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ARTICLE ID 33815

FOLLOWED BY $________ PURSUANT TO PREVIOUS "HIGH/LOW" AGREEMENT - PRODUCTS LIABILITY - FAILURE TO WARN - INADEQUATE WARNINGS AND INSTRUCTIONS ALLEGEDLY PROVIDED BY FORMER OWNER/"CASUAL MANUFACTURER" OF CIGARETTE PAPER MACHINE - STRICT PRODUCTS LIABILITY COUNT ADDRESSING ALLEGED INADEQUATE GUARDING STRICKEN ON MOTION BY DEFENDANT - PLAINTIFF MACHINE OPERATOR SUFFERS TRAUMATIC AMPUTATION OF ARM DRAWN INTO IN-RUNNING NIP POINT.

Columbia County

The male plaintiff in this action was in his late 20’s when, while working in the course of his employment operating a cigarette paper machine along with three other employees, he sustained a traumatic amputation injury of his arm at the shoulder. The plaintiff brought suit against the former owner of the machine, Kimberly Clarke, which made modifications to the machine and, therefore, was responsible as a "casual manufacturer." The plaintiff initially asserted a strict liability claim on the theory of defective design and inadequate warnings. This aspect of the case was dismissed on the defendant’s motion for summary judgment based upon the lesser duties owned by a "casual manufacturer." The original manufacturer of the machine was unknown. The plaintiff additionally asserted that the machine lacked adequate warnings regarding the specific dangers of placing one’s hands in close proximity to the in-running nip points during operation.

The subject accident occurred on June 6, ________, at a large paper plant in Ancram, N.Y., where the plaintiff was employed. The plaintiff was working on the machine in question for the first time when the accident occurred, although the evidence indicated that he had received on-the-job training primarily consisting of observing his co-workers while receiving oral instructions.

The cigarette paper machine was a substantial piece of equipment measuring approximately 40 feet in length. One portion of the machine consisted of a series of dryers. At the time of the subject accident, the plaintiff was working on the second set of dryers, consisting of nine heated rollers through which the newly formed cigarette or cigar paper would pass for the purposes of drying.

At the time of the accident, the plaintiff was assigned to the position of back tender. The evidence indicated that his supervisor was working in the position of main operator or p 7 3 machine tender, while a third person was working in another area.

On the morning of the accident, the men were experiencing many problems with the machine. Specifically, they were having difficulty getting the drier drums to feed the freshly-made paper from one to another without the paper sticking. The problems were primarily attributable to the drums being too hot, according to defense counsel. In any event, paper jams were repeatedly occurring, requiring that the operators take steps to release the jammed paper.

The plaintiff was injured when he reached into the machine for the very purpose of freeing a piece of paper which had become jammed at an area where one of the nine rotating dryer drums created an out-running nip point. The plaintiff claimed that he was following the customary practice implemented regularly at this workplace when encountering a jam of paper such as occurred immediately prior to the plaintiff’s accident. The plaintiff maintained that he reached toward the rolling drum on which the paper had become jammed intending to free the paper and allow it to continue over the flywheel and into the in-running nip point created by the next rotating dryer drum. The plaintiff testified that as he grabbed hold of the paper jammed at the out-running nip point, the paper was moving so quickly that his hand was drawn into the in-running nip point of the next drum before he could pull it back. The plaintiff’s arm was traumatically amputated at the shoulder. The plaintiff alleged that the warnings provided on the machine were inadequate.

The defendant denied that the machine lacked adequate warnings and specifically argued that the plaintiff himself was responsible for the accident by placing his hand into an obviously dangerous part of the machine in close proximity to an in-running nip point. The defendant focused on the law pertaining to inadequate warnings in support of its argument, noting that a manufacturer or seller is not required to warn of patently obvious dangers. The defendant reasoned that given the obvious nature of the danger in question, specific warnings were not required.

The evidence revealed that when the plaintiff’s arm was drawn into the machine, his arm was traumatically amputated at the shoulder. The plaintiff underwent numerous painful surgical repairs and was ultimately fitted with a prosthetic arm. The plaintiff underwent a difficult period of rehabilitation and eventually returned to work at the same plant in essentially the same position.

The plaintiff and the defendant entered into a "High/Low" agreement in the amount of $________/$________. The jury found for the defendant. In accordance with the agreement, the plaintiff received $________.

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