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Vermett v. Fred Christen & Sons Co.8/25/2000
d, at the time of appellant's accident, the warning was not on the foot pedal. Knak, however, testified that originally there was written material on the foot switch, but because the "emblems" got abused so bad, he would not look at them "so much." Additionally, he could not recall the content of the written material.
From appellant's perspective, we fail to see how the absence, presence, or content of the warning of the foot pedal had any part in appellant's accident. Appellant testified that the foot pedal was not depressed by him at the time the press unexpectedly cycled on him. Additionally, he testified that he never looked at the foot switch to see what may have been written on it:
"Q. Did you ever look at the foot switch to see what may have been written on it before your accident?
"A. No. Like I said, I didn't inspect the whole machine, and I just did what I was told and how it was shown to me."
Taken together, we find that appellant failed to establish any proximate causation between the lack of warning on the foot pedal and his injury. While proximate cause is often a jury question, summary judgment is proper on this issue when appellant has failed to meet his burden to produce evidence to challenge unfavorable evidence already in the record. See Phan, 100 Ohio App.3d at 201.
Moreover, as discussed below, the warning on the press itself was sufficiently broad to encompass the content and nature of the missing foot pedal warning. The press warning was present at the time of appellant's injury and, if read by appellant, would have similarly warned appellant that the press should be operated with adequate point of operation guarding.
Appellant, however, was not responsible for assessing and providing adequate point of operation guarding; rather, that was the responsibility of FC&S; According to DiBonaventura, the foot pedal would have had the warning at the time the press was installed. There is no evidence to the contrary. If the warning had been present on the foot pedal at any time, it would have provided FC&S;with adequate warning. See Phan, supra at 200.
Even if the warning had not been present on the foot pedal at the time of installation, we find that no additional foot pedal warning was necessary due to the presence of the warnings on the press itself. Despite appellant's argument to the contrary, the warning prominently displayed on the press that stated, "NEVER OPERATE MACHINE WITHOUT PINCH POINTS GUARDED AND WITHOUT ADEQUATE POINT OF OPERATION SAFEGUARDING," effectively encompassed the warning that normally was placed on the model of foot pedal in question. Accordingly, it was unnecessary for Linemaster to notify FC&S;of that which it was already aware. See Temple, 50 Ohio St.2d at 325.
Appellants focus on Knak's testimony that had he known of the Linemaster warning he " * maybe * would have done something at least different, something [where appellant could not] have his hand there at all." We, however, agree with the trial court that this statement is mere conjecture and speculation and is not supported by the facts. It is well established that speculation is insufficient to create a genuine issue of material fact in order to withstand summary judgment. Rowe v. Pecina (Feb. 24, 1995), Lucas App. No. L-94-266, unreported; Smith v. Peoples Serv. Drug Store (June 7, 1991), Lucas App. No. L-90-311, unreported. It is undisputed that if FC&S;had installed adequate point of operation guarding, as instructed by the written warning on the press, appellant could not have reached within the press's die area. FC&S;knew of this warning and knew it was dangerous to place any part of one
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