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Zigler v. AVCO Corp.11/18/2005
DECISION AND JUDGMENT ENTRY
{ } This is an appeal from a summary judgment issued by the Williams County Court of Common Pleas to a farm equipment manufacturer in a products liability case. Because we conclude that there is a genuine issue of material fact as to whether the injured assumed the risk and the trial court failed to consider a separate claim of enhanced damages, we reverse.
{ } Although appellant, Larry Zigler, grew up on his father's rural Montpelier, Ohio farm, after he graduated from high school he worked in factories. In the fall of 2001, appellant's father was injured and had to rely on others to harvest the corn in his fields. By January 2002, all but three or four acres had been harvested. It was these fields that appellant volunteered to finish.
{ } On January 9, 2002, appellant took a vacation day from his factory job . At approximately 9:00 a.m. appellant began to pick corn, using a Model 300 New Idea corn picker manufactured by a subsidiary of appellee, AVCO Corporation. The Model 300 is a pull-behind implement, which is attached to a tractor by a hitch and derives its power from the tractor via the tractor's power take off ("PTO"). Power is transmitted from the tractor to the corn picker through a rotating PTO shaft. The parts of the 300 continue to move unless the tractor's PTO is stopped or the tractor itself is shut off.
{ } In operation, this corn picker is pulled straddling two corn rows with "gathering shoes." The cornstalks are pulled into the machine by gathering chains which convey the stalk to a snapping roll which removes the ear of corn from the stalk. The ear is then conveyed to a set of husking rolls which remove the corn husk. The husked corn is then conveyed by a small elevator to be deposited in a farm wagon drawn behind the picker. The corn picker can sometimes become clogged, in which case operators are instructed to stop the forward motion of the machine. If the clog still does not clear, operators are instructed to stop the PTO and remove debris by hand.
{ } By noon on January 9, 2002, appellant had picked most of the remaining corn in his father's fields. In the process, he had encountered machine clogs two or three times. On the first clog, appellant stopped the tractor and the PTO and removed the obstruction by hand. In his deposition testimony, appellant said the process took between 10 and 20 minutes. On the second clog, however, appellant left the PTO running, raised the gathering shoes and pulled cornstalks from in front of and below the gathering shoes. When he did this the stalks were pulled in by the gathering chains, clearing the jam.
{ } Midday, appellant's wife, Latrisha, came to the field to talk to her husband. Latrisha accepted appellant's invitation to ride with him on the tractor while he finished the field. After about 15 minutes, the corn picker again jammed. Appellant again left the PTO running and got off the tractor to clear the clog. Again, appellant raised the gathering shoes and began to pull on a cornstalk. This time, however, the gathering chain took the stalk with such force and speed that appellant's hand was pulled into the machine.
{ } Appellant yelled to Latrisha for help, but over the noise of the tractor she was unable to tell what he wanted. As she dismounted the tractor to go to him, the gathering chain continued to pull his hand and arm into the machine. At some point, perhaps as much as a minute after the machine seized appellant's arm, his right leg became entangled. He eventually communicated to his wife that she needed to turn off the tractor. Appellant estimated as much as three minutes passed before she accomplished this. By this time, hi
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