*1 ly improper conduct of the bailiff warrants excep- “appearance evil” impeach to the rule that cannot
own verdict. agree appellant as to the
We counter-affidavits, appellee’s
merit of jurors opined failure
which several physicians’ depositions
to review the did If
affect the or award. certain deliberations
jurors as to testi- were confused the actual
mony given by experts, medical it cannot failure to
be stated with conviction that the
provide had no ef- the relevant information
fect on their verdict. opinion of the Court of
reversed, hereby case is and this remanded
to the Warren Circuit Court for a new damages.
limited to issue of
All concur. INDUSTRIES, INC., Appellant,
GRIFFIN
v. JONES, Appellee,
James JONES, Cross-Appellant,
James INC., INDUSTRIES,
GRIFFIN
Cross-Appellee. 96-SC-685-DG,
Nos. 97-SC-182-DG. Kentucky.
Supreme Court
Sept. 1998.
judgment warranty on the breach of claim on liability. and a strict directed verdict appeal Jones raised issues on to numerous Appeals, part the Court of in affirmed but reversed and remanded to the direct- on ed verdict for Griffin the strict by claim. for The motion review Griffin Murphy, Covington, appel- Kevin L. for agrees appellate panel’s with the decision on lant/eross-appellee. impression Kentucky question in of first Sloan, O’Hara, Coving- Michael J. David B. adopting to exception the occasional seller ton, for appellee/cross-appellant. 402A, differing strict section liability under Pruitt, Catlesttsburg, Garis L. for amicus regarding of that to new law Kentucky Academy curiae The of Trial At- pattern. this fact torney. panel The that the judge decided trial had erroneously a verdict for on directed Griffin WINTERSHEIMER, Justice. liability. strict Appeals The Court of con- significant This is a products liability case get cluded that could Jones with presenting a novel strict issue involv- proof his conveyor of Griffin’s internal screw (f) ing comment section of the Re- plus profit endeavors its the sale of the statement of Torts. Griffin Indus- system Kahns. argues installed for Griffin sought discretionary tries review from an vigorously panel thereby that the erroneous- opinion of Appeals’ panel a Court of which ly applied it 21-page published opinion rendered a affirm- adopted. ing part in reversing in and re- argues Appeals Griffin that the Court of manding for complaint retrial of the erred in reversing the order of trial by plaintiff/respondent filed James Jones. A in a verdict favor of Griffin separate concurring opinion in the Court of on by liability. the claim of strict Jones Grif- Appeals specifically also asked this Court to fin Appeals also contends that the Court of consider the matter. erred in concluding that the contents of an leg injuries Jones suffered serious on Octo- investigative report of the accident as com- 10,1990 ber cleaning conveyor while screw piled by improperly Kahns were admitted in system employment the course of his as a into evidence. Griffin asserts that sanitary worker for Kahns. Jones had failed in Appeals concluding Court of erred disengage system or lock out which testimony of Robert Perry witnesses by was activated eoworker another room. Young improperly Richard was allowed. conveyor system The screw had been manu- argues Appeals Jones Court of customer, Kahns, factured and sold to by holding judge that the trial erred dismiss- Griffin, by- which renders inedible animal ing products liability against Griffin product for resale in other and use commodi- should be He also affirmed. maintains that Although previously ties. Griffin had de- correctly Appeals Court of found that the signed conveyor and installed such screw admitting trial erred in into evidence use, systems for internal sold the three investigative report the contents of the conveyor system question slightly at more by Jones accident as conducted Kahns be- customer, regular than cost to its Kahns. 803(6). comply cause it failed to with KRE day jury There was a seven trial involving He also contends that the Court of by claim Jones Griffin. correctly lay opinion testimony held that the major appeal propriety The issue on representatives of Kahns and KWS should a directed verdict in favor Griffin on the have been excluded under KRE 701. liability aspect jury, case. The vote, argues absolved Jones also that the trial court erred gence. The permitting case Kahns was settled introduce evidence summary before trial. Griffin cite or had obtained OSHA did not either Griffin any regulations was not in the engaged Kahns for ed at that Griffin violation OSHA respect conveyors ques- selling conveyors. screw to the business screw Ap- testimony tion. He also claims that the Court uncontradicted that Griffin improperly peals incorrectly rendering held in the waste. business animal testimony Perry Young Griffin, admitted through indicated *3 Finally, argues division, he convey harmless error. internal assembled screw judge trial he evidence of erred when allowed The a ors for its own use. division was not in- negligence employer the of Jones’ to be separate corporation only and to ac existed Kahns, troduced into evidence included operating commodate the needs of Griffin. plaintiff, apportionment a in settling as the employs product a for internal use One liability instruction. a not incur the of manufacturer. does American Ins. Co. v. Lanier Busi See States appli- in principle The this case is the issue (M.D.Ala. Products, F.Supp. ness 707 494 of cation 1989). liability section of the Re- strict under 402A (Second) Kahns, Torts. case, statement of In this than the other sale auger sold a to an never screw Appeals In 1996 of ruled that the Court entity. Consequently, of the outside the sale judge error trial to direct for the system to was an transaction Kahns isolated liability on of verdict the issues strict excep- that was within the occasional seller on The remanded for a trial the merits. 402A; to section it does not come within panel also on several different eviden- ruled liability. of the doctrine strict letting tiary the of issues which had effect on of the verdict for Griffin the issue every subject Not seller is to strict granted motion gence stand. This court the liability. pre general The considerations discretionary and the of Griffin for review imposition lia justify sented to the of strict motion for review. cross of Jones similar in the bility on manufacturers and sellers applicable course are not normal of business reversing Appeals The Court of erred in corporation engaged here because this is not of a ver- order allegedly product in sale of defective in favor on claim Jones dict of Griffin Suklji regular of its business. See as liability for strict in tort. Co., 89, 97, 69 511 an v. Ross and Son N.Y.2d Kentucky Re- adopted section 402A of the (1986). 821, The 1358 N.Y.S.2d 503 N.E.2d (Second) of Torts in Dealers statement imposed liability by section 402A relates Co., Distributing Transport Battery Inc. v. product by the sale of a one en defective (1965). Co., Inc., In Ky., 402 441 selling. “It is axio gaged in the business of supra, privity court that is Dealers held requirement for the matic that one basic to the maintenance of prerequisite liability application of the rule of strict under implied warranty action for of an breach must be 402A that the defendant section is time actions. products liability Since the chat engaged selling the business recognizing have there been numerous eases Inc., Skyclimber, 571 tel.” Walker v. theory liability recovery product (D.Vi.1983); Enterpris F.Supp. 1176 Burke eases. es, Mitchell, Ky., 789 Inc. v. 700 S.W.2d correctly judge The trial determined (1985). liability imposed by The section com- was an occasional seller under special liability manufac limited to (f) to 402A of the Restatement ment section engaged in the busi turers and distributors properly thus entered Torts and product in selling question. See ness against the strict a directed verdict Co., Mart, Mini v. Direct Tire Inc. Sales claim of Jones. (8th Cir.1989); F.2d 63 Marte v. W.O. 876 Co., Inc., 316, liability un 159 552 responsibility Hickok A.D.2d for The Manuf. (1990); Pearl N.Y.S.2d 300 McKenna v. Art is in the sale of a defective der section 402A Works, Inc., Pa.Super. A.2d 677 in the busi 225 310 product by engaged who is one Inc., (1973); Here, question Welch v. Dura-Wound is no selling. ness there (N.D.N.Y.1995). F.Supp. 76 present- from an examination of testimony by Perry valuable otherwise rule of and the admission apply to sell harmless The trial Young does not the occasional error. allegedly product. er of an defective When a did not err when he allowed evidence of the product only on is sold an occasion or inci of Jones to be intro- seller, dent to the trans apportionment business duced in instructions. purview action does not come within decision Court liability. Bailey the doctrine of strict See part. and reversed affirmed Corp., ITT F.Supp. Grinnell (N.D.Ohio 1982) COOPER, GRAVES, JOHNSTONE and STUMBO, JJ., concur.
The evidence in this
case indicated
Griffin, through
operations,
its internal
as
STEPHENS, C.J.,
*4
only.
concurs
result
conveyors
sembled screw
for its internal use.
LAMBERT, J.,
prod
opinion
The law is clear that when
a
separate
one uses
files a
only,
uct for
concurring
part
internal use
liabil
dissenting
part.
manufacturer
and
Ins.,
ity
apply.
does not
American States
LAMBERT, Justice, concurring and
Co., 707
at
F.Supp.
498. See
v.
also Goetz
dissenting.
Machines, Inc.,
Avildsen Tool and
82 Ill.
I
with
portion
majority
concur
1054,
App.3d
324,
555,
Ill.Dec.
38
403 N.E.2d
opinion which addresses the occasional seller
(1980);
Co.,
562
Swabbing
v. Pitts
Holifield
rule in
Section
of the Restatement
(Miss.1988).
by
er, such nonprejudi- error was harmless and majority has the em- reasoned cial. ployer’s intervention into the civil action for
We affirm that recovery Compensation the decision Workers’ benefits permitted Court Appeals intro- and paid, had the settlement the claim testimony regulations duction of party OSHA between third Industries) (Griffin as- constitute active apportion- McKinley of a claim and authorizes
sertion Darren GODBEY and Rhonda liability against employer. Godbey ment of With Appellants, Annette disagree. After this Court’s de- this I must Jordan, parture in Nix v. rule (1975), whereby Ky.App., 532 THE AL HOSPITAL OF UNIVERSITY plaintiff was entitled to sue whatever B. MEDICAL CEN BERT CHANDLER sue, gent party plaintiff leav- desired University TER, INC., Hospital, d/b/a responsibility ing to the defendant Center; Albert B. Chandler Medical indemnity or from others seek contribution Strodel, George M.D.; William E. M. might be for some or all of the liable Werdick, Werdick, Mike M.D. a/k/a sustained, adopted the injuries view that we Appel M.D.,; Noble, Robert M.D. proper against apportionment whomever lees. actively asserted claim. plaintiff
Thus, plaintiff party prior if a settled No. 97-CA-0718-MR. litigation and to commencement of thereafter trial, parties, Appeals Kentucky. or at sued one more other Court proper against de- apportionment was those *5 Aug. 1998. well as fendants who remained as those Floyd This the rule had settled. Company, Ky., Construction
Carlisle (1988). key to theory allowing apportionment
such parties
against might all who were or be plaintiff.
legally liable bar, case at Kahns was
In the not plaintiff by liable virtue of the
could not be remedy provision
exclusive Workers’ no
Compensation right Act. Plaintiff had employer. litigation against his His
bring
only against was for claim Compensation benefits. The em-
Workers’ litigation not
ployer entered this to obtain plaintiff,
indemnity or but contribution Industries, the manufacturer of
from Griffin injured plaintiff. The fact
the device peace paying “bought
that Griffin appor- Griffin an
Kahns” should entitle whereby instruction Kahns can be
tionment any part plaintiff’s
adjudged liable for allowing apportion-
injuries. effect of permit Kahns was to against
ment
present argue evidence as to irrelevant negligence. was allowed to
Kahns’ empty case chair. This
make its probably explains the 11-1 quite
fact on his
verdict Jones
against Griffin.