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POWELL v. E. W. BLISS CO.

June 19, 1981

John POWELL
v.
E. W. BLISS COMPANY



The opinion of the court was delivered by: DITTER

MEMORANDUM AND ORDER

In this products liability action, the jury returned a verdict in favor of the defendant. Presently before me are plaintiff's motions for judgment n.o.v. and for new trial in which he contends that I erred both in my charge to the jury and in several of my evidentiary rulings. *fn1" After careful consideration of the matters raised by the plaintiff, I have concluded the motions must be denied for the reasons that follow.

 The plaintiff was employed as a punch press operator for the Penn Construction Company ("Penn"). His job required him to pick up 10-12 pieces of flat metal with his left hand, place them in the work area of the punch press, and then activate the press by stepping on a foot pedal. (Tr. 52-54). The pedal engaged a clutch which caused the ram on the press to descend. (Tr. 70). This in turn caused a die, which was attached to the ram, to strike the metal pieces forming them into U shaped metal parts. The ram would then go back up and plaintiff would reach into the work area with his right hand, remove the newly formed metal piece, throw it into a nearby can, and repeat the process. (Tr. 54).

 On August 27, 1975, the ram on the press inexplicably *fn2" descended while plaintiff's left hand was within the work area, cutting off a portion of his left middle finger and the tip of his index finger. He commenced the instant action against the manufacturer of the punch press *fn3" contending the press was defective within the meaning of Restatement (Second) of Torts § 402A (1965) *fn4" because it was not equipped with safeguards designed to keep the operator's hands out of the work area while the flywheel was engaged, with warnings regarding the danger of operating the press without such safeguards, or with instructions to the employer regarding the necessity of providing safeguards. At trial, the plaintiff introduced a considerable amount of evidence pertaining to the feasibility of incorporating various types of point of operation safeguards into the machine which, he contended, defendant was obligated to include on the press in order to make it safe for its intended use. Defendant did not seriously contest the assertion that some type of safeguarding was essential to the safe operation of the press. Rather, the entire thrust of its case was that the press was manufactured and sold as a general purpose, multifunctional unit, unequipped with dies and having no point of operation. Until plaintiff's employer provided a die and put the press to a specific use, its work area could not be adequately safeguarded since the efficacy of any safety measure depends in large part upon the manner in which the machine is used. In short, defendant argued that the responsibility for providing point of operation safeguards necessarily rested with the Penn Construction Company and defendant therefore could not be held liable simply because the press in question was not so equipped.

 Following a five day trial on the issue of liability, the jury returned a verdict absolving defendant of responsibility for the accident. The plaintiff then filed the present motions. He first contests that portion of the charge in which I instructed the jury that it could determine the punch press was not a completed product when it left defendant's hands but was only made complete by the addition of the die and certain other features by the Penn Construction Company. (Tr. 533, 536). I further advised the jury that if it did find the press was not a completed product when sold by the defendant, it could consider such factors as trade custom, safety codes, laws and regulations, the relative expertise of the parties, and the practicalities of the situation in determining who was responsible for providing point of operation safeguards. (Tr. 533-36).

 The plaintiff's threshold challenge to this charge may be summarily disposed of. He contends my instruction to the jury that it could determine the punch press was not a completed product when it was sold to Penn permitted the defendant to be absolved of liability by a finding that the press was not a product within the meaning of section 402A. This argument mischaracterizes the substance of the charge. I did instruct the jury that if it found that the press was not a completed product when sold, it would then have to determine whether defendant or Penn was responsible for providing the point of operation safeguards. In no way did I intimate the mere finding that the press was not a complete product would absolve defendant of liability or that the strict liability provisions of section 402A would be inapplicable.

 The plaintiff's more substantial contention is that I erred in instructing the jury that if it found the press was sold in an uncompleted state, it could consider such factors as trade custom, practicality, safety codes, and the relative expertise of the parties in determining who was responsible for providing safety features. As I stated to the parties at trial (Tr. 550), this portion of the charge was based upon Verge v. Ford Motor Co., 581 F.2d 384 (3d Cir. 1978). In Verge, Ford Motor Company manufactured the cab and chassis of a truck. Another manufacturer constructed the body of a garbage truck upon the chassis. The plaintiff, who was injured when the truck backed over him, sued Ford alleging that the absence of safety features such as rear view mirrors and warning devices which would sound when the truck was put into reverse gear rendered the truck defective. The court was thus confronted with "a little-litigated subtlety of products liability law: On whom to place design responsibilities where a product has been manufactured and assembled in more than one stage." Id. at 385. In making such a determination, it posited the consideration of several factors:

 1. Trade Custom-at what stage is the safety device generally installed;

 2. Relative Expertise-which party is best acquainted with the design problems and safety techniques in question;

 3. Practicality-at what stage is installation of the device most feasible.

 Id. at 387.

 In the instant case, the entire basis of Bliss' defense was that the punch press, as manufactured and sold to Penn, was simply a general purpose device which would ultimately be incorporated into a metal forming system. (Tr. 347). It had no point of operation and could not be put to use until the purchaser outfitted it with a die and whatever other features were necessary for it to perform one of the thousands of functions of which it was capable. (Tr. 371-73). In short, there was sufficient evidence for the jury to determine that, like the garbage truck in Verge, the punch press in question was manufactured and assembled in more than one stage. Thus, there was no error in instructing the jury that it could find the press was not a complete product when sold to Penn.

 Having so charged the jury, I then instructed it that if it found the press was not a complete product when sold, it would have to determine whether defendant or Penn was responsible for providing safeguards around the point of operation. I told the jury that in making this determination, it should consider such factors as trade custom, practicality, safety codes, and the relative expertise of the parties-language taken almost verbatim from Verge. Plaintiff contends however, that several subsequent decisions, specifically Heckman v. Federal Press Co., 587 F.2d 612 (3d Cir. 1978) and Holloway v. J. B. Systems, Ltd., 609 F.2d 1069 (3d Cir. 1979), have rendered Verge inapposite to the factual circumstances presented here. I cannot agree. *fn5"

 Heckman involved a punch press accident quite similar to the one involved in this case. In holding its earlier decision in Verge did not absolve the manufacturer of ...


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