Hell on wheels: liability for tractor-pulled mower injuries.

Agriculture ranks fourth among all U.S. industries for work-related fatalities.(1) The most frequent cause of injury and death on farms is tractor overturns.(2) The second most frequent cause is tractors running over farm workers. In over half these cases, the victim first fell from the tractor as opposed to already being on the ground.(3) Falls from tractors cause an estimated 130 deaths each year.(4)

This article discusses the liability of tractor manufacturers and trailing rotary field mower manufacturers for operator deaths and injuries. Most liability cases involve either one or both of these manufacturers since the deaths and injuries are 100 percent foreseeable. In many cases, the serious injuries and deaths are preventable. In other cases, the seriousness of the injuries can be minimized by one or more technologically and economically feasible safety devices.

A deadman switch, also known as an operator presence sensing system (OPSS), sets off an alarm or turns off one or more power sources and brakes the tractor when the operator leaves the seat with the engine on and the tractor in gear. Many variations of this system exist.

The need for these devices, though on other types of machinery, was first recognized early in this century.(5) By 1934, the first OPSS on a tractor was patented. The patentee, Andrew Brislin, recognized that frequently

the driver slides or tumbles from his

seat to the ground and is out of reach

of the usual ignition switch. If the implement

being towed is a wide gang

of plows, disks, or harrows, the fallen

driver may be in danger of life or

limb from the oncoming, uncontrolled

implement.(6)

Perhaps the most famous OPSS patent was issued to Clarence Dooley in 1941 for a tractor safety, control.(7) This patent became the basis of the famous Dooley switch that stopped an engine when the operator's weight left the seat. Later tractor OPSS patents were granted to Edwin and Paul Hoffman in 1951(8) and Russel Acton in 1945.(9) These patents further illustrated the foreseeability of falls from tractors and injury from being run over by either a tractor or a trailing implement.

In 1967 and 1972, American Society of Agricultural Engineers (ASAE) standards recognized that tractors roll over in normal usage.(10) Logically, then, they also tip in normal usage since a tip is simply an incomplete roll. Tips inevitably lead to operator falls when the tractor is not equipped with seat belts or the belts are not being used.

Industry on Notice

Although no government agency keeps statistics of serious injuries or deaths caused by falls from tractors, there are statistics that put manufacturers on notice that these accidents occur frequently. Numerous articles and statistical studies, published beginning in the 1960s but covering periods starting in the 1940s, discuss serious injuries or deaths as a result of falls from tractors.(11) These articles include data on falls of tractor passengers as well as operators, and the articles are sufficient to put manufacturers on notice that people fall from various positions on the vehicles, including the operator's seat.

Beginning in the 1950s, additional articles also put the industry on notice that those who fall from tractors were being hit by trailing implements.(12) Occasionally one of the major tractor manufacturers openly recognized that these accidents occur, as did Ford Motor Co. in a pamphlet entitled Safety Tips: A Guide to Safe Tractor and Equipment Operation, published in July 1983. ASAE publications also have recognized the problem and suggested solutions.(13)

Because there is no national reporting system for tractor accidents, it is difficult to determine exactly how, many injuries have in fact occurred. However, because more and more newspapers are being included in computer service databases, these services can be used to obtain statistical information on the current frequency of tractor-operator injuries.

For example, a computer search conducted in mid-1994 covered a period beginning in 1984 and checked only a limited number of newspapers.(14) It revealed the following information regarding deaths and injuries to users falling from tractors:

* 36 accidents involving people falling from tractors and being hit by trailing mowers,

* 27 accidents involving operators falling from tractors and being run over by them, and

* 9 accidents involving operators falling from tractors and being hit by other equipment.

Operators usually fall from tractors because most U.S. tractors still have no seat belts. This is not surprising. Except for the brief period from 1967 to 1972, until 1985, the voluntary minimum ASAE standards did not require that rollover protection systems (ROPS), including scat belts, be installed on tractors as standard equipment.(15) Even today, an examination of tractor manufacturers' advertising brochures sometimes shows that the operator pictured is not using a seat belt.(16)

In 1986, the National Safety Council recognized by implication that fewer than one-third of U.S. tractors were equipped with seat belts because fewer than one-third of tractors in use had ROPS. No tractor manufacturer in this country has ever installed seat belts without also incorporating a roll bar.

Even if the tractor involved in an accident was equipped with a seat belt, tractor and mower manufacturers have recognized that operators might not use them--

* in operator manuals that show or make allowances for tractor operators standing up,

* in intercompany memoranda, and

* by implication from the warnings that appear on tractors equipped with ROPS that tell the operator to use the seat belt.(17)

If tractor manufacturers expected operators to use seat belts, these warnings would not be necessary. Also, farm implement manufacturers cannot be ignorant of the fact that years of warning the public to use seat belts in cars resulted in only minimal usage before the enactment of mandatory seat belt statutes.

The fact that tractor manufacturers have put seat belts on tractors as standard equipment since 1985 is no excuse for failing to place an OPSS on tractors. Installing an OPSS, which is a passive safety device when compared with a seat belt, is more effective than trying to change behavior patterns of tractor operators who, because of inconvenience, may not use a seat belt. Municipalities do not warn citizens to boil water every time they take a drink. Instead, the water is purified before it is delivered to the public. The same principle can be applied with regard to an OPSS.

In addition, a tractor in gear without an operator in the seat has no useful function. It presents a danger to any person or property in its vicinity as much as an unguided missile does. Tractor-mowers used in roadside grass cutting can be particularly threatening to oncoming vehicles due to the possibility of a head-on collision.

Manufacturer Defenses

The defenses raised in operator fall-off cases range from totally false, to mythological, to meritorious. The false defenses are claims that with an OPSS--

* the tractor could not be used as a stationary power source,

* the operator would not be able to move around in the seat without tripping the switch,

* the tractor would have increased electrical reliability, problems, and

* the switch would unreasonably increase the cost of the tractor.

These defenses have long been rendered specious by actual use of the OPSS, which has been designed to eliminate these problems.

If plaintiff's counsel exposes these claims for what they are, industry then falls back on what I call its "mythological injuries" arguments. It claims that placing an OPSS on a tractor larger than a lawn and garden tractor--

* will create a false sense of security by allowing the operator to use the system as a shut-off while ignoring other controls designed to terminate power,

* will cause injuries because the OPSS could cause a loss of power steering and hydraulic controls, and

* could cause injuries because the tractor could stop too fast if the switch was tripped inadvertently.

Despite these claims, however, I have yet to see one neutral source document an injury caused in any of these ways. A jury should be advised to balance these mythological injuries against the actual injuries that occur every year as a result of the failure to install an OPSS.

The one defense that may have merit is that the injury occurred too fast for the tractor to stop before injury occurred. This issue should be studied before filing a case for failure to install an OPSS.

The details of the fall need to be examined closely. Often, an operator falling from a tractor will grab and hang onto the steering wheel before his or her grip loosens. Even if the operator is killed, a bent steering wheel can be evidence of a substantial delay between the operator's leaving the seat and falling to the ground. In addition, some manufacturers can be faulted for failing to install handholds on tractor fenders. These might have prevented the operator from falling off the tractor.

Perhaps most destructive to all OPSS defenses is the fact that the systems were first mounted on lawn and garden tractors in the 1960s. At least one expert has estimated that as of January 1995, there were more the 6 million lawn and garden tractors on the market with a seat-activated OPSS.(18)

The systems have also been, and currently are, used on many other pieces of riding machinery, such as combines, cotton pickers, roadside mowing tractor-mower combinations, and skid loaders. This wide usage would not exist if the problems suggested by tractor manufacturers were a substantial impediment to OPSS use. Also, the John Deere 55 and 70 tractor series that range from 18.5 horsepower to 38.5 horsepower have an OPSS that stops the power takeoff--a shaft that supplies power to the rotary mower blade--when the operator leaves the seat.(19)

Rotary Field Mower Accidents

The severity of injuries or number of tractor operators being run over by rotary field mowers is not a new story. In 1984, L. R. Piercy and L. Stallonas presented a paper at the ASAE winter meeting. In Fatal Accidents on Kentucky Farms, they reported:

Machinery accounted for a total of 65

accidents or nearly 6 fatalities per year

[1972-81]. A wide variety of equipment

was involved, but the most frequent

was the rotary field mower

which accounted for 19 of the fatalities.

The manner of injury reported

in nearly all of the mower accidents

was victims' contact with the rotating

blade or runover of the victims, including

both adults and children who

were riding on tractors with parents.

The patent history of frontal intake guards for rotary mowers is not nearly as extensive as the history of the OPSS. Nevertheless, patents dating from the 1950s indicate both the need for a guard and its technological feasibility.(20)

In addition, certain manufacturers have produced mowers that either have had or now have frontal intake guards for roadside mowing or heavy-duty field mowing. For example, in 1958, an advertisement in the Sears, Roebuck & Co. Farm Equipment, Fencing, Garden and Suburban Catalog exhibited a comb guard over part of the frontal intake of a rotary field mower.(21)

Of particular interest are the tractor/mower combinations built by Kut Kwick Corp. of Brunsmick, Georgia, specifically for highway mowing. Company literature notes that these mowers are built to cut down any tree they can bend over, including trees up to two and a half inches in diameter. The mowers have full frontal metal intake guards that extend down from the mower deck to between two and three inches from the bottom of the mower skids. John Deere also markets rotary field mowers with solid metal frontal intake flying-object guards.(22)

Most evidence in these cases, however, revolves around the feasibility of the "Sevart guard." In 1978, consulting engineer John Sevart of Wichita, Kansas, designed a comb-type frontal intake guard for a rotary field mower at the request of Wausau Insurance Co. In 1982, Sevart and Bradley Klausmeyer published an ASAE paper entitled Design and Development of Intake Guards for Agricultural Rotary Mowers. The guard has been the focal point of litigation against rotary field mower manufacturers ever since.

To date, no mower manufacturer has adopted the Sevart design for any of its rotary field mowers. Logic leads to the conclusion that the reason is because this would be a tacit admission that this type of guard could and should have been on their mowers at least since 1982.

Because of industry attacks on the practicality of the Sevart guard, the plaintiff must prove that the guard will not materially impair the machine's mowing function to the point that use of the guard is not practical. It is also essential to prove that the guard substantially reduces either the number or severity of injuries compared with the normally unguarded mower frontal intake. Videotaped tests of a Sevart guard constructed for the mower involved in the accident can demonstrate this.

Manufacturers say the guard has two defects that make it impractical. First, they argue the guard causes the mower to dig into the ground on uneven terrain. Second, they claim the guard gets clogged with vegetation, making quality mowing impractical. Both contentions are without merit.

On the first point, the solution is to place the guard so that it is about one inch below the level of the mower blade. The height of the mower cut can then be set one inch higher, and the mower blade will be in exactly the same position it would have been without the guard. Obviously, it is much safer to have a frontal intake guard make contact with dirt, rocks, and other obstructions than a rapidly turning blade that can create a danger of flying objects.

The second point can be refuted using a multi-camera video shot. One camera is attached to the tractor looking directly down at the mower intake, a second camera is m front of the tractor showing the height and thickness of the vegetation, a third camera is aimed off the back of the tractor showing the quality of the cut, and a fourth camera is mounted on a vehicle driving alongside the tractor showing a side view of the tractor and mower in operation.

The four videotapes then can be synchronized by a videographer for a screen that shows the four pictures at once, allowing the jury to look at all aspects of the cut as it occurs. The video will show that the guard, while it does have a tendency to act as a rake, is self-cleaning as a result of the mower's natural movement.

Although mower manufacturers will maintain that even the slightest amount of vegetation collecting in front of the guard will impair the quality of the cut, their arguments are without merit if one considers, that the several tons of weight on the tractor tires do to the vegetation just before it passes beneath the mower.

Arguments that the frontal intake guard bends the vegetation making it difficult are also meritless. The guard is no different from the lip of the mower deck, which has exactly the same effect.

Showing that a guarded mower substantially reduces the likelihood or extent of harm compared with an unguarded mower creates a different set of problems. The usual way of showing this involves an anthropomorphic dummy that is first run over by the tractor and then encounters the mower's frontal intake guard. The effectiveness of the guard in keeping any part of the dummy from passing beneath the mower depends on the distance between the guard and the ground at the time the mower reaches the dummy. This distance can vary depending on deviations in ground level.

However, if part of a dummy passes beneath the mower, injury from the blade may not necessarily occur. Assuming that the operator sets the guard about an inch below blade level, even if the guard is high enough that it will not keep out a body, the chances of injury are greatly reduced because the body will probably stay below blade level as the blade passes above.

A more likely scenario, however, is that the guard will push the dummy for a substantial distance before encountering a dip in the ground level that could allow part of an arm or leg to slide beneath the guard. Even when this happens, the leg or arm will generally be pinned to the ground by the guard itself, making contact with the blade difficult, if not impossible. Even if part of a limb could make contact with the blade, the injuries would undoubtedly be less severe than without a frontal intake guard.

It also must be kept in mind that if the tractor powering the mower was equipped with an OPSS, the tractor-mower would be brought to a speedy halt once the operator fell from the seat. The body would not be pushed in front of the guard for a substantial distance.

Mower manufacturers, although they try, cannot legitimately contend that the guard needs to be 100 percent effective to be mounted on the machine. Edward McCanse, the former director of product safety of Woods Division of Hesston Corp., the manufacturer of more than 200 different models of field mowers, has testified that the flying object guards that mower manufacturers self as optional equipment are only 10 percent to 40 percent effective.(23)

The Sevart guard can also be analogized to seat belts, air bags, padded dashboards, and safety glass in automobiles, none of which are 100 percent effective in preventing injury. They are included on motor vehicles due to the increased likelihood they will reduce the chance or extent of serious harm in a collision.

Finally, cost of the Sevart guard should not be an impediment to its installation. In 1994, a guard for a five-foot mower would cost less than $100 to manufacture and install. This compares with the $275 cost of the 10 percent to 40 percent effective optional chain guards that manufacturers sell to prevent injury from flying objects.

Pursuing Cases

Before cases involving operators falling from tractors and being run over by rotary intake mowers are accepted, they should be evaluated as to the liability of each defendant. These cases appear simple at first but quickly become complex. Once a case is accepted, the attorney must conduct extensive discovery and prepare thoroughly to obtain a successful verdict.

Meritorious cases should be pursued. Unnecessary deaths and injuries will continue to occur until the tractor and mower manufacturing industries understand that it is more expensive to pay verdicts than to ignore proven safety devices.

Notes

(1) Catherine A. Bell et al., Fatal Occupational Injuries in the United States, 1980-1985, 263 JAMA 3047 (1990). (2) NATIONAL SAFETY COUNCIL, 1983 ACCIDENT FACTS 87. (3) Id. (4) RICHARD H. BITTNER ET AL., FUNDAMENTALS OF MACHINE OPERATION: AGRICULTURAL MACHINERY SAFETY 159 (1974). (5) Patent 747,370, Railway Car Appliance by Andrew Brislin (Dec. 22, 1903); Patent 767,316, Safety Device for Electrically Propelled Vehicles by J.H. Spencer (Aug. 9, 1904); Patent 1,956,978, Controlling Engines, Etc. by Ralph L. Nafziger (May 1, 1934); Patent 2,513,685, Lawn Mower by L.N. Smith (July 4, 1950). (6) Patent 1,969,929, Fluid Pressure Controlled Circuit Maker by Scott E. Heden (Aug. 14, 1934). (7) Patent 2,250,754, Tractor Safety Control by Clarence Dooley (July 29, 1941). (8) Patent 2,550,999, Safety Tractor Stop by Edwin and Paul Hoffman (May 1, 1951). (9) Patent 2,377,303, Safety System for Tractors by Russel Acton (June 5, 1945). (10) American Soc'y Agric. Eng'rs, "Operator Protection for Agricultural and Light Industrial Tractors," ASAE R305.1 (1967); American Soc'y Agric. Eng'rs, "Operator Protection for Wheel Type Agricultural Tractors," ASAE S305.3 (1972). There are newer standards but none with such a statement; the ASAE changed the language to avoid use by plaintiffs' attorneys. (11) See, e.g., Walter R. McClure & Benson J. Lamp Jr., paper presented at the annual convention of the American Society of Agricultural Engineers (June 1961); Merlin Hansen, Reducing Tractor Fatalities, AGRIC. ENGINEERING, Sept. 1966, at 472. (12) See, e.g., John B. Sevart & Donald E. Berry, paper presented at the 1986 mid-central meeting of the American Society of Agricultural Engineers (Apr. 25, 1986); Robert Hildreth McKnight, U.S. Agricultural Equipment Fatalities, 1975-1981: Implications for Injury Control and Health Education 7-24, 143-49, 163-67, 179-83 (1984) (unpublished thesis). (13) JOHN B. SEVART ET AL., AMERICAN SOC'Y AGRIC. ENG'RS, TRACTOR RUNOVERS--HISTORY AND SOLUTIONS (Apr. 25,1968). (14) Collection of newspaper clippings regarding tractor accidents from 1984 to 1994 (Judy H. Fair-Spaulding, comp. Sept. 6, 1994) (unpublished manuscript). (15) American Soc'y Agric. Eng'rs, "Rollover Protective Structures (ROPS) for Wheeled Agricultural Tractors," ASAE S383.1 (Dec. 1983), ASAE J1194 (July 1983). (16) Ford Motor Co., 32 - 55 PTO hp Utility Tractors brochure) (1990). (17) See, e.g., MASSEY-FERGUSON CORP., M-F 180 TRACTOR OPERATOR'S MANUAL (12) (1969); Letter from Edward McCanse to Martin Berk (June 13, 1984) (discussing the likelihood that tractor operators would use safety belts). (18) John B. Sevart, P.E., Wichita, Kansas. (19) JOHN DEERE CO., GROUNDS CARE PURCHASING GUIDE. (20) Patent 2,511,124, Guard for Power Mowing Machines by William H. Phelps (June 13, 1950); Patent 2,701,942, Machine for Cutting and Harvesting Forage or the Likely Edward L. Caldwell Jr. and Frederick C. Caldwell (Feb. 15, 1955); Patent 2,972,849, Power Lawn Mower with Guard Attachment by Charles Ridenour, Francis D. Irwin, and Everett R. Little (Feb. 28, 1961); Patent 2,982,079, Mower Safety Guard by Ermen C. Schesser (May 2, 1961); Patent 3,101,580, Mower Safety Guard by Ermen C. Schesser (Aug. 27,1963). (21) Sears, Roebuck & Co., Farm Equipment, Fencing, Garden and Suburban Catalog (advertisement) (1958). (22) John Deere Co., Cutters, Shredders, and Mowers (brochure) (1994). (23) Deposition of Edward McCanse, Dec. 19, 1994, Brownell v. Ford Motor Co., No. 92-09319 (Fla., Hillsborough County Cir. Ct. filed Oct. 31, 1992).

John Gehlhausen practices law in Lamar, Colorado.