.407, which on its face applies, irrespective of the status of the party actually undertaking the remedial measures. Under the circumstances, we would be hard put to find reversible error in the trial court's adherence to the Florida Evidence Code.

Our approval in Hartman of the Denolf court's analysis concerning the absence of policy reasons for exclusion, where the repairs or changes are made by a third party, did not convert the rule of exclusion into one of admissibility in derogation of the clear language of the statute, where (unlike Hartman) the evidence has no other independent basis for admissibility. In Hartman, the evidence was admissible to show that the sole proximate cause of the accident was a design defect for which a non-party was solely responsible. Thus, application of the holding in Hartman does not compel a holding that the evidence excluded here was relevant and admissible. As pointed out by the Denolf court, in order to be admissible, the evidence must also be relevant (238 N.W.2d at 5), a requirement which the court found was met in that case primarily because of the issue of alternate design feasibility. Id. at page 4, footnote 4. See, Tulkku v. Mackworth Rees, Etc., 76 Mich.App. 472, 257 N.W.2d 128, (1977), reversed on other grounds, 406 Mich. 615, 281 N.W.2d 291 (1979), interpreting Denolf. ⁵ Assuming, without deciding, that Florida's statute may be construed as allowing for an exception as to evidence of post-accident remedial measures where there is an issue of alternate design feasibility, appellant has failed to demonstrate error under this exception because it is not shown that there was a genuine issue made in the trial court concerning the feasibility of using different switches or switch locations. ⁶ We find no basis in Hartman or other authority presented by appellant for the proposition that evidence of post-accident changes by Metal Container's employee of the kind proffered here, neither directed nor accepted by Reynolds, can be attributed to Reynolds as an admission of pre-accident culpability, nor that such evidence is admissible to show that the switch furnished by Reynolds was defective. We note that the Michigan Court of Appeals in Tulkku, supra, on very similar facts, stated that the mere fact that switches were changed "does not tend to show that the replacements utilized different or better safety features," 257 N.W.2d at 130. Further, as similarly observed in Tulkku (Id. at 130, 131), exclusion of evidence of the change in switches did not prevent plaintiff from presenting evidence comparing the Reynolds' switch with other products available. Cf. Przeradski v. Rexnord, Inc., 119 Mich.App. 500, 326 N.W.2d 541 (1982), remanded on other grounds, 417 Mich. 1100, 338 N.W.2d 188 (1983), (evidence that third person installed guard over winch-head of cement mixer after accident inadmissible, citing Denolf, and Rule 407, Michigan Rules of Evidence--subsequent remedial measures inadmissible to prove negligence in connection with the incident). Accordingly, we find the trial court did not err in refusing admission of the subsequent remedial measures taken by the Metal Container employee.

Appellants challenge a number of aspects of the jury instructions given or denied below. Upon review, we find no reversible error has been demonstrated. First, it is contended that the trial court erred in refusing appellant...