Jeffrey N. Brookover and Susan Brookover v. Flexmag Industries, Inc.
| Decision Date | 29 April 2002 |
| Docket Number | 02-LW-1926,00CA49 |
| Citation | 2002 Ohio 2404 |
| Parties | JEFFREY N. BROOKOVER AND SUSAN BROOKOVER, Plaintiffs-Appellees/Cross-Appellants v. FLEXMAG INDUSTRIES, INC., Defendant-Appellant/Cross-Appellee Case |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: John Kenneth Felter and Dana Zakarian Exchange Place, 53 State Street, Boston, Massachusetts 02109; Timothy M. Fox and Carl A. Anthony, 88 East Broad Street, Suite 1980, Columbus, Ohio 43215-3506; and Michael L. Close, 115 West Main Street, Suite 100, Columbus, Ohio 43215-5043
COUNSEL FOR APPELLEES: Edward L. Clark and James E. Arnold, 471 East Broad Street, Suite 1400, Columbus, Ohio 43215; and John E. Triplett, 424 Second Street, P.O. Box 739, Marietta, Ohio 45750
This is an appeal from a Washington County Common Pleas Court judgment in favor of Jeffrey N. Brookover and Susan Brookover, plaintiffs below and appellees/cross-appellants (appellees) herein.
Flexmag Industries, Inc., defendant below and appellant/cross-appellee (appellant) herein, raises the following assignments of error for review:
Appellees (and cross-appellants) raise the following cross-assignments of error:
On June 19, 1997, appellee's[1] hand became entangled in an inrunning nip point on a calendar machine located at appellant's facility. Appellee subsequently filed a complaint and alleged that appellant committed an intentional tort. Appellee's complaint asserted, inter alia, that appellee fell over a "stop bar" and his hand became entangled in the rollers of the calendar. This caused appellee to suffer a crushed right hand, third degree burns, and amputation of his second, third, fourth, and fifth fingers of his right hand.
On November 30, 1999, appellant filed a motion for summary judgment. In its motion, appellant argued that at the time of appellee's accident, appellee was working in an area where employees would not be present during the normal operation of the calendar. Appellant asserted:
"[Appellee] was engaged in a unique and temporary activity, and was in an area not normally used by operators of the calendar, and Flexmag could not, therefore, reasonably anticipate that injury was substantially certain to occur."
Appellant claimed in its motion that the particular nip point that caused appellee's injury is approximately forty-four inches above the floor. Thus, appellant reasoned, "[t]he location of the nip, itself, provided reassurance that no one would be caught."
On December 23, 1999, appellee filed a memorandum in opposition to appellant's summary judgment motion and argued that genuine issues of material fact remained for resolution at trial. Appellee claimed that during the normal operation of the machine, an employee would work within inches of the machine's rollers.[2] Appellee further argued that appellant: (1) knew a guard on the calendar was missing; (2) knew of prior incidents caused by the lack of machine guarding; (3) knew that the floor around the calendar machine was slippery; (4) knew that it did not have a machine specific lockout procedure; and (5) knew that it lacked proper safety training.
After reviewing the evidentiary materials, the trial court denied appellant's motion for summary judgment. The case proceeded to a jury trial and the voluminous evidence adduced at trial reveals the following facts.
In March of 1997, appellant, in pursuit of an expansion, acquired the calendar from its previous owner, RJF International. Appellant uses the calendar machine to produce a rubberized magnetic sheet that appellant then sends to other manufacturers to use to create flexible magnets.
When the calendar first was installed at appellant's plant, a piece of plexiglass covered part of the back side of the calendar machine. At some point prior to appellee's injury, the plexiglass was removed.[3]
The calendar machine has four rolls that are constructed of heavy steel. Each of the four rolls is thirty-six inches long and sixteen inches in diameter. Two of the rolls are located next to each other at the top of the machine. The roll in the front is called the "front" or "drive" roll and the roll in the back is called the "offset roll." Located underneath the front roll is the "middle roll," and underneath the middle roll another roll is located ("the bottom roll"). The front roll and the offset roll are usually heated between 290 and 300 degrees. Both the middle roll and the bottom roll are cooling drums. Four air nozzles are located on the machine that help cool the drums.
The point between the middle roll and the front roll is an "inrunning nip point." An inrunning nip point occurs when two rolls run in the same direction. An inrunning nip point poses a danger to a worker who comes into contact with the nip point.
When the calendar was first installed at Flexmag, a plexiglass guard or shield[4] covered the back side of the calendar machine and, consequently, covered the inrunning nip point. Evidence exists that the plexiglass served a dual purpose. The first was to keep crumbs from hitting the sheet as it was being produced. The second was to keep employees "out of the general area."
Ordinarily, the plexiglass remained in place. During the start up of the machine, however, a worker needed to remove the plexiglass. The plexiglass ordinarily did not need to be removed for any other purpose If an employee needed to remove grease from the back of the machine and the plexiglass, the machine would not be "locked out."[5]
About a week or two prior to the accident, appellee informed Paul Chalfant, appellee's immediate supervisor, that the plexiglass was missing and that it needed to be replaced. Chalfant stated that he would "look into it." Unfortunately, the plexiglass was not replaced prior to appellee's injury.
The operation of the calendar requires two employees. One employee works on the front and one works on the back. The employee who works the back granulates material into "compound," places the compound into a bin, and rolls the bin over to the calendar against the "stop bar." The "stop bar," which is located on the floor, prevents the bin from rolling into the back of the calendar. Once the bin is in place, the employee then shovels the compound into the calendar.[6]
When shoveling the compound into the calendar, pieces of the compound (or "crumbs," as Flexmag's employees refer to it) often fell to the floor. The floor at the back of the calendar became slippery from the crumbs and was a constant problem. Employees stated that the floor would become slippery no matter how careful a worker was.
In addition to the crumbs creating a slippery surface, grease and oil often dripped from the machine and accumulated on the floor around the calendar. The grease and oil contributed to the slippery condition of the floor.
Part of the employees' job was to sweep and clean the area around the calendar machine. Appellee stated, however, that Appellee also stated that employees tried to sweep up the crumbs, "but it was almost impossible to keep it swept up all the time."
One employee stated that he thought that the combination of the oil, the grease, and the crumbs on the floor created a dangerous condition. Several employees stated that when working at the back of the calendar, the operator was required to get close to the rollers.[7] One employee stated that he was not uneasy about shoveling compound into the calendar.
At the time of appellee's injury, appellee was employed as a set-up supervisor. His duties required him to assist other employees with operating the machinery within appellant's facility. Appellee sometimes needed to help the other employees solve problems with the machine.
On June 19, 1997, Flexmag employee Mike Irvin advised appellee that he was having "crumb problems" with the calendar machine. The crumbs originated from the opening located at the top of the machine where the employee shoveled the compound into the calendar. As the employee shoveled the compound, crumbs often fell and landed on the rollers of the machine. When the calendar machine was having "crumb problems," the rubberized sheet would become blemished. A blemished sheet would not meet production standards and, thus, the employee would need to recycle the blemished sheet through the manufacturing process.
To alleviate the crumb problem that caused the blemishes employees used air hoses located on and near the calendar. The normal procedure was for the employee to hold the air hose and to blow the crumbs...
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