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ANDERSON v. SCHEFFLER5/24/1991
The opinion of the court was delivered by
This is a personal injury action. Jacob Anderson appeals from the trial court's grant of a partial directed verdict in favor of Randy Scheffler and Industrial Bearing & Transmission Company.
This case was before this court once before, and the underlying facts were stated therein. Anderson v. Scheffler, 242 Kan. 857, 752 P.2d 667 (1988). For convenience, we again summarize them. On February 2, 1982, Jacob Anderson and his brother James delivered a load of poultry meal to Badger By-Products Company (Badger) in Wyandotte County, Kansas, a plant owned by Beatrice Companies, Inc., (Beatrice) a Delaware corporation. James backed the hopper trailer over an underground auger pit and began to unload the meal. From the top of the trailer, Jacob used a pole to push the meal through an opening at the bottom of the trailer. When he finished, Jacob descended from the trailer and walked across a grate covering a second auger at the rear of the trailer. Jacob's foot slipped between the bars of the safety grate and his foot and leg plunged into the auger. His leg was severed above the knee. 242 Kan. at 857-58.
Jacob, a Missouri resident, filed suit in Wyandotte County District Court against Badger. The suit was removed to federal district court and amended to include as defendants Beatrice; Conveyors, Inc., (Conveyors) the auger manufacturer; and Arthur J. Gallagher & Co. (Gallagher), supervisor of hazardous conditions at Badger. A motion to join Industrial Bearing & Transmission Company, Inc., (IBT) supplier of the auger, was denied because it would destroy diversity. 242 Kan. at 858-59.
Jacob settled with Badger, Beatrice, and Conveyors. 242 Kan. at 859. Summary judgment was granted to Gallagher based on Jacob's failure to establish that Gallagher owed a duty to him under Restatement (Second) of Torts ยง 324A (1965).
Jacob and James filed a second suit in Wyandotte County District Court against IBT and its employee Randy Scheffler. Scheffler
had accepted the order from Badger for the auger. The district court granted summary judgment in favor of IBT and Scheffler. Upon appeal, we determined summary judgment of Jacob's claim was premature and remanded the case for trial. 242 Kan. at 859-60,866.
At trial, Jacob established that Badger's plant manager, Philip Rogers, contacted Scheffler concerning the implementation of a new underground conveyor system. Scheffler's deposition, read into evidence, indicated that Rogers called and requested 24 feet of 12-inch screw conveyor to put underground. Rogers indicated he had a motor for the conveyor system but needed the drives to go along with the rest of the system. Rogers wanted a system that could transport 40,000 pounds of material per hour, but left computation of the necessary variable drives to Scheffler's expertise. In his deposition, Scheffler admitted he knew a grate was necessary to protect people from the auger and that a safety hazard existed without some kind of covering. Nevertheless, he did not order a grate along with the other component parts of the conveyor system because it was not a part of the conveyor system IBT sold. Finally, Scheffler's deposition established that Rogers had asked Scheffler about the strength of metal needed for a guardrail over the floor auger. In response, Scheffler advised Rogers to obtain professional help from someone knowledgeable about grates.
Scheffler conceded upon cross-examination that he gave Rogers advice on how to improve the movement of a portable auger. Jacob's expert witnesses testified that Scheffler undertook to provide engineering services when he designed and provide
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