Flowmaster, Inc. v. Superior Court

§ 3600.)^[1] The trial court denied the motion, and Flowmaster seeks review by this petition for writ of mandate.

The record shows that Flowmaster is in the business of manufacturing mufflers; it designed, fabricated and assembled hydraulic presses solely for internal use by its employees at the Flowmaster facility. The newest such device was “hydraulic press number 29.” Plaintiff was trained in the safe use of the device.

Plaintiff was injured on October 24,1991, while operating hydraulic press No. 29 (hereafter the press), which had been in use at the Flowmaster plant since September 16, 1991. Specifically, the function of the press was to manufacture a “center brace,” described as a “form part” four inches square, “with a hole in it.” The operator would initiate the manufacturing process by placing the part in the press, then pressing two electronically activated “deadman switches” with the palms of both hands. Only when both deadman switches were so activated was the operator able to depress a “foot pedal” to initiate the downward stroke of the press, thereby forming the center brace by forcing the cylinder down into the die. The two deadman switches were designed as “point-of-operation guards” to inhibit the “down” or “work” stroke of the press if the hands of the operator entered the point of operation “during the work.” Until the deadman switches were pressed with both hands, the descending stroke of the press could not proceed.

Both when it was first designed, and at the time of plaintiff’s injury, the press was equipped with a point of operation guard for the down stroke only. The ascending stroke of the cylinder was initiated merely by depressing a foot pedal, without any hand activation of a deadman switch, leaving the operator’s hands free. Flowmaster did not consider that the “up” stroke of the press presented a danger, as “there was nothing there to pull the part off.” Nor was Flowmaster at the time the press was designed “aware of how” to install a deadman switch for the ascending stroke although it knew that the technology existed to do so. The “standard in the industry” was to “have no control on the upward strokes.” With a modification of the wiring, however, the press was capable of functioning with a deadman switch to “stop the ‘up’ stroke.” Flowmaster had also designed other hydraulic presses with “light beams” as point of operation guards, which worked on both the descending and ascending strokes, but the light beam system was not dependable and was replaced with deadman switches.

Before plaintiff’s accident, the press was modified by addition of a “stripper plate” to “pull the parts off of the tool” during the “up” stroke of

press; and (b) that this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death. (2 Witkin, Summary of Cal. Law (9th ed. 1987) Workers’ Compensation, § 57, p. 618.)” (Saldana v. Globe-Weis Systems Co., supra, 233 Cal.App.3d 1505 , 1516.)

As no evidence of “removal” of a point of operation guard is revealed by the record,^[2] plaintiff must seek recovery under section 4558 for “failure to install” the requisite device, as that phrase is defined in subdivision (a)(2): “omitting to attach a point of operation guard either provided or required by the manufacturer, when the attachment is required by the manufacturer and made known by him or her to the employer at the time of acquisition, installation, or manufacturer-required modification of the power press.” Subdivision (c) of section 4558 further specifies that “[n]o liability shall arise under this section absent proof that the manufacturer designed, installed, required, or otherwise provided by specification for the attachment of the guards and conveyed knowledge of the same to the employer. Proof of conveyance of this information to the employer by the manufacturer may come from any source.”

Thus, under subdivisions (a)(2) and (c), liability for “failure to install” a point of operation guard under section 4558 must be predicated upon evidence that the “manufacturer” either provided or required such a device, which was not installed by the employer. (Swanson v. Matthews Products, Inc. (1985) 175 Cal.App.3d 901 , 906 [ 221 Cal.Rptr. 84 ].) The issues before us, which have not heretofore been resolved, center on the definition of “manufacturer,” and specifically whether that term includes an employer; and the meaning of the terms “provided” or “required” by the manufacturer, where, as here, there is no manufacturer other than the employer. In order to properly interpret the statute, we must ascertain the intent of the Legislature, which, in the factual context presented to us, is far from clearly expressed. (Nickelsberg v. Workers’ Comp. Appeals Bd. (1991) 54 Cal.3d 288 , 294 [ 285 Cal.Rptr. 86 , 814 P.2d 1328 ]; Seidler v. Municipal Court (1993) 12 Cal.App.4th 1229 , 1234 [ 16 Cal.Rptr.2d 90 ]; Agresti v. Department of Motor

“Section 4558 was enacted as part of an extensive overhaul of the workers compensation system designed to address perceived inadequacies in the rules.” (Jones v. Keppeler (1991) 228 Cal.App.3d 705 , 709 [ 279 Cal.Rptr. 168 ].) The exclusive remedy rules were strengthened, and the power press exception embodied in section 4558 became one of “only four circumstances under which a worker could bring a civil action against the employer.” (228 Cal.App.3d at p. 709.)^[3] “The obvious legislative intent and purpose in section 4558 is to protect workers from employers who wilfully remove or fail to install appropriate guards on large power tools. Many of these power tools are run by large mechanical motors or hydraulically. (Cal. Admin. Code, tit. 8, § 4188.) These sorts of machines are difficult to stop while they are in their sequence of operation. Without guards, workers are susceptible to extremely serious injuries.” (Ceja v. J. R. Wood, Inc. (1987) 196 Cal.App.3d 1372 , 1377 [ 242 Cal.Rptr. 531 ]; see also Graham v. Hopkins (1993) 13 Cal.App.4th 1483 , 1489 [ 17 Cal.Rptr.2d 82 ]; Saldana v. Globe-Weis Systems Co., supra, 233 Cal.App.3d 1505 , 1516; Bingham v. CTS Corp., supra, 231 Cal.App.3d at p. 65.) Thus, the Legislature has determined that recovery for injuries incurred during the course and scope of employment is limited to workers’ compensation benefits, but at the same time has recognized that employees who must use power presses, such as plaintiff, potentially require additional protection and compensation from the employer in a civil action in the event of injury.

Flowmaster insists that where the employer and manufacturer are the same entity, the section 4558 exception to the exclusivity rule is simply unavailable to an employee injured by a power press. Flowmaster further argues that even if section 4558 may be interpreted to include the employer-manufacturer of a power press, no liability may attach in the case before us absent evidence that the press was designed and manufactured to include a point of operation guard for the upward cycle of the machine, which was then either removed or not installed as specified. Flowmaster also emphasizes that the record contains no evidence that a manufacturer communicated knowledge of specifications to an employer for attachment of point of operation guards.

Nothing in the language, history or objectives underlying section 4558 convinces us that the Legislature intended that section 4558 would immunize employers who design, manufacture and install their own power presses

without point of operation guards. A manufacturer is defined broadly in section 4558 as a “designer, fabricator, or assembler of a power press.” (§4558, subd. (a)(3); Swanson v. Matthews Products, Inc., supra, 175 Cal.App.3d 901 , 906.) An “employer” is not excluded from the definition of a manufacturer, nor would doing so promote the objectives of the statute. By including section 4558 within the limited list of exceptions to the exclusivity rule, the Legislature has obviously recognized the extreme risk of serious harm to employees inherent in the use of power presses without guards to stop the sequence of operation. The intended protection afforded by section 4558 would seem no less imperative where the employer is itself the manufacturer of a power press.^[4] And when an employer has stepped out of the role of merely providing a work place, to become as well the manufacturer of large power tools used in the production process, “an ‘extra’ employer status or a relationship” has been created which “invokes a different set of obligations,” potentially rendering the employer subject to liability as “any third party tortfeasor.” (Cf. Bell v. Industrial Vangas, Inc., supra, 30 Cal.3d at p. 277; Watters Associates v. Superior Court (1991) 227 Cal.App.3d 1341 , 1346 [ 278 Cal.Rptr. 417 ].)

We are urged to limit an employer’s liability under section 4558 only to those cases in which it fails to install, or removes after installation, a point of operation guard that was already incorporated in plans and specifications for a power press. We cannot construe the statute in this manner, as to do so would in effect immunize the employer-manufacturer who, knowing the risk involved, nonetheless deliberately omitted specification and installation of the guard. Words used in a statute “should be construed in context, and . . . given such, ‘interpretation as will promote rather than defeat the general purpose and policy of the law.’ [Citation.]” (People v. Monroe (1993) 12 Cal.App.4th 1174 , 1184 [ 16 Cal.Rptr.2d 267 ], italics omitted.) Given the objectives of section 4558, we can make no logical distinction between an employer-manufacturer who removes, or fails to install, a guard which has been included in power press plans or specifications, and one who, knowing the risks, wilfully omits the guard from its own specifications.^[5]

The phrase “designed, installed, required, or otherwise provided by specification for the attachment of the guards” in section 4558, subdivision (c) is

phrased disjunctively. (Bingham v. CTS Corp., supra, 231 Cal.App.3d at p. 66.) If an inference can be drawn from the evidence that any of the terms above applies to the employer, liability may attach. (Ibid.)

We conclude that in an action against an employer-manufacturer of a power press, for failure to install a guard (§ 4558, subd. (a)(2)), the plaintiff must prove that the employer’s own design of the press provided for a guard which was later removed or never installed; or, alternatively, that one was “required” to protect against a known risk of serious injury, but was deliberately omitted by the employer from the design fabrication or assembly of the machine.* *^[6] Under our interpretation of section 4558 an employer may be liable even if the design of the press did not “provide” for attachment of a guard, as long as a guard was “required” to protect against a known risk of serious injury, and the press was capable of functioning with the required guard. The employee is thus protected as intended by section 4558, and the employer-manufacturer is liable only for an affirmative, wilful act of removal or for failure to install the guard.^[7]

As in any action under section 4558, an employee proceeding against an employer-manufacturer must prove more than merely an injury negligently and proximately caused by “the absence of a point of operation guard on a power press.” (Award Metals, Inc. v. Superior Court, supra, 228 Cal.App.3d at p. 1133.) The element of knowledge requires “actual awareness” by the employer—rather than merely constructive knowledge—that a point of operation guard has either been provided for or is required to

prevent the probability of serious injury or death. (Saldana v. Globe-Weis Systems Co., supra, 233 Cal.App.3d at pp. 1516-1517.)^[8] “Absent facts which would establish the employer’s knowledge or action regarding the absence of a point of operation guard on a power press, the incident would not come within the exception of section 4558, and an employee would not be entitled to bring ‘an action at law for damages’ arising from the power press injury.” (Award Metals, Inc. v. Superior Court, supra, 228 Cal.App.3d at p. 1134.) And, as we have observed, the employee must further prove that the employer or manufacturer “specifically authorized” the removal or non-installation of point of operation guard. (Ibid.', see also Swanson v. Matthews Products, Inc., supra, 175 Cal.App.3d at p. 908.) Specific authorization demands evidence of an affirmative instruction or other wilful acts on the part of the employer despite actual knowledge of the probability of serious harm. (§ 4558, subd. (a)(6).)^[9]

Turning to the evidence before us, we find recognition by Flowmaster of the risk posed by the ascending cycle of the press based upon testimony that the design of the first hydraulic press included a light beam safety device which was capable of stopping both the down and up strokes of the cylinder—a system which was later abandoned as unreliable. The deposition testimony indicates that the upward stroke of the cylinder was not considered dangerous by Flowmaster when the press was designed. Once the stripper plate was added, however, a reasonable inference from the evidence —abbreviated and confusing though the record may be—is that Flowmaster was then aware that a part was “stripped” from the press during the “up” cycle of the cylinder, creating an obvious risk of amputation or other serious injury to the operator’s hands. Flowmaster took no action to install a device to prevent the sequence of operation of the power press on the ascending cycle following the addition of the stripper plate. Only after the injury to plaintiff and a citation for a violation of safety regulations by OSHA did Flowmaster add—without serious difficulty or expense—a point of operation guard to the press. Liberally construing the evidence presented by plaintiff, as we must, triable issues of fact exist, which include: whether a point of operation guard was “required” and capable of being provided in order to prevent conditions known by Flowmaster to create a probability of serious injury or death to plaintiff on the ascending stroke of the press cylinder; and whether Flowmaster specifically authorized noninstallation of