Banks v. Iron Hustler Corp., 1396

CourtCourt of Special Appeals of Maryland
Writing for the CourtWILNER
Citation59 Md.App. 408,475 A.2d 1243
Docket NumberNo. 1396,1396
Decision Date01 September 1983

Eugene A. Shapiro, Baltimore, for appellant.

Thomas N. Biddison, Jr., Baltimore, with whom were Gallagher, Evelius & Jones, Baltimore, on the brief, for appellee.

Argued before LOWE, WILNER and ALPERT, JJ.

WILNER, Judge.

This is a product liability case. Anderson Banks was injured at work when his hand became caught on a conveyor belt; he sued the manufacturer of the conveyor, Iron Hustler Corporation (Iron Hustler), claiming both strict liability and negligence in design. The Circuit Court for Baltimore City, by granting Iron Hustler's motion for directed verdict, found as a matter of law that there was no liability. Hence this appeal.

We shall reverse.

The accident occurred on May 25, 1979, at the Brooklyn Salvage and Waste Company (Brooklyn), where Mr. Banks was employed. Brooklyn had purchased the conveyor from Iron Hustler in 1966. Its function was to move scrap metal up an inclined plane from a processing table to waiting railroad cars. The conveyor was forty-four feet long, and, although there was no evidence as to the precise angle of the incline, it appears from certain photographs and from estimates made by one of the witnesses that the conveyor began at about ground level and rose to an elevation of over thirteen feet.

The three-foot wide belt is a rather heavy piece of rubber, and it is therefore necessary to provide support for it on both top (the upper part of the belt actually carrying the scrap up to the railroad car) and bottom (the empty part making the downward return to the processing table). When purchased from Iron Hustler in 1966, the bottom part of the belt was supported by four flat pieces of metal. The exact placement of those metal pieces along the forty-four foot length is not revealed in the record; for purposes of hypothesis on cross-examination of appellant's expert witness, it was assumed that they were spaced at about ten-foot intervals. On that assumption, their elevations would have been approximately two feet, six feet, nine to ten feet, and twelve to thirteen feet, respectively.

Each of these flat metal supports created what has been referred to as a "nip point," i.e., at the point that the belt moved downward over the metal piece, the danger was presented of anything coming into contact with the belt being caught between the moving belt and the stationary metal.

At some point after the conveyor was installed and placed into operation, Brooklyn became dissatisfied with the system of flat metal supports along the bottom. According to the foreman, George Easto, the metal pieces acted like razors, and began shredding the belt as it passed over them. To remedy that problem, Brooklyn removed the four flat metal supports and installed in their place fourteen rollers. The rollers not only avoided the shearing effect, but, because there were more of them, they provided better support for the belt. They also, of course, created ten additional "nip points," making one at about every 2.8 feet.

When manufactured and sold to Brooklyn, the underneath part of the conveyor was unshielded; there was no guard protecting a person working in the vicinity agaisnt inadvertent contact with the belt or the "nip points." No such shield was ever added by Brooklyn.

Mr. Banks and one other employee were assigned to operate the conveyor. Banks, in particular, was responsible for seeing to it that the scrap was carried up properly; if a piece of metal got stuck or became positioned so as to prevent other pieces from being carried up, it was his job to remove that piece from the top part of the belt. Depending on the nature of the problem, the belt might or might not be stopped to permit Banks to do that. Mr. Easto explained that, if a piece of metal got caught while moving up the belt, the practice was not to stop the belt, but rather "to keep the belt moving and try to keep it going." Banks confirmed that practice:

"THE COURT: Well, put it this way--were you supposed to take debris off the belt when the belt was moving?

THE WITNESS: That was my job.

THE COURT: But, were you supposed to do it while the belt was still moving?

THE WITNESS: Yes, ma'am. That was my job.

THE COURT: Weren't you supposed to stop the belt first?

THE WITNESS: (Indicating negatively). We don't stop that belt for nothing, for nothing going up there, because if you stop it, it['s] going to hang up."

If, on the other hand, a piece of metal was found hanging off the side of the belt, the proper procedure was to stop the belt before pulling it off. According to Banks, however his job was to "stay on the belt" and not to operate the cut-off switch. If the belt was to be stopped, he would call over to his co-worker, who was positioned near the switch and who was responsible for stopping the belt.

The accident happened when Banks noticed a piece of metal hanging over the other side of the belt and, in Banks' words, threatening "to tear the machine all to pieces." He called over for his co-worker to throw the switch, but the co-worker was not there; and so the machine was not stopped. Banks walked over to the other side of the belt and reached up to grab the piece of metal. In the course of doing so, he slipped on some loose debris under the belt and caught his hand in one of the "nip points." The record does not indicate which of the fourteen "nip points" was involved.

The gravamen of Banks' action, with respect to both the negligence and strict liability claims, was the design and sale of the conveyor by Iron Hustler without an adequate shield. That, he averred, made the machine defective and dangerous.

In support of that contention, Banks produced the testimony of Edward B. Landry, a safety engineer who for many years had been director of safety and health for the Post Office Department. Mr. Landry was familiar with the conveyor systems used by the Post Office and opined that, although there is a variance between conveyors in terms of what they have to convey, "the belt conveyor that is used for moving material, packages and loose material, bulk material, is basically the same whether it is used in the postal service or some place else." Landry said that he was "knowledgeable of conveyors used in scrap yards," that he had seen them in operation and had examined them. The court accepted him as an expert in the field of safety engineering.

Mr. Landry stated that the "nip points," whether caused by flat metal pieces or rollers, created a hazard that might not be obvious to a workman. His testimony in that regard was as follows:

"Q [By Defense Counsel] Now, this pinch point that you have testified to, where the roller and the belt meet, that creates, rather, an obvious hazard. Nobody would purposely stick their hand in that particular location, would they?

A Well, I would have trouble labeling it an 'obvious' hazard. I might find it an obvious hazard in terms of my experience, but whether or not a workman would appreciate the significance of that pinch point when he was engaged in doing some other part of his work, I think is very speculative.

Q Well, you heard Mr. Banks testify that it was an obvious hazard, as far as he was concerned, didn't you?

A I think he was aware that if you deliberately put your hand in there, that something would happen to your hand." 1

Technology, he said, was available in 1966 to protect against that hazard, whether the hazard was created by flat metal supports or rollers. The "technology" was to "shield off the underside of the conveyor framework," which could be done by a piece of either sheet metal or "expanded metal." Such shields were used by the post office and, for a cost of about $300, could have been put on the conveyor sold to Brooklyn. Mr. Landry stated that at least one other manufacturer currently provided guards on its conveyors as a uniform practice, although he did not know if that was its practice in 1966.

From his examination of the Brooklyn conveyor and his other knowledge and experience, Landry opined that the conveyor system installed at Brooklyn "was inherently dangerous and defectively designed because of the fact that the underside of the conveyor system presented a known hazard and risk to a person who would be working in that area." He stated further that "there was a direct relationship between the defective design, as I would term it, from a safety engineering point of view, and Mr. Banks' accident." From a safety engineer's point of view, he said, Iron Hustler "did not act prudently in the interest of safety." Ultimately, he concluded, "my opinion is that the absence of the guard was a direct cause of Mr. Banks' injuries."

Mr. Landry was asked several times about the effect of Brooklyn's modification of the machine--its replacement of the four flat supports with the fourteen rollers. It made no difference, he said; whether using flat pieces or rollers, the prudent thing was to shield the undercarriage to prevent contact with the "nip points." He explained:

"I would simply say that this case here, on a conveyor system, we know that accidents happen. We can't stop the camera when someone is in a position to get hurt, and all I would say to you, in my language as a safety engineer, is that the existence of either the strips or the rollers is simply waiting for an accident to happen, and if we know what to do to prevent that injury from happening, and it can be done within reasonable economical means, then the logical thing is to apply it."

The increase in the number of "nip points" occasioned by replacing four supports with fourteen would tend to increase the probability or risk of injury, Landry conceded, but not the underlying hazard itself.

Upon this record, the court entered the directed verdict, seemingly on two bases: (1) that as a matter of law, the hazard was patent and...

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