Cacevic v. SIMPLIMATIC ENGINEERING CO.

• Decision Date: 01 June 2001
• Docket Number: Docket No. 207154.
• Citation: 645 N.W.2d 287,248 Mich. App. 670
• Parties: Lena CACEVIC and Nuo Cacevic, Plaintiffs-Appellants, v. SIMPLIMATIC ENGINEERING COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

645 N.W.2d 287

248 Mich. App. 670

Lena CACEVIC and Nuo Cacevic, Plaintiffs-Appellants, v. SIMPLIMATIC ENGINEERING COMPANY, Defendant-Appellee.

Docket No. 207154.

Court of Appeals of Michigan.

Submitted June 1, 2001, at Detroit.

Decided December 14, 2001, at 9:00 a.m.

Gregory Fisher Lord, Sterling Heights, for plaintiffs.

Beach & Ager (by Eugene H. Beach, Jr.), Southfield, for defendant.

Before: JANSEN, P.J., and HOOD and WILDER, JJ.

ON REMAND

WILDER, J.

In this products liability case, we previously reversed a jury verdict of no cause of action and remanded for a new trial.¹ In lieu of granting leave to appeal, the Supreme Court vacated footnote 2 of our previous opinion and remanded to us so that we could consider "defendant's argument that the judgment in its favor should be affirmed because it was entitled to a directed verdict." Cacevic v. Simpl[i]matic Engineering Co, 463 Mich. 997, 625 N.W.2d 784 (2001).² After considering this issue, we again reverse and remand for a new trial.

I. Facts and Proceedings

As stated in our previous opinion:

Plaintiff Lena Cacevic worked as a palletizer operator at Johnson Controls' Novi plant. While working the night shift on September 3, 1993, Lena sustained serious injuries to her right hand and arm when she reached inside the palletizer³ machine to free a pallet that became stuck in the elevator component of the machine. Lena tried to clear the jam by inserting her right hand and arm under a mesh guard into the pallet infeed opening to reach for the empty pallet and remove it from the machine. As Lena did this, the elevator raised the pallet, striking her hand and arm.

Plaintiffs filed the instant action against defendant Simplimatic Engineering Company, the manufacturer of the palletizer machine, alleging that defendant negligently designed and manufactured the palletizer by failing to include adequate and proper safeguards, provide adequate and proper instructions, devices, or methods to operate the machine, and provide adequate and proper warning of both the inherently dangerous areas of the machine and the dangers in operating the machine. [Cacevic v. Simplimatic Engineering Co., 241 Mich.App. 717, 718-719, 617 N.W.2d 386 (2000).]

While not mentioned in our previous opinion, we note that during plaintiffs' case in chief, Evido Edwards was called to testify. He testified that on the evening of Lena's injury, he was temporarily operating the palletizer for Lena while she was taking a break.⁴ During this time, the machine jammed. Edwards also testified that he observed Lena returning from her break and asked her to help him fix the problem. According to Edwards, he asked Lena to walk around to the back of the machine and push the empty pallet further into the elevator shaft so the elevator would take the pallet up and he could continue putting bottles on it. Edwards then testified that as soon as Lena reached inside the machine she dropped to her knees, at which time he ran over and observed a gash across the top of Lena's right arm and called management to the scene. Thereafter, Lena was transported to the hospital.

Lena testified that she had been trained on the palletizer within her first few days of employment and that even though she felt it was the most difficult job in the plant, by the time her ninety-day probationary period had ended, she was able to successfully operate the machine. She also testified that she had not been given any instructions or training on lockout procedures for the machine, nor had she been given an operator or maintenance manual to review. According to Lena, the only way she knew to turn off the machine was by pressing the green stop button, but that every time she used that button to shut off the machine, the line leader would yell at her and instruct her not to turn off the machine. In addition, Lena admitted that during the course of her training she had been advised to turn off the machine before entering the elevator shaft, but also testified that, despite this advice, the management at Johnson Controls discouraged turning off equipment to clear jams because this would back up the production line. She also testified that she had observed her supervisor and other employees reach inside the palletizer to clear jams and that, as far as she was aware, this was the only method of remedying a jam. Further, Lena testified that there was no warning label instructing her not to enter the elevator shaft.

Plaintiffs also called Linda Long, Dr. Robert Cunitz, and Paul Glasgow to testify regarding the design and safety features of the palletizer.

Long, a safety officer with the Department of Consumer and Industry Services testified that she conducted an investigation of the accident and, as a result of this investigation, she opined that the protective device, placed in front of the elevator opening, was inadequate to guard the area in which Lena placed her arm. In fact, according to Long, she believed that because of the size of the guard, instead of serving as protection, it actually created a hazardous condition. Long also testified that her investigation revealed that there was a workable, usable lockout device on the palletizer at the time of Lena's injury but that only the maintenance people, and not the machine operators, were instructed on how to use the lockout. Long further testified that because it was common for conveying systems to finish the last stroke of production by the machine's residual pressure, simply pressing the emergency stop button on the palletizer would not remove all the hazards associated with the machine. Finally, Long testified that the warning labels placed on the palletizer merely warned of potential hazards without removing any dangers and thus did not protect operators of the machine.

In addition, Dr. Cunitz, a human factor psychologist,⁵ testified that after reviewing all the relevant testimony, documents, and exhibits in this case, he believed the palletizer machine, as designed by defendant, was unreasonably dangerous and defective and that such dangers and defects were a substantial cause of Lena's injuries. Specifically, Dr. Cunitz testified that the palletizer could not clear its own jams or pick up fallen bottles and that the human operator had to perform these tasks, a fact reasonably foreseeable to the manufacturer at the time the machine was designed. Because the human operator had to clear jams and remove fallen bottles, it was necessary for the operator to be exposed to a "pinch-point hazard" during the normal use of the machine. Dr. Cunitz described this pinch-point hazard as the approximate six-inch opening above the wooden pallet that "closes rapidly as the hoist raises the pallet up." Dr. Cunitz testified that it was reasonably foreseeable that because the pinch point was essentially unguarded and easily reachable by somebody trying to clear a jam or retrieve a fallen bottle, the machine was unreasonably dangerous. He also testified that the warning label⁶ on the machine was inadequate and that, because of the potential for permanent injury or death associated with the machine, there should have been a "danger" sign.

Dr. Cunitz also opined that Lena's conduct in assisting Edwards on the night in question was reasonable and that her actions of reaching inside the machine to clear a pallet jam was foreseeable to the manufacturer at the time the machine was designed and manufactured. Specifically, Dr. Cunitz testified that the existence of the small mesh guard placed in front of the pinch point established that defendant was cognizant of the danger associated with the pinch point. With respect to this guard, Dr. Cunitz testified that because of its size it was inadequate protection, noting that an employee could easily reach around the guard. Instead, Dr. Cunitz testified that the Plexiglass guard that had been placed on the machine after Lena's injury was in a much better position to protect the operators and would have, in his opinion, prevented Lena's injuries.

Glasgow, a safety and design engineer, as well as president and chief operating officer of Glasgow Products, Inc., also corroborated the testimony of Long and Dr. Cunitz. He testified that the mesh guard provided by defendant was "totally inadequate" because it did not conform to the safe distance aspect of guarding, meaning that the guard was not positioned in such a way that it would prevent a person from placing a hand through the opening into the hazardous area of the palletizer. On the basis of his examination of the equipment, Glasgow testified that because there was no adequate, protective guarding in place when Lena's accident occurred, the palletizer did not conform to the American National Standards Institute Committee (ANSI) standards for guarding that existed at the time the palletizer was designed and that defendant did not use reasonable and diligent care to eliminate a reasonably foreseeable risk of harm (i.e., injuring a hand while trying to clear a jam). He also noted during his testimony that at the time of his investigation, the original mesh guard had been replaced with a Plexiglass guard with an interlock switch, so that, if the guard was opened, the palletizer would automatically stop operating. According to Glasgow, the interlock switch was a standard design procedure used in most machinery to prevent injuries from foreseeable dangerous conditions and that this procedure had been known and used long before the palletizer was designed and manufactured by defendant.⁷ Hence, he concluded that the palletizer was negligently designed and manufactured.

Plaintiffs also called Paul Smith, defendant's manager of machinery engineering. He testified that he had observed the Plexiglass guard installed after Lena's injury and admitted that it was both economically and technically feasible to install this guard on the palletizer at the time of design and manufacture. Specifically, he indicated that the...