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Burrows v. Fastener Engineers2/28/1992
BROGAN, Judge.
The appellant, Patrick Burrows, appeals from the judgment of the Common Pleas Court of Montgomery County granting summary judgment in favor of the appellee, Fastener Engineers, Inc.
This products liability action began in April 1988, when Burrows, an employee of Parker-Hannifin Corp. ("Parker"), was injured when his gloved hand was caught and pulled into the unguarded feed rolls of a combination coil shear/pre-feeder/uncoiler machine. The accident resulted in the "amputation of thumb and longer finger, extension tendon laceration of little finger and fracture of the middle phalanx." The machine, manufactured by appellee, Fastener Engineers, Inc. ("Fastener"), was purchased in December of 1980 by Parker.
On March 30, 1990, Burrows filed a complaint in strict liability against Parker and Fastener, which asserted, inter alia, that Fastener failed to provide adequate warnings of the machine's dangers and failed to test the machine under all foreseeable conditions before its distribution and sale, that the machine was more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, that the removeability of the machine's safety guard and its failure to be interlocked and interfaced into machine operation by means of a limit switch or other procedure constituted a design defect, and that his injuries were a direct and proximate result of Fastener's negligence. The Burrows' complaint also stated that the safety guard incorporated in the design of the machine had been removed by Parker.
In February of 1991, Fastener filed a motion for summary judgment which was granted on May 14, 1991 and the trial court held Fastener was not liable for Burrows' injuries because Parker's removal of the guard was a substantial alteration of the machine. Burrows filed a motion for reconsideration in late May 1991 and a Civ. R. 60(B) motion for relief from judgment on June 7, 1991. Burrows filed a notice of appeal from the summary judgment on June 10, 1991. On August 21, 1991 the trial court overruled Burrows' motion for relief from the judgment and Burrows filed a separate notice of appeal from that judgment on September 10, 1991.
Burrows asserts in his sole assignment of error that the trial court erred by its ruling that there remained no genuine issues of material fact concerning a substantial alteration to the machinery in question. Fastener cross-appealed, asserting that the trial court erred in concluding a genuine issue of material fact existed as to whether Fastener was a "mere continuation" of the corporation that manufactured the subject machine.
In Ohio, products liability law began with Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267, where the Ohio Supreme Court adopted 2 Restatement of the Law 2d, Torts (1965) 347, Section 402A. As summarized in Cox v. Oliver Machinery Co. (1987), 41 Ohio App.3d 28, 30, 31, 534 N.E.2d 855, 858, 859, this section states that:
"* * * one who manufactures or sells a product in a defective condition is subject to liability for physical harm caused to the ultimate user * * * if the product is expected to and does reach the user * * * without substantial change in the condition in which it is sold."
The court in Cox went on to say that:
"* * * a substantial alteration subsequent to the manufacture and sale of the product will relieve the defendant-manufacturer from liability and will support summary judgment in favor of the manufacturer. * * * Summary judgment for the manufacturer is also appropriate where the product is used in a capacity which is unfo
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