Burke Enterprises, Inc. v. Mitchell

700 S.W.2d 789, 57 A.L.R. 4th 1167, 1985 Ky. LEXIS 290
CourtKentucky Supreme Court
DecidedNovember 21, 1985
StatusPublished
Cited by40 cases

This text of 700 S.W.2d 789 (Burke Enterprises, Inc. v. Mitchell) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burke Enterprises, Inc. v. Mitchell, 700 S.W.2d 789, 57 A.L.R. 4th 1167, 1985 Ky. LEXIS 290 (Ky. 1985).

Opinions

OPINION OF THE COURT

This is an appeal from a judgment entered on a jury verdict in favor of respondent, Stanley Mitchell, in the sum of $17,-955.76 for personal injuries he sustained while operating a two man, gasoline powered, post hole digger which he had rented from the movant, Burke Enterprises, Inc., d/b/a Burke Rental Center.

On September 12, 1980, Mitchell was in the process of building a backyard fence. A neighbor suggested he rent a post hole digger. He located the subject machine at Burke Rental Center (“Burke”), and went with his neighbor to get it.

The post hole digger was equipped with a slip or centrifugal clutch, engineered to cause the auger to stop turning in normal operation when it encountered an obstruction. Mitchell was unaware of this feature. Although Burke’s employees were instructed to explain the operation of the slip clutch to renters, no such explanation was given to Mitchell.

Mitchell took the machine home and, after a minute or two of operation, the auger and pulleys quit running. He thought the V-belt on the machine was broken and reached down to check it. The machine started running again. Mitchell’s hand was sucked into it and, as a consequence, a portion of his right thumb was torn off.

The accident occurred as a consequence of two factors. First, there was no guard on the V-belt to prevent an unknowledgeable user from coming in contact with the hazard. Second, Mitchell was not instructed in, and was unaware of, the operation of the slip or centrifugal clutch, which stopped the auger from turning in normal operation when apropos, and then permitted it to resume operation when no longer in contact with the obstruction. As a consequence, he was unaware that the machine would resume operation as it did.

Mitchell sued Ground Hog, Inc., the original manufacturer of the machine, Best Equipment Co., because its name tag was on the motor, and the movant, Burke Enterprises. The complaint included claims against the defendants of strict liability in tort, implied warranty and negligence. The charges against Burke included that it “negligently leased” the machine and that it “negligently failed to properly warn of the hazardous nature and dangerous propensities of the aforesaid two-man earth drill.”

The machine was designed and manufactured by Ground Hog, Inc., between 1955 and 1965, without a guard over the pulleys and V-belt. The appellee, Mitchell, charged that Ground Hog, Inc., thus originally created the hazard. Burke purchased the machine in 1967, and in 1976 substantially rebuilt and significantly altered it. Still, no guard was put on the machine. Indeed, the original holes provided for mounting a guard if the owner decided to purchase one were obliterated in the rebuilding process.

The Products Liability Act, KRS 411.300, et seq. provided certain defenses to the manufacturer' based on the time of manufacture, viz., the presumption the product was not defective five years after sale to the first consumer and eight years after the date of manufacture, the state of the art defense, and the subsequent material [791]*791alteration defense. With these in mind on the eve of trial Mitchell elected to settle with the manufacturer. He accepted $10,-000 and executed a partial release “reserving” his claim against other defendants, meaning Burke. The release specified that the amount paid “will only partially satisfy the total amount of damages sustained” by Mitchell.

Best Equipment, named in the complaint, was not served and was not a party to this litigation. The case was tried against Burke only. The judgment against Burke was affirmed in the Court of Appeals. We accepted discretionary review.

The issues on discretionary review are: (1) the theory of liability as submitted to the jury in the instructions against Burke; (2) contributory negligence; and (3) Burke’s claims to credits against the judgment for (a) the $10,000 previously paid by the manufacturer, Ground Hog, Inc., and (b) for $6,000 in benefits paid to Mitchell by his employer during the period he was disabled.

A mechanical engineer with many years experience in machine safety testified as an expert witness for Mitchell. He testified that the post hole digger was unsafe for operation because it did not have a guard over the Y-belt and pulleys. He further testified that “with the guard off, ... the centrifugal clutch which causes the auger to start and stop when it meets resistance, might well cause the user to inadvertently stick his hand down there near the belt.” He stated that this “would be a reflex action which can be anticipated and is well known to anybody who designs equipment.”

I. MOVANT INSISTS: (1) THAT THIS IS A “PRODUCTS LIABILITY ACTION;” (2) THAT AS A RENTAL AGENCY MOVANT QUALIFIES AS A DISTRIBUTOR OF THE PRODUCT; AND (3) IF THE PRODUCT WAS DEFECTIVE, MOVANT CAN HAVE NO GREATER LIABILITY THAN THE PRODUCT’S MANUFACTURER

In Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441 (1966), we adopted strict liability in tort for a defective product as expressed in § 402A of the Restatement (Second) Torts. This is a “special liability” limited to manufacturers and distributors “engaged in the business of selling such a product.” Restatement (Second) Torts, § 402A(l)(a). The movant is a commercial renter, therefore, not expressly covered by § 402A.

There are a number of cases from other jurisdictions which have extended strict liability in tort to “those who are in the business of renting products,” under the theory that they “are often in an even more critical position than a retailer for affecting in a substantial way the instance of harm from damaging events due to defectively dangerous defects in products rental.” See Prosser and Keeton on Torts, 5th ed., § 104, and cases cited therein. As yet, no Kentucky case has extended § 402A to commercial renters. We need not decide whether it would be appropriate to do so here because that is not the issue here, although the movant insists this is a “products liability” case, hoping thus to claim defenses in our Products Liability Act, supra.

Here, Mitchell’s theory of liability against Burke, as developed through Mitchell’s evidence at trial submitted in the instructions to the jury, premised liability on old-fashioned, garden variety common law negligence. Mitchell claimed that Burke failed “in the exercise of ordinary care” reasonable for a business such as Burke operated.

Movant claims it should only be liable if the manufacturer was liable. There are two reasons why this position is unsound. First, the manufacturer, Ground Hog, Inc., manufactured and sold this product thirteen or more years before the accident. Movant, however, rented the machine to Mitchell on the same day the accident occurred. The proof required to find fault against a manufacturer who parted with his product thirteen years before the accident and the proof required to find fault [792]*792against a commercial supplier in the business of renting products when it delivers to a customer a potentially dangerous machine for immediate use, are two different things.

In Williams v. Fulmer, Ky., 695 S.W.2d 411, 413 (1985), we stated:

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Bluebook (online)
700 S.W.2d 789, 57 A.L.R. 4th 1167, 1985 Ky. LEXIS 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-enterprises-inc-v-mitchell-ky-1985.