630 F. 2d 616 - Hopkins v. Chip-in-Saw Inc

Hazel Hopkins brought this suit under the Arkansas wrongful death statute, Ark.Stat.Ann. §§ 27-906 to -910 (1979), to recover damages for the death of her husband, Dewey Hopkins. Mr. Hopkins died when he was struck by a 2 x 4 board forcibly ejected from a lumber machine manufactured by defendant Canadian Car (Pacific) Division of Hawker Siddeley Canada, Ltd., and installed by defendant Chip-N-Saw, Inc., a wholly owned marketing subsidiary of Canadian Car (collectively, Chip-N-Saw).1 The district court submitted the case to a jury on theories of strict liability, breach of implied warranty of merchantability, and negligent failure to warn. The jury returned a general verdict in favor of Chip-N-Saw, and the district court entered judgment accordingly.

On appeal Hopkins contends that the trial court erred in its charge to the jury on her negligence theory of recovery, specifically in its instructions to the jury on Chip-N-Saw's duty to warn and in its refusal to give certain requested instructions on the warnings required of Chip-N-Saw. Having reviewed the record, we agree that the district court's instructions on Chip-N-Saw's duty to warn were erroneous. Accordingly, we reverse the judgment and remand the case for retrial on the negligence claim.I. Factual Background.

Canadian Car manufactures machines used for the processing of logs into marketable lumber. After a log is debarked and cut to a standard length, it enters the "Chip-N-Saw" machine where a series of cutting heads and saws removes the rounded portion of the log and converts the remainder into rough lumber. Because a log is not perfectly round, however, the Chip-N-Saw machine alone will not always produce a board with flat surfaces on all sides. Any irregularly produced lumber, therefore, also passes through the "Reman Edger Chipper" (Reman), which shears off the uneven edges. Thus, an imperfect 2 x 8 , for example, can be converted into a 2 x 4 that meets industry requirements.

As designed by Canadian Car, the Reman uses chipping edges and a high-speed saw blade to make all sides flat. The saw blade rotates toward the operator, creating the potential for a board to kick back violently out of the saw pocket toward the operator. A kickback may occur for a number of reasons, such as if the blade hits a knot or piece of metal in the board. To protect the operator, Canadian Car equips the Reman with "antikickback fingers" to block any board ejected from the machine. These fingers, however, cover only about one-half the width of the saw pocket and they must slide smoothly for the saw to move properly.

In late 1973 or early 1974, Chip-N-Saw sold and installed a Reman at the Stamps, Arkansas, plant of Georgia-Pacific Corporation where Dewey Hopkins worked as a repair and maintenance employee. Mike Greener, a service representative of Chip-N-Saw, supervised the installation. His written reports from July 16 to August 1, 1974, state that the Reman was operating properly, that he had spent several hours training the initial operators of the machine in the presence of the plant superintendent and plant manager, and that he had orally warned the plant superintendent and plant manager not to operate the Reman without its antikickback fingers in place.

Dewey Hopkins was not a regular operator of the Reman, but he occasionally served as a relief operator. While serving in that capacity on March 3, 1976, he was killed by a 2 X 4 board that kicked out of the saw pocket and struck him in the chest. A full investigation of the accident disclosed that the antikickback fingers had been pushed to the side of the saw pocket, rendering them inoperable at the time of Hopkins' death.

At trial, Georgia-Pacific's plant supervisor and plant manager testified that the operators had been warned not to operate the Reman without the antikickback fingers in place. Some of decedent's coworkers, however, denied receiving such warnings, and no warning labels were affixed to the machine. According to the testimony of an expert witness for Hopkins, the Reman's design might have actually encouraged the operators to disconnect the safety fingers because they often jammed, interfering with the saw's movement and halting production.

II. Instructions.

This appeal relates solely to the adequacy of the district court's charge to the jury on Chip-N-Saw's duty to warn of dangers associated with use of the Reman.2 Hopkins objected to three instructions in the charge:

A manufacturer of a lumber remanufacturing device has a duty to give reasonable and adequate instructions with respect to the conditions and methods of its safe use when danger is reasonably foreseeable in its use, unless the danger is known to the user or is reasonably discoverable by him, and a violation of this duty to give instructions is negligence.

Now ladies and gentlemen, in this regard, if you find, through a preponderance of the evidence, that Mike Greener for the Defendants Chip-N-Saw and Canadian Car gave reasonable and adequate warnings to Georgia-Pacific as to the dangers and as to the proper use of the Reman Edger, and that the defendants Chip-N-Saw and Canadian Car did not foresee and reasonably should not have foreseen the subsequent misuse of the edger, then the defendants, Chip-N-Saw and Canadian Car fulfilled their duty to warn.

Now you're instructed that a manufacturer or seller of a lumber remanufacturing device, which instrumentality is inherently dangerous so as to require special precautions to prevent injury, has a duty to give reasonable and adequate instructions with respect to the conditions and methods of its safe use unless the danger is known to the user or is reasonably discoverable by him. And again a violation of this duty is negligence.

And again, ladies and gentlemen, in this regard, if Mike Greener, on behalf of the defendants, Chip-N-Saw and Canadian Car, gave instructions to Georgia-Pacific, and these two defendants did not foresee and reasonably should not have foreseen the misuse of the edger, then each and both of the defendants fulfilled the duty to instruct.

Now, you are further instructed that if, following any act or omission of a party, a defendant in this case, and an event intervened which in itself caused any damage, completely independent of the conduct of the original defendant, then his act or omission was not a proximate cause of the damage.

And in this case, if you find that the defendants, Chip-N-Saw and Canadian Car, through Mike Greener, gave reasonable and adequate warnings to Georgia-Pacific, and that the accident was solely caused by Georgia-Pacific's failure to act on such warnings and instructions, and that the defendants Chip-N-Saw and Canadian Car did not foresee and reasonably should not have foreseen that Georgia-Pacific would disregard the warnings given it, then the omission of Georgia-Pacific was an intervening proximate cause and your verdict must be for the two defendants.

Hopkins contends that these instructions were erroneous because Chip-N-Saw had a duty to warn not only Georgia-Pacific but the operators of the Reman as well. We agree that, under the evidence in this case, the questioned instructions were inadequate.

When a manufacturer can reasonably foresee that the warnings it gives to a purchaser of its product will not be adequately conveyed to probable users of the product, then its duty to warn may extend beyond the purchaser to those persons foreseeably endangered by the product's use. Warnings given to the purchaser do not necessarily insulate the manufacturer from liability to injured users of the product. Restatement (Second) of Torts § 388 & Comment n (1965); L. Frumer & M. Friedman, 1 Products Liability § 803(3) (1980).

Hopkins' objections3 and requested instructions4 made clear that she sought an instruction apprising the jury that Chip-N-Saw's duty to warn extended beyond Georgia-Pacific to Dewey Hopkins. If, under the evidence, Chip-N-Saw might have reasonably foreseen that its warnings to Georgia-Pacific would not reach the operators of the Reman,5 and that the dangers would not otherwise be obvious to the machine's operators,6 then Hopkins was entitled to such an instruction.

The evidence indicated that the antikickback fingers covered only a portion of the saw pocket. They often required maintenance to slide smoothly and unless they slid properly, production would come to a halt. This design, according to an expert witness, tended to induce human error by encouraging operators to shove the safety fingers to the side of the saw pocket or to remove the fingers from the machine altogether. Either could be easily accomplished by loosening a few bolts. This expert also testified that the antikickback fingers jammed twice in just the one-hour period during which he evaluated the design and safety features of the Reman. He also noted that the machine's maintenance instructions failed both to instruct purchasers or operators on how to deal with jams and to warn against removal of the antikickback fingers. On the basis of this evidence,7 the jury might find that Chip-N-Saw did not satisfy its duty to warn solely by giving reasonable and adequate warnings to Georgia-Pacific.

The district court's instructions, however, failed to instruct the jury on this theory for recovery. Although two of the instructions in question alluded to the possibility that "subsequent misuse" of the Reman might affect whether the jury must find for Chip-N-Saw, neither defined the type of misuse that would extend Chip-N-Saw's duty to warn to the operators or indicated whose misuse would give rise to this extended duty. These ambiguities contrast with an otherwise clear inference from these verdict-directing instructions that adequate warnings to Georgia-Pacific would insulate Chip-N-Saw from liability to Hopkins. In this context, we also note that the district court's general instructions on Chip-N-Saw's duty to warn were not sufficiently broad in their definition of negligence to inform the jury that the duty to warn may extend beyond the purchaser of a manufacturer's product to an ultimate user.8

We hold, therefore, that the district court's failure to adequately and fairly instruct the jury on Chip-N-Saw's duty to warn justifies a retrial on the negligence theory of liability.

IV. The District Court's Jury Instruction Procedure.

Unfortunately, our reading of the record, the instructions, and the objections suggests that this remand for retrial might not have been necessary had the trial court observed the mandatory procedure for instructing juries as set forth in Fed.R.Civ.P. 51.9 That procedure calls for the trial judge to allow counsel opportunity to object to the court's proposed charge and request additional instructions before the jury retires to consider its verdict. Here, only after the jury retired did the trial judge hear objections, treating them "as having been made before the jury retires."10 Additionally, the trial judge permitted counsel to submit any requested instructions to the court reporter within a few days after trial.11

The obvious purpose of this rule is to give counsel an opportunity to call errors or imperfections in the instructions to the attention of the trial court judge and afford the court an opportunity to correct any errors before the case goes to the jury. The purpose is not to perfect the record for appeal, but to allow the judge opportunity to correct defective instructions so that appeal and retrial due to prejudicial instructions will be unwarranted.

We emphasize for the benefit of all counsel and federal trial judges that the requirements of Rule 51 must be observed. Counsel must be provided with an opportunity to object to the proposed charge outside the hearing of the jury, and the trial judge must consider and rule on those objections before, not after, the jury retires to consider its verdict.

Reversed and remanded for further proceedings consistent with this opinion.