Silva v. SCM Group USA
Filed 5/26/06 Silva v. SCM Group USA CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GANT SILVA, Plaintiff and Appellant, v. SCM GROUP USA, INC., et al., Defendants and Respondents. | D045407 (Super. Ct. No. GIC807497) |
APPEAL from a judgment of the Superior Court of San Diego County, S. Charles Wickersham, Judge. Affirmed.
Plaintiff Gant Silva appeals a judgment entered after the court granted the motion of defendants SCM Group USA, Inc. (SCM) and Louis & Company (Louis) for judgment notwithstanding the verdict (JNOV), on the ground he did not establish their negligence caused personal injuries he sustained when using a woodworking machine they distributed.[1] Silva contends the court erred by granting the motion because substantial evidence supports the jury's assignment of 5 percent liability to SCM and Louis. Silva also challenges the court's evidentiary rulings, and contends it erred by calculating the amount of his economic damages, and in turn finding SCM is entitled to costs because the verdict did not exceed the amount of its offer to compromise. (Code Civ. Proc., § 998.) We affirm the judgment on causation grounds, which renders the other issues moot.
FACTUAL AND PROCEDURAL BACKGROUND
In 1995 Silva began working for Antique Castings, a company that built wood cabinets for antique slot machines. At the relevant time he was shop foreman. In 1999 Antique Castings purchased an SCM T 130 shaper (the Shaper), a woodworking machine that was manufactured in Italy, imported by SCM and sold by Louis. The Shaper accommodates a number of cutterheads, and it has a variety of uses for cabinet making.
The Shaper is equipped with aluminum " fences" on both sides of the cutterhead to permit positioning of the wood and to protect the operator's hands. The fences have an opening between them to allow the cutterhead to protrude to make the desired cut, and the opening is adjustable depending on the diameter of the cutterhead. The Shaper came with an unassembled safety guard, but it was not installed. Antique Castings, however, did install a power feeder on the Shaper, which swings in and out of place. The power feeder has rollers that grab the wood and feed it through the machine, keeping the operator's hands approximately 12 inches from the cutterhead.
Silva made at least 12,000 cuts on the Shaper without incident. On March 28, 2002, however, his right hand slipped into the cutterhead, severing four fingers.[2] There were no witnesses to the accident, but it is undisputed he was not using the power feeder.
Silva sued SCM and Louis for negligence and strict product liability.[3]
The first amended complaint's negligence cause of action alleged the Shaper was defective and unsafe because it " did not have installed upon it a necessary and proper safety guard." The strict product liability cause of action alleged SCM failed to warn Silva about the dangerous and defective condition of the Shaper.
A central issue at trial, pertaining to causation, was why Silva was not using the power feeder when he was injured. Silva testified he customarily used the power feeder when he was adding decorative details to, or " profiling," cabinet door frames. He did not use the power feeder when adding mortises and tenons along the end-grain of a work piece, however, because of the smaller size of the material.[4] When making end-grain cuts, he used a homemade jig to feed material through the Shaper. A jig is made from a piece of plywood and clamps, and the operator attaches the work piece to the jig to feed it through the machine instead of hand-feeding it.
Silva testified he was injured when making an end-grain cut on a drawer face with a tenoning jig, thereby taking the position he was unable to use the power feeder to protect himself. He argued the Shaper was defective because it did not include a tenoning table that would have been safer and eliminated the need for a jig (the table was optional), and because the Shaper's manual failed to clearly identify the unassembled safety guard or its use or to clearly instruct on the use of a jig.
SCM argued Silva's testimony was untruthful, and when injured he was profiling a cabinet door frame by feeding it through the machine by hand instead of using the power feeder. SCM surmised Silva's glove caught on the cutterhead or he lost control of the work piece when it dipped into the opening around the cutterhead.
The parties' experts differed as to what type of cut the evidence showed Silva was making. They unanimously agreed, however, that if he was profiling a cabinet door frame he could have used the power feeder and its use would have prevented the accident.
The trial court submitted the following special question to the jury: " Was the plaintiff doing endgrain [sic]work on the [S]haper at the time of the accident?" The jury responded that he was not. The jury thus necessarily determined Silva was performing profiling work without using the power feeder.
The jury nonetheless returned a special verdict finding SCM negligent in " failing to provide adequate warnings and instructions," and that the negligence was a substantial contributing factor in causing the accident. The jury also found Silva and Antique Castings were negligent, and it assigned percentages of fault as follows: Silva, 55 percent; Antique Castings, 40 percent; and SCM, 5 percent. It awarded Silva $80,000 in past noneconomic loss; $325,000 in future noneconomic loss; $171,308 in past economic loss, and $366,114 in future economic loss, for a total award of $942,422. The jury found for SCM on the strict product liability cause of action.
On June 23, 2004, the court entered a judgment apportioning damages of $188,831 to SCM. On September 10, 2004, however, the court granted SCM's motion for JNOV and entered judgment for it. The court found the Shaper had no dangerous propensities Silva would not discover on his own, and a lack of nexus between SCM's negligence and the accident. The court also awarded SCM costs of $80,851.00 based on Silva's rejection of its $200,000 offer to compromise. (Code Civ. Proc., § 998.)
DISCUSSION
I
" The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion . . . , or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made." (Code Civ. Proc., § 629.)
In considering a motion for JNOV, the " trial judge cannot weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for [JNOV] should be denied. [Citations.] 'A motion for [JNOV] . . . may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.' " (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110; Flanagan v. Flanagan (2002) 27 Cal.4th 766, 769.)
" On an appeal from a JNOV, we ordinarily use the same standard the trial court used in granting the JNOV." (Mason v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 829.) " If substantial evidence supports the verdict, the trial court erred in granting the JNOV and we reverse." (Id. at pp. 829-830.)
II
In his opening brief, Silva contends JNOV was improper because substantial evidence supports a jury finding that SCM failed to adequately warn Silva of the risk of using a jig without the barrier guard in place on the Shaper and to adequately instruct him on how to assemble and use the barrier guard. Silva asserts " it was essential that SCM properly warn Silva that whenever he used a home-made jig in place of a power feeder for a special cut, he must also attach and use the vertical presser unit [the safety barrier] to shield his hands from the cutterhead and to provide him with an additional margin of safety." (Italics added.) Silva complains that the Shaper's manual identified the safety guard as a " vertical presser unit" instead of a safety guard, and thus " failed to highlight for Shaper operators that this was a critical piece of safety equipment that must be attached." (Italics omitted.) He claims the " failure to have the vertical presser/barrier guard in place caused his injuries, when his hands came off the home-made jig and flew into the cutterhead."
Silva, however, testified he used a jig only when making end-grain cuts because the material " was not wide enough to go through the wheels on the power[]feeder." The jury determined he was not making an end-grain cut when he was injured, thus implicitly finding he was not using a jig.[5] Silva ignores the jury's finding and its effect on the causation element of his negligence claim.
" ' " Causation" is an essential element of a tort action. Defendants are not liable unless their conduct . . . was a " legal cause" of plaintiff's injury. [Citations.]' [Citation.] 'Generally, the burden falls on the plaintiff to establish causation. [Citation.] . . . In the context of products liability actions, the plaintiff must prove that the defective products supplied by the defendant [or its negligence] [was] a substantial factor in bringing about his or her injury.' " (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 696.)
Silva's mechanical engineering expert, Paul Youngdahl, Ph.D., testified the Shaper was defective because it did not come with a tenoning table for making end-grain cuts. He conceded, however, that if Silva was making a different type of cut, such as an " outer ridge detail" with the use of the power feeder, the accident would not have occurred. Dr. Youngdahl understood the Shaper was equipped with a power feeder and Silva was familiar with using it.
Carl Beels, Silva's safety expert, testified that the Shaper's instruction manual " was the most inadequate instructions manual that I have ever seen." Beels explained the manual was originally written in Italian, and its English translation was poor, causing ambiguities. For instance, the manual described the unassembled safety guard that came with the Shaper as a " Guard for presser unit for milling at the fence." Beels believed that language " isn't necessarily clear to all of the operators" and " implies something different than just simply a guard."
Beels also believed, from a discussion with Silva and a review of his deposition testimony, that when the accident occurred he was doing tenoning on an end-grain cut with the use of a jig, and a " kick-back" of the work piece occurred, pulling his hand into the cutterhead.[6] Beels said Silva was using a jig in lieu of the safety guard that came with the Shaper because the manual was ambiguous and indicated it could not be used on end-grain work. Beels admitted, however, that if Silva was instead working on the outer edge of a door frame when the accident occurred he could have used the power feeder, and had he done so the accident would not have occurred.
SCM's safety expert Gililland likewise testified that had Silva used the power feeder he would not have been injured. Further, Gililland knew Silva was aware the power feeder " acted as a guard."
In his reply brief, Silva addresses the causation issue. He contends it is immaterial whether he was making an end-grain cut or some other type of cut when he was injured. He asserts that although he knew the Shaper was a dangerous machine, he " remained unaware of how the risk of danger to him would increase if, for example, he failed to use either the power feeder or the barrier guards when doing a non-end grain cut." Silva, however, could have used the power feeder but he chose not to. Additionally, he testified he needed no instruction on using the Shaper with the power feeder as he fully understood " how to do the outer edge detail and how to do a fully assembled frame with a power[]feeder." Silva had been working with a shaper since 1991 or 1992 in previous employment and he knew a power feeder protected his hands from the cutterhead.
Silva also submits that based on Beels's testimony, the jury could have found the Shaper's manual did not clearly designate the unassembled safety guard or " properly instruct Silva that [it] was . . . a guard that must be used when non-end grain cuts are made." Silva asserts the jury accepted Beels's opinion that ambiguities in the manual were " a causal factor for this accident, regardless of the type of cut Silva was performing when injured."
Again, however, Beels's opinions on causation were based on the assumption Silva was performing end-grain work with a jig. Beels testified " it is obvious that . . . Silva did not understand . . . the proper use of that [safety] guard; and . . . that there was any way for it to work for the operation that he was doing." (Italics added.) Beels also said Silva " never did appreciate fully the potential for his hand to literally get pulled into that cutter blade. He thought he was being safe by holding on to the clamps in lieu of a guard that he thought he couldn't use." The " clamps" were part of the safety jig Silva constructed for end-grain work. Beels also testified that " they" did not " appreciate the potential for a kick-back causing injury while doing endgrain [sic] cuts." (Italics added.)
Beels did agree on cross-examination that an operator should use the safety guard " during all of the operations" on the Shaper, and had Silva used the safety guard properly the accident would not have occurred. Beels, however, did not testify that inadequate or confusing information in the manual caused Silva to not use the safety guard when performing profiling work or caused him to be injured when performing such work. Beels also testified that if Silva was performing an outer edge profile, he could have used the power feeder and it would have prevented the accident.
When a danger or potential danger is open and obvious, there is no duty to warn. (6 Witkin, Summary of Cal. Law (10th ed. 2006) Torts, § 1467, p . 899.) When a risk is already known, no harm can be caused by the failure to warn of the risk. (Rosburg v. Minnesota Mining & Mfg. Co. (1986) 181 Cal.App.3d 726, 735.) No evidence suggested that the manual caused Silva to not use the power feeder during a profiling procedure and instead hand feed the work piece through the Shaper. The evidence did show that Silva knew the power feeder " acted as a guard," and when the power feeder " was in place he was well-guarded."
We have reviewed the entire record, and contrary to Silva's current position, his entire case was premised on being unable to use the power feeder because he was making an end-grain cut. Viewing the evidence in the light most favorable to Silva, we agree with the trial court that there is no substantial evidence, or reasonable inferences to be drawn therefrom, in support of the jury's verdict against SCM, because he did not satisfy the causation element of his negligence claim. Indeed, after oral argument we requested supplemental briefing from the parties on whether the evidence supports a jury finding that SCM's failure to warn was causally linked to Silva's accident while performing profiling work. Silva asserts in his response that had the Shaper's manual been clear the accident would not have occurred, but the testimony he cites does not support such a finding. Accordingly, the JNOV was proper.
II
Remaining Issues
Silva also contends that several of the court's evidentiary rulings constitute abuse of discretion. He complains that the court refused to show the jury a picture of his severed fingers, which was " highly relevant to the issue of the shock, horror, and emotional distress [he] suffered immediately after the accident." He also challenges the admission of testimony by the owner of a woodworking shop next to Antique Castings that its employees engaged in " tom foolery," such as shooting nail guns at each other, and the admission of testimony by the owner of Antique Castings that Silva's attendance had suffered in the months before the accident. Silva asserts this evidence was irrelevant and inflammatory. The court also precluded Silva from eliciting testimony from SCM's experts that they had worked on other personal injury cases for SCM and were " 'repeat player' witnesses."
Additionally, Silva asserts the court should not have treated SCM and Louis as one entity in the special verdict form. He submits the jury may have awarded him more if the two entities were treated separately on the form. Given our holding on the causation issue, however, these points are moot.
Silva also contends that based on a miscalculation of his economic damages, the court erroneously determined he did not obtain a more favorable judgment than SCM's $200,000 offer to compromise (Code Civ. Proc., § 998), thus entitling SCM to costs of suit. Silva concedes this issue is not viable if we affirm the judgment.
DISPOSITION
The judgment is affirmed. SCM and Louis are entitled to costs on appeal.
McCONNELL, P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
Publication Courtesy of California free legal resources.
Analysis and review provided by Spring Valley Apartment Manager Attorneys.
[1] At trial the defendants were treated as one entity, and we refer to them together as SCM when appropriate.
[2] Although somewhat unclear from the record, it appears that one of Silva's fingers was not fully severed, or was reattached, but its tip was eventually amputated. Silva is right-handed.
[3] The complaint included a cause of action for breach of warranty, but Silva did not pursue it at trial.
[4] A tenon is " a projecting member in a piece of wood . . . for insertion into a mortise to make a joint." (Webster's 3d New Internat. Dict. (1986) p. 2356.)
[5] In contrast to Silva's testimony, substantial evidence supports the finding that he was not making an end-grain cut at the time of the accident. Elisa Koski, who investigated the incident for the State's Occupational Safety and Health Agency, testified that when she met with Silva on May 29, 2002, he told her " he was hand-feeding door frames to put a profile on the edge of the door on the shaper machine." He admitted he was not using the power feeder, explaining " it sucked [the material] into the bit or something like that." Silva told Koski he " remembered . . . a piece of wood kicking out."
Further, SCM's woodworking expert, Lonnie Bird, testified that photographs taken of the Shaper shortly after the accident showed it was equipped with a cutterhead used for profiling the outer edge of a door frame. Photographs also showed stacked door frames near the Shaper. Albert Becker, who owned a woodworking business next door to Antique Castings, testified he saw the Shaper the day after Silva's accident and it was fitted with a cutterhead used " for outside edge detailing." Additionally, SCM's expert safety engineer, Michael Gililland, testified that photographs showed the cutterhead was not adjusted for an end-grain cut. He explained as follows: " The tenoning jigs . . . involve a . . . board that sits on the metal table of the machine. That board is three-quarters of an inch thick and the work piece sits on top of that. In order to be adjusted then to cut that work piece the cutter has to be three-quarters of an inch up. That cutter [on the Shaper at the time of the accident] is adjusted so that a portion of it is below the table surface. It's not high enough to do a tenoning operation."
[6] A " kick-back" was described at trial as " a very violent thrusting back of the work piece toward the operator."
