Chairez v. James Hamilton Const. Co.
| Decision Date | 15 May 2009 |
| Docket Number | No. 28,201.,No. 27,581.,27,581.,28,201. |
| Citation | 215 P.3d 732,2009 NMCA 093 |
| Parties | Maria CHAIREZ, Individually and as Personal Representative of the Estate of Juan Chairez, Leonel Chairez, Mirna Ramirez, Rosa Isela Ceballos and Abraham Chairez, Plaintiffs-Appellants, v. JAMES HAMILTON CONSTRUCTION CO., and RC Ribble Company/N.C. Ribble Co., Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
Tucker Law Firm, P.C., Steven L. Tucker, Santa Fe, NM, Scherr & LeGate, P.L.L.C., James F. Scherr, Javier Espinoza, Jeffrey B. Pownell, El Paso, TX, for Appellants.
Cervantes Law Firm, P.C., Joseph Cervantes, Las Cruces, NM, L. Helen Bennett, Jeffrey A. Dahl, Law Offices, P.C., Jeffrey A. Dahl, Albuquerque, NM, for Appellee James Hamilton Construction Co.
Modrall, Sperling, Roehl, Harris & Sisk, P.A., Kenneth L. Harrigan, Stan N. Harris, Albuquerque, NM, for Appellee N.C. Ribble Co.
{1} In this appeal we address a facet of strict liability concerning a manufacturer's liability when, after delivery, a product is altered by the user. The product involved is a portable rock crushing plant designed by Defendant N.C. Ribble (NCR) and delivered to Defendant Hamilton Construction Company (Hamilton) in 1981. After the rock crusher was delivered, it was modified, apparently to make it easier for a worker to gain access to the feed box of the machine to clear rock jams or to maintain mechanical parts. Part of the modification included the removal of a metal shield, which removal exposed a moving flywheel. Juan Chairez, Plaintiff's decedent and an employee of Hamilton, died after an accident in which his leg was broken by the moving flywheel while he was trying to clear a rock jam. Mr. Chairez died in the hospital from a blood clot.
{2} Plaintiff's theory against NCR was that the modifications to the machine were foreseeable and therefore that NCR was strictly liable. Plaintiff's theory against the employer, Hamilton, was that Hamilton was liable under Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, 131 N.M. 272, 34 P.3d 1148 ().
{3} The district court granted both Defendants summary judgment, and Plaintiff appeals. On the strict liability claim against NCR, we adopt the rule that even if a product is substantially altered, a manufacturer may still be strictly liable if those changes were foreseeable. Applying that rule, we conclude that there are genuine issues of material fact as to foreseeability and reverse the summary judgment in favor of NCR. We conclude that Delgado does not apply and affirm the summary judgment in favor of Hamilton.
{4} Chairez was working for Hamilton as part of a crew crushing rocks to be used on road projects. A rock crushing machine is commonly used to process rock into aggregate for use in highway construction. The heart of the machine is a jaw crusher. Around the crusher, Defendant NCR built a portable crushing plant designed to house the machinery of the crusher and deliver rocks to be crushed. This structure had a chassis and wheels and housed an engine and the crusher machinery. Above the crusher was a feed box surmounted by a platform that had guardrails with safety chains. Rocks were dumped into a hopper at the front end of the structure and were fed back to the crusher by a vibrating feeder, which eventually delivered the rocks to the feed box and crusher's jaws. The platform and guardrail were located 45 inches above the jaw crusher and covered much of the feed box when the machine was operating. Below the platform, which extended further beyond the rear of the feed box, sat two large flywheels at opposite ends of an axle that were turned by a 325-horsepower diesel engine and that supplied power to the crushing mechanism.
{5} Rocks commonly jam at the throat of the jaw crusher and have to be removed. Norman Ribble, who designed the machine, described different ways to clear the jams. While standing on the relative safety of the platform, a worker could use a shovel tooth or a tooth from the bucket of a front-end loader attached to a chain to try to pull or move the offending rocks to alleviate the jam. Sometimes workers used pry bars or tied a chain around a large rock that was causing a problem and used a loader to help lift it out. Sometimes a worker stopped the machine and removed rocks by hand. In this case, there was evidence that the Hamilton crew typically used a tooth attached to a chain and dangled the tooth into the rock jam in an attempt to reorient the rock or rocks or break them, thereby freeing the jam.
{6} Ribble testified that the machine should be turned off when a worker attempts to remove a jam. He stated that it is up to the customer to decide how to remove the jam because it would depend on the jam and what equipment the customer had available to accomplish the work. There was evidence that Hamilton trained its crew members (including Chairez) to turn the machine off before attempting to remove a jam but that workers sometimes attempted to remove jams while the machine was operating. The instruction manual stated that entry into the crushing chamber (feed box and crusher) when the machine was operating could result in extreme injury or death and warned workers not to stand on or above the jaw while it was in operation.
{7} Ribble explained that there is a danger in any crushing plant that cannot be engineered out. He stated that rock crushers have been a staple of the industry since 1951, and it is common knowledge not to go into the jaw of the machine while it is operating.
{8} As designed and delivered by NCR, the machine had a platform with guardrails above the feed box. There were two chains that could be removed to gain access to the feed box and jaw crusher. Ribble explained that workers sometimes had to perform maintenance on the machine but that the machine would have to be off when that was done. He also explained that the machine was not designed for anyone to be inside the feed box while the machine was operating. There were no steps or footholds designed inside the feed box because the feed box was designed to create a clear flow of material. It was not designed with maintenance in mind. Anyone who needed to get into the feed box to perform required maintenance would have to "crawl down inside of that box." He testified that "it's not an easy thing to climb into."
{9} At some point in the life of the machine it was modified. The fixed floor of the platform had been partially cut away, and a hinged, sliding, removable grate had been added. Below the grate, a step had been added approximately 17 inches below the platform. We refer to this step as the new step or the lower step. Beside the new step is a large flywheel that turns when the machine is operating. When the machine was delivered, the flywheel was completely enclosed and covered by a metal shield. However, the metal shield covering the flywheel was subsequently cut away, leaving the flywheel exposed. Photographs indicate that the step was attached next to the area where the metal shield had been cut away. After this change, the flywheel was partially enclosed, but there was an opening where there was no protection, and a person on the step would be next to the open area in which the flywheel turned. There is no evidence about whether the modifications—the addition of the grate and the lower step and the removal of the metal shield covering the flywheel— were made at the same time or at different times.
{10} On the day of the accident Chairez was in charge of shutting down the machine if there were jams or problems. As part of training Chairez received, he was taught to "lock-out/tag-out," i.e., to turn off the machine before clearing any jams. There was evidence that labels were placed on the machine warning workers not to be inside the machine while it was operating. On the day in question a jam occurred, but Chairez did not turn off the machine. Instead, he climbed into the feed box, knelt on the lower step, and was attempting to clear the jam with his hands by tossing small rocks back up onto a pile. No one was supposed to be on the lower step when the machine was operating. Two of his coworkers, including his supervisor, Mr. Randolph, waved at him to come out of the feed box. One of his coworkers, Mr. Ward, said he thought Chairez was coming out and he (Ward) went to turn off the machine. About that time, Chairez's left leg contacted the flywheel. As a result, his leg broke. He was taken to the hospital for treatment, where he died from a blood clot.
{11} Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582 (citation omitted). Roth v. Thompson, 113 N.M. 331, 334-35, 825 P.2d 1241, 1244-45 (1992) (citations omitted).
{12} As an initial matter, the parties correctly note that there are no New Mexico cases specifically addressing the liability of a manufacturer for injuries caused by a product that has been modified since the time of its manufacture. However, there is a jury instruction on the subject, which states:
In order for a supplier ... to be liable, the injury must have been caused by a...
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