Whitaker v. T.J. Snow Co.

• Decision Date: 06 August 1998
• Docket Number: No. 97-1596,97-1596
• Citation: 151 F.3d 661
• Parties: Prod.Liab.Rep. (CCH) P 15,315 Naomi WHITAKER, Plaintiff-Appellant, v. T.J. SNOW CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 661

151 F.3d 661

Prod.Liab.Rep. (CCH) P 15,315

Naomi WHITAKER, Plaintiff-Appellant, v. T.J. SNOW CO., Defendant-Appellee.

No. 97-1596.

United States Court of Appeals,

Seventh Circuit.

Argued Oct. 24, 1997.

Decided Aug. 6, 1998.

Edward L. Murphy, Jr., Larry L. Barnard (argued), Miller, Carson, Boxberger & Murphy, Fort Wayne, IN, Dale J. Starkes, Winamac, IN, for Plaintiff-Appellant.

John C. Hamilton (argued), John E. Doran, Doran, Blackmond, Ready, Hamilton & Williams, South Bend, IN, for Defendant-Appellee.

Before COFFEY, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

One unintended effect of the workers' compensation scheme in force in virtually every state has been to create an incentive for employees injured on the job to look for entities other than the employer who might be responsible (and able to pay) for the full consequences of their job-related injuries. The scope of products liability law, in turn, has in many cases pointed the way to potential defendants: even if the injured employee is limited in her remedies against the employer, she can require the company that manufactured an unreasonably dangerous product that caused her injuries to pay damages. That, in general, is what Naomi Whitaker is attempting to do in this case. While she was working at her job as a welder at the Walker Manufacturing Company, Whitaker's hand was injured by a machine that had been refurbished (but not originally manufactured) by appellee T.J. Snow Company about five years earlier. Whitaker's claim was tried with the consent of the parties before a magistrate judge, see 28 U.S.C. § 636(c), who eventually entered summary judgment for Snow. See Whitaker v. T.J. Snow, Co., 953 F.Supp. 1034 (N.D.Ind.1997). Whitaker has appealed from that judgment.

The machine that injured Whitaker was a "catalytic converter seam welder" manufactured and sold in 1979 to Walker by RWC, Inc. (which originally was also a defendant, but is now out of the case). In February or March 1988, Walker decided to upgrade the electrical circuits of the seam welder, and it solicited a bid for that work from Snow. In the request for bids, Walker specified all equipment that was to be used in the project. Snow responded with a shop order dated April 15, 1988, which stated that Snow would add to the machine Walker's specified Gould three-axis programming unit, install a new water circuit, air circuit, and Weltronic WT-900 weld control, design and build a water catch basin/tray with outlet, and clean and paint the machine. The shop order also specifically said that "[t]he basic welder [was] ... not to be rebuilt." Walker accepted Snow's bid, and work proceeded according to plans. Snow performed some additional design work that enabled it to use the component parts Walker had specified. Snow did not design the component parts themselves, nor did it change the welder's mechanical function. The parties agree that the work Snow performed had the effect of extending the useful life of the machine, even though the machine had some useful life remaining when Snow received it. The total cost of the work Snow performed was $61,065; a new seam welder at the time would have cost about $100,000.

Snow returned the seam welder to Walker on May 27, 1988. Normally, before it returns something to a customer, Snow checks over the item to see if it complies with all applicable safety regulations, including those issued by the Occupational Safety and Health Administration (OSHA), the American National Standards Institute (ANSI), and the Resistance Welders Manufacturers Association (RWMA). If Snow spots a problem, it usually tells the customer orally, and then follows up in writing. In this case, Snow was supposed to inspect the seam welder and determine if any guarding was necessary for so-called pinch points on the machine, and if so, either to furnish the guards or tell Walker they were needed. Although Snow inspected the machine, because the order was a rush job, it failed to install guards, to warn Walker orally or in writing, or to place warning stickers or decals on the exposed pinch points. This was unfortunate because the seam welder was not in compliance with OSHA regulations when Snow returned it to Walker. When Walker received the seam welder back from Snow, the only guarding on the pinch points were on the two hand controls--and even those guards were insufficient under the relevant OSHA regulations. This non-compliance with OSHA regulations may not have been unusual, however, because by industry convention the customer normally shipped Snow a "bare bones" machine, and the customer retained the responsibility for re-installing the guards afterwards. That is precisely what occurred in the case of the seam welder that injured Whitaker.

As of the day of the injury, September 18, 1993, Whitaker had been a Walker employee for only six days; she had operated the seam welder for five of those days. On the second day of her employment, Tim Kaizer (whose name is spelled several ways in the record), another Walker employee, had showed her how to operate the seam welder and how to examine the weld. Other Walker employees instructed Whitaker what to do when, during the welding process, small molten particles of metal spattered on the seam welder's wheels. When this happened, Whitaker was told to chisel the metal beads off the wheel. The accident did not occur while she was actually in the process of welding. Instead, it occurred after she observed spattered metal adhering to the wheels and, as she had been instructed, she reached inside an opening on the seam welder to attempt to knock the weld beads off with a chisel. Unfortunately, the seam welder was in the middle of a weld cycle, and while she was doing this, the machine re-activated and caught her left hand in a pinch point, breaking her left index and middle fingers.

She eventually sued Snow (among others) under the diversity jurisdiction, 28 U.S.C. § 1332. Whitaker is a citizen of Indiana, and Snow is a Tennessee corporation with its principal place of business in Tennessee; the amount in controversy exceeded $50,000, the jurisdictional amount required at the time the suit was filed. Although Whitaker's amended complaint pleaded only a warranty theory, Snow's motion for summary judgment briefed both this issue as well as a claim under Indiana's Strict Product Liability Act. See generally Ind.Code § 33-1-1.5-1 et seq. (1997). Because both parties squarely addressed the strict liability theory in their summary judgment briefs, the complaint was constructively amended to include that claim. See Walton v. Jennings Community Hosp., 875 F.2d 1317, 1320 (7th Cir.1989) (complaint was amended where plaintiff pleaded contract-based theory but at briefing on summary judgment both parties and the judge joined issue on a tort-based theory). Cf. Fed.R.Civ.P. 15(b).

On appeal, Whitaker has abandoned her warranty claim (which the district court in any event had barred on statute of limitations grounds) and limited her arguments to Snow's tort liability. She argues principally that the district court should have found genuine issues of material fact pertinent to the strict liability claim. This issue was properly raised below and we may review the disposition of that claim now. In addition, in her brief and at oral argument Whitaker attempted to smuggle into the case an argument based on Snow's alleged negligence. As noted before, however, her complaint did not include a negligence-based count. While conceding this fact, Whitaker argues that (like the strict liability claim) the issue of negligence was tried by consent when she presented negligence theories in her response to Snow's motion for summary judgment and again later in a "Statement of Genuine Issues" filed with the court. This argument, however, overlooks the fact that "[a] plaintiff may not amend [her] complaint through arguments in [her] brief in opposition to a motion for summary judgment." Speer v. Rand McNally & Co., 123 F.3d 658, 665 (7th Cir.1997), quoting Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.1996). Such eleventh hour amendments should ordinarily be presented to the district court, which has discretion to grant or deny the motion. Cf. Shanahan, 82 F.3d at 781. Because Whitaker did not seek leave to add the negligence count but instead merely inserted the claim in her brief in opposition to summary judgment, and because unlike the strict liability count Snow did not join issue with Whitaker on the improperly appended negligence claim, Whitaker waived this theory of recovery and we do not consider it further.

The Indiana Strict Product Liability Act, which we set forth here in pertinent part, makes certain parties liable for injuries caused by their products without regard to ordinary principles of fault:

(a) [A] person who sells, leases, or otherwise puts into the stream of commerce any product in a defective condition unreasonably dangerous to any user or consumer or to the user's or consumer's property is subject to liability ... if that user or consumer is in the class of persons that the seller should reasonably foresee as being subject to the harm caused by the defective condition, and if:

(1) the seller is engaged in the business of selling such a product; and

(2) the product is expected to and does reach the user or consumer without substantial alteration in the condition in which it is sold by the person sought to be held...