Wilson v. Engel Canada Inc. et al

Filing 68

MEMORANDUM OPINION & ORDER: Dft' Engel Canada, Inc.'s 60 Motion for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 1/22/2014.(STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
BILLIE JEAN WILSON,

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
SENTRY INSURANCE,
Intervening Plaintiff,
v.
ENGEL CANADA, INC., and
UNKNOWN DEFENDANTS,
Defendants.

Civil Case No.
5:11-cv-344-JMH-REW
MEMORANDUM OPINION
AND ORDER

***
This

matter

is

before

the

Court

upon

Defendant

Canada Inc.’s Motion for Summary Judgment. [D.E. 60].

Engel

Plaintiff

Billie Jean Wilson filed a Response [D.E. 65]1, and Defendant
filed a Reply.

[D.E. 62].

Sentry Insurance, an Intervening

Plaintiff, did not respond to the motion.
having

expired,

and

the

Court

being

The time for briefing
otherwise

sufficiently

advised, this matter is now ripe for review.
I. Procedural Background
Plaintiff
September 2007.
injury,
1

her

began

employment

with

[D.E. 61-2 at 6].

employment

required

The Court granted Plaintiff’s
Corrected Response. [D.E. 64].

Molding

Solutions

in

At the time of Plaintiff’s

her

to

Motion

operate
for

a

Leave

horizontal
to

File

a

injection molding machine.

[D.E. 60-1 at 3; 65 at 2].

machine,

34

a

Repro

2000

P

W,

[D.E.

61-3

at

manufactured by Defendant Engel Canada, Inc. in 1989.
1 at 3; 65 at 2].

This

15],

was

[D.E. 60-

The machine is designed so that it can reach

the temperature of 400 degrees Fahrenheit and generate up to 100
tons

of

pressure.

[D.E.

61-6

at

35-36].

The

machine,

as

manufactured by Engel, does not include a mold that shapes a
final product.
the

molds

[D.E. 61-3 at 16] (“Q: Does Engel also produce

that

you’re

talking

about?

A:

No,

it

doesn’t.”).

Thus, it is the responsibility of the user to install a mold in
the machine.

[D.E. 61-4 at 10] (“I feel that Molding Solutions

had some responsibility to -- for a number of things. Installing
the mold is one of them.”).
On September 28, 2010, Plaintiff’s supervisor David Beckett
was operating the control panel of the machine, attempting to
make adjustments to the operating process of the machine.
65 at 6].

[D.E.

Beckett was making these adjustments while Plaintiff

continued with production.

[D.E. 61-2 at 56] (“And then David

came in and we worked together.

He tells me what he wants me to

do. . . . And then he’s doing all this work over here, which I
don’t know.”).

After approximately an hour, [D.E. 61-2 at 57],

and while Plaintiff’s hand was in the machine, Beckett pressed a
combination of buttons that caused the ejector plate on the
machine to retract.

[D.E. 65 at 6].
2

When the ejector plate

retracted, it pinched Plaintiff’s left hand and trapped her hand
inside the machine.
to

remove

her

[D.E. 61-4 at 29].

hand

from

the

Plaintiff was only able

machine

after

fellow

Solutions employees opened the machine with crowbars.
2 at 57].

Molding

[D.E. 61-

As a result, Plaintiff’s hand was burned to the

tendon [D.E. 61-2 at 64], and she continues to have trouble
gripping with her left hand.

[D.E. 61-2 at 64-66].

It is

undisputed that when Plaintiff’s injury occurred the machine was
being operated in manual mode and the SPI safety override switch
was in the “on” position. [D.E. 65 at 6].
Due

to

her

injuries,

Plaintiff

filed

suit

in

Fayette

Circuit Court alleging claims based upon the products liability
theories of manufacturing defect, defective design, failure to
warn, and breach of express and implied warranties.
at 2-4].

[D.E. 1-1

Defendant timely removed the action to this Court.

[D.E. 1].
Prior

to

instituting

this

civil

action,

Plaintiff

was

awarded workers compensation benefits from Molding Solutions’
insurance carrier, Sentry Insurance.
to

KRS

342.700,

Intervening

Sentry

Plaintiff

from Defendants.

Insurance

seeking

[D.E. 10 at 1].
filed

a

reimbursement

[D.E. 10].

3

Pursuant

Complaint
for

its

as

an

expenses

II. Standard of Review
A motion for summary judgment may only be granted “if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

“On summary judgment the inferences to

be drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion.”
States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

United

“The plain

language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a
party who fails to make a sufficient showing to establish the
existence of an element essential to that party’s case, and on
which

that

party

will

bear

the

burden

of

proof

at

trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III. Analysis
Defendant’s Motion for Summary Judgment as to the claims
for manufacturing defect and defective design must be granted.
Even

assuming

design

of

the

Defendant
machine,

was
the

negligent

in

the

manufacture

conduct

of

Molding

or

Solutions,

Plaintiff’s employer, acts as a superseding cause of Plaintiff’s
injuries.2

2

Defendant is entitled to a presumption that the machine was not
defective, as the injury occurred more than 8 years after the
date of manufacture. See KRS 411.310(1). Upon finding a
superseding cause, the Court does not rely on the presumption
4

The actions of Plaintiff’s employer, Molding Solutions, act
as

a

superseding

Defendant.

cause,

cutting

off

potential

liability

for

Even after the adoption of comparative negligence,

Kentucky courts have continued to apply the superseding cause
analysis to negligence actions.

See, e.g., Pile v. City of

Brandenburg, 215 S.W.3d 36, 42 (Ky. 2006) (finding that the
doctrine

of

superseding

cause

had

been

“substantially

diminished” by comparative negligence, but ultimately holding
the tortious conduct of a third person did not qualify as a
superseding cause); see also James v. Meow Media, Inc., 90 F.
Supp. 2d 798, 808 (W.D. Ky. 2000) (citing Exxon Co., U.S.A. v.
Sofec, Inc., 517 U.S. 830, 837-38 (1996)) (“The United States
Supreme Court has held that the superseding cause doctrine is
not inconsistent with the comparative fault doctrine.”).

“[A]

superseding cause is an act of a third person or other force
which by its intervention prevents the actor from being liable
for

harm

substantial

to

another

factor

in

which

his

bringing

antecedent
about.”

negligence

Briscoe

v.

is

a

Amazing

Prods., Inc., 23 S.W.3d 228, 229 (Ky. Ct. App. 2000) (citations
omitted) (internal quotation marks omitted).
A superseding cause will possess the following
attributes: 1) an act or event that intervenes between
the original act and the injury; 2) the intervening
created by Kentucky statute, because Defendant could not be
found liable even if Plaintiff presented evidence to rebut the
presumption that the machine was not defective.
5

act
or
event
must
be
of
independent
origin,
unassociated with the original act; 3) the intervening
act or event must, itself, be capable of bringing
about the injury; 4) the intervening act or event must
not have been reasonably foreseeable by the original
actor; 5) the intervening act or event involves the
unforeseen negligence of a third party or the
intervention of a natural force; 6) the original act
must, in itself, be a substantial factor in causing
the injury, not a remote cause. The original act must
not merely create a negligent condition or occasion;
the distinction between a legal cause and a mere
condition being foreseeability of injury.
NKC Hosps., Inc. v. Anthony, 849 S.W.2d 564, 568 (Ky. Ct. App.
1993).

“The

question

of

whether

an

undisputed

act

or

circumstance was or was not a superseding cause is a legal issue
for the court to resolve, and not a factual question for the
jury.”

House v. Kellerman, 519 S.W.2d 380, 382 (Ky. 1974).

The

factual circumstances giving rise to Plaintiff’s injuries are
undisputed; thus, whether there is a superseding cause is a
legal issue for the Court.
The

most

important

Anthony is foreseeability.

of

the

characteristics

set

out

in

See Scruggs v. Sperian Fall Arrest

Sys., Inc., No. 5:10-cv-26, 2011 WL 4744908, at *9 (W.D. Ky.
Oct. 7, 2011) (“Whether the cause of action sounds in products
liability . . . or in negligence . . . , all of the cases turn
on

the

issue

of

foreseeability.”).

The

actions

of

Molding

Solutions were so extraordinary that its intervening acts and
negligence were unforeseeable by Defendant.

6

First, Molding Solutions’ operating procedure required the
operator to operate the machine with the SPI safety override
switch in the “on” position.
determined

during

the

[D.E. 61-5 at 35] (“So it was also

testing

that

the

employer’s

process

instruction sheet could not be performed with the SPI override
switch in the off position.”).
“allows

the

clamp

movement

The SPI safety override switch

with

an

open

gate

in

the

open

direction and the ejectors to come forward to allow the operator
to physically get in there and catch a part or to remove a part
manually and not interrupt the automatic cycle.”

[D.E. 61-3 at

47].

in

If

the

position,

the

operating

gate

SPI

safety

production
being

override
process

closed,

trigger an emergency stop.

switch

cannot

because

is

operate

opening

[D.E. 61-6 at 33].

the

“off”

without

the

gate

the

would

Hence, operating

the machine with the SPI safety override switch in the “on”
position negates safety features included in the manufacture and
design of the machine.
Additionally, Plaintiff had her hands inside the machine
while

her

supervisor

was

process of the machine.

attempting

to

alter

the

operation

[D.E. 61-2 at 56] (“And then he’s doing

all this work over here, which I don’t know. I know he was
trying

to

figure

out

–

well,

he’s

always

production, you know, faster production.”).

after

better

Plaintiff testified

that this occurred regularly. [D.E. 61-2 at 58] (Q: So did he
7

frequently manipulate the machine while your hands were in there
with moving parts? A: Yes.”).
Solutions

employee,

Derek

There is testimony from a Molding

Farley,

that

this

violated

safety

protocol.
Q: Would you agree with me that it is unsafe to
manipulate or push the buttons on the machine while
someone has their hands inside the mold?
A: Absolutely.
Q: Would you agree with me that that is warned against
on the machine and in the manual several times?
A: Yes.
[D.E. 62-1 at 1].

Then, Farley continued:

Q: Okay. Have you ever made changes or attempted to
make changes to the programming of the machine while
another employee had their hands inside the pinch
points in the machine?
A: Absolutely not.
Q: Why not?
A: Because it’s unsafe.
Q: And that’s universally recognized in your industry,
right?
A: In my training, it is. I can’t speak for others. .
. .
[D.E. 62-1 at 2]; see also [D.E. 61-6 at 67] (“The machine is
built for one operator, and safety regulations in place will
restrict you to have an operator and maintenance personnel doing
maintenance on the machine at the same time.”).

8

Additionally,

Molding

Solutions

designed

the

mold

and

altered the machine in a way that is not typical.
A: Correct. And the ejector rods go through holes in
the platen to push something inside the mold. In this
case they’ve gone outside of that area. So they’ve
extended the ejector plate to something outside of
this platen. This is not normal.
. . .
Q: Okay. So I think you said it’s not normal. What
does that mean?
A: Well, normal – to me, this is not the way the
machine was designed. The machine was designed to have
the ejector rods go through holes in the platen.
Q: Okay. Have you seen other customers with
configuration similar to this configuration before?

a

A: No, I’ve not.
[D.E. 61-3 at 19].
Molding

Solutions’

Molding

The parties do not “dispute the nature of
[sic]

Machine,”

[D.E.

installation
65

at

installation of the ejector rods.

5],

of

its
which

mold

into

includes

[D.E. 65 at 5].

the
the

The parties

also do not dispute that this unusual design created the pinch
point that injured Plaintiff.

[D.E. 65 at 5] (“The parties do

not dispute that the pinch point that trapped, crushed, and
burned

Ms.

Wilson’s

hand

was

created

by

Molding

Solutions’

configuration of the mold.”); see also [D.E. 61-3 at 50] (“Not –
as far as the machine goes, yes, there are [no pinch points].
But with these rods sticking out, there are now pinch points.”).

9

These actions on the part of Molding Solutions present a
situation

similar

products

liability

manufacturer.

to

that

of

Sturm,

action

Ruger

brought

Co.

against

586 S.W.2d 19, 19 (Ky. 1979).

v.
a

Bloyd,

a

revolver

The Bloyd court

found that “[t]he manufacturer[ was] not a guarantor of the
safety

of

the

revolver.

The

evidence

disclose[d]

that

the

subject revolver was not unsafe when used in the normal and
usual manner.

The use to which [the gun was] put [was] contrary

to the instructions.”

Id. at 21.

Furthermore, “[t]he dangerous

propensity of the revolver was a condition rather than a cause.”
Id. at 22.

Thus, “[r]egardless of the design or manufacturing

of the revolver, the use to which it was put was the agency that
brought about the injury complained of.” Id.
The

Bloyd

court

found

the

actions

of

the

third

party

unforeseeable because “[t]he manufacturer had no control over
the gun.

It was under the sole and exclusive control of Price,

and his conduct in the handling of the revolver, as illustrated
by

the

proof,

injury.”

was

the

substantial

factor

which

caused

the

Bloyd, 586 S.W.2d at 22.

Here, as in Bloyd, the machine was controlled by Molding
Solutions.

Molding

Solutions

conduct,

specifically,

the

combination of the addition of ejector rods outside of the holes
in the platen, the required operating procedure, and the actions
of

Plaintiff’s

supervisor,

was
10

the

substantial

factor

that

caused

Plaintiff’s

injury.

This

blatant

disregard

for

the

safety of its employees and of the safety protocols for using
the machine was unforeseeable.
The

actions

unforeseeable,

of

but

also

Molding
meet

Solutions

the

other

were

not

characteristics

only
of

a

superseding cause enunciated in Anthony.

The actions of Molding

Solutions

of

occurred

Plaintiff’s injury.
the

actions

of

between

production

the

machine

and

Additionally, there can be no doubt that

Molding

Solutions

were

unassociated

with

the

design or manufacture of the machine by Engel.

The independent

act

undisputed

could

Molding

have

caused

Solutions’

the

injury,

alteration

as

created

it
the

is

pinch

point

that
and

Plaintiff’s hand was trapped when a Molding Solutions employee
caused the ejector plate to retract with Plaintiff’s hand in the
machine.

Further, the intervening act involves negligence of a

third party, Molding Solutions.

Thus, the actions of Molding

Solutions are a superseding cause and Defendant cannot be liable
on the claims of manufacturing defect or design defect.
Plaintiff also brings a claim based upon a failure “to
adequately

warn

users

dangerous design.”

that

the

Machine

[D.E. 1-1 at 3].

had

an

inherently

The relevant warning on

the machine stated the following:
CAUTION
Pinch points created by movements of cores and
ejectors and by the opening of the mold may be exposed
11

if the operator’s gate is opened while the “SPI SAFETY
OVERRIDE” keyswitch is turned in the “ON” position. DO
NOT REACH INTO THESE PINCH POINTS. ASK YOUR SUPERVISOR
FOR INSTRUCTIONS.
[D.E. 65 at 3; 60-1 at 4].

Plaintiff contends that the warning

was inadequate for two reasons.

First, that the warning “was

too generalized to warn of the risk that injured” Plaintiff.
[D.E. 65 at 7].

Second, that “by warning of the general risks

associated

operating

switch

with

on,

operating
risks.”

in

and

the

neglecting

manual

mode,

[D.E. 65 at 7].

Plaintiff

conceded

she

was

Molding

the
it

Machine

additional

misleads

the

with

risks
user

the

SPI

created
of

the

by

true

Defendant counters by arguing that
given

notice

of

the

danger

and

Plaintiff was injured by doing what was warned against. [D.E. 62
at 10-12].
“Under

Kentucky

law,

the

duty

to

warn

extends

to

the

dangers likely to result from foreseeable misuse of a product.”
Morales v. Am. Honda Motor Co., 71 F.3d 531, 537 (6th Cir. 1995)
(citations omitted).

“[A] warning ‘must be fair and adequate,

to the end that the user, by the exercise of reasonable care on
his own part, shall have a fair and adequate notice of the
possible consequences of use or even misuse.”

King v. Ford

Motor Co., 209 F.3d 886, 895 (6th Cir. 2000) (quoting Post v.
Am. Cleaning Equip. Corp., 437 S.W.2d 516, 520 (Ky. 1968)).
[E]ven if there is some word of caution, some mention
of misuse in the directions, the question still
12

remains whether this constituted an adequate warning.
The issue is whether the totality of directions or
cautionary language constituted an adequate warning in
the light of the foreseeable use and user of the
product.
Post,

437

S.W.2d

at

521

(quoting

Frumer-Friedman,

Products

Liability, § 8.05).
Plaintiff, relying on her expert’s opinion, contends that
the

“warning

label

ignores

that

additional

pinch

points

are

exposed in the manual mode with the SPI switch on which are not
exposed in semi-automatic mode with the SPI switch on.” [D.E. 65
at 8].

Therefore, according to Plaintiff, “[t]he effect of such

a general warning is to lull the user into a false sense of
security, thus dulling their awareness of the additional risks
exposed when the Molding Machine is operated in manual mode.”
[D.E. 65 at 9].
Plaintiff’s argument ignores that the caution sticker warns
of the dangers of pinch points irrespective of the mode in which
the

machine

is

being

operated.

Thus,

the

warning

applies

equally when the SPI safety override is in the “on” position and
operated

in

semi-automatic

as

it

does

when

the

SPI

safety

override is in the “on” position and operated in manual.

The

warning is not inadequate simply because Plaintiff, by following
Molding Solutions process sheet, routinely failed to heed the
warning.

13

Plaintiff admitted to reading the warning sticker included
on the machine, [D.E. 61-2 at 101-02], and further admitted that
she understood the warning to mean that you should not put your
hand in the machine while it was in use.
Plaintiff,

by

placing

her

hand

in

a

[D.E. 61-2 at 55].

pinch

point

with

the

operator gate down and the SPI safety override switch “on”, was
injured

while

doing

exactly

what

the

caution

sticker,

which

Plaintiff admittedly read and understood, informed her not to
do.

Therefore, the warning adequately warned of the dangers of

foreseeable

misuse

of

the

machine

and

summary

judgment

on

Plaintiff’s claim for failure to warn is appropriate.
Plaintiff

also

brings

a

claim

that

Defendant

breached

express and implied warranties “because the Machine was unsafe,
not of merchantable quality, and not fit for its intended and
foreseeable uses.”

[D.E. 1-1 at 4].

Plaintiff’s claims for

breach of express and implied warranty must fail because there
is

no

privity

between

Molding Solutions.

Defendant

and

Plaintiff’s

employer,

See Snawder v. Cohen, 749 F. Supp. 1473,

1481 (W.D. Ky. 1990) (citing Williams v. Fulmer, 695 S.W.2d 411
(Ky. 1985)) (“Kentucky still requires privity where liability is
predicated, not on ordinary negligence or strict liability, but
on warranty.”); see also Compex Int’l Co. v. Taylor, 209 S.W.3d
462, 464 (Ky. 2006) (citing Williams v. Fulmer, 695 S.W.2d at
413-14)

(“Justice

Leibson

.

.

.

14

left

no

doubt

that

privity

remains a prerequisite for products liability claims based on
warranty. . . .”).
It is undisputed that Defendant sold this machine to Parker
Hannifin

Corporation,

who

in

turn

sold

Plaintiff’s employer, Molding Solutions.
3].

the

machine

to

[D.E. 60-1 at 3; 65 at

Thus, there is no contractual relationship between Molding

Solutions
implied

and

Defendant,

warranties

Plaintiff.

to

and

Defendant

made

Solutions

which

Molding

no

express

may

inure

or
to

Thus, summary judgment must be granted in favor of

Defendant

on

Plaintiff’s

claims

for

breach

of

express

and

implied warranty.
The Court having found that summary judgment is appropriate
on all of Plaintiff’s claims, summary judgment for Defendant
against Sentry Insurance must also be granted.

Sentry may only

recover under KRS 342.700 if Defendant has legal liability for
Plaintiff’s

damages.

See

KRS

342.700(1)

(“If

compensation

is

awarded under this chapter, the employer, [or] his insurance
carrier . . . having paid the compensation or having become
liable therefor, may recover in his or its own name or that of
the

injured

liability

for

employee
damages

from

the

exists

.

other
.

.

person
.”).

in

whom

Therefore,

legal
because

Defendant has no legal liability, Sentry may not recover.
Defendant

argues

that

KRS

Plaintiff’s claims in this case.
15

411.320(1)

and

[D.E. 60-1 at 13].

(2)

bar

There are

conflicting

opinions,

in

both

Kentucky

courts

and

federal

courts, as to whether KRS 411.320 remains good law after the
statutory

adoption

of

comparative

negligence.

Compare

Owens

Corning Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 474 (Ky.
2001) (“[KRS 411.182] repealed KRS 411.320(3). . . .”), DeStock
No. 14, Inc. v. Logsdon, 993 S.W.2d 952, 958 (Ky. 1999) (“We
held in Caterpillar that this language impliedly repealed the
contributory
Caterpillar,

negligence
Inc.

v.

provision

Brock,

915

in

KRS

S.W.2d

751,

411.320(3).”),
753

(Ky.

1996)

(“Demonstratively, by implication, KRS 411.182(1) has repealed
KRS 411.320(1).”), Leslie v. Cincinnati Sub-Zero Prods., Inc.,
961 S.W.2d 799, 804 (Ky. Ct. App. 1998) (“KRS 411.320(1) . . .
was deemed to be repealed by the enactment of the comparative
fault statute in Caterpillar, Inc. v. Brock . . . .”), Shelter
v. ALDI, Inc., No. 3:10-cv-778-JHM, 2012 WL 3264937, at *5 (W.D.
Ky.

Aug.

9,

2012)

(“This

Court

finds

the

reasoning

in

Caterpillar, and the cases that followed, to be persuasive as to
the

intent

of

the

Kentucky

Legislature

in

enacting

the

comparative fault statute.”), and Low v. Power Tool Specialist,
Inc., 803 F. Supp. 2d 655 (E.D. Ky. 2011) (finding that the
Kentucky Supreme Court would find both KRS 411.320(1) and (2)
repealed based upon the reasoning in Caterpillar), with Monsanto
Co. v. Reed, 950 S.W.2d 811 (Ky. 1997) (applying KRS 411.320(1)
and (2) to bar recovery by plaintiff), Dailey v. Hoffman/New
16

Yorker, Inc., No. 09-cv-343-KSF, 2011 WL 5598908, (E.D. Ky. Nov.
17, 2011) (applying KRS 411.320 to find that the plaintiff’s
claims failed as a matter of law), and Wells v. Portman Equip.
Co., No. 5:05-cv-183-JMH, 2006 WL 3328160, at *2 (E.D. Ky. Nov.
15, 2006) (“Contrary to Plaintiff’s assertions, KRS § 411.320(1)
was

neither

negated

nor

overruled

by

KRS

§

411.182(1).”).

Irrespective of the application of KRS 411.320, and assuming
Defendant

was

negligent,

the

Court

finds

that

Defendant

has

shown the actions of Molding Solutions are a superseding cause.
Therefore, the Court declines to further muddy the waters by
expressing an opinion on the continued validity of KRS 411.320.
IV. Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED that
Defendant Engel Canada, Inc.’s Motion for Summary Judgment [D.E.
60] be, and the same hereby is, GRANTED.
This the 22nd day of January, 2014.

17