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JOHN PARGO, JR. AND LIBERTY MUTUAL INSURANCE COMPANY v. THE ELECTRIC FURNACE COMPANY

NOVEMBER 26, 1986

JOHN PARGO, JR. AND LIBERTY MUTUAL INSURANCE COMPANY
v.
THE ELECTRIC FURNACE COMPANY



BEFORE ROY NOBLE LEE, P.J., ANDERSON AND GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

This is an appeal from the Circuit Court of Monroe County, wherein defendant, The Electric Furnace Company (Electric) was granted a M.R.C.P. Rule 56 Motion for Summary Judgment, and plaintiff John Pargo, Jr. saw his cause dismissed with prejudice, plaintiff to pay all costs. In so granting defendant's motion, the trial court, in its opinion, found that plaintiff could not recover from the manufacturer of the salt bath in which Pargo was injured as it was a product with an alleged defect which was "open and obvious" , and that plaintiff assumed the risk by being aware of and appreciating the danger while in contact with the machine. We do not agree, and reverse this cause of action, finding that there are genuine issues of material fact to be tried and heard by a jury.

In 1946 American Fork and Hoe Co. (now True Temper Sports, Inc.) ordered a salt bath furnace for quenching tubular golf shafts for use at a plant in Geneva, Ohio. The Electric Furnace Company constructed the salt bath in accordance with the contract and delivered it to the American Fork and Hoe Co. in Geneva, Ohio. Thereafter, American Fork and Hoe constructed a platform at the

 operator's unloading station and provided a movable wooden platform to be used by their employees when it was necessary to clear a "hangup" in the salt bath furnace.

 In approximately 1973, this salt bath was moved from its original location in Geneva, Ohio, to the True Temper Sports, Inc., plant in Amory, Mississippi. The platforms that had been constructed by American Fork and Hoe around the salt bath furnace in Geneva were removed and new ones were designed by True Temper Sports, Inc., in Amory, Mississippi. However, no platform or catwalk was placed on the particular salt bath in which Pargo injured his leg, although the other two salt baths in operation at True Temper Sports, Inc. each had a catwalk which had been constructed around them.

 The salt bath had sectionalized covers under the outside perimeters that were bolted down. Underneath the covers was liquified salt that had been heated to a temperature of approximately 500 degrees.

 John Pargo, Jr., was an employee of the True Temper Sports, Inc., in Armory, Mississippi, on March 5, 1981, and had been employed there for approximately 13 years.

 On the day of the accident, Pargo was on the salt bath helping the operator remove some golf shafts. He unbolted the covers and removed them. Thereafter, he slipped or misstepped, placing his leg down in the salt, and thereafter received burns that resulted in amputation of his right leg below the knee.

 The statements adduced by plaintiff in his sworn affidavit revealed his apparent ignorance of the dangerous nature of the salt bath and the consequences which would ensue upon physical contact of his body with the instrument. In this affidavit, Pargo claimed that, while he was aware of the dangerous aspects of the salt bath furnace and that this furnace contained "very hot liquid" :

 (4) On or before March 5, 1981, I had absolutely no knowledge that the liquid in the salt bath furnace was hot enough to cause me to lose my leg if my foot slipped into the salt bath mixture.

 When asked whether or not Pargo was capable of appreciating the risks involved while working with the salt bath furnace, Billy G. Pearson, Employee Relations Manager for True

 Temper Sports, Inc., testified that Pargo's level of intelligence inhibited his full understanding of the relative danger inherent while working with the salt bath. Pearson said that:

 I can't do anything about the danger. Well, as far as I'm aware, other than what we've now done - I'll answer it this way - and I don't mean any ill remarks about the employee, because he's a great person but it's hard to guard against ignorance, . . .

 Further testimony by other employees of True Temper Sports, Inc. revealed that installation of a catwalk for the salt bath furnace - catwalks were on other furnaces - had been contemplated and possibly even recommended at that time, but the idea was discarded as either unnecessary or premature because the furnace was not in operation at that time. Too, the foreman himself (one Robert M. Ledbetter) testified in his deposition that not only was the Company aware of the dangerous nature of the salt baths, but had taken ...


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