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Vermett v. Fred Christen & Sons Co.8/25/2000
ior injury is not the sole factor in determining an employer's knowledge. Cook v. Cleveland Elec. Illum. Co. (1995), 102 Ohio App.3d 417, 429.
It is true that there were no prior injuries associated with the press since FC&S;acquired it in 1990; however, this does not negate the other evidence in this case.
Based on the foregoing, we find that reasonable minds could conclude differently regarding whether FC&S;knew that appellant's injuries were a substantial certainty. FC&S;knew the press should not be operated without adequate point of operation guarding, yet none was added, and FC&S;knew that appellant had never operated a press on his own before, yet it is questionable whether he received adequate instruction. As such, we find that genuine issues of material exist with respect to the second prong of the Fyffe analysis. Additionally, insofar as FC&S;required appellant to perform his job on an unguarded press, arguably without sufficient training, we find that there are genuine issues of material fact with respect to the third prong of the Fyffe analysis.
Accordingly, we find that the trial court erred in granting FC&S;s motion for summary judgment and denying appellants' motion for reconsideration. Appellants' first and fourth assignments of error are therefore found well-taken.
B. APPELLANTS' CLAIMS AGAINST WYSONG
Appellants asserted a products liability action against Wysong, pursuant to former R.C. 2307.75(A), alleging that the press brake was defective in its manufacture or construction, its design or formulation, and, pursuant to R.C. 2307.76, alleging inadequate warnings or instructions. Former R.C. 2307.75(A) stated as follows:
"(A) Subject to divisions (D), (E), and (F) of this section, a product is defective in design or formulation if either of the following applies:
"(1) When it left the control of its manufacturer, the foreseeable risks associated with its design or formulation as determined pursuant to division (B) of this section exceeded the benefits associated with that design or formulation as determined pursuant to division (C) of this section;
"(2) It is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner."
R.C. 2307.76(A) states:
"(A) Subject to divisions (B) and (C) of this section, a product is defective due to inadequate warning or instruction if either of the following applies:
"(1) It is defective due to inadequate warning or instruction at the time of marketing if, when it left the control of its manufacturer, both of the following applied:
"(a) The manufacturer knew or, in the exercise of reasonable care, should have known about a risk that is associated with the product and that allegedly caused harm for which the claimant seeks to recover compensatory damages;
"(b) The manufacturer failed to provide the warning or instruction that a manufacturer exercising reasonable care would have provided concerning that risk, in light of the likelihood that the product would cause harm of the type for which the claimant seeks to recover compensatory damages and in light of the likely seriousness of that harm."
Wysong moved for summary judgment, which was granted by the trial court on the claims of defective and negligent design and inadequate warnings. Wysong's motion for summary judgment on the claim of manufacturing defect was denied by the trial court and appellants' claim alleging a failure to conform to express and implied representations was not addressed by the court, later both of these claims were dismissed by appel
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