C & K LORD, INC. v. Carter ( 1988 )

GARRITY, Judge,

dissenting.

I respectfully dissent from the majority opinion. I believe that the evidence supported a finding, as a matter of law, that the accident would not have occurred but for the consumer’s disconnection of the automatic wash system which had been placed upon the machine by C & K Lord at the time of installation.

The observation by Judge Wilner on our behalf in Banks v. Iron Hustler Corp., 59 Md.App. 408, 432-33, 475 A.2d 1243 (1984), is well worth repeating:

The focus here is on the adjective “substantial”; not every change made to a product after it leaves the manufacturer suffices to preclude liability under § 402A. Perhaps because of the varying fact patterns from which the question arises, the courts have not yet settled on any uniformly expressed standard for judging when an alteration will or will not suffice to absolve the manufacturer of liability. Some courts stress the foreseeability of the alteration; others speak simply to whether the change made an otherwise safe product unsafe; and others, borrowing from the law of negligence, view the matter as whether the alteration constituted a supervening cause. If there is a common thread, it seems to be that, in most cases, the substantiality of the change is a question of fact, and if there is any conflict in the evidence, it is for the jury to determine.

(citations omitted).

According to the majority, the evidence failed to support a finding, as a matter of law, that “the disconnection of the automatic flood system was the sole cause of the accident, or that in the absence of the change, the accident would not have occurred.” (citations omitted). I totally disagree with that conclusion.

According to Eastern Shore’s plant manager, Mr. Elwood Pliescott, “when that conveyor was built originally, it had a flood system put on the pulley that____all he had to do was ... open a valve up and the water kept it flushed off.” In further explanation, Mr. Pliescott testified as follows:

The continuous flood system was taken off. When I say taken off, it was just a matter of unhooking the hose and doing away with it. The industry was having a problem, in particular that plant, with the volume of the amount of water that was having to be treated in the waste treatment facility. We endeavored to reduce the amount of used water from all locations. This was found to be one location where we could run the conveyor and, on a periodic basis, since it was a big hose up there used for washing the mezzanine up in the first place, the operator would simply take the hose and periodically wash the feathers off the pulley, the underside of that pulley, or the belt, as it was needed.

If you had real dry feathers, you had a build-up. The wetter the feathers the less the build-up you would have. So it would be, it would be on an as-basis rather than continuous. And we actually used a lot less water, and that was the reason it was changed.

Q When was it changed?

A I would say probably the middle of 1979, Summer of 1979.

Q It was changed before you left anyway?

A Yes, sir-ree. In fact I know it was changed before I left because I was the one that took the hose off.

Asked whether the particular wash system that had been installed would have prevented any build up of feathers in the idler pulley end of the belt conveyor over the feather cookers (the point of accident) Mr. Pliescott replied:

Depending how you use it. If you used it on a continuing basis, it would have prevented a build-up. If you shut it off and use the conveyor and then periodically just turned it on to flood the feathers off, which was perfectly acceptable too, either way doesn’t make any difference, you still could have cleaned the pulley without having to use a foreign item. That’s how all employees were trained by me.

In addition, Mr. Charles Lord and Mr. Harold Willey (a plant supervisor), testified that the only practical and effective way to remove automatically a feather build-up on the roller would be by means of “a spray or a water.”

Without question, the evidence established that but for the removal of the wash system by Eastern Shore (approximately two and one-half years before the accident), Carter would not have needed to use a stick to remove feathers from the take-up end of the conveyor. I believe the change with respect to the conveyor’s wash system that had been specifically designed to remove feathers constituted, as a matter of law, a substantial change. Although there may have been some disagreement by two individuals (who either had not been assigned to the conveyor operation or even employed by Eastern Shore) as to “when” the wash system had been in operation, if ever, the system’s effectiveness in preventing feather build-up was not refuted. I would hold that the trial court erred in denying appellant’s motion for judgment as to strict liability.

I also disagree with the majority in holding that “the conveyor ’malfunctioned’ within the meaning of Kelley when Carter’s hand was caught in it.” I believe that conclusion merely begs the question as to whether the belt conveyor had actually malfunctioned. If indeed there had been a malfunction of the machine, it had been caused by the feather build-up. Unless the build-up were cleared, the machine would jam, causing a shut down of the entire operation. If the wash system had not been disconnected by the consumer, however, the conveyor would have operated properly. In any event, as the “malfunction,” vel non, was not the fault of the manufacturer, the jury should not have been permitted to base its finding of strict liability upon the risk/utility test, which can only be triggered by a malfunction. Kelley v. R.G. Industries, Inc., 304 Md. 124, 497 A.2d 1143 (1985).