Anderson v. Dreis & Krump Manufacturing Corp. , 48 Wash. App. 432 ( 1987 )

Green, J.

(dissenting)—In my view the trial judge was correct in ruling the modification of the activation mechanism of the press was the intervening proximate cause of Mr. Anderson's injuries and dismissing the complaint.

The press was designed to be activated by the use of two buttons or a foot treadle. When the buttons were used, it was impossible for the operator's hands to be under the press. The purchaser, Comet, elected to activate the press by use of the buttons. However, instead of using the two buttons as the machine was designed, Comet not only modified the press so it could be activated by one button, but placed that button in a position where it could be accidently activated by the operator's body rubbing against it. That is what happened here. The operator, while removing metal from beneath the press, rubbed against the dangling button setting off the press and injuring his hand.

It is apparent that the sole and proximate cause of this accident was Comet's negligent modification of the button activation system, creating the danger of accidental activation.

If the accident had happened while using the foot treadle, then the issue of defective design as the proximate cause of the injury would create a question for the trier of fact. Here, the treadle was not used and the question of defective design for treadle use is not an issue.

I would affirm.

Review denied by Supreme Court October 6, 1987.