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From Products Liability Law Daily, September 24, 2013

Injured hydraulic press brake operator could not prove machine was unreasonably dangerous

By John W. Scanlan, J.D.

An injured hydraulic press brake operator could not maintain defective design and failure to warn claims against the machine’s manufacturer because he was unable to prove that the press brake was unreasonably dangerous for the ordinary consumer or user of the machine, the U.S. Court of Appeals for the Tenth Circuit held (Braswell v. Cincinnati Inc., September 23, 2013, Tymkovich, T.). The Tenth Circuit declined to review the operator’s negligence claims because he had not sufficiently pursued his negligent design and manufacture claim aside from a “throwaway reference” in the complaint and had raised an independent negligence claim based on a service technician’s visit for the first time on a motion for reconsideration.

Background. Derek Braswell was the operator of a hydraulic press brake, a heavy machine tool used to shape sheet metal. While operating the press brake, he reached into the die area to remove a jammed piece of metal and accidentally stepped on a foot pedal, which caused the brake’s ram to descend. His right arm was crushed, eventually resulting in its amputation.

The machine was manufactured by Cincinnati Inc., and sold to Steelgard, its original purchaser, in 1989. It passed to “many successive owners” before being sold in 2007 by Hardy Machinery to Ventaire, Inc., which was Braswell’s employer. During this time, Cincinnati continued to service the machine, including the year before the accident when it upgraded the software.

The machine as originally sold had a number of safety features that had been removed by the time of the accident. It came with two footswitches equipped with a front flap to prevent them from being accidentally pressed, and each footswitch had to be pressed simultaneously by separate operators to trigger the ram. This was removed by one of the machine’s owners between Steelgard and Ventaire. The press brake also came with dual palm stations that required two operators to each place their hands on a different button in order to operate the machine, but this prevented an operator from being able to hold sheet metal being fed into the machine. Ventaire disabled this feature so that the press brake could be operated by use of only one footswitch. The machine also had an emergency stop button mounted on the face of the machine that could be reached by any person standing close to the machine’s die area, but this had been removed by the time Ventaire purchased it. The machine continued to have safety warnings mounted prominently on various places that warned, among other things, of the danger of hands and fingers being crushed, and warned operators not to place hands in the die area.

Braswell brought claims for strict liability defect design, negligent manufacture and design, and failure to warn. He alleged that the press brake’s design was unreasonably dangerous because it was not equipped with an anti-trip footswitch that requires a complete depression of the pedal whenever the operator wants the machine to begin moving. The district court granted summary judgment to Cincinnati, finding that Braswell could not show a genuine issue of fact on whether the press brake was defective at the time it left Cincinnati’s control and was unreasonably dangerous. The court determined that at the time it left Cincinnati’s control, the machine contained a gated footswitch that would have prevented the accident, and this made the machine not unreasonably dangerous. The negligent design claim failed as it was captured under the standard product liability test, and the inclusion of the warnings satisfied Cincinnati’s duty to warn. Braswell appealed the district court’s rulings on the products liability claims and the negligence claim.

Unreasonable dangerousness. The press brake was not unreasonably dangerous, considering the ordinary operator of Cincinnati’s press brakes. The Tenth Circuit noted that there was no case law in Oklahoma defining a “reasonably foreseeable modification,” and rather than looking to case law from other jurisdictions, the court determined that it could decide the case on the question of whether the press brake was unreasonably dangerous, which was one of the three elements necessary to prove a products liability claim in the state. The court found that there was no indication that Oklahoma’s Supreme Court adopted or was inclined to adopt the Restatement (Third) of Torts’ risk-utility test for unreasonable dangerousness instead of the Restatement (Second) of Torts’ consumer expectations test, and although the Tenth Circuit saw the merits of the risk-utility test, it felt bound to apply the consumer expectations test.

Applying this test, the Tenth Circuit found that the ordinary consumer or user of a press brake was an operator who is trained in its proper operation and how to use any available safety features. There was no evidence that, if the press brake had been properly operated, it would have presented a danger beyond what an ordinary user of it would expect. The operator in this case stated that he was improperly trained in the use of the press brake, but if true, that was the fault of his employer, not the manufacturer, and did not change the scope of the manufacturer’s liability. Furthermore, an ordinary operator of a press brake would heed the warnings on the machine and in its manual, and the warnings on the brake covered all the dangers accompanying its use. It was undisputed that the operator knew of the precise danger that he faced when he reached into the machine, and there was no evidence that the press brake’s operation routinely required users to bypass the safety devices.

The manufacturer had no duty to guard against the danger that an operator would leave his foot on the petal while clearing a jam because an ordinary user would know not to leave his foot on the footswitch. The flap on the footswitch, which prevents against accidental depression, was the only protection necessary. An otherwise safe product is not made unreasonably dangerous if the manufacturer fails to prevent the replacement of a part with a substandard aftermarket part. Therefore, the court concluded that the press brake was not unreasonably dangerous.

By extension, the claim of inadequate warnings also failed. Oklahoma has just one test for consumer expectations, and case law in the state generally treats design defects and inadequate warnings as different methods of proof for the same product liability claim. The warnings made the ordinary user of the press brake aware of the relevant dangers, the Tenth Circuit concluded.

The case number is 12-5128.

Attorneys: Frank R. Paynter (Bret A. Smith, Attorney at Law, P.C.) for Derek Braswell. Steven Kent Balman (Feldman, Franden, Woodard & Farris) for Cincinnati Incorporated. Michael D. Gray (Ramsey and Gray, P.C.) for Hardy Machinery.

Companies: Cincinnati Incorporated; Hardy Machinery

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