Reset A A Font size: Print

Court of Appeal, Second District, Division 1, California.

Ward R. PRICE, Plaintiff and Appellant, v. NIAGARA MACHINE & TOOL WORKS, a corporation, Defendant and Respondent.

Civ. 48224.

Decided: February 16, 1977

Voorhies, Greene & O'Reilly, Al Schallau, Los Angeles, for plaintiff and appellant. Ives, Kirwan & Dibble, Martin J. Kirwan, Peter M. Fonda, Los Angeles, for defendant and respondent.

Appellant appeals from judgment entered on a jury verdict for defendant manufacturer in a strict liability tort action and from order denying motion for judgment notwithstanding the verdict.1

Appellant Ward Price was employed by Templet of California. In March 1970 he was operating a Niagara open back inclinable (o. b. i.) press with 35 tons of closing capacity when the ram of the press unexpectedly descended, catching his hand underneath and causing injuries resulting in the amputation of all of three fingers and part of a fourth. Appellant did not know what caused the ram to descend. He sued Niagara for negligent design of the press and on a strict liability theory for defective design. The press had been manufactured in New York in 1940 and sold without any guard to prevent an operator's hand from being under a descending ram; nor were any warnings placed on the press describing the hazards of operation. The cause was tried but resulted in a hung jury.

After completion of the jury selection on the second trial, appellant's counsel moved for a motion in limine to prevent defendant “from asserting any defense that would amount to attempting to delegate its responsibility to make a reasonably safe product for the foreseeable uses of the product. …” The motion was denied.

At trial extensive evidence on the state of the art of designing punch presses in 1940 was introduced. Appellant sought to demonstrate wide recognition of the hazards of unguarded press operation. He introduced evidence to the effect that various press safeguards were known to the industry at the time; and that Niagara had on occasion installed such safeguards at the request of the customer, and had subsequently begun placing warning signs on its presses. Two safety orders from the state of New York, effective at the time the press was manufactured, were introduced; they required certain press safeguards although they did not reveal whether the duty to install safeguards fell on the user of the press or its manufacturer. Appellant offered three theories to explain how the ram of the press might have unexpectedly descended.

Niagara's evidence consisted primarily of a showing that because of the multifunctional nature of the o. b. i. press the manufacturer could not install safeguards, and that such safeguards could only be adapted to the machine when its use had been decided and the die tooling installed in it. On those occasions when Niagara itself placed safeguards on a press, the purchaser had already decided on the use of the press and had requested installation of a particular safeguard. Niagara also showed that it was the custom and practice of the industry to sell such presses without safeguards, and to leave choice of safeguard and installation to the purchaser; and that safeguards and machine tooling manufacture were industries separate from press manufacturing. There was also testimony to the effect that the hazards of press operation without appropriate safeguards were obvious.

Originally the press had been sold to Harrison Radiators in 1940 where an appropriate safeguard had been installed on it. Appellant's employer had purchased the press in 1962. It is uncertain whether the press had any safeguard on it when purchased by Templet. However, there was testimony indicating that a safeguard was on the press as early as 1965. The safeguard with which the press was equipped had been operational, but had been disconnected and thus was inoperative at the time of appellant's accident. Defendant sought to prove that if this safeguard had been operating at the time of appellant's accident it would have prevented injury—if the accident happened according to either of two of appellant's three theories—it then sought to demonstrate that the third theory was disproved by other facts.

The case was submitted to the jury solely on the strict liability cause of action.

Appellant's first contention that judgment notwithstanding the verdict should have been granted on the issue of liability because all elements for strict liability for defective design were established without controversy, is without merit.

The power of the court to grant judgment notwithstanding the verdict is the same as its power to grant a directed verdict; the motion is properly granted only if it appears from the evidence, viewed in a light most favorable to the party securing the verdict, that there is no substantial evidence to support it. (Hauter v. Zogarts, 14 Cal.3d 104, 110, 120 Cal.Rptr. 681, 534 P.2d 377.) Focusing on two critical elements of the case, appellant acknowledges, as he must, that he bore the burden of proving that the Niagara press was defective, and that such defect was a proximate cause of his injury. The proof as to defect was essentially that the press was designed and manufactured without safeguards which would have prevented appellant's injury; and that no warnings of the hazards posed by the machine were given. On what constitutes a defect, at appellant's request the jury was instructed that a machine “may be considered to be defective .. because of a lack of safety guards ..” and “If you find from the evidence that the machine in question required instructions, directions, or warnings in order to render its use safe, then it is the manufacturer's duty to give such instructions, directions or warnings, …” But as to warnings, defendant responded that the hazards posed by the press' descending ram and the need for safeguards were obvious to user and owner alike. Indeed appellant's evidence could be taken to show as much.

On the question of safeguards, defendant had introduced evidence designed to show that it could not install safeguards on the press because of its multifunctional nature; and that no all-purpose safeguard was known to the industry at the time the press was designed and manufactured.2 “[T]he reasonableness of an alternative design—whether the design can actually be produced, the materials for production are available, the costs are not prohibitive, etc.—is a factor to be considered in determining whether the design which was actually used can be characterized as defective. [[[[Citation.] … An injured plaintiff has always had the burden to prove the existence of the defect. The reasonableness of alternative designs, where a design defect is claimed, is part of that burden. [Citations.]” (Baker v. Chrysler Corp., 55 Cal.App.3d 710, 716, 127 Cal.Rptr. 745, 749.) Given the state of the evidence, Niagara was entitled to have the jury determine whether appellant had proved defective design.

Even if it could be said that the press was defective as a matter of law in the absence of safeguards and/or warnings, appellant would still have been required to demonstrate that the defect was a proximate cause of injury to him. Niagara's position on this issue was that the absence of press safeguards, if a defect, was cured by the subsequent installation of such a device on the machine. Effectively Niagara asked what difference it made whether the machine originally had a safeguard or not so long as there was one on it at some time prior to appellant's use of it. True, appellant attempted to show that Niagara might have installed a safeguard not so easily disconnected as the one later placed on the press. But obviously this tack leads to an evaluation of the evidence on the state of the art of press designing and manufacturing in 1940 which, as already noted, was a matter for consideration by the jury.

Niagara's position with respect to the absence of warnings was similar. It was shown that appellant had on at least one previous occasion operated the press. He had seen others operate it. He had observed what the ram of the press did to metal inserted underneath it. And there was testimony, albeit inconclusive, that on the very day of the accident appellant had been instructed on the operation of the press and specifically, to use a device for placing and removing objects under the ram, which device obviated any need to place one's hand in danger. The danger in the use of the press in the fashion employed by plaintiff was obvious. From that fact the jury could have concluded that any lack of warning attached to the press was not a proximate cause of plaintiff's injury. Plaintiff's conduct in failing to perceive the obvious danger in the press itself supports the reasonable inference that he would have been equally oblivious to any warning attached to the press. Appellant's expert admitted that many similar accidents often occurred even where the press operator was confronted with warnings. We cannot say that as a matter of law the lack of a warning in this case was a proximate cause of appellant's injury.

The jury also could have concluded that in light of the passage of time there was no continuing duty upon defendant to insure that the present owner of the press received a specific warning not appended to the machine.

Appellant next contends that the trial court erroneously denied his motion in limine to preclude the assertion of “any defense that would amount to attempting to delegate its responsibility to make a reasonably safe product for the foreseeable uses of the product․” The motion was properly denied.

That which appellant persists in characterizing as “delegation” is more correctly described as Niagara's effort to show that its product was not defective. This took the form of proof that an o. b. i. press is capable of a multitude of uses; that the manufacturer could not install safeguards appropriate to the many uses to which the purchaser might put the machine; and that it was the custom and practice of the industry to sell such presses without safeguards, leaving it to the buyer to determine the tooling to be installed in the press and then to choose a safeguard appropriate to the system he set up. At the very least, Niagara was entitled to introduce this evidence to show the ordinary use of an o. b. i. press. But more importantly, this evidence might aid the jury in deciding the question of defective design. Appellant cannot seriously suggest that he should have been permitted to show the absence of safeguards, but that Niagara could offer no explanation as to how the operator of the press was to be protected. His characterization of this evidence as “delegation” does not determine its admissibility.

The remainder of appellant's contentions relate in one way or another to jury instructions. First he objects that the trial court erred in reading Niagara's requested instructions on concurrent causation (BAJI 3.77): “There may be more than one proximate cause of an injury. When negligent conduct of two or more persons contribute to it concurrently as proximate causes of an injury the conduct of each of said persons is a proximate cause of the injury regardless of the extent to which each contributes to the injury.

“A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury.

“It is no defense that the negligent conduct of a person not joined as a party was also a proximate cause of the injury.” We agree that the instruction should not have been given in a form suggesting that Niagara's conduct was negligent, but we cannot conclude that plaintiff was prejudiced by the error.

On appeal, instructions to the jury are to be appraised in their entirety “and if, as so considered, they state the law of the case fairly and clearly, then they are, as a whole, unobjectionable, even though by selecting isolated passages of single instructions they may in some respects be amenable to just criticism.” (Eagar v. McDonnell Douglas Corp., 32 Cal.App.3d 116, 120, 107 Cal.Rptr. 819, 822.) In this case the instructions consistently were directed to appellant's strict liability theory. Perhaps because appellant originally advanced a negligence theory a certain amount of confusion was inevitable. Appellant himself requested instructions, refused by the court, framed in terms of negligence. However, any doubt as to possible prejudice to appellant is settled by reference to the other instructions given. At appellant's request the jury was instructed that “Contributory negligence of plaintiff or negligence of plaintiff's employer are not defenses to an action based on strict liability for a defective product.” This instruction both raised the question of negligence and set it to rest. Additionally, BAJI 1.01 was given instructing the jury to consider the instructions as a whole, “not to single out any certain sentence or any individual point and ignore the others…” Considering all of the circumstances of the case, including the evidence and the other instructions given, we cannot conclude that the probable effect of the concurrent causation instruction has been to mislead the jury and that the error has been prejudicial. (Henderson v. Harnischfeger Corp., 12 Cal.3d 663, 670-671, 117 Cal.Rptr. 1, 527 P.2d 353.)

The next jury instruction to which appellant takes exception reads: “If you find that prior to the plaintiff's accident a safety device had been installed on the power press which device was subsequently rendered inoperative so it was not in use at the time of the accident in which plaintiff was injured and if you find that said safety device if it had been on the press while plaintiff was operating it would have prevented the accident, then in such event the defendant, Niagara, may be relieved of liability for plaintiff's injury for whatever dangerous condition existed on the defendant's power press when it left the defendant's possession.

“The extent to which third party negligence supersedes defective design as the proximate cause of an injury depends on the foreseeability of the third party negligence. The defendant had a duty to reasonably foresee third party negligence.” He insists that this instruction effectively permitted Niagara to set up as an affirmative defense possible negligent conduct of appellant or his employer, contrary to settled law. However, it is clear that this instruction was designed to frame for the jury the question of causation, an element of appellant's burden of proof, and is supportable on the authority of Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 105 Cal.Rptr. 890.

In Balido, on appeal from a judgment of nonsuit, the court considered the effect, on the liability of the manufacturer of a molding press, of a series of warnings about certain safety deficiencies of the press given to but ignored by appellant's employer, the press owner. Said the court at page 645, 105 Cal.Rptr. at page 898: “On the specific issue before us, whether Olympic's failure to heed the warnings of inadequate safety devices amounted as a matter of law to a superseding cause of the injury, we consider the following propositions relevant: [¶] (a) The extent to which third-party neglect supersedes deficient design as the legal cause of an injury depends on the foreseeability of the third-party neglect. (Fredericks v. American Export Lines (2d Cir. 1955) 227 F.2d 450, 453-454.) [¶] (b) The degree of foreseeability charged to the designer of a product depends on the degree of danger involved in its use. [¶] (c) A molding press is a highly dangerous piece of machinery. [¶] (d) In other instances involving the use of comparable dangerous machinery the extent of the designer's duty to anticipate safety neglect by the owners of the machinery has been ruled a question of fact. [[[¶] The basic question is whether the court should pass on superseding cause as matter of law or the jury should do so as matter of fact. From our reading of the cases we conclude that the extent to which designers and manufacturers of dangerous machinery are required to anticipate safety neglect presents an issue of fact.” In reaching this conclusion, the case is consistent with the rule that causation is ordinarily a matter for the trier of fact. (See Lysick v. Walcom, 258 Cal.App.2d 136, 153, 65 Cal.Rptr. 406.)

The instruction was thus properly given in light of defendant's evidence that the press had been equipped with a safeguard prior to appellant's accident and that this safeguard, had it been functioning at that time, would have prevented any injury to appellant.

The instruction was in terms completely consonant with Balido, appropriately tailored to the facts of the case. (See Self v. General Motors Corp., 42 Cal.App.3d 1, 10, 116 Cal.Rptr. 575.)

The next instruction challenged by appellant reads: “If you find that the power press was a completed product then Niagara could not delegate to anyone its duty to have its product delivered to the ultimate purchaser free from dangerous defects.” His position is that the foregoing left it to the jury to decide whether the Niagara press was a completed product, and this is properly a question of law.

We assume for the purpose of our considerations that whether the Niagara press was a “completed product” within the meaning of Vandermark v. Ford Motor Co., 61 Cal.2d 256, 261, 37 Cal.Rptr. 896, 899, 391 P.2d 168, 1713 is a question of law. It is error for the court to instruct the jury to decide as a question of fact what is really a question of law; but whether such error merits reversal of the judgment is determined by application of this test—was a contrary result probable in the absence of the error? (See Gipson v. Davis Realty Co., 215 Cal.App.2d 190, 207, 30 Cal.Rptr. 253.)

Had there been any effort on the part of the defense to show that the press was not a completed product for purposes of delegation of a duty to deliver to the purchaser a product free of dangerous defects, it would seem that leaving the issue to the jury, assuming it to be one of law, might well have been prejudicial error. However, the defense made no such effort. Rather, it attempted to demonstrate that its product was to be used in conjunction with products of other manufacturers, namely die tooling and safeguards. Appellant's position gains much of its vitality from treating “completed product” as a term of art. But there was no instruction to the jury defining the term or otherwise signaling that the expression had other than its common meaning. We conclude there was no reasonable possibility that the jury could consider the press not to be a completed product any more than it could have found the press not to be a press had the court instructed “If you find that defendant's machine was a press․” Thus, the instruction really was to the effect that defendant could not delegate any duty to deliver to the purchaser a product free of dangerous defects.4 ,5

The final assignment of error relates to an instruction regarding certain New York safety orders which had been introduced into evidence by appellant. The orders, in effect at the time the press was manufactured, prescribed certain safeguards to be installed on presses.6 During its deliberations the jury requested answers to certain questions concerning these safety orders. The questions and the answers thereto given by the court were: “‘We, the jury in the above-entitled action, request the following: Reference Plaintiff's 5-A and 5-B.’

“Those are the New York safety orders.

The first question is, ‘Were these codes passed into law?’

The answer is yes, these are rules and regulations of the Department of Labor in the State of New York and they do have the force and effect of law.

Now, the second question is, ‘If affirmative, does the law stipulate who had the responsibility for compliance?’

In that respect, the Court's answer is the New York safety orders do not require the manufacturer of power presses to install safety devices. The New York safety orders were admitted into evidence only for the purpose of showing the state of the art concerning safeguarding the point of operation and the need thereof in 1940.

And your third question is, ‘If affirmative, when were they adopted?’

And the certification from the State of New York, the Secretary of State indicates that the earlier safety codes became effective July 1st, 1931 and the later code or safety rules and regulations became effective February 1st, 1940.”

Appellant asserts that the court's answer to the second question was erroneous as contrary to Balido v. Improved Machinery, Inc., 29 Cal.App.3d 633, 105 Cal.Rptr. 890, in which the court stated: “Non-compliance with a standard set out in an industrial safety order furnishes probative evidence of deficient design, even though the order is directed at the user of the equipment and not at its manufacturer.” (P. 641, 105 Cal.Rptr. p. 896.) We conclude that error, if any, in the court's answer was effectively invited by appellant and, in any case, was harmless.

From the outset of the trial, when the subject of the New York safety orders was first raised, the court expressed its concern about the absence of a showing on the question of who the orders were directed to—manufacturer or user of the press. It was suggested that counsel research the issue, but if such research was undertaken, its fruits are not apparent in the record. Ruling on the admissibility of the orders was made after the taking of all evidence. On the subject, the following colloquy took place.

“THE COURT: What are they [orders]?

MR. GREENE: To show the state of evidence in design and foreseeability issue.

THE COURT: They are not to show they apply to the manufacturer?


THE COURT: They are rules that affected him?

MR. GREENE: Excuse me, your Honor, just so it is clear, I contend they do apply to the manufacturer in that my investigation and understanding of those safety orders and letters from the New York Secretary of State say that no one is exempt in the State of New York. Just like in California, our safety orders began in '49.

THE COURT: I don't have enough before me to make a ruling that you can do that. That is why I mentioned about it the first day of the trial. I didn't think there was enough evidence for me to go on, to rule these apply to the manufacturer in that sense.

MR. GREENE: The law of California through the appellate court has held they do just on the issue of the [state of the art].7

THE COURT: You seem to be jumping back and forth.

MR. GREENE: Your Honor, you asked me another question, do I think those apply. I am not proffering them on that basis. I am proffering them strictly on the evidentiary point of what the [state of the art] was in 1940 and on the foreseeability issue.

THE COURT: I wasn't asking you a question in the abstract. I didn't mean to. Maybe it sounded like it, but I meant for what purpose are you going to use them in the trial, in your argument?

MR. GREENE: I have already used many in—every one has used them for what evidence was in the [state of the art] of 1940, foreseeability and need for guards.

THE COURT: Not for any regulations that were binding on the manufacturer.

MR. GREENE: I have nothing that they are, that is, they are or they are not. That is it, either way, that they are or they are not.

THE COURT: If they go into the jury room the jury will probably—they will either consider—if they consider them at all they will consider they do apply or they don't apply.

MR. GREENE: Your Honor, excuse me.

THE COURT: We do have no guidance on that.”

Obviously, in answering the jury's second question the court took appellant's counsel at his word regarding the purpose for which the safety orders had been introduced into evidence. Further, in the absence of some showing as to the effect of the orders, the court was obliged to construe them as an original matter. The court's answer was literally correct—“[T]he New York safety orders do not require the manufacturer to install safety devices.”

Moreover, the jury had been already instructed in terms of Balido: “[T]he evidence in this case has established that at the time the machine that is the subject of this lawsuit was designed, manufactured, and sold by the defendant, the machine was not equipped with any of the safety devices described in the Industrial Safety Regulations as set forth in Exhibits 5A and 5B. [¶] You are instructed that such noncompliance furnishes evidence of defective design.” It can only be concluded that appellant has no real cause for complaint.

The judgment and order appealed from are affirmed.


1.  Appellant moved for judgment notwithstanding the verdict or in the alternative a new trial. The minute order of the court reads “Plaintiff's motion for a new trial is denied.” We take this to have been a denial of the motion for judgment notwithstanding the verdict. (By operation of law see Code of Civ.Proc., § 629.)

2.  Indeed there was evidence that a so-called “all-purpose” safeguard now available is not really all-purpose.

3.  “Since Ford, as the manufacturer of the completed product, cannot delegate its duty to have its cars delivered to the ultimate purchaser free from dangerous defects, it cannot escape liability on the ground that the defect in Vander-mark's car may have been caused by something one of its authorized dealers did or failed to do.”

4.  Thus appellant's other requested instructions on delegation were appropriately rejected as repetitive.

5.  The conceptual difficulty inherent in adopting appellant's formulation of the arguments is most apparent at this point. Whether or not Niagara might delegate a duty to install safeguards on its press, the evidence showed that such a safeguard had in fact been installed prior to the time of appellant's accident.

6.  Contrary to appellant's counsel's assertion at oral argument, the safety orders do not address the need for warnings on presses.

7.  It is clear from the context that the parties were saying “state of the art”; the reporter transcribed this as “State of New York.”

LILLIE, Acting Presiding Justice.

THOMPSON and HANSON, JJ., concur.