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Facendo v. S.M.S. Concast

January 19, 1996


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Approved for Publication January 19, 1996.

Before Judges Shebell, Wallace and Newman. The opinion of the court was delivered by Shebell, P.j.a.d.

The opinion of the court was delivered by: Shebell

The opinion of the court was delivered by SHEBELL, P.J.A.D.

Plaintiff, David Facendo, filed an action against S.M.S. Concast Inc. ("Concast"), seeking damages for injuries he sustained on September 28, 1989, while employed by Raritan Steel Company ("Raritan"). *fn1 The case was tried to a jury, commencing on November 14, 1994. During trial, the Judge requested proposed jury charges from both counsel. Plaintiff requested the court to charge the heeding presumption based on Molino v B.F. Goodrich Co., 261 N.J. Super. 85, 617 A.2d 1235 (App. Div. 1992), certif. denied, 134 N.J. 482 (1993), and Coffman v. Keene Corp., 133 N.J. 581, 628 A.2d 710 (1993). However, the Judge ruled that the heeding presumption was not applicable, as it could not be presumed that plaintiff would have quit his job, or bid for atransfer, after believing that Concast's product was allegedly defective.

On December 2, 1994, the jury found that Concast's machine was defective because of a failure to warn. The jury also found that the negligence of Raritan was not an intervening cause which destroyed the causal connection between the effect of Concast's failure to warn and plaintiff's injuries. However, the jury found that Concast's failure to warn was not a proximate cause of plaintiff's injuries. Accordingly, the Judge entered judgment in favor of Concast.

Plaintiff filed a motion to set aside the verdict, to enter judgment in favor of plaintiff on the issue of liability, and to grant a trial on the issue of damages. In the alternative, plaintiff asked for a new trial on all issues. On January 6, 1995, an order was entered denying plaintiff's motion.

Ferrco was engaged by Raritan to prepare specifications for a five strand continuous billet casting machine for Raritan. The specifications set forth the minimum requirements which the bidder should follow and required the successful bidder to provide eight (8) copies of the installation and operation and maintenance manuals prior to shipment of the casting machine equipment. Concast was awarded the contract. Raritan used the machine to mold billets. In the process, liquid steel enters a thirty-two (32) inch long mold. Cooling of the steel begins to form a skin 1/3 to 1/2 thick inch around the billet. The billet enters the spray chamber where nozzles spray high velocity water onto the billet. This produces a shell while the inside is totally liquid steel.

The operating manual prepared by Concast stated that: "Liquid steel falling on even a small amount of water can cause explosions. All areas where steel spillage is likely must be kept dry." Concast's manual was located in the office of Raritan's Manager of Continuous Casting, who was ultimately responsible for the training of new and promoted employees. According to the manager, this manual was used primarily as a reference guide for operation, maintenance and supervision. The manager supervised the castingcrew which included, among others, the mold operators, torch operators and billet handlers. He testified that Raritan had a "hands-on" training program with regard to the operation of the casting machine, because "it's impossible for me to tell a new employee or my supervisor, or another operator to explain to a new employee, or person coming into our shop what could all happen."

The manager explained to the jury the process of molding billets and then stated that when liquid steel mixes with water you get a slight reaction called a breakout. He noted that some people call it an explosion, but basically it is a reaction in which a sudden release of steam creates hydrogen and makes a loud noise, which produces green and orange flames. He explained that when new employees come onto the caster they go through a progressive learning process and if they are leery or scared they can bid out of the casting department. No manuals are given to any employee for training as it is all "hands on."

Breakouts occur inside the spray chamber, but can be felt in the casting floor area. However, there are also alarms that will alert the mold operator that a breakout has occurred. The manager stated that it would be impossible for an employee at Raritan not to be aware of breakouts and the explosions that normally follow, as there are approximately twenty (20) to thirty (30) breakouts a month. The explosions vary in intensity. Sometimes they shake the floor and can be heard by employees outside of the casting area. He testified that explosions are a part of the regular operation of the facility.

Raritan's personnel director testified on behalf of plaintiff. He stated that Raritan employs about 600 full time employees in two major divisions: steel production and log production. The casting department, where plaintiff was employed, is one of the twelve departments within the steel production division.

Plaintiff was employed by Raritan for over three years. He was first employed on July 5, 1985, as a temporary summer employee, in the billet yard to grind and line billets. He received a Guide to Temporary Employment when he was hired. This handbook contained no statement on any common plant hazards, nor did it state that contact between liquid steel and even a small amount of water would cause an explosion. He was not told about any prior explosions.

Plaintiff returned as a temporary employee for the summer of 1986. He received the same Guide to Temporary Employment as before and read it from cover to cover. He worked inside the steel mill and helped the billet handler. He was trained by a billet handler.

Plaintiff became a full time employee as a billet handler on September 8, 1986. He received an employee's handbook in November 1986, and read it. The handbook did not list any common plant hazards, nor comment on potential explosions. In 1988, plaintiff received a Safety and Health Manual and read the entire manual. This manual listed common plant hazards, but did not mention explosions from liquid steel mixing with water. All of the manuals were prepared by Raritan, but none made any reference to explosions occurring on the caster floor. On April 17, 1988, plaintiff went from a ...

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