Anderson Banks v. Iron Hustler Corp.

WILNER, Judge. This is a product liability case. Anderson Banks was injured at work when his hand became caught on a convey- or belt; he sued the manufacturer of the conveyor, Iron Hustler Corporation (Iron Hustler), claiming both strict liability and negligence in design. The Circuit Court for Baltimore City, by granting Iron Hustler’s motion for directed verdict, found as a matter of law that there was no liability.

Hence this appeal. We shall reverse. ⁴¹² The accident occurred on May 25, 1979, at the Brooklyn Salvage and Waste Company (Brooklyn), where Mr. Banks was employed. Brooklyn had purchased the conveyor from Iron Hustler in 1966. Its function was to move scrap metal up an inclined plane from a processing table to waiting railroad cars.

The conveyor was forty-four feet long, and, although there was no evidence as to the precise angle of the incline, it appears from certain photographs and from estimates mp,de by one of the witnesses that the conveyor began at about ground level and rose to an elevation of over thirteen feet. The three-foot wide belt is a rather heavy piece of rubber, and it is therefore necessary to provide support for it on both top (the upper part of the belt actually carrying the scrap up to the railroad car) and bottom (the empty part making the downward return to the processing table). When purchased from Iron Hustler in 1966, the bottom part of the belt was supported by four flat pieces of metal. The exact placement of those metal pieces along the forty-four foot length is not revealed in the record; for purposes of hypothesis on cross-examination of appellant’s expert witness, it was assumed that they were spaced at about tén-foot intervals.

On that assumption, their elevations would have been approximately two feet, six feet, nine to ten feet, and twelve to thirteen feet, respectively. Each of these flat metal supports created what has been referred to as a “nip point,” i.e., at the point that the belt moved downward over the metal piece, the danger was presented of anything coming into contact with the belt being caught between the moving belt and the stationary metal. At some point after the conveyor was installed and placed into operation, Brooklyn became dissatisfied with the system of flat metal supports along the bottom. According to the foreman, George Easto, the metal pieces acted like razors, and began shredding the belt as it passed over them.

To remedy that problem, Brooklyn removed the four flat ⁴¹³ metal supports and installed in their place fourteen rollers. The rollers not only avoided the shearing effect, but, because there were more of them, they provided better support for the belt. They also, of course, created ten additional “nip points,” making one at about every 2.8 feet. When manufactured and sold to Brooklyn, the underneath part of the conveyor was unshielded; there was no guard protecting a person working in the vicinity agaisnt inadvertent contact with the belt or the “nip points.” No such shield was ever added by Brooklyn.

Mr. Banks and one other employee were assigned to operate the conveyor. Banks, in particular, was responsible for seeing to it that the scrap was carried up properly; if a piece of metal got stuck or became positioned so as to prevent other pieces from being carried up, it was his job to remove that piece from the top part of the belt. Depending on the nature of the problem, the belt might or might not be stopped to permit Banks to do that. Mr. Easto explained that, if a piece of metal got caught while moving up the belt, the practice was not to stop the belt, but rather “to keep the belt moving and try to keep it going.” Banks confirmed that practice: “THE COURT: Well, put it this way — were you supposed to take debris off the belt when the belt was moving?

THE WITNESS: That was my job. THE COURT: But, were you supposed to do it while the belt was still moving? THE WITNESS: Yes, ma’am. That was my job.

THE COURT: Weren’t you supposed to stop the belt first? THE WITNESS: (Indicating negatively). We don’t stop that belt for nothing, for nothing going up there, because if you stop it, it[’s] going to hang up.” If, on the other hand, a piece of metal was found hanging off the side of the belt, the proper procedure was to stop the belt before pulling it off. According to Banks, however, ⁴¹⁴ his job was to “stay on the belt” and not to operate the cut-off switch.

If the belt was to be stopped, he would call over to his co-worker, who was positioned near the switch and who was responsible for stopping the belt. The accident happened when Banks noticed a piece of metal hanging over the other side of the belt and, in Banks’ words, threatening “to tear the machine all to pieces.” He called over for his co-worker to throw the switch, but the co-worker was not there; and so the machine was not stopped. Banks walked over to the other side of the belt and reached up to grab the piece of metal. In the course of doing so, he slipped on some loose debris under the belt and caught his hand in one of the “nip points.” The record does not indicate which of the fourteen “nip points” was involved.

The gravamen of Banks’ action, with respect to both the negligence and strict liability claims, was the design and sale of the conveyor by Iron Hustler without an adequate shield. That, he averred, made the machine defective and dangerous. In support of that contention, Banks produced the testimony of Edward B. Landry, a safety engineer who for many years had been director of safety and health for the Post Office Department. Mr. Landry was familiar with the conveyor systems used by the Post Office and opined that, although there is a variance between conveyors in terms of what they have to convey, “the belt conveyor that is used for moving material, packages and loose material, bulk material, is basically the same whether it is used in the postal service or some place else.” Landry said that he was “knowledgeable of conveyors used in scrap yards,” that he had seen them in operation and had examined them.

The court accepted him as an expert in the field of safety engineering. Mr. Landry stated that the “nip points,” whether caused by flat metal pieces or rollers, created a hazard that might ⁴¹⁵ not be obvious to a workman. His testimony in that regard was as follows: “Q [By Defense Counsel] Now, this pinch point that you have testified to, where the roller and the belt meet, that creates, rather, an obvious hazard. Nobody would purposely stick their hand in that particular location, would they?

A Well, I would have trouble labeling it an ‘obvious’ hazard. I might find it an obvious hazard in terms of my experience, but whether or not a workman would appreciate the significance of that pinch point when he was engaged in doing some other part of his work, I think is very speculative. Q Well, you heard Mr. Banks testify that it was an obvious hazard, as far as he was concerned, didn’t you? A I think he was aware that if you deliberately put your hand in there, that something would happen to your hand.” 1 Technology, he said, was available in 1966 to protect against that hazard, whether the hazard was created by flat metal supports or rollers.

The “technology” was to “shield off the underside of the conveyor framework,” which could be done by a piece of either sheet metal or “expanded metal.” Such shields were used by the post office and, for a cost of about $300, could have been put on the conveyor sold to Brooklyn. Mr. Landry stated that at least one other manufacturer currently provided guards on its conveyors as a uniform practice, although he did not know if that was its practice in 1966. From his examination of the Brooklyn conveyor and his other knowledge and experience, Landry opined that the conveyor system installed at Brooklyn “was inherently dangerous and defectively designed because of the fact that the underside of the conveyor system presented a known haz ⁴¹⁶ ard and risk to a person who would be working in that area.” He stated further that “there was a direct relationship between the defective design, as I would term it, from a safety engineering point of view, and Mr. Banks’ accident.” From a safety engineer’s point of view, he said, Iron Hustler “did not act prudently in the interest of safety.” Ultimately, he concluded, “my opinion is that the absence of the guard was a direct cause of Mr. Banks’ injuries.” Mr. Landry was asked several times about the effect of Brooklyn’s modification of the machine — its replacement of the four flat supports with the fourteen rollers. It made no difference, he said; whether using flat pieces or rollers, the prudent thing was to shield the undercarriage to prevent contact with the “nip points.” He explained: “I would simply say that this case here, on a conveyor system, we know that accidents happen.

We can’t stop the camera when someone is in a position to get hurt, and all I would say to. you, in my language as a safety engineer, is that the existence of either the strips or the rollers is simply waiting for an accident to happen, and if we know what to do to prevent that injury from happening, and it can be done within reasonable economical means, then the logical thing is to apply it.” The increase in the number of “nip points” occasioned by replacing four supports with fourteen would tend to increase the probability or risk of injury, Landry conceded, but not the underlying hazard itself. Upon this record, the court entered the directed verdict, seemingly on two bases: (1) that as a matter of law, the hazard was patent and under current Maryland law no liability exists either for negligence or under strict liability where the danger is patent; and (2) as Mr. Landry “did not know or indicate that the state of the art in 1966 then or since was to include guards under the conveyor belt in salvage yards or anywhere else,” Banks had failed to prove that Iron Hustler “deviated from any type of industry practice in 1966 when the guards were installed.” ⁴¹⁷ Banks takes issue with both reasons. He argues that the so-called “latent/patent rule” either has been or ought to be discarded in Maryland, and thus should not serve as the basis for rejecting his claim. The court also erred, he urges, in using the lack of an industry standard in 1966 as a basis for rejecting his claim under strict liability.

Iron Hustler rejoins that (1) the “latent/patent rule” is alive and well and precludes liability, (2) apart from that rule, Banks failed to prove that the conveyor was defective or that there was a causal connection between the alleged defect and the injury, and (3) Banks, as a matter of law, assumed the risk of his injury by attempting to remove the metal from the belt while the belt was still running. 2 The Latent/Patent Rule (1) In Action Based, On Negligence The “latent/patent rule” arose during the early development of product liability law, before the advent of strict liability and at a time when the requirement of privity severely limited actions against a manufacturer for breach of warranty. In those days, a manufacturer’s liability for injury caused by a defective or dangerous product rested principally upon proof of either negligence or deceit, and the rule was, in effect, a circumscription of even those limited forms of liability. The rule and its rationale were explored in some depth by the New York Court of Appeals in Campo v. Scofield, 301 N.Y. 468 , 95 N.E.2d 802 (1950). They were expressed thusly (95 N.E.2d p. 804): “If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands.

We have not yet reached the state where a manufacturer is under the duty of making ⁴¹⁸ a machine accident proof or foolproof. Just as the manufacturer is under no obligation, in order to guard against injury resulting from deterioration, to furnish a machine that will not wear out, ... so he is under no duty to guard against injury from a patent peril or from a source manifestly dangerous. To illustrate, the manufacturer who makes, properly and free of defects, an axe or a buzz saw or an airplane with an exposed propeller, is not to be held liable if one using the axe or the buzz saw is cut by it, or if some one working around the airplane comes in contact with the propeller. In such cases, the manufacturer has the right to expect that such persons will do everything necessary to avoid such contact, for the very nature of the article gives notice and warning of the consequences to be expected, of the injuries to be suffered.

In other words, the manufacturer is under no duty to render a machine or other article ‘more’ safe — as long as the danger to be avoided is obvious and patent to all.” To some extent, this rule seems to borrow from principles traditionally associated with the doctrines of contributory negligence or assumption of risk, but, where recognized, it is generally applied as a caveat or limitation to the defendant’s primary negligence. As Campo v. Scofield very clearly pointed out, there simply was no duty on the part of a manufacturer to guard against patent dangers in his product; there being no such duty in the first instance, there could be no breach of duty for failing to protect against such dangers, and hence no negligence. Thus, said the Court in Campo , the manufacturer of an onion-crushing machine was not negligent by failing to provide either a guard sufficient to prevent the user from coming into contact with the rollers used to crush the onions or an automatic cut-off device. If a manufacturer was to be compelled “to equip complicated modern machinery with all possible protective guards or other safety devices,” the Court observed (95 N.E.2d p. 805), the Legislature would have to enact the compulsion. ⁴¹⁹ Campo v. Scofield, was not the first case to enunciate or apply this rule; it did, however, serve as an important vehicle for proliferating it among other States.

Maryland joined the ranks with Myers v. Montgomery Ward & Co., 253 Md. 282 , 252 A.2d 855 (1969). The plaintiff there sued both the manufacturer and the retail seller of a rotary blade power lawn mower for negligence in design, breach of warranty, and strict liability. His complaint was that the mower did not have a “dead-man” control which, when released, would stop the blade and did not contain a vertical adjustment so as to permit the blade to be raised or lowered without increasing the height of the protective housing around it. In order to mow some tall grass, the plaintiff had raised the elevation of the blade by lowering the wheels, which had the effect of raising the height of the protective housing.

While mowing on a slope, he slipped on the newly mown grass; his foot slid under the housing and was struck by the spinning blade. The Court of Appeals, in affirming the dismissal of Myers’ action on demurrer, concluded that no case had been stated against either defendant. With respect to the claim of negligence, the Court held that the manufacturer of a mower is not an insurer and was under no duty to make an accident-proof product. At p. 293, 252 A.2d 855 : “No cause of action is made out in the absence of an allegation that the injury was caused by a latent defect not known to the plaintiff or a danger not obvious to him, which was attendant on proper use, and that the manufacturer was under a duty to correct or prevent that defect or warn of the peril, at least where the injury is foreseeable and probable ... or that the article was unsafe for the use for which it was supplied____” As authority for that proposition, the Court cited Kientz v. Carlton, 245 N.C. 236 , 96 S.E.2d 14 (1957) which, in turn, relied upon Campo v. Scofield.

Myers’ breach of warranty claim was rejected on the basis that the only cognizable warranty was that “the ⁴²⁰ mower was fit to cut grass safely when it was used in a normal manner, not that Myers would not be injured when he fell on the slope, and his foot slipped under the mower.” 253 Md. at 296 , 252 A.2d 855 . Finally, the Court reaffirmed its earlier determination in Telak v. Maszczenski, 248 Md. 476 , 237 A.2d 434 (1968), not “to espouse the cause of strict liability.” The Court confirmed its adherence to the “latent/patent rule” in Blankenship v. Morrison Mach. Co., 255 Md. 241 , 257 A.2d 430 (1969). Like Mr. Banks, the plaintiff there was injured on the job; his arm was caught between an unguarded squeeze roller and drum on a sanforizing machine.

He sued the manufacturer of the machine for negligence and breach of warranty for failing to provide a guard or protective device, but, as in Myers , the case was dismissed on demurrer. The Court of Appeals, citing Myers , maintained its adherence to the “latent/patent rule” despite criticism that the rule “is a vestigial carryover from pre MacPherson days [MacPherson v. Buick Motor Co. (N.Y.), 111 N.E. 1050 ], when deceit was needed for recovery----” Id., 255 Md. 246 , 257 A.2d 430 . The Court, citing Campo , noted that “Maryland has followed New York, which still remains loyal to the vestigial carryover of the latent-patent rule.” Id. The breach of warranty claim was rejected on grounds of lack of privity.

The “latent/patent rule” was reaffirmed again in Patten v. Logemann Bros. Co., 263 Md. 364 , 283 A.2d 567 (1971), a case similar on its facts to Blankenship . The plaintiff there was also injured at work as the result of an unshielded machine. . He slipped and his hand accidentally fell into an unguarded lubrication hole in a paper baling machine, where a piston amputated several fingers.

His suit against the manufacturer, apparently on a theory of negligence, was thrown out on summary judgment, which the Court of Appeals affirmed based on Blankenship . Once again, the Court expressly maintained its allegiance to the rule, despite the mounting criticism, of it. ⁴²¹ Finally, in Volkswagen of America v. Young, 272 Md. 201 , 321 A.2d 737 (1974), the Court, citing Myers, Blankenship, and Patten , observed that in a product liability action based on negligence “there can be no recovery if the danger inherent in the particular design was obvious or patent to the user of the vehicle.” 272 Md. at 219-220 , 321 A.2d 737 . As of 1974, then, the “latent/patent rule” was alive and well in Maryland, in actions based on negligence. Banks argues, however, that the Court of Appeals implicitly abandoned that rule in Phipps v. General Motors Corp., 278 Md. 337 , 363 A.2d 955 (1976), when it finally adopted strict liability as a cognizable basis of a product liability claim.

Phipps arose from an automobile accident. The driver and his wife sued the manufacturer in Federal court claiming a latent defect in the accelerator mechanism. Three theories of liability were pled — negligence (counts 1 and 4), breach of warranty (counts 2 and 5), and strict liability (counts 3 and 6). The District Court certified two questions to the Court of Appeals: (1) whether counts 3 and 6 stated a cause of action in Maryland, and (2) whether count 5, seeking damages for loss of consortium by reason of the alleged breach of warranty, stated a cause of action.

Given the relevant pleadings in the case and the questions certified by the District Court, it is clear that neither the sufficiency of the negligence counts nor the “latent/patent rule” was before the Court of Appeals. The Court answered the first question in the affirmative, adopting for the first time the doctrine of strict liability as set forth in Restatement of Torts 2d, § 402A. In doing so, it pointed out that an action based on strict liability differed from an action in negligence in that it “focuses not on the conduct of the manufacturer but rather on the product itself” and thus obviates the need to “prove any specific act of negligence on the part of the seller.” 278 Md. at 344 , 363 A.2d 955 . ⁴²² There is nothing in Phipps to suggest that the traditional action for negligence was to be subsumed in or replaced by the newly adopted strict liability. Indeed, as subsequent cases make clear, strict liability merely takes its place alongside negligence and breach of warranty as an alternative basis of liability.

See American Laundry Mach. v. Horan, 45 Md.App. 97 , 412 A.2d 407 (1980); Jensen v. American Motors Corp., 50 Md.App. 226 , 437 A.2d 242 (1981); Harley-Davidson v. Wisniewski, 50 Md. App. 339 , 437 A.2d 700 (1981), cert. denied 292 Md. 596 (1982); cf. Harig v. Johns-Manville Products, 284 Md. 70 , 394 A.2d 299 (1978); see also E. Digges, Product Liability Revisited, 7 U.Balt.L.Rev. 1 (1977). Accordingly, the mere recognition of this alternative cause of action would have no effect upon the elements necessary to prove an action for negligence, and would not, therefore, serve implicitly or explicitly to modify the “latent/patent rule” as applied in negligence cases. We are persuaded that the “latent/patent rule” is an anachronism and ought to be discarded. As the Court pointed out in Palmer v. Massey-Ferguson, 3 Wash.App. 508 , 476 P.2d 713, 719 (1970), “[t]he manufacturer of the obviously defective product ought not to escape because the product was obviously a bad one.

The law, we think, ought to discourage misdesign rather than encouraging it in its obvious form.” Although the Court of Appeals on four occasions within the past fifteen years has confirmed this “vestigial carryover,” it did so in at least two of those cases on the authority of Campo v. Scofield. It is therefore worthy to note that the New York Court of Appeals — the Court that decided Campo and spawned the proliferation of the rule— declared in Micallef v. Miehle Co., D. of Miehle-Goss Dexter, 39 N.Y.2d 376 , 384 N.Y.S.2d 115 , 348 N.E.2d 571, 573 (1976), that “[t]he time has come to depart from the patent danger rule enunciated in Campo v. Scofield....” Finding the rule to be too rigid and not in keeping with today’s world, the Micallef Court discarded it. In its place, the ⁴²³ Court adopted, as the appropriate standard in a product liability action based on negligence that “a manufacturer is obligated to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended .. as well as an unintended yet reasonably foreseeable use....” Id, 384 N.Y.S.2d 115 , 348 N.E.2d 577 . Whatever may be our feeling about whether Maryland should continue to adhere to this rule, however, we can neither overrule nor ignore the decisions of our Court of Appeals.

We are bound by Myers, Blankenship, Patten, and Volkswagen of America , and thus are constrained to conclude that, if the danger in the product is patent, the injured plaintiff may not recover on a theory of negligence. That does not end the inquiry, however. Maryland