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September 9, 1971


Masterson, District Judge.

The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

 This is a products liability case arising out of personal injuries suffered by the plaintiff, James T. Dorsey, when his right hand and arm were almost severed by the blades of a metal slitter machine which was manufactured by The Yoder Company (hereinafter referred to as Yoder) and owned by his employer, General Copper and Brass Company (hereinafter referred to as General). Diversity of citizenship affords jurisdiction and Pennsylvania law applies.

 Plaintiff sued Yoder premising liability upon Sections 402A (Strict Liability) and 398 (Chattel Made Under Dangerous Plan or Design) of the Restatement of Torts, 2d, as well as ordinary negligence. Essentially, plaintiff alleged faulty design by Yoder in that the machine lacked (1) a guard which would prevent a man's hand and arm from reaching the cutters, (2) a cut-off switch which would stop the machine if such a guard were raised, and (3) a table with guides on it located far enough away from the rotary blades so that the operator would not have to place his hands anywhere near the entrance to the cutter.

 Yoder joined General as a third-party defendant alleging that in the event of a judgment for the plaintiff, General's negligence in failing to install a guard around the cutters entitled Yoder to indemnification or contribution. The gist of Yoder's contention was that the General Safety Law of Pennsylvania *fn1" imposed a duty upon General to equip the machine with such a device.

 After six days of testimony, the jury returned a verdict of $125,000 for the plaintiff against Yoder, yet declined to hold General liable for contribution or indemnification. In short, the jury judged Yoder solely liable for plaintiff's injuries.

 After careful consideration, this Court finds for the reasons set forth below that no errors have been committed that require either a new trial or imposition of judgment n.o.v. against plaintiff or General. Moreover, we are convinced that the jury had sufficient evidence to reach all of the factual conclusions necessary to impose liability upon Yoder, and to do so without extending that liability to General. Consequently, both of Yoder's motions must be denied.


 Since the jury returned verdicts for both plaintiff and General, hornbook law requires this Court to consider the evidence, and all inferences therefrom in a light most favorable to the winning parties. Following this rule, the salient facts surrounding this tragic occurrence may be summarized as follows.

 James T. Dorsey began operating metal slitting machines in 1945. Sometime in 1950, he came to work for General. Except for an absence of about 4 years between 1956 and 1960 due to an unrelated illness, he worked continuously for General up until the date of the accident, August 23, 1965.

 At that time Dorsey was operating a slitter machine manufactured by Yoder and delivered to General in 1958. Yoder's representatives visited General's plant twice and recommended the machine they felt best suited to General's requirements. The particular model involved in the case was built by Yoder especially for General. It is clear that General relied heavily upon the expertise of Yoder's engineers in providing the proper machine for the job orders General had to perform. The machine cost $8,375.00.

 When the new metal slitter arrived at General, it was not functioning properly. To understand the nature of the problem, it is necessary to explain briefly how this machine works. As indicated by its name, the basic function of a metal slitter is to cut sheet metal into strips of varying widths according to customers' orders. The operator accomplishes this by feeding sheet metal from a roll which rests on an arbor through rotary cutters which slit the metal into desired widths. As the strips of metal exit from the cutters, they are wound up onto take-up reels. To prevent the slitted metal from becoming entangled or wound around the cutter shaft, the operator inserts small pieces of wood called "stripper fingers" into the open spaces between the rotary blades after he positions the blades for the particular width desired. The uncoiler, which holds the metal sheets on an arbor, sits about 18 feet from the entrance to the cutters. Since there is no table between the uncoiler and these rotary blades, the machine has guides located about nine inches from the cutters in order to help feed the metal.

 Soon after the machine arrived, employees who operated it complained to Mr. Tanseer, General's president and treasurer, that the metal tended to buckle up near the entrance to the cutter and would not stay within the guides. Mr. Tanseer complained to Yoder, and the manufacturer sent an engineer to examine the machine. The engineer's subsequent report contained a notation that the guides were inadequate, and Yoder recommended installation of a hold-down bar to prevent the metal from buckling up or rising over the entry guides. General agreed to purchase the bar and it was immediately installed on the Yoder machine.

 Aside from the hold-down bar supplied by Yoder, two additional modifications were made by the plaintiff himself on the machine. First, he fashioned a pair of auxiliary guides, but these did not solve the problem of the metal riding out of the original guides. Secondly, when the original stripper fingers which were made from hard maple wood became worn out from continued use, plaintiff replaced them with duplicates fashioned from scraps of soft pine. Although the duplicates were made from cracked wood, nevertheless they served the purpose for which they were intended, i.e. stripping the metal away from the cutter shaft. Yoder's instructions authorized the making of duplicate stripper fingers but did not specify that they be made of hard maple. Plaintiff's expert testified that even if the duplicates were fashioned from maple, the stripper fingers still might have fractured and allowed plaintiff's hand to enter the cutter area. In any event, nothing in the Yoder instruction booklet indicated that the stripper fingers served a safety purpose.

 When the accident occurred, plaintiff was not using the hold-down bar mentioned above because it scratched the metal, bounced around and sometimes struck his elbow. However, since the soft copper he was slitting was buckled because of annealing, it became necessary for plaintiff to put his right hand on the metal (applying downward pressure) in order to keep the metal from riding over the guides. Downward pressure with his hand was the only method of solving the problem since any other material would scratch the surface or collect dirt. Because of plaintiff's 20 year accident-free experience in bearing down on metal with his hand he considered it safe to do so on the day of the accident. On this particular occasion, his right hand was four inches from the edge of the roll and nine inches from the cutters.

 As the sheet moved into the machine, a sliver of metal that extended outward from the roll caught the soft part of the palm of his hand and pulled it into the stripper fingers. The force of his hand striking the stripper fingers caused them to be sucked through the rollers and into the cutters along with plaintiff's right hand and arm causing severe injuries.

 At the time of the accident, the machine had no guard whatsoever in front of the cutters. The point at which the rotary blades are located on this machine creates an "in-running nip point." That term is applied to the point of contact between a fixed piece of equipment and rotating part where the tendency is for the material to be sucked or pulled into the machinery. The Yoder machine had other in-running nip points which had guards as standard equipment to prevent injury to persons who might come in contact with these mechanisms.

 After plaintiff's hand and arm entered the machine, he immediately turned it off with his left hand. But as plaintiff describes it, his arm was already a piece of "bloody meat." Miraculously, a surgeon sewed the arm back on, even though a mere slice of skin held the extremity in place. Needless to say, plaintiff has suffered greatly over the past five years with numerous operations and out patient treatments. In addition, he has difficulty performing trivial acts such as tying his shoes or shaving. He will not work again.

 If plaintiff's verdict withstands attack on any one of the three theories he advances, then any errors committed with regard to the other two become harmless. Rather than attempting to answer sixty objections seriatim (many of which would prove unnecessary or repetitive, we will consider plaintiff's case under Section 402A and examine in depth defendant's objections to it.




 Pennsylvania law recognizes that a manufacturer may be liable under Section 402A for a design which creates an unreasonable risk of danger to the user. *fn2" See Bartkewich v. Billinger, 432 Pa. 351, 247 A. 2d 603 (1968); Elder v. Crawley Book Machinery Co., 441 F.2d 771 (3rd Cir. 1971). Since liability is imposed even though the product is manufactured exactly as intended, the bad design itself constitutes the defect. But the design is considered defective only if it (the design) makes the product unreasonably dangerous. *fn3" Hence the focal issue in this case becomes whether or not the absence of a guard or other device on Yoder's metal slitter to prevent the operator from coming in contact with the rotary blades created an unreasonable danger to the operator.

 Section 402A of the Restatement, 2d, Comment (i) states that a product is unreasonably dangerous if:

"The article sold [is] dangerous to an extent beyond which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." (emphasis supplied).

 Similarly comment (g) explains that a defective condition exists:

"[Where] the product is, at the time it leaves the seller's hands in a condition not contemplated by the ultimate consumer which will be unreasonably dangerous to him." (emphasis supplied).

 Again, as to when warnings of the manufacturer are necessary, comment (j) states, in part:

"But a seller is not required to warn with respect to products * * * when the danger or the potentiality of danger, is generally known." (emphasis supplied).

 Defendant summarizes the import of these comments as follows:

"In short, as the Restatement intended, an obvious danger, known to the average person as such, is not an 'unreasonable danger' and hence there is no liability on the manufacturer if one encounters it." *fn4"

 Moreover, defendant asserts that Pennsylvania Supreme Court's decision in Bartkewich v. Billinger supra, supports the contention that:

"If the absence of a safety guard presents an obvious danger, (the manufacturer) is not liable to a person who tests the danger." *fn5"

 To complete the syllogism, defendant then concludes that the Yoder machine was not unreasonably dangerous because the danger created by unguarded blades is patently obvious, especially as to an experienced operator such as the plaintiff. As persuasive as this argument seems, it contains one fatal flaw.

 In essence, the defendant advocates the so-called "latent defect" rule, i.e., the injured party must have been unaware of the defect in order to recover. According to this view, the danger must be hidden and consequently not reasonably contemplated by the average user. *fn6"

 In the Bartkewich decision, the Pennsylvania Supreme Court specifically mentioned that a case it relied upon was decided under New York's "latent defect rule", as set forth in Campo v. Scofield, 301 N.Y. 468, 95 N.E. 2d 802 (1950). In Campo, the New York Court of Appeals denied recovery to a worker whose hands accidentally became caught in machine rollers while he was performing his usual tasks. Plaintiff claimed that it was unsafe for the machine to have neither a guard nor an emergency switch, but the court allowed a directed verdict for defendant to stand because there was no evidence that plaintiff was unaware of the danger. Recognizing that reliance upon the New York case might cause confusion, the Pennsylvania Supreme Court expressly cautioned:

"We in no way mean to imply * * * that we are adopting the 'latent defect' test or approving of the decision in Campo." (emphasis added). Id., 432 Pa. at 356 n. 3, 247 A. 2d at 606.

 This skepticism of the latent defect rule places Pennsylvania in keeping with the modern trend which recognizes that manufacturers ought to make safer not more dangerous products.

 For example, in Palmer v. Massey-Ferguson, Inc., 3 Wash. App. 508, 476 P. 2d 713 (1970) the Washington Supreme Court held that the trial court properly refused defendant's requested instruction that a manufacturer has no duty to provide guards to prevent injury from a patent peril or source manifestly dangerous:

"The rule excusing the duty of safe design because of a patent peril has come under criticism in treatises. See Frumer & Friedman, Products Liability § 7.02 (1968). It seems to us that a rule which excludes the manufacturer from liability if the defect in the design of his product is patent but applies the duty if such a defect is latent is somewhat anomalous. The manufacturer of the obviously defective product ought not to escape because the product was obviously a bad one. The law, we think, ought to discourage misdesign rather than encouraging it in its obvious form." Id. at 718-719.

 And in Pike v. F.G. Hough Co., 2 Cal. 3d 465, 85 Cal. Rptr. 629, 467 P. 2d 229 (Calif. 1970), *fn7" the California Supreme Court also rejected the proposition that an obvious defect in a product precludes recovery:

"Even if the obviousness of the peril is conceded, the modern approach does not preclude liability solely because the danger is obvious. * * * [It is reasonable] to require reasonable care to protect even the buyer himself from what may be foreseen as an unreasonable danger to him. * * * Harper & James, The Law of Torts, * * * § 28.5." Id. at 636, 467 P. 2d at 235.

 The Bartkewich case and the progressive attitude of the Pennsylvania Supreme Court since adoption of Section 402A in Webb v. Zern, 422 Pa. 424, 220 A. 2d 853 (1966) *fn8" is clear evidence that the Court would adopt a rule similar to that expressed in the Palmer and Pike decisions. Therefore, we hold that even though the danger of unguarded rotary blades was obvious to plaintiff, this does not ipso facto preclude recovery.

 It does not follow from this holding that the manufacturer of every obviously defective or dangerous product owes an automatic duty to an injured party. Although a knife qualifies as an obviously dangerous instrumentality, a manufacturer need not guard against the danger that it presents. "[Nor is it] necessary to tell a zookeeper to keep his head out of the hippopotamus' mouth." Bartkewich v. Billinger, supra at 356, 247 A. 2d at 606. See also 2 Harper and James, The Law of Torts, § 28.6 (1956 ed). The point is that to preclude absurd results the obviousness of the danger must constitute but one of the factors that determines whether the danger is unreasonable.

 The proper test of "unreasonable danger" is whether a reasonable manufacturer would continue to market his product in the same condition as he sold it to the plaintiff with knowledge of the potential dangerous consequences the trial just revealed. *fn9" See P. Keeton, Manufacturer's Liability: The Meaning of "Defect" in the Manufacture and Design of Products, supra note 2 at 568. See also Pike v. F.G. Hough Co., supra.

 To answer this question one must:

"[balance the] likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of precaution which would be effective to avoid harm." 2 Harper and James, The Law of Torts § 28.4 (1956 ed), cited with approval in Pike v. F.G. Hough Co., supra.

 And in measuring the likelihood of harm one may consider the obviousness of the defect since it is reasonable to assume that the user of an obviously defective product will exercise special care in its operation, and consequently the likelihood of harm diminishes.

 In a persuasive article, Dean Wade has enumerated the specific factors that enter into the ...

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