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Vermett v. Fred Christen & Sons Co.8/25/2000
B11.3 states that the employer is to evaluate each operation before any material is formed to determine if a point of operation guard or device can be used to protect the operator (and/or helper) from injury near or within the point of operation of your press brake. If a point of operation guard or device can be used, it shall be used."
The warning label on the press itself stated, "NEVER OPERATE MACHINE WITHOUT PINCH POINTS GUARDED AND WITHOUT ADEQUATE POINT OF OPERATION SAFEGUARDING."
Brickner testified that he had not read the safety manual prior to the accident and that point of operation guarding on the press was never discussed. Knak also testified that the press was never evaluated for point of operation safeguarding, although he was aware that wrist restraints would have to be added to all the presses at some point.
Knak further testified that when the personnel from Wysong trained him on the operation of the press, no point of operation guarding was discussed. Knak stated that he did not inquire about other safeguards because he did not think there were any. There was no point of operation safeguarding on any other machines at the time of the purchase of the Wysong press.
Additionally, Stein testified that Wysong representatives did not always use point of operation guarding when demonstrating their press brakes at trade shows, did not insist on this guarding when setting up a machine and instructing owners and operators in its use, and, in fact, were not trained regarding point of operation safeguarding.
With respect to appellant's job in particular, Knak testified that he did not consider the pinch point to present a danger because appellant's hands were not required to be directly underneath the pinch point at any time during the press's operation:
"Q. Now, third from the bottom on the left-hand side is the statement never operate press brake without pinch points guarded and without adequate point of operation safeguarding. Was it your opinion before [appellant's] accident that that part of this list of things never to do applied to the use of the Wysong press?
"A. Well, to me there was no pinch point for him because his hands were far enough away. Pinch point to me is something that where your fingers are going to be right directly underneath -- right underneath the die. It don't have to be -- not under the die, it could be under the metal too, that's a pinch point. The ram comes down and you could be on the edge of the thing, that's a pinch point.
"But he was plenty far enough away, and I've always told them never stick -- don't ever stick your hands in there. Being that that piece is big enough, his hands shouldn't have never been within reach of that thing."
Alfred DiBonaventura, an employee of Linemaster, testified that the model foot pedal FC&S;had was manufactured with a warning label which stated, "This foot switch should only be used where point of operation guarding devices have been properly installed so that it is impossible for the operator's hands or fingers to remain within the point of operation during the actual machine cycle." This warning, however, was not on the foot pedal during an inspection in 1995. Nevertheless, Knak testified that originally there was written material on the foot switch, although he did not recall its content. It is undisputed that it is dangerous to operate the press with a foot pedal without adequate point of operation safeguarding.
In 1992, a safety survey was conducted at FC&S;by an Industrial Safety Consultant, with the Division of Safety & Hygiene, Ohio Bureau of Workers' Compensation. Item twelve of the report i
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