Ulrich v. Kasco Abrasives Co.

• Decision Date: 23 January 1976
• Citation: 532 S.W.2d 197
• Parties: Robert Joseph ULRICH, Appellant, v. KASCO ABRASIVES COMPANY et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 197

532 S.W.2d 197

Robert Joseph ULRICH, Appellant, v. KASCO ABRASIVES COMPANY et al., Appellees.

Supreme Court of Kentucky.

Jan. 23, 1976.

Murray J. Greenwald, Ralph G. Stone, Louisville, for appellant.

Walter R. King, Joseph H. Eckert, Charles E. Duncan, Duncan & Lehnig, Louisville, for appellees.

PALMORE, Justice.

The appellant, Robert Ulrich, was employed by the Marley Company as a welder. His duties included the operation of portable grinding machines. While he was operating one of these grinders the abrasive wheel or disc that had been mounted on it disintegrated, or 'exploded,' as it is described. Some of the pieces of the wheel struck him in the area of the groin, causing painful and permanent injury. He brought suit against Kasco Abrasives Company, manufacturer of the wheel, and Aro Corporation, manufacturer of the grinder, under the strict liability theory. Cf. Restatement, Torts 2d, § 402A. He appeals from a judgment entered pursuant to a jury verdict for both defendants-appellees.

One of the assignments of error is that the trial court should not have submitted the issue of contributory negligence. Another is that the instructions covering basic liability of the defendants were erroneous. We find it unnecessary to reach either of these arguments, being of the opinion that each of the defendants was entitled to and should have been given a directed verdict in its favor.

The Marley Company had a number of similar grinders, all made by the same manufacturer, Aro. All of the wheels used with them also were made by the same manufacturer, Kasco. The grinders and wheels were kept in a 'tool crib' from which they were drawn by various personnel as needed. It was the duty of the person in charge of the tool crib to remove and replace the wheels when they became worn or damaged. Personnel using the grinders, such as Ulrich, were instructed 'not to fool with them.' Other personnel, in the maintenance department, had the sole responsibility of maintaining and keeping them in good working order.

The grinders were powered by air pressure, which might vary to some extent, but contained governing mechanisms designed to prevent a rotor speed in excess of 6,000 rpm. Instruction sheets furnished by the manufacturer with each new unit stated that the rotor speed had been set at the factory, that any change might result in wheel explosion, and that adjustment of the governor should be made only by 'capable authorized personnel.' A metal label on the grinder housing bore the manufacturer's name and the words, 'Check RPM with each wheel change.' The only means for testing this speed is with a tachometer. The Marley Company had no tachometers, so obviously its maintenance people never complied with this instruction.

The wheel made by Kasco had on it a label stating 'maximum rpm 6,000.' Furnished with it by the manufacturer was a list of 'do's and don'ts,' one of which was 'Don't ever exceed maximum operating speed for the wheel.' It was well recognized in the industry that the centrifugal force generated by excessive speed will result in disintegration of this kind of wheel.

There is not any question as to what caused this accident. The grinder had been in use for some five years. It was 'battered and banged up.' The spool part of the governor-valve was worn out and could not be properly fitted into place. As a result the governor was inoperable. When tested in its condition following the mishap it ran at speeds up to 9,000 rpm and caused similar wheel explosions. There was no evidence that the wheel was defective.

Ulrich was an 18-year-old with a high school education. He had taken a course in welding which included training in the use of portable grinders. He received no further instruction in that respect from the Marley Company and had no knowledge of what might occur if the grinder should happen to run at an excessive speed. All he did in this instance was to inspect the wheel and the protective shield on the grinder before using it. He depended on his employer's other personnel for the operating condition of the machine and installation of the wheel. He had seen the 'do's and don'ts' issued for the users of abrasive wheels but had never noticed the maximum speed caveat on the label of the wheel. It was, he said, not 'my concern.' Nor had he ever read the speed warning on the panel attached to the grinder (which had to be turned upside down from its operating position in order for the label to be observed).

Ulrich did not draw this particular grinder from the tool crib, but got it at another place in the Marley factory where it had been used by somebody else.

Since there was no provable defect of the wheel and the grinder itself was not in substantially the same condition as it had been when put on the market by Aro, the case against both manufacturers is pitched largely on the theory of inadequate warning. Cf. Post v. American Cleaning Equipment Corporation, Ky., 437 S.W.2d 516, 520--522 (1968). It is contended also that the grinder should have been equipped with a tachometer and that there should have been safeguards to prevent improper assembly of the governor mechanism incident to the process of maintenance and repair. These latter contentions relate, of course, to design.

This court in Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441, 446--447 (1966), subscribed to the principle of strict liability set forth in § 402A of the Restatement, Torts 2d. Later, in Jones v. Hutchinson Manufacturing,...