COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68535 JAMES LASSITER : : Plaintiff-Appellant : : JOURNAL ENTRY -vs- : AND : OPINION MACKWORTH G. REES CO., ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 19, 1995 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CV-247410 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: JOHN C. MEROS Schulman, Schulman & Meros 1700 Standard Building 1370 Ontario Street Cleveland, Ohio For Defendants-Appellees, Allied Electric Co., Inc.: LARRY C. GREATHOUSE (#0008513) Quandt, Giffels and Buck Co., L.P.A. 800 Leader Building Cleveland, Ohio 44113 Also listed: JOHN W. OURS 2500 Terminal Tower Cleveland, Ohio 44113 - 2 - LEO M. SPELLACY, P.J.: Plaintiff-appellant James Lassiter ("appellant") appeals the grant of defendant-appellee Allied Electric Company's motion for summary judgment on a product liability action sounding in negligence. Appellant assigns the following error for review: THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF PLAINTIFF-APPELLANT IN GRANTING SUMMARY JUDGMENT TO DEFENDANT-APPELLEE ALLIED ELECTRIC COMPANY. Finding the assignment of error to have merit, the judgment of the trial court is reversed. I. On February 15, 1991, appellant reported to work at Viking Caulking Gun Company in Cleveland and was told to operate a power press manufactured by the Federal Press Company. Although employed at Viking since 1989, appellant had never before worked on that press. He had observed another employee use the machine for approximately a week. Appellant observed that the safety cage which covered the single palm button activation system had been removed from the press. Viking's policy was that no press was to be operated without a safety guard. Appellant informed his supervisor about the guard and was told to forget it and keep working and hurry to complete the work. Appellant successfully operated the press until midmorning. A metal bar, which was to be cut and stamped by the press, bent - 3 - upwards. As appellant reached in to correct the problem, the press cycled causing the ram of the press to lower, amputating three of appellant's fingers. The press was manufactured in 1952 and originally was operated by means of a foot treadle. Sometime after 1970, the machine was modified so that the method of activation was changed from the foot treadle to a single palm button located twenty-nine and one-half inches from the base of the machine on the right side. The palm button was approximately at the same height as the operator's hip. Allied denied it was responsible for modifying the press. Both Allied and Viking are owned by Leonard Stratton. Viking was purchased by Stratton in 1968. Any electrical work performed at Viking after that point would have been done by Allied. The palm button was manufactured in 1970. Appellant brought suit against various defendants of which all but Allied are no longer a party in the action. Allied filed a motion for summary judgment in which it asserted it was not a supplier pursuant to the definition set forth in R.C. 2307.71 (O)(1)(b), which is found in the revised code chapter governing products liability. Allied further argued that, even if it was found to be a supplier, it was not negligent. The trial court granted the motion. - 4 - II. In its assignment of error, appellant contends the trial court erred in granting Allied's motion for summary judgment. Appellant asserts Allied is a supplier as defined by R.C. 2307.71(O)(1)(b) as it maintained and repaired Viking's presses. The appellant argues this activity constituted a course of business, bringing Allied within the definition of the statute. This case was disposed of by summary judgment. Civ.R. 56(C) provides that summary judgment is proper if the trial court determines that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one con- clusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. Sum- mary judgment is a procedural device designed to terminate litiga- tion and to avoid a formal trial where there is nothing to try. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1. Summary judgment is not appropriate where the facts are subject to reason- able dispute when viewed in a light favorable to the nonmoving party. Mers v. Dispatch Printing Co. (1985), 19 Ohio St.3d 100, 104. It should be awarded with caution only after doubts are resolved and evidence construed in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356. The nonmoving - 5 - party must produce evidence on any issue for which that party bears the burden of production at trial. Wing v. Anchor Media Ltd. of Texas (1991), 59 Ohio St.3d 108, paragraph three of the syllabus. R.C. 2307.71 is the definitional section of the revised code governing products liability. A supplier is defined at R.C. 2307.71(O)(1) as: (a) A person that, in the course of a business conducted for the purpose, sells, distributes, leases, prepares, blends, packages, labels or otherwise participates in the placing of a product in the stream of commerce; (b) A person that, in the course of a business conducted for the purpose, installs, repairs, or maintains any aspect of a product that allegedly causes harm. Appellant argues Allied fits the definition of a supplier under R.C. 2307.71(O)(1)(b) as it installed and/or maintained the single palm button. Appellant points out Allied serviced the presses for Viking and would have performed the modification. Appellant relies on testimony from Stratton in which he stated Allied did the electrical work needed at Viking after he purchased Viking in 1968. As the palm button was manufactured in 1970, appellant infers Allied must have installed the activation system in the press. Allied asserts it is not a supplier as it is not in the business of converting activation mechanisms of power press machines but installs lighting, building wiring, and other specialty applications in the commercial setting. Allied argues, if it performed the work, it must have done so pursuant to a - 6 - business conducted for that purpose to come within the purview of the statute. Allied further argues that even if it did modify the press, it did so as a provider of professional services and, as such, is not a supplier. Under R.C. 2307.71(O)(2)(c), a supplier does not include: A provider of professional services who, incidental to a professional transaction the essence of which is the furnishing of judgment, skill, or services, sells or uses a product. Allied states it would be such a provider as it would have fur- nished only its electrical skills and services to Viking at the request of Viking. The record indicates Allied would have performed the work done to modify the activation system of the press in question. Stratton and one of his employees admitted this during their depositions. Allied has been responsible for all work done at Viking since 1968. Although Viking and Allied share the same owner, the two are separate companies. Therefore, it is unlikely Allied performed the electrical work without some form of compensation. As such it was part of Allied's course of business to do the electrical work for Viking. The date of manufacture of the palm button is after Stratton purchased Viking. Stratton stated Allied would have done the installation of the palm button after 1968. Allied did not just furnish its skills and services, but, by the admission of its - 7 - owner, would have installed the button. Therefore, Allied is a supplier as defined by R.C. 2307.71(O)(1)(b). As a supplier, Allied is not liable for compensatory damages unless it is found to be negligent and that its negligence was a proximate cause of the harm caused by the product. R.C. 2307.78. In order to defeat a motion for summary judgment in a negligence action, the plaintiff must identify a duty owed him by the defendant. Keister v. Park Centre Lanes (1981), 3 Ohio App.3d 19. This evidence, construed most strongly in the plaintiff's favor, must be sufficient to allow reasonable minds to infer that a specific duty was breached; that the breach was the proximate cause of plaintiff's injury; and that the plaintiff was injured. Id. Usually, a duty exists when the injury to one in the plaintiff's position is foreseeable. This occurs when the injured person comes within the circle of those to whom injury may reasonably be anticipated. There must be an obligation of care or caution. Jeffers v. Olexo (1989), 43 Ohio St.3d 140, 142. Once a duty is shown to have existed, a breach of that duty must be the proximate cause of the plaintiff's injury. A person is not liable for proximately causing an injury if, under all the circumstances, he di prudent person, could not have foreseen the consequences of his alleged negligent acts. Id., syllabus. Appellant's position is that the installation of the single palm button method of activation was a negligent act as it constituted an unreasonable risk of harm to the operator. - 8 - Appellant argues the press should have been outfitted with a dual palm button system which would have negated any chance of the press being accidentally activated. In Prentiss v. Kirtz (1977), 54 Ohio App.2d 56, the plaintiff had four fingers amputated while operating a grinding machine. The plaintiff argued the machine was negligently designed as it was not equipped with proper safety devices. The court held: Where a grinding machine or a press, in its operation, requires the operator to have his hands near the cutting or grinding process, where a single start-button system creates a risk of injury to the operator by being acci- dentally bumped, and a different design or other protective device can avoid such risk or harm, the manufacturer is liable to the opera- tor injured as a proximate result of its fail- ure to exercise reasonable care by adopting such defective design. Id. at 58. Prentiss differs from the instant case as the machine in Prentiss was not equipped with a safety cage or guard. The press here did have a safety guard which most likely would have prevented the accident if it had been in place. The record does not reflect whether the safety guard was installed at the same time as the single palm button or added later. The removal of the guard may represent an intervening act breaking the causal connection between Allied and appellant. Whether an intervening act breaks the causal connection between negligence and injury, thus relieving one of liability for his negligence, depends upon whether that intervening cause was a conscious and responsible agency which could or should have eliminated the hazard, and whether the intervening cause was reasonably - 9 - foreseeable by the one who was guilty of negligence. Cascone v. Herb Kay Co. (1983), 6 Ohio St.3d 155, paragraph one of the syllabus. The existence of intervening and superseding causes of injury can be a defense to a negligence action and generally is a factual question to be answered by the trier of fact. Leibreich v. A.J. Refrigeration, Inc. (1993), 67 Ohio St.3d 266, 269. The injury to the operator of the power press was foreseeable as the user of the machine would most likely be the one who would be injured. Therefore, Allied owed appellant a duty of care. Whether that duty was breached by the use of the single palm system of activation depends on whether the system, as designed and installed, was inherently dangerous. This is a question of fact which is disputed. It is also unclear whether the removal of the safety cage was the proximate cause of appellant's injury or whether the design of the activation system caused the accident. The removal of the cage itself may be an intervening act breaking the causal chain. These questions of fact are material and are in dispute. The resolution of these issues requires a determination by the trier of fact thereby precluding the resolution of the case by summary judgment. Appellant's assignment of error is sustained. Judgment reversed and remanded. - 10 - This cause is reversed and remanded for further proceedings consistent with this Journal Entry and Opinion. It is, therefore, considered that said appellant recover of said appellees his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN DYKE, J. and TIMOTHY E. McMONAGLE, CONCUR. LEO M. SPELLACY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .