Opinion
E030769.
7-10-2003
DAVID REGINALD FLENNORY, Plaintiff and Respondent, v. DYNAMIC FABRICATION, INC., Defendant and Appellant.
Lawrence O. deCoster, for Defendant and Appellant. Kampf, Schiavone & Associates and Randall S. Schiavone, for Plaintiff and Respondent.
Plaintiff David Reginald Flennory was an employee of Manpower, Inc., a temporary employment agency. He was assigned to work at defendant Dynamics manufacturing facility. On September 28, 1998, he severely injured his hand while operating a power press.
In its answer, defendant states that its proper name is Die-Namic Fabrication, Inc. Nevertheless, its counsel refers to it as Dynamic Fabrication, Inc., and we will use that spelling.
Plaintiff Flennory received workers compensation benefits from Manpowers insurance carrier. He also sued Dynamic and Aida Dayton Technologies Corporation, the maker of the press.
The suit against Dynamic was based on Labor Code section 4558. That section allows an employee to sue an employer (as defined in that section) for injury "proximately caused by the employers knowing removal of, or knowing failure to install, a point of operation guard on a power press . . . ." (§ 4558, subd. (b).) The section thus provides an exception to section 3601, which generally provides that employees may not sue their employers for on-the-job injuries. "The obvious legislative intent and purpose in section 4558 is to protect workers from employers who wilfully remove or fail to install appropriate guards on large power tools. Many of these power tools are run by large mechanical motors or hydraulically. [Citation.] These sorts of machines are difficult to stop while they are in their sequence of operation. Without guards, workers are subject to extremely serious injuries. For this reason, the Legislature passed section 4558, subdivision (b), which subjects employers to legal liability for removing guards from powerful machinery where the manufacturer has designed the machine to have a protective guard while in operation." (Ceja v. J. R. Wood, Inc. (1987) 196 Cal. App. 3d 1372, 1377, 242 Cal. Rptr. 531.)
Unless otherwise indicated, all further statutory references are to the Labor Code.
After a court trial, the trial court found the conditions of liability in section 4558 had been proven: "The defendants action in disabling the dual palm buttons, requiring its employee to use the foot pedal and instructing the employee to hold the metal pieces with both hands showed a disregard for the employees [sic] safety. [P] In addition, the evidence establishes that the employer knowingly removed the point of operation guard (disabled the palm buttons) and knowingly failed to install a different type of point of operation guard . . . under conditions which the employer knew created a probability of injury."
The trial court therefore awarded plaintiff medical costs and past wage losses of $ 126,436.99 and general damages of $ 225,000. Manpowers workers compensation carrier filed a lien claim for the benefits it paid in the sum of $ 120,713.68.
By order filed October 2, 2002, plaintiffs motion to augment the record with this document was granted.
Defendant Dynamic appeals, contending that plaintiff failed to show that he came within section 4558. Specifically, Dynamic contends that plaintiff failed to show that it removed a point of operation guard, as required by section 4558, subdivision (a)(5), or that it failed to install a point of operation guard required by the manufacturer, as required by section 4558, subdivision (a)(2). Secondly, defendant Dynamic contends the trial court erred in failing to give it a credit for the workers compensation benefits paid by Manpowers workers compensation insurance carrier. It relies on section 3600, subdivision (b). That section generally provides that an award under section 4558 shall be offset by workers compensation benefits paid.
PLAINTIFFS ALLEGED FAILURE TO COME WITHIN SECTION 4558
The operative portion of section 4558 states: "An employee . . . may bring an action at law for damages against the employer where the employees injury or death is proximately caused by the employers knowing removal of, or knowing failure to install, a point of operation guard on a power press, and this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death." ( § 4558, subd. (b).)
As noted above, defendant alleges plaintiff failed to prove the case fell within the definitions in subdivisions (a)(2) and (a)(5). Subdivision (a)(2) defines "failure to install" to mean "omitting to attach a point of operation guard either provided or required by the manufacturer, when the attachment is required by the manufacturer and made known by him or her to the employer at the time of acquisition, installation, or manufacturer-required modification of the power press." Subdivision (a)(5) defines "removal" to mean "physical removal of a point of operation guard which is either installed by the manufacturer or installed by the employer pursuant to the requirements or instructions of the manufacturer."
A point of operation guard is "any apparatus or device that keeps a workers hands outside the point of operation while operating a power press." (Bingham v. CTS Corp. (1991) 231 Cal. App. 3d 56, 59, 282 Cal. Rptr. 161.) The regulations define guards used on power presses to include point of operation guards and devices. (Cal. Code of Regs., tit. 8, §§ 4206, 4207, 4208.) These include dual control devices. Dual control devices are hand controls which require the operator to place one hand on each control in order to operate the press. (Cal. Code of Regs., tit. 8, § 4211.)
The first issue is whether the evidence supports the conclusion that Dynamic removed a point of operation guard which had been installed by the manufacturer, thereby coming within the definition of section 4558, subdivision (a)(5). The second issue is whether the evidence supports the conclusion that Dynamic failed to install a point of operation guard provided by, or recommended by, the press manufacturer within the meaning of section 4558, subdivision (a)(2).
Dynamics chief executive officer, Carmen Esposito, testified that, at the time of plaintiffs injury, plaintiff was using the press to cut notches in six-inch square blanks by holding a blank with both hands while operating the press with a footswitch. Although the dual palm buttons functioned as a point of operation guard for the AIDA power press used by plaintiff, the use of a footswitch deactivates this safeguard. No other type of operation guard was installed on the press. Mr. Esposito also testified that he did not require a point of operation guard to be installed on the press when a footswitch was used. He felt the press was safe without such a guard. However, the manufacturers manual which accompanied the press states that a point of operation guard had to be used when the press was activated by a footswitch. Mr. Esposito testified he purchased the press with a footswitch installed on it.
"It is very dangerous to control the operation of a press by use of a foot switch. According to our survey, seventy percent of personal accidents were due to misaction of a foot switch. Give your best attention to safety, when the circumstances requires [sic] [you] to use the switch, under the supervision of a [work] leader. It is necessary to provide a press with safety guards so that you are kept free from your hands being injured. It is always required, too, to prevent accidental operation due to carelessness or misuse of such a switch."
A representative of the manufacturer, Toshi Ishiyama, testified, however, that the press was not equipped with a footswitch when it was originally sold because the electrical diagram for the press did not include it, and his notes reflect his opinion that the company installed the footswitch. When a footswitch is used, the dual palm buttons cannot be used.
Mr. Ishiyama testified that, during a safety visit to Dynamic in April 1980, he asked that the footswitch be removed. Since Dynamic refused the modification, he attached a sign to the side of the machine. The sign read: "Warning—According to OSHA, if a footswitch is added, a point of operation guard or device must always be used. For footswitch operation, a key-lock selector switch must be used so that it can be supervised by the employer." At the same time, he modified operation of the switch so that a continuous operation could not be performed.
In 1982, Mr. Ishiyama sent Dynamic a safety guide for press operators. The document informed operators that a fixed point of operation guard was required for operator protection. A document entitled "AIDA Power Press Safeguarding" also states "Never use a foot switch to operate this machine unless a point of operation guard or device is provided and properly maintained." A similar reminder was sent in 1987.
Dynamics shop supervisor, Edward Mendoza, confirmed that there was no point of operation guard installed on the press at the time plaintiff was injured. He also confirmed that plaintiff was instructed to hold the part in place and activate the press with a footswitch. Since Mr. Mendoza decided to use a footswitch, the dual palm buttons were not used for the operation. Although the press could have been operated with the dual palm buttons, it was not set up that way. Plaintiff was merely told to hold the part with both hands, and Mr. Mendoza felt that this instruction was a sufficient point of operation guard. However, he admitted that he was aware that the operation manual for the press stated that a point of operation guard should be used when a foot activated switch was used.
Plaintiffs expert, Donald Berman, testified that the cause of the accident was the failure to use a point of operation guard. He defined a point of operation guard as a piece of equipment which guarantees that the operators hands and arm cannot get into the die area when the press operates. He described a number of point of operation guards which could have been used on the press for the type of order plaintiff was working on.
As noted above, the trial court found that the evidence supported a conclusion that the manufacturer required a point of operation guard when a footswitch was used, and that Dynamic knowingly removed a point of operation guard (the dual palm buttons) by disabling it. Having done so, Dynamic failed to install a different point of operation guard when the footswitch was used.
In our view, this evidence fully supports the trial courts decision that the employer knowingly removed a point of operation guard. The point of operation guard installed by the manufacturer was the dual palm buttons. These buttons kept the operators hands out of the operating area because both hands were required to activate the press. By using a footswitch, the dual palm buttons were deactivated, and no other point of operation guard was installed, even though plaintiffs expert testified that other point of operation guards were feasible. Thus, the effect of using the footswitch was to remove the point of operation guard installed on the press by the manufacturer. This evidence was sufficient to come within the definition of section 4558, subdivision (a)(5).
As noted above, subdivision (a)(2) provides for situations in which the employer fails to install a point of operation guard required by the manufacturer. We first observe that subdivision (b), the operative provision, is stated in the disjunctive. That is, having found that the employer removed a guard, the statutory requirement is met, and no further proof is required.
But even if we consider subdivision (a)(2), the evidence supports the trial courts decision. The evidence was clear that the operating manual provided by the manufacturer to the employer at the time of the original sale, and the materials provided at the time the press was modified in 1980, required the use of a point of operation guard when the footswitch was used. Mr. Ishiyama even posted signs on the machine which so state. Mr. Mendoza was aware of this requirement but nevertheless did not install a point of operation guard for the order plaintiff was working on at the time of injury. As the trial court found, this action showed a disregard for the employees safety and created a probability of serious injury.
On the first issue, Dynamic argues that it did not physically remove a point of operation guard when it disabled the dual palm buttons. It points out that the dual palm buttons were not removed but were merely bypassed by using the selector switch to choose footswitch operation. It contends this was not physical removal within the meaning of the subdivision (a)(5).
We disagree. A key had to be used to change the selector to footswitch operation, and the management clearly knew that using a footswitch required a new point of operation guard because the existing guard (the dual palm buttons) was eliminated. The elimination of a point of operation guard, even temporarily, qualifies as a physical removal of a protective device. "Physical removal, for the purpose of liability under section 4558, means to render a safeguarding apparatus, whether a device or point of operation guard, dysfunctional or unavailable for use by the operator for the particular task assigned." (Bingham v. CTS Corp., supra, 231 Cal. App. 3d 56, 68.)
On the second issue, Dynamic argues that it did not fail to install a point of operation guard required by the manufacturer. It cites section 4558, subdivision (c): "No liability shall arise under this section absent proof that the manufacturer designed, installed, required, or otherwise provided by specification for the attachment of the guards and conveyed knowledge of the same to the employer. Proof of conveyance of this information to the employer by the manufacturer may come from any source." Dynamic argues the manufacturer did not require or specify the point of operation guard. The first argument is nearly frivolous because the manufacturer made it clear that a point of operation guard was required when a footswitch was used. The second argument is that the manufacturer must specify the specific guard to be used. But the evidence established that there is no one type of guard that could be specified for all of the various press operations on different sizes and shapes of metal. The manufacturer designed the press to be used with a point of operation guard consisting of dual palm buttons. Since the press could also be used with a footswitch, the manufacturer merely required that some guard had to be provided when the footswitch was used. Under the evidence, it would be impossible to specify the exact type of guard to be used in that situation. The statute is in the disjunctive: "designed, installed, required, or otherwise provided by specification . . . ." (§ 4558, subd. (c), italics added.) "If any inference can be derived from the evidence that any of these terms can describe the information conveyed to [the employer] by the manufacturer, [the employer] is not relieved from liability under section 4558, subdivision (c)." (Bingham v. CTS Corp., supra , 231 Cal. App. 3d 56, 66.) In the present case, the manufacturer installed a guard (the dual palm buttons) and required another type of guard to be used when a footswitch deactivated the buttons. The requirements of subdivision (c) were met.
A "Safety Guide for Management" states: "Press manufacturers cannot know the use which will be made of a press on a day to day basis. In fact, it is difficult to comprehend the variety of potential applications. Thus, you, as a press user, must determine which dies are going to be installed, the type of material which is going to be used, the method of loading and unloading the press, the types of guards and safety equipment which would be appropriate for your particular job on your particular press. For this reason, it is the employers responsibility to provide adequate point of operation guard and other safety devices on every operation performed on a mechanical power press."
An examination of the cases cited by the parties supports our conclusions. In Swanson v. Matthews Products, Inc. (1985) 175 Cal. App. 3d 901, 221 Cal. Rptr. 84, the trial court granted summary judgment for the employer because none of the employers officers had any knowledge of the manufacturers requirements or specifications. The press had been built in the 1950s and purchased by the employer as a used press in 1982. Plaintiff attempted to show that defendants knowledge of OSHA-required point of operation guards satisfied the knowledge requirement, but the appellate court rejected the contention.
Dynamic cites the case to support the conclusion that guards must be specified by the manufacturer, not by OSHA. But, as discussed above, the manufacturer in this case did specify that a point of operation guard had to be used when a footswitch was used. Even though the sign posted on the press referred to OSHA regulations, the requirement was that of the manufacturer.
Dynamic also argues that the trial court erred in admitting the warning sign because it referred to OSHA regulations. It cites Swansons holding that knowledge of OSHA regulations is irrelevant when the issue is knowledge of the manufacturers requirements. The trial court declined to exclude evidence of the sign at the beginning of trial. Since this was a court trial, we think it clear that the trial court did not abuse its discretion in refusing to exclude the sign at the beginning of the case. The reference to OSHA on the sign did not change the fact that it was a manufacturers warning that was installed by the manufacturers representative at the time he modified the press. Dynamic was simply not found to have violated OSHA regulations, nor were such regulations used to create a liability under section 4558.
Both parties cite Ceja v. J. R. Wood, Inc., supra, 196 Cal. App. 3d 1372. In that case, the court merely held that a hand-held circular saw was not a power press. The parties cite the case for its discussion of the applicable principles of statutory construction, and the legislative purpose quoted above.
In Jones v. Keppeler (1991) 228 Cal. App. 3d 705, 279 Cal. Rptr. 168, a summary judgment in favor of the employer was affirmed by the appellate court on grounds that plaintiff had not shown that the manufacturer of the press conveyed information about a point of operation guard. In that case, the press had been modified to add a dual hand control system but the court held that the modification did not make the modifying company a manufacturer of the press. Dynamic cites the discussion of the Legislative intent, specifically that the legislation was "intended to provide relief only for a specific portion of . . . workers whose employer knowingly failed to install or removed guards from a machine where the original manufacturer designed the machine to have a protective guard while in operation."
Dynamic relies on Award Metals, Inc. v. Superior Court (1991) 228 Cal. App. 3d 1128, 279 Cal. Rptr. 459. In that case, the appellate court held that the trial court erred in overruling demurrers to certain causes of action not based on section 4558. The court held "that the employee is not permitted to bring an action at law on a cause of action that requires a lesser showing than that prescribed in Labor Code section 4558." (Award Metals, Inc., at p. 1131.) Dynamic cites the courts statement that "the employee must therefore prove that the manufacturer made some provision for attachment of the guards and conveyed knowledge of these specifications to the employer. [Citations.]" (Id. at p. 1134.) But, as the court goes on to state that the statute applies "where the employer has been expressly informed by the manufacturer that a point of operation guard is required, where the employer then affirmatively removes or fails to install such guard, and where the employer does so under conditions known by the employer to create a probability of serious injury or death." (Ibid.) These conditions were met in the present case: the manufacturer told Dynamic that a point of operation guard was required when a footswitch was used and Dynamic failed to install such a guard. Award Metals does not aid Dynamics argument.
Plaintiff relies on Bingham v. CTS Corp., supra, 231 Cal. App. 3d 56. Bingham held that "the term point of operation guard as used in Labor Code section 4558 includes any apparatus or device that keeps a workers hands outside the point of operation while operating a power press." (Id. at p. 59, fn. omitted.) In reaching this conclusion, the court applied the definitions in the California Code of Regulations to assist it in ascertaining the meaning of the term "guard," since that term is not defined in section 4558. (Bingham, at p. 65.) Plaintiff quotes the following sentence: "We avoid literal, narrow or hypertechnical meanings of words so as to give effect to the manifest objectives of the legislation which appear from the provisions considered as a whole, in light of legislative history. [Citation.]" (Ibid.) The court went on to find that dual palm buttons and light curtains fell within the definition of the term "guard," and that the term "is meant to include the myriad apparatus which are available to accomplish the purpose of keeping the hands of workers outside the point of operation whenever the ram is capable of descending." (Ibid.) We agree. Factually, Bingham is quite close. The supervisor in that case set up the machine by moving the dual palm buttons aside, partially disabling a light curtain, directing the plaintiff to hold the metal in the press to maintain close tolerances, and using a footswitch. (Id. at pp. 60, 68.) The court found the employer liable under section 4558, and we find the case persuasive here.
Other cases, not cited by the parties, include Saldana v. Globe-Weis Systems Co. (1991) 233 Cal. App. 3d 1505, 285 Cal. Rptr. 385. In that case, a grant of summary judgment for the employer was affirmed. The appellate court held that the substitution of one type of safety device for another did not establish a disregard of the employees safety or employer knowledge of a condition creating a probability of serious injury or death. (Id. at pp. 1517-1519.)
In Graham v. Hopkins (1993) 13 Cal.App.4th 1483, the court held that a molding machine was not a power press.
In Flowmaster, Inc. v. Superior Court (1993) 16 Cal.App.4th 1019, the appellate court denied a petition for writ of mandate, holding that a triable issue of fact existed as to whether a point of operation guard was required and capable of being provided to protect plaintiff from injury. One issue under section 4558, subdivision (a)(2), was what was required or provided by the manufacturer in a situation in which the employer itself manufactured the press for its own use. (Flowmaster, Inc. at p. 1027.) The appellate court found no statutory intention to exempt employers who built their own presses. (Id. at pp. 1029-1030.) Accordingly, the employer would be liable for removal or failure to install a guard. The case was remanded for trial of the factual issues.
In Bryer v. Santa Cruz Pasta Factory (1995) 38 Cal.App.4th 1711, the employer won because there was no evidence that the manufacturer of a pasta machine required a point of operation guard. The machine had been purchased secondhand and the employer had not received any information from the machines manufacturer. (Id. at p. 1713.)
McCoy v. Zahniser Graphics, Inc. (1995) 39 Cal.App.4th 107 held that a printing press was not a power press within the meaning of section 4558.
In Aguilera v. Henry Soss & Co. (1996) 42 Cal.App.4th 1724, a summary judgment in favor of the employer was affirmed because of a lack of evidence that the manufacturer designed the press to include a point of operation guard, and did not require such a guard. The manufacturer never directed installation of a point of operation guard, and there was no evidence the employer had removed or failed to install a recommended guard. (Id. at p. 1728.) In that case, dual palm buttons were bypassed by selection of a continuous cycle mode of operation but the trial court found no triable factual issue because there was no evidence the manufacturer had warned of the danger posed by use of the continuous automatic cycle. (Id. at p. 1730.) In the present case, however, Mr. Ishiyama disabled the continuous operation feature during his 1980 modifications and he specifically warned that a point of operation guard was required when a footswitch was used. He put a sign on the machine to that effect. The present case is thus factually distinguishable but the law is applicable: "Essentially, the culpable conduct is the employers ignoring of the manufacturers safety directive." (Ibid.) There was ample evidence in this case that Dynamic ignored the manufacturers safety directive.
Finally, we note that our Supreme Court held, in Rosales v. Depuy Ace Medical Co. (2000) 22 Cal.4th 279, 991 P.2d 1256, that a lathe using a sharp-edge cutting tool was not a power press within the meaning of section 4558, subdivision (a)(4). Section 4558 is simply applicable only to machines using dies. (Rosales, at p. 286.)
The Bingham case supports our conclusion that substantial evidence supports the trial courts conclusion that the conditions of section 4558 were met by the proof here. None of the other cases changes that conclusion.
THE SETOFF OF WORKERS COMPENSATION BENEFITS
Dynamic next contends that it is entitled to a setoff for workers compensation benefits paid by Manpowers carrier. It relies on section 3600, subdivision (b): "Where an employee . . . receives the compensation provided by this division and secures a judgment for, or settlement of, civil damages pursuant to those specific exemptions to the employees exclusive remedy set forth in . . . Section 4558, the compensation paid under this division shall be credited against the judgment . . . ."
Dynamic argues that the section means what it says: since plaintiff received both workers compensation benefits and a judgment, the benefits must be offset by the judgment.
The situation is actually more complex. Since plaintiff was employed by Manpower, a temporary employment agency, its workers compensation insurance carrier paid the benefits and has now asserted a lien against the judgment in the sum of $ 120,713.68. Although Dynamic was an employer by virtue of the definition in section 4558, subdivision (a)(1), it did not pay any workers compensation benefits. To allow it to now reduce the judgment by the amount of the benefits paid by Manpowers carrier would be inequitable and would penalize plaintiff by subjecting him to a double liability which would wipe out most of the judgment. This would be contrary to the legislative intent underlying section 4558.
Dynamic cites the statements of legislative intent in Jones v. Keppeler, supra, 228 Cal. App. 3d 705 and argues that the legislative intent "was obviously to have a setoff for any workers compensation benefits paid to a claimant under any other statutory exceptions." While we agree that the employer is normally entitled to a setoff (Burnelle v. Continental Can Co. (1987) 193 Cal. App. 3d 315, 320, 238 Cal. Rptr. 253), the question here is whether, when there are two employers and only one paid workers compensation benefits, there are to be two setoffs. We think the question answers itself. As Burnelle states, "by providing for this setoff, we believe the Legislature intended the actions at law specifically permitted by section 4558 to be cumulative to the employees workers compensation remedy and not subject to merger and bar under the doctrine of res judicata." (Burnelle, at p. 320.)
Since Manpower was not liable under section 4558, its compensation carrier paid workers compensation benefits as a result of an agreement between Manpower and Dynamic by which Manpower agreed to pay plaintiffs salary and employment costs, including workers compensation benefits. (Watters Associates v. Superior Court (1990) 218 Cal. App. 3d 1322, 267 Cal. Rptr. 696 and Watters Associates v. Superior Court (1991) 227 Cal. App. 3d 1341, 278 Cal. Rptr. 417.) Mr. Esposito testified that such a contract existed, and the parties agree that Manpowers carrier actually paid the benefits and Dynamic did not. In this situation, we agree with plaintiff that the person who paid the benefits, i.e., Manpowers carrier, is entitled to prevail on its lien, and Dynamic has no right to a setoff for benefits it never paid.
If, for any reason, the lien is invalid, the trial court may reconsider the matter so that there is only one setoff for workers compensation benefits paid.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI J., and KING J.