Recently, in Kirkland v. Emhart Glass S.A., — F. Supp. 2d —-, No. C10-5125BHS, 2011 WL 1435454 (W.D. Wash. April 14, 2011), the District Court for the Western District of Washington denied a manufacturer’s motion for summary judgment on an injured glass worker’s claim under the Washington Product Liability Act (“WPLA”). The plaintiff, injured by molten glass while operating an Individual Section Machine, alleged that the machine lacked adequate warnings and failed to protect workers from injury resulting from “contact with red hot bottles on the conveyor while performing mold changes.” The manufacturer’s defense? The plaintiff’s injuries were not proximately caused by its failure to warn because the dangers of molten glass were open and obvious. Sounds reasonable. After all, in order for glass to be “molten,” it must be exceedingly hot. We doubt the plaintiff was wearing his winter coat while operating the machine.
However, the Court wasn’t buying it.
Sometimes the difference between winning and losing an argument isn’t the facts, but rather how the argument is framed. In opposition to the manufacturer’s motion, the plaintiff argued that its failure to warn claim was based on the manufacturer’s failure to provide adequate instructions to the plant operator
[a]bout how to reduce or eliminate the known hazard of workers coming into contact with extremely hot bottles on the conveyor when working over the conveyor, despite expressly acknowledging the need for such instructions in [their] Technical Report regarding Individual Section machines. (emphasis added)
See what they did there? They incorporated the open and obvious nature of the molten glass right into their argument. I’ll take your “open and obvious” and raise you one “failure to provide instructions.” The dangers remain open and obvious, but apparently, it’s the manufacturer’s fault for not providing a remedy. To support his argument, the plaintiff produced evidence that the plant operator installed a protective shield following the plaintiff’s accident. (Don’t worry, the Ninth Circuit previously held Federal Rule of Evidence 407 only applies to a defendant‘s remedial measures).
The manufacturer was right. The dangers of molten glass are open and obvious. However, sometimes being right just isn’t enough.