Plаintiff was injured on January 11, 1980, when he got his hands caught in a continuous conveyor system which was used by the Fairmont Foods Corporation to convey dairy products, which were unloaded from trucks, into its plant at 3805 Van Brunt Boulevard, Kansas City, Missouri. Plaintiff’s theory was that lubrication equipment, installed by defendant upon the existing conveyor system, was in a defective condition unreasonably dangerous whеn put to a reasonably anticipated use, an action in strict liability in tort. The jury returned a verdict for plaintiff in the amount of $75,000, upon which judgment was entered.
Defendant asserts that the trial court erred in overruling its motion for judgment N.O.V. because there was no evidence that it designed, manufactured or sold the conveyor system, and that there was no evidence that a spray nozzlе, which was the only lubrication equipment supplied by defendant, was defective. Defendant also asserts that plaintiff was contributorily at fault as a matter of law.
The conveyor system runs in a north-south direction upon a loading-unloading dock on the east side of Fairmont’s plant. The system is a “drag chain” conveyor built into the dock floor. It consists of two endless chains running parallel to each other. At the north end of the dock in a pit area below the dock level is an electric motor and sprocket wheels which drive the metal link chain along the dock. At the south end of the chain there is an idler pulley, without power, which serves to turn the chain around so that it will return to the north end. The parallel chains travel in metal tracks which are built into the dock. A lubrication must be used on the system, where metal is contacting metal as the chain moves along, to prevent constant breakdown. Because Fairmont is a dairy, processing food products, oil is not used as a lubricant, but a soapy substance is supplied through a tubed lubrication system on a continuous basis.
The lubrication system consists of a 55 gallon drum, a lubrication “pump” board which mixes the lubricant with water, and hollow plastic tubing connected with ferrules and nuts which conveys the mixed lubricant to the various points of lubrica
About one month priоr to plaintiff’s injury, James Knight was employed by Fair-mont as its chief engineer. He, as a first project, inspected the dock conveyor system, and determined that it was not suitable in that it was using excessive lubrication, and the lubrication which was being used would freeze on occasion, and thus block it from reaching the conveyor system. He contacted Wayne Bradshaw, defendant’s representative, to see if he could solve existent problems.
Shortly after Knight contacted him, Bradshaw visited the Fairmont plant and inspected the entire outside lubrication system, at which time he was seeking to solve its problems. Bradshaw then discussed with Knight about defendant becoming a supplier of chemical products in the plant, and what defendant could do to upgrade the systеm, inside and out. “Q, What did you indicate that you could do for him? A. Well, he had a product that was being supplied by another company at that time that was an inferior product. Also the price seemed to be out of line and naturally my job was to give him a good product at a good price and make him a customer of ours.” Thereafter, Knight, on behalf of Fairmont, made a cоntract with defendant whereby it was “[Gjoing to furnish us some Polar Lube and redesign our system in an effort to try to stop the freezing and excessive consumption of the lubricant.” Knight testified that defendant was performing its functions independently with no real direction from Fairmont, and he never prohibited it from doing anything it requested.
Defendant’s Bradshaw and Ray Savage performed modifications of the lubriсation system and supplied Fairmont with its lubricant. Prior to that time Fairmont was using a lubricant which was sprayed upon the “drag chain” at different points through a pinched copper tubing. One of these copper tubings was placed at the south end of the drag chain where the chain was travelling away from the idler pulley [and thus to clean the tubing, one’s hands would not be pulled into the idlеr pulley, which reversed the direction of the chain]. In the modification, defendant replaced the pinched-down copper tubing with a system of spray nozzles which were hooked onto a strap which was then connected to brackets placed around I-beams which went across the pit area. The straps were bent up underneath the dock area sо that they were inside the two chains and the nozzles were spraying onto the sides of the chains underneath the pit and in close proximity to the end idler pulley. The nozzle at the south end was placed in a position that below it the chains were going into the idler pulley, rather than away from it, which was the prior location of the previous pinched copper tubing.
At the timе of his injury, plaintiff had been a maintenance engineer for 2½ years. Prior to that time, he had no previous job experience involving repair of machinery. Upon his transfer to Fairmont’s department of maintenance engineering, he was made a trainee working with another maintenance engineer from whom plaintiff familiarized himself with the repair of machines by watching оthers do the same or similar tasks.
Plaintiff had come on duty at 7:00 a.m., January 11, 1980, and started inspecting the various lubrication lines on the convey- or system to see if they were operating. He determined that several were not operating and he repaired them before going to the east dock drag chain conveyor. When he arrived there, he proceeded to check the spray nozzles. This procedure involved unbolting the whole bracket, pulling it down and cleaning it out by blowing it out, then putting it back together. He did not turn off the machine while doing this because there were trucks in the process of being loaded. He then went to the south end of the line where he could see that it was
With respect to defendant’s contention that it is not liable because it did not design, manufacture or sell the conveyor system, that, of course, is true. That is not the issue, but the issue is whether it modified an existing lubrication system in a defective manner — by placing spray nozzles in a position below the chain, and in a position that the оne which plaintiff was trying to clean was above the chain which at that point was travelling toward the idler arm pulley which caught plaintiffs hands. The crimped tubing, previously used, was on the top chain which was travelling away from the idler arm pulley. The placement of the nozzles by defendant’s employee, Savage, is the defective condition unreasonably dangerous which plaintiff аsserts caused his injury.
A further part of defendant’s first point is that it did not “sell” the modification nozzles. At 72 C.J.S. Supp., Products Liability, § 40, p. 60, it is said, “The word ‘sells’ within the Restatement rule [Rest.2d Torts, § 402A] of strict liability is merely descriptive, and the test for determining the applicability of the rule is not the sale of the product, but rather the placing thereof in commerce. Thus, liability is imposed on all those in the chain of plаcing a defective product in the stream of commerce, and the product need not be actually sold if it has been injected in the stream of commerce by other means. Under the stream-of-commerce approach to strict liability no precise legal relationship to the member of the enterprise causing the defect to be manufacturеd or to the member most closely connected with the customer is required before the courts will impose strict liability; it is the defendant’s
participatory connection, for his personal profit or other benefit,
with the injury-producing product and
with the enterprise that created consumer demand for and reliance upon the product
which calls for the imposition of strict liability. * * [Brackets and italiсs added.] See also the there cited cases for the quoted principle,
Link v. Sun Oil Company,
Here, the evidence shows and the jury could find that defendant was not just a cаsual supplier of lubrication equipment to firms such as Fairmont, and that the design of the modification and the furnishing of spray nozzles on the conveyor system was not an isolated incident. Cf.
Dewberry v. LaFollette,
Defendant’s cited cases have been considered and it is determined that none are in point on the facts of this case, where defendant manufactured, modified and installed the lubrication system, independent of any basic design by the original manufacturer of the whole conveyor system.
Hales v. Green Colonial, Inc.,
Under the facts of this case, defendаnt’s argument that plaintiff should have pursued the remedy of strict liability against the original designer of the conveyor system is untenable. That designer did not modify the system by repositioning the lubrication nozzles in a dangerous location-where the chain travels toward the close idler arm pulley. Nor does its argument that plaintiff should have been limited to a negligence theory, which was not submitted but was abandoned, have merit. Point I is overruled.
Defendant’s second point is that its motion for judgment N.O.V. should have been sustained because plaintiff was contributo-rily at fault as a matter of law. It argues that plaintiff voluntarily and unreasonably exposed himself to the danger (of the moving chain, and the idler arm pulley), and cites and relies on
Tomicich v. Western-Knapp Engineering. Company,
In this case, although there wеre switches available some distance away (on the second floor) from where plaintiff was cleaning the lubrication systems, and red tags were available to warn others not to activate the switches when the tags were in place, there was testimony from plaintiff’s supervisor, Knight, that workmen did not always turn off the machines before cleaning the lubrication nozzles. “A. Probаbly because they think they can do it without being injured.” Knight felt that what the workers were doing was reasonable when he observed it, and that conclusion is buttressed by the testimony of plaintiff’s coworker, McCann. He testified that when he worked on the lubrication lines or spray nozzles, he did not usually turn off the machines for these reasons: When it is shut off, there is no pressure in the soap system to clean out with it (the chain drive and the flowage of lubricant run at the same time through a connecting solenoid switch), so after it is clean one cannot direct the sprays back on the chain; the usage of the chain would be disrupted causing down time at the plant; and the chain would have a tendency to dry out or freeze.
Although Fairmont had general safety rules for workers to keep hands away from moving machinery, and to shut off the machine before clearing jammed materials, plaintiff could not remember ever having received a copy of them, or seeing them posted in the plant. Knight testified that many of the rules were consistently not followed, including that of turning off the machines before clearing them. All of the foregoing evidence was for the jury to eval
There is another factor not present in the Tomicich case. Plaintiff had an unforeseen, unanticipated event take place-that of dropping the nozzle tip as he was trying to replace it. His reflex was to try to catch it, and thus his left hand cоntacted the chain. Also, the “open and obvious” danger rule was commented upon by the
Pust
court, supra, 583 P.2d, p. 284, as having been frequently attacked by the courts and scholars, and the court held that the alleged patent nature of a defect is not in and of itself a defense to strict liability, and the use of that defense would be applying an assumption of risk defense as a mаtter of law. See also
McGowne v. Challenge-Cooke Bros., Inc.,
The judgment is affirmed.
All concur.