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Vermett v. Fred Christen & Sons Co.8/25/2000
DECISION AND JUDGMENT ENTRY
This is an appeal from the judgment of the Lucas County Court of Common Pleas granting appellees' motions for summary judgment. For the following reasons we affirm, in part, and reverse, in part, the decisions of the trial court.
Chad K. Vermett ("appellant"), was injured on October 24, 1994, while working at a metal fabricating shop owned and operated by Fred Christen & Sons Company ("FC&S;). At the time of his injury, appellant was working on a press brake machine manufactured by Wysong and Miles Company ("Wysong"). The press was activated through the use of a foot pedal/switch, manufactured by Linemaster Switch Corporation ("Linemaster"). Appellant's injury occurred when the press cycled while his hand was inside the press's point of operation. According to appellant, he had reached into the die area to dislodge a piece of metal that was stuck. He testified that his foot was not on the pedal when the press cycled and he denied having depressed the switch, a.k.a., treadle.
Appellant had only worked a couple of months at FC&S;at the time of his accident. On the day in question, appellant was trained in the morning on the press between fifteen minutes and two hours. Appellant had never operated any press in the shop by himself prior to the day of the accident; however, his foreman, Richard Knak testified that appellant had assisted him with three or four other press jobs. Appellant had formed numerous pieces in the morning, took a lunch break, and was injured shortly after lunch.
It is undisputed that appellant was shown by Knak and his supervisor, Michael Brickner, how to place pieces of steel into the press and operate the foot pedal. Both testified that they instructed appellant never to put his arm or anything through the front of the press. This practice was corroborated by Mark Ryan, Jr., an employee and operator of the press, who testified that, when he was a new employee, he also was told to never stick his fingers or hands into the die area.
Appellant, however, was not instructed how to set-up the press or use its computer, was not told how to remove any pieces of steel that may become stuck, and was not provided any hand tools, as none were used. Brickner and Knak both testified that items never got stuck, so appellant was not instructed regarding what to do in such an event. However, Knak testified that he did instruct appellant to seek help if anything got stuck.
Regarding FC&S;s practice concerning stuck pieces, Ryan, who was trained on all aspects of the press's operation, testified that he was instructed by Knak to put blocks in the press brake if anything became stuck so that the press would not come down on him while he was in the die area. Ryan, however, testified that he never had to do this and that, even with blocks in the press he would still never stick his fingers or hands into the die area.
The press had a "PRESS BRAKE SAFETY" manual ("safety manual") which was never gone over with appellant. Brickner testified that the safety manual was not gone over with appellant because " eing his operation was just to form and that was it, we highlighted all the parts that we wanted to highlight on him about."
In his deposition, appellant testified that he did not recall being instructed to keep his hands out of the die space and did not recall the written warning on the front of the press facing the operator at eye-level, which stated, "NEVER PLACE ANY PART OF YOUR BODY AT THE POINT OF OPERATION (UNDER THE RAM OR WITHIN THE DIE AREA)." Appellant testified:
"Q. * Up to the point where Mr. Brickner says do it yourself and he leaves, had
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