2006 Ohio 4964 | Ohio Ct. App. | 2006
"BY GRANTING SUMMARY JUDGMENT IN FAVOR OF APPELLEE, THE TRIAL COURT COMMITTED REVERSIBLE ERROR BECAUSE THERE EXIST GENUINE ISSUES OF MATERIAL FACT WHETHER APPELLANTS POSSESS VIABLE PRODUCT LIABILITY CLAIMS."
{¶ 2} Bert Aldridge (Aldridge) suffered injuries while operating a debarking system at work. The debarking system consisted of the debarker, which removed mulch from pieces of wood, and a conveyor system that transferred the mulch from one location to another. HMC Corporation, which is not a party to this litigation, manufactured the debarker. Reckart manufactured the conveyor system to Aldridge's employer's specifications. The conveyor system consisted of two separate conveyors: a horizontal conveyor and a vertical conveyor.
{¶ 3} Aldridge suffered his injuries as he stood up after clearing accumulated mulch from underneath the intersection of the horizontal and vertical conveyors. As he stood up, his left glove became caught in the conveyor at an unguarded point. Consequently, his left hand and arm were pulled into the debarker.
{¶ 4} Aldridge and his wife filed a complaint against Aldridge's employer (John Smith d.b.a. SJ Lumber and Melinda Plantz d.b.a. Smith's Forest Products), and Reckart Equipment Company.1 Their complaint against Reckart contained both statutory and common law product liability claims, including: (1) negligent design and manufacture; (2) negligent failure to warn; (3) strict liability in tort for defective product due to defective design, due to failure to warn, and due to failure to conform to Reckart's representations. Mary Aldridge asserted a loss of consortium claim.
{¶ 5} On August 13, 2004, Reckart filed a summary judgment motion and raised several arguments in support. First, Reckart argued that intervening and superseding causes excused any negligence on its part and also defeated Aldridge's statutory strict product liability claims. Reckart asserted that Aldridge's conduct in cleaning the system without shutting down the conveyors constituted an intervening and superseding cause. Reckart further contended that Aldridge's employer's negligence, as several OSHA citations demonstrate, constituted an intervening and superseding cause. Reckart noted that OSHA cited the employer for several violations and made the following findings: (1) "[I]n the saw mill, the debarker was not locked out when cleaning operations were performed exposing the operator to a caught between hazard;" (2) "The debarker was not locked out when cleaning the mulch out from under the conveyor"; (3) "[T]he pulley on the take off end of the conveyor under the debarker and pulley on the top take up end of the waste conveyor were not guarded exposing the operator to a caught between hazard"; and (4) "The end pulleys on the conveyor under the debarker and the waste conveyor were not guarded. Employees are exposed to an ingoing nip point when they shovel mulch out from under the conveyor if it is running."
{¶ 6} Reckart also argued that it had no duty to provide guards for the conveyor system because the lumber industry standard provides that the saw mill owner is responsible for guarding moving shafts on debarkers and similar equipment once the owner completely assembles and configures the equipment at the saw mill. Reckart further argued that Aldridge (1) unforeseeably misused the product by cleaning the conveyor while it was still moving and that his unforeseeable misuse of the product bars his claim; (2) assumed the risk of injury when he chose to clean the system with the conveyors running; and (3) could not prevail on his failure to warn claims because Reckart did not have a duty to warn of the open and obvious danger associated with sticking one's hand into a moving conveyor belt.
{¶ 7} To support its motion, Reckart relied upon Roger Dean Harris' expert affidavit. Harris explained that the debarking machinery consisted of "an infeed deck, the debarker itself, an outfeed deck, and a mulch conveyor system." Harris focused his investigation on the mulch conveyor system. Harris discovered that the accident occurred at the intersection of the two mulch conveyors. He explained that at the intersection, mulch spilled and accumulated underneath the inclined conveyor and interfered with the conveyor belt tracking. This required periodic removal from under the inclined conveyor. On the date of the injury, when Aldridge noticed that the system required cleaning, he exited the debarker cab and did not shut off the conveyors. While the conveyors were still moving, he cleaned the accumulated mulch by hand from under the inclined conveyor. During the cleaning, a glove on his hand became caught in the in running nip point formed between the conveyor belt and pulley and the ground or mulch accumulation.
{¶ 8} Harris asserted:
"[A]s is common with much wood products and conveying equipment, the conveyors are not necessarily shipped with all required guards. The final installed configuration and therefore the need for personnel guards is determined by the end user, not the manufacturer. [Reckart's] literature also warns against operation of the conveyors without guards or the use of lock-out devices."
Harris continued:
"Conveyor equipment, particularly for the wood products industry, is typically ordered to width, length, and performance specifications only. The final configuration is a function of the owner/installer, and the equipment is frequently installed on existing owner provided structures, interfacing with existing equipment. Not knowing the final configuration, it is not possible for the conveyor manufacturer to provide all potentially necessary personnel guards. Such equipment is typically shipped with drive guards, as was observed on the conveyors under investigation. Unless charged with providing a complete conveying system or provided with details of the interface of the conveyors with the owner's pre-existing equipment and structures, it is impossible for the conveyor manufacturer to provide all necessary personnel guards."
{¶ 9} Appellants argued, however, that genuine issues of material fact remained as to all of their claims, thus precluding summary judgment. Appellants asserted that whether an intervening or superseding cause exists, whether the unforeseeable misuse or assumption of the risk defense apply constitutes questions of fact. Appellants submitted Aldridge's affidavit to support their arguments:
"On the first day the debarker was in operation, I was instructed by my boss, Mr. Smith, to keep the area underneath the conveyor belts clean because he did not want his machine mistreated. With the debarker off and the conveyor belts on, Mr. Smith got down on the ground and swept out the accumulated mulch with his hands. I was informed by Mr. Smith that the conveyor belts had to be left on so that the equipment and surrounding areas could be properly cleaned and all the mulch could be transported away. At no time prior to my accident was I aware an injury could occur, nor was I concerned that an injury would, as a result of cleaning the mulch beneath the slowly moving conveyor belts."
{¶ 10} Aldridge explained that on the date of his injury, he noticed that the conveyor belt started to run crooked, which indicated that mulch had accumulated and needed to be cleared. He stopped the debarker, but the conveyor belts remained running as his employer instructed. After cleaning the area, he stood up and his left glove became caught in a roller. He did not recall any warning signs at the end of the conveyor belt where he was hurt.
{¶ 11} Appellants also submitted Dr. Igor L. Paul's expert affidavit that stated "Aldridge was using the debarker and conveyor belts in a reasonably foreseeable manner when the incident occurred." Dr. Paul opined that "[t]he area where the incident occurred (at the transfer point between the horizontal debarker mulch collecting conveyor and the take-up end of the inclined waste conveyor) could not have been effectively and efficiently cleared of mulch if the conveyor belts were turned off while the machines were being cleaned. Normal tail pulley side guards on the inclined conveyor would have allowed safe cleaning of this area without shutting down the conveyors." He opined that Reckart deviated from the standard of care applicable to conveyor belt manufacturers. "The Safety Standards for Conveyors and Related Equipment" established by the American Society of Mechanical Engineers (ASME) set forth the recommended minimum standards for conveyor belts." Section 5.9.3. states that "[i]n general, nip and shear points shall be guarded unless other means to assure safety are provided." Section 6.1.1, which relates to conveyor belts, states:
"(a) Nip and shear points shall be guarded. Typical locations are:
(1) at terminals, drives, take-ups, pulleys, and snub rollers where the belt changes directions;
(2) where belts wrap around pulleys;
(3) at the discharge end of a belt conveyor;
(4) on transfers and deflectors used with belt conveyors;
(5) at take-ups."
He stated that "the two belt conveyors supplied by Reckart Equipment were defective, did not meet minimum accepted industry safety standards and practices, and were inherently and unreasonably dangerous." Dr. Paul additionally averred that Reckart failed to guard the in running nip points:
"This area must always be guarded according to the industry standards, and by common industry safety practice, and is usually guarded by the conveyor manufacturer regardless of what industry the conveyor is used in (including the lumber and wood processing industries). In my forty years of consulting with the lumber and wood processing industries, I have never before encountered a belt conveyor which was not guarded in that area by the manufacturer of the conveyor. [Reckart's] claim that in the lumber industry conveyors of this type are often shipped without being completely guarded because the use configuration is not known to the conveyor manufacture, is not true for this area of the conveyor. Although transition area guarding is usually left to the user of a belt conveyor * * *, this accident and injury did not occur in the unguarded transition area, but at the unguarded in-running nip between the belt and the tail pulley (not the area between the belt and the ground as indicated by [Reckart's] expert). This area of the conveyor must always be guarded by the conveyor manufacturer regardless of its use in an overall system."
Dr. Paul further opined that the conveyor system did not have adequate warnings located near the tail pulley. Dr. Paul stated that Reckart failed to warn its customer what guards to add before using the equipment. Dr. Paul opined that it is Reckart's duty to recognize the risks of improper guarding and to install proper guarding: "It is not the standard in the lumber industryfor the purchaser of belt conveyors to be responsible forguarding this particular area of the conveyor." (emphasis added)
{¶ 12} In reply, Reckart argued that it is not responsible for placing guards on the conveyor system. Reckart acknowledged that both sides presented evidence regarding guarding responsibility, but claimed that "there is one uncontroverted and indisputable fact[:] the conveyors and debarker supplied by Reckart required installation and some assembly by Aldridge's employer before they were operational." Reckart asserted that because the employer installed and assembled the system, it had no duty to provide guards on the conveyor system. Relying onSikorski v. Link Electric Safety Control Co. (1997),
{¶ 13} The trial court granted Reckart's summary judgment motion. The court first determined that Reckart did not have a duty to place guards on the conveyor. The court referred to Reckart's warranty information that stated that the owner had the responsibility to ensure that proper guarding was in place. The court also found that Reckart's warranty information "is consistent with the industry standard in the lumber industry for owners of sawmills to be responsible for guarding moving shafts on debarkers and similar equipment since it is not until the machinery is assembled and configured at the saw mill before it is possible to ascertain what guards are appropriate for the protection of the employees." Here, it appears that the trial court weighed the evidence concerning this finding in light of Dr. Paul's affidavit that this is not the industry standard. The court thus concluded that Reckart is not liable because the employer assembled and installed the conveyor system and introduced the defect (i.e., the unguarded nip point), that appellants could not prevail on any of their product liability claims, and that appellants did not produce evidence to establish a prima facie case for any of their remaining claims.
{¶ 14} The court also concluded that Reckart established affirmative defenses that completely bar appellants' claims. The court concluded that Aldridge's use of the product constituted an unforeseeable misuse and that he assumed the risk of injury. This appeal followed.
{¶ 15} In their sole assignment of error, appellants assert that the trial court erred by granting summary judgment in appellee's favor. Appellants contend that genuine issues of material fact exist regarding their strict and common law product liability claims: (1) whether the product was defective in design under the consumer expectation test or risk-benefit test; (2) whether the product was defective for failure to warn; (3) whether Reckart negligently designed the product; and (4) whether Reckart negligently failed to warn. Appellants also argue that genuine issues of material fact exist concerning proximate cause. They assert that whether Aldridge or Aldridge's employer's conduct constitute an intervening or superseding cause and whether a person unforeseeably misused a product or assumed the risk of injury are questions of fact, thus, summary judgment is inappropriate.
Civ.R. 56(C) provides in pertinent part:
* * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party's favor.
Thus, trial courts may not grant a summary judgment unless the evidence demonstrates that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. See, e.g.,Vahila v. Hall (1997),
{¶ 17} Under Civ.R. 56, the moving party bears the initial burden to inform the trial court of the motion's basis, and to identify those portions of the record that demonstrate the absence of a material fact. Vahila, supra; Dresher v. Burt
(1996),
{¶ 18} "[U]nless a movant meets its initial burden of establishing that the nonmovant has either a complete lack of evidence or has an insufficient showing of evidence to establish the existence of an essential element of its case upon which the nonmovant will have the burden of proof at trial, a trial court shall not grant a summary judgment." Pennsylvania LumbermansIns. Corp. v. Landmark Elec., Inc. (1996),
{¶ 19} In responding to a summary judgment motion, the nonmoving party may not rest on "unsupported allegations in the pleadings." Harless v. Willis Day Warehousing Co. (1978),
* * * * When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the party's pleadings, but the party's response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the party does not so respond, summary judgment, if appropriate, shall be entered against the party.
Consequently, once the moving party satisfies its Civ.R. 56 burden, the nonmoving party must demonstrate, by affidavit or by producing evidence of the type listed in Civ.R. 56(C), that a genuine issue of material fact remains for trial. A trial court may grant a properly supported summary judgment motion if the nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, with specific facts showing that there is a genuine issue for trial. Dresher, supra; Jackson v. AlertFire Safety Equip., Inc. (1991),
{¶ 22} Appellants first focus upon the trial court's conclusion that Aldridge's employer caused the defect. They concede that appellee cannot be liable if Aldridge's employer (Smith) modified the machinery and if that modification caused Aldridge's injuries. They assert, however, that this is not the situation. Appellants contend that Smith installed and assembled completed conveyors that lacked appropriate guards, which rendered them defective regardless of how Smith installed or assembled them. They argue that Smith did not modify the conveyors by removing or by adding any guards. Thus, appellants contend that the trial court's conclusion that the employer introduced the defect is erroneous.
{¶ 23} "The product liability statutes provide that the product is defective only if the defect existed when it left the control of its manufacturer.'" Sikorski v. Link Electric andSafety Control Co. (1997),
{¶ 24} Moreover, "a claim for strict liability in tort cannot be maintained if there has been a material alteration to the defective product once it has left the manufacturer's control, and if this material alteration significantly contributed to the plaintiff's injury." Kobza v. General Motors Corp. (1989),
{¶ 25} In Sikorski, the court concluded that the manufacturer could not be liable when the employer substantially altered the machine. In Sikorski, the plaintiff suffered injuries while operating an 800-ton metal stamping press. Danly Machine Company manufactured and sold the stamping press to General Motors Corporations in 1956. In 1988, Tool Producers, Inc. purchased the press from a used machinery dealer. It then installed and retrofitted the machine. In so doing, it completely disassembled the press and then rebuilt it. Tool Producers replaced many component parts and installed a presence-sensing electronic device called a "Link Lite" that Link Electric and Safety Control Company manufactured to safeguard the point of operation. The "lite" created a vertical electronic "sensing field" in front of the point of operation that, when interrupted, sent a stop signal to the press to stop it from operating before something or someone entered the point of operation. At some point, however, Tool Producers disabled a Link Lite. InSikorski, "[t]here [was] no contention of a defect in the Link Lite product when it was acquired by Tool Producers. In fact, the Link Lites were properly installed by Tool Producers, but later Tool Producers disconnected the lower Link Lite to speed up production."
{¶ 26} We believe that the facts in the case at bar are not similar to Sikorski. In Sikorski, the employer disabled a non-defective safety device. In the case sub judice, appellants presented evidence to suggest that the conveyor, as manufactured, is defective because it lacked appropriate guards when it left appellee's control. Unlike Sikorski, no evidence suggests that the employer altered the conveyor itself or removed safety guards from the conveyor.
{¶ 27} In Kobza v. General Motors Corp. (1989),
{¶ 28} When GM manufactured the Camaro, it was equipped with a neutral safety switch that prevented the engine from starting unless the transmission was in park or neutral. However, a post-accident inspection revealed that the transmission's external linkage that contained the neutral safety switch was missing. As a result, an operator could start the engine when the transmission was in either the drive or reverse. The plaintiff's expert testified that the linkage parts did not fall off in normal usage and that someone must have manually removed the parts. At the close of the plaintiff's case GM moved for a directed verdict and argued that a substantial change in the condition of the Camaro from the time it had been sold caused the plaintiff's injuries. The trial court granted the motion.
{¶ 29} On appeal, the court noted that "a claim for strict liability in tort cannot be maintained if there has been a material alteration to the defective product once it has left the manufacturer's control, and if this material alteration significantly contributed to the plaintiff's injury."
{¶ 30} We believe that the Kobza facts are not similar to the case at bar. In Kobza, someone removed a car part. In the case sub judice, by contrast, no allegation exists that the employer or any third party removed any part from the conveyor so as to render it unsafe. See Behanan v. Desco Distribution Co.
(1994),
{¶ 31} In Cox v. Oliver Machinery Co. (1987),
{¶ 32} The appellate court determined that the trial court did not err by overruling the defendant's directed verdict motion: "[The plaintiff]'s expert testified that the saw's design was defective due to lack of adequate point-of-operation guards. The lack of adequate and sufficient guards contributed to [the plaintiff]'s injuries since it was foreseeable that the saw's operator would place his hands in the saw's danger zone. [The defendant]'s expert even acknowledged that the existing guards on the saw would not have prevented [the plaintiff] from placing his hand in the danger zone. Thus, * * * we have a case where there is evidence of both an original design defect and a substantial alteration, both of which are asserted as proximate causes of the accident."
{¶ 33} Additionally, it appears that the parties' experts apparently do not agree on the precise point where the injury occurred. On summary judgment, we must construe the evidence most favorably to appellants. Thus, at this juncture we must presume that the injury occurred where Dr. Paul stated that it occurred. According to his affidavit, the injury occurred at the unguarded in running nip point between the conveyor belt and the tail pulley. This area was unguarded when it left Reckart's control and assuming that this unguarded point constitutes a defect (which we discuss next), the defect existed when the product left Reckart's control. Appellants' evidence shows that the conveyor itself was defective because it lacked a guard, not that it was rendered defective only by its integration into the debarking system or by the employer's substantial alteration of the conveyors.
{¶ 34} Further, no evidence exists that Aldridge's employer substantially altered the product. Instead, the employer assembled the conveyors, which were unguarded at the location where Aldridge's injury occurred when the conveyors left Reckart's control. Thus, appellants have presented some evidence to show that the manufactured components are, in and of themselves, defective. A manufacturer may not be absolved of liability when a third party installs or assembles an already defective product.
{¶ 35} Therefore, we believe that appellants' assertion that genuine issues of material fact remain regarding whether Aldridge's employer introduced the defect has merit. Under the second prong of the product liability test, genuine issues of material fact remain as to whether the defect existed when it left appellee's control and we believe that the trial court erred by concluding otherwise.
{¶ 37} Under R.C.
{¶ 38} "Foreseeable uses of a product, foreseeable risks associated with a product, benefits associated with a product, and consumer expectations regarding a product's uses and risks are ordinarily all factual questions. The determination whether a design defect exists involves a balancing of these factual issues. Therefore, summary judgment will rarely be granted in design-defect cases when any of these elements is disputed."Welch Sand Gravel, Inc. v. O K Trojan, Inc. (1995),
{¶ 40} Appellee argues that the consumer expectation test does not apply because the product was not marketed to the public. It asserts: "[T]he Consumer Expectation Test is wholly inapplicable in situations where the product is a non-consumer product that is not marketed to the public. This principle of law is based on the fact that, in order to apply a Consumer Expectation Test analysis, there must be proof that ordinary and average consumers have established fairly definite expectations of the product's performance in the public arena. A debarker and accompanying conveyors are simply not products marketed to the consumer public such that a reasonable juror could ever determine what the normal consumer has come to expect with regard to the product's performance." Appellee additionally argues that the consumer expectation test "seems appropriate only for cases involving products of simple design." Appellee further contends that even if the consumer expectation test applies, Aldridge cannot show that the product was defective under the test because: (1) he was not using the product in an intended and reasonably foreseeable manner; and (2) an ordinary consumer would recognize that injury would result by sticking one's hand into the machine.
{¶ 41} Initially, we disagree with appellee that in the case sub judice the consumer expectation test does not apply because the product (the conveyor) was not marketed to a consumer, but to a company. "Recent cases and commentaries have suggested that the consumer expectation test fails to provide an adequate legal standard in design defect cases involving nonconsumer products, since the consumer would not know what to expect, not knowing how safe the product could be made." Pruitt v. Gen. Motors Corp.
(1991),
{¶ 42} Second, we disagree with appellee that the test is appropriate only for products of simple design. "The consumer-expectation test focuses on the expectation of performance, not the technical considerations of the product."Hisrich v. Volvo Cars of N. America (C.A.6, 2000),
{¶ 43} Hisrich rejected an argument similar to the one appellee raises that the consumer expectation test does not apply when the product is a supposedly complicated non-consumer device. In Hisrich, the product was a vehicle air bag. The court explained:
"In Sours v. General Motors Corp., we rejected the defendant's argument that the Ohio consumer-expectation test was inapplicable to a vehicle because of a lack of consumer expectation with respect to a one-vehicle, roll-over accident in which plaintiff alleged a defect in the roof design. See
The Ohio Supreme Court has stated that the consumer-expectation test may fail to reach product defects when the consumer `is ignorant of the product and has no expectation of its safety, or where a new product is involved and no expectation of safety has developed.' Knitz v. Minster Machine Co.,
Hisrich,
{¶ 44} The court concluded: "[W]e are unpersuaded by defendants' citation to other jurisdiction's cases in which courts have rejected the consumer-expectation test as inapplicable to complicated non-consumer devices, such as vehicular airbags. Under Ohio law, the issue is not whether the consumer can determine the reasonable expectations for the technical operation of the product, but the consumer's reasonable ability to expect the performance of the product. See Sours,
{¶ 45} Thus, the consumer expectation test may, in fact, apply to the case at bar and we now consider whether genuine issues of material fact exist regarding that test.
{¶ 46} A product is defective in design if it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. R.C.
{¶ 47} In the case sub judice, we believe that appellants have produced evidence to show that genuine issues of material fact remain concerning whether the product is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Although the test is not subjective, that Aldridge stated that he did not expect that injury could result by clearing the mulch from under the conveyors while the conveyors were moving. Furthermore, whether a product is more dangerous than an ordinary consumers expect is generally a question of fact and is not appropriately determined upon a summary judgment motion. Welch, supra.
{¶ 48} We disagree with appellee that Aldridge, by cleaning the accumulated mulch from the intersection of the two conveyors, did not use the product in an intended and reasonably foreseeable manner. Aldridge did not, as appellee asserts, simply stick his hand into the moving conveyor. Instead, as he cleared the mulch his hand became caught in the conveyor belt. Whether he used the machine in an intended and reasonably foreseeable manner is a question of fact. Welch, supra. We additionally note that appellants' expert opined that Aldridge used the machine in a reasonably foreseeable manner.
{¶ 49} Consequently, genuine issues of material fact remain as to whether appellee's product is defective in design under the consumer expectation test.
"The risks associated with the design of the conveyor belts when it left Appellee w[ere] very grave: a user may get a body part caught in the unguarded conveyor. A jury could reasonably conclude that it is unlikely Mr. Aldridge would be aware of the danger associated with this particular area of the conveyor because: (1) he was performing his job in the manner his employer demonstrated to him; (2) the area of the conveyor is typically guarded by a manufacturer, thereby allowing for safe cleaning even if it is in motion; and (3) some portions of the conveyor were guarded by Appellee, which would give the user false confidence that all dangerous portions of the conveyor were guarded. Additionally, * * * the conveyor did not comply with the standards in the lumber industry or national ASME standards."
Appellants further argue that "[t]here is no benefit associated with the failure to guard this area of the conveyor" and a guard would not have interfered with the operation of the conveyor. They contend that placing a guard on the area would not be technically impractical and the costs would not be significant. Appellants dispute appellee's claim that the product was not defective under the risk benefit test because appellee could not have foreseen that the conveyor would remain in operation while employees cleared mulch from the intersection of the two conveyors. They assert that whether appellee should have foreseen this use is a jury question that cannot be resolved on summary judgment. Appellants also refer to Dr. Paul's affidavit that states that employees could not have effectively and efficiently cleared the intersection of mulch if the conveyor belts were turn off. Dr. Paul opined: "It was certainly known and foreseeable to [appellee] that the unguarded tail area would have to be periodically cleaned of whatever bulk material the conveyor was used * * * and it was also known to them that effective cleaning of the tail pulley requires some conveyor motion."
Appellee evaluates the risk-benefit factors as follows:
"The intended and reasonably foreseeable use of the debarker and conveyor system is to engage the machinery to remove bark from cut trees so they can be processed into lumber. The machinery must be shut down to perform operational maintenance in any of the components, including cleaning of debris. If proper procedures for performing routine cleaning maintenances (i.e., shutting down the conveyor) are adhered to, the nature and magnitude of the risks of harm associated with maintenances (and particularly the risk of a hand or arm being pulled into the machine and crushed) is non-existent or minuscule. A reasonable product user with experience in the industry would undoubtedly be aware (beyond `likely awareness') of the non-existent risk associated with the proper maintenance routine (i.e., shutting it down), as well as an awareness of the inherent risk of injury attendant with sticking a hand and arm into or around a moving conveyor. Reasonable minds can only find that there is no likelihood that [appellee's] component parts would cause such injury if the conveyor system is properly shut down to clean out mulch or debris build-up. Finally, it is undisputed that it is the industry standard in the lumber industry for owners of sawmills to be responsible for guarding moving shafts on debarkers and similar equipment.
Furthermore, the performance advantages associated with a conveyor system conferred a benefit on the lumber industry. Certainly, a performance advantage can only be accomplished by a conveyor system to mechanically feed the logs into the debarker component and then remove the mulch from the debarking operation. Aldridge is also unable to prove that a practical and technically feasible design (a) was available, (b) would have prevented this accident, (c) would not substantially impair the equipment's usefulness, (d) was economically feasible, and (e) would practically reduce the magnitude of the inherent risk of catastrophic injury in cleaning out operating equipment."
Appellee claims that to prove the availability of a technically feasible alternative, appellants must use expert testimony which requires more than "bald and speculative assertions of an alternative design."
{¶ 51} Under R.C.
(1) The nature and magnitude of the risks of harm associated with that design or formulation in light of the intended and reasonably foreseeable uses, modifications, or alterations of the product;
(2) The likely awareness of product users, whether based on warnings, general knowledge, or otherwise, of those risks of harm;
(3) The likelihood that that design or formulation would cause harm in light of the intended and reasonably foreseeable uses, modifications, or alterations of the product;
(4) The extent to which that design or formulation conformed to any applicable public or private product standard that was in effect when the product left the control of its manufacturer.
R.C.
(F) "Foreseeable risk" means a risk of harm that satisfies both of the following:
(1) It is associated with an intended or reasonably foreseeable use, modification, or alteration of a product in question;
(2) It is a risk that the manufacturer in question should recognize while exercising both of the following:
(a) The attention, perception, memory, knowledge, and intelligence that a reasonable manufacturer should possess;
(b) Any superior attention, perception, memory, knowledge, or intelligence that the manufacturer in question possesses.
"The test for determining whether a particular hazard is foreseeable is whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act. Menifee, supra. The question in a particular case is whether the actual harm fell within the general field of danger which should have been anticipated by the manufacturer. Holman v. Mark Industries,Inc. (1985, D.C. Md.),
{¶ 52} R.C.
(1) The intended or actual utility of the product, including any performance or safety advantages associated with that design or formulation;
(2) The technical and economic feasibility, when the product left the control of its manufacturer, of using an alternative design or formulation;
(3) The nature and magnitude of any foreseeable risks associated with an alternative design or formulation.
* * *
{¶ 53} In the case at bar, we believe that genuine issues of material fact remain regarding whether appellee's product was defective under the risk-benefit test. First, an unguarded conveyor belt pinch point carries a high risk of causing substantial harm to one who contacts the pinch point. Appellants and appellee have presented conflicting evidence concerning the intended and reasonably foreseeable uses of the product. Appellants assert that Aldridge used the product in an intended and reasonably foreseeable manner and support this assertion with Dr. Paul's affidavit. Second, genuine issues of material fact remain regarding product users' likely awareness of the risks of harm. Aldridge stated that he did not believe his use of the product carried a high risk that his arm would be pulled into the conveyor. Additionally, appellants contend that because the conveyor's slow movements could have caused Aldridge to believe that the risk of harm was low. Third, for these same reasons genuine issues of material fact remain concerning the likelihood that the unguarded conveyor belt would cause harm when users cleaned the accumulated mulch. Fourth, genuine issues of material fact remain regarding the extent to which the unguarded conveyor belt conformed to any applicable public or private product standard. Appellee contends that "it is undisputed that it is the industry standard in the lumber industry for owners of sawmills to be responsible for guarding moving shafts on debarkers and similar equipment." Appellants' expert, however, disagreed with this position and in fact stated otherwise. Thus, a trier of fact should evaluate and resolve conflicting evidence.
{¶ 54} Genuine issues of material fact also remain regarding the product's benefits. The product has utility (i.e., it helps transfer mulch from one location to another) but whether leaving the pinch point unguarded has utility is a point that the parties dispute. The parties dispute whether adding a guard to the area where Aldridge's injury occurred is technically and economically feasible and whether an alternative design (guarding the pinch point) would carry the same type of risks associated with the product minus guarding.
{¶ 55} We disagree with appellee that appellants were required to present expert testimony to show that an alternative design was technically feasible. The case appellee cites in support of its argument, Dent v. Ford Motor Co. (1992),
{¶ 56} Contrary to appellee's argument, Dent does not state that a party must present expert testimony to support a defective design claim under the risk-benefit test. Instead, Dent
recognized that when a party moving for summary judgment satisfies its initial burden and the non-moving party fails to respond, a trial court may grant summary judgment to the moving party. See Atkins v. General Motors (1999),
{¶ 57} Although a plaintiff asserting a design defect claim may often present expert testimony in support of that claim, expert testimony is not always required to prove the elements of a design defect claim. See Atkins v. GMC (1999),
{¶ 58} Similarly, in the instant case, the conveyor belt and the lack of guarding at the point where Aldridge's injury occurred are not so complex as to be beyond the knowledge of a lay person so as to require expert testimony. We do not believe that the technical feasibility of adding a guard to an unguarded conveyor is beyond the grasp of the average lay person. Thus, appellee's assertion that expert testimony is required is without merit.
{¶ 59} Additionally, we believe that genuine issues of material fact remain regarding appellants' claim that appellee's product is defective in design under the consumer expectation or risk-benefit test.
{¶ 61} Appellee argues that it "had no duty to warn Aldridge of the risk of physical injury from sticking his hand and arm into the nip point of the system because this is a danger of such common knowledge that it can be easily appreciated." Appellee asserts that Aldridge's common sense "should have told him not to stick his hand near a moving conveyor belt on the debarker system." Appellee further contends that it had no duty to warn because Aldridge lacks evidence that "at the time [appellee] distributed the debarker and conveyor it knew or should have known of an excessive and abusive pattern of industry-wide frequency of end-users performing maintenance on running debarking machines, and resulting incidents of catastrophic injury. Catastrophic injury resulting from cleaning of the debarker equipment by hand while the system is running was just simply not a meaningful and foreseeable risk or hazard, as a matter of law." Appellee also asserts that it did not have a duty to warn under the "component parts doctrine," which it claims provides that "a manufacturer has no duty to warn of dangers that may cause harm on integration of its component part(s) into an end product or system, where the manufacturer is not involved in the final product's design or assembly." Appellee thus argues that because it did not participate in the product design or assembly, it had no duty to warn.
{¶ 62} The duty imposed upon a manufacturer in a strict liability action for failure to warn is the same as that imposed in a negligence failure to warn case. See Crislip v. TCHLiquidating Co. (1990),
{¶ 64} In most situations, whether a danger is open and obvious presents a question of law. See Hallowell v. Athens,
Athens App. No. 03CA29,
"Although the Supreme Court of Ohio has held that whether a duty exists is a question of law for the court to decide, the issue of whether a hazardous condition is open and obvious may present a genuine issue of fact for a jury to review.
Where only one conclusion can be drawn from the established facts, the issue of whether a risk was open and obvious may be decided by the court as a matter of law. Anderson v. HedstromCorp. (S.D.N.Y. 1999),
As stated in Henry, supra: `We agree that the existence of a duty is a question of law for the court to decide. Mussivand v.David (1989),
Attendant circumstances may create a genuine issue of material fact as to whether a danger was open and obvious. Quinn v.Montgomery County Educ. Serv. Ctr., Montgomery App. No. 20596,
See, also, Oliver v. Leaf and Vine, Miami App. No. 2004CA35,
{¶ 65} In the case at bar, we believe that genuine issues of material fact remain regarding whether the danger posed by cleaning the accumulated mulch was open and obvious so as to relieve appellee of liability for failure to warn. Aldridge stated that the conveyor belts moved slowly and he did not think engaging in this practice presented a danger. Further, his employer instructed him to clean the mulch in this manner. Aldridge could have assumed that cleaning the mulch with the conveyors operational did not pose any harm. Thus, under the facts present in the case sub judice, reasonable minds could differ as to whether cleaning the mulch with the conveyors operational constituted an open and obvious danger.
{¶ 66} We disagree with appellee that our decision in Frost
requires us to find that common sense should have told Aldridge that cleaning the mulch posed a danger. First, Frost was not, as appellee asserts, a products liability case. Instead, it involved a cause of action under R.C.
{¶ 67} Consequently, we believe that in the case sub judice genuine issues of material fact remain regarding whether the hazard was open and obvious.
{¶ 69} A manufacturer's duty to warn does not extend "to the speculative anticipation of how manufactured components, not in and of themselves dangerous or defective, can become potentially dangerous dependent upon their integration into a unit designed and assembled by another." Temple, paragraph four of the syllabus; see, also, Roberts, at ¶ 12 ("[P]ursuant to the `component parts doctrine,' a manufacturer generally has no duty to warn of dangers that may cause harm on integration of its component part or product into an end product or system, where the manufacturer is not involved in the final product's design or assembly."); Schaffer v. A.O. Smith Harvestore Products, Inc.
(C.A.6, 1996),
{¶ 70} In the case at bar, appellants alleged that the component part itself, i.e., the conveyor, is dangerous or defective. Appellants have not simply argued that the component part (the conveyor) became defective upon its integration into a completed system. Because appellants presented evidence that the conveyor is dangerous or defective due to its failure to have guards over the end pulley, the component parts doctrine does not relieve appellee of liability.
{¶ 71} Consequently, we believe that genuine issues of material fact remain regarding whether appellee owed Aldridge a duty.
{¶ 73} In the case at bar, genuine issues of material fact remain regarding whether appellee exercised reasonable care in warning of the risks associated with the conveyors. First, appellee has not argued on appeal that its warnings were adequate. Instead, it has limited its argument concerning the failure to warn claims to the open and obvious nature of the danger and the component parts doctrine. Second, Aldridge stated that he did not observe any warnings located near the area where his injury occurred. The conveyors did contain stickers that stated in bold capital letters: "Warning Do Not Operate This Machine Without Guards in Place." Appellee also issued a "Notice" that stated: "It is the duty and responsibility of all owners, foremen, and operators to see that all machines are properly guarded before any machine is declared ready for operation." However, no evidence exists that Aldridge knew of the warning and furthermore, appellants' expert stated that appellee's warnings were not adequate.
{¶ 74} Thus, appellants have established that genuine issues of material fact remain regarding the duty and breach elements of their failure to warn claim. We address the proximate cause element infra.
{¶ 76} In determining whether a product was used in a reasonably foreseeable manner, courts should consider "whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of an act." Menifee v. Ohio Welding Products, Inc. (1984),
{¶ 77} In the case at bar, for the same reasons that genuine issues of material fact remain regarding appellants' statutory products liability claims, we also believe that genuine issues of material fact remain regarding appellants' common law negligent design claim.
{¶ 79} Ordinarily, proximate cause is a question of fact for the jury. See Strother v. Hutchinson (1981),
{¶ 80} Any break in the chain of causation will relieve the defendant of liability. See, generally, Leibreich,
{¶ 81} The test for determining whether an "intervening act was foreseeable, and therefore a consequence of the original negligent act, or whether the intervening act operates to absolve the original actor * * * `is whether the original and successive acts may be joined together as a whole, linking each of the actors as to the liability, or whether there is a new and independent act or cause which intervenes and thereby absolves the original negligent actor.'" Liebreich,
{¶ 82} Like proximate cause, "the issue of intervening causation generally presents factual issues to be decided by the trier of fact. The determination of intervening causation `involves a weighing of the evidence, and an application of the appropriate law to such facts, a function normally to be carried out by the trier of facts." Liebreich,
{¶ 83} In the case at bar, we agree with appellants that genuine issues of material fact remain regarding proximate cause and whether Adlridge's or his employer's conduct constituted intervening or superseding causes. First, regarding the employer's alleged negligence, we have previously recognized that a jury may consider an employer's OSHA violations to determine whether "an intervening or superseding cause, rather than a defectively designed product, proximately caused [a plaintiff's] injuries." Mark,
{¶ 84} In Sheets v. Karl W. Schmidt and Assoc., Inc., Hamilton App. No. C-20726, 2003-Ohio-3198, the court decided that the plaintiff's negligence, and not a product defect, caused his injuries. In Sheets, the plaintiff worked at Ohio Valley Carton (OVC) and operated a baler that American Baler Company (ABC) manufactured. The plaintiff's job duties included loading cardboard scrap onto a conveyor system, which then fed the scrap into the baler's hopper. Karl W. Schimdt and Associates, Inc. manufactured the conveyor belt. ABC affixed six separate warnings to the baler machine, including one that warned against performing maintenance on the machine without locking out the machine. The baler also included warnings of a "crush area" inside the machine and that there was a risk of "severe injury or death" posed by the moving parts. The plaintiff stated that he had read and understood the warnings.
{¶ 85} The amount of scrap fed into the baler sometimes caused the machine to jam. One day, a jam occurred. Sheets turned off the machine with the on/off switch and attempted to remove the jam. He did not, however, lock-out the machine because the key had been broken for some time. In attempting to remove the jam, Sheets first opened the side door of the baler, which caused the machine to automatically shut down. When this did not work, he closed the door and climbed onto the machine housing and tried to use a pole to clear the jam through the opening of the hopper. When this did not work, he again opened the side door and tried to fix the jam. When this did not work, he climbed onto the conveyor system. After he reached the top of the conveyor that was next to the baler's hopper, Sheets used a pole to clear the jam. Unfortunately, he lost his balance and fell head first into the baler. As he stood up, the baler activated and crushed his legs. The court concluded that Sheets' "failure to heed the lock-out/tag-out directive * * * ultimately caused his injuries." Id. at ¶ 19.
{¶ 86} We do not believe that the evidence in the case at bar is similar to Sheets. Here, evidence exists that Aldridge could not have effectively cleaned the machine if he had shut off the conveyors. Furthermore, evidence exists that his employer instructed him to leave the conveyors on while cleaning the accumulated mulch.
{¶ 87} Consequently, genuine issues of material fact remain regarding proximate cause and whether intervening and superseding causes relieve appellee of liability.
{¶ 89} Appellee claims that the trial court properly determined that Aldridge's attempt to clean the conveyor with the belts running when a shut off button was available that would have allowed him to clean off the mulch and debris without risking injury constituted an unforeseeable misuse of the machinery. Appellee disputes appellants' claim that assumption of the risk defense does not apply in the case sub judice and further asserts that the defense bars his claim.
{¶ 91} In the case at bar, genuine issues of material fact remain regarding whether Aldridge's use of the product was unforeseeable and completely incompatible with the conveyor's design. Appellants presented evidence to show that the conveyors could not be cleaned effectively if the conveyor belts were not running.
{¶ 92} Consequently, we believe that genuine issues of material fact remain regarding the unforeseeable misuse defense.
{¶ 94} In Knopp v. Dayton Machine Tool Co., Columbiana App. No. 03CO60,
{¶ 95} In concluding that the plaintiff assumed the risk of injury, the court explained:
"Knopp admits that he was not told to clean that area of the machine. Indeed, it was unnecessary for him to clean that part of the machine since it was self-cleaning. Instead, Knopp argues that he believed he was required to do so when Griffin told him to `sweep up' at the end of his first shift at Vari-Wall Tube. Knopp noticed that the area in question was clean at the beginning of his shift and assumed that it should be clean at the end of his shift.
But Griffin's request that Knopp `sweep up' after his shift was not an order that Knopp clean that particular part of the machine while the machine was running. Even Knopp admits that he understood the term `sweep up' to mean clean the area with a broom and that he did not use a broom when he was reaching over the guard. According to Knopp, he decided to look into and clean that part of the machine on his own initiative. Knopp would have to disregard everything he learned in training and the common sense understanding he had of the danger to believe that Griffin was compelling him to assume the danger by cleaning that area of the machine.
During his training, Knopp was instructed not to touch any moving parts and not to stick his hands in the machines. He was also advised that he should not wear long-sleeved shirt[s], although this was not a requirement. Knopp disregarded this advice * * *. Griffin showed Knopp where the guards were and where not to put his hands. Knopp understood that placing his hands in those places could injure him since the cutters were dangerous. A warning to `Keep Your Hands Clear' was on the guard that Knopp reached over when trying to clean that area of the machine.
Knopp was under no compulsion to expose himself to the risk of cleaning that area of the machine while it was running. No one ordered him to clean that area of the machine while it was running. Nor was cleaning that area of the machine a normal part of his job. That conduct was contrary to his training and his common sense knowledge about the risk involved. It was contrary to the warnings he received from Griffin and the strongly worded written warning on the guard itself."
The Knopp court further relied upon Westover v. WhiteStorage and Retrieval Systems, Inc. (Nov. 1, 2000), Summit App. No. 19845, to reach its decision, noting:
"In Westover, the plaintiff was a maintenance employee who was injured when his right arm was pulled into the rollers of a conveyor system. Before the accident, a supervisor had asked the plaintiff to `do something' about the noise coming from the conveyor. The plaintiff then removed a guard covering a pinch point in the system while the system was running and was injured. The plaintiff testified that he knew he should turn off the machine every time he worked on the conveyor and that the guard was there to prevent him from being injured. He argued that he did not because he felt the supervisor's order to `do something' about the noise compelled him to encounter the risk of being caught in the conveyor while it was running. After a trial, the trial court directed a verdict in the defendant's favor. The appellate court affirmed the trial court's decision.
`[E]ven if [the supervisor] did, as he said, ask [the plaintiff] to "do something" about the noise, this statement is a far cry from instructing him to engage in such risky behavior as removing a guard while the conveyor was running. Even viewing this statement in a light most favorable to [the plaintiff], it cannot be construed as compulsion to assume the risk of being caught in the rollers of a conveyor system. * * *
[The plaintiff's] job did not require him to remove the guard while the machine was running. [The plaintiff's] own expert witness * * * testified that [the plaintiff] could have turned of[f] the machine before removing the guard. He could than have turned the conveyor back on in order to observe it from a safe distance. * * * [T]his simple precaution would have avoided [the plaintiff's] entrapment by the rollers while he was engaged in removing the guard. * * *
[The plaintiff] was under no compulsion to expose himself to the risk. No one ordered him to remove the guard while the belt was running. Nor was removal of the guard while the conveyor was running a normal part of his job. In fact, that conduct was contrary to everything he had been taught about working on conveyor systems. It was contrary to all the warnings he had received from [his supervisor], as well as the strongly worded warning on the guard itself. [The plaintiff] elected to expose himself to the risk of injury here.'"
The case sub judice is not similar to either Knopp orWestover. In both Knopp and Westover, the employer gave the injured employee vague instructions to "sweep up" or "do something" about a noise. In Knopp, the employer did not train the employee to clean the machine in the manner that ultimately led to his injury. In Westover, removing the guard "was contrary to all the warnings" his employer gave the plaintiff. In the case at bar, by contrast, disputed factual issues remain regarding whether Aldridge's employer had instructed him to clean the conveyor belts in the exact manner that ultimately caused his injury. Aldridge presented evidence to show that his normal job duties required him to encounter the risk. While appellee presented contrary evidence, these disputed facts must be resolved before one can determine whether the defense bars his claim. Thus, if Aldridge followed his employer's example and instruction when his injury occurred, then the assumption of the risk defense may not apply in the case at bar.
{¶ 96} Consequently, genuine issues of material fact remain regarding the assumption of the risk defense.
{¶ 98} Accordingly, based upon the foregoing reasons, we sustain appellants' assignment of error, reverse the trial court's judgment and remand the matter for further proceedings consistent with this opinion.
Judgment reversed and remanded for further proceedings consistent with this opinion.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, P.J.: Concurs in Judgment Only Kline, J. Abele, J.: Concur in Judgment Opinion
For example, in Temple the Ohio Supreme Court concluded that the employer's alteration of the product "was the sole responsible cause" of the plaintiff's injuries. In Temple, the plaintiff suffered injuries while operating a 75-ton power punch press. When the plaintiff's employer acquired the machine, it modified the operating control circuits, replaced the original rotary switch, and installed new operating buttons. The employer altered the existing method of guarding by lowering the power press activating buttons from their original position. The Ohio Supreme Court concluded that "[c]learly, in relation to the danger of unintentional activation, this alteration was a `substantial change' * * *. Indeed, it is our conclusion that there was no original defect of any sort in the punch press, and that, as a matter of law, [the employer's] alteration of the safety device, coupled with the utilization of the press for the stamping of stock long enough to bridge the 24 inch gap between the buttons, was the sole responsible cause of [the plaintiff's injury]."
Although some cases treat the substantial alteration issue under the causation element, we find it more appropriate to address it under the second element of a strict products liability claim: whether the defect existed at the time the product left the manufacturer's control.
