The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
JACOB RAPANT,
Plaintiff, No. 6:22-cv-01200-AA
v. OPINION & ORDER
GRIZZLY INDUSTRIAL, INC.,
Defendant.
_______________________________________
AIKEN, District Judge.
This case comes before the Court on a Motion for Summary Judgment, ECF
No. 15, filed by Defendant Grizzly Industrial, Inc. The Court concludes that this
motion is appropriate for resolution without oral argument. For the reasons set for
the below, the motion is GRANTED and this case is dismissed. All other pending
motions are MOOT.
LEGAL STANDARD
Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, affidavits, and admissions on file, if any, show “that there is no
genuine dispute as to any material fact and the [moving party] is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Substantive law on an issue determines
the materiality of a fact. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809
F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury
could return a verdict for the nonmoving party determines the authenticity of the
dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
party shows the absence of a genuine issue of material fact, the nonmoving party
must go beyond the pleadings and identify facts which show a genuine issue for trial.
Id. at 324.
Special rules of construction apply when evaluating a summary judgment
motion: (1) all reasonable doubts as to the existence of genuine issues of material fact
should be resolved against the moving party; and (2) all inferences to be drawn from
the underlying facts must be viewed in the light most favorable to the nonmoving
party. T.W. Elec., 809 F.2d at 630-31.
BACKGROUND
Plaintiff is a carpenter. When he was in school, Plaintiff took woodshop classes
where he learned that the “Number 1 rule” for operating power tools was “if there’s
anything going on with the machine, turn it off.” Def. Mot. Ex. A, at 46. Plaintiff
completed a four-year apprenticeship through a carpenter’s union and is employed as
a journeyman carpenter with a Portland-based contracting company. Id. at 4, 7-8.
Plaintiff has been working in carpentry since 2014. Id. at 5. Plaintiff also has a
workshop in his home where he does woodworking for furniture and cabinets as a
hobby and as a side job. Id. at 10, 16-17.
Defendant Grizzly Industrial, Inc. is a Washington corporation. Notice of
Removal, ¶ 5. ECF No. 1. Relevant to this case, Defendant manufactures the G0505
Benchtop Planer and, as an accessory to the planer, the H7516 dust hood. Def. Mot.
Ex. D., Baliola Decl. ¶¶ 4-6. Defendant first began producing the G0505 planer in
2003 and has sold 17,568 planers. Id. at ¶¶ 9-10. Defendant first began producing
the H7516 dust hood in 2005 and has sold 5,012 dust hoods. Id. at ¶¶ 11-12. Until
Defendant was notified of Plaintiff’s injury, Defendant “had never received a report
of any injury to anyone related to the G0505 Benchtop Planer or the H7517 dust
hood.” Id. at ¶ 13.
Plaintiff purchased the G0505 half benchtop planer in October 2020. Def. Mot.
Ex. A, at 6-7, 10; Ex. B. The planer has a cutter head with sharp knives that are used
to plane boards. Def. Mot. Ex. A, at 23-24. When the planer is in use it is very loud,
and the blades spin at 10,000 RPM. Id. at 24. Plaintiff testified that once the planer
was turned off it would take approximately fifteen seconds for the cutter heads to
come to a stop. Id. at 26. Plaintiff testified that he was aware that the cutter head
blades would cut flesh as easily as wood and that it would be dangerous to put his
hands near the cutter head. Id. at 24-25.
When Plaintiff was setting up the planer, he read the instruction manual,
including the warnings. Def. Mot. Ex. A, at 11-12. On the instructions for the planer,
there is a warning to “Always disconnect machine from power supply before servicing,
adjusting, or changing cutting tools.” Id. at 26; Def. Mot. Ex. C, at 10. Plaintiff
testified that he was aware of that warning. Def. Mot. Ex. A, at 26. Plaintiff also
testified that he was aware that “servicing” meant “doing anything to fix” the planer.
Id.
The instructions also warn: “To avoid serious personal injury from spinning
knives never remove guards or reach inside the planer when it is connected to power.”
Def. Mot. Ex. A, at 27; Ex. C, at 11. Plaintiff testified that he had read that warning
and knew never to reach inside the planer when the planer was connected to power.
Def. Mot. Ex. A, at 27. When asked if he took any action a result of the warnings,
Plaintiff responded “I unplugged it when it wasn’t in use.” Id. at 12.
The planer came with a chip deflector, which shoots chips out of the back of the
planer. Def. Mot. Ex. A, at 13. Plaintiff assembled and attached the chip deflector to
the planer. Id. Plaintiff also bought the H7516 dust hood attachment for the planer,
which captured the dust from the planer’s operation. Id. at 25, 28-29; see also Def.
Mot. Ex. C, at 23 (showing the H7516 Dust Hood “Made especially for the Model
G0505 Planer, this complementing dust hood takes the place of the rear chip
deflector.”). Before Plaintiff installed the dust hood, the chips would simply fall on
the floor when he used the planer. Def. Mot. Ex. A, at 22. Once the dust hood was in
place, it sat “about an inch” above the planer’s cutter head. Id. at 31. Plaintiff knew
how close the cutter head was to the dust hood because he had installed the dust
hood. Id.
Plaintiff uses the planer to make furniture and estimated that he used it for
between two and four hours per piece and that he would typically make one piece per
month. Def. Mot. Ex. A, at 18. In total, Plaintiff estimated that he had used the
planer for between thirty and forty hours at the time of the accident. Id. at 19.
Plaintiff testified that the planer required little in the way of daily maintenance other
than blowing the dust off with a small leaf blower. Id. at 15-16. After installing the
dust hood, Plaintiff used the planer for several months, totaling between six and
twelve hours, without any problems. Id. at 32.
On August 2, 2021, Plaintiff was using the planer to plane maple boards. Def.
Mot. Ex. A, at 34. While the planer was in use, Plaintiff noticed that no dust was
coming out of the hose attached to the dust hood. Id. at 35. Plaintiff reached into the
planer and tapped the dust hood twice while the planer was running. Id. at 35, 37-
38. The dust hood flexed down far enough that it caught the blade of the cutter head,
which pulled the dust hood down into the blades and pulled Plaintiff’s hand along
with it. Id. at 35. Plaintiff pulled his hand out and turned the planer off and saw
that his hand “was just covered in blood.” Id. All four of Plaintiff’s fingers were
injured by contact with the planer’s blades. Id. at 39.
At his deposition, Plaintiff testified that he knew that the dust hood was very
close to the cutter head and that he knew the planer was running at the time. Def.
Mot. Ex. A, at 36. Plaintiff also testified that he knew he could have dealt with the
situation by turning the planer off and waiting for the blades to stop moving. Id. at
37-38.
Plaintiff testified that the injury occurred when he was “in the process of fixing
the machine, not operating it,” and that, had he pushed the off button, he would not
have been injured. Def. Mot. Ex. A, at 40-41. Plaintiff acknowledged that he acted
contrary to the clear warnings in the planer manual. Id. at 45.
On August 3, 2021, Plaintiff emailed Defendant to describe the incident and
complain about the “poor quality of the dust hood in collection of dusty and quality of
material the product is made from.” Def. Mot. Ex. H. In his email, Plaintiff remarked
“I’m aware of the operator error on my part. I just want to inform you as a company
of the injury I sustained during use of your product.” Id.
This case was originally filed in the Marion County Circuit Court on July 6,
2022, and was removed to this Court by Defendant on August 15, 2022. ECF No. 1.
DISCUSSION
Plaintiff alleges that the G0505 planer and the H7516 dust hood
manufactured by Defendant were defective and that Defendant should be strictly
liable for Plaintiff’s injuries. Compl. ECF No. 1-1.
Under Oregon law, a plaintiff may bring a “product liability civil action,” which
is defined as:
[A] civil action brought against a manufacturer, distributor, seller or
lessor of a product for damages for personal injury, death or property
damage arising out of:
(1) Any design, inspection, testing, manufacturing or other defect in a
product;
(2) Any failure to warn regarding a product; or
(3) Any failure to properly instruct in the use of a product.
ORS 30.900.
With respect to strict product liability, Oregon law provides that “[o]ne who
sells or leases any product in a defective condition unreasonably 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 leased.” ORS 30.920(1). The Oregon
legislature made clear in the statute that this rule “shall be construed in accordance
with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965).” ORS
30.920(3).
Under Oregon law,
[T]he necessary elements of a design defect cast are: (1) the sale or
leasing of a product by one engaged in the business of selling or leasing
such products; (2) a product that was expected to, and did, reach the
user or consumer without substantial change in condition; (3) a product
that, when sold, was in a defective condition unreasonably dangerous to
the user or consumer; (4) injury to the user or consumer, or damage to
his or her property; (5) that was caused by the product’s defective
condition.
McCathern v. Toyota Motor Corp., 332 Or. 59, 77 n.15 (2001).
“In addition to presenting proof as to the condition of the defendant’s product,
the plaintiff in a strict liability case is required to establish that such condition
proximately caused his injuries or damages.” Gilmour v. Norris Paint & Varnish
Co., 52 Or. App. 179, 184 (1981) (internal quotation marks and citation omitted).
Defendant contends that Plaintiff’s injury was not caused by any defect in the
design of the planer or dust hood but was instead caused by Plaintiff’s misuse of the
planer and dust hood. Consistent with the requirement of ORS 30.920(3) that strict
liability be construed in accordance with the Restatement and comments and, here,
Defendant frames its motion around comments h and j of the Restatement.
Comment h to the Restatement provides that “[a] product is not in a defective
condition when it is safe for normal handling and consumption.” Restatement
(Second) of Torts, § 402A, cmnt. h (1965). The comment provides additional
guidance and examples:
If the injury results from abnormal handling, as where a bottled
beverage is knocked against a radiator to remove the cap, or from
abnormal preparation for use, as where too much salt is added to food,
or from abnormal consumption, as where a child eats too much candy
and is made ill, the seller is not liable. Where, however, he has reason
to anticipate that danger may result from a particular use, as where a
drug is sold which is safe only in limited doses, he may be required to
give adequate waning of the danger (see Comment j), and a product
sold without such warning is in a defective condition.
Restatement (Second) of Torts § 402A, cmnt. h.
Comment j of the Restatement, in turn, provides: “In order to prevent the
product from being unreasonably dangerous, the seller may be required to give
directions or warning, on the container, as to its use.” Restatement (Second) of
Torts, § 402A, cmnt. j. “Where warning is given, the seller may reasonably assume
that it will be read and heeded; and a product bearing such a warning, which is safe
for use if it is followed, is not in defective condition, nor is it unreasonably
dangerous.” Id.
“‘(W)here a proper warning is given, as by instructions on the products
container, the manufacturer or seller is normally not liable on the ground of
negligence for product-caused injury where the warning or instructions have been
disregarded and where it appears that the injury would not have occurred had they
been observed . . . and no recovery under the doctrine of strict liability in tort, where
the gist of the action is an alleged failure to give adequate warning, but it is shown
that a proper warning was actually given.’” Schmeiser v. Trus Joist Corp., 273 Or.
120, 132 (1975) (quoting 2 Hursh and Bailey, American Law of Products Liability
212-213, § 8:25 (2d ed. 1974) (alterations in original)). In Schmeiser, the Oregon
Supreme Court reversed the trial court’s decision to deny the defendant’s motion for
directed verdict in a claim for strict liability:
We do not believe that the strict liability doctrine means that under
circumstances such as we have here a consumer may knowingly violate
the plain unambiguous instructions and ignore the warnings, then
hold the makers, distributors and sellers of a product liable in the face
of the obvious misuse of the product.
Schmeiser, 273 Or. at 136 (quoting Proctor & Gamble Mfg. Co. v. Langley, 422
S.W.2d 773, 780 (Tex. Civ. App. 1967)).
Here, as noted, Defendant contends that Plaintiff’s injury was the result of
his own misuse of the planer, which was done contrary to the express warnings that
accompany the planer. Misuse is normally a jury question unless “reasonable
minds could not differ, which instance the case would be at an end.” Newman v.
Utility Trailer & Equip. Co., Inc., 278 Or. 395, 399 (1977). The Oregon Supreme
Court has held that, in the context of comment h to § 402A, “‘abnormal’ use does not
mean every instance of negligence, however slight in connection with the use of the
product.” Findlay v. Copeland Lumber Co., 265 Or. 300, 306 (1973). “The product
must be safe for ‘normal’ handling and consumption,” and “[m]issue, to bar recovery,
must be a use or handling so unusual that the average consumer could not
reasonably expect the product to be designed and manufactured to withstand it—a
use which the seller, therefore, need not anticipate and provide for.” Findlay, 265
Or. at 306.
The adequacy of a warning also “ordinarily is a jury question.” Purdy v.
Deere and Co., 311 Or. App. 244, 264 (2011). A warning “should give fair and
adequate notice of the possible consequences of misuse,” and “a warning is adequate
when it is in such a form that it could reasonably be expected to catch the attention
of the reasonably prudent person in the circumstances of its use and the content of
the warning is of such a nature as to be comprehensible to the average user and to
convey a fair indication of the nature and extent of the danger to the mind of a
reasonably prudent person.” Id. (internal quotation marks and citations omitted,
alternations normalized).
In support of its motion, Defendant points to the Oregon Supreme Court’s
decision in Askew v. Howard-Cooper Corp., 263 Or. 184 (1972). In Askew, the
plaintiff was injured while greasing a log-lifting and handling machine called a
“lumberjack.” Askew, 263 Or. at 185-86. The plaintiff was instructed by his
employer to set the lumberjack’s boom to a certain height and then climb ten feet up
to the top of the lumberjack to grease the fittings. Id. at 186. The plaintiff was
injured while climbing back down when he slipped on a hose coupling and fell to the
ground. Id. The plaintiff argued that “the failure to make the fittings accessible
from the ground or to provide some safe means of access to the boom rendered the
machine unreasonably dangerous.” Id. The Oregon Supreme Court held that
“[r]outine servicing is unquestionably within scope of the uses for which a product is
manufactured.” Id. at 187.
However, the record in Askew showed that the fittings could be brought down
far enough that they could be serviced with the assistance of “[a] solid place to
stand, three feet high, like a log, a platform, or short ladder,” which would “have
solved the problem.” Askew, 263 Or. at 187. The trial court granted non-suit and
the Oregon Supreme Court affirmed, observing that the “manufacturer should not
be required to anticipate that the purchaser will direct his employees to follow an
obviously dangerous method of servicing equipment (as the purchaser did in the
present case) when safe methods are readily apparent and available.” Id. With
respect to the plaintiff’s strict liability claim, the court held:
In order to be unreasonably dangerous so as to substantiate strict
liability on the part of the seller, it must be shown that the article sold
must be dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the
ordinary knowledge common to the community as to its characteristics.
It is our belief that, as a matter of law, we can say that the community
would not condemn a machine as unreasonably dangerous which could
be serviced in the manner described and without the necessity of
climbing ten feet off the ground.
Askew, 263 Or. at 188.
Here, Defendants contend that they should not be held strictly liable for
Plaintiff’s injury when, as in Askew, there was a readily apparently and available
method of servicing the planer and dust hood that did not involve Plaintiff sticking
his hand into the still-running machine—namely that Plaintiff could have simply
turned the planer off before attempting to clear the dust hood. Plaintiff
acknowledged as much in his deposition:
Q: You agree that had you turned it off that the dust hood could have
been serviced in a perfectly safe manner?
A: I agree.
Def. Mot. Ex. A, at 443; and
Q: And the reason you told Grizzly that “I’m aware of operator error on
my part” is that you knew that you had made a mistake?
A: I should have turned the machine off. I did not know the hood
would flex enough to catch the blade.
Def. Mot. Ex. A, at 42.
With respect to the warnings, the planer’s safety instructions advise that the
user must “[a]lways disconnect machine from power supply before servicing,
adjusting, or changing cutting tools.” Def. Mot. Ex. C, at 10. It is not disputed that
Plaintiff read and understood those warnings, as he acknowledged in his deposition:
Q: And you see where it says, “Disconnecting power supply. Always
disconnect machine from power supply before servicing, adjusting or
changing the cutting tools.”
A: Yes.
Q: Do you see that? Were you aware of that warning?
A: Yes.
Def. Mot. Ex. A, at 26; and
Q: You do agree that the warnings that were given by Grizzly on the
manual and on the label itself warned to turn off the power when
servicing, adjusting, or performing maintenance?
A: Yes.
Q: An that’s clear and unambiguous that you should have turned the
machine off, and that’s why you told Grizzly there was operator error;
correct?
A: Yes.
Q: So you agree that you violated the warnings, instructions in the
manual and on the planer?
A: Yes. I should have turned the machine off.
Def. Mot. Ex. A, at 44-45.
Although Plaintiff disputes whether he was “servicing” the planer at the time
of his injury, in his deposition, Plaintiff testified:
Q: And you understood that servicing meant doing anything to fix it?
A: Yes.
Def. Mot. Ex. A, at 26; and
Q: And you were in the process of fixing the machine, not operating it;
correct?
A: Correct.
Q: And that’s what you meant by, “I’m aware of operator error on my
part?”
A: Yes.
Def. Mot. Ex. A, at 41.
In sum, Plaintiff acknowledged in his deposition that, by reaching into the
planer while it was running, he acted contrary to the warnings that accompany the
planer; contrary to his own training; and contrary to his own prior practice in using
the planer. This case is an even clearer instance of misuse than Askew because,
unlike that case, Plaintiff did not need to rely on the aid of some additional piece of
equipment like a stepladder to safely service the planer and dust hood—he could
have simply turned the machine off.
Considering the record, and in particular Plaintiff’s own admissions, the
Court concludes that no reasonable jury could find that Plaintiff’s injury was caused
by anything other than his own abnormal use of the planer. Defendant is therefore
entitled to summary judgment.
CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment,
ECF No. 15, is GRANTED. Final judgment shall be entered accordingly and all other
pending motions are denied as MOOT.
It is so ORDERED and DATED this _1_9_t_h_ day of October 2023
/s/Ann Aiken
ANN AIKEN
United States District Judge