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MALINOSKI v. GLASS EQUIP. DEV.

September 14, 1994

GARY MALINOSKI, Plaintiff
v.
GLASS EQUIPMENT DEVELOPMENT, INC., Defendant



The opinion of the court was delivered by: THOMAS I. VANASKIE

 In this action to recover damages for personal injuries, defendant Glass Equipment Development, Inc. (hereinafter referred to as "GED"), has moved for summary judgment on the basis of a claimed post-sale alteration to an allegedly defective manufacturing machine -- a hot roll press used in the production of double pane windows. Because there are disputed issues of material fact as to whether (a) the alleged alteration was a causative factor in the accident, and (b) the foreseeability of the alteration, summary judgment will be denied.

 I.

 This action arises out of an accident that occurred on October 24, 1989 during the course and scope of plaintiff's employment with Wenco Manufacturing Company ("Wenco"), a glass processing plant. One of the products produced by Wenco is a double pane window, which, according to plaintiff, is produced "by moving two pieces of glass separated by butyl (a rubbery plastic) on a moving rolling line through an oven, to heat the butyl, then over another short section of rollers and into a fixed rolled glass press to seal the window, after which it exits on another series of moving rollers." (Brief in Opposition to Summary Judgment Motion (Docket Entry #30) at 1.) At the time of the accident, plaintiff was attempting to clean butyl from the rolls of this production machine. As he was attempting to wipe away the butyl, his right hand was pulled into the rollers, resulting in a severe degloving injury to his right hand.

 The roll press machine involved in plaintiff's accident had been manufactured and installed at the Wenco facility by GED in 1985. At the time of its installation, the roll press machine was equipped with a metal guard to which photoelectric cells were attached. If the photoelectric beam generated by the cells was interrupted, the machine was to shut down. The alignment of the photoelectric cells was tied to the alignment of the rollers for the roll press. When the rollers for the roll press were adjusted to accommodate different thicknesses of glass, the alignment of the photoelectric eyes moved with the adjustment of the rollers. Plaintiff claims that the purpose of the guard equipped with the photoelectric cells was "to prevent oversized pieces [of glass] from entering the press and being crushed." (Brief in Opposition to Defendant's Summary Judgment Motion (Docket Entry #30) at 2.)

 It is undisputed that this guard could be lifted from the entry side of the glass press and placed on top of the machine. The parties dispute whether the guard could be removed without breaking the photoelectric beam.

 It is also undisputed that some time prior to plaintiff's accident, Wenco installed a switch on the roll press machine to override the photoelectric cell. In other words, the photoelectric beam could be deactivated by a switch. Plaintiff claims that the switch was installed "because Wenco often constructed window panes with breather tubes in them, which stuck up from the frame itself, and often tripped the photoelectric eyes, causing frequent production delays." (Brief in Opposition to Summary Judgment Motion (Docket Entry #30) at 3.)

 At the time of plaintiff's accident, the guard in question had indeed been removed and placed on top of the roll press. It is unclear, however, whether the photoelectric beam had been deactivated.

 II.

 This action was originally commenced by the filing of a writ of summons in state court on October 24, 1991. GED removed the action to this Court, invoking diversity jurisdiction under 28 U.S.C. § 1332.

 Plaintiff is pursuing claims against GED based on products liability, negligence and breach of warranty theories. The specific claims of the plaintiff concern:

 
The absence of a properly interlocked roll guard which would prevent operation without the guard in place, the absence of emergency stop switches in hazardous areas, the absence of a jog control, manual and otherwise, which would allow easy cleaning of the rolls, without the machine continuously running and without the guard on, but without danger to the person cleaning, and the absence of adequate instructions or warnings concerning proper and safe cleaning procedures, from the manual and the machine itself. [Id. at 4-5.]

 GED moved for summary judgment on July 19, 1994. Briefing was completed on August 8, 1994, and this matter ...


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