Regan v. Sierra International Machinery, LLC

Filing 23

OPINION & ORDER: Regan's informal request for leave to amend his complaint is Granted, Sierra's Motion for Summary Judgment 15 is Granted as to Regan's products liability claim and Denied as Moot with leave to refile as to Regan's negligence claim, summary judgment is entered in Sierra's favor as to Regan's products liability claim only, and Regan is directed to amend his pleading within fourteen days of the date hereof to re-allege his negligence claim (only) stating particularized allegations of Sierra's complained-of negligence. Signed on 7/6/17 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JASON REGAN,

3:15-CV-2302-PK
OPINION AND
ORDER
Plaintiff,

v.

SIERRA INTERNATIONAL MACHINERY,
LLC,

Defendant.

PAP AK, Magistrate Judge:
Plaintiff Jason Regan (a citizen of Oregon) filed this action against defendant Siena
International Machine1y, LLC ("Siena") (a citizen of California), in Multnomah County Circuit
Court on September 30, 2015. Siena removed Regan's action to this court effective December

Page 1 - OPINION AND ORDER

10, 2015, on the ground of diversity jurisdiction.'
By and through his complaint, Regan alleges that he was at all material times employed
by Bob's Metals, Inc. ("Bob's"), in Portland, OR, as a maintenance employee, and that in that
capacity he was injured while working on a large, industrial machine distributed and sold to
Bob's by Sierra. It is Regan's position that the design of the machine was unreasonably
dangerous, and that it had been sold to Bob's without adequate warnings of the risks it presented.
Arising out of the foregoing, Regan alleges Sierra's liability (i) under Oregon's products liability
law on a strict products liability theory, and (ii) under Oregon common law for negligence.
Regan seeks $750,000 in non-economic damages and approximately $52,000 in economic
damages, plus reimbursement of his costs. This court has diversity jurisdiction over Regan's
claims pursuant to 28 U.S.C. § 1332, based on the complete diversity of the parties and the
amount in controversy.
Now before the court are Sie1Ta's motion (#15) for summmy judgment and Regan's
informal request for leave to amend his complaint to state pmiicularized allegations of Sierra's
negligence. I have considered the motion and the info1mal request, oral argument on behalf of
the parties, and all of the pleadings and papers on file. For the reasons set forth below, Regan's
informal request for leave to amend is granted, Sierra's motion(# 15) for summmy judgment is
granted as to Regan's products liability claim and denied as moot with leave to refile as to
Regan's negligence claim, summary judgment is entered in Siena's favor as to Regan's products
liability claim only, and Regan is directed to amend his pleading within fou1ieen days of the date

1

Sierra has taken the position that it did not learn of Regan's state of citizenship until
November 25, 2015, and Regan has not challenged the propriety of removal on timeliness
grounds.
Page 2 - OPINION AND ORDER

hereof to re-allege his negligence claim (only) stating particularized allegations of Sierra's
complained-of negligence.

LEGAL STANDARD
Summary judgment is appropriate "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). A party taking the position that a material fact either "cannot be or is genuinely disputed"
must support that position either by citation to specific evidence of record "including depositions,
documents, electronically stored infonnation, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, inte!Togatory answers, or other
materials," by showing that the evidence ofrecord does not establish either the presence or
absence of such a dispute, or by showing that an opposing pmty is unable to produce sufficient
admissible evidence to establish the presence or absence of such a dispute. Fed. R. Civ. P. 56(c ).
The substantive law governing a claim or defense determines whether a fact is material. See
}vforelandv. Las Vegas lvletro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998).
Summary judgment is not proper if material factual issues exist for trial. See, e.g.,
Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116
S.Ct. 1261 (1996). In evaluating a motion for sunnnary judgment, the district courts of the
United States must draw all reasonable inferences in favor of the nomnoving party, and may
neither make credibility dete1minations nor perform any weighing of the evidence. See, e.g.,
Lytle v. Household }vlfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 150 (2000).

Page 3 - OPINION ;.\ND ORDER

FACTUAL BACKGROUND
I.

The Parties
Plaintiff Regan is a citizen of Oregon who at all material times was employed as a

maintenance worker at Bob's in Portland, Oregon.
Defendant Sierra is a California limited liability corporation headquartered in California,
the members of which are California citizens. At all material times, Sierra was engaged in the
business, inter alia, of distributing, selling, and servicing industrial machinery.

II.

The Parties' Dispute2
Prior to the events Regan complains of, Bob's purchased a T700 SBL Shear/Baler/Logger

machine (the "Shear Machine" or the "baler") from Sierra. See Complaint, if 1(c). The parties
appear to agree that the Shear Machine is intended to shear scrap metal into small pieces, and
that it uses a set of cutting blades for that purpose. It appears that the Shear Machine weighs 700
tons, and that its cutting blades are accessible for maintenance purposes, including for
replacement of the blades (which must take place approximately every two months), through a
heavy top-hinged steel door that plaintiff has calculated as weighing 393 pounds. See id,

if 2.

It

is undisputed that the primary purpose of the door is to prevent chunks of sheared metal from
being projected out from the Shear Machine, which otherwise might "literally fire out like
bullets .... " Declaration of John M. Socolow ("Socolow Deel."), Exh. E (Deposition of Stephen
Simmons ("Simmons Depo."), 40:5-22. The door that affords access to the cutting blades is
sufficiently heavy to require that it be lifted by a forklift, following which it must be held in the

2

Except where otherwise indicated, the following recitation constitutes my construal of
the evidentiary record in light of the legal standard governing motions for summaiy judgment
under Federal Civil Procedure Rule 56.
Page 4 - OPINION AND ORDER

vertical, open position by a chain secured to the machine itself. See Socolow Deel., Exh. H
(Declaration of Guillermo Sandoval ("Sandoval Depo.")), 23:3-8. The Shear Machine contains
no mechanism for raising the door, which cannot move upwards on its own without being lifted
by an external force. See Simmons Depo., 100:16-18; Socolow Deel., Exh. I (Declaration of
Michael Weinstein ("Weinstein Depo.")), 72:19-73:11.
The Shear Machine was designed and manufactured in Italy by an entity not named as a
party herein prior to its distribution by Sierra. See id., 17:17 - 18:25. In 2009, Sierra sold the
Shear Machine to Bob's, installed it at Bob's' scrap-metal recycling facility, and trained Bob's
personnel in its use. See Socolow Deel., Exh. F (Deposition of Enrique Robles ("Robles
Depo.")), 46:3-25. Sierra personnel specifically trained Bob's personnel in how to change out the
Shear machine cutting blades. See id., 52:9-54:12; see also Socolow Deel., Exh. G at 4.
During training and installation, Sierra employees advised Bob's personnel that the
preferred method for securing the door in the vertical, open position after it had been lifted to that
position with a forklift is for a person to access the chain through the use of a "safety harness, a
basket, or [a] man lift." Robles Depo., 54:2-3. When Sierra employees change out cutting
blades on shear machines at their own facility, they use a custom-built platform for the person
accessing the chain while the door is being lifted by a forklift operated by a second person. See
Sandoval Depo., 22: 18-23. Sierra personnel counseled Bob's personnel that it was up to them to
develop their own safe procedures for securing the door in its vertical, open position while it was
being held open by a forklift. See id., 52:9- 54:12; Simmons Depo., 98:3 - 100:11. Bob's
personnel understood from Sierra's training and from the owner's manual that it would be up to
Bob's' maintenance mechanic "to come up with his best practice" for opening and closing the

Page 5 - OPINION AND ORDER

Shear machine door. Weinstein Depo., 67:5-11. It is the testimony of Bob's' Federal Civil
Procedure Rule 30(b)(6) corporate representative that, "[flor purposes of opening the ... door
and keeping it open to perform maintenance on the shear blade," the problem of doing so safely
was of a nature that "an experienced mechanic should know what to do." Id., 70: 15-21. Bob's'
corporate representative testified that "the door, as designed," was not seen to be a hazard "if it's
properly addressed," and that "an experienced mechanic should be able to remediate any danger
from it." Id., 72:1-6.
At or around that time it sold the Shear machine to Bob's, Sierra provided Bob's with the
machine's owner's manual or operations manual. See Simmons Depo., 58:6-17, 22: 12-22. The
second page of the Shear Machine owner's manual consists of a series of warnings in large and
bolded font stating in part as follows:

•

THE PERSONNEL RESPONSIBLE FOR THE OPERATION
AND MAINTENANCE OF THIS BALER MUST BE FAMILIAR
WITH THIS MANUAL PRIOR TO OPERATING OR
MAINTAINING THIS EQUIPMENT.

•

SIERRA ... ACCEPTS NO RESPONSIBILITY FOR
CONDITIONS CAUSED BY INAPPROPRIATE ...
MAINTENANCE OF THE BALER.

•

SIERRA RECOMMENDS THAT THIS iVIANUAL BE KEPT IN
OR NEAR THE MACHINE AT ALL TIMES.

•

IT IS THE RESPONSIBILITY OF THE OWNER TO ASSURE
THAT THE MACHINE IS ... MAINTAINED BY QUALIFIED
PERSONNEL.

NOTICE: DEATH OR SEVERE INJURY CAN OCCUR IF PROPER
SAFETY PRECAUTIONS ARE NOT FOLLOWED
•

The purpose of this manual is to highlight the safety features of
the equipment and to provide guidance in the operation and
maintenance of the machine. Sierra ... asks that all users read

Page 6 - OPINION AND ORDER

and familiarize themselves with the contents of this manual and
that the owner shall provide comprehensive safety and operational
training to all personnel associated with operation and
maintenance of the equipment.
•

Upon delivery and acceptance by the customer, it is the
responsibility of the owner to develop, implement, monitor and
enforce such measure!> as he/she determines necessary to assure safe
operation and maintenance of the equipment.

Socolow Deel., Exh. 0 (Report of Thomas R. Fries, P.E. ("Fries Report")) at 11 (bolded
emphasis original; italicized emphasis supplied).
On December 18, 2013, Regan, who had at that time been employed as Bob's' lead
mechanic for over a year, worked with his assistant, Trevor Ford, to replace the Shear Machine
cutting blades. See Affidavit of R. Brendan Dummigan ("Dummigan Aff. "), Exh. B (Declaration
of Jason Regan ("Regan Deel.")), i!il 2-3. At that time, Regan had previously changed out the
blades three to five times, each time with Ford's assistance. See Socolow Deel., Exh. K
(Deposition of Jason Regan ("Regan Depo.")), 80:20 - 81 :2, 81 :7-10. Before Ford began lifting
the door with a forklift, Regan climbed more than seven feet up the side of the Shear Machine
and positioned himself above the door and within its path of motion to wait for it to be raised to a
sufficiently high position that he could secure it with its chain. See Regan Deel., i!il 5-6; see also
Regan Depo., 82: 19- 84: 16; 99:24 - 100:19. It was at that time Bob's express policy always to
use a safety cage and harness when going up above four feet. See Socolow Deel., Exh. L
(Deposition of Trevor Ford ("Ford Depo.")), 14:3-6. A man lift and a safety basket were
available for Regan's use at that time, and Bob's does not know why Regan did not use them on
that occasion. See Weinstein Depo., 76:2-25. Regan understood how to use both the man lift
and the safety basket at the time. See Regan Depo., 70: 10-19. Regan did not believe at the time

Page 7 - OPINION AND ORDER

that there was insufficient space to access the chain with a man lift while the door was being
lifted with a forklift. See id., 98:1-4.
Ford later testified that, according to the procedures that Bob's had followed seventy
times prior to December 18, 2013 (and that he himself had followed some thirty times prior to
that date), "you don't climb up [to the door of the Shear Machine] until the door is up," but that
on this occasion Regan neve1iheless "climbed up on top of it before it was even ready." Ford
Depo., 14:10-24. Ford specifically characterized Regan's election to climb the machine before
the door was open as having "jumped the gun" or as having gone up "too early," testifying that
the door "regularly swings open" when being lifted by the forklift. Id., 15:1-10. Ford testified
that on all previous occasions of changing the blades of which he was aware, including the
occasions on which Regan had previously secured the door with its chain, he had never seen
anyone climb the machine prior to the door being lifted all the way into place. See id., 32:6-17.
Ford testified that the reason the door swings is that the forklift stands on a metal plate while it is
lifting the door, and the plate is of a size such that the rear wheels of the forklift slip off the plate
during the lifting process causing the forklift to lever the door suddenly upwards. See id., 32:20
- 33:9, 36:3-25.
The precise circumstance described by Ford in fact occuned on this occasion, while
Regan was in the path of the door (and immediately after he instructed Ford to raise the door
higher notwithstanding that he was in its upward path), and the door popped upwards and struck
him in the cheek, causing him to suffer injury. See Weinstein Depo., 72:7-18, 76:2-8; Regan
Depo., 107:23-108:13; see also Socolow Deel., Exh. A (videorecording of the accident
occuning). Bob's would not have expected this accident to occur had the forklift not slipped off

Page 8 - OPINION AND ORDER

the plate it was standing on. See Weinstein Depo., 78 :4-15. Ford did not believe the accident
was caused by any design defect in the door. See Ford Depa., 37: 14-17.
After these proceedings were initiated, Regan retained two engineering experts, Thomas
R. Fries and John T. Meyers, III. In deposition, Fries testified to his opinion that the accident
would not have occurred had Regan not climbed up the Shear Machine before the door had been
lifted to the vertical position, and that it also would not have occurred if Ford had not continued
operating the forklift with Regan in the upward path of the door. See Socolow Deel., Exh M.
(Deposition of Thomas R. Fries ("Fries Depa.")), 135:20-136:10. Fries nevertheless offered the
opinion that the Shear Machine door was "umeasonably dangerous and defective with regard to
changing the cutting blades" because the door is heavy, its top hinge created a "stored energy"
hazard when the heavy door was lifted to its ve11ical position, and there were no specifically
prescribed methods or procedures for opening it. Dummigan Aff., Exh. C ("Fries opinion") at 23. Fries offered this opinion without having first inspected the Shear Machine. See id. at 3.
Fries opined that the hazard could have been eliminated or reduced ifthe door were side-hinged,
or ifthe door had been designed with "springs, winches, safety suppo11 poles, instructions,
decals, and/or a platform that keeps the door open." Id. Fries testified that he had "[c]e11ainly
not" tested any of these alternatives, Fries Depa., 90:24-25, that he had not performed any
analysis of the alternatives, including any hazard analysis to determine whether they would be
effective in reducing the risk associated with accessing the cutting blades, see id., 91 :14-23, 94:28, 94:23-25, 95:3-5, 95:17-24, 95:25 - 96: 10, 97:17-25, 101 :7-11, and that the full extent of the
hazard analysis he had perfonned was to formulate the conclusion that "raising the heavy door is
dangerous," id, 91 :20-21, see also id., 92:3-6. Fries fm1her opined that the door should have

Page 9 - OPINION AND ORDER

been designed to bear a warning label warning that after the door had been lifted, "it needed to be
held in place." Id., 112:12-14.
Meyers proffered an opinion regarding the hazardous nature of the Shear Machine door
that was expressly based on his "assumption" that Regan was struck by the door as it fell
downward, an assumption which is flatly inaccurate. Socolow Deel., Exh. N (Deposition of John
T. Meyers ("Meyers Depo.")), 87:18-19.
Neither party offers evidence in specific connection with Regan's negligence claim, and
(as will be discussed below) Regan's complaint contains no allegations characterizing any of
Sierra's conduct as negligent.

ANALYSIS
As noted above, Regan alleges Sierra's liability under Oregon's statutory products liability
law on a strict products liability theory, and under Oregon common law for negligence. I address
the parties' arguments regarding Sie11'a's entitlement to summmy judgment as to each of Regan's
claims in tum, below.

I.

Regan's Products Liability Claim
The potential liability under Oregon law of a seller or lessor of an allegedly umeasonably

dangerous product is governed by Or. Rev. Stat. § 30.920. Section 30.920 provides as follows:
(1)

One who sells or leases any product in a defective condition umeasonably
dangerous to the user or consumer or to the property of the user or .
consumer is subject to liability for physical harm or damage to property
caused by that condition, if:
(a)

The seller or lessor is engaged in the business of selling or leasing
such a product; and

(b)

The product is expected to and does reach the user or consumer
without substantial change in the condition in which it is sold or

Page 10 - OPINION AL'ID ORDER

leased.
(2)

The rule stated in subsection (1) of this section shall apply, even though:
(a)

The seller or lessor has exercised all possible care in the
preparation and sale or lease of the product; and

(b)

The user, consumer or injured party has not purchased or leased the
product from or entered into any contractual relations with the
seller or lessor.

(3)

It is the intent of the Legislative Assembly that the rule stated in
subsections (1) and (2) of this section shall be construed in accordance
with the Restatement (Second) of Torts sec. 402A, Comments atom
(1965). All references in these comments to sale, sell, selling or seller
shall be construed to include lease, leases, leasing and lessor.

(4)

Nothing in this section shall be construed to limit the rights and liabilities
of sellers and lessors under principles of common law negligence or under
ORS chapter 72.

Or. Rev. Stat. § 30.920. To determine whether a product is so umeasonably dangerous as to be
in a defective condition when sold or leased, the Oregon courts apply a "consumer expectations"
test, pursuant to which a product is deemed umeasonably dangerous if it is more dangerous than
it would be expected to be by the "ordinary consumer" of such products, "with the ordinary
knowledge common to the community as to its characteristics." Ewen v. lvlcLean Trucking Co.,
300 Or. 24, 27 (1985), quoting Restatement (Second) of Torts§ 402A, Comment i (1965). The
Oregon Supreme Court subsequently clarified that, under Section 30.920, the comis were to
apply only the consumer expectations test, and not any other test (as, for example, the so-called
"reasonable manufacturer" test). See }vfcCathern v. Toyota }vfotor Corp., 332 Or. 59, 75-76
(2001).
The }vfcCathern court accordingly clarified that, under the Section 30.920 standard, the
sole method available for a products liability plaintiff "to prove that a product was in a 'defective
Page 11 - OPINION AND ORDER

condition umeasonably dangerous to the user or consumer,"' id. at 77, quoting Or. Rev. Stat. §
30.920(1 ), is to "prove that: (!) 'at the time it leaves the seller's hands, the product is in a
condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to
him,"' id. (internal modifications omitted; emphasis supplied), quoting Restatement (Second), §
402A, Comment g (so defining "defective"), and "(2) 'the product is dangerous to an extent
beyond that which would be contemplated by the ordinmy consumer who purchases it, with the
ordinary knowledge common.to the community as to its characteristics,"' id. (internal
modifications omitted; emphasis supplied), quoting Restatement (Second), § 402A, Comment i
(so defining "unreasonably dangerous"). "Whether a product is dangerous to an extent beyond
that which would be contemplated by the ordinary consumer is a factual question to be
dete1mined by the jury." Id., citing Heaton v. Ford}vfotor Co., 248 Or. 467, 472-473 (1967).
Notwithstanding the foregoing, "[i]t is the trial court's role. .. to ensure that the evidence is
sufficient for the jury to make an informed decision about what ordinary consumers expect." Id.
at 77-78 (emphasis supplied), citing Heaton, 248 Or. at 472-473.
As noted in Heaton, in some cases, consumer expectations about how a product
should perfonn under specific conditions will be within the realm of jurors'
common experience. Heaton, 248 Ore. at 472. However, some design-defect
cases involve products or circumstances that are "not so common * * * that the
average person would know from personal experience what to expect." Heaton,
248 Ore. at 473. When a jury is "unequipped, either by general background
or by facts supplied in the record, to decide whether a product failed to
perform as safely as an ordinary consumer would have expected," this court
has recognized that additional evidence about the ordinary consumer's
expectations is necessary. Heaton, 248 Ore. at 473-74. That additional
evidence may consist of evidence that the magnitude of the product's risk
outweighs its utility, which often is demonstrated by proving that a safer
design alternative was both practicable and feasible. See Heaton, 248 Ore. at
471 (user has right to expect reasonably safe design).
Id. at 78 (internal modifications omitted; emphasis supplied).
Page 12 - OPINION AND ORDER

In addition to establishing that an ordinmy consumer of a given product would not
contemplate the degree of risk the product presented by and through risk-utility balancing"which may include proof that a practicable and feasible design alternative was available," see id.
- the }vfcCathern court noted that, alternatively, a products liability plaintiff could satisfy the
consumer expectations test by and through a so-called "representational" approach, which
requires the plaintiff to show that "the manufacturer specifically represented to the consuming
public that the product would be able to perforn1 certain functions, when, in fact, it could not,
resulting in the plaintiffs injmy," id. at 76, 79 (citations omitted). The comi specifically noted
that:
[E]vidence related to risk-utility balancing ... will not always be necessary to
prove that a product's design is defective and umeasonably dangerous, i.e., that the
product failed to meet ordinmy consumer expectations. However, because the
parties did not dispute that evidence related to risk-utility balancing was necessary
in this case, we leave for another day the question under what circumstances ORS
30.920 requires a plaintiff to support a product liability design-defect claim with
evidence related to risk-utility balancing ....

Id. at 78-79. Quite recently, in 2016, the Oregon Comi of Appeals found that a trial court did not
el1' by concluding "that a riding lawn mower is not such a common product that the average juror
would, from background and experience alone, have the capacity to assess what ordinmy
consumers expect of such a product, thereby making the risk-utility evidence necessary to
provide a foundation for the ju1y's assessment of plaintiffs claim." Purdy v. Deere & Co., 281
Or. App. 407, 433-434 (2016).
Where a product liability plaintiff elects or is required to satisfy the consumer
expectations test by and through a risk-utility analysis, it is the comi's task to "balance the utility
of the risk against its magnitude in deciding whether to submit a design defect case to the jmy."

Page 13 - OPINION AND ORDER

Wilson v. Piper Aircraft Corp., 282 Or. 61, 67 (1978), 3 citing Roach v. Kononen, 269 Or. 457,
464 (1974), Phillips v. Kimwood 1\1achine Co., 269 Or. 485, 501 (1974).
One of the factors to be weighed in making this dete1mination is the
manufacturer's ability to eliminate the unsafe character of the product without
impairing its usefulness or making it too expensive to maintain its utility. In other
words, the court is to determine, and to weigh in the balance, whether the
proposed alternative design has been shown to be practicable. The trial cou1i
should not pe1mit an allegation of design defect to go to the ju1y unless there is
sufficient evidence upon which to make this determination. If liability for alleged
design defects is to stop somewhere sho1i of the freakish and the fantastic,
plaintiffs' primafacie case of a defect must show more than the technical
possibility of a safer design.
In some cases, because of the relatively uncomplicated nature of the product or the
design feature in question, evidence of the dangerous nature of the design in
question or of a safer alternative design may be sufficient to pe1mit the court to
consider this factor adequately. * * *

***
In other instances, however, the question of practicability cannot be properly
weighed solely on the basis of inference and common knowledge.

Id. at 67-68, 69 (footnotes, internal quotation marks omitted; emphasis supplied). In the latter
scenario - that is, where the complexity or esoteric nature of the product or proposed design
feature is such that inference and/or common knowledge are insufficient to determine the
question of practicability- a products liability plaintiff must offer "evidence from which the jmy
could find the suggested alternatives are not only technically feasible but also practicable in

terms of cost and the over-all design and operation of the product. It is part of the required

3

The Purdy comi, supra, referred to Wilson as superseded in pmi by the enaction of the
cunent version of Section 30.920, which codified the Restatement Second standard of
unreasonable dangerousness. However, I see no suggestion in the governing jurisprudence that
the Wilson court's discussion of the risk-utility balancing test is not still an authoritative
statement of Oregon law applicable to that test whenever that test is elected or required.
Page 14 - OPINION AND ORDER

proof that a design feature is a 'defect' to present such evidence." Id. at 69 (emphasis supplied).
Here, there can be no serious argument that the functional characteristics of the Shear
Machine access door are so uncomplicated that a finder of fact could dete1mine the practicability
of alternative designs on the basis of inference and common knowledge (as may be illustrated by
Regan's expert Meyers' fundamental misapprehension regarding the circumstances of Regan's
inju1y). The Shear Machine is large and complex, and ve1y few members of the general public
will have ever seen such a machine in operation. In paiiicular, questions regarding how heavy
the door needs to be in order to ensure that metal projectiles do not escape the cutting blades
while the machine is in operation, and whether a sliding or side-hinged door could fulfill the
door's safety function require esoteric knowledge of the Shear Machine's operation. In .
fulfillment of the court's gatekeeper function and mandate to ensure that the ju1y has sufficient
evidence to make an info1med decision regarding the expectations of an ordinary consumer of a
shear machine, I therefore find that Regan's products liability claim cannot survive Siena's
motion for summaiy judgment unless Regan has met his burden either to offer evidence from
which a finder of fact could reasonably conclude that Siena affirmatively misrepresented the
features or the safety of the Shear machine access door (the representational approach) or to offer
sufficient evidence to educate the finder of fact regarding the reasonable expectations of the
ordinary purchaser of a shear machine by pe1mitting the finder of fact to determine whether
proposed alternative access door designs would ameliorate the risks presented, would be
technically feasible, and would be practicable both in te1ms of cost and in te1ms of the machine's
functionality (the risk-utility balancing approach).
Regan has offered no evidence toward satisfying his burden in connection with the

Page 15 - OPINION AND ORDER

representational approach to the consumer-expectations test. As to the risk-utility balancing
approach, Regan offers the expert opinions of Meyers and Fries. Meyers' opinion is without
probative value here, in that Meyers addressed a risk immaterial to the injmy Regan suffered.
Fries' opinion, although more clearly material than Meyers', is insufficient to meet Regan's
burden to establish that the access door was defective when sold to Bob's. Specifically, and as
Fries expressly conceded, Fries performed no testing to dete1mine the practicability of any of his
rather vaguely specified alternative designs for the access door (approximately half of which
addressed a risk immaterial to the injmy Regan suffered). In addition, Fries offered no opinion
as to the cost-effectiveness of his proposals. Fries' testimony thus provides no basis for a finder
of fact to determine the effectiveness, the feasibility, the functional practicability, or the costeffectiveness of any of Fries' proposed safety features. Regan does not offer any evidence other
than the opinions of Meyers and Fries as to the safety expectations of an ordinary consumer of
shear machines.
In fact, the only evidence of record with significant probative value as to the safety
expectations of the ordinary consumer of shear machines is the testimony of Bob's' principal and
corporate representative that "[t]or purposes of opening the ... door and keeping it open to
perform maintenance on the shear blade," the problem of doing so safely was of a nature that "an
experienced mechanic should know what to do," Weinstein Depo., 70:15-21, that "the door, as
designed," was not viewed as a hazard "if it's properly addressed," and that "an experienced
mechanic should be able to remediate any danger from it, id., 72: 1-6. Regan takes the position
that a full risk-utility balancing is not necessary for the consumer expectations test to be satisfied,
because Fries' testified that the hazard analysis he performed was that "raising the heavy door is
Page 16 - OPINION AND ORDER

dangerous," Fries Depa., 91 :20-21, see also id, 92:3-6. However, Fries' testimony that raising
the access door is dangerous is probative of the proposition that the access door presented a
hazard, but is simply not probative of the relevant question, namely whether the hazard the door
presented was unreasonable by the metric of the expectations of the ordinary consumer of shear
machines.
Because Regan has failed to meet his burden to present evidence as to effectiveness,
feasibility, functional practicability, and cost-effectiveness, and because Sierra's motion squarely
put Regan to that burden, Sie1Ta is entitled to summmy judgment in its favor as to Regan's
products liability claim. 4 Siena's motion (#15) for summary judgment is therefore granted as to
Regan's products liability claim.

II.

Regan's Negligence Claim
Regan alleges Sierra's negligence "in one or more of the particulars claims [sic] in if 7" of

his complaint. Complaint, if 5. However, Regan's complaint contains no Paragraph 7, and
additionally contains no particularized allegations of negligent conduct in any other paragraph.

See id, passim. At oral argument in connection with Sierra's motion (# 15) for summaiy
judgment, Regan's counsel informally requested leave to amend his complaint to state
pmiicularized allegations of Sierra's purpo1iedly negligent conduct. Sie1Ta's counsel indicated
that Sierra would oppose such a request on the grounds that amendment would be futile for the
same reasons proffered in Sie1Ta's summary judgment briefing in supp01i of summmy
adjudication of the negligence claim. I advised the parties that I would consider Regan's informal

4

I therefore need not address the parties' alternative arguments as to whether Regan can
establish causation of damages.
Page 17 - OPINION AND ORDER

request for leave to amend in light of Siena's arguments in favor of summmy judgment,
constrned as arguments that amendment would be futile.
To state a claim for negligence under Oregon common law, a plaintiff must show that the
defendant owed the plaintiff a duty, that the duty was breached, and that the breach caused the
plaintiff harm. See, e.g., Fazzolari v. Portland School Dist., 303 Or. 1, 14-17 (1987). In the
absence of a specific duty created, defined, or limited by a specified status, relationship or
standard of conduct, "the issue of liability for harm actually resulting from defendant's conduct
properly depends on whether that conduct umeasonably created a foreseeable risk to a protected
interest of the kind of harm that befell the plaintiff." Id at 17. Specifically, in the absence of a
special relationship giving rise to a specific duty of care, to state a claim for negligence under
Oregon law a plaintiff must allege:
(1) that defendant's conduct caused a foreseeable risk ofharm, (2) that the risk is
to an interest of a kind that the law protects against negligent invasion, (3) that
defendant's conduct was umeasonable in light of the risk, (4) that the conduct was
a cause of plaintiffs harm, and (5) that plaintiff was within the class of persons
and plaintiffs injury was within the general type of potential incidents and injuries
that made defendant's conduct negligent.

Solberg v. Johnson, 306 Or. 484, 490-491 (1988), citing Fazzolari, 303 Or. 1. Although
reasonableness is generally a question of fact to be determined by a jury, where there is no doubt
that a defendant's conduct was reasonable, the court may resolve the question without submitting
it to a trier of fact. See, e.g., Thurman v. Thomas, 70 Or. App. 159, 162 (1984), citing Hamilton

v. State, 42 Or. App. 821, 828-829 (1979).
On the basis of Ford's testimony that "you don't climb up [to the door of the Shear
Machine] until the door is up," but that on the occasion of his accident Regan nevertheless
"climbed up on top of it before it was even ready," Ford Depo., 14:10-24, Ford's characterization
Page 18 - OPINION AND ORDER

of Regan's election to climb the machine before the door was open as having "jumped the gun" or
as having gone up "too early," id, 15:1-10, and the videorecording of the accident itself, see
Socolow Deel., Exh. A, SielTa argues that the accident was caused by Regan's own conduct
rather than by the negligence of Siena or any other party. Regan's expert Fries conceded that the
accident would not have occurred had Regan not climbed up the Shear Machine before the door
had been lifted to the vertical position, but further testified that it also would not have occulTed if
Ford had not continued operating the forklift once Regan was in the upward path of the door.

See Fries Depa., 135:20 ~ 136:10.
Although Regan's proffered evidence does not clearly give rise to any inference of SielTa's
negligence, I decline to find that the evidence of record entirely forecloses the possibility that
Regan could establish that SielTa's conduct was in some conceivable respect negligent.
Accordingly, Regan's informal request for leave to amend is granted, Regan is directed to amend
his pleading within fourteen days of the date hereof to re-allege his negligence claim (only) and
to offer particularized allegations ofSie1w's complained-of negligence, and Sierra's motion (#15)
for summary judgment is denied as moot and with leave to refile as to Regan's negligence claim.

CONCLUSION
For the reasons set forth above, Regan's informal request for leave to amend his
complaint is granted, Sierra's motion (#15) for summary judgment is granted as to Regan's
products liability claim and denied as moot with leave to refile as to Regan's negligence claim,
summmy judgment is entered in Sierra's favor as to Regan's products liability claim only, and

II I
I II
Page 19 - OPINION AND ORDER

Regan is directed to amend his pleading within fourteen days of the date hereof to re-allege his
negligence claim (only) stating pmiicularized allegations of Siena's complained-of negligence.

Dated this 6th day of July, 2017.

Honorable Paul Papak
United States Magistrate Judge

Page 20 - OPINION AND ORDER