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Mosser v. Jet Equipment & Tools, Inc.

Court of Appeals of California, Second District, Division Eight.
Nov 12, 2003
No. B154716 (Cal. Ct. App. Nov. 12, 2003)

Opinion

B154716.

11-12-2003

JEFFERY LEE MOSSER, Plaintiff and Respondent, v. JET EQUIPMENT & TOOLS, INC., Defendant and Appellant.

Law Offices of Joseph R. Zamora and Joseph R. Zamora for Defendant and Appellant. Agnew & Brusavich and Gerald E. Agnew, Jr.; Corsino and Sutherland and Janice M. Corsino, for Plaintiff and Respondent.


The issue in this products liability action is whether substantial evidence supports the trial courts conclusion that lack of a barrier guard on the cutter of a spindle shaper was a design defect that caused a severe injury to the plaintiffs hand. The manufacturer of the spindle shaper argues that the physical evidence, as interpreted by its expert, irrefutably established that the accident could not have occurred as the plaintiff testified. We conclude the trial courts findings are supported by substantial evidence, and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Jeffery Mosser filed this lawsuit against Jet Equipment & Tools, Inc. (Jet) and others in the wake of an accident that occurred on October 28, 1998 at his place of employment, the California Do It Center. Three fingers and part of the palm of Mossers right hand were completely severed while he was using a wood cutting machine, called a spindle shaper, to shape rectangular pieces of wood into circles.

The circumstances leading to the accident were these. Mosser, a carpenter and warehouseman, had been employed at the Do It Center for a number of years. His supervisor, Tim Knox, was in charge of the Do It Centers facilities department. In 1998, Knox went to California Woodworking Machinery, an authorized dealer for Jet. Knox intended to purchase a band saw, to be used for cutting plywood and particleboard into circles for sale in Do It Center stores. Mike Mendenhall, the president of California Woodworking, told Knox that band saw blades were susceptible to breakage; Mendenhall showed Knox a Jet spindle shaper and told him it would produce a better finished product. The spindle shaper is a versatile machine used to cut various decorative edges in wood, but it does not cut circles. Mendenhall told Knox the machine could be modified to add a "jig" to permit it to cut circles, and that he had seen this done several times in the past. Knox bought the machine in February 1998, for $1,774.00.

The Jet spindle shaper is about 34 inches tall and has a heavy cast iron tabletop measuring approximately 29¼ inches by 25½ inches. A metal spindle stands up through a hole in the middle of the tabletop. Different cutting blades, called cutters, are slipped over the spindle through a center hole in the cutter and lie horizontally at tabletop level. In operation, the spindle rotates at high speeds, and the cutter also rotates, cutting the wood edge as it is passed along the cutter. The spindle shaper comes with devices called fences, hold-overs and hold-downs. The fences may be lined up to form a solid edge against which the wood is pushed to insure a straight cut. The hold-downs and hold-overs are steel rods that may be adjusted to hold the wood in place on the tabletop. The machine can make only straight cuts when these devices are used. The spindle shaper has no barrier or guard to cover the rotating cutter blade while the machine is in operation.

Knox sent the machine to a welder named George Kreider for modification so that it would cut circles instead of straight cuts. Kreider removed the fences, hold-downs and hold-overs so he could place a larger tabletop, about seven feet long, on the machine. He added a jig, or turntable device, on the new tabletop, on which the wood would be placed for turning. He welded a superstructure over the tabletop, which supported a device to hold down the wood placed on the turntable. Kreider did not modify the spindle/cutter assembly, which remained unguarded, as in its original design.

The modified spindle shaper was delivered to the Do It Center facility where Mosser worked. Mosser received about 16 hours of training on how to cut circles on the machine. On October 28, 1998, Mosser was assigned to cut wood circles for inventory. He cut 15 to 20 circles without incident. Then, while he was smoothing the rough edges on a circle he had just cut, there was a "jolt," his hand slipped forward, and he saw one of his fingers fly past his face. In fact, three of his fingers had been severed from his hand, along with part of his outer palm. Mossers fingers were brought to the hospital, but were not reattached because bone loss and maceration of the tissue was so severe that successful reattachment was unlikely.

Shortly after the accident, Knox asked Mendenhall of California Woodworking to look at the modified machine. After Mendenhall inspected the machine, he wrote to Knox stating "you have fabricated an excellent circle cutting attachment." His assessment was that Mosser "must have placed his right hand on the plywood disc while reaching for the stop switch" and that the accident was due to operator negligence.

This lawsuit, alleging negligence and strict liability for design defects, was filed in October 1999 against Jet. California Woodworking, George Kreider and others were later added as Doe defendants. A bench trial was held in July 2001. Mossers evidence included the following:

Mosser also sued WMH-Walter Meier Holding Company; however, the court ultimately concluded there was no evidence WMH was a manufacturer, supplier or retailer of the spindle shaper.

· Mosser testified to the circumstances of the accident, as described above. He also testified to on-going physical and emotional pain impairing his ability to perform the kind of work he did in the past and to earn as much as he had in the past.

· A forensic accountant testified that the present cash value of Mossers loss of earning capacity as a result of the accident was $577,701; her calculations assumed Mosser was totally disabled from future employment.

· John Michael McCarthy, a professor at UC-Irvines Department of Mechanical Engineering specializing in the design of mechanical systems, testified as an expert witness. McCarthy opined, based on his training, experience and review of industry literature, that a barrier guard on the cutter of the spindle shaper was "absolutely require[d]" to create a physical barrier between the operator and the cutting tool. The guard would be slightly larger in diameter than the cutter head and adjustable to sit firmly on top of the wood, so as to allow only the wood between the tabletop and the bottom of the guard. McCarthys opinion was supported by standards for woodworking machinery safety requirements published by the American National Standards Institute (ANSI), as well as by a guide for woodworking shops published by the National Institute for Occupational Safety and Health. A guard could be manufactured for less than $50.00. McCarthy opined the absence of a barrier guard was a fundamental flaw in the machines design, and" without a doubt" a barrier guard on the machine would have prevented Mossers injury. McCarthy also testified it is and should be expected that the Jet shaper would be modified to cut circles. On cross-examination, McCarthy testified the fact that Mossers index finger was not amputated in the accident was consistent with Mossers description of how the accident occurred.

ANSI is an organization comprised of manufacturers, insurance companies, engineers and others. Use of ANSI standards is voluntary. ANSI approves standards set by other standards developers, and approval requires verification by ANSI that requirements for due process, consensus and other criteria for approval have been met.

Mendenhall of California Woodworking testified at his deposition that a circle-cutting modification of the spindle shaper was a fairly common practice in the industry. At trial, Mendenhall changed his testimony, stating it was not reasonably foreseeable to have people modify shapers to cut circles and round edges. He explained he had spoken to Jets lawyer, who asked him to quantify his statement that such modifications were a common practice. He testified he had seen approximately 20 machines modified in 36 years, and that 20 was not so common in view of the fact that he had sold almost 3,000 machines during that period.

Jet presented expert testimony from Kenneth Solomon. Solomon has a doctoral degree in engineering, three years of post-doctoral study in risk benefit assessment, and 200 published scientific papers, including papers in biomechanics. Solomon testified no barrier guard was necessary on the original machine, because the shapers fences, hold-downs and hold-overs, together with the piece of wood being cut, protect the user from any accidental contact with the cutter. He stated that a guard would not be very secure, would vibrate too much to be effective, and might be knocked out of alignment and cause injury. Solomon opined Mossers injuries were not consistent with Mossers version of the accident—that his hand slid forward into the cutter—for two reasons. First, the injury pattern was "effectively a curvature," consistent with the curvature effect from a rotation, and "not an effect going into a blade which would . . . effectively deglove the bottom portion of the hand." The second reason was "pure physics." The turntable could freely rotate in either direction, and there is "effectively a coefficient of friction" between the bottom of the hand and the turntable; putting ones hand on the turntable applies force "that will tend to rotate it in and of itself . . . [and] would not allow his hand to go straight forward into the cutter." In Solomons opinion, Mosser must have been reaching down to turn off the machine; his right hand on the wood applied lateral pressure; and his hand went into the cutter in a counterclockwise rotation. The accident thus was a direct result of Do It Centers modifications to the machine, which violated ANSI standards both in the positioning of the on/off switch and in failing to have an "anti-rotation" device that would prevent the turntable from freely spinning in both directions.

The trial court ruled in favor of Mosser and against Jet on both strict liability and negligence grounds, stating its reasons in an 11-page statement of decision. The court concluded the absence of a barrier guard on the cutter blade was a substantial cause of the injury; the injury resulted from a reasonably foreseeable use of the product, and could have been prevented by a mechanically feasible barrier guard over the cutter blade; and Mosser was not negligent in his use of the machine. The court also assigned no comparative fault to the Do It Center or the welder who modified the machine, as they did not create the defect that caused the injury. The court awarded Mosser $ 350,000 in economic damages and $650,000 in non-economic damages for pain, suffering and disfigurement.

Judgment was entered on August 29, 2001. Jet filed motions for judgment notwithstanding the verdict and for a new trial, both of which were denied. The judgment was later amended to reflect a $4,000 credit for a pre-trial settlement with California Woodworking, plus costs and prejudgment interest. This appeal followed.

DISCUSSION

Jet appeals on the ground the trial courts judgment is not supported by substantial evidence, insisting that the evidence showed the Do It Centers modifications of the spindle shaper caused Mossers injury, not the absence of a barrier guard on the cutting blade. In short, the argument is that the court was required to accept the opinion of Jets expert on how the accident occurred, as a matter of "Newtonian physics," rather than Mossers testimony and that of his expert.

We are unaware of any legal support for Jets position. As our recitation of the evidence shows, Mosser described the accident, and expert witness McCarthy testified that Mossers injuries were consistent with his description. The trial court believed Mosser and McCarthy. Unlike Jet, we cannot characterize their testimony as insubstantial. The trial court also had the benefit of viewing an unmodified Jet spindle shaper, and seeing both experts illustrate their views on how the accident occurred, with reference to photos of the modified shaper. In addition, the trial court expressly rejected defense expert witness Solomons testimony on numerous other points. For example, Solomon testified no barrier guard was necessary for the machine, because the fences and other devices acted as a guarding system and made the machine safe from a design standpoint. As the trial court pointed out, that kind of guarding system works only when the guarding devices are used; however, Jets own operating manual contemplates the use of the machine without any of those devices. The court also rejected Solomons testimony that a barrier guard would not be effective, citing guidelines published by ANSI and the National Institute for Occupational Safety and Health. The court may have viewed this testimony as detracting from Solomons overall credibility. In any event, we can think of no reason why the trial court would be bound to accept Solomons view of "Newtonian physics" as particularly persuasive.

In sum, Jet urges us to accept a version of the facts that differs from the version found by the trial court. This we cannot do. Our power "`begins and ends with a determination as to whether there is any substantial evidence" to support the findings. (Leff v. Gunter (1983) 33 Cal.3d 508, 518, quoting Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370.) There was credible evidence that the absence of a barrier guard in the design of the spindle shaper was a defect and a substantial cause of the accident, and Jet did not show that the benefits of the machines design outweighed the risk of danger inherent in that design. (See Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 435.) That is the end of the matter.

Jet argues the trial courts finding of no comparative fault on the part of the Do It Center and Mosser was not supported by substantial evidence. We disagree, for the reason stated in the text. The trial court believed the testimony of Mosser and his witnesses. That testimony was sufficient to support the courts conclusions that Mosser was not negligent and that neither Do It Center nor the welder who modified the machine created the defect that caused the injury.

Jet also argues that Mosser did not mitigate his economic damages, and that the non-economic damages were excessive. As to the economic damages, Jet argues Mosser has not applied for jobs engaging in light delivery, driving a forklift, or working as a security guard; instead, he moved to Arizona to live with his father and has performed only sporadic carpentry and handyman jobs. However, by trade Mosser was a carpenter who worked with his hands, and he has done some work in that field since his accident. His expert economist testified the present cash value of his lost earning capacity was $577,701. The trial court did not award that amount, and specifically stated the loss was adjusted to $350,000 to account for the possibility that Mosser would find some work. As to the noneconomic damages, Jet merely argues that Mossers pain, suffering and disfigurement is not worth $650,000. The trial court, after hearing Mossers testimony, disagreed. Jet offers no compelling reason to overturn the award, merely referring this court to a legal annotation in the record showing awards for injuries to arms and hands in other cases. We are not persuaded. (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1074 [court "may interfere with an award of damages only when it is so large that it shocks the conscience and suggests passion, prejudice or corruption"].) Once again, these are substantial evidence questions, and we find no fault with the trial courts answers.

Mosser filed a motion for sanctions for a frivolous appeal, requesting an award of at least $60,000—which he says is the amount he will incur in attorney fees for this appeal—plus an appropriate sanction payable to the court to compensate for the expense of processing the appeal. Mosser points out that Jets appeal merely reargues the evidence, and that this is the hallmark of a frivolous appeal, prosecuted for purposes of delay. (See Code Civ. Proc., § 907 ["[w]hen it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just"].) An appeal is frivolous when it is prosecuted for an improper motive or when it indisputably has no merit, that is, "when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
While this case may come close to the line, we decline to award sanctions. We are mindful of the Supreme Courts words in Marriage of Flaherty, supra, in which the Court first announced the test for determining if an appeal is frivolous. The Court observed that any definition of a frivolous appeal must be read "so as to avoid a serious chilling effect on the assertion of litigants rights on appeal. . . . An appeal that is simply without merit is not by definition frivolous and should not incur sanctions." (31 Cal.3d at p. 650.) Noting that in all but the clearest cases, the power to dismiss a frivolous appeal should not be used, the Court added, "The same may be said about the power to punish attorneys for prosecuting frivolous appeals: the punishment should be used most sparingly to deter only the most egregious conduct." (Id. at pp. 650-651.) While there is clearly no merit to Jets appeal, we are reluctant to categorize its conduct in taking the appeal as egregious. For comparison see, e.g., In re Marriage of Schnabel (1994) 30 Cal.App.4th 747, 754 & fn.5 [husband brought appeal of attorney fee and support orders "merely to harass and delay"; after years of litigation husband "still refuse[d] to accept the fact that in dealing with [his ex-wife he] must play by the rules of law and not [his] own"]; Carazo v. Lopez (1980) 112 Cal.App.3d 319, 322 [appellant violated her fiduciary duty to respondents by taking advantage of their inability to speak English and then filed frivolous appeal forcing respondents to incur further attorney fees]; but see Westphal v. Wal-Mart Stores, Inc., supra, 68 Cal.App.4th at p. 1082 [sanctions awarded for frivolous appeal claiming excessive damages; defendant presented no expert testimony at trial casting doubt on plaintiffs pain syndrome or the degree of impairment it could cause, and provided no evidence of malingering; without such evidence there was no arguable basis for finding damages excessive].

DISPOSITION

The judgment is affirmed. Jeffery Mosser is to recover his costs on appeal.

We concur: COOPER, P.J. and RUBIN, J.


Summaries of

Mosser v. Jet Equipment & Tools, Inc.

Court of Appeals of California, Second District, Division Eight.
Nov 12, 2003
No. B154716 (Cal. Ct. App. Nov. 12, 2003)
Case details for

Mosser v. Jet Equipment & Tools, Inc.

Case Details

Full title:JEFFERY LEE MOSSER, Plaintiff and Respondent, v. JET EQUIPMENT & TOOLS…

Court:Court of Appeals of California, Second District, Division Eight.

Date published: Nov 12, 2003

Citations

No. B154716 (Cal. Ct. App. Nov. 12, 2003)