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Couch v. Astec Industries6/19/2002
s and policies, we believe Defendant could be found to have voluntarily undertaken the responsibility described in UJI 13-1402. See Restatement (Second) of Torts § 323 (explaining that one who undertakes to perform services may be subject to liability for the negligent performance of those services).
Given Defendant's voluntary undertaking of responsibility post-sale and the existence of pull cord technology at the time of manufacture, we conclude that UJI 13-1402 in the context of this case is a correct statement of the law. We do not address or decide whether a manufacturer has a post-sale duty to take steps to address risks that become evident only as a result of technological developments occurring after a product leaves the manufacturer's control. The existence of a duty under those circumstances is not before us and is therefore left to another day.
Defendant next argues that the evidence did not support the use of UJI 13-1402 because (1) Defendant established that there was no risk of injury associated with the plant because it complied with the ANSI standard regarding the use of pull cords, and (2) there was no evidence that Defendant learned after the sale of this plant that there was a defect in the plant. We disagree.
First, although Defendant introduced evidence tending to show that workers around Employer's conveyor were not in a remote location from the control house, and thus, that the ANSI standard requiring pull cords did not apply, Plaintiff introduced countervailing evidence that the men in the control house could not see Plaintiff when he was caught in the tail pulley. Consequently, it was the jury's role as fact finder to determine this factual question. See Las Cruces Prof'l Fire Fighters, 1997-NMCA-044, 12.
Second, the evidence gave rise to a reasonable inference that Defendant knew or should have known at some point after the sale to Employer that the absence of pull cords created a risk of injury . Plaintiff introduced evidence that Defendant issued ECO 195, which required all conveyors manufactured after 1995 to be equipped with a kill switch pull cable. At the time of manufacture, Employer knew that ANSI required pull cords on conveyors in remote locations, and there was evidence that the conveyor on Employer's plant was in a remote location. Plaintiff introduced evidence regarding the close ties Defendant maintained with its customers and Defendant's policy of investigating accidents and remedying safety problems. From all of this evidence, the jury could have reasonably inferred that Defendant knew or should have discovered some time before Plaintiff's accident that the absence of pull cords on conveyors created a risk of injury requiring remedial measures.
Plaintiff's Cross-Appeal
Plaintiff argues the trial court improperly granted Defendant's motions for directed verdict on the issue of punitive damages and the loss of consortium claim asserted by Plaintiff's wife, Emily Couch (Wife). The trial court granted Defendant's motion for directed verdict on Wife's loss of consortium claim at the close of Plaintiff's case. The trial court bifurcated the punitive damages claim and tried the claim separately to the jury following the main trial. At the close of the evidence in the punitive damages proceeding, the trial court directed a verdict in favor of Defendant.
A directed verdict is appropriate when there are no true issues of fact to present to a jury. See Sunwest Bank, 113 N.M. at 115, 823 P.2d at 915. In reviewing the evidence on appeal from a judgment entered pursuant to a directed verdict, we consider all evidence and view any conflicts in the evidence in favor of the party resisting
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