PHILADELPHIA – A Bucks County man has voluntarily discontinued litigation against a pair of manufacturers for negligence and other causes of action in federal court, after his legs were allegedly crushed while using a turntable stretch wrapper machine.
Plaintiff Richard Ross of Levittown first filed his complaint in the U.S. District Court for the Eastern District of Pennsylvania on May 1, versus Wulftec International, Inc. of Ayer’s Cliff, Quebec, Canada and Duravant, LLC, of Downers Grove, Ill.
According to the suit, plaintiff was at The PolyCube Company, LLC facility in Levittown, working for it as a production and maintenance supervisor. Meanwhile, defendants Wulftec International, Inc. and Duravant, LLC were responsible for designing and installing an Automatic Turntable Stretch Wrapper, as used at The PolyCube Company.
“The subject Automatic Turntable Stretch Wrapper is a stretch wrapping system consisting of a turntable in the shape of an octagon attached to a steel tower embodying a control panel. The structure is made of heavy-duty structural steel. A control section including a large emergency stop button is located on the side of the tower. Pallets containing material to be stretch-wrapped can be placed onto the turntable by an operator. The turntable rotates, and rolled stretch-wrap material ascends and descends the tower, wrapping the objects on the turntable,” the suit stated.
The suit explained the Automatic Turntable Stretch Wrapper was located directly adjacent to a conveyor belt consisting of metal rollers to facilitate the loading of material onto the octagon-shaped turntable, with the narrow area between the turntable and the conveyor belt creating an unguarded pinch hazard to those working with the Automatic Turntable Stretch Wrapper.
“Because of the strength of the components and the close-proximity between the turntable and the conveyor belt, this pinch hazard was capable of doing severe damage to anyone caught between the two components. Moreover, the location of the emergency stop button on the tower was beyond the reach of anyone caught between the turntable and the conveyor belt and created a hazard to anyone such as plaintiff who became entangled with the turntable. This dangerous and unsafe hazard was not safeguarded to prevent worker access while the turntable was in operation as required by code, statute, and good safety engineering practice,” the suit stated.
As a result, when using the Automatic Turntable Stretch Wrapper device, Ross attempted to adjust plastic wrap around a palette of material, when suddenly and without warning, the turntable started rotating, pinning the plaintiff’s legs between the turntable and conveyor belt, thereby causing him to suffer severe and grievous crush injuries to both of his legs.
Defendant Duravant filed an answer to Ross’s suit on July 28, 2020, contending it was not responsible for his injuries in denying his allegations, and asserting 13 affirmative defenses. Among them were the following:
• Plaintiff’s claims are barred and/or limited by the provisions of the Pennsylvania Comparative Negligence Act;
• By plaintiff’s actions at the time, date, and place stated in the complaint, plaintiff assumed the risk of any and all injuries and/or damages which they is alleged to have suffered;
• The claims of the plaintiff are barred or limited by the misuse and abuse of any product supplied in any fashion by the answering defendant;
• Any claims the plaintiff or any other party to this action based upon alleged warranties, express or implied, are barred in that there was no privity of contract between the plaintiff and answering defendant and there has been no timely notice of any alleged breach of warranty given to answering defendant;
• Plaintiff’s conduct should constitute a defense in that decedent’s conduct, rather than a defect in the product, should be deemed the legal cause of the incident.
Duravant was later dismissed as a defendant on March 30 of this year.
UPDATE
Ross filed a motion to voluntarily discontinue his case on Sept. 29, so that he may proceed with further legal action in state court.
“During the course of discovery, it became apparent that plaintiff would need to assert a direct claim against third-party defendant Stretch Wrap Systems, LLC (doing business as “SWS Packaging, LLC”),” the motion read.
“However, as third-party defendant Stretch Wrap Systems, LLC is a citizen of the Commonwealth of Pennsylvania, a direct claim by plaintiff, who is also a citizen of the Commonwealth of Pennsylvania, would destroy diversity and this Honorable Court would no longer possess jurisdiction over this action. As such, plaintiff has filed a separate action naming Stretch Wrap Systems, LLC as a defendant in the Philadelphia County Court of Common Pleas. Therefore, plaintiff seeks to voluntarily dismiss the above-captioned action without prejudice so that he may proceed with his action in state court.”
Per the motion, counsel for Stretch Wrap Systems, LLC has consented to plaintiff’s proposed course of action of proceeding in state court.
U.S. District Court for the Eastern District of Pennsylvania John R. Padova granted the motion on Oct. 4, dismissing the federal case and paving the way for Ross to proceed in the Philadelphia County Court of Common Pleas.
Prior to discontinuance and for multiple counts of negligence, strict product liability, breach of warranty, the plaintiff was seeking damages in excess $150,000, together with costs of suit, interest and reasonable attorneys’ fees, as well as any such other relief as the Court deems adequate, just and proper, in addition to a trial by jury.
The plaintiff was represented by Brandon A. Swartz, Bryan Michael Ferris and Matthew J. McElvenny of Swartz Culleton, in Newtown.
The defendants were represented by John J. Snyder, Joseph A. Gorman and William J. Carr Jr. of Rawle & Henderson, Lauren C. Fantini of McEldrew Young and Henry J. Noye of Bunker & Ray, all in Philadelphia, plus Patrick J. Hasson of Mezzanotte & Hasson, in Scranton.
U.S. District Court for the Eastern District of Pennsylvania case 2:20-cv-02107
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com