Kozlowski v. John E. Smith's Sons Co.
| Decision Date | 27 February 1979 |
| Docket Number | No. 76-368,76-368 |
| Parties | Sophie M. KOZLOWSKI, Plaintiff-Appellant, v. JOHN E. SMITH'S SONS COMPANY et al., Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
Peter W. Bunde and Ronald L. Wallenfang, Milwaukee, argued, for plaintiff-appellant; Quarles & Brady, Milwaukee, on brief.
Joseph D. McDevitt, Milwaukee, argued, for defendants-respondents; Terry E. Johnson and Borgelt, Powell, Peterson & Frauen, S. C., Milwaukee, on brief.
On February 27, 1974 Andrew Kozlowski was killed in an industrial accident at his employer's plant, Patrick Cudahy, Inc. of Cudahy, Wisconsin. The wife of the decedent brought a product's liability action against John E. Smith's Sons Co. (hereinafter Smith's), the manufacturer of the sausage stuffing machine that Mr. Kozlowski was in the process of cleaning at the time of his death. Following the conclusion of the testimony in the jury trial, the court granted the defendant's motion for directed verdict and dismissed the case. The plaintiff's motions for reconsideration, for directed verdict in favor of the plaintiff and for a new trial on damages were denied. The plaintiff appeals the judgment of dismissal entered on November 15, 1976.
On February 27, 1974 at approximately 6:30 a. m. Mr. Kozlowski was cleaning the last of eight sausage stuffers located in his work area. Mr. Kozlowski had five to six years experience in the job classification of sausage stuffer. His duties required him to clean each sausage stuffing machine before being put into daily operation. The cleaning was required because after the machines were hosed down nightly, a paraffin oil was applied to prevent rusting in the cylinders of the machines.
The stuffing machines used by Patrick Cudahy were manufactured by the defendant Smith's and were known in the trade as the Series 38, 500 lb. Buffalo air stuffers. The machine consists of a large cast iron cylinder measuring 3 feet in diameter by 4 feet high; inside the cylinder is a conformed piston weighing over 500 lbs. The piston is not connected to a tie rod, but rather floats free within the cylinder. The piston is moved by air pressure, and when the machine is operating, pressure may be maintained as high as 125 lbs. per sq. inch. The machine's full pressure capacity is 150 lbs. per sq. inch. However, when the pressure is raised above 140 lbs. per sq. inch a pressure release valve takes over to prevent the pressure from reaching its maximum. At the top of the cylinder there is a 200 lb. safety ring which has a smaller inside diameter than that of the piston or cylinder. When the stuffer is in operation a metal cover operated by a screw mechanism clamps the cover over the top of the machine. An air pressure regulator is located on the side of the unit to facilitate controlling the pressure by hand.
During a cleaning of the Buffalo air stuffer the machine's cover is removed and the piston is raised to the top of the cylinder, the safety rings keeping the piston in place. George Sawchuk, a co-employee, described the events prior to and after the accident. He explained that Mr. Kozlowski had raised the piston and was wiping it off when the piston burst through the safety ring. Sawchuk stated the room was immediately engulfed in ammonia fumes and water was spilling from the ceiling. Mr. Kozlowski had been knocked to the ground and efforts by employees to remove him were futile as the saturation of ammonia fumes was at a fatal level. He was eventually removed by firemen wearing oxygen masks and was pronounced dead on arrival at a local hospital. Upon examination of the body, the medical examiner determined the cause of death was ammonia asphyxiation.
Located above the machine were the ammonia pipes used to cool the sausage products. At the time of the machine's malfunction while under maximum pressure, the cylinder and the piston jutted beyond the safety line of the machine, fracturing the safety ring into five pieces, one of which ruptured the ammonia pipes. Upon examination of the work area following the accident, five pieces of the safety ring were found on the floor. At this time the piston was resting in a tilted position at the top of the cylinder. Although the medical examiner found an area of swelling on the decedent's head, no medical testimony established that Kozlowski had been hit by pieces of the flying safety ring.
The particular age of the malfunctioning Series 38 Buffalo stuffer is in dispute. It was testified to that the machine was first marketed in 1938 and underwent no substantial change in design until 1971. At that time a by-pass valve was incorporated into the machine's design as standard equipment for economy as well as safety reasons. The by-pass valve was developed as an optional piece of equipment in July, 1946. Since that time the valve was advertised in trade publications and was listed on Smith's repair parts list as an optional device. The purpose of the by-pass is to prevent air pressure from rising above 10 lbs. per sq. inch when the machine is being cleaned. The 10 lbs. pressure is sufficient to raise the piston for cleaning. A Cudahy representative stated that the company had no knowledge of the safety by-pass valve's availability until after the accident.
It should be pointed out that a sales representative of Smith's testified to making two sales calls on the Cudahy plant between 1971 and February, 1974, but that he had not discussed the safety device with any Cudahy employee. Allegedly, this was because the respective Cudahy personnel, an engineer and purchasing agent, were otherwise occupied at the time of his calls. He further stated that it was the practice in the trade not to make advance appointments when calling upon plant personnel. The Smith's salesman did not at anytime follow up the sales calls with letters explaining the purpose of his visits during the time referred to.
The record discloses that between 1943 and 1960 Cudahy had purchased from Smith's 16 Buffalo stuffers and none of these machines came equipped with the safety valve invented in 1946. Plaintiff's Exhibit 9 indicates that five Series 38 Buffalo stuffers had been purchased by Cudahy between 1943 and January, 1946, before the by-pass valve was marketed. However, the incomplete business records and files of Cudahy prevented the litigants from ascertaining the actual purchase dates of all but five of the machines, including the machine in question whose serial number could not be determined.
Evidence was received that the manufacturer's operation and maintenance instructions failed to set forth the per sq. inch pressure requirement necessary for the safety of the employee when cleaning the machine. A simple warning was contained in the instruction booklet and read: "Always avoid excessive pressures as they are apt to be harmful to the product." The instructions do provide for procedures to be used when conducting a full pressure test. Smith's head engineer, one Harold Schaller, testified that the pressurizing of the piston to operating conditions with the machine cover open was a misuse of the stuffer, as the machine's safety ring was not designed under any circumstances to withstand full pressure capacity of the piston in an open position.
Despite the absence of a manufacturer's suggested procedure for pressurization during the machine's cleaning, evidence reveals that sausage stuffers at Cudahy had established by custom and practice safety procedures known to Kozlowski and other full time employees. Mr. Sawchuk stated the following procedure was used: raise the piston to the top of the cylinder under 5-10 lbs. pressure; then completely turn the pressure off. Sawchuk explained that there was no specific rule on whether to turn the pressure off before or after the cleaning of the piston. Adolph Drobka, Cudahy's processing department superintendent, testified to the pre-accident existence of verbal procedures for safe pressurization during cleaning; he did not specify the procedure but stated every stuffer knew of the instructions. James Treat, the safety director and utilities engineer at the Cudahy plant, testified that a post-accident investigation revealed that contrary to the accepted practice the air pressure throttle was found in a wide open position. Robert Lex, a Cudahy plant engineer, gave the opinion that if the Cudahy post-accident procedure for pressurization had been followed, the accident would not have occurred.
Evidence was also introduced that the machine in question had been in a state of disrepair for at least one year. Mr. Sawchuk stated that the piston would rise slowly and then stick 8-10 inches from the top and then "kind of go up quite a bit faster so you had to be careful." This malfunction was brought to the attention of the maintenance department on more than one occasion and the problem remained unsolved. Sawchuk stated he knew that Mr. Kozlowski was aware of the problem.
One Gerald Waldburger, a safety specialist for the Department of Industry, Labor and Human Relations, testified to making an investigation into the accident. He concluded that if the machine had been properly maintained by Cudahy the accident could have been prevented. Further, he considered that his conclusion concerning the employer's failure to keep the machine in good repair excludes the possibility that Kozlowski caused the accident. He saw no reason to evaluate the design adequacy of the machine as he had concluded the machine's disrepair was the cause of the accident. Cudahy was cited by OSHA for safety violations for failure to exercise safety precautions in not supplying gas masks in light of the presence of ammonia. Issues:
1. Did the trial court err in directing a verdict for the defendants based upon the plaintiff's failure to introduce evidence sufficient to raise a jury question on whether:
a. the defendant manufactured an unreasonably...
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