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  • Jurydoctor@aol.com
    HI folks: I need your opinion on this one.. it should be fun... since it involves a bit of induction and deduction to figure it out. Also, it is really a brain
    Message 1 of 1 , Oct 18, 2003
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      HI folks:
      I need your opinion on this one.. it should be fun... since it involves a bit
      of induction and deduction to figure it out. Also, it is really a brain
      twister since the appellate court and state court are at odds in deciding!!
      Is this a case of Employment intentional tort? You decide...
      There is a three pronged test for intentional tort. The injured employee
      must show by the
      greater weight of the evidence:
      1) knowledge by the employer of the
      existence of a dangerous process, procedure, instrumentality or condition
      within its business operation;
      (2) knowledge by the employer that if the
      employee is subjected by his employment to such dangerous process,
      procedure, instrumentality or condition, then harm to the employee will be a
      substantial certainty; and
      (3) that the employer, under such circumstances,
      and with such knowledge, did act to require the employee to continue to
      perform the dangerous task.

      Ok, here are the facts:

      On April 21, 1999 twenty eight year old Vanna's right arm was
      caught and crushed between the rollers of a machine called a calender. The
      Plaintiff’s injury occurred when the tip of her glove was caught by the
      employer modified in-running nip point. Due to 1500 pounds of increased
      pressure and the reduced clearance between the rollers caused by the two (2)
      pneumatic cylinders that the employer installed, she could not extract her
      fingers. Her right hand and arm were pulled into the rollers almost to the
      shoulder, before her body was dragged onto an emergency shutoff device.
      Vanna's right arm was trapped between the modified pressure roller
      and the hot bottom roller for half an hour as rescuers raced to dismantle
      the machine in order to extricate her. She sustained severe, degloving
      (skin and muscle torn off) injuries that have scarred and deformed her right
      arm, making it and her right hand useless and constantly painful. She was
      so badly injured that she had to be transported from the scene by medical
      evacuation helicopter. She is still in therapy.

      Defendant Factory- provides most of jobs, Inc. is a 100-year-old
      corporation with four
      factories and 400 employees. Its manufactures rubber conveyor belts. The
      process uses machines known as calenders to press heated, softened rubber
      compound into fabric. Mostof jobs, Inc. operated two (2) identical
      three-roll Farrel
      Calenders built in 1920. They were called Calenders 2 and 3. A calender
      has a series of rolls that run against each other to press rubber compound
      into fabric to make conveyor belts. On the back side of each machine was an
      unguarded in-running nip point formed by a canvas-covered pressure roller
      that ran inward against a bottom metal roller. The canvas pressure roller
      exerted pressure on the rubber and fabric to the extent of its own weight
      and in some cases the weight of metal plates that could be added to the end
      of the arms at each end of the roller. The bottom roller was heated to an
      operating temperature of between 180 and 220 degrees Fahrenheit.

      The plant has been in operation for many years. There had never been a
      serious injury from either Calender 2 or 3 before the modification of
      Calender 2.

      The company maintained brightly painted cabinets called mill release
      cabinets in various places throughout the production floor. These cabinets
      contained emergency tools to be used to extricate employees who might get
      caught in machines. Quarterly it held calender extrication drills. The
      company knew that employees' hands would be in close proximity to the
      unguarded in-running nip points. The production process involved fabric
      being run through the machine and softened, heated rubber being pressed into
      the fabric by the calender rolls. During production the machine was set to
      run at 90 to 100 feet per minute. Rotary knife blades were positioned at
      each end of the belt to cut off excess rubber known as collar. From
      time-to-time the collar would break and the operator was required to
      manually feed the collar back into the in-running nip point at the canvas
      pressure roll. The operators were trained to reduce the machine speed to a
      safe speed of 39 feet per minute prior to commencing the manual feeding of
      the broken collar back into the machine, a safe speed for an operator to
      hand feed a collar.

      About six months before Vanna's injury, Mostof jobs, Inc modified the
      unguarded in-running nip point formed by the canvas pressure roller and the
      bottom roller of Calender 2. The modification consisted of adding two (2)
      pneumatic cylinders to the canvas pressure roller arms that formed the
      in-running nip point. The net effect of adding the pneumatic cylinders to
      this 80-year-old machine was to increase the pressure exerted by the roller
      by a combined minimum force of 1540 pounds while at the same time reducing
      the free space between the rolls.

      Plaintiff argues that the modification was made with no consideration
      given to operator safety.

      Before the Company modified the pressure roller, an employee at each end
      of
      the roller grabbing it and raising it could lift the roller manually. It
      could be raised to a clearance of 6 to 8 inches, more than sufficient
      distance to free a person should their arm be caught as the Appellee’s was.
      Rescue would have taken ten to 15 seconds. More importantly, before the
      modification in September 1998, the pressure on the in-running nip point was
      such that, should the fingertips of an employee’s glove get caught, the
      employee could pull free without getting dragged into the machine.

      Immediately following Vanna's’s injury Mostof jobs, Inc investigated the
      accident,
      determined that the safest way to operate the machine was without the
      modification and removed the offending pneumatic cylinders. In effect, it
      did its engineering safety study following the disaster. Had it done the
      very same study prior to making this unreasonably dangerous modification,
      there would have been no injury. On April 21, 1999, the modification was
      removed. Since then there have been no serious injuries from that machine.
      Thus there were no serious injuries from the pressure rolls in the years
      neither before the modification nor since the removal of the offending
      modification.

      Defendant’s post-accident investigation records show the machine was
      running
      39 feet per minute at the time of plaintiff's injury. At a speed of 39
      feet per minute with no pneumatic cylinder pressure on the roller ends, the
      unguarded in-running nip point at the canvas pressure roller was not an
      unreasonable danger to the operator.


      Question: When defendant modified the machine did they
      make it certain that an operator would be seriously injured?

      Is this an intentional employment tort?

      What facts are important to you?


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