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Vermett v. Fred Christen & Sons Co.8/25/2000
ultant, Douglas Farnsworth, identified that the point of operation on the press brake was not guarded and suggested that FC&S;"install a point of operation guard or device or a combination guard and device to protect the operator and other workers from injury";
(11) although FC&S;s supervisor, Brickner, was not aware of the ANSI standards, ANSI standard B11.3 provides that an employer shall provide safeguarding at the point of operation during the power press brake cycle;
(12) Brickner agreed that foot control devices should only be used when point of operation and pinch point guarding devices have been properly installed and are utilized so that it is impossible for the operator's hands or fingers to remain within the point of operation during the machine cycle;
(13) the job appellant performed could probably have been done with wrist restraints or with dual palm buttons;
(14) the press brake's safety manual was never discussed with appellant;
(15) although FC&S;claimed to have a "safety policy" to follow when a piece of metal got stuck in the machine, there was no evidence that appellant was taught this policy;
(16) OSHA investigated the incident and issued a Citation and Notification of Penalty to FC&S; stating that FC&S;has a "Serious" violation insofar as it 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";
(17) appellant's expert, William M. Murray, Jr., attested that FC&S;s knowledge of the hazard posed by the unguarded press, its failure to evaluate for safeguarding, its failure to train appellant adequately, and its failure to provide appellant with hand tools or other means to deal with a stuck part combined to create a substantial certainty of harm; and
(18) according to Wysong's expert, Stein, with proper training, appellant's injuries could have been avoided altogether.
Generally, these factors can be placed into three categories: (1) appellant received inadequate training, for a new, inexperienced, employee; (2) FC&S;failed to be aware of and provide point of operation guarding, in violation of applicable safety standards and contrary to manufacturer warnings; and (3) OSHA issued a citation, stating that 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."
In response, FC&S;asserts that the trial court correctly found that appellants failed to establish a genuine issue of material fact with respect to whether FC&S;knew to a substantial certainty that appellant would be injured in a manner similar to that which caused his injuries. FC&S;argues that the following establishes that it did not know appellant's injuries were a substantial certainty: (1) there had never been any other injuries; (2) appellant ignored Knak's and Brickner's instruction to keep his hand out of the die area and to get their assistance if the press was not working properly; (3) there was no evidence that reaching into the press was an acceptable method of operating the press, or that appellant had seen other employees place their hands within the press; (4) appellant received adequate training and warning for the limited job of "feeder," which he was asked to perform; (5) FC&S;s unfamiliarity with the safety manual and safety standards did not establish that FC&S;was substantially certain that injury would occur; and (6) OSHA violations are not a proper basis for civil liability and such evidence is insufficient to establish even negligence per
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