Ruther v. Robins Engineering and Constructors, a Div. of Litton Systems, Inc., 85-2341

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Citation: 802 F.2d 276
• Docket Number: No. 85-2341,85-2341
• Parties: Prod.Liab.Rep.(CCH)P 11,186 Albena RUTHER, Special Administratrix of the Estate of Tyrone Bolden, Deceased, Plaintiff-Appellant, v. ROBINS ENGINEERING AND CONSTRUCTORS, A DIVISION OF LITTON SYSTEMS, INC., a Delaware Corp., Defendant-Appellee.
• Decision Date: 25 September 1986

Page 276

802 F.2d 276 Prod.Liab.Rep.(CCH)P 11,186 Albena RUTHER, Special Administratrix of the Estate of
Tyrone Bolden, Deceased, Plaintiff-Appellant,
v.
ROBINS ENGINEERING AND CONSTRUCTORS, A DIVISION OF LITTON
SYSTEMS, INC., a Delaware Corp., Defendant-Appellee. No. 85-2341. United States Court of Appeals,
Seventh Circuit. Argued April 15, 1986.
Decided Sept. 25, 1986.

Page 277

Leonard M. Ring, William J. Jovan, Leslie J. Rosen, Leonard M. Ring and Associates, Chicago, Ill., for plaintiff-appellant.

Arthur A. May, May, Oberfell, Helling & Lorber, South Bend, Ind., for defendant-appellee.

Before CUMMINGS, Chief Judge, BAUER, Circuit Judge, and MAROVITZ, Senior District Judge. ^*

CUMMINGS, Chief Judge.

This diversity complaint was filed by the Special Administratrix of the estate of Tyrone Bolden who sued Robins Engineering and Constructors ("Robins"), a Delaware corporation, for Bolden's wrongful death for "in excess of TEN THOUSAND ($10,000) DOLLARS." ¹

Count I was based on a products liability theory and alleged that Bolden was an employee of Bethlehem Steel Corporation ² in its Burns Harbor plant in Chesterton, Indiana. According to this Count, Robins designed and produced a vibrating feeder in a truck hopper as part of the bedding plant it constructed for Bethlehem Steel Corporation in Chesterton. Bolden was working near the feeder on May 23, 1979. The feeder was described by plaintiff "as unreasonably dangerous" because its gate was not remotely operable from the basement truck hopper, thus causing Bolden to be exposed to a rapid discharge of hot dust from the feeder, resulting in his death on May 24. ³

Count III repeated the chief allegations of Count I and described Count III as a "wrongful death action" brought pursuant to Indiana Code Sec. 34-1-1-2 of the Wrongful Death Act. Damages in excess of $10,000 were sought in both these Counts.

On July 1, 1985, District Judge Moody granted Robins' Motion for Summary Judgment on the ground that the plant in question "posed an open and obvious danger" and on the additional ground that "Bethlehem's unforeseeable misuse" of the plant was the "efficient intervening cause of Bolden's injuries." As the Supreme Court recently pointed out in Anderson v. Liberty Lobby, Inc., --- U.S. ----, ----, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202, summary judgment is appropriate if the evidence "is so one-sided that one party [here defendant] must prevail as a matter of law." Our review of the evidence convinces us that this evidence is not "so one-sided" that defendant must prevail at trial. Indeed plaintiff has satisfied the preponderance of evidence standard of proof that governs the denial of summary judgment motions in this kind of case. In another summary judgment case decided the same day, the Court said a "Court of Appeals with its superior knowledge of local law is better suited than we [the Supreme Court] are to make these determinations [adequacy of plaintiff's showing opposing summary judgment and whether such a showing * * * would be sufficient to carry plaintiff's burden of proof at trial] in the first instance." Celotex Corp. v. Catrett, --- U.S. ----, ----, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265. In accordance with these strictures, it is

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apparent that the summary judgment for defendant cannot stand.

The facts developed at trial showed that Bethlehem employed Robins to design and construct an Indiana bedding plant. The plant contained a large basement with a vibrating feeder with a truck hopper, various conveyor belts, screening stations, surge bins, a stacker, a reclaimer and several bays. The system was constructed to blend seven or eight materials into a pill for making sinter. At ground level, various materials were dumped through a grating into the hopper in the basement. The vibrating feeder then emptied the materials (usually flue dust and filter cake) onto a conveyor belt that runs beneath the hopper to other sections of the plant where the materials were deposited.

One of the materials employed is dust cake which is composed of flue dust and filter cake. Flue dust and filter cake are by-products from air pollution devices on Bethlehem's chimneys. When flue dust is removed from a blast furnace, it is 500 to 600? Fahrenheit, and when it is placed in the dust catcher it is around 300?. Contrary to Bethlehem's instructions, straight flue dust, instead of a mixture of flue dust and filter cake, was being dumped into the hopper on the evening in question and therefore it was hotter than normal, causing the wires in the vibrating feeder to short out.

At 6:30 p.m. on May 23, 1979, the vibrating feeder was malfunctioning and caused spillage. A bedding plant helper, Gerald Leggett, said when he opened the west door of the truck hopper building to investigate, there was a large amount of dust in the air, causing him to wait for five minutes before proceeding downstairs. He sent word to James Penrod, the front-end payloader operator, to stop dumping materials into the hopper because Leggett saw that the...