Gregg v. Allen-Bradley Co., ALLEN-BRADLEY

• Decision Date: 23 September 1986
• Docket Number: ALLEN-BRADLEY,No. 85-1277,85-1277
• Citation: 801 F.2d 859
• Parties: Prod.Liab.Rep.(CCH)P 11,133 Steven GREGG, Plaintiff-Appellant, v.CO., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 859

801 F.2d 859

Prod.Liab.Rep.(CCH)P 11,133

Steven GREGG, Plaintiff-Appellant, v.ALLEN-BRADLEY CO., Defendant-Appellee.

No. 85-1277.

United States Court of Appeals Sixth Circuit.

Argued April 22, 1986.

Decided Sept. 23, 1986.

Robert V. Seymour(argued), Southfield, Mich., for defendant-appellee.

Paul A. Rosen, Goodman, Eden, Millender & Bedrosian, Detroit, Mich., Julie A. Gibson(argued), for plaintiff-appellant.

Before MERRITT and JONES, Circuit Judges, and THOMAS, Senior District Judge.^*

NATHANIEL R. JONES, Circuit Judge.

PlaintiffSteven Gregg initiated this case in the statecourt of Michigan.On defendant Allen-Bradley's motion, the case was subsequently removed to the District Court for the Eastern District of Michigan.Gregg alleged that he was injured because of an unsafe foot switch manufactured by Allen-Bradley and attached to a die press on which he was working.On October 30, 1984, Allen-Bradley filed a motion for summary judgment on the ground that there was no issue of material fact that the foot switch had anything to do with Gregg's injury.After considering the parties' briefs and oral arguments, the district court granted the motion.We affirm.

Gregg was employed as a die-setter at Sheller-Globe Corporation in Livonia, Michigan.His responsibilities included the repair and installation of die sets used to form steel parts.The allegedly defective foot switch was used to operate one of Sheller-Globe's mechanical power presses, Cleveland Press # 18.

Cleveland Press # 18 had been manufactured in 1949.Sheller-Globe purchased it in used condition in 1971.The press had two different modes of operation: the run/continuous mode and the inch mode.The particular mode of operation was selected by turning a key selector switch located on the control panel on the side of the press.For the press to operate in the run mode, the key had to be turned to the left; to operate in the inch mode, the key had to be turned to the right.

In the run mode, the press was activated by an electrical foot switch attached to the bottom of the press.Once activated, the ram would go from the top of the press, down to the bottom of the press and back to rest at the top of the press.The foot switch attached to Cleveland Press # 18 was allegedly manufactured and sold by Allen-Bradley.

One point of contention in this case is the operation of the press while in the inch mode.All testimony in the depositions and affidavits indicated that the inch mode on Cleveland Press # 18 is activated by an inch button located on the control panel on the side of the press, and could only be activated by hand.When the inch button is pressed, the ram moves to the bottom of the press and back to the top in small separate increments.The electrical foot switch could not activate the press while in the inch mode because the inch circuit bypasses the circuitry that controls operation of the foot switch.

On August 30, 1978, the machine operator of Cleveland Press # 18 experienced a problem with a part that became lodged in the lower die.The operator sought the assistance of Gregg to fix the problem.Gregg first went to the central box and turned the selector key to the inch mode.He then went to the back of the press where he increased the air pressure in order to eject the part.According to his testimony, he wanted to inspect the dies for damage so he began removing bolts that held the lower die in place.While removing the bolts, the ram came down and crushed his right hand.Gregg cannot remember stepping on the foot switch.However, he theorizes that the only way he could have activated the press was if he stepped on the foot switch.

Gregg and his wife later filed suit against Allen-Bradley under theories of negligence and breach of warranty.They alleged that the electrical foot switch manufactured and sold by Allen-Bradley was a proximate cause of his injuries essentially because there was not a safeguard around the foot switch to protect someone from inadvertently activating the press.Allen-Bradley filed a motion for summary judgment on the basis that the foot switch could not activate the press while in the inch mode and therefore could not have been the proximate cause of the accident.The district court found no genuine issue of material fact as to this point.It further found that the undisputed facts revealed that the foot switch was not a proximate cause of Gregg's injuries and, therefore, granted the motion.

Summary judgment is an appropriate means of disposing of a case where there is no genuine issue as to any material fact.Fed.R.Civ.P. 56(c).The burden is on the moving party to show conclusively that no genuine issue of material fact exists.Smith v. Hudson, 600 F.2d 60, 63(6th Cir.), cert. denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415(1979).The district court must view the evidence with all inferences drawn therefrom read in the light most favorable to the party opposing the motion.Id.

Once the moving party presents evidence sufficient to support the motion under Rule 56(c), the adverse party must set forth specific facts showing that there is a genuine issue for trial.Fed.R.Civ.P. 56(e).The nonmoving party is not entitled to a trial merely on the basis of allegations; significant probative evidence must be presented to support the complaint.First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289-90, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569(1968);Schultz v. Newsweek, Inc., 668 F.2d 911, 918-19(6th Cir.1982).Thus Rule 56(e) requires a shifting of burdens to the opposing party if the moving party has satisfied Rule 56(c).If the court finds after reviewing the evidence that no genuine issue of material fact exists, the moving party is entitled to a judgment as a matter of law.Fed.R.Civ.P. 56(c).

Under the fact scenario in this case, Allen-Bradley needed to establish the following: 1) that Cleveland Press # 18 had two distinct, separate and alternative modes of operation--the run mode and the inch mode; 2) that Cleveland Press # 18 was in the inch mode at the time of the accident; and 3) that while in the inch mode, the foot switch could not activate the press to cause the ram to come down.With these three facts established, there would be no disputed fact that the foot switch was not a proximate cause of the accident.The district court found, and the record shows, that the press had two different modes of operation and that the press was in the inch mode at the time of the accident.Gregg does not dispute these findings on appeal.The third proposition is the point of contention in this case.

Allen-Bradley presented affidavits and/or deposition testimony of a number of experts and witnesses concerning the operation of Cleveland Press # 18.Robert L. Westover, a diesetter at the plant at the time of the accident, stated in his affidavit of October 3, 1984, that the press on Cleveland Press # 18 could only be activated in the inch mode by pushing the inch button on the control panel and not by the foot switch "during the period of my employment and particularly on August 30, 1978."...