White v. ABCO Engineering Corp.
| Decision Date | 01 August 1999 |
| Docket Number | Docket Nos. 99-9458 |
| Parties | (2nd Cir. 2000) KENNETH E. WHITE, Plaintiff-Appellant, v. ABCO ENGINEERING CORP., Defendant-Cross-Claimant-Defendant-Appellee, HAMM'S SANITATION, INC., Defendant-Cross-Claimant-Appellant, H.S.S. RECYCLING, INC. and H.S.S., INC., Third-Party-Defendants. (L), 99-9462(CON) |
| Court | U.S. Court of Appeals — Second Circuit |
Appeal from summary judgment entered in the United States District Court for the Southern District of New York (Parker, J.) in a products liability action, the court having concluded that the defendant-appellee conveyor manufacturer could not be held strictly liable for a defective design because the accident giving rise to the action was the result of a subsequent alteration of the conveyor not made by the manufacturer, and having rejected without explanation a failure to warn claim.
Affirmed in part; vacated and remanded in part.
[Copyrighted Material Omitted] JOHN S. SELINGER Levinson, Zeccola, Reineke, Ornstein & Selinger, P.C. Central Valley, New York, for Plaintiff-Appellant.
PHILLIP A. TUMBARELLO Wilson, Elser, Moskowitz, Edelman & Dicker LLP New York, New York (Rosario M. Vignali, New York, New York, on the brief), for Defendant-Cross-Claimant-Defendant-Appellee.
THOMAS R. NEWMAN Luce, Forward, Hamilton & Scripps, LLP New York, New York, for Defendant-Cross-Claimant-Appellant.
Before: CARDAMONE, MINER, and WALKER, Circuit Judges.
Plaintiff-appellant Kenneth E. White ("White") and defendant-cross-claimant- appellant Hamm's Sanitation, Inc. ("Hamm's") appeal from a summary judgment entered in this products liability action by the United States District Court for the Southern District of New York (Parker, J.) in favor of defendant-cross-claimant-defendant-appellee ABCO Engineering Corporation ("ABCO"). White was severely injured in an accident at his workplace on April 5, 1995. He brought suit against ABCO, the manufacturer of two conveyors used by his employer in recycling operations, alleging that the conveyors ABCO sold to White's employer, H.S.S., Inc. ("HSS"), were defectively designed and had inadequate warnings, thereby subjecting ABCO to strict liability. The district court granted summary judgment in favor of ABCO with respect to the design defect claim on the ground that a four-inch hole cut in a guard running along the side of one of the ABCO conveyors after the sale constituted a substantial modification of the conveyor and was the proximate cause of the accident. The court also dismissed, without explanation, the failure to warn claim.
For the reasons that follow, we affirm in part and vacate in part the judgment of the district court and remand for additional proceedings consistent with this opinion.
At all times pertinent to this appeal, HSS was a New Jersey solid waste management company that owned and operated several recycling plants that separated aluminum cans, plastic soda bottles, and other recyclables. The recyclables were delivered to HSS by Hamm's, a New Jersey solid waste hauler that collected residential and commercial waste. Ambrose Hamm was the CEO of HSS and the President of Hamm's.
In the spring of 1990, HSS decided to create a new system for sorting recyclable materials. To this end, HSS purchased two conveyors from ABCO. One conveyor was a horizontal 40-foot channel frame or picking line conveyor ("line conveyor"). The other conveyor was a 15-foot cleated belt incline conveyor ("incline conveyor"). When the line conveyor was sold, it was equipped with a "tail guard" that was mounted at the nip or tail portion of the conveyor. The tail portion of the conveyor is located at the opposite end of the conveyor from the motor and contains a pulley that the belt moves around. Because the belt is pulled around the pulley, forming a nip point, the tail portion is a dangerous part of the machine. See Jurado v. Western Gear Works, 131 N.J. 375, 380 (1993) (); Johnson v. Salem Corp., 97 N.J. 78, 86 (1984) (). The tail guard is a metal guard that covers the tail end of the machine and contains a slight wraparound of the sides of the machine immediately adjacent to the tail end of the line conveyor. As sold, this guard blocked access to the nip point at the tail end of the machine as well as at each side of the line conveyor abutting the tail end.
ABCO shipped the incline and line conveyors to HSS without side guarding along the length of the machine and without chute work. Side guards serve two purposes: (1) retaining and confining materials on the belt conveyors so materials do not spill off and (2) protecting workers from contact with the belt and supporting rollers, as well as the turnaround pulley located beneath the tail guard. Chute work connects the incline and line conveyors, permitting the smooth transfer of materials from the incline conveyor to the line conveyor. Both chute work and side guards were available from ABCO at an additional cost, but were not purchased by HSS. Due to the absence of side guards, there was open access to the rollers along the length of the line conveyor. Access to the nip point was also possible from the side, except for the portion of the sides that were covered by the wraparound portion of the tail guard. It is unclear exactly how far the wraparound portion of the tail guard extended along the side.
Numerous warning labels were affixed to the ABCO conveyors. Some of these labels read as follows: "DO NOT OPERATE THIS MACHINE WITHOUT GUARDS IN PLACE" and "STOP ENGINE OR DISCONNECT POWER, AND WAIT FOR ALL MOVEMENT TO STOP BEFORE CLEANING, INSPECTING OR REPAIRING MACHINE." The conveyors also contained a graphic depiction of a hand being caught between rollers. Also, underneath the tail guard was a warning, in orange and black lettering, reading as follows: "!WARNING . . . IF YOU CAN READ THIS THE GUARD
HAS BEEN REMOVED. DO NOT OPERATE THE MACHINE UNTIL GUARD IS REPLACED."
After purchasing the conveyors from ABCO, HSS fabricated a heavy wire mesh side guard running the full length of the line conveyor to protect workers, as well as chute work to deposit material from the incline conveyor onto the line conveyor. HSS also fabricated bins, hoppers, supports, and an electrical on/off control for the recycling machine it assembled from the conveyors. The conveyors were assembled by HSS so materials could be recycled on the flatbed of a tractor trailer.1 The configuration of this outdoor recycling system required material to be fed into the head or drive end of the line conveyor, where the motor was located, and discharged off the tail pulley end. This configuration necessitated the removal of the ABCO-installed tail guard, as the guard would have obstructed material that was to be discharged from the tail pulley end of the line conveyor. ABCO was not consulted about either the configuration or the installation of the recycling system designed by HSS.
In the spring of 1992, HSS decided to dismantle the outdoor recycling system and move certain components of the system (including the conveyors) to an indoor facility in Wantage Township, New Jersey. The indoor system was designed and installed by HSS, Ambrose Hamm, the engineering firm BSE, and an electrical contractor. The purpose of the new indoor system was to permit increased volume and profit from recycling. Ambrose Hamm instructed one of his employees to set up the interior system so it would incorporate the old ABCO conveyors. HSS also purchased a new control panel. In contrast to the outdoor system, the indoor system was set up to run with material being fed from the incline conveyor belt onto the tail end of the line conveyor and then discharged off the drive or motor end of the line conveyor.
When the conveyors were set up inside the Wantage plant, the tail guard was not replaced. However, HSS had Hamm's install a new solid steel side guard that replaced the wire mesh guard. This solid steel guard covered portions of the line conveyor originally blocked by the removed ABCO tail guard as well as portions that would have been covered by the absent ABCO side guard. Around this time, someone used a blow torch to cut a four-inch hole in the steel side guard, in the area where the original ABCO tail guard and the absent ABCO side guard would have intersected. It is unclear who cut this four-inch hole in the guarding along the length of the machine or exactly where this hole was located. Apparently this hole was cut because recyclables would become stuck in the nip point, causing the belt to go off track, and because the rollers inside the conveyor would sometimes need to be moved for belt adjustments.
In November 1994, HSS hired White as a line operator in the Wantage plant. White's job required him to stand on either side of the line conveyor, along with other HSS employees, and pick and separate recyclable material. He received $5.50 per hour for his work.
According to White, recyclables, before being picked, would often fall from the top of the line conveyor to the bottom or return portion of the belt and get caught in the nip point between the return belt and the tail pulley at the end of the line conveyor. When this occurred, the belt would move off track. White had seen the line supervisor and others, without shutting off the machine, reach into the four-inch hole that had been cut in the HSS side guard and retrieve items caught in the nip point that were causing the belt to go off track.
On April 5, 1995, White noticed that a bottle was caught between the lower belt and the pulley. He reached through the access hole in the side barrier guard somewhere near the tail end of the line conveyor to remove the bottle. White's glove became caught in one of the...
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