Schell v. AMF, Inc.

• Decision Date: 22 December 1977
• Docket Number: No. 77-1143,77-1143
• Parties: Robert C. SCHELL and Liberty Mutual Insurance Company, Appellants, v. AMF, INCORPORATED, Defendant and Third-Party Plaintiff, v. CAPITAL BAKERS, INC., Third-Party Defendant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1259

567 F.2d 1259

Robert C. SCHELL and Liberty Mutual Insurance Company, Appellants, v. AMF, INCORPORATED, Defendant and Third-Party Plaintiff, v. CAPITAL BAKERS, INC., Third-Party Defendant.

No. 77-1143.

United States Court of Appeals, Third Circuit.

Argued Oct. 7, 1977.

Decided Dec. 22, 1977.

James K. Thomas, James K. Thomas, II, Thomas & Thomas, Harrisburg, Pa., for appellee, AMF, Inc.

James F. Carl, Metzger, Wickersham, Knauss & Erb, Harrisburg, Pa., for appellee, Capital Bakers, Inc.

Philip D. Freedman, Caldwell, Clouser & Kearns, Harrisburg, Pa., for appellants.

Before GIBBONS and WEIS, Circuit Judges and WRIGHT, District Judge. ^*

OPINION OF THE COURT

WEIS, Circuit Judge.

At issue in this appeal are the roles of court and jury in determining whether a manufacturer was liable under Restatement (Second) of Torts § 402A for an alleged design defect. Plaintiff contends his injury was the result of inadequate protection from moving gears on a machine he was operating. The manufacturer's defense is that the design it utilized was adequate for normal use. After weighing the relevant considerations, we determine that the question should be decided by a jury.

Plaintiff Robert Schell was seriously injured when his arm became caught in the sprockets of a machine manufactured by the defendant AMF, Incorporated. He brought a diversity action in the district court alleging liability under Pennsylvania law adopting § 402A. The case was tried to a jury which was unable to agree upon a verdict. Thereafter, the district court entered judgment for the defendant pursuant to Fed.R.Civ.P. 50(b).

Plaintiff was employed by Capital Bakers, Inc. in Harrisburg, Pennsylvania. His usual duties were to feed baking pans into a machine called a Pan-O-Mat. On March 13, 1972, about 15 minutes before the accident occurred, he was called upon to operate the machine, a task apparently he had not performed previously.

The Pan-O-Mat is designed to receive roll-shaped pieces of dough from another machine and place them on baking pans. The Pan-O-Mat's chief component is a series of cups which are attached to a conveyor assembly. The cups receive the dough and then carry it upward. Occasionally pieces of dough not properly directed miss the cups and fall to the floor. In order to collect the falling dough, the Pan-O-Mat is equipped with an "excess tray" which slides beneath it on the floor.

The conveyor is driven by a series of chain and sprocket drives within the machine. Access to the drive mechanism is secured through a door on each side of the machine. The door bottom is approximately six inches above the floor and the excess tray fits into this space. When it is necessary to remove an accumulation of dough on the tray, usually it may be pulled out and reinserted without opening a door or shutting down the machine. The baking industry's sanitation standards require that the area behind the doors be accessible for cleaning, a procedure which Capital carried out at least every four hours.

One of the Pan-O-Mat operators' duties is to prevent undue accumulation of dough in the excess tray. When Schell began to operate the machine, he observed that an excessive amount of dough had piled up, so much in fact, it was necessary to open the door to remove the tray. With the assistance of another employee, he pulled the tray from underneath the machine. Before the tray could be removed, however, the other employee was called away and because it was too heavy for one man, Schell left it on floor near the Pan-O-Mat. Since there was no replacement tray available, the misguided dough fell to the floor beneath the machine.

Schell left the area and returned within an estimated time of two to ten minutes. In the meantime, the machine continued to run with the door open and dough piled up on the floor near the door. Schell got down on his hands and knees in order to brush the dough away from the machine and put his right hand into the now accessible machinery area. Because he slipped, or for some other reason, Schell lost his balance and his arm became entangled in the mechanism. His arm was injured so severely that it had to be amputated.

At trial the plaintiff produced an expert who testified that the machine was defective because:

1. It lacked an interlock mechanism which would have caused the conveyor to stop whenever a door was opened.

2. There was no warning on the doors.

3. The doors could be opened easily and quickly without opportunity for reflection.

The expert testified that in 1956, when the machine was manufactured, an interlock device could have been incorporated for about $25.00.

There was no dispute that an interlock was both feasible and practical. No testimony was presented as to the exact cost of the machine, but there was evidence that the price of the Pan-O-Mat was between $5,000 and $9,000. Although witnesses testified that the doors should not be open while the machine was operating, there was also evidence that when the machine was shut down for even a short time during production, dough would stick to the cups and had to be removed before operation could continue.

In entering judgment for the defendant, the district court relied upon Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603 (1968), and concluded that Pan-O-Mat lacked no safety device which caused an injury of the type that could be expected from the machine's normal use. Schell's actions were said to have created a risk to himself against which AMF had no duty to guard.

Pennsylvania has adopted § 402A of the Restatement (Second) of Torts, Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), and imposes strict liability for defect in design as well as in the manufacture of products. ¹ Lack of proper safety devices can constitute a defective design for which there may be recovery under § 402A. Bartkewich v. Billinger, supra, 432 Pa. at 354, 247 A.2d at 605.

The circumstances here are similar in some respects to those present in Bartkewich. There, the plaintiff was operating a machine which broke up glass. No guard was provided which would have prevented the operator from putting his hand into the area where the glass was being fragmented. While the machine was running, the plaintiff, an experienced operator, saw that glass was beginning to jam. Rather than using wooden sticks which had been provided for that purpose, he reached in with his hand to loosen the obstruction. His glove became caught in the mechanism and his hand was injured.

The Pennsylvania Supreme Court opinion dwells upon plaintiff's voluntary exposure to danger and the normal use to which the machine was to be put. Views conflict, however, whether the court decided the case on the basis of the condition of the machine, see, e.g., Elder v. Crawley Book Machinery Co., 441 F.2d 771, 773 n. 2 (3d Cir. 1971), or assumption of risk, see, e.g., Colosimo v. May Department Store Co., 466 F.2d 1234, 1236 (3d Cir. 1972) (Hastie, J., concurring), Greco v. Bucciconi, 407 F.2d 87 (3d Cir. 1969). In the case sub judice, neither interpretation controls.

Unlike Bartkewich, where the plaintiff deliberately placed his hand in the dangerous part of a machine, here Schell intended to reach for dough which was on the floor below the drive mechanism. According to his testimony, it was his loss of balance which caused his hand to come into contact with the conveyor sprockets. In the plaintiff's version, he neither intended nor anticipated placing his arm so close to the sprockets and it was for the jury to determine whether assumption of risk had been established, or whether plaintiff's conduct was inadvertent. ² It cannot be said in the circumstances of this case that plaintiff was guilty of assumption of risk as a matter of law. Elder v. Crawley Book Machinery Co., supra; cf. Green v. Sanitary Scale Co., 431 F.2d 371 (3d Cir. 1970) (en banc).

We therefore must assess whether the condition of the machine itself constituted a defective design for which there may be recovery under § 402A. Bartkewich says that the design defect rule applies to allow recovery "where the absence of the safety device caused an accidental injury which was of the type that could be expected from the normal use of the product." 432 Pa. at 354, 247 A.2d at 605. The manufacturer is "entitled to believe that the machine would be used in its usual manner, and need not be an insurer for the extraordinary risks an operator might choose to take." Id. at 356, 247 A.2d at 606. Pennsylvania thus requires that there be a determination of the normal use of a product and the ordinary risk that might be expected to be taken in its operation.

The purpose of the machine used by Bartkewich and that operated by Schell are significantly different. The glass-breaking machine of necessity required an opening into which the glass is pushed an opening in which devices strong enough to break glass (and mangle arms) must necessarily operate. If such an opening were not provided, the machine could not function in its productive capacity.

By contrast, in the Pan-O-Mat production operation, the conveyor drive mechanism did not have to be exposed. In fact, the machinery was covered by protective housing. Only when a guard door was open was there a risk to the operator of entanglement in the sprockets and only during cleaning operations was it normally necessary for a door to be open. By shielding the sprockets, the manufacturer recognized the hazard of leaving them exposed during normal operation. The...