WABASH METAL PRODUCTS, INC. v. AT PLASTICS CORPORATION, 258 Ga. App. 884

Smith, Presiding Judge. Brent Mitchell Dyer was injured while attempting to install a piece of heavy machinery at the partially completed manufacturing facility belonging to AT Plastics Corporation (AT Plastics). Dyer sued AT Plastics, the owner of the premises, and Wabash Metal Products, Inc. (Wabash), the manufacturer of the machine press that tipped over. Both defendants filed separate motions for

summary judgment. Finding genuine issues of disputed fact remaining as to Wabash’s negligence, the trial court denied Wabash’s motion. The trial court, however, granted

summary judgment to AT Plastics, finding that its failure to provide Wabash’s installation instructions to Dyer was not the proximate cause of Dyer’s injuries. In this appeal, Wabash contends that, in the absence of evidence that the machine press was top-heavy or unstable, it had no duty to warn Dyer that the press could be tipped over. Alternatively ¿ Wabash argues that if it breached a duty to warn Dyer, then AT Plastics likewise did so since AT Plastics failed to provide Dyer with Wabash’s shop manual, which included instructions and warnings pertaining to the installation of the press.

We find no merit in either argument and affirm. When viewed in the light most favorable to Dyer, as the nonmov-ant, the evidence shows that Dyer was injured when he and his supervisor, Hubert Rozier, were trying to install the machine press manufactured by Wábash and purchased by AT Plastics. At the time of the incident, Dyer was an employee of Mann Mechanical Company. KW&P, as the general contractor for the construction project, had engaged Mann Mechanical to serve as the subcontractor for the mechanical work.

In its role as subcontractor, Mann Mechanical was responsible for the installation of all heavy machinery. Mann Mechanical received its instructions from KW&P, not AT Plastics. Before shipping the press, Wabash had sent its customer, AT Plastics, a copy of the “Operation and Installation Manual” (O&I manual) for this particular machine press. Peter Connelly, the. project manager for AT Plastics, received a copy of that O&I manual. However, it is undisputed that this manual gives no wárning that the press is top-heavy or otherwise unstable.

Nor does the O&I manual warn against the use of “cribbing” or recommend not using that method to move the press into position. It is also undisputed that Wabash did not attach any warnings or affix any instructions to the press about proper moving or installation. The machine press arrived in May, and Dyer and Rozier tried to install it in August. In the meantime, the press was moved several times without incident. On August 2, 1998, Dyer and Rozier were working overtime at AT Plastics’s facility, which was still under construction.

Both men were licensed journeyman pipefitters, and both had extensive experience in installing heavy equipment. Dyer testified that during his work as a pipefitter, he had helped lift, move, or transport thousands of pieces of heavy machinery. By Dyer’s own calculation, he had previously moved over 100 similar pieces of equipment in his 25-year career. Rozier asked Dyer to assist him with setting the Wabash press into its designated location in a laboratory. At that time, the press was situated on a pallet jack.

Dyer and Rozier then set about to remove the press from the pallet jack and to place the press into its intended location. The press weighed 1,597.2 pounds and had the shape of a rectangular box, standing approximately 74 inches high, 36 inches wide, and 23 inches deep. The press was designed to sit flush on the floor and did not have legs. The O&I manual was not with the press, and neither man sought to secure a copy of it or to consult with Wabash about how to move the press safely.

Noting nothing unusual, Dyer and Rozier discussed the method they would use and decided to use cribbing to raise the machine, allow the removal of the pallet jack, and then lower the machine to the floor. Dyer and Rozier raised the pallet jack and placed cribbing underneath each of the four corners of the press. Their plan was to move the press to the floor by gradually removing the wooden blocks, first on one end and then the other. Rozier had a seven-foot pinch bar, a device similar to an extremely long crowbar.

Rozier succeeded in lifting the press enough to permit Dyer to remove the cribbing at one side, with the result that the press was no longer level. Intending to repeat the process on the opposite side, Rozier tried twice without success to step on the pinch bar to lift the press high enough to allow Dyer to remove the cribbing. Dyer asked Rozier to try a third time.

Using an adjacent cabinet to brace himself, Rozier turned his back to the press and to Dyer and stepped down onto the pinch bar with his feet and “mashed it all the way down with my total weight.” Both Dyer and Rozier testified that at that point, the press suddenly toppled over, trapping Dyer’s right leg underneath.

Dyer sued Wabash, claiming that the press was defectively designed, and alleging that the press “was top-heavy and/or had a high center of gravity which caused it to fall on plaintiff during the installation process.” Dyer also alleged that Wabash was negligent in failing to adequately warn him about the danger inherent in moving and tilting the press during installation. Dyer sued AT Plastics for failing to warn him of the dangers and for failing to supply him with a copy of the O&I manual. 1. Wabash contends that the trial court erred in denying its motion for

summary judgment. Wabash claims that the evidence shows that the press was not top-heavy, unstable, or an inherently dangerous piece of equipment to install. “[A] duty to warn can arise even if a product is not defective.” Battersby v. Boyer, 241 Ga. App. 115, 117 (526 SE2d 159) (1999). A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling, the seller is not liable.

Where, however, he has reason to anticipate that danger may result from a particular use, he may be required to give adequate warning of the danger, and a product sold without such warning is in a defective condition. (Citations omitted.) Id. “Whether a duty to warn exists thus depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. Such matters generally are not susceptible to

summary adjudication and should be resolved by a trial in the ordinary manner.” (Citation and punctuation omitted.) Yaeger v. Stith Equip. Co., 177 Ga. App. 835, 836 (341 SE2d 492) (1986). Moreover, the right to draw an inference of negligence lies peculiarly within the exclusive province of the jury. See Ogletree v. Navistar Intl. Transp. Corp., 271 Ga. 644, 647 (522 SE2d 467) (1999). Here, both Wabash and Dyer offered conflicting testimony as to whether the press was stable and, therefore, safe for normal handling.

Wabash’s director of engineering, Steven Michael, testified that nearly two-thirds of the weight of the press was located below its mid-point and that the vertical center of gravity was in the bottom of the machine. Michael specifically testified that the top half of the press weighed 596.2 pounds and the bottom half weighed 1,001 pounds. He concluded that the press was not top-heavy. Dyer, however, presented expert testimony to support his claims that the press was unstable and that Wabash should have affixed á warning to it.

Dyer submitted expert affidavits from two engineers, who relied upon drawings of the press and the depositions of witnesses, including Dyer and Rozier, to conclude that the press was unstable and dangerous to move or lift on one end. Both affidavits gave expert opinion that warnings were necessary, that the warnings provided by Wabash in its manual were inadequate, and that such warnings should have been placed on the side of the press and been provided to Dyer.

Whether the press was defectively designed and unsafe for normal handling and whether Wabash breached a duty to warn Dyer remain disputed issues requiring jury resolution. See Ogletree, supra. If, in fact, the press was top-heavy or unbalanced, then Wabash may have breached a duty to warn by not placing a warning or instructions on the press about moving and installing it or by not inserting a warning in the O&I manual for this piece of equipment. In light of the disputed evidence as to whether the press was top-heavy or a dangerous piece of equipment to move and install,

summary judgment was properly denied to Wabash. 2. Wabash appeals the award of

summary judgment to its co-defendant AT Plastics, but we find that the trial court did not err in granting

summary judgment to AT Plastics, for two reasons. First, it appears likely that, in accordance with the terms of its construction contract, AT Plastics had fully surrendered use and control over the construction site to its general contractor, KW&P at the time of the incident. From the record provided to this Court, it appears that KW&P had control of AT Plastics’s facility in August 1998 at the time of the incident and that no employees of AT Plastics were involved in the decision-making process of moving the press. See Tor-rington Co. v. Hill, 219 Ga.

App. 453, 455-456 (465 SE2d 447) (1995) (owner’s surrender of work site to independent contractor absolved it of liability). Second, even assuming without deciding that AT Plastics owed a duty to Dyer and further assuming that AT Plastics breached that duty to Dyer, no evidence shows that AT Plastics’s breach, if any, was the cause of Dyer’s injuries. Dyer’s claim against AT Plastics hinges solely on AT Plastics’s failure to provide a copy of the O&I manual for this machine press to him or his supervisor. But it is undisputed that the manual gives no warning that the press is top-heavy or otherwise unstable.

And Wabash vigorously denies that the press was either top-heavy or unstable and did not state anything to the contrary in the O&I manual that Wabash provided to AT Plastics. Although the O&I manual does describe the procedure for installing the press by using a crane and rigging to lift and lower it into position, it also provides instructions for using a forklift. Nothing in the installation instructions warns against the use of cribbing, the method being used by Dyer and Rozier to move the press into place when Dyer was injured.

In fact, nowhere does the manual advise against the use of cribbing or even suggest that cribbing not be used. Rozier testified that, even if he had read the manual, he would not have done anything differently. When asked if he would install the machine in the exact same way, even today, Rozier answered in the affirmative. Dyer’s own testimony about the handling of the press is even more compelling.

Dyer testified that he had used the same method — the use of cribbing to remove heavy machines from a pallet jack — “many, many, many times.” During his work as a pipefitter, Dyer had helped lift, move, or transport thousands of pieces of machinery weighing more than the piece of equipment here. As to this particular piece of machinery, Dyer testified, “It was stable when we set it down on the cribbing.

It was stable when we were bringing it down.” Dyer testified that even if he had received the general warnings about using caution and not tilting the press on one end that are contained in the O&I manual sent by Wabash to AT Plastics, he would not have installed the press in a different manner. While it is true that Dyer did testify that he would have heeded the warnings in the manual to the extent possible, Dyer also testified that he would have installed the press exactly as he and Rozier were doing at the time that it tipped.

Finally, although Dyer originally alleged that AT Plastics was negligent in failing to provide a copy of the O&I manual to him, Dyer apparently has conceded that the information in that manual would not have been helpful. Page 8 of Dyer’s supplemental appellate brief states the following: Dyer agrees with AT Plastics that the manual sent by Wabash to AT Plastics contained no statements prohibiting the use of cribbing or requiring an alternative method of installation.

Dyer also agrees with AT Plastics that there were no statements in the manual that the Wabash press might be top-heavy, had a high center of gravity, or may have been otherwise unstable. Page 10 of the same brief says that “Dyer agrees with AT Plastics that the information contained in the manual is inadequate as a matter of law.” Dyer goes on to concede that, if this is the case, “summary judgment in favor of AT Plastics should likely be affirmed.” Based upon these facts and Dyer’s concessions, even had AT Plastics provided the O&I manual to Dyer or Rozier, the outcome would have been the same. See Beman v.

Kmart Corp., 232 Ga. App. 219, 221 (3) (501 SE2d 580) (1998) (plaintiff must establish a causal link between defective condition and the injury). Because Dyer’s claim against AT Plastics hinges solely on AT Plastics’s failure to provide the O&I manual to him, no evidence shows that AT Plastics did anything or fáiled to do anything that caused the press to fall onto Dyer and injure him. Or stated another way, the record contains no evidence that AT Plastics’s failure to provide the O&I manual to Dyer proximately caused Dyer’s injuries. See Shadburn v. Whitlow, 243 Ga.

App. 555, 556-557 (533 SE2d 765) (2000) (absent some evidence affording a reasonable basis for establishing causation, defendant entitled to

summary judgment). For these reasons, AT Plastics was entitled to judgment as a matter of law. See id. Judgment affirmed. Ruffin, P. J., and Ellington, J., concur. Eldridge, Barnes, JJ, and Pope, Senior Appellate Judge, concur in part and dissent in part. Andrews, P. J., concurs specially in part and dissents in part, Cribbing involves the placing of pieces of wood or wooden blocks to raise an object from the ground.