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Derrick v. Yoder Co.

OPINION FILED SEPTEMBER 16, 1980.

MICHAEL DERRICK, PLAINTIFF-APPELLEE,

v.

THE YODER COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. VINCENT W. TONDRYK, Judge, presiding.

MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

As damages for the loss of his right arm almost to the shoulder, a jury awarded plaintiff, Michael Lance Derrick (Derrick) $444,000, having found defendant Yoder Company (Yoder) guilty of defectively designing and manufacturing a metal slitting system in a products liability action. Yoder appeals, presenting as issues for review whether: (1) Derrick assumed the risk of injury; (2) the design of the machine was reasonably safe when used for the purpose intended; (3) the product performed as might reasonably have been expected in light of its nature and intended function and therefore was not unreasonably dangerous; and (4) Yoder was under a duty to design and manufacture a product incapable of causing injury when an alternative design was neither feasible, effective, practicable nor technologically possible at the relevant time. For the reasons which follow, we affirm.

Derrick was employed by Leavitt Tube Company (Leavitt) as a slitter helper in a tube production facility in which three slitting lines were operated, each of which employed a slitting machine designed and manufactured by Yoder. The machine involved in this case was designated "No. 3" and was similar in make-up to the other two. The slitting machine transformed flat steel material, as wide as 48 inches, coiled in the form of a roll having a diameter as great as 72 inches, into smaller strips or strands and recoiled onto another drum in one continuous operation. These strands would later be shaped into tubing. Each slitting line possessed three major components. At the starting end of the line was located a drum on which a roll of uncut flat steel was secured. From this point it was uncoiled from the roll on a horizontal plane at about four feet above floor level and drawn through the second component consisting of slitting knives positioned above and below the material, similar to scissors, as it passed through. The slitting knives cut through the flat steel creating the strips or strands of a desired width and occasionally resulted in the development of metal burrs or slivers, from one-fourth inch to four inches long, hanging onto the cut edges of the individual strands. The resulting strands were drawn further along the horizontal plane to the terminal end of the system consisting of a single, common drum on which the strands were recoiled once again, this time into individual strand rolls.

The motor-driven recoiler supplied the drawing power and movement through the slitting process and onto the recoiler. Tension created by the winding recoiler also assisted in the formation of straight-sided individual strand coils. If proper tension was not maintained, the individual coils would fall apart and could not be removed in usable form from the recoiler drum. Upon successful completion of the process, the individual coils, now fully wound on the common recoiler drum, were removed for further processing into tubes. Frequently, before reaching the recoiler, individual strands would sag below the horizontal line, which was symptomatic of a deficiency in strand tension. To re-establish tension in those coils, paper strips of varying lengths would be inserted in the developing individual sagging strand at the pinch point created where the strands met the developing coil being wound onto the recoiler drum. The strands ran over and onto the drum from above so that the inward pinch point was beneath the horizontal strands about to be wound. The slitting and winding process was conducted at a considerably high speed, varying as the diameters of the coils built up on the recoiler drum, and ranging from 150 feet of material per minute when the drum was bare to 450 feet per minute at the maximum size of the coil. All three slitting lines were operated 24 hours per day and six days per week at Leavitt. A slitter helper, such as Derrick, maintained surveillance of the steel strands to assure tight recoil rolls.

The cost of slitter No. 3 was $164,044.40. Yoder, through its engineers and sales personnel who visited Leavitt and witnessed its operation, knew of the dangers attendant to the hand stuffing of paper at the recoiler. It warned purchasers of its machines against that practice and sent explanatory written material to them for their own knowledge and for dissemination to their employees. No safety devices or guards of any kind were designed or placed by Yoder at the danger area of the inward pinch point to prevent the hand stuffing of paper because, Yoder's manager of engineering asserted, Yoder did not know how to design an effective guard for that area. No warning signs were affixed by Yoder to the machines in the danger area to remind a slitter helper of the impending danger or likelihood of injury. Although decal stickers were sent by Yoder to Leavitt to be affixed to the machine, whatever warning was given on the decals or where they were to be placed cannot be ascertained in the record.

Three tensioning devices manufactured by Yoder, designed to take up slack and maintain the necessary coil tautness, ranged in additional cost from $4,200 to $70,000. The least costly was a semiautomatic paper stuffer, and the most expensive was a roll tension stand which employed an adjustable pinch roll arrangement including rolls, gears and drag generator or brake automatically producing the necessary tension. No device was affixed as a standard component to the machine sold to Leavitt but one was available only as optional equipment. A paper stuffer had been purchased by Leavitt for machine No. 1 some years previous, following an accident in which another employee's arm was severed during the operation. No such devices were purchased by Leavitt from Yoder for machine Nos. 2 and 3 until after Derrick's mishap, at which time paper stuffers were also secured for them.

The Yoder paper stuffer is positioned on rails or tracks running on the floor underneath the machine between the slitting and the recoiling operations, at an intersecting angle to the strands of metal above. Strips of paper emerge sideways from a flat nozzle type device aimed by the operator at the inward pinch point of the sagging strand. The operator of this device can stand away from the danger point, position the nozzle, and push a button in order to dispense the necessary paper into the appropriate pinch point. This device was available in 1969, the same year in which slitter No. 3 was sold by Yoder to Leavitt. Slitter helpers employed by Leavitt testified that Yoder's paper stuffing machine did not work properly from 20 to 50 percent of the time, frequently jamming or failing to roll correctly on its tracks, requiring the hand stuffing of paper for the balance of the time. Leavitt declined to purchase paper stuffing devices from Yoder when it bought slitters Nos. 2 and 3 primarily because the machine was cumbersome, inconvenient to use, frequently jammed and was not compatible with Leavitt's use of the slitter.

A safety device designed by a different company, Pneu Powr, guarded the point of danger involved in this accident, according to plaintiff's evidence. It came to the attention of Leavitt's chief engineer and plant manager several months after Derrick's accident through reading a magazine article. A defense witness stated that it did not become available until April or May of 1974. The device permitted slitter helpers to place paper strips into a three-eighths-inch slot and blocked their hands from getting into the area of the inward pinch point of the recoiler. The Pneu Powr device, when installed, positioned itself automatically, rising with the steel coils as they built up on the recoiler drum. It did not slow down production, and its cost was from $1,000 to $1,500. A slitter helper would still have to crouch under the moving steel strands as they rolled onto the recoiler even with the safety device. According to the defense, the Pneu Powr device was not recommended by an ad hoc committee of the American National Standards Institute which promulgated and developed safety standards for machine tool manufacturers because the device required an additional work station and the operator would still have to be under the running strips stuffing paper, which was an invitation for some person to enter a hazardous area and create a pinch point equally dangerous to the one that existed.

Derrick was 28 years old at the time the accident occurred and had been educated through high school. While in high school he was employed as a driller on the body construction line by Ford Motor Company. He worked as a burr operator for Leavitt in 1969, a job which involved rounding off the ends of finished tubing. Thereafter, he worked in the slitting department where he was trained for four to six months by experienced slitter helpers. He was required to feed paper into the slack strands manually when he worked on slitters Nos. 2 and 3. He never saw any written instructions or an operator's manual as to how to perform his work, was never told not to feed paper by hand and was trained to do just that.

On the date of the accident, the steel was running very fast and Derrick had to stuff paper into about every coil in order to assure tight winding. No other method was provided on slitter No. 3 where he was working. The paper was thin, was from one inch and one-half to two inches wide, and was torn into strips 24 to 36 inches long, depending on the need, from a roll at his feet. He folded the strip in half and creased it at the top so that it would become rigid. He stooped over and, looking up, concentrating on the recoiler, placed the paper strip with his right hand. At that point, the steel was over his head coming from behind him. He was wearing cloth gloves and heavy canvas cuffs in order to avoid cuts on his hands and arms which could result from falling scrap steel. At the moment of the accident, Derrick felt a tugging on his glove. He assumed that a burr at the edge of the steel had caught on the glove. It pulled him off balance toward the recoiler, which was going so fast that his arm just disappeared and he was picked off his feet and "thrown around like a toy." His injuries necessitated the amputation.

Derrick was aware of the development of burrs in the process of slitting, depending upon how sharp the slitting knives were. He never knew when to expect a burr. He had bid on the job because there was more money involved in this type of work. He had been working on slitter No. 3 for more than three years at the time of the accident and was very familiar with its operation. He creased the paper to make it firm, "and plus, it would be safe that way, too." Customarily, he "* * * would always stay a safe distance from it. * * * [A safe distance would be] eighteen inches; sometimes a little more." He knew that one shouldn't get too close to the recoiler at that point because "* * * it was obvious it was dangerous." For three years he knew that if he got too close his hand could be taken in just like the paper. He never asked to see a manual on how to operate the machine and was never shown one. He knew that one of his foremen had lost his arm working on the machine, but he didn't know exactly how that happened. He heard of a clothespin method of stuffing the paper but did not recall ever seeing it used.

I.

Yoder's first argument is that Derrick assumed the risk of his injuries in consideration of his knowledge, understanding and appreciation of the dangers involved, as well as his age, experience and the obviousness of the danger. Relying upon Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 261 N.E.2d 305, Yoder maintains that just as Williams recognized and voluntarily accepted the danger of operating the bucking trencher there involved, Derrick was equally experienced in the operation of the recoiler and aware of the dangers of manual paper stuffing. Recognizing that in Williams the supreme court regarded assumption of risk as a question ordinarily to be determined by a jury, Yoder contends that here no question of fact arises because plaintiff admitted knowledge of all the elements of the assumption of risk defense, namely: it was dangerous; burrs would occur; his arm could be pulled into the recoiler; and he appreciated and understood that risk, yet deliberately exposed himself to it. Yoder also relies upon Fore v. Vermeer Manufacturing Co. (1972), 7 Ill. App.3d 346, 287 N.E.2d 526; Denton v. Bachtold Brothers, Inc. (1972), 8 Ill. App.3d 1038, 291 N.E.2d 229, appeal denied (1973), 53 Ill.2d 607; Ralston v. Illinois Power Co. (1973), 13 Ill. App.3d 95, 299 N.E.2d 497; Moran v. Raymond Corp. (7th Cir. 1973), 484 F.2d 1008, cert. denied (1974), 415 U.S. 932, 39 L.Ed.2d 490, 94 S.Ct. 1445, and Prince v. Galis Manufacturing Co. (1978), 58 Ill. App.3d 1056, 374 N.E.2d 1318, appeal denied (1978), 71 Ill.2d 614.

Derrick counters that although he knew the pinch point in which he was inserting paper was dangerous, he was careful to maintain what he believed was a safe distance from that point in order to avoid getting his hand caught therein and did not know that he could be injured while standing that distance away by having a burr catch his glove, pull him off balance and cause him to fall into the recoiler. Derrick asserts that assumption of risk is not simply comprehension and appreciation of the risk that must be shown; rather, it must be proved by Yoder, which has that burden, that he appreciated the particular risk involved and voluntarily and unreasonably proceeded to encounter a known danger, citing Scott v. Dreis & Krump Manufacturing Co. ...


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