Layman v. Braunschweigische Maschinenbauanstalt, Inc., 10449

Citation343 N.W.2d 334
Decision Date29 December 1983
Docket NumberNo. 10449,10449
PartiesWilliam LAYMAN, Plaintiff, Appellant, and Cross-Appellee, v. BRAUNSCHWEIGISCHE MASCHINENBAUANSTALT, INC., a Corporation, and BMA Machinery and Equipment Corporation, a Corporation, Defendants, Appellees, and Cross-Appellants. Civ.
CourtUnited States State Supreme Court of North Dakota

McConn, Fisher & Thune, Grand Forks, Richard S. Roberts, Wheaton, Minn., and Bruce E. Sherwood, St. Cloud, Minn., for plaintiff, appellant, and cross-appellee; argued by Michael F. Daley of McConn, Fisher & Thune, Grand Forks.

Nilles, Hansen, Magill & Davies, Fargo, for defendants, appellees, and cross-appellants; argued by Stephen W. Plambeck, of Nilles, Hansen, Magill & Davies, Fargo.

Dosland, Dosland & Nordhougen, Moorhead, Minn., for amicus curiae, North Dakota Trial Lawyer's Ass'n; appearance by Colleen Saande, argued by J.P. Dosland, Moorhead, Minn.

ERICKSTAD, Chief Justice.

This is an appeal by the plaintiff, appellant, and cross-appellee, William Layman, from a judgment entered by the District Court of Cass County on February 25, 1983, pursuant to an action brought by Layman to recover damages for personal injuries he received on November 14, 1974, in a work-related accident at a beet sugar factory owned by Minn-Dak Farmers Cooperative, Inc. [Minn-Dak], and designed and constructed by Braunschweigische Maschinenbauanstalt, Inc., and BMA Machinery and Equipment Corporation 1 [hereinafter referred to collectively as BMA]. BMA, the defendants, appellees, and cross-appellants, also appeal from the judgment entered in favor of Layman and against BMA in the amount of $17,962.88 plus costs and disbursements.

On December 18, 1972, BMA entered into a written contract with Minn-Dak wherein BMA agreed to design, supply, acquire, and construct for Minn-Dak a sugar beet processing plant on a site located near Wahpeton, North Dakota. Under the terms of the contract, BMA guaranteed the timely construction of the plant to be ready for "start up", defined in the contract as the date Minn-Dak was to commence the slicing of sugar beets to be processed in the plant, on September 30, 1974. Relevant provisions of the contract between BMA and Minn-Dak, enumerating various contractual duties assumed by BMA, include:

"ARTICLE 2.00 "CONTRACTOR will undertake

"2.1 To design, supply, acquire, and construct for OWNER [Minn-Dak] the PLANT, and for this purpose CONTRACTOR [BMA] will:

2.1.1 Design and engineer the final technological process and final lay-out of the PLANT;

2.1.2 Supply or acquire all necessary machinery and equipment and perform all necessary building and civil engineering work as well as installation work for the PLANT ....

"2.2 While performing his contractual obligations stipulated in Clause 2.1:

* * *

* * *

2.2.2 To determine ... under his sole responsibility those parts of the machinery and equipment to be manufactured and/or supplied by CONTRACTOR from Germany;

2.2.3 To subcontract under his sole responsibility the supply of all other parts of the machinery and equipment with suppliers and to subcontract the construction and installation of the PLANT with subcontractors;

* * *

* * *

"2.3 In addition to his contractual obligations stipulated in Clause 2.1 and 2.2:

2.3.1 To supervise and to instruct by specialized and appropriate personnel OWNER's technical staff and operating labor during TRIALS [defined in the contract as mechanical and functional test-runs performed before "start-up", during which the proper functioning of the installed machinery and equipment was to be checked], START-UP, and PERFORMANCE TEST [defined as the test-run after "start-up" during which BMA's performance guarantees under the contract were to be demonstrated and ascertained];

2.3.2 To supervise by specialized and appropriate personnel the technological and mechanical operation of the PLANT for a period of 60 days commencing with START-UP, and at the same time to train OWNER's technical staff and operating labor how to properly operate the PLANT."

The testimony of Gerald Shannon, the general manager and chief executive officer of Minn-Dak, and Florian Sosnitza, a night shift supervisor for BMA at the time Layman was injured, indicates that "start-up" occurred in early November, 1974. Sosnitza testified that the "trials" were performed by BMA prior to "start-up". Shannon testified, however, that BMA never ran the "performance test".

Layman was hired by Minn-Dak on November 13, 1974, as a general laborer. On November 14, 1974, Layman and other workers were directed to shovel syrup, which had spilled from processing machinery to the floor of the plant, into pails for return to the beet sugar process. While so doing, Layman backed into, and was injured by, an unguarded rotating shaft which protruded from a gear box mounted on a processing machine known as a "crystallizer".

The Minn-Dak plant contained eighteen crystallizers which, in the completion stages of sugar beet processing, transform a syrup into crystallized sugar. The trial court, in its findings of fact, described the crystallizers as follows:

"5. A crystallizer is a large cylindric drum that rotates horizontally by an electric motor. Each crystallizer has its own electric motor with an off on switch nearby. The crystallizer has fins that rotate within the crystallizer drum simultaneously while the drum is rotating. In the event the motor should fail, the crystallizer and fins within would stop rotating and within a short period of time, measured in minutes, the syrup inside the crystallizer would become solid. To prevent this from happening in event of a power failure, the gear box for each crystallizer had a device wherein a crank would be inserted into the gear box and a person would manually rotate the crank which in turn would cause the crystallizers to rotate.

"6. The crank would fit on a protruding shaft from the gear box. The shaft is square and protrudes out from the gear box cover several inches. A cover for the protruding shaft had not been installed at the time of the accident."

The gear boxes for the crystallizers from which the rotating shaft protruded were manufactured by a European company, not BMA; however, BMA had been alerted by the European manufacturer that rotating parts had to be "protected against touching by the customer." Plastic guards for the shafts were shipped with the gear boxes from Germany; however, screw holes on the guards were mismatched so that they were unusable. The trial court found that officials of BMA and Minn-Dak agreed orally to have Minn-Dak build guards for the shafts in its workshop rather than wait to have replacement guards shipped from Europe. As part of this verbal agreement, BMA was to give Minn-Dak credit on the plant contract for fabricating the guards. The design and specifications for the replacement guards were made by BMA. Sosnitza took measurements for the guards in the presence of Herman Lauck, a shift maintenance foreman for Minn-Dak, and explained to Lauck the importance of the guards as protection for persons in the vicinity of the gear boxes. Sosnitza testified that he observed completed guards lying on a windowsill in Minn-Dak's workshop several days prior to Layman's accident. He testified further that he informed Lauck several times of the need to install the guards. Prior to the accident, Sosnitza placed barricades at the ends of a narrow walkway located directly in front of the crystallizers to "protect people from the rotating shafts." These barricades, which consisted of wood planks, rope, and other salvage material, were frequently knocked over and had to be reconstructed.

Limitations in United States' visas issued to BMA employees and officials prevented them from performing manual labor at the plant. They were permitted only to supervise and advise. The trial court found that BMA officials had no direct control over the actions of Minn-Dak employees. All matters between BMA and Minn-Dak had to be handled through supervisory personnel of Minn-Dak.

At the time Layman was hired and during his short employment with Minn-Dak, he was given no safety training, nor was he warned of any danger or of the fact that there were no guards on the rotating shafts of the crystallizers. During his contact with the shaft, Layman had his clothing, including boots he was wearing, torn from his body. He was thrown to the floor. The trial court found that at this point in time Layman's injuries were minimal. Layman got up off the floor and then, apparently embarrassed because he had no clothing on, attempted to grab his clothing which was still revolving on the shaft. His arm became entangled in the clothing; he was spun around and fell again to the floor. Injuries sustained by Layman as a result of the mishap included a fracture of the humerus, radius, and ulna of the right arm, a fractured hip bone, and two fractured ribs.

Layman received workmen's compensation benefits in the amount of $18,779.74. Generally, when an employer is in compliance with the workmen's compensation statutes, the employee's exclusive remedy against the employer is limited to recovery under the workmen's compensation statutes. Gernand v. Ost Services, Inc., 298 N.W.2d 500, 504 (N.D.1980); §§ 65-01-01, 65-01-08, 65-04-28, and 65-05-06, N.D.C.C.

Layman initiated this action, in accordance with Section 65-01-09, N.D.C.C., 2 against BMA by service of summons and complaint on September 14, 1979, which complaint alleged negligence, breach of warranty, and strict liability. The trial court determined that the role of strict liability in tort as adopted by this Court in Johnson v. American Motors Corporation, 225 N.W.2d 57 (N.D.1974), was not applicable and that any warranty claims were barred by the four-year statute of limitations provided by Section 41-02-104, N.D.C.C. The trial court determined, however, that the negligence of both BMA and Minn-Dak were the proximate cause of Layman's injuries and apportioned the...

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