Flowmaster, Inc. v. Superior Court

• Decision Date: 23 June 1993
• Docket Number: No. AO60508,AO60508
• Citation: 20 Cal.Rptr.2d 666,16 Cal.App.4th 1019
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 13,681 FLOWMASTER, INC., Petitioner, v. The SUPERIOR COURT of Sonoma County, Respondent; Donald VON DOHLEN, Real Party in Interest.

Page 666

20 Cal.Rptr.2d 666

16 Cal.App.4th 1019, Prod.Liab.Rep. (CCH) P 13,681

FLOWMASTER, INC., Petitioner, v. The SUPERIOR COURT of Sonoma County, Respondent Donald VON DOHLEN, Real Party in Interest.

No. AO60508.

Court of Appeal, First District, Division 1, California.

June 23, 1993.

Review Denied Sept. 16, 1993.

Errol L. Searle, Laughlin, Falbo, Levy & Moresi, San Francisco, for petitioner.

No appearance for respondent.

Ian Gordon, James, Gack, Bernheim & Freeman, Santa Rosa, for real party in interest.

NEWSOM, Associate Justice.

Petitioner Flowmaster, Inc. (Flowmaster), is the defendant in plaintiff Donald Von Dohlen's (hereafter plaintiff) civil action for personal injuries incurred by him while operating a hydraulic power press manufactured by Flowmaster. Plaintiff is Flowmaster's employee and was injured while performing his duties as a "parts maker." Flowmaster moved for summary judgment on the ground that plaintiff's suit is barred by the exclusive remedy provisions of the worker's compensation law. (Lab.Code, § 3600.) ¹ The trial court denied the motion, and Flowmaster seeks review by this petition for writ of mandate.

The record shows that Flowmaster is in the business of manufacturing mufflers; it designed, fabricated and assembled hydraulic presses solely for internal use by its employees at the Flowmaster facility. The newest such device was "hydraulic press number 29." Plaintiff was trained in the safe use of the device.

Plaintiff was injured on October 24, 1991, while operating hydraulic press number 29 (hereafter the press), which had been in use at the Flowmaster plant since September 16, 1991. Specifically, the function of the press was to manufacture a "center brace," described as a "form part" four inches square, "with a hole in it." The operator would initiate the manufacturing process by placing the part in the press, then pressing two electronically activated "deadman switches" with the palms of both hands. Only when both deadman switches were so activated was the operator able to depress a "foot pedal" to initiate the downward stroke of the press, thereby forming the center brace by forcing the cylinder down into the die. The two deadman switches were designed as "point-of-operation guards" to inhibit the "down" or "work" stroke of the press if the hands of the operator entered the point of operation "during the work." Until the deadman switches were pressed with both hands, the descending stroke of the press could not proceed.

Both when it was first designed, and at the time of plaintiff's injury, the press was equipped with a point of operation guard for the down stroke only. The ascending stroke of the cylinder was initiated merely by depressing a foot pedal, without any hand activation of a deadman switch, leaving the operator's hands free. Flowmaster did not consider that the "up" stroke of the press presented a danger, as "there was nothing there to pull the part off." Nor was Flowmaster at the time the press was designed "aware of how" to install a deadman switch for the ascending stroke although it knew that the technology existed to do so. The "standard in the industry" was to "have no control on the upward strokes." With a modification of the wiring, however, the press was capable of functioning with a deadman switch to "stop the 'up' stroke." Flowmaster had also designed other hydraulic presses with "light beams" as point of operation guards, which worked on both the descending and ascending strokes, but the light beam system was not dependable and was replaced with deadman switches.

Before plaintiff's accident, the press was modified by addition of a "stripper plate" to "pull the parts off of the tool" during the "up" stroke of the cylinder. Thus after the down stroke, the operator depressed the "up" foot pedal to commence the ascending stroke, during which the part was "stripped off the die as it goes up." Plaintiff was injured during the ascending stroke of the cylinder when he placed his left hand on the part being stripped and his fingers became caught between the die-base and the bottom edge of the stripper. As the die retracted into the stripper cylinder, plaintiff's thumb and two fingers were severed.

Immediately following plaintiff's accident, Flowmaster was cited and fined by the Occupational Safety and Health Administration (hereafter OSHA) for failure to properly equip hydraulic presses with point of operation guards. Thereafter, merely by implementing a "simple" and inexpensive change in the "wiring current," Flowmaster was able to equip the press with a deadman switch to inhibit the ascending stroke of the cylinder.

Since plaintiff was injured during the course and scope of his employment, in order to proceed against Flowmaster, he must place himself within a recognized exception to the rule that the exclusive remedy provisions of the workers' compensation law bar a civil action for damages against his employer. (§ 3600; Behrens v. Fayette Manufacturing Co. (1992) 4 Cal.App.4th 1567, 1572, 7 Cal.Rptr.2d 264; Robomatic, Inc. v. Vetco Offshore (1990) 225 Cal.App.3d 270, 274, 275 Cal.Rptr. 70; Pichon v. Pacific Gas & Electric Co. (1989) 212 Cal.App.3d 488, 494, 260 Cal.Rptr. 677.) His suit for damages is predicated upon the "power press" exception to the exclusivity rule found in section 4558. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1132, 279 Cal.Rptr. 459.) Flowmaster contends that the trial court erred in finding the evidence presented in support of the summary judgment motion "insufficient" to negate plaintiff's cause of action pursuant to section 4558.

In reviewing the trial court's denial of Flowmaster's motion for summary judgment, our task is to determine whether a triable issue of material fact remains to be adjudicated. (Code Civ.Proc., § 437c, subd. (c); Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874, 191 Cal.Rptr. 619, 663 P.2d 177; Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, 137, 203 Cal.Rptr. 572.) It is not the function of a summary judgment proceeding to decide the merits of issues but merely to ascertain whether issues of fact exist to be tried. (Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385, 391, 268 Cal.Rptr. 96; Anaya v. Turk (1984) 151 Cal.App.3d 1092, 1106, 199 Cal.Rptr. 187.) " '... If there is any issue of material fact to be tried, summary judgment must be denied.' [Citation.]" (Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal.App.3d 379, 383, 271 Cal.Rptr. 780.) " ' "A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. [Citation.] ..." ' " (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 610, 7 Cal.Rptr.2d 859.) To succeed, a defendant moving for summary judgment must "conclusively negate a necessary element of the plaintiff's case or establish a complete defense and thereby demonstrate that under no hypothesis is there a material factual issue which requires the process of a trial." (Platts v. Sacramento Northern Ry. (1988) 205 Cal.App.3d 1025, 1032, 253 Cal.Rptr. 269, internal quotation marks omitted; see also Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 990, 6 Cal.Rptr.2d 184; Walsh v. Bronson (1988) 200 Cal.App.3d 259, 264, 245 Cal.Rptr. 888.)

"The aim of the [summary judgment] procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion." (Reid v. State Farm Mut. Auto. Ins. Co. (1985) 173 Cal.App.3d 557, 570, 218 Cal.Rptr. 913, internal quotation marks omitted.) We conduct a de novo examination of the evidence and independently review the trial court's determination of questions of law. (Buic v. Buic (1992) 5 Cal.App.4th 1600, 1604, 7 Cal.Rptr.2d 738; Onciano v. Golden Palace Restaurant, Inc., supra, 219 Cal.App.3d at p. 391, 268 Cal.Rptr. 96; Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 353, 257 Cal.Rptr. 356.) " '... However, a motion for summary judgment is addressed to the sound discretion of the trial court, so that absent a clear showing of abuse, the judgment will not be disturbed on appeal. [Citation.]' (Hoffman v. Citadel General Assurance, Ltd., 194 Cal.App.3d 1356, 1362, 240 Cal.Rptr. 253; see also Fireman's Fund Ins. Co. v. Fibreboard Corp., 182 Cal.App.3d 462 at p. 466, 227 Cal.Rptr. 203; Taylor v. Fields (1986) 178 Cal.App.3d 653, 660 .)" (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1514, 285 Cal.Rptr. 385.)

The essential liability provision of section 4558 is found in subdivision (b), which states: "An employee, or his or her dependents in the event of the employee's death, may bring an action at law for damages against the employer where the employee's injury or death is proximately caused by the employer's knowing removal of, or knowing failure to install, a point of operation guard on a power press, and this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death." "A cause of action under section 4558 includes the following elements: (a) that the injury or death is proximately caused by the employer's knowing removal of, or knowing failure to install, a point of operation guard on a power press; and (b) that this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death. (2 Witkin, Summary of Cal.Law (9th ed. 1987) Workers' Compensation, § 57, p. 618.)" (...