Nowak v. Emhart Corp.

Citation916 F.2d 713
Decision Date18 October 1990
Docket NumberNo. 89-2336,89-2336
PartiesUnpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Nancy L. NOWAK, Plaintiff-Appellant, v. EMHART CORPORATION, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Before KEITH and MILBURN, Circuit Judges, and THOMAS, Senior District Judge. *

PER CURIAM.

Nancy L. Nowak appeals the district court's grant of summary judgment for Emhart Corporation ("Emhart") in this products liability action. For the following reasons, we affirm.

I.
A.

On October 10, 1985, Nancy L. Nowak suffered an injury while employed by Lamar Industrial Plastics in Sterling Heights, Michigan. Nowak was operating a plastic molding machine when the little finger of her left hand was cut off by a part of the mold being used on the machine.

The molding system on which Nowak was injured has two principal components. The first component is a plastic injection machine manufactured by Farrell, the predecessor of defendant-appellant Emhart Corporation. The injection machine is described by Emhart as a multi-purpose machine which injects plastic into a mold supplied by the machine's user so as to form plastic on or around a part or product. The injection machine is useless until the user installs a mold at the point of operation and incorporates the machine into a manufacturing system. The injection machine has a manually operated sliding safety gate which the operator must close before the machine will operate. The injection machine in this case was purchased by Lamar, Nowak's employer, as a used machine from a third party.

The second component of the molding system is the mold which is installed into the injection machine. In this case, Lamar installed a truck window mold, owned and supplied by General Motors Corporation (G.M.), into the injection machine and used the machine to form a plastic edge around truck windows. The mold had "push rods" which would eject the completed window from the mold and then retract into the mold for the next operation. The hydraulic "push rods" were activated by an electrical toggle switch installed by Lamar on the side of the injection machine. The toggle switch was unguarded and placed in close proximity to the mold's point of operation. Nowak's expert witness stated in a deposition that the toggle switch could have been located elsewhere on the injection machine or in the vicinity of the machine.

The Michigan Department of Labor cited Lamar for violating Michigan Occupational Health and Safety (MIOSHA) regulations in connection with Lamar's assembly and operation of the molding system. A citation issued on May 7, 1985, indicates that Lamar failed to interlock the safety gate on the injection machine with the mold's electrical and hydraulic devices, in violation of Mich. Admin. Code Reg. 408.16234(2). A February 10, 1986, citation indicates that Lamar failed to guard the pinch point on the push rods of the mold, in violation of Mich. Admin. Code Reg. 408.10034(a). The citation also states that Lamar failed to establish and train for a lockout procedure for servicing the molding system in violation of Mich. Admin. Code Reg. 408.16211(1) and (2).

The molding system operated in the following manner. With a window placed in the mold, the employee would close the safety gate on the injection machine, activate the machine, allow it to cycle, and open the safety gate when the operation was complete. The employee would next activate the push rods on the mold by flipping the toggle switch, and then reach into the mold to catch the finished window as it was ejected by the push rods. After setting the finished window aside, the employee would activate the toggle switch to retract the push rods, and then place a new window into the mold, close the safety gate on the injection machine and start the process again.

Nowak was injured while operating the molding system. Nowak's injury occurred while the injection machine was idle with its safety gate open. After Nowak removed a finished window from the mold, she reached into the mold to clear one of the plastic injectors and placed her left hand on one of the extended push rods. While Nowak's hand was on the push rod, the toggle switch was inadvertently activated, possibly by Nowak's other hand or a part of her body, and the little finger on her left hand was amputated by the push rod retracting into the mold.

B.

Nowak filed the present action on June 13, 1988, against Emhart Corporation, the successor to the manufacturer of the injection machine, and United Shoe Machinery. United Shoe Machinery was later dismissed as a defendant by stipulation. Nowak's complaint alleges negligence, strict liability, and breach of express and/or implied warranty. The complaint asserts that Emhart (1) failed to design and manufacture the injection machine with adequate electrical switches, (2) failed to design and manufacture proper safety and guarding devices, and (3) failed to adequately and properly warn and instruct users and operators of risks of harm created by the machine.

On August 18, 1989, Emhart filed a motion for summary judgment, and a hearing was held on October 17, 1989. Following the hearing, the district judge rendered a decision from the bench granting Emhart's motion for summary judgment, and the court entered an order dismissing the action on October 30, 1989. The district court concluded that under Ross v. Jaybird Automation, Inc., 172 Mich.App. 603, 432 N.W.2d 374 (1988), the manufacturer, Emhart, owed no duty to the end user, Lamar, whose employee suffered an injury, "especially when the end user installs a satellite component part which is in violation of the law." J.A. at 194. The court added that even if there was a duty owed by Emhart, Nowak failed to satisfy the foreseeability test because "a manufacturer who sells products of such a specialty, as did Emhart, ... [could not and should not] have foreseen that an end user, such as Lamar, would install a component part improperly and illegally and in violation of the OSHA requirements." Id. This timely appeal followed.

The principal issue on appeal is whether the district court erred by granting summary judgment for Emhart.

II.

Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. We review a district court's grant of summary judgment de novo, Pinney Dock and Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880 (1988), viewing all facts and inferences drawn therefrom in the light most favorable to the nonmoving party. 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987).

Nowak argues that Emhart owed a duty to the user of the injection machine to design and manufacture the machine so as to eliminate avoidable, unreasonable, and foreseeable risks. Nowak asserts that this duty includes providing adequate warnings and instructions for use of the machine, and the duty extends to include reasonably foreseeable misuse of the product. Thus, Nowak concludes that negligent or improper installation of an integral component by Lamar was a foreseeable risk which Emhart had a duty to reasonably avoid.

Nowak relies on the testimony of her expert witness, Ben J. Lehman, Rear Admiral USNR, that the injection machine was defective and unreasonably dangerous as designed. Lehman testified that because the injection machine requires installation of a mold to make it useable, Emhart should have anticipated the need for mechanical and electrical interfacing and should have preinstalled safety switches on the machine and provided technical information about the switches for a user to consult when installing a mold. Lehman further testified that electrical switches placed on the machine by Emhart could accommodate 90% to 95% of the molds to be used with the injection machine. J.A. at 80. Nowak asserts that had Emhart provided the safety switches and instructions suggested by Lehman, Lamar would not have improperly installed the mold and the toggle switch.

Nowak argues that since a mold must be installed to make the injection machine useable, it is foreseeable that a user may negligently install the mold, resulting in injury to the machine operator. She further argues that because Emhart's duty includes the responsibility to guard against foreseeable misuse, Lamar's installation of the mold and the switch "albeit in apparent violation of MIOSHA regulations, ... [was] nevertheless foreseeable and [did] not relieve the defendant of liability." Appellant's Brief at 12.

Nowak attempts to distinguish Ross, the case relied upon by the district court, by arguing that Ross involved improper installation of a non-defective mechanism, while the present case concerns improper installation caused by a defective machine or by lack of adequate instructions and warnings. Nowak argues that where a user is required to supply a component in order to make a product useable, the manufacturer should not be allowed to hide behind the user's negligence. Otherwise, Nowak asserts, "A manufacturer will merely leave off particular parts of his machine, to be supplied by someone else, so that he does not have to discharge his basic duties regarding safety, design, instruction and warning." Appellant's Brief at 14.

"In Michigan, two theories of recovery are recognized in the area of products liability: negligence and breach of implied warranty." Lemire v. Garrard Drugs, 95 Mich.App. 520, ----, 291 N.W.2d 103, 104 (1980). "Strict liability has not been recognized as a third theory of recovery." Johnson v. Chrysler Corp., 74 Mich.App. 532, ----, 254 N.W.2d 569, 571 (1977). Moreover,

[w]hen,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT