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Vermett v. Fred Christen & Sons Co.8/25/2000
ndicated that the point of operation was not guarded on certain press brakes; however, the Wysong press was never specifically mentioned. Following appellant's injury, OSHA investigated the incident. As a result, on March 3, 1995, OSHA issued citations that stated FC&S;failed to provide a place of employment "free from recognized hazards that were causing or likely to cause death or serious physical harm to employees" for its failure to provide point of operation guarding, adequate training regarding safe operating procedures, or regularly scheduled inspections.
William Murray, Jr. testified on appellant's behalf that based on his engineering and safety education and training experience, his training and knowledge of machine guarding, and his review of the evidence, he opined that FC&S;knew of a dangerous condition or instrumentality, knew that subjecting appellant to the condition and/or instrumentality resulted in a substantial certainty of harm and that FC&S;required appellant to perform the dangerous task. Murray based his opinion on the fact that there was no point of operation safeguarding being used; Brickner had not been formally trained on the subject of press brakes, had not read the safety manual, and was not aware of the safety standards of the American National Standards Institute ("ANSI"); the press was not evaluated for point of operation safeguarding; appellant was provided inadequate training in that he was not required to read the safety manual, was not instructed on the use of the palm pedestal controls or the computer keyboard, and was not given any hand tools; and Knak had no knowledge of point of operation safeguards at the time of the accident.
Appellant and, his now ex-wife, Wendy Vermett, sued FC&S; Wysong, Linemaster, and Glenn H. Carlson, M.D. Dr. Carlson was voluntarily dismissed and is no longer a party to this action. Appellant brought suit against FC&S; claiming employer intentional tort; Wysong, claiming product defects, with respect to the press, and failure to warn; and Linemaster, claiming product defects with respect to the foot pedal. Mrs. Vermett sought loss of consortium.
FC&S; Wysong, and Linemaster, each filed motions for summary judgment, which were decided by the trial court on November 6, 1997, in three separate judgment entries. Appellants and Linemaster filed several motions for reconsideration which were denied by the trial court. On April 30, 1999, appellants dismissed, pursuant to Civ.R. 41(B)(1), the remaining claims against Wysong and Linemaster, which were stated as follows:
" * (1) by Chad K. Vermett against Wysong & Miles Company, for defects in manufacture or construction (part of Third Claim for Relief); (2) by Chad K. Vermett against Wysong & Miles Company, for failure to conform to express and implied representations (Fifth Claim for Relief); (3) by Chad K. Vermett against The Linemaster Switch Corporation, for defects in manufacture or construction and defects in design or formulation (part of Seventh Claim for Relief); and (4) by Wendy Vermett for her loss of consortium as it relates to the claims of Chad Vermett as identified in (1), (2) and (3) above."
As part of this dismissal, the trial court held that the decisions granting in part and denying in part the motions for summary judgment were thereby made final judgments.
Appellants appealed the trial court's decisions concerning summary judgment and raise the following assignments of error:
"1. The trial court erred in granting the motion for summary judgment of defendant Fred Christen & Sons Company.
"2. The trial court erred in granting partial summary judgment to
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