Keyn Hernandez Islas v. D&G Manufacturing Co. Inc.
Published: Jul. 9, 2005 | Result Date: Apr. 21, 2005 | Filing Date: Jan. 1, 1900 |Case number: NC031034 Verdict – $1,020,000
Judge
Court
L.A. Superior
Attorneys
Plaintiff
John P. Blumberg
(Blumberg Law Corp.)
Defendant
Experts
Plaintiff
Jack Thomas
(technical)
Thomas F. Brown
(technical)
Facts
The plaintiff lost two fingers while operating a hydraulic shearing machine while in the employ of the defendant. The issue was whether it was a power press as defined by California Labor Code section 4558 and whether the employer had removed the manufacturer's safety guard. The defendant manufactured hand tools used to form cement. He had no prior experience operating industrial power machines. During the one month he was working for the defendant, his job was to sand the wood handles on the tools. He was then told to operate a sheet metal cutting machine to cut 1/8 inch off metal pieces that had been pre-formed by another machine. The machine had been designed by the manufacturer with a safety guard that prevented the operator's fingers from being exposed to the shearing blade. The defendant removed the safety guard and replaced it with a guard that exposed the operator's fingers to the point of operation where the blade descended onto the sheet metal. The machine was activated by a foot pedal. After being given 15 minutes of instruction, the plaintiff began cutting the metal pieces but inadvertently stepped on the foot pedal while he was positioning one of the pieces under the shearing blade. The little finger and ring finger were crushed and severed. The plaintiff filed a workers' compensation claim and a Superior Court action, claiming that the hydraulic shearing machine was a power press as defined by Labor Code section 4558. If an employer removes a safety guard from a power press, the employee may sue the employer for damages. In 2002, before trial, the defendant made a motion under C.C.P. section 405 for a preliminary determination by the trial court that the machine was not a power press. The court granted the motion and the plaintiff appealed. The Court of Appeal reversed, holding that the question of whether or not the machine was a power press must be determined by a jury, not the court. Islas v. D&G Manufacturing Co. (2004) 120 Cal. App. 4th 571, 15 Cal Rptr. 3d 559. The matter was then returned to the trial court for a jury trial. The defense contended that the machine was not a power press because a blade is not a die and that it did not impart shape but rather only trimmed off excess on the metal; that the employer thought its substitute safety guard was sufficient and that the plaintiff was contributorily negligent because he had been instructed to keep his foot away from the foot pedal except to activate the blades. The jury found that it was a power press, that the defendant removed the guard knowing of the probability of harm and that the plaintiff was not contributorily negligent.
Settlement Discussions
The plaintiff demanded $325,000; the defense offered $95,000.
Specials in Evidence
$21,070 $24,000
Injuries
Loss of two fingers (non-major hand).
Other Information
In exchange for plaintiff's agreement to limit punitive damages to $15,000, the defendant agreed to waive appeal.
Deliberation
2.5 hours
Length
seven days
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