FILED
United States Court of Appeals
Tenth Circuit
September 23, 2013
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
DEREK BRASWELL,
Plaintiff-Appellant,
v. No. 12-5128
CINCINNATI INCORPORATED, a
foreign corporation,
Defendant-Appellee,
and
HARDY MACHINERY, a foreign
corporation,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. 4:10-CV-00541-GKF-TLW)
Frank R. Paynter (Bret A. Smith with him on the brief), Bret A. Smith, Attorney
at Law, P.C., Muskogee, Oklahoma, for Appellant.
Jason Goodnight (Steven K. Balman with him on the brief), Franden, Woodard,
Farris, Quillin & Goodnight, Tulsa, Oklahoma, for Appellee.
Before TYMKOVICH, HOLLOWAY, and GORSUCH, Circuit Judges.
TYMKOVICH, Circuit Judge.
Derek Braswell suffered a horrific workplace accident. While he was
operating a press brake, a heavy machine tool, manufactured by Cincinnati, Inc.,
his right arm was crushed, and eventually had to be amputated. Signs on the
machine warned the operator not to reach into the die area, where a hydraulic-
powered ram descends to bend sheet metal. Despite these warnings, Braswell
reached into the die area to remove a jammed piece of metal. While doing so, he
accidentally stepped on a pedal triggering the ram’s descent. More unfortunate,
the machine’s safety equipment designed to prevent this type of accident had been
removed or disabled sometime prior to the accident.
After his injury, Braswell filed a suit against Cincinnati on theories of strict
products liability and negligence. The suit was asserted as a diversity claim, and
that basis for subject-matter jurisdiction is not challenged. The district court
granted summary judgment for Cincinnati on the grounds that a subsequent owner
had modified the press brake to create the danger and that the gated pedal on the
original model made the press brake not unreasonably dangerous. We agree that
the press brake was not unreasonably dangerous: with its warnings and safety
devices, the machine did not pose a danger beyond that which the ordinary
operator of the machine would appreciate.
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Exercising our jurisdiction under 28 U.S.C. § 1291, we AFFIRM the
district court’s judgment.
I. Background
A. The Machine
Cincinnati manufactures a hydraulic press brake, a machine tool commonly
used to shape sheet metal. The tool consists of a ram, which presses the metal,
and a die, into which the metal is pressed. The operator feeds sheet metal
between the die and the ram, and may hold the sheet until the ram has lifted. The
machine is operated by a foot pedal, known as a footswitch, though other operator
controls are usually included. The machine is designed to have a long lifetime,
and often has multiple owners. Given the diverse and complex nature of various
manufacturing processes, many of the machine’s features may be added or
removed according to an owner’s needs. For example, the machine could be set
up to work on thick pieces of metal, requiring a wide opening to feed, or thin
pieces, requiring an opening as small as a half inch.
Derek Braswell’s employer, Ventaire, Inc., purchased a Cincinnati press
brake in 2007 from Hardy Machinery. At the time of the purchase, the machine
was almost twenty years old. Cincinnati had first sold the press brake in 1989 to
a company named Steelgard. Though the machine passed to many successive
owners, Cincinnati continued to supply repair services. For example, one year
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before the accident a Cincinnati service technician visited Ventaire to install new
software in the press brake and reprogram the machine.
As originally sold, the machine was equipped with a footswitch that had a
front flap, or gate, to prevent its accidental depression. The operator had to lift
the gate with his foot to access the enclosed pedal, and the gate would be resting
on top of his foot while he used the machine. Moreover, the machine came
equipped with two footswitches, each of which had to be depressed
simultaneously by two different operators in order to trigger the ram.
Sometime between the press brake’s original sale to Steelgard and its sale
to Ventaire, the original footswitches were removed and replaced with ones that
did not have a gate. At the time of Braswell’s accident, one of the replacement
footswitches had been disabled, such that the machine could be operated with a
single footswitch unprotected by any gate.
Another safety feature on the original press brake was dual palm stations, a
feature designed to prevent the accidental activation of the machine by a sole
operator. The palm stations required two operators to each place their respective
hands on a different button simultaneously in order to activate the machine,
thereby making it nearly impossible for the machine to be activated while one
operator’s limb was inside the die area. This feature could be used in conjunction
with the footswitches. The downside of this feature, however, was that an
operator would not be able to hold the piece of sheet metal being fed into the
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machine. After Ventaire acquired the press brake, it disabled the palm stations so
that the machine could be operated by one footswitch alone.
A final safety feature was a control panel, featuring an emergency stop
button, that was mounted on the face of the machine. This emergency button on
the panel could be reached by anyone standing close to the die area. By the time
Ventaire purchased the press brake, however, the panel had been removed: it had
been unbolted, rewired, and moved to a “remote pendant.” Aplt. App. 153.
The machine also came equipped with warnings displayed on prominent
places on the machine:
THE FOOT SWITCH YOU ARE USING CANNOT PROTECT YOU
FROM SERIOUS INJURY.
YOUR HANDS OR FINGERS CAN BE CRUSHED OR CUT OFF IF
THE MACHINE YOU ARE OPERATING DOES NOT HAVE A
GUARD OR OTHER WAYS TO KEEP YOU AWAY FROM
DANGEROUS MOVING MACHINE PARTS.
TO REDUCE THE POSSIBILITY OF INJURY . . .
. . . DO NOT PLACE YOUR HANDS IN THE DIE AREA.
. . . DO NOT POSITION ANY PART OF YOUR BODY
WHERE IT MAY BE STRUCK OR CRUSHED BY PART
MOVEMENT.
. . . ALWAYS READ AND UNDERSTAND THE
OPERATION, MAINTENANCE AND SAFETY MANUAL
BEFORE INSTALLING DIES, OPERATING OR SERVICING
THE PRESS BRAKE.
Id. at 27.
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As part of its operation, the press brake could be equipped with blocks to
prevent the ram from descending. Though there is a factual dispute about
whether Ventaire properly trained Braswell on using the blocks and whether it
had made blocks available for employees, Braswell does not dispute that, in the
press brake’s manual, Cincinnati recommended using blocks whenever anyone—
in spite of the warnings against doing so—needed to reach into the die area.
Ventaire had programmed the machine to operate in a three-step cycle: The
first compression of the footswitch caused the ram to lower so that the metal was
pinned; the second one caused the ram to actually press and bend the metal into
the die; and the third one caused the ram to lift up.
B. The Accident
On the day of the accident, Braswell was operating the press brake
alongside a coworker. Braswell and the coworker were feeding in sheet metal,
while only Braswell was operating the ram using a footswitch. Both operators
were standing, and the functioning footswitch was mere feet from the press brake.
A piece of sheet metal became stuck in the machine, and Braswell reached into
the machine to remove the metal. At that point, Braswell accidentally pressed the
footswitch, causing the ram to pin his arm inside the machine. Braswell screamed
for help, and his supervisor came to his assistance. Instead of pressing the ram
lift button, however, the supervisor triggered the next movement in its cycle,
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further crushing Braswell’s arm. When the ram was finally lifted, Braswell was
rushed to the hospital, where his right hand had to be amputated.
C. The Lawsuit
Braswell filed suit in district court against Cincinnati. Braswell made three
claims: (1) strict liability defective design, (2) negligent manufacture and design,
and (3) failure to warn. After discovery, Cincinnati filed a motion for summary
judgment. In opposing the motion, Braswell alleged that the press brake had an
unreasonably dangerous design because, among other reasons, it was not equipped
with an anti-trip footswitch, which requires a complete depression of the pedal
each time the operator wants to reinitiate the machine’s movement—a
mechanism, Braswell contended, that would have prevented his injury.
The district court noted that Braswell, to defeat summary judgment, had to
show there were disputed issues of material fact on each element of his products
liability claim. Of the three elements in a products liability claim—that the press
brake was (1) the cause of the injury, (2) defective at the time it left Cincinnati’s
control, and (3) unreasonably dangerous—the court concluded Braswell could not
show a genuine issue on elements two or three. The press brake was not defective
at the time it left Cincinnati’s control because it contained a gated footswitch,
which, the district court reasoned, would have prevented the accident. And the
inclusion of the gated footswitch made the brake not unreasonably dangerous.
The district court also stated that Oklahoma’s product liability test encompassed
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both negligent and strict liability design theories; as a result, the court concluded,
the negligent design claim failed as well. Finally, the district court concluded the
inclusion of warnings on the machine satisfied Cincinnati’s duty to warn.
Accordingly, the district court entered summary judgment in Cincinnati’s favor.
II. Analysis
Braswell challenges the district court’s rulings on (1) the products liability
claims, and (2) the negligence claim. “We review a grant of summary judgment
de novo, applying the same standard as the district court.” Oldenkamp v. United
Am. Ins. Co., 619 F.3d 1243, 1246 (10th Cir. 2010). Oklahoma substantive law
applies to this diversity action. See Ahrens v. Ford Motor Co., 340 F.3d 1142,
1145 (10th Cir. 2003).
Applying Oklahoma law, we conclude there is no genuine issue of material
fact on the products liability claims, and that Braswell waived his negligence
arguments below by failing to sufficiently plead them or raise them in response to
Cincinnati’s motion for summary judgment.
A. Products Liability Claims - Defective Design & Failure To Warn
Oklahoma, like most states, has adopted a strict liability regime for
products that are defectively manufactured or designed.
The Oklahoma Supreme Court has identified three elements to a products
liability claim: the defect must have (1) caused the injury in question, (2) existed
at the time it left the manufacturer’s control, and (3) made the product
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unreasonably dangerous. Kirkland v. Gen. Motors Corp., 521 P.2d 1353, 1363
(Okla. 1974) (adopting § 402A of the Restatement (Second) of Torts). The defect
can stem from either a dangerous design or an inadequate warning about the
product’s dangers.
Cincinnati argues Braswell’s design claim fails because the press brake was
not in its original condition when Braswell was injured. As originally built, the
press brake was wired with two dual-palm stations and two gated footswitches,
either of which, had they been used, would have prevented Braswell’s injuries.
Braswell, by contrast, contends that subsequent alterations, such as removing
safety devices, do not insulate a manufacturer from liability if the alteration was
reasonably foreseeable—as the replacement of the footswitch and the disabling of
the palm stations here supposedly were. Consequently, Braswell argues, the
product was still defective.
For defective design claims, Oklahoma law exempts a manufacturer from
liability if “modifications or alterations [to the product] are responsible for the
defect and are the intervening and superseding cause of the injuries.” Dutsch v.
Sea Ray Boats, Inc., 845 P.2d 187, 191 (Okla. 1992) (emphasis added). That is, a
subsequent alteration can sever proximate cause. But, on the other hand,
modifications that are reasonably foreseeable are not supervening causes. “A
supervening cause is a new, independent and efficient cause of the injury which
was neither anticipated nor reasonably foreseeable.” Akin v. Mo. Pac. R.R. Co.,
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977 P.2d 1040, 1054–55 (Okla. 1998) (emphasis added); see also Saupitty v.
Yazoo Mfg. Co., 726 F.2d 657, 659 (10th Cir. 1984) (noting that a manufacturer is
liable “if the subsequent modification was foreseeable” but not “when an
unforeseeable subsequent modification alone causes the plaintiff’s injury”).
The question of subsequent alteration of a product often collapses elements
one and two of a products liability claim—causation and existence of defect at the
time of manufacture. This is because if a subsequent alteration created the defect
then, by extension, the defect did not exist at the time it left the manufacturer’s
control. But if the alteration was reasonably foreseeable then the product was
still defective when originally sold—in the sense that it could be altered into a
dangerous state. At the same time, the question of proximate causation also turns
on the reasonable foreseeability of the alteration. Given that most complex
products can be made dangerous by modification, courts have sought to define
foreseeability to avoid imposing a form of absolute or near-absolute liability on
the original manufacturer, especially when safety devices are modified or
removed.
There is no Oklahoma case law on what constitutes a reasonably
foreseeable modification—let alone case law on how to apply such a rule to the
removal of safety devices. The question is especially important in this context
because a manufacturer may not expect safety features to be disabled or removed
even if there is an incentive for a user to do so. In a sense, any safety feature can
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be removed or disabled, even the ones proposed by Braswell in this case. Thus,
foreseeability must limit the scope of a manufacturer’s liability.
Without Oklahoma law to guide us, we could turn to other jurisdictions that
have considered a reasonable foreseeability rule. Some of those cases suggest we
look to a range of factors when evaluating the removal of a safety device: For
example, (1) the ease with which a safety device can be removed; (2) the benefits
of removing a safety device to the machine’s operation; (3) the obviousness of the
danger once the safety feature was removed; and (4) the existence of warnings
against making the modifications. See, e.g., Hood v. Ryobi Am. Corp., 181 F.3d
608, 612 (4th Cir. 1999) (applying Maryland law and holding that removing blade
guards when warnings cautioned against doing so was not reasonably
foreseeable); Perez v. Sunbelt Rentals, Inc., 968 N.E.2d 1082, 1085 (Ill. App. Ct.
2012) (looking to fact that “guard gate was easily removed and hindered the use
of the lift”); Johnson v. Black & Decker U.S., Inc., 701 So. 2d 1360, 1365 (La. Ct.
App. 1997) (use of blade while guard was removed was not reasonably
foreseeable when instruction manual warned against it); Davis v. Berwind Corp.,
690 A.2d 186, 190–91 (Pa. 1997) (removal of safety device not reasonably
foreseeable when instruction manual warned against it). This approach has much
to offer in channeling legitimate design defect claims.
But rather than speculate on what precise formulation (if any) the
Oklahoma Supreme Court would adopt, we have an alternate basis, rooted in
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Oklahoma precedent, that resolves this case. As noted above, a plaintiff must
satisfy three elements to bring a products liability claim. We can dispose of this
case on the third element: unreasonable dangerousness. Under Oklahoma law, a
product is unreasonably dangerous if it poses a danger “beyond that which would
be contemplated by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics.” Woods v.
Fruehauf Trailer Corp., 765 P.2d 770, 774 (Okla. 1988). And, considering the
ordinary operator of Cincinnati’s press brake, we conclude the machine was not
unreasonably dangerous.
As explained by Oklahoma courts, merely because a product could be made
“safer” does not mean it posed an unreasonable danger to the ordinary consumer
who used it. Id. at 775. “[E]ven where a product’s design defect makes the
product unreasonably dangerous, Oklahoma law does not impose liability if the
product contains a warning that adequately addresses the known risks of use.”
McPhail v. Deere & Co., 529 F.3d 947, 958 (10th Cir. 2008); see also Treadway
v. Uniroyal Tire Co., 766 P.2d 938, 947 n.14 (Okla. 1988) (“Where warning is
given, the seller may reasonably assume that it will be read and heeded; and a
product bearing such a warning, which is safe for use if it is followed, is not in
defective condition, nor is it unreasonably dangerous.” (emphasis omitted)
(quoting Restatement (Second) of Torts § 402A cmt. j. (1965)).
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In its seminal products liability case, Kirkland, the Oklahoma Supreme
Court explicitly adopted the test from the Restatement (Second) of Torts. 521
P.2d at 1362–63. The Second Restatement’s test for whether a product is
unreasonably dangerous became known as the consumer expectations test. See
Restatement (Second) of Torts § 402A, cmt. i. The test requires that the product
“be dangerous to an extent beyond that which would be contemplated by the
ordinary consumer who purchases it, with the ordinary knowledge common to the
community as to its characteristics.” Id. Unlike a negligence standard—which
looks to the reasonable precautions taken by the manufacturer—the Restatement’s
strict liability test considers only the product’s features and the user’s knowledge.
And, by pegging the standard to the expectations of the ordinary consumer, the
test was understood by many courts to excuse manufacturers from liability for
design defects where the design’s dangers are known or obvious—either because
the ordinary user has expert knowledge, and thus appreciates the product’s risks,
or because the manufacturer unambiguously warned of the danger. See David G.
Owen, M. Stuart Madden & Mary J. Davis, Madden & Owen on Products
Liability § 5:6 (2013) (“[B]ecause a person’s safety expectations will almost
never be frustrated by an obvious product danger, the expectancy test plainly
precludes liability in most such cases.”). Thus, under this approach a
manufacturer would not have to correct a highly dangerous feature, however
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effortless or economical the fix, as long as the peril was obvious to the normal
user.
As a result of this limitation on liability, the consumer expectations test
quickly drew criticism. Many commentators believed a manufacturer should not
be excused from the duty to eliminate a defect merely because it was obvious or
because the manufacturer warned against it; ordinary human carelessness would
still result in injuries despite numerous warnings or the presence of conspicuous
danger. See, e.g., W. Page Keeton, Products Liability - Design Hazards and the
Meaning of Defect, 10 Cumb. L. Rev. 293, 302 (1979) (faulting consumer
expectations test because “a victim could never recover for harm suffered as a
result of a design hazard that was open and obvious or one with respect to which
the purchaser was adequately informed”); Dan B. Dobbs, Paul T. Hayden & Ellen
M. Bublick, Dobbs’ Law of Torts § 455 (2013) (same). Others have found the
test unworkable for complex or constantly evolving designs. For example,
“consumers comprehend that automobiles are not completely crashproof, but they
have no meaningful expectations as to the extent to which a vehicle may or may
not be compromised in the event of a collision at highway speeds.” Madden &
Owen on Products Liability § 8:3.
Commentators proposed an alternate rule, known as the risk-utility test,
under which manufacturers had a duty to eliminate dangers where an alternative
design could do so without imposing unreasonable costs or impairing the
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functionality of the product. See e.g., John W. Wade, On the Nature of Strict
Torts Liability for Products, 44 Miss. L. J. 825 (1973) (proposing the weighing of
the costs and benefits of a design feature); David Owen, Defectiveness Restated:
Exploding the “Strict” Products Liability Myth, 1996 U. Ill. L. Rev. 743, 754
(“[T]he goal of both design engineers and the law should be to promote in
products an ideal balance of product usefulness, cost, and safety.”). But
consumer expectations could help determine the costs and benefits of an
alternative design even if such evidence was no longer necessary.
In response to this criticism, the Third Restatement of Torts, released in
1998, explicitly jettisoned the consumer expectations test and adopted the risk-
utility test. See Restatement (Third) of Torts: Products Liability § 2 cmt. g (1998)
(noting that “consumer expectations do not play a determinative role in
determining defectiveness” as “[they], standing alone, do not take into account
whether the proposed alternative design could be implemented at reasonable cost,
or whether an alternative design would provide greater overall safety”). The
touchstone of a products liability claim would be a reasonable alternative design
not consumer expectations. “A broad range of factors may be considered in
determining whether an alternative design is reasonable and whether its omission
renders a product not reasonably safe.” Id. cmt. f. A number of jurisdictions
have either adopted the risk-utility test or use it in conjunction with the consumer
expectations test. See, e.g., Branham v. Ford Motor Co., 701 S.E.2d 5, 16–17
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(S.C. 2010) (remanding case for retrial using “risk-utility test and not the
consumer expectations test”); Potter v. Chicago Pneumatic Tool Co., 694 A.2d
1319, 1333 (Conn. 1997) (“We find persuasive the reasoning of those
jurisdictions that have modified their formulation of the consumer expectation test
by incorporating risk-utility factors into the ordinary consumer expectation
analysis.”).
Nevertheless, there is no sign that Oklahoma has backed away from the
consumer expectations test since the release of the Third Restatement in 1998.
See, e.g., K.M. ex rel. Arnold v. Steger Lumber Co. of Durant, 296 P.3d 517, 519
n.5 (Okla. Civ. App. 2012) (noting that test was whether product was “dangerous
to an extent beyond that which would be contemplated by the ordinary
consumer”); see also McPhail, 529 F.3d at 958 (noting that consumer
expectations test is the controlling rule in Oklahoma); Clark v. Mazda Motor
Corp., 68 P.3d 207, 209 n.4 (Okla. 2003) (same). 1 While we can see many of the
merits of the risk-utility test, we are bound to interpret Oklahoma law in
accordance with the opinions of its highest court. And without any indication that
1
The only Oklahoma Supreme Court case we have been able to locate that
relies on the alternative test, the risk-utility test, concerns the affirmative defense
of an “unavoidably unsafe” product. See Tansy v. Dacomed Corp., 890 P.2d 881,
885–87 (Okla. 1994); see also Restatement (Second) of Torts § 402A cmt. k. But
this test is not used by the plaintiff to prove that an alternative, safer design was
feasible, but by the defendant to negate liability in light of the product’s benefits
and the infeasibility of making it safer. See Tansy, 890 P.2d at 886. That is, the
risk-utility test in Tansy is used as a defense to an otherwise valid design defect
claim, and not a test for liability in the first instance.
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the Oklahoma Supreme Court is inclined to adopt the risk-utility test, we will
continue to apply the consumer expectations test to design defect cases such as
this one.
Previously, in applying Oklahoma’s consumer expectations test, we have
evaluated the dangerousness of a product from the perspective of the typical user.
In Wheeler v. HO Sports Inc., 232 F.3d 754 (10th Cir. 2000), for example, we
held that a life vest was not defectively designed when it included only 7.1
pounds of floatation, rather than the 10 pounds necessary to keep afloat an
average person, because the vest “was designed for use by experienced, skilled
wakeboarders,” who are “willing to forego some degree of floatation for the sake
of enhanced mobility.” Id. at 758. In Gaines-Tabb v. ICI Explosives, USA, Inc.,
160 F.3d 613 (10th Cir. 1998), we held that a fertilizer formulation was not
unreasonably dangerous—notwithstanding the fact that an alternate formula,
equally effective as a fertilizer, would have reduced the risk of explosion—
because the ordinary user was a farmer who would not be expected to use it as an
explosive.
Here, we apply an objective test. The ordinary consumer (or user) of a
press brake is a trained operator. That individual will be trained as to its proper
operation and how to use any available safety features, such as palm stations and
footswitches, and to safely remove pieces of metal that become jammed in the
machine. Specifically, the ordinary user would be aware of the extreme danger
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and risk of reaching into the machine while having one’s foot remain anywhere
near the footswitch, at least without disengaging or blocking the ram. There has
been no evidence presented that the press brake, if properly operated, poses a
danger beyond that which an ordinary user would expect. The fact that Braswell
may have been improperly trained in the use of the machine—as he insists he
was—may be the fault of Ventaire, but it does not change the scope of
Cincinnati’s liability. See Woods, 765 P.2d at 774 (dangerousness evaluated
according to “ordinary knowledge common to the community” that uses the
product). The ordinary operator of a heavy machine tool would be properly
trained.
The ordinary operator of a press brake would also heed the warnings on the
machine and in the instruction manual. See Hutchins v. Silicone Specialities, Inc.,
881 P.2d 64, 67 (Okla. 1993) (manufacturer not required to foresee that
professional users of product would ignore warnings and then use product in
exact manner warned against). The warnings on the press brake were sufficient to
make the machine not unreasonably dangerous, as it covered all the salient
dangers accompanying its operation. See McPhail, 529 F.3d at 958. A sign
warned that the footswitch could not protect the operator from injury, and that the
operator’s fingers or hands could be crushed. Another sign warned the operator
not to place his hands in the machine and to read the instruction manual before
operating the machine. A Cincinnati representative testified that the press brake’s
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manual warns that if, for some reason, an operator needs to place his hands in the
die area, then he should use a block to prevent the ram from descending or turn
off the operator control. (It appears this manual was chained to the machine for
any operator to look through.) Had these instructions been followed, Braswell
would not have been injured.
While the warnings, admittedly, did not cover the exact scenario presented
here—the danger of accidental activation via the footswitch while removing a
jammed piece of sheet metal—our prior cases do not require such granular
specificity for warnings. This is especially true when the ordinary user would be
aware of the specific danger. See Duane v. Okla. Gas & Elec. Co., 833 P.2d 284,
286 (Okla. 1992) (“[T]here is no duty on a manufacturer or seller to warn of a
product-connected danger which is obvious or generally known, and there is no
duty to warn a knowledgeable user of the product of the dangers associated
therewith.”); Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1334 (10th Cir. 1996) (no
need to provide “warning labels to identify so specifically the consequences of
misusing a product” when danger of “mixing all-purpose bleach with cooking oil
and boiling water” was apparent “to an ordinary user from the nature of the
product”). It is undisputed that Braswell knew of the exact danger he faced. He
admitted in his deposition that when a piece is jammed “[y]ou take your foot off
of the pedal” before reaching into the machine. Aplt. App. 54. Unfortunately,
Braswell neglected to do just that.
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Nevertheless, we have expressed concern where a professional user would
have to ignore a warning designed to make the product’s operation safe while a
lingering unknown danger remained. For example, in one case we considered the
adequacy of a warning on a tractor that stated, “Danger. Start only from seat in
park or neutral. Starting in gear kills.” McPhail, 529 F.3d at 960. That warning
was insufficient because the manufacturer knew drivers would sometimes have to
“bypass start” the tractor, which requires the driver to stand outside the tractor
rather than remain seated. Id. at 959. The warning suggested that as long as the
tractor was in park or in neutral, then the danger was eliminated. Id. at 960. Yet
there was an additional unknown danger that the tractor could be in gear even
though it appeared to be in neutral. Id. Because the warning did not cover that
common scenario, and the driver would occasionally be outside the seat upon
starting (notwithstanding the warning against doing so), the warning provided was
not sufficient.
There are no similar concerns here. The press brake’s general warning to
not place one’s hand in the die area and the manual’s instruction to use blocks
sufficiently covered the scenario faced by Braswell. Unlike in McPhail, there is
no evidence the press brake’s operation routinely required users to not utilize the
safety device (i.e., the blocks). And, unlike in McPhail—where the driver was
unaware the tractor could be in gear when it appeared to be in neutral—Braswell
was not ignorant as to the particular danger he faced. While Braswell insists he
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had to ignore the warnings to remove a piece of jammed metal, the record
demonstrates this conduct was a result of either poor training or carelessness
rather than necessity. Indeed, a Ventaire employee testified to training Braswell
to use blocks to hold up the ram whenever he reached into the die area. Another
Ventaire employee testified that in his two and a half years operating the press
brake he never once had to place his hand directly in the die area. If a piece of
metal was inserted too far into the machine, he would pull it out from the front,
rather than reach into the machine to adjust it from the back. While Braswell
presents conflicting testimony that Ventaire never trained him on how to use the
blocks, nor ensured they were available to the press brake’s operators, he does not
dispute that Cincinnati’s manual advised using them.
In short, the ordinary operator of the press brake would have known of the
machine’s dangers and how to avoid them. That Braswell may not have taken the
correct precautions to avoid those dangers, or that Ventaire may have been
negligent, is no fault of Cincinnati’s. The warnings, if followed, made operating
the machine reasonably safe.
Finally, Cincinnati’s inclusion of the gated footswitch in its original model
provides us further assurance that the press brake was not unreasonably
dangerous. Accidental depression of the footswitch is a real danger, which is why
Cincinnati included a gated footswitch in the first place (among myriad other
safety devices). With that feature, the ram would not descend unless an operator
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purposefully lifted the gate with his foot. Braswell contends the gated footswitch
would not have prevented his injury because he never testified to removing his
foot back from the pedal—such that a gate, had it existed, would have fallen and
prevented his foot from accidentally returning to the pedal area. Only an anti-trip
footswitch, Braswell contends, would have prevented his injury. The district
court concluded otherwise, explaining that Braswell’s testimony “merely presents
a metaphysical doubt as to the material facts rather than a genuine issue.” Aplt.
App. 408 (internal quotation marks omitted).
But we need not answer the question of causation because Cincinnati had
no duty to guard against the danger that a press brake operator would leave his
foot on the pedal while removing a piece of jammed metal. An ordinary user of a
press brake would know not to have his foot on the footswitch when he did not
want the ram to descend, just as, say, an ordinary user of a gun would know not to
have the safety off when he did not want the gun to fire. See Smith v. Ron’s
Guns, Inc., No. MMXCV116004200, 2013 WL 453060, at *5 (Conn. Super. Ct.
Jan. 8, 2013) (“[A]n average handgun owner would clearly be aware that if they
carried a loaded gun, the gun could fire if its safety mechanism was not
employed.”). And, once he removed his foot, the ordinary user would be
protected from accidental depression by the gate. That was the only protection
Cincinnati needed to provide in this regard.
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While Braswell insists that Cincinnati is nevertheless liable because the
gated footswitch could be replaced by one without a gate, we are convinced that
an otherwise safe product is not made unreasonably dangerous if the manufacturer
fails to prevent the replacement of a part with a substandard aftermarket part. 4
See, e.g., Baughman v. Gen. Motors Corp., 780 F.2d 1131, 1133 (4th Cir. 1986)
(applying South Carolina law to hold that car manufacturer had no duty to “test[]
and warn[] against any of a myriad of replacement parts supplied by any number
of manufacturers”); Hoyt v. Wood/Chuck Chipper Corp., 651 So. 2d 1344, 1352
(La. Ct. App. 1995) (“A manufacturer’s duty to anticipate that users might replace
certain worn out parts on its product does not include the risks occasioned by the
use of improper or substandard replacement parts.”); Braaten v. Saberhagen
Holdings, 198 P.3d 493, 495–500 (Wash. 2008) (no duty to warn about danger of
asbestos-containing replacement parts manufactured by third-party). The ordinary
user of a press brake would be aware of the risk of accidental depression, and the
inclusion of a gated footswitch protects those users from all but the most careless
of accidents.
Accordingly, the press brake was not unreasonably dangerous. We agree
with the district court’s grant of Cincinnati’s motion for summary judgment on
the design defect claim. And, by extension, we agree that Braswell’s inadequate
4
Replacing parts necessary to a machine’s operation is a separate question
from removing its safety features altogether, the foreseeability of which we need
not address.
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warning claim fails too, as the warnings provided here apprised an ordinary user
of the relevant dangers. 5
B. Negligence Claim
Braswell also contends the district court erred in granting summary
judgment on his negligence claim. He contends (1) Cincinnati violated its duty of
care to design a reasonably safe press brake, and (2) the service technician’s visit
5
Because Oklahoma has just one test for whether a product is
unreasonably dangerous—the consumer expectations test—most cases treat design
defects and inadequate warnings as merely different methods of proof for the
same products liability claim. As a result, warnings sufficient to counteract an
otherwise dangerous design usually satisfy the manufacturer’s duty to warn, as
they do here. See Hutchins, 881 P.2d at 67 (warnings on water-proofing primer
made product not unreasonably dangerous even though “other primers containing
non-flammable ingredients were available on the market”); Smith v. U.S. Gypsum
Co., 612 P.2d 251, 255 (Okla. 1980) (approving a jury instruction where design
defect was defined as a dangerous feature “not readily apparent to the eye” which
could be cured with an adequate warning); see also McPhail, 529 F.3d at 958
(“[E]ven where a product’s design defect makes the product unreasonably
dangerous, Oklahoma law does not impose liability if the product contains a
warning that adequately addresses the known risks of use.”).
There are a few authorities that suggest otherwise, but they appear to rely
on the risk-utility test, which, as already noted, is not the governing rule in
Oklahoma. Compare Clark, 68 P.3d at 209 n.4 (acknowledging consumer
expectations test), with Steele ex rel. Steele v. Daisy Mfg. Co., 743 P.2d 1107
(Okla. Civ. App. 1987) (though warnings for air rifle were sufficient, design
defect question remained because it may “have been economically feasible to
have incorporated an automatic trigger safety device on the rifle”), and Vicki L.
MacDougall, Oklahoma Product Liability Law § 8:1 (“If a feasible alternative to
the design existed that would have avoided the risk of harm, the manufacturer
would be liable for the injures caused by the design defect even if adequate
warnings accompanied the sale of the product.”).
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imposed a duty on Cincinnati to ensure the machine was being operated safely.
We decline to reach these arguments because both have been waived.
“An issue is waived if it was not raised below in the district court.”
Wilburn v. Mid-South Health Dev., Inc., 343 F.3d 1274, 1280 (10th Cir. 2003).
This rule, however, “is not inflexible and the matter of what questions may be
taken up and resolved for the first time on appeal is one left primarily to the
discretion of the courts of appeals, to be exercised on the facts of individual
cases.” Forest Guardians v. U.S. Forest Serv., 495 F.3d 1162, 1170 n.7 (10th Cir.
2007) (quoting Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1229 (10th Cir.
1996)).
In Braswell’s original complaint, he included an allegation that Cincinnati
“negligently designed and manufactured” the press brake. Aplt. App. 14. When
Cincinnati moved for summary judgment, however, there was no mention of the
negligence claim, either in Cincinnati’s opening or reply briefs or in Braswell’s
response. Nevertheless, the district court, in a footnote, addressed Braswell’s
negligence theory, explaining that “[t]he manufacturer’s liability test of Kirkland
encompasses defects alleged to have been caused by negligence.” Aplt. App. 406
n.2 (citing Kirkland, 521 P.2d at 1365 (“[W]e believe that a defect . . . would also
include a defect caused by some form of negligence. The negligence action for
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products liability may thus be rendered unnecessary.”)). 6 The district court
entered summary judgment for Cincinnati.
Braswell filed a motion to reconsider, which the district court denied in a
minute order. In the motion, Braswell took issue with the court’s resolution of
his negligence claim. While acknowledging the district court’s conclusion that
negligent manufacturing was captured under the standard product liability test,
Braswell argued that he had made out an independent negligence claim based on
the Cincinnati service technician’s visit in 2007 to Ventaire to replace a computer
chip in the press brake.
Yet this was an entirely new claim. See Muskrat v. Deer Creek Pub. Sch.,
715 F.3d 775, 791 (10th Cir. 2013) (“New liability theories after summary
judgment are discouraged.”). Braswell’s complaint merely alleges that the press
brake had been “negligently designed and manufactured,” and mentions nothing
about a duty of care arising from a technician’s visit. Aplt. App. 14. Braswell
did mention the technician’s visit in his response to the motion for summary
6
Notwithstanding Kirkland, Oklahoma has not eliminated a freestanding
negligence claim for defective products. See Honeywell v. GADA Builders, Inc.,
271 P.3d 88, 96 (Okla. Civ. App. 2011) (“Even with the advent of strict products
liability, the negligence cause of action remains available to a plaintiff injured by
a defective product.”); Cochran v. Buddy Spencer Mobile Homes, Inc., 618 P.2d
947, 949 (Okla. Civ. App. 1980) (“Kirkland does not stand for the proposition
that the only recourse a plaintiff has when a defective product causes injury to
him or his property is an action in products liability.”). As a practical matter,
however, it is highly unlikely a plaintiff will prevail on a negligence claim when
he cannot do so on a products liability claim.
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judgment, but never explained how it related to any theory of liability (negligence
or otherwise). Unguided by the briefs, the district court analyzed the visit in
relation to the products liability claim that was being disputed, and concluded the
technician’s “work on the machine’s software did not impose a duty upon
Cincinnati to ensure that material modifications to safety features had not been
made.” Aplt. App. 409. Braswell’s attempt to repackage this fact in a new
argument—that the technician’s visit imposed on Cincinnati an ordinary duty of
care—in a motion to reconsider was not sufficient to preserve it for appeal. See
Anderson v. Unisys Corp., 52 F.3d 764, 765 (8th Cir. 1995) (declining to rule on
argument raised for the first time in motion for reconsideration when district court
did not address the argument).
Braswell has also not sufficiently pursued his negligent design and
manufacture claim. Cincinnati in its motion for summary judgment did not
mention the negligence claim, and neither did Braswell in his response. While
the nonmoving party generally “need only respond to the arguments asserted,”
there must be some evidence in the record that it pursued the claim prior to
raising it in a motion for reconsideration. Muskrat, 715 F.3d at 790. The
complaint included the phrase “negligently designed and manufactured,” Aplt.
App. 14, but Braswell gave no indication that he viewed this claim as separate
from the standard products liability claim, cf. Kirkland, 521 P.2d at 1365 (“[W]e
believe that a defect . . . would also include a defect caused by some form of
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negligence.”). In the absence of any discussion to the contrary in the briefs, the
district court reasonably assumed (given the state of Oklahoma law) that the
negligent design claim was subsumed under the products liability claim. Indeed,
Braswell conceded as much in his motion to reconsider. See Aplt. App. 427
(acknowledging district court’s dismissal of negligent manufacture claim but
arguing negligence claim was actually “with regard to the maintenance and
service aspect of [technician’s] contact with the press brake”). The mere fact that
Braswell included a throwaway reference to negligence in his complaint does
not—without any other evidence in the record showing he pursued the claim
below—entitle him to appellate review of the claim.
Accordingly, we decline to review any of Braswell’s negligence arguments.
III. Conclusion
Because the press brake was not unreasonably dangerous, Braswell’s
products liability claims fail. And Braswell has waived any arguments
concerning his negligence claim. Accordingly, we AFFIRM the district court’s
judgment.
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