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From Products Liability Law Daily, September 4, 2013

Jury to determine whether a crane’s “unguarded” remote control was extraordinarily dangerous, even though defect was obvious

By Pamela C. Maloney, J.D.

Whether the manufacturer’s removal—at the request of the purchaser—of the “push-to-operate” (PTO) bar devices from the radio remote control devices used to operate overhead cranes rendered the remote control extraordinarily dangerous raised a question for the jury, a federal court in Kentucky ruled, even though the court determined that the absence of the PTO bar was open and obvious (Gerhardt v. Cattron-Theimeg, Inc., September 3, 2013, McKinley, J.). The court, however, did reject a worker’s failure-to-warn claim because the danger presented by the disabled PTO bar switch was open and obvious to the worker.

Background. A worker, Michael Gerhardt, worked as a caster-furnace man and overhead crane operator at an aluminum smelting plant. He was seriously injured while attempting to attach a lifting device to the bottom block assembly when a motion lever on the radio remote control device was inadvertently engaged, causing the crane to move the bottom block assembly toward Mr. Gerhardt and pinning him against a furnace. The worker and his wife brought a products liability action against Cattron-Theimeg, Inc., the manufacturer of the radio remote control device, alleging the remote control device was defectively designed because it did not include an engaged PTO bar switch and because the lever bar guard offered inadequate protection from inadvertent contact with the motion levers. The worker also alleged that the manufacturer’s warnings were insufficient. In response, the manufacturer contended that (1) it had manufactured the device in accordance with the design specifications required by the worker’s employer, Alcon Primary Products Corporation; and (2) the lever bar guard was state-of-the-art when sold and there was no evidence of a feasible alternative design.

State-of-the-art defense. Before turning to the merits of the worker’s defective design and failure-to-warn claims, the court addressed the manufacturer’s argument that, under Kentucky law, it was not liable for the worker’s injuries because the uncontroverted evidence showed that the employer wanted the PTO bar switches disabled and instructed the manufacturer to that effect in its purchase order. The worker contended that the state of the art defense established in McCabe Powers Body Co. v. Sharp, 595 S.W.2d 592 (Ky. 1980) did not apply because it was consistent with contributory negligence which was no longer the law in Kentucky. The court rejected this argument, deciding that the decision in McCabe applied only in narrow instances when an alleged product defect has been manufactured at the specific request of the product’s buyer. The court explained that McCabe did not result in a “total defense” for a manufacturer, and that defects that were not requested by a buyer, those that were concealed, and those that were so extraordinarily dangerous that the manufacturer should have declined to produce the product in accordance with the buyer’s plans could still result in imposition of liability upon a manufacturer.

Open and obvious danger. The McCabe holding that a manufacturer was not liable for manufacturing a product in accordance with a buyer’s plans applied only when the alleged defect was open and obvious. Although the worker argued that there was a genuine issue of fact as to whether the defect was open and obvious, the court agreed with the manufacturer that the evidence clearly showed that the worker was aware that the radio remote control device he was using did not have an enabled PTO bar switch. The evidence also showed that the crane operators at the plant had used remote control devices which were equipped with functioning, engaged PTO bar switches, but had improvised ways to disengage the switches. Under the facts presented, there was no material issue as to whether the alleged defect was open and obvious.

Extraordinarily dangerous product. Although the state-of the art defense did apply because the alleged defect—that the crane could move if the motion levers were engaged inadvertently—was open and obvious, the court cautioned that this did not end the inquiry under McCabe. The McCabe decision recognized that that some plans furnished by a buyer could contain design defects “so extraordinarily dangerous” that a product manufacturer should decline to produce the product pursuant to those plans. The evidence presented by the worker and the manufacturer on this issue raised a question of fact as to whether the manufacturer should have declined to produce the devices without the engaged PTO bar switches. The manufacturer claimed that its device had other built-in safety features that rendered its decision to deactivate the PTO bar switches reasonable and that there was no regulation mandating the inclusion of an engaged PTO bar. The worker countered that the warning in the operating manual stated that using the device without an engaged PTO bar switch could result in damage to equipment, serious injury or death and that this warning could lead a reasonable jury to conclude that the manufacturer knew it was creating a risk of serious injury or death by selling the devices in accordance with the employer’s instructions. A jury also could conclude that the new design was extraordinarily dangerous given that the manufacturer initially had provided the employer with devices containing engaged PTO bar switches and warned that such switches were necessary to prevent risk of serious injury or death. Thus, the court denied the manufacturer’s motion for summary judgment on the worker’s strict liability and negligence claims.

Warning issues. Having already determined that it was open and obvious to the workers at that plant that the remote control device did not have an activated PTO bar switch, the court rejected the worker’s argument that the warnings in the operation manual were insufficient. The operating manual warned against disabling the PTO bar switch, and the worker argued that because the manufacturer sold the remote control with the PTO bar switch disengaged, the warnings were meaningless. However, the court pointed out that the worker knew that when the motion levers were moved, either intentionally or inadvertently, signals would transmit to the overhead crane, causing it to move. The court concluded that this knowledge constituted its own warning and, therefore, that the worker failed to raise a question of fact as to the manufacturer’s failure to warn.

Feasible design alternative. The court also found that the worker introduced sufficient evidence of the existence of a feasible alternative design as required by Kentucky law. The worker argued that the addition of an engaged PTO bar switch along with a lever bar guard, which, according to the worker’s expert, would create state-of-the-art safety, was sufficient to withstand the manufacturer’s motion for summary judgment on this issue.

The case number is: 4:09-CV-00029-JHM.

Attorneys: Christopher L. Rhoads (Rhoads & Rhoads) for Gerhardt. John C. Morton (Morton Law LLC) for Alcan Primary Products Corporation/Liberty Mutual Insurance Company. Robert W. Goff (Denton & Keuler, LLP) and Samuel J. Wright (Farmer and Wright PLLC) for Alcan Primary Products Corporation

Companies: Cattron-Theimeg, Inc.; Alcan Primary Products Corporation

MainStory: TopStory DesignManufacturingNews WarningsNews IndustrialCommercialEquipNews KentuckyNews

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