Gumnitsky v. Delta Intern. Machinery Corp.

• Decision Date: 24 October 2005
• Docket Number: No. 1:04 CV 1855.,1:04 CV 1855.
• Citation: 411 F.Supp.2d 756
• Parties: Zinovy GUMNITSKY, et al., Plaintiff, v. DELTA INTERNATIONAL MACHINERY CORP., et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

411 F.Supp.2d 756

Zinovy GUMNITSKY, et al., Plaintiff, v. DELTA INTERNATIONAL MACHINERY CORP., et al., Defendants.

No. 1:04 CV 1855.

United States District Court, N.D. Ohio, Eastern Division.

October 24, 2005.

COPYRIGHT MATERIAL OMITTED

Geoffrey S. Hickey, Willard E. Bartel, Miller, Stillman & Bartel, Lawrence Landskroner, Landskroner & Associates, Cleveland, OH, for Plaintiffs.

Anthony M. Gantous, Mark F. McCarthy, Carter E. Strang, Tucker Ellis & West, Cleveland, OH, for Defendant.

Memorandum of Opinion and Order

GAUGHAN, District Judge.

Introduction

This matter is before the Court upon defendant Delta International Machinery Corporation's Motion for Summary (Doc. 15). This is a products liability case involving a hand injury incurred during use of a miter saw. For the following reasons, the motion is GRANTED.

Facts

Plaintiffs, Zinovy Gumnitsky (hereafter, Gumnitsky) and Anna Gumnitsky (collectively hereafter, plaintiffs), filed this products liability and negligence action against defendants, Delta International Machinery Corporation and John Doe and/or John Doe Inc. The latter has not been identified. The case was filed in the Cuyahoga County Common Pleas Court and removed to this Court on the basis of diversity of citizenship.

Gumnitsky spent seven years as a carpenter in his native country, Ukraine. He was licensed and certified there, and received most of his training from his father, a master carpenter. Gumnitsky then went to welding school in Ukraine, receiving his license and certification in that field. He worked as a welder for four years before leaving Ukraine and becoming a United States citizen. After his arrival in the United States in 1989, Gumnitsky secured employment with Kiffer Industries in Cleveland as a welder. Gumnitsky first learned how to use a DeWalt brand electric miter saw at Kiffer Industries, and operated it almost daily. Gumnitsky did not use a miter saw in Ukraine. (Gumnitsky depo.7-18, 24-26)

Gumnitsky sought to supplement his income when work slowed down at Kiffer Industries by purchasing houses and remodeling them. One such home was located in Parma, Ohio. Gumnitsky had a home workshop in his garage. In 2000, Gumnitsky purchased the Delta Sidekick 12" Compound Miter Saw, Model 36-235 (hereafter, the Delta saw) which is the subject of this action, at a Home Depot. He chose this saw based on price, although he considered other brands. While he had sought to purchase the DeWalt brand which he had used at Kiffer Industries, it was too expensive. (Id. 27-35)

The Delta saw plaintiff has identified as the one he was using when he was injured was manufactured in May 2000. (Louis Brickner aff.). The Delta saw has two sets of identical warnings posted on the right and left front of its table, facing the operator, which state in relevant part:

FOR YOUR OWN SAFETY READ INSTRUCTION MANUAL BEFORE OPERATING MITER SAW.

1. Always wear eye protection.

2. Keep hands out of path of saw blade.

3. Do not operate saw without guards in place.

4. Do not perform any operation freehand.

5. Never reach around saw blade.

6. Turn off tool and wait for saw blade to stop before moving workpiece or changing settings.

7. Disconnect power by unplugging tool before changing blade or servicing.

(Brickner aff. and Exs. B-1 and B-2). Gumnitsky read and understood the warnings on the saw. (Gumnitsky depo. 46).

The Delta saw's Instruction Manual (hereafter, the manual) contains Safety Rules and Additional Safety Rules for Compound Miter Saws. The Safety Rules state in part:

Woodworking can be dangerous if safe and proper operating procedures are not followed. As with all machinery, there are certain hazards involved with the operation of the product. Using the machine with respect and caution will considerably lessen the possibility of personal injury. However, if normal safety precautions are overlooked or ignored, personal injury to the operator may result. Safety equipment such as guards, push sticks, hold-downs, featherboards, goggles, dust masks and hearing protection can reduce your potential for injury. But even the best guard won't make up for poor judgment, carelessness[,] or inattention. Always use common sense and exercise caution in the workshop. If a procedure feels dangerous, don't try it. Figure out an alternative procedure that feels safer. REMEMBER: Your personal safety is your responsibility.

* * * * * *

WARNING: FAILURE TO FOLLOW THESE RULES MAY RESULT IN SERIOUS PERSONAL INJURY

1. FOR YOUR OWN SAFETY, READ INSTRUCTION MANUAL BEFORE OPERATING THE TOOL. Learn the tool's application and limitations

as well as the specific hazards peculiar to it.

* * * * * *

12. WEAR PROPER APPAREL. No loose clothing, gloves, neckties, rings, bracelets, or other jewelry to get caught in moving parts. Nonslip footwear is recommended. Wear protective hair covering to contain long hair.

* * * * * *

14. SECURE WORK. Use clamps or a vise to hold work when practical. It's safer than using your hand and frees both hands to operate tool.

* * * * * *

(Doc. 15 Ex. C). The Additional Safety Rules for Compound Miter Saws state in part:

* * * * * *

4. ALWAYS hold work firmly against the fence and table. DO NOT perform any operation freehand.

5. WARNING: ALWAYS keep hands out of path of saw blade. If the workpiece you are cutting would cause your hands to be inside the table hazard area (see section "TABLE HAZARD AREA"), the workpiece should be clamped in place before making cut.

* * * * * *

(Id.). The Manual defines the TABLE HAZARD AREA:

TABLE HAZARD AREA

WARNING: THE AREA INSIDE THE TWO RED LINES (A) FIG. 23, ON THE TABLE IS DESIGNATED AS A HAZARD ZONE. NEVER PLACE YOUR HANDS INSIDE THIS AREA WHILE THE TOOL IS BEING OPERATED.

(Id. at 15). The accompanying Figure 23 demonstrates that two lines set off the area. (Id.).¹

The Delta saw has a vertical fence, which extends vertically on either side of the saw's blade at a right angle to the Delta Saw's table. (Brickner aff. and Exs B-1, B-3; Doc. 15 Ex. C; videotaped deposition of Gumnitsky). The back side of the right fence has a slanted/sloped design. (Lonnie Bird depo. 28-29).

The parts provided with the Delta saw include a clamp which can be used for holding work in place horizontally on the Delta saw's table while being cut. A clamp is not provided for holding a workpiece in a vertical (upright) position against the fence. (Doc. 15 Ex. C; Brickner aff.)

On April 18, 2003, Gumnitsky was using his Delta saw to cut floor molding for the remodeling of the Parma home he owned. While he had cut moldings many times in both Ukraine and the United States, this was his first time cutting oak molding. Plaintiff was operating the saw in the driveway of the home. The saw was set up on a plywood table upon two sawhorses. Gumnitsky was wearing leather gloves while operating the saw. When the accident happened, Gumnitsky was attempting to cut a one inch section off of the oak baseboard molding approximately 12-18 inches in length by making an inside cut at a 45 degree angle. (Gumnitsky depo. 32, 39-45, 50-56, 73-74).

In making the cut which caused his injury, Gumnitsky positioned the piece of oak molding in an upright (vertical as opposed to horizontal) position against the right side fence. Gumnitsky held the piece of oak trim against the fence with his right hand, and brought the saw blade down with his left hand. In making the cut, Gumnitsky's right hand was placed within the TABLE HAZARD AREA. He did not use a clamp. The blade made contact with Gumnitsky's gloved right hand, amputating multiple fingers. Gumnitsky does not remember exactly what happened when the injury occurred. When asked whether he brought the saw right down on his hand, Gumnitsky responded, "I don't think so I bring the saw on my hand. I think it's the blade pull the wood in and my hand." (Gumnitsky depo. 54, 56-59, 71-72, 75-76; video of deposition; photograph from deposition Doc. 15 at 6; Karl Daukss depo. 31-32 and video of deposition).

Plaintiffs thereafter filed this Complaint which sets forth five claims. Count One alleges products liability based on defendant's manufacture of the Delta saw pursuant to the Ohio statute. Count Two alleges defendant's negligence. Counts Three and Four are asserted against the unidentified John Does. Count Five alleges loss of consortium on behalf of Anna Gumnitsky.

This matter is now before the Court upon defendant Delta International Machinery Corp.'s Motion for Summary Judgment.

Standard of Review

Summary Judgment is appropriate when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed.R.Civ.P. 56(c)); see also LaPointe v. UAW, Local 600, 8 F.3d 376, 378 (6th Cir.1993). The burden of showing the absence of any such genuine issues of material facts rests with the moving party:

[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits," if any, which it believes demonstrates the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (citing Fed.R.Civ.P. 56(c)). A fact is "material only if its resolution will affect the outcome of the lawsuit." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Once the moving party has satisfied its burden of proof, the burden then shifts to the nonmoving party. Federal Rule of Civil Procedure 56(e) provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of [his] pleadings, but [his response], by affidavits or as otherwise provided in this rule, must set forth specific...