Court of Appeals of Arizona, First Division, Department D
Kenneth C. KUHNKE, Plaintiff-Appellee,
TEXTRON, INC., a foreign corporation, Defendant-Appellant.
Reconsideration Denied Feb. 29, 1984. Review Denied June 5, 1984.
[140 Ariz. 588] Ely, Bettini & Ulman by Herbert L. Ely, Phoenix, for plaintiff-appellee.
Black, Robertshaw, Frederick, Copple & Wright, P.C. by Richard A. Black, Phoenix, for defendant-appellant.
In this appeal from a jury award of $50,000 in favor of Kenneth Kuhnke (Kuhnke) on a theory of strict liability in tort, the defendant-appellant Textron, Inc. (Textron) raises a number of issues. We hold that the trial court improperly granted Kuhnke's motion for a directed verdict on the issue of substantial change and therefore reverse and remand this matter for a new trial. The record reveals that Kuhnke was an experienced "rough carpenter," working full time for Diplomat Homes in Phoenix. On December 21, 1977, Kuhnke and a co-worker were on the roof of a house being constructed by Diplomat Homes. Kuhnke was using a power saw to cut a board when the saw bucked out of the wood and slashed his wrist, causing a serious injury. Kuhnke underwent four surgeries before being released for "light work" in July, 1979.
Kuhnke filed an action predicated on a theory of strict liability against Textron, the manufacturer of the gasoline generator that powered the saw he was using. Kuhnke's expert, David "Chief" Lanpher, testified that he inspected the generator on December 22, 1977, and concluded that a short in the generator caused a loss, and then a surge of power in the saw. Textron's expert subsequently testified that an interruption in the saw's power supply could cause the saw to buck.
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Chief Lanpher further testified that the short in the generator was caused when the idle control board of the generator, a mechanism which helps control the generator's speed, came unfastened from the generator wall and grounded out on the bottom of the generator. The evidence shows that, when manufactured, the control board was fastened to the wall of the generator with three metal studs.
Chief Lanpher also testified that when the generator was in operation it would cause the internal parts, including the control board, to vibrate. It is uncontested that Textron did not use any lock washers or any other locking device to prevent the screws fastening the control board to the wall from vibrating loose. The Chief gave his opinion that, although the generator was less than six months old, the vibrations could have caused the unsecured screws to come loose, allowing the control board to fall to the bottom of the control box. He further testified that, in his opinion, the failure to use lock washers or a locking fluid was a manufacturing defect.
During the course of trial Textron's attorney theorized that someone else had entered the control module's section of the generator and replaced the factory mounting system with an alternative system. This theory was based upon Chief Lanpher's testimony which, according to Textron, indicated that the mounting system he discovered when he repaired the generator was different from the one listed on the manufacturer's parts list. Specifically, Textron maintains that the Chief found an unthreaded spacer which was used in conjunction with a nut and bolt rather than the manufacturer's supplied threaded spacer used in conjunction with screws.
The testimony on this factual issue is equivocal at best. Initially, during trial, the Chief testified that in his opinion no one else had worked on the control box section of the generator between the time of manufacture and his initial inspection. He testified that when he first inspected the generator he thought it looked brand new and commented as much to a boy next to him. His belief was based on the condition of the machine and the fact that the paint had not been broken around any of the eight screws which secured the cover to the control box section of the generator that he worked on. However, this part of the Chief's testimony was impeached with a statement that Chief made to appellant's investigator one month after the repair and with the Chief's deposition testimony. On both occasions he admitted he could not tell if anybody had previously been into the control box section of the generator. There was also testimony that previous repairs had been made to other sections of the generator. However, Textron failed to introduce any direct evidence to prove that someone had actually entered the control box section of the generator.
Another point of controversy on this issue is that at various points of his testimony Chief stated that a nut and bolt system was used to fasten the control module. However, when pressed on this issue the Chief was unable to say for certain whether "a bolt, or a screw, or whatever" was used on the unit he repaired. Again, Textron's position on this point is that the inference to be drawn from this testimony is that someone substituted a nut and bolt fastening device for the screw device used by the manufacturer. Appellant counters this argument by maintaining that the Chief had a lapse of memory and simply could not remember whether a nut and bolt system or screw system was used on the generator he repaired.
The legal significance of this issue is that if there was evidence that a change was made to the fastening device Textron would have been entitled to argue that such a change was a substantial alteration relieving it of any liability. Arizona law on strict liability follows the American Law Institute's position. O.S. Stapely Co. v. Miller, 103 Ariz. 556, 447 P.2d 248 (1968). Restatement of the Law of Torts, (Second) (1965) provides in § 402A as follows:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property [140 Ariz. 590]
is subject to physical harm thereby caused to the ultimate user or consumer, or to his property, if:
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. [emphasis added]
In O.S. Stapley Co. v. Miller, our supreme court reversed the trial court's judgment directing a verdict on the issue of strict liability in favor of the plaintiff because the product failed to reach the user "without some change which may have been substantial." Id. at 560, 447 P.2d at 252. As the court recognized in that case by its citation to the comments of the Restatement Second, the law of substantial change is not well developed. Although it is clear that not all changes to a product will relieve the manufacturer of liability, the cases are not clear on exactly what type of change constitutes a "substantial change." See, e.g., Union Supply Co. v. Pust, 583 P.2d 276, 196 Colo. 162 (1978) (small changes, minor processing, or even substantial changes not affecting a pre-existing design defect will not relieve a manufacturer of liability).
A number of courts discuss the concept of substantial change in terms of intervening superseding cause. In discussing § 402A, the Third Circuit Court of Appeals upheld the lower court's finding of liability and stated: "It is our opinion, too, that the purported 'changes' in the piler by J. & L. employees were not intervening superseding causes relieving appellants of liability." Greco v. Bucciconi Engineering Co., 407 F.2d 87, 91 (3d Cir.1969); see also Schreffler v. Birdsboro Corp., 490 F.2d 1148 (3d Cir.1974).
We agree with the federal district court's assessment in Southwire Co. v. Beloit Eastern Corp., 370 F.Supp. 842, 857 (E.D.Penn.1974), that such an approach implies that a plaintiff's failure to negate substantial change is the same as saying the plaintiff failed to prove proximate cause, because they failed to negate a break in the causal connection between the original defect and the ultimate injury. Our supreme court implied that it would approve of such an approach in O.S. Stapley Co. v. Miller, when it stated: "It is clearly apparent that the product failed to reach the user without some change which may have been substantial, and it is conceivable that such alteration may have been the proximate cause of the accident and the plaintiff's injuries." 103 Ariz. at 560, 447 P.2d at 252.
Kuhnke relies on Southwire Co. v. Beloit Eastern Corp. in arguing that Textron failed to meet its burden of introducing sufficient evidence to justify a reasonable person finding substantial change. His reliance is misplaced. We agree with the holding in Southwire that once a defendant comes forward with some evidence of substantial change, the burden is on the plaintiff to show no substantial change. The court's reasoning on this point is instructive:
To be sure, there are reasons for requiring the defendant to carry the burden of coming forward and alleging a substantial change. In many cases, the alleged substantial change is perceived only by the defendant who should, therefore, have to allege it and maintain the burden of going forward with the evidence on the point. The plaintiff is accordingly put on notice to try to prove no substantial changes were made. And as a general rule, rather than requiring a plaintiff to negate an infinite number of possible changes, it seems more reasonable and in keeping with our adversary process to expect the defendant to allege the substantial changes he expects the plaintiff to try to disprove. But once the defendant has come forward, we ...