warning, danger danger
- 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
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
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
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
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
Defendant’s post-accident investigation records show the machine was
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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