LENA CACEVIC V SIMPLEMATIC ENGINEERING CO
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STATE OF MICHIGAN
COURT OF APPEALS
LENA CACEVIC and NUO CACEVIC,
FOR PUBLICATION
December 14, 2001
9:00 a.m.
Plaintiff-Appellant,
v
No. 207154
Oakland Circuit Court
LC No. 94-487081-NP
ON REMAND
Updated Copy
March 1, 2002
SIMPLIMATIC ENGINEERING COMPANY,
Defendant-Appellee.
Before: Jansen, P.J., and Hood and Wilder, JJ.
WILDER, J.
In this products liability case, we previously reversed a jury verdict of no cause of action
and remanded for a new trial.1 In lieu of granting leave to appeal, the Supreme Court vacated
footnote 2 of our previous opinion and remanded to us so that we could consider "defendant's
argument that the judgment in its favor should be affirmed because it was entitled to a directed
verdict." Cacevic v Simpl[i]matic Engineering Co, 463 Mich 997 (2001).2 After considering
this issue, we again reverse and remand for a new trial.
I. Facts and Proceedings
As stated in our previous opinion:
Plaintiff Lena Cacevic worked as a palletizer operator at Johnson Controls'
Novi plant. While working the night shift on September 3, 1993, Lena sustained
1
Cacevic v Simplimatic Engineering Co, 241 Mich App 717, 730-731; 617 NW2d 386 (2000).
2
In our original opinion, we relied on Beaudrie v Anchor Packing Co, 231 Mich App 242, 254, n
6; 586 NW2d 96 (1998), and Barnell v Taubman Co, Inc, 203 Mich App 110, 123; 512 NW2d 13
(1993), to hold that defendant had not properly preserved for appellate review the trial court's
denial of its motion for a directed verdict; therefore, we declined to consider the claim.
However, the Supreme Court indicated that pursuant to Middlebrooks v Wayne Co, 446 Mich
151, 166, n 41; 521 NW2d 774 (1994), defendant was "not required to file a cross-appeal to
advance arguments in support of a judgment on appeal that were rejected by the lower court."
Cacevic, supra, 463 Mich 997.
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serious injuries to her right hand and arm when she reached inside the palletizer[3]
machine to free a pallet that became stuck in the elevator component of the
3
Our previous opinion described the palletizer mechanism and operation as follows:
The product at issue in this case is a Simplimatic Model 40 palletizer, a
large, two-story machine that stacks eight layers of empty, plastic, soft drink
bottles on wooden pallets that are wrapped for delivery to major soft drink
companies. The palletizer was originally built by defendant in 1984 and
subsequently sold to Hoover Universal in Taylor, Michigan. In 1989, Johnson
Controls bought Hoover's bottling operations and the palletizer was relocated to
Johnson Controls' Novi Plant.
The palletizer consists of two levels and four major components: (1) an
intake palletizer dispenser and conveyor, (2) a hoist or elevator, (3) an
accumulator bed, and (4) an exit conveyor that releases the full pallets. The
palletizing process begins with a wooden pallet being automatically placed on an
intake conveyor and carried to the elevator shaft where it stops and waits for
clearance to enter the elevator. Clearance is determined by photo cells that sense
when full pallets exit the elevator and when empty pallets may enter. The empty
pallet automatically moves forward into the elevator and is carried up about
fifteen feet by hoist chains to the upper level where an accumulator bed gathers
the bottles and then sweeps them onto the pallet. As each empty pallet is loaded
with bottles into the elevator, another empty pallet enters the intake dispenser and
is conveyed to the elevator where photo cells signal the machine to wait for the
full pallet to leave the elevator before allowing the empty pallet to enter.
During normal use, the palletizer's operator stands on a platform at the
upper level near the moving accumulator bed where bottles coming down the
assembly line are released. When a certain number of bottles have been collected,
the operator presses a button to load them all onto an empty pallet that has been
carried to the top of the machine by the elevator. As each layer of bottles is
loaded, the elevator moves down just enough so that the tops of the bottles are
even with the accumulator bed. The operator then places a "tier sheet" on top of
the bottles to form a "floor" on which the next layer is placed. The operator
repeats this process until there are eight layers of bottles on the pallet. When the
pallet is fully loaded, the operator presses another button, lowering the elevator to
ground level where the full pallet rests on a set of conveyor chains which slowly
move the pallet out the discharge side of the elevator shaft. Once the full pallet is
discharged, it is automatically transported to a wrapping area.
Most of the operation of the palletizer is automatic, but there are certain
functions that an operator is required to perform to keep the machine running.
Generally, an operator is only required at the upper level of the machine;
however, on occasion, when a pellet gets jammed in the elevator, the operator or
another employee must run down to the lower level to clear the jam before
(continued…)
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machine. Lena tried to clear the jam by inserting her right hand and arm under a
mesh guard into the pallet infeed opening to reach for the empty pallet and
remove it from the machine. As Lena did this, the elevator raised the pallet,
striking her hand and arm.
Plaintiffs filed the instant action against defendant Simplimatic
Engineering Company, the manufacturer of the palletizer machine, alleging that
defendant negligently designed and manufactured the palletizer by failing to
include adequate and proper safeguards, provide adequate and proper instructions,
devices, or methods to operate the machine, and provide adequate and proper
warning of both the inherently dangerous areas of the machine and the dangers in
operating the machine. [Cacevic v Simplimatic Engineering Co, 241 Mich App
717, 718-719; 617 NW2d 386 (2000).]
While not mentioned in our previous opinion, we note that during plaintiffs' case in chief,
Evido Edwards was called to testify. He testified that on the evening of Lena's injury, he was
temporarily operating the palletizer for Lena while she was taking a break.4 During this time, the
machine jammed. Edwards also testified that he observed Lena returning from her break and
asked her to help him fix the problem. According to Edwards, he asked Lena to walk around to
the back of the machine and push the empty pallet further into the elevator shaft so the elevator
would take the pallet up and he could continue putting bottles on it. Edwards then testified that
as soon as Lena reached inside the machine she dropped to her knees, at which time he ran over
and observed a gash across the top of Lena's right arm and called management to the scene.
Thereafter, Lena was transported to the hospital.
Lena testified that she had been trained on the palletizer within her first few days of
employment and that even though she felt it was the most difficult job in the plant, by the time
her ninety-day probationary period had ended, she was able to successfully operate the machine.
She also testified that she had not been given any instructions or training on lockout procedures
for the machine, nor had she been given an operator or maintenance manual to review.
According to Lena, the only way she knew to turn off the machine was by pressing the green
stop button, but that every time she used that button to shut off the machine, the line leader
would yell at her and instruct her not to turn off the machine. In addition, Lena admitted that
during the course of her training she had been advised to turn off the machine before entering the
elevator shaft, but also testified that, despite this advice, the management at Johnson Controls
(…continued)
resuming normal operations. The palletizer is equipped with normal "on/off"
controls, as well as three emergency stop buttons and a master electrical control
panel with a lockable disconnect that completely isolates the machine from the
electrical mains. [Cacevic, supra, 241 Mich App 719-721.]
4
His primary assignment was as a sideall machine operator. A sideall machine forms twenty
ounce plastic bottles out of test-tube-shaped material and then sends the bottles through the
labeler and up to the palletizer. There is no dispute that Edwards knew how to operate the
palletizer.
-3-
discouraged turning off equipment to clear jams because this would back up the production line.
She also testified that she had observed her supervisor and other employees reach inside the
palletizer to clear jams and that, as far as she was aware, this was the only method of remedying
a jam. Further, Lena testified that that there was no warning label instructing her not to enter the
elevator shaft.
Plaintiffs also called Linda Long, Dr. Robert Cunitz, and Paul Glasgow to testify
regarding the design and safety features of the palletizer.
Long, a safety officer with the Department of Consumer and Industry Services testified
that she conducted an investigation of the accident and, as a result of this investigation, she
opined that the protective device, placed in front of the elevator opening, was inadequate to
guard the area in which Lena placed her arm. In fact, according to Long, she believed that
because of the size of the guard, instead of serving as protection, it actually created a hazardous
condition. Long also testified that her investigation revealed that there was a workable, usable
lockout device on the palletizer at the time of Lena's injury but that only the maintenance people,
and not the machine operators, were instructed on how to use the lockout. Long further testified
that because it was common for conveying systems to finish the last stroke of production by the
machine's residual pressure, simply pressing the emergency stop button on the palletizer would
not remove all the hazards associated with the machine. Finally, Long testified that the warning
labels placed on the palletizer merely warned of potential hazards without removing any dangers
and thus did not protect operators of the machine.
In addition, Dr. Cunitz, a human factor psychologist,5 testified that after reviewing all the
relevant testimony, documents, and exhibits in this case, he believed the palletizer machine, as
designed by defendant, was unreasonably dangerous and defective and that such dangers and
defects were a substantial cause of Lena's injuries. Specifically, Dr. Cunitz testified that the
palletizer could not clear its own jams or pick up fallen bottles and that the human operator had
to perform these tasks, a fact reasonably foreseeable to the manufacturer at the time the machine
was designed. Because the human operator had to clear jams and remove fallen bottles, it was
necessary for the operator to be exposed to a "pinch-point hazard" during the normal use of the
machine. Dr. Cunitz described this pinch-point hazard as the approximate six-inch opening
above the wooden pallet that "closes rapidly as the hoist raises the pallet up." Dr. Cunitz
testified that it was reasonably foreseeable that because the pinch point was essentially
unguarded and easily reachable by somebody trying to clear a jam or retrieve a fallen bottle, the
machine was unreasonably dangerous. He also testified that the warning label6 on the machine
5
A human factor psychologist is a specialty area within the field of psychology, concerning itself
with human interactions with products. Dr. Cunitz focused his work on safety-related issues in
the workplace, i.e., reviewing injuries and deaths associated with the use of various products and
assessing how such injuries could be prevented.
6
The warning label read:
Caution. This machine starts automatically. Must turn off main electrical
switch and air supply before performing any work.
-4-
was inadequate and that, because of the potential for permanent injury or death associated with
the machine, there should have been a "danger" sign.
Dr. Cunitz also opined that Lena's conduct in assisting Edwards on the night in question
was reasonable and that her actions of reaching inside the machine to clear a pallet jam was
foreseeable to the manufacturer at the time the machine was designed and manufactured.
Specifically, Dr. Cunitz testified that the existence of the small mesh guard placed in front of the
pinch point established that defendant was cognizant of the danger associated with the pinch
point. With respect to this guard, Dr. Cunitz testified that because of its size it was inadequate
protection, noting that an employee could easily reach around the guard. Instead, Dr. Cunitz
testified that the Plexiglass guard that had been placed on the machine after Lena's injury was in
a much better position to protect the operators and would have, in his opinion, prevented Lena's
injuries.
Glasgow, a safety and design engineer, as well as president and chief operating officer of
Glasgow Products, Inc., also corroborated the testimony of Long and Dr. Cunitz. He testified
that the mesh guard provided by defendant was "totally inadequate" because it did not conform
to the safe distance aspect of guarding, meaning that the guard was not positioned in such a way
that it would prevent a person from placing a hand through the opening into the hazardous area
of the palletizer. On the basis of his examination of the equipment, Glasgow testified that
because there was no adequate, protective guarding in place when Lena's accident occurred, the
palletizer did not conform to the American National Standards Institute Committee (ANSI)
standards for guarding that existed at the time the palletizer was designed and that defendant did
not use reasonable and diligent care to eliminate a reasonably foreseeable risk of harm (i.e.,
injuring a hand while trying to clear a jam). He also noted during his testimony that at the time
of his investigation, the original mesh guard had been replaced with a Plexiglass guard with an
interlock switch, so that, if the guard was opened, the palletizer would automatically stop
operating. According to Glasgow, the interlock switch was a standard design procedure used in
most machinery to prevent injuries from foreseeable dangerous conditions and that this
procedure had been known and used long before the palletizer was designed and manufactured
by defendant.7 Hence, he concluded that the palletizer was negligently designed and
manufactured.
Plaintiffs also called Paul Smith, defendant's manager of machinery engineering. He
testified that he had observed the Plexiglass guard installed after Lena's injury and admitted that
it was both economically and technically feasible to install this guard on the palletizer at the time
of design and manufacture. Specifically, he indicated that the Plexiglass guard could have been
installed on the machine for a cost of less than $1,000 and that the palletizer sold for $64,000.8
At the close of plaintiffs' case, defendant moved for a directed verdict, arguing that
plaintiffs had not shown that the design of the machine was the proximate cause of Lena's
injuries and therefore plaintiffs failed to establish a prima facie case of design defect liability
7
Dr. Cunitz also testified that the Plexiglass guard was equipped with an interlock switch.
8
Smith also testified that the entire system would have sold for about $152,000.
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Alternatively, defendant argued that the open and obvious danger rule proscribes plaintiffs from
recovering in the instant case. In denying defendant's motion based on these two issues, the trial
court stated:
I'm going to find that looking at the evidence in a light most favorable to
the Plaintiff having to do with the lack of proximate cause issue that—and the
evidence in the light favorable to the Plaintiff, I'll deny that portion of your
motion.
On the open and obvious argument, also for the same reason, I'll deny that.
Defendant also sought a directed verdict on the basis of plaintiffs' inability to establish an
unreasonable risk associated with the palletizer. Again, the trial court denied the motion on this
ground because it found that, viewing the evidence in the light most favorable to the plaintiffs,
there was evidence presented sufficient to allow a jury to find that the risk associated with the
palletizer was unreasonable.
II. Standard of Review
This Court reviews de novo the grant or denial of a directed verdict. Meagher v Wayne
State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997). In reviewing the trial court's
decision, we view the evidence presented up to the time of the motion in the light most favorable
to the nonmoving party, granting that party every reasonable inference, and resolving any
conflict in the evidence in that party's favor to decide whether a question of fact existed. Thomas
v McGinnis, 239 Mich App 636, 643-644; 609 NW2d 222 (2000). A directed verdict is
appropriately granted only when no factual questions exist on which reasonable jurors could
differ. Meagher, supra at 708. If reasonable jurors could reach conclusions different than this
Court, then this Court's judgment should not be substituted for the judgment of the jury. Wickens
v Oakwood Healthcare System, 242 Mich App 385, 389; 619 NW2d 7 (2000).
III. Analysis
"A manufacturer has a duty to 'eliminate any unreasonable risk of foreseeable injury.'"
Bazinau v Mackinac Island Carriage Tours, 233 Mich App 743, 757; 593 NW2d 219 (1999),
quoting Prentis v Yale Mfg Co, 421 Mich 670, 693; 365 NW2d 176 (1984). See also Mallard v
Hoffinger Industries, Inc (On Remand), 222 Mich App 137, 141; 564 NW2d 74 (1997), and
Ghrist v Chrysler Corp, 451 Mich 242, 248; 547 NW2d 272 (1996). In addition,
"[a] prima facie case of a design defect premised upon the omission of a safety
device requires first a showing of the magnitude of foreseeable risks, including
the likelihood of occurrence of the type of accident precipitating the need for the
safety device and the severity of injuries sustainable from such an accident. It
secondly requires a showing of alternative safety devices and whether those
devices would have been effective as a reasonable means of minimizing the
foreseeable risk of danger. This latter showing may entail an evaluation of the
alternative design in terms of its additional utility as a safety measure and its
trade-offs against the costs and effective use of the product." [Bazinau, supra at
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757-758, quoting Reeves v Cincinnati, Inc, 176 Mich App 181, 187-188; 439
NW2d 326 (1989) (emphasis added in Bazinau).]
See also Prentis, supra at 687, n 24; Owens v Allis-Chalmers Corp, 414 Mich 413, 418; 326
NW2d 372 (1982).
In the instant case, we note that Dr. Cunitz testified that the palletizer, as designed, was
unable to clear its own jams or pick up fallen bottles and that therefore it was the responsibility
of the operator to complete these tasks. He also testified that because an operator would have to
place hands in the machine in order to clear a jam—coming into contact with the "pinch-point"
hazard—it was reasonably foreseeable that somebody trying to clear a jam or retrieve a fallen
bottle could potentially suffer a permanent injury or death. Further, Dr. Cunitz testified that
because defendant had placed a mesh guard on the machine, albeit an ineffective one, defendant
was cognizant of the magnitude of this risk. Glascow's testimony corroborated that of Dr.
Cunitz, because Glasgow testified, among other things, that the mesh guard was "totally
inadequate," that the palletizer violated ANSI standards, and that defendant did not use
reasonable and diligent care to eliminate a reasonably foreseeable risk of harm. Similarly, Long
testified with regard to the inadequacy of the guard designed by defendant. Viewing this
testimony in the light most favorable to the plaintiffs, Thomas, supra, it is apparent that
reasonable jurors could have determined that defendant was aware of the magnitude of
foreseeable risks associated with the palletizer. Wickens, supra; Bazinau, supra.
Additionally, Dr. Cunitz testified that an alternative Plexiglass guard had been installed
on the palletizer after Lena's injury and that this guard would have prevented Lena's injuries.
This, coupled with Glasgow's testimony that an interlock switch had been added to the palletizer,
indicated that there were alternative safety devices available to defendant at the time of
manufacture that would have effectively prevented Lena's injury. Further, Smith testified that
the Plexiglass guard was both economically and technically feasible at the time of design. This
evidence established that an economical, reasonable, alternative safety device was available to
defendant at the time it designed and manufactured the palletizer. Therefore, when viewed in the
light most favorable to plaintiffs, this evidence was sufficient for a jury to determine that
alternative safety devices were available to defendant that would have effectively minimized the
risk of injury to Lena. Thomas, supra; Bazinau, supra.
Because plaintiffs established the magnitude of foreseeable risks and that the alternative
safety device was economically feasible and effective in minimizing the risk of injury, plaintiffs
established a prima facie case of design defect. Thus, the trial court correctly denied defendant's
motion for a directed verdict.9
9
With regard to defendant's open and obvious danger argument in the trial court, our previous
opinion stated that because "we find no legal authority to support defendant's position that the
open and obvious danger doctrine should be extended to cases alleging design defects involving
nonsimple products, the doctrine is inapplicable in this case." Cacevic, supra, 241 Mich App
729. See also id. at 725, 729, n 1. This holding was not disturbed by the Supreme Court's
remand order. Cacevic, supra, 463 Mich 997. Accordingly, we find our previous opinion to be
(continued…)
-7-
IV. Conclusion
In sum, we conclude that the trial court correctly denied defendant's motion for a directed
verdict. Because we find that defendant was not entitled to a directed verdict, the jury's
judgment in its favor was not harmless. Therefore, we again find it necessary to reverse the
judgment in favor of defendant and remand for a new trial.
Reversed and remanded for further proceedings consistent with this opinion and our
previous opinion, Cacevic, supra, 241 Mich App 717. We do not retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Kathleen Jansen
/s/ Harold Hood
(…continued)
controlling and conclude that because the open and obvious danger doctrine does not apply in
design defect cases, Cacevic, supra, 241 Mich App 725, the trial court correctly denied
defendant's directed verdict motion based on the open and obvious danger doctrine.
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