Couch v. Astec Industries, Inc.

Decision Date19 June 2002
Docket NumberNo. 21,214.,21,214.
Citation132 N.M. 631,2002 NMCA 84,53 P.3d 398
PartiesTom COUCH and Emily Couch, Plaintiffs-Appellees/Cross-Appellants, v. ASTEC INDUSTRIES, INC., Southwest Crane, Inc., and Joseph Williams, Defendants-Appellants/Cross-Appellees.
CourtCourt of Appeals of New Mexico

David L. Plotsky, Plotsky & Dougherty, P.C., Albuquerque, NM, for Appellees/Cross-Appellants.

W. Jeffrey Hollingsworth, Alicia Brown Oliver, Chambliss, Bahner & Stophel, P.C., Chattanooga, TN, Charles A. Pharris, Keleher & Mcleod, P.A., Albuquerque, NM, for Appellants/Cross-Appellees.

Certiorari denied, No. 27,597, August 1, 2002.

OPINION

FRY, Judge.

{1} Plaintiff Tom Couch was seriously injured in the course of his employment when his foot was caught in a tail pulley on an asphalt recycling plant manufactured by Defendant Astec Industries, Inc. Plaintiff sued Defendant for strict product liability and negligence, and Plaintiff's wife sued for loss of consortium. The jury found Defendant liable, and, taking into account its assessment of comparative fault, awarded Plaintiff $1,050,000 in compensatory damages. Defendant appealed, and Plaintiff and his wife cross-appealed.

{2} In the main appeal, Defendant raises three primary issues. First, Defendant contends the trial court erred in admitting expert testimony on liability and hedonic damages, evidence of government standards, and evidence of post-accident remedial measures undertaken by Plaintiff's employer. Second, Defendant claims there was insufficient evidence from which the jury could reasonably determine that Defendant was responsible for Plaintiff's "enhanced injury" or that Defendant was negligent or strictly liable to Plaintiff. Third, Defendant argues the trial court erroneously instructed the jury that Defendant had a duty to retrofit the recycling plant. In the cross-appeal, Plaintiff and his wife argue that the trial court erred in granting Defendant's motion for directed verdict for, respectively, punitive damages and loss of consortium. We affirm.

BACKGROUND

{3} Defendant manufactures asphalt plants and road paving equipment. Plaintiff was injured on August 18, 1997, while working for CalMat (Employer), which produces hot-mix asphalt used to pave highways and streets. At the time of the accident, Plaintiff was working around the recycle bin and adjacent conveyor belts of an asphalt plant designed and manufactured by Defendant in 1988 and sold to Employer in 1989. The recycle bin holds recycled asphalt pavement (RAP). A feeder belt carries the RAP from the bottom of the bin and drops it onto an incline conveyor belt, which then carries the RAP up to the drum dryer where it is mixed with other ingredients to make new hot-mix asphalt. The incline conveyor belt rotates around the tail pulley, a cylindrical object, located at the bottom of the conveyor.

{4} On the day of the accident, Plaintiff loaded the recycle bin with a front-end loader, noticed that no RAP was on the feeder belt under the bin, and determined that the bin had jammed. In an attempt to unclog the bin and restart the RAP flow, Plaintiff climbed inside the bin and shoveled material out onto the ground. Plaintiff's action did not unclog the jam. Plaintiff then decided to re-enter the bin. The plant operator had shut off the feeder belt, but the incline conveyor belt continued to run. Instead of using a ladder to access the bin, Plaintiff climbed up on its frame and stepped on the guard attached to the conveyor belt frame. The guard was supposed to prevent contact with the conveyor belt and tail pulley.

{5} The parties disputed the guard's role in the accident. Plaintiff argued that the guard was inadequate because it did not extend far enough past the nip point of the tail pulley and because it permitted a nine-inch gap between the belt and the conveyor frame. Plaintiff maintained that his foot was able to slip through the gap and come in contact with the conveyor belt which caused him to fall and ultimately resulted in his leg becoming entangled in the tail pulley. Conversely, Defendant argued that it was not the height of the guard or the gap that caused the accident, but instead either Plaintiff's negligence in failing to follow the proper procedures to unclog the recycle bin or Employer's negligence in failing to adequately bolt the guard to the frame. Defendant contended that the improperly secured guard slipped and caused Plaintiff's foot to come in contact with the conveyor belt.

{6} After falling onto the conveyor belt, Plaintiff became entangled in the tail pulley mechanism, first by his foot, then his leg, and finally his thigh and groin area. A co-worker discovered Plaintiff holding onto the conveyor belt frame to keep from being pulled further into the tail pulley. Plaintiff sustained a fractured tibia and a ripping, degloving injury to his thigh.

{7} Plaintiff also argued that the asphalt plant should have been equipped with an emergency pull cord on the conveyor belt. A pull cord is a device that, if tripped, shuts down the power to the motors driving the conveyor belt within seconds. Plaintiff claimed that if there had been a pull cord on the conveyor belt, his fall would have tripped the cord, the belt would have stopped within seconds, and his injuries would not have been as extensive.

DISCUSSION
Defendant's Appeal
Admission of Evidence

{8} Defendant argues that the trial court erred in admitting four specific types of evidence. We review the admission of evidence for abuse of discretion. Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 36, 127 N.M. 47, 976 P.2d 999.

Expert Testimony on Liability

{9} Defendant argues the trial court erred in admitting the testimony of Plaintiff's safety expert, Vincent Gallagher, because he was not qualified to offer opinions on the design and engineering of the asphalt plant and because his testimony was unreliable. Rule 11-702 NMRA 2002 provides: "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise."

{10} We first address Gallagher's qualifications. Gallagher has a master's degree in occupational safety and health, and he presently works as a safety expert in the field of safety analysis—specifically, hazard identification, evaluation, and control. He has analyzed industrial injuries, hazards, and workers' exposure to hazards in relation to the causes of accidents, as well as the feasibility and technical means of controlling hazards. Gallagher has taught these subjects and has developed hazard controls in industrial settings, including hazard controls for conveyors. In addition, Gallagher has considerable experience with machine guarding, including research, teaching, and publishing on the subject.

{11} The trial court ruled that Gallagher would be permitted to explain how safety can be designed and built into a product. Specifically, the court allowed Gallagher to state opinions on Defendant's design of the plant and the issue of retrofitting to add pull cords. The court accepted Gallagher "as an expert in the areas of princip[le]s and practices in hazard identification[,] ... guarding conveyor belts, ... and the princip[le]s and practices [of] product safety management."

{12} Consistent with this directive, Gallagher's testimony related to his safety expertise. Gallagher testified, based on a review of safety standards, discovery material, and deposition testimony, that Defendant failed to provide adequate guarding; failed to provide a safe means of access; failed to provide an emergency pull cord; failed to provide adequate safety instructions to Employer or its workers to safely perform unclogging; and failed to utilize a sufficient product safety management program consisting of written hazard analysis or appropriate warnings and instructions. Gallagher explained what goes into an appropriate product safety management program and how pull cords function to minimize hazards. Gallagher opined that Defendant's lack of a written product safety program and its failure to provide adequate guarding, safe access, and pull cords resulted in a defective product.

{13} Given Gallagher's qualifications and testimony, we disagree with Defendant's assertion that Gallagher's testimony was speculative, subjective, and unreliable and that its probative value was outweighed by any prejudicial effect. Gallagher's testimony was relevant and helpful to the fact finder. He is a safety expert, and the issues in this case concern whether the manufacturing plant built and sold by Defendant presented unreasonable safety hazards. Safety issues related to industrial plants are not matters within the average lay person's repertoire. See Mott v. Sun Country Garden Prods., Inc., 120 N.M. 261, 269, 901 P.2d 192, 200 (Ct.App. 1995) (recognizing that expert testimony is admissible in cases where the "average juror would have no basis for evaluating the evidence without the assistance of an expert") (citation and internal quotation marks omitted). As a safety expert, Gallagher's testimony assisted the jury in understanding the hazards presented by a tail pulley and how pull cords and adequate guards may prevent accidents.

{14} Further, although Gallagher is not an engineer and has not personally designed conveyor belts, guards, or emergency pull cords, the trial court could reasonably conclude that his expertise in evaluating product designs and conveyor belts for safety hazards qualified him to offer opinions on these subjects. See Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1243-44 (10th Cir.2000) (affirming admission of Gallagher's testimony and explaining that his lack of first-hand knowledge of the machine in question went to the weight, not the admissibility, of his testimony); State v....

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