Regan v. Sierra International Machinery, LLC

Filing 41

OPINION & ORDER: Defendant's Motion for Summary Judgment 31 is Granted in its entirety, and summary judgment is Granted in Sierra's favor as to Regan's negligence claim. A final judgment will be prepared. Signed 3/14/18 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

3:15-CV-2302-PK

JASON REGAN,

OPINION AND
ORDER
Plaintiff,

v.
SIERRA INTERNATIONAL MACHINERY,
LLC,

Defendant.

PAPAK, Magistrate Judge:
Plaintiff Jason Regan (a citizen of Oregon) filed this action against defendant Sierra
International Machinery, LLC ("Sierra") (a citizen of California), in Multnomah County Circuit
Comi on September 30, 2015. Sie1rn removed Regan's action to this comi effective December

Page 1 - OPINION AND ORDER

10, 2015, on the ground of diversity jurisdiction.'
By and through his complaint as originally filed, Regan alleged 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 was Regan's position that the design of the machine was umeasonably
dangerous, and that it had been sold to Bob's without adequate warnings of the risks it presented.
Arising out of the foregoing, Regan alleged Sierra's liability (i) under Oregon's products liability
law on a strict products liability theo1y, and (ii) under Oregon common law for negligence.
On July 6, 2017, I granted summmy judgment in Sierra's favor as to Regan's products
liability claim, but denied summmy judgment as moot as to Regan's negligence claim, on the
ground that Regan's complaint failed, apparently inadvertently, to allege Sie11'a's negligent
conduct. I directed Regan to amend his complaint to restate his negligence claim only. Regan
filed an amended complaint stating a single claim for negligence effective July 18, 2017.
By and through his amended complaint, Regan seeks $750,000 in non-economic damages
and approximately $52,000 in economic damages, plus pre- and post-judgment interest and
reimbursement of his costs. This comi has diversity jurisdiction over Regan's claim pursuant to
28 U.S.C. § 1332, based on the complete diversity of the pmiies and the amount in controversy.
Now before the court is Sie1rn's second motion (#31) for summary judgment. I have
considered the motion, oral argument on behalf of the pmiies, and all of the pleadings and papers
on file. For the reasons set forth below, Sie11'a's motion (#31) for sunm1my judgment is granted.

1

Sierra has taken the position that it did not learn 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

LEGAL STANDARD
Summmy 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 information, affidavits or declarations, stipulations (including
those made for purposes of the motion only), admissions, interrogatory answers, or other
materials," by showing that the evidence of record does not establish either the presence or
absence of such a dispute, or by showing that an opposing party 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
lvforeland v. Las Vegas lvfetro. 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 Co17J. 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 summary judgment, the district courts of the
United States must draw all reasonable inferences in favor of the nonmoving party, and may
neither make credibility determinations nor perform any weighing of the evidence. See, e.g.,
Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 150 (2000).

Page 3 - OPINION AND 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 P01iland, 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 machine1y.

II.

The Parties' Dispute'
It appears to be undisputed that, 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
Amended Complaint,

~

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 approximately 700 tons, and that its cutting blades are
accessible for maintenance purposes, including for replacement of the blades (which must take
place approximately eve1y two months), behind a heavy top-hinged steel door that plaintiff has
calculated as weighing between 300 and 400 pounds. See

id.,~

2. It is undisputed that the

primaiy 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 (# 16)
of John M. Socolow ("Socolow Deel."), Exh. E (Deposition of Stephen Simmons (collectively
with the Declaration (#32) of Michael Yoshida ("Yoshida Deel. I"), Exh. I, "Simmons Depo."),

2

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

40:5-22. The door that affords the most convenient 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 ve1iical, 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 (collectively with Yoshida Deel. I, Exh. L, "Weinstein Depo.")), 72:19- 73:11.
Notwithstanding the foregoing, it was not necessary to use the door to access the cutting blades
for maintenance purposes, as it was possible (if relatively inconvenient) to access the blades from
underneath, without any need for moving the door. See Socolow Deel., Exh. L (Deposition of
Trevor Ford (collectively with Yoshida Deel. I, Exh. N, and Declaration (#38) of Michael A.
Yoshida ("Yoshida Deel. II"), Exh. A, "Ford Depo.")), 19:1-23.
The Shear Machine was designed and manufactured in Italy by an entity not named as a
pmiy herein prior to its distribution by Sierra. See Weinstein Depo., 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 ofEmique Robles
(collectively with Yoshida Deel. I, Exh. K, "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

Page 5 - OPINION AND ORDER

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. Sie11'a 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. It is
undisputed that 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 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, "[fjor 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 Sillllllons 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

Page 6 - OPINION AND ORDER

CONDITIONS CAUSED BY INAPPROPRIATE ...
MAINTENANCE OF THE BALER.
•

SIERRA RECOMMENDS THAT THIS MANUAL 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
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
etiforce such measures as he/she determines necessary to assure safe
operntion cmd maintenance oftlze equipment.

Socolow Deel., Exh. 0 (Repmi 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 Memorandum (#18) in Opposition to Siena's First Motion (#15) for
Summary Judgment, Exh. A (Affidavit ofR. Brendan Dummigan ("Dummigan Aff.")), Exh. B
(Declaration of Jason Regan ("Regan Deel.")), ~~ 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 (collectively with Yoshida Deel. I, Exh. M, "Regan Depo. ")),
Page 7 - OPINION AND ORDER

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., iii! 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
climbing up above four feet. See Socolow Deel., Exh. L (Deposition of Trevor Ford (collectively
with Yoshida Deel. I, Exh. N, and Declaration (#38) of Michael A. Yoshida ("Yoshida Deel. II"),
Exh. A, "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 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 nevertheless "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" 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

Page 8 - OPINION AND ORDER

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,
36:3-25.3
The precise circumstance described by Ford in fact occurred on this occasion, while
Regan was in the path of the door (and immediately after he expressly instructed Ford to raise the
door higher notwithstanding that he was in its upward path), and the door swung abruptly
upwards and s!luck him in the cheek, causing him to suffer injmy. See Weinstein Depo., 72:718, 76:2-8; Regan Depo., 107:23-108:13; see also SocolowDecl., Exh. A (videorecording of
the accident occurring). Bob's would not have expected this accident to occur had the forklift not
slipped off the plate it was standing on. See Weinstein Depa., 78:4-15. Ford did not believe the
accident was caused by any design defect in the door. See Ford Depo., 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 (collectively with Yoshida Deel. I, Exh. H, "Fries Depo.")),
135:20-136:10. Fries nevetiheless offered the opinion that the Shear Machine door was
"umeasonably dangerous and defective with regard to changing the cutting blades" because the

3

As noted above, Ford futiher testified that it was not necessaty to open the door in order
to access the cutting blades for maintenance pmposes, as the blades were accessible from
underneath. See Ford Depo., 19:1-23.
Page 9 - OPINION AND ORDER

door is heavy, its top hinge created a "stored energy" hazard when the heavy door was lifted to its
vertical position, and there were no specifically prescribed methods or procedures for opening it.
Dummigan Aff., Exh. C ("Fries Opinion") at 2-3. 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 if the door were side-hinged, or if the door had been designed with
"springs, winches, safety support poles, instructions, decals, and/or a platform that keeps the door
open." Id Fries testified thathe had "[c]e1iainly not" tested any of these alternatives, Fries
Depo., 90:24-25, that he had not performed any analysis of the alternatives, including any costeffectiveness analysis or hazard analysis to determine whether they would be effective in
reducing the risk associated with accessing the cutting blades, see id., 91:14-23, 94:2-8, 94:2325, 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 performed was to formulate the conclusion that "raising the heavy door is
dangerous," id., 91:20-21, see also id, 92:3-6. Fries fmiher opined that the door should have
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. Fries subsequently supplemented his opinion to add that a
"removable door" would likewise reduce hazards associated with accessing the baler's blades, as
would the addition of "chains, or cables, or locks, or winches, that would raise and hold the door
in a safe position." Yoshida Deel. I, Exh. G ("Supplemental Fries Opinion"). Fries did not
supplement his opinion with hazard analysis, cost-effectiveness analysis, feasibility analysis, or
testing. See id.
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

Page 10 - OPINION AND ORDER

downward, an assumption which is flatly inaccurate. Socolow Deel., Exh. N (Deposition of John
T. Meyers ("Meyers Depo.")), 87:18-19.

III.

Procedural History
Regan's complaint, as originally filed, alleged Sierra's negligence "in one or more of the

particulars claims [sic] in 'if 7" of his original complaint. Complaint, 'if 15. However, Regan's
complaint contained no Paragraph 7, and additionally contained no paiiicularized allegations of
negligent conduct in any other paragraph. See id., passim. In consequence of Regan's failure to
offer allegations of Sierra's negligent conduct, I directed Regan to amend his complaint to state
"particularized allegations of Sierra's complained-of negligence" and denied Siena's first motion
for summary judgment as moot to the extent it addressed Regan's negligence claim.
Effective July 18, 2017, Regan amended his pleading. Regan's amended pleading is
substantially similar to his original pleading. See id,passim; Amended Complaint, passim.
Specifically, Regan amended his pleading by removing all of the allegations of his original
pleading that specifically addressed negligence, see Complaint, 'if 'if 14-15, Amended Complaint,

passim, by modifying his allegation of the "particulars" in which the Shear Machine was
allegedly a defective product to allege that those same "particulars" instead constituted
negligence on the part of Sie1rn, Complaint, 'if 6, Amended Complaint, 'if 6, and to allege that
Regan's physical injuries were caused solely by Sierra's "negligence" as opposed to Sierra's "strict
liability and/or negligence," Complaint, 'if 8, Amended Complaint, 'if 8. Regan's Amended
Complaint, like his originally filed Complaint, contains no Paragraph 7.
Accordingly, Regan has elected to allege that Sie1rn's conduct was negligent in precisely
the same ways in which he previously alleged that Sierra was strictly liable for distribution of a

Page 11 - OPINION AND ORDER

defectively designed product, specifically as follows:
a)

The Shear Machine was not properly designed because there were no
adequate means or methods for safely lifting the approximately 393-pound
door from the closed to the open position;

b)

The Shear Machine was not properly designed because there was no
adequate mechanism or method for safely securing the approximately
393-pound door in the open position after it was lifted to allow access for
maintenance of the shear.

c)

The Shear machine was not properly designed because there was no safe
access, either a ladder or a platform, for an employee to work at the
location where the approximately-393 pound door could be secured in the
open position.

d)

The Shear Machine was not properly designed because its approximately
393-pound door was hinged at the top, rather than the side, which, in the
absence of an adequate means of lifting and securing the door, created the
foreseeable hazard of the door striking an employee working in or around
the Shear Machine, while employees were attempting to lift the door and
secure it in the open position, in order to perform maintenance and/or
replacement activities on the cutting blades;

e)

The Operator's Manual provided by defendant with the Shear Machine to
plaintiff's employer, Bob's Metals Inc., failed to include any written
procedures to enable workers to safely change the cutting blades, i.e., a
LOTO program, and a safe location and method to raise the door to the
open position and secure it, in order to provide safe access to the cutting
blades;

f)

The Shear Machine was sold without any or adequate warnings, either by
way of warnings in the Operating Manual or other type of manual, or by
way of warning decals placed in strategic locations on the Shear Machine
itself, of the risk of serious injury to individuals that worked in close
proximity to the 393-pound door, when it was being lifted from the closed
position to the open position;

g)

The Shear Machine was not properly inspected and tested prior to its sale,
which proper testing and inspection would have identified the risk of
serious injury to individuals that worked in close proximity to the
approximately 393-pound door, when it was being moved from the closed
position to the open position[.]

Page 12 - OPINION AND ORDER

Amended Complaint,~ 6.

ANALYSIS
As noted above, Regan alleges Siel1"a's liability under Oregon common law for negligence
in the design of the Shear Machine, in failing to provide adequate written safety procedures for
opening and securing the Shear Machine door, in failing adequately to warn regarding the risk
presented by the Shear Machine door, and in failing to inspect or test the Shear machine before
selling it to Bob's. 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 hatm actually resulting from defendant's conduct
properly depends on whether that conduct unreasonably 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 of harm, (2) that the risk is
to an interest of a kind that the law protects against negligent invasion, (3) that
defendant's conduct was unreasonable in light of the risk, (4) that the conduct was
a cause of plaintiff's harm, and (5) that plaintiff was within the class of persons
and plaintiff's injmy 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 Fazzo/ari, 303 Or. 1. Although

reasonableness is generally a question of fact to be determined by a jmy, 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
Page 13 - OPINION AND ORDER

v. State, 42 Or. App. 821, 828-829 (1979).
As to the causation element of a claim for negligence under Oregon common law, the
Oregon Court of Appeals has held that where a person injured by a risk was fully aware of the
risk when the inju1y occurred, a claim for failure to warn the person regarding the risk will not
lie, because in light of the person's awareness of the risk, the absence of adequate warning could
not have contributed to causation of the injmy. See Garrison v. Deschutes Cty., 334 Or. 264,
278-279 (2002). In so holding, the Garrison court expressly rejected the argument that, under
such circumstances, the party allegedly responsible for failure to provide an adequate warning
regarding the risk could nevertheless be liable on a theory of comparative negligence. See id. I
find no indication in Oregon law that the Oregon Supreme Court would hold to the contra1y, and
accordingly adopt the Garrison court's holding.
Here, Regan has alleged seven separately enumerated theories of SieIT"a's negligence. The
first four enumerated allegations of negligence, as Regan elected to articulate them by and
through his amended complaint, all clearly rely on the premise that Sierra was negligent in
connection with designing the Shear Machine. See Amended Complaint, ii 6(a)-(d). Because it is
undisputed that Siena played no role in designing the Shear Machine, it is clear as a matter oflaw
that Sierra's conduct in connection with designing the Shear Machine could not have contributed
in any degree to causation of Regan's injmy. Because Regan cannot establish the requisite
element of causation in connection with any of his four a1ticulated theories of Sierra's negligence
in connection with designing the Shear Machine, Sierra is entitled to summmy judgment as a
matter oflaw as to Regan's negligence claim to the extent premised on Sierra's negligent design

Page 14 - OPINION AND ORDER

thereof.4
Regan's seventh enumerated allegation of Sierra's negligence is that Sie1rn was negligent
in failing properly to inspect and to test the Shear Machine before selling it to Bob's, where such
inspection or testing would have revealed the safety hazard presented by the Shear Machine door.

See id., i! 6(g). However, there is no evidence ofrecord with any tendency to suggest that Sie1rn's
alleged failure to conduct proper inspection or testing of the Shear Machine could possibly have
caused Regan's injmy: patently, Regan's injmy was not caused by Sierra's failure to educate itself
as to the extent of the safety risk presented by working with the Shear Machine door, and had
Sierra engaged in exhaustive testing and inspection of the Shear Machine before selling it, that
fact without more would have had no tendency to reduce the risk of Regan's injury. Because
Regan has adduced no evidence tending to support his theo1y that Sierra's alleged negligence in
failing adequately to inspect or test the Shear Machine could have caused his injmy, Sierra is
entitled to summary judgment as a matter oflaw as to Regan's negligence claim to the extent
premised on Sierra's failure to conduct proper inspection and testing.'
4

At oral argument in connection with Sierra's motion, counsel for Regan explained that
notwithstanding the plain language of Paragraph 6(a)-(d) of Regan's amended complaint,
Paragraph 6(a)-(d) was intended to allege Sierra's negligence in connection with selling the Shear
Machine without providing adequate warnings as to the safety hazard its access door presented.
So construed, it is clear that Paragraph 6(a)-(d) is-again notwithstanding the plain language of
Regan's amended complaint - not intended to constitute allegations of Sierra's negligent conduct
but rather allegations of background fact in support of the separate and distinct allegation or
allegations that Sierra was negligent in failing adequately to warn regarding the alleged defects in
the Shear Machine's design. To the extent Paragraph 6(a)-(d) may properly be so construed, it is
within the scope of the discussion infi"a of Regan's the01y of negligence as alleged by and
through Paragraph 6(e) and/or 6(f) of his amended complaint.
5

Again, at oral argument in connection with Sierra's motion, counsel for Regan indicated
that Paragraph 6(g) was intended, notwithstanding its plain language, to miiculate Regan's theo1y
that had Sierra understood the full extent of the safety hazard presented by the Shear Machine
door, it would have understood the need to warn purchasers of the machine regarding that hazard.
Page 15 - OPINION AND ORDER

Regan's fifth and sixth enumerated allegations of Siena's negligence articulate Regan's
theory that Siena was negligent in selling the Shear Machine without adequately warning
purchasers and users of the machine as to the safety hazard presented by its heavy access door,
either through providing adequate written instruction in how to mitigate the risk the door
presented or through placing salient and adequate warnings on the machine itself or on its
operations manual. Regan's negligence claim to the extent premised on such a theory is without
merit as a matter of law for at least two independent reasons.
First, as discussed above, it is undisputed that Regan was at all material times fully aware
of the risk presented by the door, and of Bob's' standing safety protocol (developed in connection
with training provided by Sierra) for accessing the door safely notwithstanding that risk.
Specifically, it is undisputed that Siena personnel provided Bob's personnel with training in how
to change out the Shear Machine cutting blades safely, see Robles Depo., 52:9 - 54: 12, see also
Socolow Deel., Exh. G at 4, that in the course of that training, Siena 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, that 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, that Siena personnel counseled Bob's personnel
that it was up to them to develop their own safe procedures for securing the door in its ve1tical,

To the extent Paragraph 6(g) may properly be construed as articulating such a theo1y, again, that
themy is within the scope of the discussion infra ofRegan's theory of negligent failure
adequately to warn as alleged by and through Paragraph 6(e) and/or 6(f) of his amended
complaint.
Page 16- OPINION AND ORDER

open position while it was being held open by a forklift, see id, 52:9 - 54: 12, see also Simmons
Depo., 98:3 - 100: 11, and that 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 Shear machine door, Weinstein Depo., 67:5-11. It is further
undisputed that the operations manual that Sierra provided to Bob's in connection with Bobs's
purchase of the Shear Machine specifically advised in bold font that eve1yone using the machine
should be trained in its safe use, and that purchasers of the machine were responsible for
developing safe procedures for operating and maintaining it. See Fries Report at 11. It is further
undisputed that at the time Regan's injury occurred, Bob's personnel had changed out the cutting
blades seventy times without any person suffering an injury such as Regan's, that Regan had
previously changed out the blades safely on three to five occasions, that Regan understood and
had previously used Bob's' safety protocols for accessing the Shear Machine blades, that on the
occasion of his injury Regan simply failed to follow the established safety protocol that he had
used in the past notwithstanding that a man lift and safety basket were available to him and that
there was adequate room for him to have used them to access the machine. See Regan Depo.,

70:10-19, 80:20- 81:2, 81:7-10, 82:19- 84:16, 98:1-4, 99:24-100:19; Ford Depo., 14:3-6,
14:10-24, 15:1-10, 32:6-17, 32:20-33:9, 36:3-25; Weinstein Depo., 76:2-25. A finder of fact
could not reasonably conclude, in light of the undisputed evidence of record that Regan was at all
material times aware of the risk presented by the Shear Machine door and of the established
methods for mitigating that risk, that Regan was less than fully aware of the safety hazard
presented by the door at the time his injury occuTI'ed. As such, under Garrison, supra, as a
matter of Oregon law the absence of any more salient warning of the extent and nature of the risk

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presented could not have contributed to causation of Regan's injmy. See Garrison, 334 Or. at
278-279.
Second, it seems clear in light of the undisputed evidentimy record that, independently of
Regan's full knowledge of the door's safety hazard, his injmy could not have been caused by any
failure adequately to warn regarding the risk. Regan's injmy was not caused when the door
unexpectedly fell, or when the chain securing the door unexpectedly failed, but rather when the
door was thrown upward when the back tires of the forklift Ford was operating slipped off the
steel plate Bob's had elected to place by the Shear machine door, causing the front end of the
forklift to thrnst upwards, in turn causing the door to swing upwards abruptly. Sierra had no
control over Bob's' election not to reposition the steel plate (or to use a larger one or a second
one) so as to avoid causing the heavy door to swing upwards uncontrollably at some point during
its otherwise controlled and slow upward movement, and could not have been expected to
foresee that Bob's would adopt a safety protocol that introduced a new and unanticipated risk of
propelling the door upwards with sufficient force to cause injmy. It was within Sierra's power to
warn regarding safety hazards inherent in the Shear Machine itself (as it in fact did, albeit not
through placement of warning decals on the machine itself), but not regarding new and
unanticipated risks created by the conduct of the purchaser of the machine after the machine left
Sierra's possession and control. Because Regan's injmy was caused by such a new and
unanticipated risk, Sierra's conduct could not have contributed to its causation.
For the foregoing reasons, Sierra is entitled to summary judgment in its favor as to
Regan's negligence claim.

Ill

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CONCLUSION
For the reasons set forth above, Sierra's motion (#31) for summaty judgment is granted in
its entirety, and summa1y judgment is granted in Sierra's favor as to Regan's negligence claim. A
final judgment will be prepared.

Dated this 14th day of March, 2018.

Honorable Paul Papak
United States Magistrate Judge

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