Schneider v. Caterpiller, Inc. , 301 F. App'x 755 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 3, 2008
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JACOB ROBERT SCHNEIDER,
Plaintiff-Appellant,
v. No. 08-1111
(D.C. No. 1:06-CV-02227-LTB-BNB)
CATERPILLAR, INC., (D. Colo.)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.
Plaintiff-appellant Jacob Robert (“J.R.”) Schneider appeals the district
court’s grant of summary judgment to defendant Caterpillar, Inc., on his claim of
product liability. The case stems from an accident in 2004 in which
Mr. Schneider was crushed while riding on a screed, a piece of asphalt-paving
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
equipment manufactured by Caterpillar. 1 In granting summary judgment to
Caterpillar, the district court held that the screed was “manufacturing equipment”
as defined under Colorado law, and that, as a matter of law, it did not contain a
“hidden defect.” Colorado’s statute of repose therefore barred Mr. Schneider’s
claims. We reverse.
To understand this case, it is helpful to know a little about the
asphalt-paving process, particularly the function and operation of screeds. In the
paving process, hot mix asphalt is poured into a hopper attached to the front of
the paver. The hot mix is then moved by a conveyor to the rear of the paver
where augers distribute the hot mix to the screeds. A screed is an attachment at
the rear of the paver which applies the asphalt at the desired depth and then
compacts and smooths it. After the paver/screeds make their pass depositing
asphalt, rollers follow to compact and roll the asphalt to the proper density and
surface texture.
The paver involved in this accident had two screeds, one attached to each
side of the paver. It takes three people to run this paving machine, an operator
located atop the central paver, and one operator who stands on each screed. The
screeds can be extended or retracted by means of a hydraulic device on either side
1
It is undisputed that, although Caterpillar, Inc., is the named defendant, the
products involved in this case were actually manufactured by Caterpillar Paving
Products Inc., a wholly owned subsidiary of Caterpillar. Early on, Caterpillar
agreed that it was unnecessary for Mr. Schneider to amend his complaint to
correctly identify defendant.
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to allow for varying widths of asphalt application. The screed extensions can be
extended or retracted independently. The right screed extension can be operated
by a toggle switch on the far right side of the screed and the left screed extension
can be operated by a toggle switch on the far left side of the screed. In addition,
there is a panel box mounted on each screed with a toggle switch, and there are
switches mounted on the paver-operator’s control panel. Thus, the hydraulics are
operated by a total of six extension-control-toggle switches, three for each side.
The screed includes an extension tube that extends or contracts with the screed
when the hydraulics are operated.
Once the screed is activated by one of the toggle switches, the movement
cannot be overridden or interrupted by another switch. To stop the motion of the
screed, the same toggle switch that initiated the action must be used to reverse it.
Neither the screed nor the paver has an emergency or master-control switch that
can interrupt or override the activation or movement of the screed.
At the time of the accident, Mr. Schneider was an employee of LaFarge
North America and was working as part of an asphalt-paving crew, although, on
the day of the accident, he was not working on either the paver or the screed.
Instead, he was assigned to operate a landscape tractor and to use a rake and
shovel to groom the new asphalt so that joints where the new asphalt abutted
earlier laid asphalt or concrete gutters would be sealed and smooth. After the
paver completed one particular pass and was backing up to begin another,
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Mr. Schneider decided to ride on the screed-extension tube as the paver backed
up. This saved him from having to run back to the other end of the job in the 110
degree weather to be ready for the next pass. For some unknown reason, as
Mr. Schneider was sitting on the extension tube, the screed began to retract,
crushing him. The retraction stopped, and the screed extended slightly, but then
it retracted again crushing Mr. Schneider a second time and causing serious
injury. After hearing Mr. Schneider’s screams and while the accident was still in
progress, two of the operators on the paver/screed tried repeatedly and without
success to stop the retraction by operating the toggle switches at their various
stations. It is unknown why the retraction finally stopped.
Mr. Schneider filed suit alleging strict product liability and negligence.
Caterpillar moved for summary judgment, arguing that Colorado’s statute of
repose, Colo. Rev. Stat. § 13-80-107, bars claims against it seven years after the
equipment is first put into use. 2 The parties do not dispute that the machine was
first put into use more than seven years before Mr. Schneider’s accident. The
2
Colo. Rev. Stat. § 13-80-107(b) provides in pertinent part:
no such [product liability action for personal injury] shall be
brought on a claim arising more than seven years after such
equipment was first used for its intended purpose by someone not
engaged in the business of manufacturing, selling, or leasing such
equipment, except when the claim arises from injury due to hidden
defects . . . .”
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dispute here centers on whether, as a matter of law, there was a “hidden defect” in
the screed that would except this action from the statute of repose. 3
In its order, the district court carefully analyzed whether the screed was
“manufacturing equipment” and concluded that it was. That conclusion is not at
issue on appeal. We turn, therefore, to whether, as a matter of law, there was no
genuine issue of material fact as to the existence of a hidden defect in the
paver/screed.
As the forum state, Colorado provides the substantive law in this diversity
case, and whether that law was properly determined by the district court is a
question we review de novo. Eaton v. Jarvis Prods., 965 F.2d 922, 925 (10th Cir.
1992). Because Caterpillar is the moving party, it had the burden of showing that
it was entitled to summary judgment, id. at 925-26, while Mr. Schneider is given
considerable latitude to prove the existence of a factual controversy, Davidson v.
Am. Online, Inc., 337 F.3d 1179, 1182 (10th Cir. 2003).
This court reviews a summary judgment decision de novo,
viewing the evidence in the light most favorable to the non-moving
party. Summary judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any affidavits show
3
Unlike a statute of limitations, a statute of repose may bar a
claim before the injury occurs. A statute of repose limits the liability
of a manufacturer or seller by setting a fixed time after the sale or
first use of an item beyond which the manufacturer or seller of that
item will not be held liable.
Anderson v. M.W. Kellogg Co., 766 P.2d 637, 640 (Colo. 1988) (en banc) (citation
omitted).
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that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”
Archuleta v. Wal-Mart Stores, Inc., 543 F.3d 1226, 1231 (10th Cir. 2008)
(quoting Fed. R. Civ. P. 56(c)) (citation omitted).
Colorado law defines a defect as not simply a mechanical or functional
defect but “one which makes the product unreasonably dangerous.” Wayda v.
Comet Int’l Corp., 738 P.2d 391, 393 (Colo. App. 1987), overruled on other
grounds by Anderson v. M.W. Kellogg Co., 766 P.2d 637, 643 (Colo. 1988) (en
banc). “[F]or a product to contain a ‘hidden defect[,]’ . . . it must have a defect
that creates an unreasonably dangerous condition which is not readily apparent.”
Wayda, 738 P.2d at 393. Something that is an “open and obvious danger” is not a
hidden defect. Compare Eaton, 965 F.2d at 929 (lack of trigger guard on large
hydraulic slaughter-house-meat cutter too obviously dangerous to be hidden);
Anderson, 766 P.2d at 644 (same for lack of guard where the underside of a
conveyor belt met a head pulley); with Wayda, 738 P.2d at 393 (issue of fact as to
whether erratic timing of rotation arm inside vacuum thermo-forming machine
was unreasonably dangerous); Niemet v. Gen. Elec. Co., 843 P.2d 87, 91
(Colo. App. 1992) (defect hidden where it could not be discovered until
transformer was cut in half).
The test for determining whether a defect is hidden is an objective one and
requires a judgment as to “whether the defect was not readily apparent or
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discoverable by a reasonably prudent user.” Anderson, 766 P.2d at 643. Other
than in a summary judgment context where the movant may be able to show that
no genuine issue of material fact exists as to the presence of a hidden defect, see,
e.g., Eaton, 965 F.2d at 928; Anderson, 766 P.2d at 644, the hidden-defect
question is normally a question of fact, Urban v. Beloit Corp., 711 P.2d 685, 687
(Colo. 1985) (en banc); Wayda, 738 P.2d at 393.
On appeal, Mr. Schneider argues that the lack of any clear means to stop
the screed retraction was hidden and not obvious. The district court disagreed,
holding:
The first alleged defect – no way to override an inadvertent
activation of one of the screed extension activation switches – cannot
be considered hidden. At the February 28, 2008, hearing, Plaintiff
repeatedly described the defect as “failure to provide clear means” to
override an accidental switch activation. Plaintiff’s expert, Olaf [sic]
Jacobson, likewise described the defect as the failure to include
“clear identification of the shut off procedure and an easily
accessible, clearly marked emergency button,” “a red mushroom
shaped button,” “an emergency shutoff switch that is clearly
identified,” or “clear means to stop the screed retraction.” Compared
to Niemet [v. General Electric Co.], 843 P.2d 87 – in which the
defect in an electrical transformer was not discoverable until the
transformer was cut in half – the lack of a “clearly marked” override
switch, “red mushroom shaped button” or other “clear means” to stop
the screed retraction would have been immediately obvious had
anyone bothered to look.
Aplt. App. Vol. II at 437-38.
As noted above, summary judgment is inappropriate if there is a genuine
issue as to any material fact. See Fed. R. Civ. P. 56(c). Mr. Schneider argues
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that a genuine issue of material fact exists as to whether the design of the
paver/screed contained a hidden defect. We agree.
The dispute over whether there was a hidden defect results from the
contrary evidence provided by the expert witnesses for each side. See Wayda,
738 P.2d at 393 (holding professional engineer’s conclusion that machine at issue
was defective raised genuine issues of fact regarding the existence of a hidden
defect). We refer here only to the major conflict in the evidence from each party.
After studying the physical evidence, the design of the paver, and the
actions of the various individuals involved, Olof Jacobson, a mechanical engineer
retained by Mr. Schneider, concluded that “[t]he injury was caused by defects in
the design of the Caterpillar paver.” Aplt. App. Vol. I at 165. Further,
[t]he control system was designed defectively, resulting in
unexpected response to operator actions when more than one toggle
switch was actuated. The function and response of the controls is not
described in operating manuals, nor is the switch operation described
to operators in training provided by Caterpillar. This defect in the
control system was hidden and did not become apparent until the
accident was in progress. Caterpillar did not consider this defect
during design and Caterpillar was apparently not aware of how the
control system would respond until testing was performed in 2007.
Id. Mr. Jacobson further concluded:
Proper design of a control system for such a machine should include
a master control or an emergency shutoff switch that is clearly
identified on the machine and in the operator’s manuals. In an
emergency, it should be clear to all personnel how to stop the screed
retraction. As designed, the subject paver control system had no
means to stop the screed from retracting. Once it became known that
J.R. Schneider was being injured, the operators did not know how to
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stop the screed from moving. This confusion is the result of
defective design of the control system.
Id. at 162. “This defect is hidden and not obvious.” Id. at 163.
In contrast to this evidence, Michael Netka, the worldwide product support
manager for Caterpillar Paving Products Inc., testified that, in preparation for his
deposition, he had tested the screed controls to determine what would happen if
one of the screed controls was activated to move the screed in an outward
direction and then a second control was activated to retract the screed. As
happened in the accident, nothing happened when the second control was
activated. The screed continued moving in the original direction as dictated by
the operation of the first switch. Id. at 251-52. Mr. Netka testified that he did
not believe the absence of an override function on the screed controls to be
dangerous. Id. at 253. He further testified that he saw no problem in the fact that
none of Caterpillar’s literature points out to a user that there is no override
facility for the screed controls. Id. at 253-54.
As mentioned, the district court held that the lack of a “way to override an
inadvertent activation of one of the screed activation switches [] cannot be
considered hidden.” Id. Vol. II at 437. As support the district court cited the
argument of Mr. Schneider’s counsel at the summary-judgment hearing who had
described the defect as “failure to provide clear means” to override. Id. The
court also referred to Mr. Jacobson’s evidence describing the defect as the
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“failure to include ‘clear identification of the shut off procedure and an easily
accessible, clearly marked emergency button,’ ‘a red mushroom shaped button,’
‘an emergency shutoff switch that is clearly identified,’ or ‘a clear means to stop
the screed retraction.’” Id. at 437-38. The court concluded that the absence of
any of these “clearly marked,” or “red mushroom-shaped button” or other “clear
means” to interfere with the screed extension “would have been immediately
obvious had anyone bothered to look.” Id. at 438.
We think this conclusion misses an essential point, namely that, until this
accident happened, no one knew that there was no override capacity to reverse the
operation of the screeds apart from reversing the toggle switch that had caused the
operation in the first place. A reasonably prudent user would notice the absence
of any stop button, including a red mushroom-shaped one, only if it was apparent
that such a button should be present in the first place. But it was not apparent
simply by looking at the paver, the screeds, or the toggle switches or by operating
them in a normal way that the screed and the paver were designed so that there
was no capacity for one switch to override another. In fact, Mr. Netka, the
Caterpillar expert, had to study the technical specifications of the paver and
perform his own field test before he clearly understood the screed-control
situation. Contrary to the district court’s theory, we are not persuaded that “had
anyone bothered to look,” they would have noticed this defect. We think,
therefore, that there is a genuine issue of material fact as to whether the
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paver/screed contained a hidden defect. Because this record, taken as a whole,
could ultimately lead a rational trier of fact to find for Mr. Schneider, a genuine
issue of material fact remains for trial. Cf. Ulissey v. Shvartsman, 61 F.3d 805,
808 (10th Cir. 1995).
The judgment of the district court is REVERSED, and this case is
REMANDED for further proceedings in accordance with this order and judgment.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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