Pariseau v. Wedge Products, Inc.

Douglas, J.,

dissenting. This case and the votes of“ the individual members of this court present a graphic example of how reasonable minds, with firmly held beliefs but with no propensity to arrive at a preconceived result, can differ when viewing the same set of facts. This does not, necessarily, make any one of us pro-claimant and anti-company or pro-company and anti-claimant. Only those who seek to place labels on us, for their own purposes, come to such conclusions. What our differences do mean is that we have individually and thoroughly reviewed a record and have come to differing conclusions. Such is the case at bar.

I concur in the well-reasoned dissent of Justice Locher. In addition to the facts recited in the concurring opinion of Justice Holmes and the dissenting opinion of Justice Locher, I would add the following.

The majority opinion refers to “a former supervisor of maintenance” at *134 appellant company. The reference is to Lawrence Searl, who was appellant’s superintendent of maintenance from 1976 to March 1977. During this period, Searl was responsible for the repair and maintenance of appellant’s presses, including the 2/11 press involved in this case. Searl’s largely uncontradicted testimony is pertinent because he had a full and complete knowledge of this particular press and the fact that appellant’s management was fully familiar with the repeating problems of the press.

Searl testified that during his employment with appellant, he had received complaints from workers that the 2/11 press was repeating; that he constantly had problems keeping the brakes on the 2/11 in safe working condition; that the brakes would heat up after approximately two hours of operation; that when the brakes got hot, the press would repeat; and that he had advised both John Barrett, the plant manager, and Tony DiFino, the owner of appellant company, that the brakes on the 2/11 were unsafe. Searl testified that he had told Barrett and DiFino that the 2/11 should be equipped with air brakes and clutch and an anti-repeat system; that Searl was told to determine the cost of these improvements; that he did so and the estimated cost was between $17,000 and $19,000; that DiFino did not want to spend that much money on the 2/11; that the 2/11 was not improved or replaced; and that even though employees continued to complain that the 2/11 was repeating, no changes were made in the press.

Searl further testified that in July 1976 an employee by the name of Adams suffered the amputation of three fingers of his hand when the brakes on the 2/11 press failed and the press repeated; that Searl renewed his efforts to have appellant replace the brakes and clutch but, despite his efforts, the work was never done; that Searl left his employment with appellant in March 1977; that he became employed by a press repair company and as part of that employment was sent to appellant company to repair the 2/11 press; and that he again recommended that the brakes on the 2/11 be replaced.

Subsequently, on October 23,' 1978, appellee was operating the 2/11 press in appellant’s plant. The jury, as gleaned from the answers to the interrogatories, found that the press repeated causing the crushing of appellee’s right hand, the amputation of three fingers, the partial amputation of his index finger and multiple fractures of his thumb. Despite the continued complaints of employees that the press was repeating, the prior injury to Adams on the same press, the numerous warnings from appellant’s maintenance superintendent and the knowledge of the problems by management, including the owner of the company, no changes were made to the press. On the night of appellee's injury, another employee, Paulette Knocker, was assigned to run the 2/11 press. While she was operating the press, it repeated on two occasions. She told George Miller, the foreman, that the machine had repeated. He told her: “You are crazy. It doesn’t repeat.” She refused to operate the press any longer. When she was assigned to another machine, she left behind, on the 2/11, a wooden stick she had been using to knock parts out of the 2/11. When Miller assigned appellee, an employee of some three weeks’ duration, to run the 2/11 — a press appellee had never run before — Krocker objected, again telling Miller that the machine had repeated on her.

As appellee approached the 2/11, he saw a piece of wood on the machine. *135 Appellee asked Miller what the wood was for and Miller threw the wood aside, telling appellee he would not need it. This was the stick that Krocker had been using to knock parts out of the 2/11. In addition to all this, the record shows that Miller knew that another employee had lost the fingers on his right hand in 1976 while working on the 2/11.

Notwithstanding this background, appellee Pariseau was assigned to the 2/11 without any warning about the previous problems with the press. Appellee ran the 2/11 until, on the very last piece, as he reached in to catch the falling part, the press repeated and his hand, his- livelihood and his very life were smashed.

Was there substantial certainty here that harm would occur? It is obvious that two court of appeals judges out of three and three justices of this court out of seven have found enough in the record to warrant upholding the jury’s verdict. The jury heard the evidence, viewed the witnesses and rendered a verdict. That verdict should not be so lightly set aside. In addition, it would seem that the case fits perfectly into the three-part test referenced in the concurring opinion herein and in Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St. 3d 100 , 522 N.E. 2d 489 , paragraph five of the syllabus.

I would invite those who would deprive persons such as appellee of their right to sue for their injuries to read the record in this case. I have! Accordingly, I dissent.