McDonald v. Sandvik Process Systems, Inc., 87-2450

Decision Date13 April 1989
Docket NumberNo. 87-2450,87-2450
Citation870 F.2d 389
Parties27 Fed. R. Evid. Serv. 666, Prod.Liab.Rep.(CCH)P 12,087 Tina M. McDONALD, Plaintiff-Appellee, v. SANDVIK PROCESS SYSTEMS, INC., Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Richard A. Mayer, Spangler Jennings Spangler & Dougherty, P.C., Merrillville, Ind., for defendant-appellant.

Kevin L. Likes, Grimm & Grimm, P.C., Auburn, Ind., for plaintiff-appellee.

Before WOOD, Jr. and CUDAHY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

This is a products liability suit brought by Tina M. McDonald against Sandvik Process Systems, Inc. (Sandvik) to recover for injuries she sustained on August 12, 1983, in an accident involving a machine made by Alto Corporation (Alto), Sandvik's predecessor corporation. 1 The jury found in favor of McDonald, awarding her $350,000 in damages. Sandvik appeals from the judgment entered on the verdict, claiming as error the denial of its motions for directed verdict, judgment notwithstanding the verdict, and new trial.


At the time of her injury, McDonald was employed at the West Baking Company, in Fremont, Indiana, which baked and packaged hamburger buns. She was working as an "indexer," and was responsible for visually inspecting the freshly-baked buns for defects as they were fed by conveyor belt into a slicing and packaging machine--Alto's "Pillo-Pak" Model P-77. The bun slicing machine receives buns in groups of thirty (six wide and five deep) from the indexing area, slices them horizontally with a high-speed blade similar to a band saw, and packs them in plastic.

The conveyor belt is about forty inches wide, and moves "very fast." 2 As the buns are carried toward the blade (in a direction referred to as "downstream"), they pass under a safety bar which would shut off the machine if an object larger than a hamburger bun presented itself. Downstream from the safety bar is a space, accessible from above, between that bar and a second bar. It was this space in which McDonald's injury began to occur. Within this space, the upper ends of the vertical members of three blade guides are attached to the second bar by collars and set screws, which can be tightened by hand. Downstream from the bar holding the blade guides is one of a pair of horizontal rollers carrying belts which, underneath the rollers, move downstream above and parallel to the conveyor belt. The upper belts slightly compress the buns and are referred to as the "hold down belts." These belts and the conveyor belt propel the buns toward the blade, which slices them.

One witness said the space between the the two bars was "on the order of four inches" wide. Pictures in evidence make the distance appear the width of a bun and one-half. The record contains no exact measurement. McDonald was injured when she reached into this space from above to tighten a wobbling blade guide.

The blade guides consist of half-inch, L-shaped, metal bars. The shorter leg of each blade guide (about six inches long) hangs vertically in the open space referred to, with its upper end attached to the bar. The longer leg is horizontal, and extends downstream between the conveyor belt and the hold down belts. The elbow at the angle of the "L" is somewhat rounded. Near the end of the horizontal leg of the blade guides are blade pads through which the blade moves, and which hold the blade steady at the proper height. (Since West Baking made different sized and double-decker buns, sometimes the blade height would be altered, or a second blade added.) At the time of McDonald's injury, the machine had three blade guides, spaced so that as the rows of buns passed them, the blade guides were between the first and second, third and fourth, and fifth and sixth rows of buns.

Not only do the blade guides need adjustment when different sized buns are sliced, but they also tend to become loose during operation and need to be tightened. Tightening is often accomplished without shutting off the machine. Although the testimony was not uniform, it appears there are times when it is necessary to hold the vertical leg steady with one hand, while tightening the screw with the other.

At the time of McDonald's injury, the blade guide was adjusted so that there was about one-half inch space between the conveyor belt and the bottom of the blade guide. The conveyor belt and the hold down belt are about an inch and one-quarter apart, first becoming this close several inches downstream from the elbow of the blade guide. The blade is about fourteen inches downstream from the elbow. There are approximately six inches from the surface of the conveyor belt to the blade guide's set screw.

On the day of the accident, McDonald, who was working on one side of the unit, noticed that one of the blade guides had worked loose. She attempted to tighten it while the machine was running. She asked a co-worker to place her hand in front of the electric eye of the machine which stops the buns from entering the bun slicer (but which does not stop the conveyor belt or blade), stepped onto the frame of the machine, and reached across to tighten the set screw on the blade guide furthest from her. As she testified, "I was tightening [the set screw] with my right hand and holding onto the blade guide with the left hand; and I really don't know, the conveyor belt grabbed me and pulled me right in." Her hand was pulled into the slicer blade and badly cut.

It is unclear exactly what happened. In her deposition, she had testified her left hand was "holding onto the elbow" and her co-worker had testified similarly. At trial, McDonald testified her hand "was on the arm of the blade guide.... It wasn't down on the elbow, but it was in that area." She insisted that she thought she was in a safe position, sufficiently far from the conveyor belt. By hindsight, she had concluded that the side of her hand, or little finger, got caught on the conveyor belt. There is nothing to show whether she was pulled to the blade by contact with the conveyor belt alone, whether her hand was caught between the conveyor belt and the horizontal leg of the blade guide (a one-half inch clearance), or was later caught between the conveyor belt and the hold down belts (a one and one-quarter inch clearance), or by some combination of these factors. The jury could reasonably have believed that she had deliberately placed her hand a safe distance from the belt, but through mischance or inadvertence, it came in contact.

Plaintiff called an expert witness, Dr. Peters, a mechanical engineer and professor of mechanical engineering at Iowa State University. He concluded that the machine is unreasonably dangerous because the entry to the area between the bars "is open so that anyone who is in that area runs the risk of getting a hand caught and pulled right into the blade. There's an enticement to get in there from the design of the blade guide mountings which tend to work loose as a result of vibration; and it's foreseeable in my mind that someone at some time is going to adjust these with the machine running and put themselves in a position where they could very easily get pulled right into the blade and cut." He testified that the danger could feasibly be avoided by a guard over the area, interlocked so that when the guard was removed, the machine would shut off.

He testified further that the blade guide mountings could be designed in a way which would avoid the need for the type of tightening operation performed by McDonald.


Sandvik argues that the danger of being drawn into the bun slicer and cut by the blade was open and obvious as a matter of law.

Indiana adheres to an open and obvious rule, "stated generally as follows: In the area of products liability, based upon negligence or based upon strict liability under Sec. 402A of the Restatement (Second) of Torts, to impress liability upon manufacturers, the defect must be hidden and not normally observable, constituting a latent danger in the use of the product." Bemis Co., Inc. v. Rubush, 427 N.E.2d 1058, 1061 (Ind.1981). Whether a danger is open and obvious and whether the danger is hidden are two sides of the same coin. Bridgewater v. Economy Engineering Co., 486 N.E.2d 484, 488 (Ind.1985). Separate determination of the two would be redundant. "Evidence of the open and obvious nature of the danger serves only to negate a necessary element of the plaintiff's prima facie case, that the defect was hidden." FMC Corp. v. Brown, 526 N.E.2d 719, 728-29 (Ind.App. 4 Dist.1988).

In a 1985 decision, the Supreme Court of Indiana took pains to correct an interpretation of Bemis "that the question of whether an alleged danger is open and obvious is a decision that is always left to the trial court as a matter of law." The Court said it had not so held and that there are cases in which a jury question is presented. Bridgewater v. Economy Engineering Co., 486 N.E.2d 484, 488 (Ind.1985). See Kroger Co. Sav-On Store v. Presnell, 515 N.E.2d 538, 543 (Ind.App. 4 Dist.1987); FMC Corp. v. Brown, 526 N.E.2d at 724.

Sandvik relies on the fact that the fast-moving conveyor belt is clearly visible to a person in McDonald's position, and poses a danger, upon reaching into the space above it to grasp the blade guide, of coming in contact with the conveyor belt. Sandvik would argue that the presence of the hold down belt running only one and one-quarter inches above the conveyor belt is well known to all, even though not as clearly visible, and that the blade, fourteen inches downstream, and not visible, is also known and the danger of being pulled into it recognized.

Several other factors, however, persuade us that the question whether the danger was open and obvious was properly left to the jury.

One factor is the distance of...

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