Aldridge v. Reckart Equip. Co., 2006 Ohio 4964 (Ohio App. 9/19/2006), 04CA17.

• Citation: 2006 Ohio 4964
• Decision Date: 19 September 2006
• Docket Number: No. 04CA17.,04CA17.
• Parties: Bert Aldridge, et al., Plaintiffs-Appellants, v. Reckart Equipment Company, Defendant-Appellee.
• Court: United States Court of Appeals (Ohio)

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2006 Ohio 4964

Bert Aldridge, et al., Plaintiffs-Appellants, v. Reckart Equipment Company, Defendant-Appellee.

No. 04CA17.

Court of Appeals of Ohio, Fourth District, Gallia County.

Date Journalized: September 19, 2006.

Civil Appeal from Common Pleas Court.

Anne M. Valentine and Susie L. Hahn, 175 South Third Street, Columbus, Ohio 43215, Counsel for Appellants.

Samuel G. Casolari, Jr., and John Christopher Reece, 120 East Mill Street, Suite 240, Akron, Ohio 44308, Counsel for Appellee.

DECISION AND JUDGMENT ENTRY

PER CURIAM.

{¶ 1} This is an appeal from a Gallia County Common Pleas Court summary judgment in favor of Reckart Equipment Company, defendant below and appellee herein. Bert and Mary Aldridge, plaintiffs below and appellants herein, assign the following error for review and determination:

"BY GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE, THE TRIAL COURT COMMITTED REVERSIBLE ERROR BECAUSE THERE EXIST GENUINE ISSUES OF MATERIAL FACT WHETHER APPELLANTS POSSESS VIABLE PRODUCT LIABILITY CLAIMS."

{¶ 2} Bert Aldridge (Aldridge) suffered injuries while operating a debarking system at work. The debarking system consisted of the debarker, which removed mulch from pieces of wood, and a conveyor system that transferred the mulch from one location to another. HMC Corporation, which is not a party to this litigation, manufactured the debarker. Reckart manufactured the conveyor system to Aldridge's employer's specifications. The conveyor system consisted of two separate conveyors: a horizontal conveyor and a vertical conveyor.

{¶ 3} Aldridge suffered his injuries as he stood up after clearing accumulated mulch from underneath the intersection of the horizontal and vertical conveyors. As he stood up, his left glove became caught in the conveyor at an unguarded point. Consequently, his left hand and arm were pulled into the debarker.

{¶ 4} Aldridge and his wife filed a complaint against Aldridge's employer (John Smith d.b.a. S&J Lumber and Melinda Plantz d.b.a. Smith's Forest Products), and Reckart Equipment Company.¹ Their complaint against Reckart contained both statutory and common law product liability claims, including: (1) negligent design and manufacture; (2) negligent failure to warn; (3) strict liability in tort for defective product due to defective design, due to failure to warn, and due to failure to conform to Reckart's representations. Mary Aldridge asserted a loss of consortium claim.

{¶ 5} On August 13, 2004, Reckart filed a summary judgment motion and raised several arguments in support. First, Reckart argued that intervening and superseding causes excused any negligence on its part and also defeated Aldridge's statutory strict product liability claims. Reckart asserted that Aldridge's conduct in cleaning the system without shutting down the conveyors constituted an intervening and superseding cause. Reckart further contended that Aldridge's employer's negligence, as several OSHA citations demonstrate, constituted an intervening and superseding cause. Reckart noted that OSHA cited the employer for several violations and made the following findings: (1) "[I]n the saw mill, the debarker was not locked out when cleaning operations were performed exposing the operator to a caught between hazard;" (2) "The debarker was not locked out when cleaning the mulch out from under the conveyor"; (3) "[T]he pulley on the take off end of the conveyor under the debarker and pulley on the top take up end of the waste conveyor were not guarded exposing the operator to a caught between hazard"; and (4) "The end pulleys on the conveyor under the debarker and the waste conveyor were not guarded. Employees are exposed to an ingoing nip point when they shovel mulch out from under the conveyor if it is running."

{¶ 6} Reckart also argued that it had no duty to provide guards for the conveyor system because the lumber industry standard provides that the saw mill owner is responsible for guarding moving shafts on debarkers and similar equipment once the owner completely assembles and configures the equipment at the saw mill. Reckart further argued that Aldridge (1) unforeseeably misused the product by cleaning the conveyor while it was still moving and that his unforeseeable misuse of the product bars his claim; (2) assumed the risk of injury when he chose to clean the system with the conveyors running; and (3) could not prevail on his failure to warn claims because Reckart did not have a duty to warn of the open and obvious danger associated with sticking one's hand into a moving conveyor belt.

{¶ 7} To support its motion, Reckart relied upon Roger Dean Harris' expert affidavit. Harris explained that the debarking machinery consisted of "an infeed deck, the debarker itself, an outfeed deck, and a mulch conveyor system." Harris focused his investigation on the mulch conveyor system. Harris discovered that the accident occurred at the intersection of the two mulch conveyors. He explained that at the intersection, mulch spilled and accumulated underneath the inclined conveyor and interfered with the conveyor belt tracking. This required periodic removal from under the inclined conveyor. On the date of the injury, when Aldridge noticed that the system required cleaning, he exited the debarker cab and did not shut off the conveyors. While the conveyors were still moving, he cleaned the accumulated mulch by hand from under the inclined conveyor. During the cleaning, a glove on his hand became caught in the in running nip point formed between the conveyor belt and pulley and the ground or mulch accumulation.

{¶ 8} Harris asserted:

"[A]s is common with much wood products and conveying equipment, the conveyors are not necessarily shipped with all required guards. The final installed configuration and therefore the need for personnel guards is determined by the end user, not the manufacturer. [Reckart's] literature also warns against operation of the conveyors without guards or the use of lock-out devices."

Harris continued:

"Conveyor equipment, particularly for the wood products industry, is typically ordered to width, length, and performance specifications only. The final configuration is a function of the owner/installer, and the equipment is frequently installed on existing owner provided structures, interfacing with existing equipment. Not knowing the final configuration, it is not possible for the conveyor manufacturer to provide all potentially necessary personnel guards. Such equipment is typically shipped with drive guards, as was observed on the conveyors under investigation. Unless charged with providing a complete conveying system or provided with details of the interface of the conveyors with the owner's pre-existing equipment and structures, it is impossible for the conveyor manufacturer to provide all necessary personnel guards."

{¶ 9} Appellants argued, however, that genuine issues of material fact remained as to all of their claims, thus precluding summary judgment. Appellants asserted that whether an intervening or superseding cause exists, whether the unforeseeable misuse or assumption of the risk defense apply constitutes questions of fact. Appellants submitted Aldridge's affidavit to support their arguments:

"On the first day the debarker was in operation, I was instructed by my boss, Mr. Smith, to keep the area underneath the conveyor belts clean because he did not want his machine mistreated. With the debarker off and the conveyor belts on, Mr. Smith got down on the ground and swept out the accumulated mulch with his hands. I was informed by Mr. Smith that the conveyor belts had to be left on so that the equipment and surrounding areas could be properly cleaned and all the mulch could be transported away. At no time prior to my accident was I aware an injury could occur, nor was I concerned that an injury would, as a result of cleaning the mulch beneath the slowly moving conveyor belts."

{¶ 10} Aldridge explained that on the date of his injury, he noticed that the conveyor belt started to run crooked, which indicated that mulch had accumulated and needed to be cleared. He stopped the debarker, but the conveyor belts remained running as his employer instructed. After cleaning the area, he stood up and his left glove became caught in a roller. He did not recall any warning signs at the end of the conveyor belt where he was hurt.

{¶ 11} Appellants also submitted Dr. Igor L. Paul's expert affidavit that stated "Aldridge was using the debarker and conveyor belts in a reasonably foreseeable manner when the incident occurred." Dr. Paul opined that "[t]he area where the incident occurred (at the transfer point between the horizontal debarker mulch collecting conveyor and the take-up end of the inclined waste conveyor) could not have been effectively and efficiently cleared of mulch if the conveyor belts were turned off while the machines were being cleaned. Normal tail pulley side guards on the inclined conveyor would have allowed safe cleaning of this area without shutting down the conveyors." He opined that Reckart deviated from the standard of care applicable to conveyor belt manufacturers. "The Safety Standards for Conveyors and Related Equipment" established by the American Society of Mechanical Engineers (ASME) set forth the recommended minimum standards for conveyor belts." Section 5.9.3. states that "[i]n general, nip and shear points shall be guarded unless other means to assure safety are provided." Section 6.1.1, which relates to conveyor belts, states:

"(a) Nip and shear points shall be guarded. Typical locations are:

(1) at terminals, drives, take-ups, pulleys, and snub rollers where the belt changes directions;

(2) where belts wrap around pulleys;

(3) at the discharge end of a belt conveyor;

(4) on transfers and deflectors used with belt conveyors;

(5) at take-ups."

He stated that "the two belt conveyors supplied by Reckart Equipment were defective, did not meet...