Klein v. Sears, Roebuck and Co.

BLOOM, Judge. Appellant Joseph W. Klein purchased from appellee Sears, Roebuck and Company, Incorporated, a 10-inch radial arm saw that had been manufactured for Sears by appellee Emerson Electric Company, Incorporated (Emerson). Several months later, while Klein was using the saw, ⁴⁸⁰ four fingers of his left hand were amputated by the saw blade. Klein brought an action in the Circuit Court for Anne Arundel County against Sears and Emerson, seeking to recover compensatory and punitive damages for breach of warranty and strict liability in tort.

His wife, appellant Edythe M. Klein, joined in the action to assert a joint claim for loss of consortium. Upon appellees’ motion, the court dismissed three counts of appellants’ four count second amended complaint: Count 2, for breach of warranty; Count 3, loss of consortium, and Count 4, for punitive damages. The case then proceeded to trial before a jury on the first count, which asserted a claim for strict liability, based upon allegations that the absence of a lower blade guard was a design defect making the saw unreasonably dangerous. The first witness for the plaintiff was Mr. Klein himself.

Through him, five exhibits (the saw, the saw table, his receipt for the purchase of the saw, the owner’s manual that came with the saw, and a diagram of the garage in which he was working at the time of the injury) were introduced in evidence. During the course of his testimony, Mr. Klein demonstrated what he was doing and how he was using the saw at the time he was hurt. At the conclusion of Klein’s testimony on direct examination, appellees moved for summary judgment, which the court eventually granted after hearing extensive argument. Final judgment for appellees was entered on 29 July 1991, and appellants noted an appeal therefrom on 8 August.

On 16 August, appellants filed a post judgment motion to alter or amend the judgment. 1 The court ruled that because of the appeal it had no jurisdiction to entertain the post judgment motion. Appellants, uncertain as to when the judg ⁴⁸¹ ment became final, filed a second appeal to insure that they would have their day before this Court. Appellants assert that the trial court erred: 1. in granting appellees’ motion for summary judgment after conclusion of the direct examination of Joseph W. Klein, as there was a genuine issue of material fact as to appellants’ theory of liability; 2. in denying appellants’ motion to alter or amend the judgment to include proffers of witnesses excluded from testifying as a result of the summary judgment granted in favor of appellees; and 3. in granting appellees’ motion to dismiss appellants’ loss of consortium claim. We agree with the first and third contentions; accordingly, we shall reverse the judgment of the circuit court.

Facts Joseph W. Klein was 35 years old at the time of his injury. When he was 8 or 9 years of age, he began working in the field of carpentry on Saturdays and summers with his father and grandfather. From 1981 through 1985 he worked as a handyman and carpentry subcontractor in the home-building industry. On 19 November 1984, Klein purchased a partially assembled 10-inch Sears Craftsman radial arm saw from a Sears branch store to use in his business.

Klein had never used a radial saw to make a ripcut, 2 but had seen a radial saw being used and was impressed with the number of different types of cuts the saw could make. Upon reading the owner’s manual, Klein became aware that a lower retractable blade guard was available as an optional item, but, according to the manual, it was for use only in making 90 degree angle crosscuts. Klein found no reference in the manual for any optional blade guard to be used for ripcuts. After reading the entire Sears owner’s manual, a 42-page booklet, he assembled the saw.

Since he ⁴⁸² intended to use the saw for heavy duty commercial work, he rewired it to operate on 240 volt current, in accordance with the manual. A radial arm saw consists of a rectangular shaped metal frame that supports a rear column. A wooden table sits on the frame. The column holds a metal arm that extends out over the table from back to front.

On the arm are the saw blade and motor, which can be positioned along the arm and locked into place. The on/off switch is on the end of the arm. A wooden fence, parallel with the front and back of the saw table, must be used in making all cuts, crosscuts, bevel cuts, and miter cuts. In crosscutting, the blade moves freely back and forth, perpendicular to the fence; in ripcutting, the blade is locked into position, parallel to the fence, at the desired distance from the fence.

In ripcutting, a board is fed (pushed) into the saw blade from the in-feed side (the side on which the teeth of the blade rotate downward into the board being cut). In late May of 1985, Klein got a job as a subcontractor for Bayshore Homes, installing siding and trim on new houses. Klein’s wife, Edythe, and his brother, David, worked with him on the job. On 14 June 1985, Klein was operating the saw inside the garage of a house under construction, the concrete floor of which provided a smooth, level surface.

He used the saw only for ripcutting boards, all of the same width. Klein used two stands known as “deadmen.” One stand was positioned six to eight feet to the front of the in-feed side of the saw blade and the other was positioned about the same distance from the out-feed side of the saw blade. Klein was ripping 12-inch wide % thickness cedar boards, each 12 to 14 feet long (the stock lumber), into trim boards 3 and % inches wide. The “dead-men” stands supported the long boards as they were fed into and out of the saw blade.

After the boards were cut down to trim size width, they were crosscut to proper lengths with a hand held circular saw. Appellant’s wife and his brother would then nail them to the building. ⁴⁸³ Klein intended to cut 10 to 20 pieces of trim board; he had cut nine of them at the time of the accident. Klein had just finished cutting a piece of trim board, so there was a finished trim board and the remains of the stock lumber, a piece of scrap, on the saw table. Leaving the saw on, with the blade rotating, he took the scrap piece off the table and discarded it.

He then returned to the saw, took the finished trim board off the saw table, and placed it by the side wall of the garage, approximately 8 feet from the saw. He then walked to the back of the garage, approximately 18 feet from the saw, picked up an uncut 14-foot board, and brought it over to the saw. Standing on the in-feed side of the saw table, Klein placed the board on the deadman. The saw was still running.

As Klein started to slide the board back to get it in position to run through the saw, his eyes were primarily focused on the deadman behind him, away from the saw blade. It was then that Klein heard a pinging sound, looked down, and saw that the four fingers of his left hand had been sliced off. He immediately shut the saw off and called to his brother for help. Summary Judgment The standard for granting summary judgment is: If there is a genuine dispute as to any material fact, then it should not be granted.

In reviewing such a motion we must be concerned primarily with deciding whether or not a factual issue exists. Therefore, all inferences should be resolved against the party making the motion. However, when the moving party has set forth sufficient grounds for summary judgment, the party opposing the motion must show with some precision that there is a genuine dispute as to a material fact. Rooney v. Statewide Plumbing, 265 Md. 559, 563 , 290 A.2d 496 (1972).

See also, Md.Rule 2-501. Facts are material if their resolution will affect the outcome of the case. King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985). [E]ven where the underlying facts are undisputed, if those facts are susceptible of more than one permissible ⁴⁸⁴ inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact. Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138 , 265 A.2d 256 (1970).

A motion for summary judgment may be made at any stage of the proceedings. Placido v. Citizens Bank & Trust Co., 38 Md.App. 33, 41 , 379 A.2d 773 (1977). “Unnecessary use of judicial time need not be continued merely because it had earlier been expended.” Id. Our concern in reviewing the propriety of the trial court’s action in granting appellees’ motion is whether there was a dispute as to a material fact and, if not, whether the moving party was entitled to judgment as a matter of law. Syme v. Marks Rentals, Inc., 70 Md.App. 235, 238 , 520 A.2d 1110 (1987).

Design Defect Appellants assert that appellees are liable for Mr. Klein’s injury because the Craftsman 10-inch radial saw that removed his fingers was defective in design. The alleged defect was the lack of a lower blade guard, a safety feature that would have prevented Klein’s hand from coming in contact with the revolving saw blade. The Court of Appeals adopted strict liability as a basis for product liability in Phipps v. General Motors Corp., 278 Md. 337 , 363 A.2d 955 (1976). In so doing, the Court specifically adopted the elements of the tort as set out in § 402A of Restatement (Second) of Torts (1965).

For a detailed explanation, see Ziegler v. Kawasaki Heavy Industries, Ltd., 74 Md.App. 613 , 539 A.2d 701 (1988), cert. denied, 313 Md. 32 , 542 A.2d 858 (1988), and Troja v. Black & Decker Mfg. Co., 62 Md.App. 101 , 488 A.2d 516 , cert. denied, 303 Md. 471 , 494 A.2d 939 (1985). See also Gilbert, Maryland Tort Law Handbook, § 12.1 (1986). Basically, to recover in a strict liability case, a plaintiff need not prove any specific act of negligence; he must merely prove that the product was in a defective condition and unreasonably ⁴⁸⁵ dangerous at the time it was sold.

The defect may be one that occurred in the manufacturing process, in which case the product does not conform to the manufacturer’s own standards, or it may be a defect in design, in which case what proves to be a defect was actually intended by the manufacturer. With respect to the former, the focus is on the conduct of the manufacturer; with respect to the latter, the inquiry focuses on the product itself. In a design defect case, Restatement § 402A requires “a weighing of the utility risk inherent in the design against the magnitude of the risk.” Phipps, 278 Md. at 345 , 363 A.2d 955 ; quoted in Ziegler, 74 Md.App. at 620 , 539 A.2d 701 . In some cases, the risk is never reasonable, so no balancing in required.

Examples of “inherently unreasonable risks,” pointed out in Phipps, 278 Md. at 345 , 363 A.2d 955 , would be a steering mechanism of a new car that causes the vehicle to swerve off the road, the drive shaft of a new automobile separating from the vehicle while it is being driven in a normal manner, or a sudden failure of the brakes on a new automobile. Such defects are akin to manufacturing defects in that the product does not function as the manufacturer intended. E.S. Digges & T.J. Billmyre, Product Liability in Maryland: Traditional and Emerging Theories of Recovery and Defense, 16 U.BaltL.Rev. 1, 13 (1986). In a design defect case, such as the one sub judice, that is not in the “inherently unreasonable risk” category, the question is “whether a manufacturer, knowing the risks inherent in his product, acted reasonably in putting it on the market.” Ziegler, 74 Md.App. at 621 , 539 A.2d 701 , quoting Singleton v. International Harvester Co., 685 F.2d 112, 115 (4th Cir.1981).

A determination as to whether it was reasonable to put a product on the market involves balancing “the utility of the design and other factors against the magnitude of that risk.” Phipps, 278 Md. at 348 , 363 A.2d 955 . See also Ziegler, 74 Md.App. at 621-22 , 539 A.2d 701 ; Troja, 62 Md.App. at 108 , 488 A.2d 516 . ⁴⁸⁶ In Ziegler , the late Chief Judge Gilbert, writing for this Court, explained that the absence of a safety device may clearly be a design defect, even in a product that does not “malfunction.” 74 Md.App. at 623 , 539 A.2d 701 . The result of such a defect is that the plaintiff is injured while using the product in its ordinary and intended manner. The risk/utility test, because it allows full consideration of the relative merits of a product design, is the only appropriate test to be applied in cases such as this one.

The factors to be considered under that test are: (1) The usefulness and desirability of the product — its utility to the user and to the public as a whole. (2) The safety aspects of the product — the likelihood that it will cause injury, and the probable seriousness of the injury. (3) The availability of a substitute product which would meet the same need and not be as unsafe. (4) The manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.

(5) The user’s ability to avoid danger by the exercise of care in the use of the product. (6) The user’s anticipated awareness of the dangers inherent in the product and their avoidability, because of general public knowledge of the obvious condition of the product, or the existence of suitable warnings or instructions. (7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance. Ziegler, 74 Md.App. at 624-25 , 539 A.2d 701 , quoting Wade, On the Nature of Strict Tort Liability for Products, 44 Miss.L.J. 825, 837-38.

See also Troja, 62 Md.App. at 108 , 488 A.2d 516 . Appellants were prepared to show that Sears sells a 12-inch radial arm saw with an attached lower blade guard. It is primarily intended for heavy duty commercial or industri ⁴⁸⁷ al use, and with the lower blade guard affixed it is used for ripcutting as well as crosscutting. OSHA requires that the saw be equipped with an attached blade guard and that it be used with the blade guard.

Appellants’ claim of design defect is based upon the proposition that it is equally feasible to equip the 10-inch radial arm saw, which is advertised as suitable for commercial use as well as for use by home craftsmen, with a