Brian Atwood Wansor v. George Hantscho Co., Inc., Third Party Plaintiff-Defendant-Appellee v. W. R. Bean & Son, Inc., Third Party, 595 F.2d 218, 3rd Cir. (1979)
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Scribd Government DocsBrian Atwood Wansor v. George Hantscho Co., Inc., Third Party Plaintiff-Defendant-Appellee v. W. R. Bean & Son, Inc., Third Party, 595 F.2d 218, 3rd Cir. (1979)
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Scribd Government Docs595 F.
2d 218
Brian Atwood WANSOR, Plaintiff-Appellant,
v.
GEORGE HANTSCHO CO., INC., Third Party PlaintiffDefendant-Appellee,
v.
W. R. BEAN & SON, INC., Third Party Defendant-Appellee.
No. 75-3093.
United States Court of Appeals,
Fifth Circuit.
May 16, 1979.
Cullen M. Ward, W. Davis Hewitt, Jackson C. Floyd, Jr., Atlanta, Ga., for
plaintiff-appellant.
N. Forrest Montet, Atlanta, Ga., for third party plaintiff-defendantappellee.
T. Cullen Gilliland, Atlanta, Ga., for other interested parties.
Appeal from the United States District Court for the Northern District of
Georgia.
Before BROWN, Chief Judge, COLEMAN and MORGAN, Circuit
Judges.
JOHN R. BROWN, Chief Judge:
Plaintiff-Appellant Brian Wansor suffered incapacitating injuries to his hands
while performing a clean-up operation on his employer's printing press. He
brought this suit against the manufacturer of the press, alleging (1) negligence
in various aspects of the design of the machine and (2) breach of the implied
warranties of merchantability and intended use, imposed by Ga.Code Ann.
105-106.1
At trial, after Wansor presented his case to the jury, the District Judge directed
At trial, after Wansor presented his case to the jury, the District Judge directed
a verdict in favor of defendant. On appeal, this Court declined to decide the
merits of the case, since there was some doubt whether Ga.Code Ann. 105106 the relevant portion of which was enacted in 19682 applied to this particular
machine, which was manufactured and installed between 1961 and 1962. We
instead certified the related question of the retroactivity of 105-106 to the
Georgia Supreme Court.3
In response, that Court issued an opinion in which it found the statute
prospective only and, therefore, not applicable to machinery manufactured and
installed before 1968.4 Because this holding removes the issue of implied
warranties from the case, only the question of the propriety of the directed
verdict on the negligence issue remains. We think that Georgia law commands
the action taken by the District Court and, therefore, affirm.
Generally Wansor claims that the defendant company was negligent in failing
to install safety features that would protect machine operators while they
cleaned the press to remove ink residue after a printing run. We described this
wash-up process and Wansor's injury in our original opinion:
5
After
each run, the press was stopped, pans placed under the rollers, and the press
turned on so that all six units were idling. Each crew member, armed with a bottle
filled with naptha, a cleaning solvent, then stood on a catwalk running around each
unit and into the machine and squirted naptha on the unguarded, revolving rollers.
Some of the naptha, mixed with ink, would be thrown back onto the catwalks as the
rollers turned. Most of the ink and solvent would drip onto the lowest rollers and
into the pans. The lower roller was cleaned by a blade that scraped off the
accumulating residue. This blade was adjusted before and during the process to
ensure that all the residue was removed. Wansor's injuries occurred while he was
making this adjustment . . . .
6 adjust the scraper blade, Wansor had to crouch on the catwalk to avoid being hit
To
by the rollers above him, turn two screws located about fifty inches apart, then back
out in the same Russian-folk-dance crouched walk. On the date involved here,
Wansor had finished adjusting the screws and was beginning to back out of the
machine when . . . his right hand became caught in the unguarded rollers. He
attempted to pull his hand out but succeeded only in entangling his left hand as well
and in the struggle caught his hair on the upper rollers. Although the machine was
quickly turned off, Wansor's hands were severely mangled. Despite extensive
medical treatment, he lost most of the fingers and part of the thumb from his right
hand and two fingers from his left hand.
7
570 F.2d at 1204.
More specifically 5 appellant claims that Hantscho Company should have (1)
placed guards near the scraper blade to prevent contact with moving rollers and
(2) designed the screws so that they could be adjusted without an operator's
having to crouch inside the machine. The District Judge, considering these
same contentions, held that the danger involved in the wash-up process was
open and obvious;6 under Georgia law, this constituted an absolute legal
defense for defendant.
Our examination of Georgia law leads us to the same conclusion. The courts of
that state have adopted the reasoning of Campo v. Scofield, 1950,301 N.Y. 468,
95 N.E.2d 802:7
10a manufacturer does everything necessary to make the machine function properly
If
for the purpose for which it is designed, if the machine is without any latent defect,
and if its functioning creates no danger or peril that is not known to the user, then
the manufacturer has satisfied the law's demands. We have not yet reached the state
where a manufacturer is under the duty of making a machine accident proof or
foolproof. * * * (H)e is under no duty to guard against injury from a patent peril or a
source manifestly dangerous. * * * In such cases, the manufacturer has the right to
expect that such persons will do everything necessary to avoid such contact, for the
very nature of the article gives notice and warning of the consequences to be
expected, or the injuries to be suffered. In other words, the manufacturer is under no
duty to render a machine or other article 'more' safe as long as the danger to be
avoided is obvious and patent to all.
11
See Stovall & Co., v. Tate, 1971, 124 Ga.App. 605, 184 S.E.2d 834; Poppell v.
Waters, 1972, 126 Ga.App. 385, 190 S.E.2d 815.8
12
Moreover, the Georgia courts have consistently held that "there need be no
warning to one in a particular trade or profession against a danger generally
known to that trade or profession." Su v. Perkins, 1974, 133 Ga.App. 474, 482,
211 S.E.2d 421, 426; Eyster v. Borg-Warner Corp., 1974, 131 Ga.App. 702,
703, 206 S.E.2d 668, 670.
13
Against this legal backdrop, Wansor cannot escape the inevitable result of his
having admitted at trial that he knew of the obvious danger the printing press
presented.9 Although we fully sympathize with appellant's plight, we must
conclude that whether or not defendant was negligent,10 Georgia law precludes
his recovery.
14
AFFIRMED.
2. The statute, amended in 1968 to add the second sentence, the language
relevant here, provides:
105-106. (4408) Privity to support action. No privity is necessary to support an
action for a tort; but if the tort results from the violation of a duty, itself the
consequence of a contract, the right of action is confined to the parties and
privies to that contract, except in cases where the party would have had a right
of action for the injury done, independently of the contract, and except as
provided in Code section 109A-2 318. However, the manufacturer of any
personal property sold as new property, either directly or through a dealer or
any other person, shall be liable in tort, irrespective of privity, to any natural
person who may use, consume or reasonably be affected by the property and
who suffers injury to his person or property because the property when sold by
the manufacturer was not merchantable and reasonably suited to the use
intended and its condition when sold is the proximate cause of the injury
sustained; a manufacturer may not exclude or limit the operation hereof.
See note 1, Supra
Wansor v. George Hantscho Co., 5 Cir., 1978, 570 F.2d 1202; Wansor v.
George Hantscho Co., 5 Cir., 1978, 580 F.2d 726
Wansor v. George Hantscho Co., 1979, 243 Ga. 91, 252 S.E.2d 623 (1979). In
this opinion the Court reiterated its prior recognition in Center Chemical Co. v.
Parzini, 1975, 234 Ga. 868, 218 S.E.2d 580, that 105-106 provides "for strict
tort liability against a manufacturer of (defective) personal property which is
sold as new property . . . ." Id at 624. In response to our specific question, the
Georgia Supreme Court explained that
(h)aving reached the conclusion that a new cause of action in tort has been
established by the legislature by its enactment of Code Ann. 105-106, it
follows that, under Code Ann. 102-104 (which forbids the retroactive
application of laws), this statute may not be given retroactive effect."
Id at 625.
Although appellant makes other related claims, his argument focuses mainly on
these two. Moreover, the result we reach disposes also of these related claims
As the Court explained to the jury,
it is not a case of an imminently dangerous device, as the example in many
cases. It is a case of a patent if there is any defect in this equipment, it is a
patent defect as opposed to a latent defect. Mr. Wansor, the plaintiff, and every
other witness has testified, as was obvious to anyone and everyone, that this
was dangerous equipment. It is dangerous, the same as an airplane propeller
that is turning is dangerous, and a person knows or should know that he better
stay out of it.
Transcript, pages 501-02.
7
Appellant argues that because the New York courts have overruled Campo,
Micallef v. Miehle Co., 1976, 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d
571, we should find that Campo 's rationale no longer stands as the law of
Georgia. His reasoning, however, is faulty. Although Georgia courts have
adopted Campo 's holding, they are not controlled by the New York judiciary's
subsequent decisions. We, on the other hand, in reviewing this diversity case,
are absolutely bound by the decisions of the Georgia courts, one of which
recently affirmed the Campo approach. Hunt v. Harley-Davidson, 1978, 147
Ga.App. 44, 248 S.E.2d 15
Cf. Harison-Gulley Chevrolet, Inc. v. Carr, 1975, 134 Ga.App. 449, 214 S.E.2d
712; Roberts v. Bradley 1966, 114 Ga.App. 262, 150 S.E.2d 720; Fricks v.
Knox Corp., 1951, 84 Ga.App. 5, 65 S.E.2d 423
Q. Did anybody from W. R. Bean ever caution you at all with regard to any
danger that might exist from these rollers at any time?
A. Well, I couldn't really place any one person but it was obvious that they
were dangerous.
Q. Now, you just mentioned, Mr. Wansor, that it was obviously dangerous.
Those were your words, were they not, sir?
A. Yes, sir.
Q. What was it that was obviously dangerous, sir?
A. The rollers. I mean, you know, the way they could the way they were I
mean it just seemed you looked at it and you thought, you know, that's a
dangerous machine.
Cross-examination of Brian Wansor by defendant's counsel, transcript at 11617.
10
We express no opinion on this question. There is some evidence in the record
that defendant intended for the rollers to be stopped during the clean-up
process. This instruction, however, was communicated only orally, if at all.
Depositions of Hans Hovelman and Albert Tiso, employees of Hantscho
Company, and depositions of Gerald Greene, Charles Latham, and Larry
Leseueur, employees of W. R. Bean & Son, Inc. appellant's former employer.
None of these were admitted as evidence at trial
