Facendo v. S.M.S. Concast, Inc.

• Decision Date: 19 January 1996
• Citation: 286 N.J.Super. 575,670 A.2d 44
• Parties: , Prod.Liab.Rep. (CCH) P 14,564 David FACENDO, Plaintiff-Appellant, v. S.M.S. CONCAST, INC., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 575

286 N.J.Super. 575

670 A.2d 44, Prod.Liab.Rep. (CCH) P 14,564

David FACENDO, Plaintiff-Appellant, v. S.M.S. CONCAST, INC., Defendant-Respondent.

Superior Court of New Jersey,

Appellate Division.

Argued Dec. 13, 1995.

Decided Jan. 19, 1996.

Clark W. Convery, Metuchen, for appellant (Convery, Convery & Shihar, attorneys; Mr. Convery, on the brief).

Harold I. Braff, Livingston, for respondent (Braff, Harris & Sukoneck, attorneys; Stephen Wellinghorst and Marc Le Mieux, on the brief; Mr. Braff, of counsel).

Before Judges SHEBELL, WALLACE and NEWMAN.

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

Plaintiff, David Facendo, filed an action against S.M.S. Concast Inc. ("Concast"), seeking damages for injuries he sustained on September 28, 1989, while employed by Raritan Steel Company ("Raritan"). ¹ The case was tried to a jury, commencing on November 14, 1994. During trial, the judge requested proposed jury charges from both counsel. Plaintiff requested the court to charge the heeding presumption based on Molino v. B.F. Goodrich Co., 261 N.J.Super. 85, 617 A.2d 1235 (App.Div.1992), certif. denied, 134 N.J. 482, 634 A.2d 528 (1993), and Coffman v. Keene Corp., 133 N.J. 581, 628 A.2d 710 (1993). However, the judge ruled that the heeding presumption was not applicable, as it could not be presumed that plaintiff would have quit his job, or bid for a transfer, after believing that Concast's product was allegedly defective.

On December 2, 1994, the jury found that Concast's machine was defective because of a failure to warn. The jury also found that the negligence of Raritan was not an intervening cause which destroyed the causal connection between the effect of Concast's failure to warn and plaintiff's injuries. However, the jury found that Concast's failure to warn was not a proximate cause of plaintiff's injuries. Accordingly, the judge entered judgment in favor of Concast.

Plaintiff filed a motion to set aside the verdict, to enter judgment in favor of plaintiff on the issue of liability, and to grant a trial on the issue of damages. In the alternative, plaintiff asked for a new trial on all issues. On January 6, 1995, an order was entered denying plaintiff's motion.

Ferrco was engaged by Raritan to prepare specifications for a five strand continuous billet casting machine for Raritan. The specifications set forth the minimum requirements which the bidder should follow and required the successful bidder to provide eight (8) copies of the installation and operation and maintenance manuals prior to shipment of the casting machine equipment. Concast was awarded the contract. Raritan used the machine to mold billets. In the process, liquid steel enters a thirty-two (32) inch long mold. Cooling of the steel begins to form a skin 1/3 to 1/2 thick inch around the billet. The billet enters the spray chamber where nozzles spray high velocity water onto the billet. This produces a shell while the inside is totally liquid steel.

The operating manual prepared by Concast stated that: "Liquid steel falling on even a small amount of water can cause explosions. All areas where steel spillage is likely must be kept dry." Concast's manual was located in the office of Raritan's Manager of Continuous Casting, who was ultimately responsible for the training of new and promoted employees. According to the manager, this manual was used primarily as a reference guide for operation, maintenance and supervision. The manager supervised the casting crew which included, among others, the mold operators, torch operators and billet handlers. He testified that Raritan had a "hands-on" training program with regard to the operation of the casting machine, because "[i]t's impossible for me to tell a new employee or my supervisor, or another operator to explain to a new employee, or person coming into our shop what could all happen."

The manager explained to the jury the process of molding billets and then stated that when liquid steel mixes with water you get a slight reaction called a breakout. He noted that some people call it an explosion, but basically it is a reaction in which a sudden release of steam creates hydrogen and makes a loud noise, which produces green and orange flames. He explained that when new employees come onto the caster they go through a progressive learning process and if they are leery or scared they can bid out of the casting department. No manuals are given to any employee for training as it is all "hands on."

Breakouts occur inside the spray chamber, but can be felt in the casting floor area. However, there are also alarms that will alert the mold operator that a breakout has occurred. The manager stated that it would be impossible for an employee at Raritan not to be aware of breakouts and the explosions that normally follow, as there are approximately twenty (20) to thirty (30) breakouts a month. The explosions vary in intensity. Sometimes they shake the floor and can be heard by employees outside of the casting area. He testified that explosions are a part of the regular operation of the facility.

Raritan's personnel director testified on behalf of plaintiff. He stated that Raritan employs about 600 full time employees in two major divisions: steel production and log production. The casting department, where plaintiff was employed, is one of the twelve departments within the steel production division.

Plaintiff was employed by Raritan for over three years. He was first employed on July 5, 1985, as a temporary summer employee, in the billet yard to grind and line billets. He received a Guide to Temporary Employment when he was hired. This handbook contained no statement on any common plant hazards, nor did it state that contact between liquid steel and even a small amount of water would cause an explosion. He was not told about any prior explosions.

Plaintiff returned as a temporary employee for the summer of 1986. He received the same Guide to Temporary Employment as before and read it from cover to cover. He worked inside the steel mill and helped the billet handler. He was trained by a billet handler.

Plaintiff became a full time employee as a billet handler on September 8, 1986. He received an employee's handbook in November 1986, and read it. The handbook did not list any common plant hazards, nor comment on potential explosions. In 1988, plaintiff received a Safety and Health Manual and read the entire manual. This manual listed common plant hazards, but did not mention explosions from liquid steel mixing with water. All of the manuals were prepared by Raritan, but none made any reference to explosions occurring on the caster floor. On April 17, 1988, plaintiff went from a billet handler to a second torch operator. He was trained by a second torch operator, but stated that he was not told about any danger of explosion.

On July 17, 1988, plaintiff went from second torch operator to first torch operator. On May 6, 1989, he began training as a second mold operator, while still a first torch operator. Plaintiff testified that he was not trained by any single person, but by the first mold operator and other second mold operators. He also stated that the casting supervisor did not give him any outside training. His training consisted of "watch[ing] [mold operators] as they walk around, the way they maneuver all their tools and stuff up there, and just watch the way they are." On August 9, 1989, plaintiff moved from first torch operator to second mold operator.

Plaintiff testified that he never saw a copy of the operating manual prepared by Concast. The manual was not kept in the office of the Personnel Director. In fact, the Personnel Director never saw the manual prior to the trial, and he had been at Raritan for ten years. Plaintiff also stated that he was never told that liquid steel falling on even a small amount of water could cause an explosion.

Plaintiff was second mold operator on September 28, 1989, the day of the accident. Plaintiff explained that at about 1:56 a.m. he heard the alarm indicating there was a breakout. He pulled the launder, a small trough just above the mold to catch spillage, to divert the stream of liquid steel. The launder had already been used and had some material in it. While he was attempting to plug the flow of molten steel, there was an explosion. Plaintiff was thrown to the back wall by the explosion, where he was seen with oil splattered on his face mask. Plaintiff was transported to the hospital by ambulance. He came under the care of numerous doctors. He received his last treatment for injuries about two (2) years after the accident in September 1991.

The total time that elapsed from the alarm to the explosion was fifteen to twenty seconds. Prior to the light and the alarm, plaintiff did not receive any indication that there was a problem on the caster floor or the spray chamber. He was wearing a hard hat, glasses, face shield, fire resistant jacket and pants, fire resistant legging, safety shoes and ear plugs.

Plaintiff testified that he was told that a breakout was liquid steel breaking out of a formed billet that was going through the spray chamber. He stated that breakouts happened on a regular basis, but he had never heard any explosions associated with breakouts. He stated that no one ever used the word explosion or described the type of occurrence that happened to him. He also stated that he never heard a noise like the one heard during this incident. Plaintiff stated that when the steel breaks out and hits the water you could get steam, a crackling sound, a popping sound or sometimes no noise. Plaintiff also stated that he did not consider a loud noise an explosion, unless it moved him. Plaintiff stated he never heard any noise associated with a breakout when he was a first torch operator. However, he did observe sparks, "like someone cutting steel ...," which occurred before a breakout. He testified that he never...