Mayberry v. Akron Rubber Machinery Corp.
| Citation | 483 F. Supp. 407 |
| Decision Date | 20 December 1979 |
| Docket Number | No. 79-C-34-BT.,79-C-34-BT. |
| Parties | Alvin D. MAYBERRY, Plaintiff, v. AKRON RUBBER MACHINERY CORPORATION, a corporation, and Uniroyal, Inc., a corporation, Defendants. |
| Court | U.S. District Court — Northern District of Oklahoma |
Frank R. Hickman, Robert W. Booth & Associates, Tulsa, Okl., for plaintiff.
Dan A. Rogers, Rogers, Rogers & Jones, Tulsa, Okl., for defendant, Akron Rubber Machinery Corp.
Bert M. Jones, Rhodes, Hieronymus, Holloway & Wilson, Tulsa, Okl., for defendant, Uniroyal, Inc.
The offending mechanism injuring the plaintiff in March 1974 is a large rubber mixing mill giving rise to this alleged manufacturer's product liability claim. Plaintiff was employed by Crest, Inc. (Crest) when he was injured in this industrial accident. Plaintiff's hand was crushed when it was caught between the rollers of the rubber mixing mill he was operating and he sustained burns on his abdomen when he was pulled against the hot rollers of the machine.1 The place of the accident, diversity of citizenship, and the amount of the plaintiff's claim provide proper venue and jurisdiction. References to the record are made to assist those having access to the record.
The plaintiff had been employed by Crest for one year at the time of the accident and had been an operator of the rubber mixing mills for approximately 6 months.2 He had been supplied instruction and warnings concerning the mills by his employer, Crest, and was aware of the dangers in the machine.3 He had knowledge of the fact that one of the Crest employees had lost his arm in a rubber mixing mill prior to plaintiff's employment.4
The mill in question was placed on the floor below a "mixer", the "mixer" being on the floor above. The rubber was dropped through a chute from the "mixer" into the center of the rollers where it passed between the rollers. The rubber would bond to one of the rollers. The rollers rotate slowly in opposite directions at different speeds to create friction causing additional mixing of the rubber. The operator of the mill (plaintiff) cut slabs of rubber off the rollers with a special knife.
On the date of the accident plaintiff reported to work at midnight. He usually had a helper but not this night. After working for two or three hours the mill "started messing up." He stopped the mill and reported to his superior, who told him to go back down and "cut off what" he "could" until a man came to fix it. Plaintiff returned to the mill to cut the rubber that was already on the rollers and then planned to stop the machine. Plaintiff testified that when the mill got too hot the rubber would start dropping or falling off the rollers and he would have to grab the rubber in order to put it back through the rollers so it would mix. He was holding and folding the rubber to throw it back on the rollers when additional rubber was released from the "mixer" chute above. The weight of the additional rubber coming down caused his right hand to become caught between the rollers. Plaintiff testified that if the rubber mix had not been released from the "mixer", the accident would not have occurred. When plaintiff's right hand became enmeshed in the mill rollers, he hit the safety cable above the rollers with his free left hand, thus stopping the mechanism and permitting him to free his injured hand.5
The defendant, Uniroyal, Inc., (Uniroyal) acquired rubber mixing mill machines when it purchased a plant from Fisk, Inc., in 1939. These rubber mixing mill machines were manufactured by an unknown company around 1917.6
In 1970 Uniroyal advertised in industry publications that it had for sale certain obsolete mill parts and equipment. Following up on the offer, Mr. Robert C. Gray, a plant engineer for Crest, and a team of Crest workmen, went to Uniroyal's plant and dismantled the mill, removed the rollers and shipped them to Tulsa. These roller components were incorporated into the Crest designed mill and were involved in the plaintiff's injury.7
The vertical frames or stanchion components of the Crest designed and constructed mill were also obsolete parts purchased from the defendant, Akron Rubber Machinery Corporation (Akron).8
The other various component parts of the rubber mixing mill, including the H-beam upon which the frames were placed, electrical switches, motor and drive mechanism were obtained piecemeal from various other suppliers as well as from materials on hand at the Crest plant.9
The significant measurements of the mill are as follows: A photograph of the mill reveals that the entire unit appears to be approximately 6 feet high and 12 feet wide.10 The front roller on the mill has a diameter of 16.9 inches. The back roller on the mill has a diameter of 20.7 inches. The rollers are generally 5 to 6 feet in length. The distance from the floor to the center line of the rollers is 51 and ½ inches. The distance from the floor to the safety cable is 71 inches. The mill rests on a base (H-beam) in excess of one foot in height from the floor.11
Mr. Gray, the plant engineer, worked for Crest for a period of some eight and one-half years. Before his employment at Crest, he had worked for several rubber companies. He had designed and constructed about a dozen rubber mills, the first being 25 years previous.12
In March of 1974, there were seven rubber mills at the Crest plant.13 Mr. Gray, on behalf of Crest, designed and constructed the rubber mill involved by measuring the parts with which he had to work with and making a drawing to aid the workers in constructing the machine.14 Mr. Gray designed the hand activated cable safety device above the rollers used to stop the mill in an emergency situation.15 The mill which was dismantled by Mr. Gray at the Uniroyal plant had a drive shaft but the mill later designed and constructed by Mr. Gray, using the Uniroyal rollers, had no drive shaft.16
The defendants, Uniroyal and Akron, did not give any warnings with reference to the rollers or frames and did not furnish Crest designs, blue prints, or literature for the construction of the Crest rubber mixing mill. No representatives of the defendants visited Crest for the purpose of consultation or inspection while the Crest mill was being designed, constructed, or placed in use.17
It is the contention of the plaintiff that the frames supplied by Akron were defective because they were improperly designed as to height, being too low. The rollers supplied by Uniroyal were allegedly defective and therefore unreasonably dangerous because of the lack of any primary or secondary safety device. Plaintiff further contends a failure to warn of the inherent dangers of these components on the part of both defendants.18
The parties agree the rubber mixing mill involved, with the used components (the rollers and frames) supplied by the defendants Uniroyal and Akron, was actually designed and constructed by the plaintiff's employer, Crest.19
Plaintiff's expert witness20 concluded the mechanism's secondary safety device (emergency safety cable) as designed and installed was inadequate because it should have been more accessible to the operator for timely activation. Further, he found that the Crest mill was designed in such a way that it had a base step-up in excess of one foot in height which allowed the operator to stand on the elevated step,21 thereby increasing the chance of operator injury because his hands were in closer proximity to the moving rollers.
Plaintiff's expert stated in connection with a primary safety device ("a device or spatial orientation") that He identified a "secondary safety device" as the overhead line or cable which was pressured operated to stop the rollers.
The evidence of defect relates only to the improper Crest design for its failure to include proper primary and secondary safety features. There is no evidence the used components, the rollers or vertical frames were themselves defective.
Both defendants have moved for a summary judgment which the Court finds should be sustained. A summary judgment is proper upon a showing that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), F.R.Civ.P. All matters in the record and all reasonable inferences to be drawn therefrom must be construed liberally in favor of the party opposing the motion. Bruce v. Martin-Marietta Corp., 544 F.2d 442 (10th Cir. 1976); Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 516 F.2d 33 (10th Cir. 1975).
In Ando v. Great Western Sugar Co., 475 F.2d 531, 535 (10th Cir. 1973), the Court said:
"The trial court may pierce the pleadings by determining from the depositional proof, admissions and affidavits in the record whether any material issues of fact exist. * * *"
The doctrine of strict liability or manufacturer's product liability, as set forth in section 402A of the Restatement of Torts (Second) has been adopted as the law in Oklahoma.22 Kirkland v. General Motors Corp., 521 P.2d 1353 (Okl.1974).
At least three types of unreasonably dangerous defects may exist under Section 402A. A product may be defective because of manufacturing or supplier flaws, defective design, or failure to supply proper warning about the product's dangers. Burton v. L. O. Smith Foundry Products Co., 529 F.2d 108 (7th Cir. 1976).
By its very terms, Section 402A imposes strict liability only where the defective product reaches "the user or consumer without substantial change in the condition in which it is sold."
With regard to "defective condition" Comment "g" to § 402A Restatement of Torts 2d at 351, states:
"The rule in this Section applies only where the product is, at the...
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