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GIDLEWSKI v. BETTCHER INDUS.

March 18, 1985

JAMES GIDLEWSKI
v.
BETTCHER INDUSTRIES, INC.



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 The plaintiff, James Gidlewski, brought this diversity action against the defendant, Bettcher Industries, Inc., alleging that the plaintiff was injured as a result of a defective design in a machine (a fish press) which was manufactured by the defendant and leased to the plaintiff's employer, Mrs. Paul's Kitchens, Inc. Following the liability portion of the bifurcated trial, in response to interrogatories the jury found, based upon a preponderance of the evidence, that the press was leased in a defective condition in that it was defectively designed; that the press was not substantially changed after it was leased from the defendant, prior to the accident; and that the defective condition of the press at the time it was leased was a proximate cause of the accident. Following the damages portion of the trial the jury returned a verdict in favor of the plaintiff in the amount of one million dollars.

 The defendant has filed a motion for a new trial with regard to both liability and damages. For the reasons that follow, this Court has determined that the defendant's motion will be denied.

 Facts

 The plaintiff was injured on May 8, 1982, while he was cleaning the fish press which the defendant had leased and/or sold to the plaintiff's employer, Mrs. Paul's Kitchens, Inc. The evidence showed that the press in question was about six feet high, eight feet long, twenty-three inches wide, and weighed about three thousand pounds. At the time of the accident it was mounted on four steel swivel castor wheels, which raised the machine about six inches off the floor. The plaintiff, who had been working for Mrs. Paul's only about two weeks, was cleaning fish particles from the bottom of the press. The press was situated within one or two feet of a drain in the floor. As the plaintiff was cleaning the base of the press, the entire press suddenly toppled over onto him, pinning him to the floor. The plaintiff did not know exactly what caused the press to fall over, and there were no other eyewitnesses to the accident. The parties stipulated, however, that the accident occurred when the press (which rolled easily on the metal swivel castors) moved as the plaintiff was cleaning it, and one of the wheels fell into the drain, causing the press to topple over.

 The plaintiff's expert testified that the press was defectively designed in that "the height of the center of mass is greater than two and one half times higher than the width of the support", making it dangerously top-heavy and unstable. Plaintiff's expert testified that three inches of movement by one of the wheels up or down would cause the press to topple over.

 The defendant did not present any expert testimony refuting the plaintiff's contention that the press was unstable, but did contend that the press had been substantially changed after it had left the defendant's control in that it had been manufactured with two swivel castor wheels and with two rigid castor wheels (equipped with "brakes"). The defendant's product service manager testified that the press in question was designed with two castor swivel and two castor rigid wheels; that the "pull sheet" or production record with respect to the wheels (Ex. D-6a) showed that two swivel and two rigid castors were ordered and "pulled" for the press' assembly; and that the defendant did not design and manufacture presses with four steel swivel wheels as were on the machine at the time of the accident. Four employees of Mrs. Paul's Kitchens (plaintiff's employer) testified that the wheels had not been changed at any time after the press was delivered to Mrs. Paul's on May 8, 1980. Two of these witnesses were present when the press was delivered, and testified that at the time of delivery the press was equipped with the four steel swivel castor wheels which were on the press at the time of the accident.

 Following the Court's charge to the jury on the liability issues, and during the course of the jury's deliberations, the jury sent the following note to the Court:

 
Exhibit D-6a, p. 12.
 
Since the swivel castors were the prime basis of the defendant's case, after examining the pull sheets we have observed that the 2 entries for the castors seem to have been either typed in at a different time or altered in some way since the type and alignment is different.

 When the note was read to counsel, defendant's counsel requested the Court to instruct the jury that they may not speculate, and must base their decision on the evidence. The Court sent for the jury and instructed them as follows:

 
At the top it says, "Exhibit D-6-A, page 12. Since the swivel castors were the prime basis of the defendant's case, after examining the pull sheets, we have observed that two entries for the castors seem to have been either typed in at a different time or altered in some way, since the type and alignment is different."
 
I just wanted to state to you, the exhibits are evidence, and it is up to you to evaluate the evidence. I don't hesitate to tell you that I didn't even see this because, you see, the way the trial goes, I don't examine these documents that come in. So that the examination of the evidence and the evaluation of the evidence is up to you. The only thing I can tell you is, from the standpoint of the law, a jury shouldn't speculate or you shouldn't guess, but this is up to you. That's a piece of ...

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