IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JASON REGAN, 

Plaintiff, 

v. 

SIERRA INTERNATIONAL MACHINERY, 

LLC, 

Defendant. 

PAP AK, Magistrate Judge: 

3:15-CV-2302-PK 

OPINION AND 

ORDER 

Plaintiff Jason Regan (a citizen of Oregon) filed this action against defendant Siena 

International Machine1y, LLC ("Siena") (a citizen of California), in Multnomah County Circuit 

Court on September 30, 2015. Siena removed Regan's action to this court effective December 

Page 1 - OPINION AND ORDER 
10, 2015, on the ground of diversity jurisdiction.' 

By and through his complaint, Regan alleges that he was at all material times employed 

by Bob's Metals, Inc. ("Bob's"), in Portland, OR, as a maintenance employee, and that in that 

capacity he was injured while working on a large, industrial machine distributed and sold to 

Bob's by Sierra. It is Regan's position that the design of the machine was unreasonably 

dangerous, and that it had been sold to Bob's without adequate warnings of the risks it presented. 

Arising out of the foregoing, Regan alleges Sierra's liability (i) under Oregon's products liability 

law on a strict products liability theory, and (ii) under Oregon common law for negligence. 

Regan seeks $750,000 in non-economic damages and approximately $52,000 in economic 

damages, plus reimbursement of his costs. This court has diversity jurisdiction over Regan's 

claims pursuant to 28 U.S.C. § 1332, based on the complete diversity of the parties and the 

amount in controversy. 

Now before the court are Sie1Ta's motion (#15) for summmy judgment and Regan's 

informal request for leave to amend his complaint to state pmiicularized allegations of Sierra's 

negligence. I have considered the motion and the info1mal request, oral argument on behalf of 

the parties, and all of the pleadings and papers on file. For the reasons set forth below, Regan's 

informal request for leave to amend is granted, Sierra's motion(# 15) for summmy judgment is 

granted as to Regan's products liability claim and denied as moot with leave to refile as to 

Regan's negligence claim, summary judgment is entered in Siena's favor as to Regan's products 

liability claim only, and Regan is directed to amend his pleading within fou1ieen days of the date 

1 Sierra has taken the position that it did not learn of Regan's state of citizenship until 

November 25, 2015, and Regan has not challenged the propriety of removal on timeliness 

grounds. 

Page 2 - OPINION AND ORDER 
hereof to re-allege his negligence claim (only) stating particularized allegations of Sierra's 

complained-of negligence. 

LEGAL STANDARD 

Summary judgment is appropriate "if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 

56(a). A party taking the position that a material fact either "cannot be or is genuinely disputed" 

must support that position either by citation to specific evidence of record "including depositions, 

documents, electronically stored infonnation, affidavits or declarations, stipulations (including 

those made for purposes of the motion only), admissions, inte!Togatory answers, or other 

materials," by showing that the evidence ofrecord does not establish either the presence or 

absence of such a dispute, or by showing that an opposing pmty is unable to produce sufficient 

admissible evidence to establish the presence or absence of such a dispute. Fed. R. Civ. P. 56( c ). 

The substantive law governing a claim or defense determines whether a fact is material. See 

}vforelandv. Las Vegas lvletro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998). 

Summary judgment is not proper if material factual issues exist for trial. See, e.g., 

Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116 

S.Ct. 1261 (1996). In evaluating a motion for sunnnary judgment, the district courts of the 

United States must draw all reasonable inferences in favor of the nomnoving party, and may 

neither make credibility dete1minations nor perform any weighing of the evidence. See, e.g., 

Lytle v. Household }vlfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing 

Products, Inc., 530 U.S. 133, 150 (2000). 

Page 3 - OPINION ;.\ND ORDER 
FACTUAL BACKGROUND 

I. The Parties 

Plaintiff Regan is a citizen of Oregon who at all material times was employed as a 

maintenance worker at Bob's in Portland, Oregon. 

Defendant Sierra is a California limited liability corporation headquartered in California, 

the members of which are California citizens. At all material times, Sierra was engaged in the 

business, inter alia, of distributing, selling, and servicing industrial machinery. 

II. The Parties' Dispute2 

Prior to the events Regan complains of, Bob's purchased a T700 SBL Shear/Baler/Logger 

machine (the "Shear Machine" or the "baler") from Sierra. See Complaint, if 1 ( c ). The parties 

appear to agree that the Shear Machine is intended to shear scrap metal into small pieces, and 

that it uses a set of cutting blades for that purpose. It appears that the Shear Machine weighs 700 

tons, and that its cutting blades are accessible for maintenance purposes, including for 

replacement of the blades (which must take place approximately every two months), through a 

heavy top-hinged steel door that plaintiff has calculated as weighing 393 pounds. See id, if 2. It 

is undisputed that the primary purpose of the door is to prevent chunks of sheared metal from 

being projected out from the Shear Machine, which otherwise might "literally fire out like 

bullets .... " Declaration of John M. Socolow ("Socolow Deel."), Exh. E (Deposition of Stephen 

Simmons ("Simmons Depo."), 40:5-22. The door that affords access to the cutting blades is 

sufficiently heavy to require that it be lifted by a forklift, following which it must be held in the 

2 Except where otherwise indicated, the following recitation constitutes my construal of 

the evidentiary record in light of the legal standard governing motions for summaiy judgment 

under Federal Civil Procedure Rule 56. 

Page 4 - OPINION AND ORDER 
vertical, open position by a chain secured to the machine itself. See Socolow Deel., Exh. H 

(Declaration of Guillermo Sandoval ("Sandoval Depo.")), 23:3-8. The Shear Machine contains 

no mechanism for raising the door, which cannot move upwards on its own without being lifted 

by an external force. See Simmons Depo., 100:16-18; Socolow Deel., Exh. I (Declaration of 

Michael Weinstein ("Weinstein Depo.")), 72:19-73:11. 

The Shear Machine was designed and manufactured in Italy by an entity not named as a 

party herein prior to its distribution by Sierra. See id., 17:17 - 18:25. In 2009, Sierra sold the 

Shear Machine to Bob's, installed it at Bob's' scrap-metal recycling facility, and trained Bob's 

personnel in its use. See Socolow Deel., Exh. F (Deposition of Enrique Robles ("Robles 

Depo.")), 46:3-25. Sierra personnel specifically trained Bob's personnel in how to change out the 

Shear machine cutting blades. See id., 52:9-54:12; see also Socolow Deel., Exh. G at 4. 

During training and installation, Sierra employees advised Bob's personnel that the 

preferred method for securing the door in the vertical, open position after it had been lifted to that 

position with a forklift is for a person to access the chain through the use of a "safety harness, a 

basket, or [a] man lift." Robles Depo., 54:2-3. When Sierra employees change out cutting 

blades on shear machines at their own facility, they use a custom-built platform for the person 

accessing the chain while the door is being lifted by a forklift operated by a second person. See 

Sandoval Depo., 22: 18-23. Sierra personnel counseled Bob's personnel that it was up to them to 

develop their own safe procedures for securing the door in its vertical, open position while it was 

being held open by a forklift. See id., 52:9- 54:12; Simmons Depo., 98:3 - 100:11. Bob's 

personnel understood from Sierra's training and from the owner's manual that it would be up to 

Bob's' maintenance mechanic "to come up with his best practice" for opening and closing the 

Page 5 - OPINION AND ORDER 
Shear machine door. Weinstein Depo., 67:5-11. It is the testimony of Bob's' Federal Civil 

Procedure Rule 30(b)(6) corporate representative that, "[flor purposes of opening the ... door 

and keeping it open to perform maintenance on the shear blade," the problem of doing so safely 

was of a nature that "an experienced mechanic should know what to do." Id., 70: 15-21. Bob's' 

corporate representative testified that "the door, as designed," was not seen to be a hazard "if it's 

properly addressed," and that "an experienced mechanic should be able to remediate any danger 

from it." Id., 72:1-6. 

At or around that time it sold the Shear machine to Bob's, Sierra provided Bob's with the 

machine's owner's manual or operations manual. See Simmons Depo., 58:6-17, 22: 12-22. The 

second page of the Shear Machine owner's manual consists of a series of warnings in large and 

bolded font stating in part as follows: 

• THE PERSONNEL RESPONSIBLE FOR THE OPERATION 

AND MAINTENANCE OF THIS BALER MUST BE FAMILIAR 

WITH THIS MANUAL PRIOR TO OPERATING OR 

MAINTAINING THIS EQUIPMENT. 

• SIERRA ... ACCEPTS NO RESPONSIBILITY FOR 

CONDITIONS CAUSED BY INAPPROPRIATE ... 

MAINTENANCE OF THE BALER. 

• SIERRA RECOMMENDS THAT THIS iVIANUAL BE KEPT IN 

OR NEAR THE MACHINE AT ALL TIMES. 

• IT IS THE RESPONSIBILITY OF THE OWNER TO ASSURE 

THAT THE MACHINE IS ... MAINTAINED BY QUALIFIED 

PERSONNEL. 

NOTICE: DEATH OR SEVERE INJURY CAN OCCUR IF PROPER 

SAFETY PRECAUTIONS ARE NOT FOLLOWED 

• The purpose of this manual is to highlight the safety features of 

the equipment and to provide guidance in the operation and 

maintenance of the machine. Sierra ... asks that all users read 

Page 6 - OPINION AND ORDER 
and familiarize themselves with the contents of this manual and 

that the owner shall provide comprehensive safety and operational 

training to all personnel associated with operation and 

maintenance of the equipment. 

• Upon delivery and acceptance by the customer, it is the 

responsibility of the owner to develop, implement, monitor and 

enforce such measure!> as he/she determines necessary to assure safe 

operation and maintenance of the equipment. 

Socolow Deel., Exh. 0 (Report of Thomas R. Fries, P.E. ("Fries Report")) at 11 (bolded 

emphasis original; italicized emphasis supplied). 

On December 18, 2013, Regan, who had at that time been employed as Bob's' lead 

mechanic for over a year, worked with his assistant, Trevor Ford, to replace the Shear Machine 

cutting blades. See Affidavit of R. Brendan Dummigan ("Dummigan Aff. "), Exh. B (Declaration 

of Jason Regan ("Regan Deel.")), i!il 2-3. At that time, Regan had previously changed out the 

blades three to five times, each time with Ford's assistance. See Socolow Deel., Exh. K 

(Deposition of Jason Regan ("Regan Depo.")), 80:20 - 81 :2, 81 :7-10. Before Ford began lifting 

the door with a forklift, Regan climbed more than seven feet up the side of the Shear Machine 

and positioned himself above the door and within its path of motion to wait for it to be raised to a 

sufficiently high position that he could secure it with its chain. See Regan Deel., i!il 5-6; see also 

Regan Depo., 82: 19- 84: 16; 99:24 - 100:19. It was at that time Bob's express policy always to 

use a safety cage and harness when going up above four feet. See Socolow Deel., Exh. L 

(Deposition of Trevor Ford ("Ford Depo.")), 14:3-6. A man lift and a safety basket were 

available for Regan's use at that time, and Bob's does not know why Regan did not use them on 

that occasion. See Weinstein Depo., 76:2-25. Regan understood how to use both the man lift 

and the safety basket at the time. See Regan Depo., 70: 10-19. Regan did not believe at the time 

Page 7 - OPINION AND ORDER 
that there was insufficient space to access the chain with a man lift while the door was being 

lifted with a forklift. See id., 98:1-4. 

Ford later testified that, according to the procedures that Bob's had followed seventy 

times prior to December 18, 2013 (and that he himself had followed some thirty times prior to 

that date), "you don't climb up [to the door of the Shear Machine] until the door is up," but that 

on this occasion Regan neve1iheless "climbed up on top of it before it was even ready." Ford 

Depo., 14:10-24. Ford specifically characterized Regan's election to climb the machine before 

the door was open as having "jumped the gun" or as having gone up "too early," testifying that 

the door "regularly swings open" when being lifted by the forklift. Id., 15:1-10. Ford testified 

that on all previous occasions of changing the blades of which he was aware, including the 

occasions on which Regan had previously secured the door with its chain, he had never seen 

anyone climb the machine prior to the door being lifted all the way into place. See id., 32:6-17. 

Ford testified that the reason the door swings is that the forklift stands on a metal plate while it is 

lifting the door, and the plate is of a size such that the rear wheels of the forklift slip off the plate 

during the lifting process causing the forklift to lever the door suddenly upwards. See id., 32:20 

- 33:9, 36:3-25. 

The precise circumstance described by Ford in fact occuned on this occasion, while 

Regan was in the path of the door (and immediately after he instructed Ford to raise the door 

higher notwithstanding that he was in its upward path), and the door popped upwards and struck 

him in the cheek, causing him to suffer injury. See Weinstein Depo., 72:7-18, 76:2-8; Regan 

Depo., 107:23-108:13; see also Socolow Deel., Exh. A (videorecording of the accident 

occuning). Bob's would not have expected this accident to occur had the forklift not slipped off 

Page 8 - OPINION AND ORDER 
the plate it was standing on. See Weinstein De po., 78 :4-15. Ford did not believe the accident 

was caused by any design defect in the door. See Ford Depa., 37: 14-17. 

After these proceedings were initiated, Regan retained two engineering experts, Thomas 

R. Fries and John T. Meyers, III. In deposition, Fries testified to his opinion that the accident 

would not have occurred had Regan not climbed up the Shear Machine before the door had been 

lifted to the vertical position, and that it also would not have occurred if Ford had not continued 

operating the forklift with Regan in the upward path of the door. See Socolow Deel., Exh M. 

(Deposition of Thomas R. Fries ("Fries Depa.")), 135:20-136:10. Fries nevertheless offered the 

opinion that the Shear Machine door was "umeasonably dangerous and defective with regard to 

changing the cutting blades" because the door is heavy, its top hinge created a "stored energy" 

hazard when the heavy door was lifted to its ve11ical position, and there were no specifically 

prescribed methods or procedures for opening it. Dummigan Aff., Exh. C ("Fries opinion") at 2-

3. Fries offered this opinion without having first inspected the Shear Machine. See id. at 3. 

Fries opined that the hazard could have been eliminated or reduced ifthe door were side-hinged, 

or ifthe door had been designed with "springs, winches, safety suppo11 poles, instructions, 

decals, and/or a platform that keeps the door open." Id. Fries testified that he had "[c]e11ainly 

not" tested any of these alternatives, Fries Depa., 90:24-25, that he had not performed any 

analysis of the alternatives, including any hazard analysis to determine whether they would be 

effective in reducing the risk associated with accessing the cutting blades, see id., 91 :14-23, 94:2-

8, 94:23-25, 95:3-5, 95:17-24, 95:25 - 96: 10, 97:17-25, 101 :7-11, and that the full extent of the 

hazard analysis he had perfonned was to formulate the conclusion that "raising the heavy door is 

dangerous," id, 91 :20-21, see also id., 92:3-6. Fries fm1her opined that the door should have 

Page 9 - OPINION AND ORDER 
been designed to bear a warning label warning that after the door had been lifted, "it needed to be 

held in place." Id., 112:12-14. 

Meyers proffered an opinion regarding the hazardous nature of the Shear Machine door 

that was expressly based on his "assumption" that Regan was struck by the door as it fell 

downward, an assumption which is flatly inaccurate. Socolow Deel., Exh. N (Deposition of John 

T. Meyers ("Meyers Depo.")), 87:18-19. 

Neither party offers evidence in specific connection with Regan's negligence claim, and 

(as will be discussed below) Regan's complaint contains no allegations characterizing any of 

Sierra's conduct as negligent. 

ANALYSIS 

As noted above, Regan alleges Sierra's liability under Oregon's statutory products liability 

law on a strict products liability theory, and under Oregon common law for negligence. I address 

the parties' arguments regarding Sie11'a's entitlement to summmy judgment as to each of Regan's 

claims in tum, below. 

I. Regan's Products Liability Claim 

The potential liability under Oregon law of a seller or lessor of an allegedly umeasonably 

dangerous product is governed by Or. Rev. Stat. § 30.920. Section 30.920 provides as follows: 

(1) One who sells or leases any product in a defective condition umeasonably 

dangerous to the user or consumer or to the property of the user or . 

consumer is subject to liability for physical harm or damage to property 

caused by that condition, if: 

(a) The seller or lessor is engaged in the business of selling or leasing 

such a product; and 

(b) The product is expected to and does reach the user or consumer 

without substantial change in the condition in which it is sold or 

Page 10 - OPINION AL'ID ORDER 
leased. 

(2) The rule stated in subsection (1) of this section shall apply, even though: 

(a) The seller or lessor has exercised all possible care in the 

preparation and sale or lease of the product; and 

(b) The user, consumer or injured party has not purchased or leased the 

product from or entered into any contractual relations with the 

seller or lessor. 

(3) It is the intent of the Legislative Assembly that the rule stated in 

subsections (1) and (2) of this section shall be construed in accordance 

with the Restatement (Second) of Torts sec. 402A, Comments atom 

(1965). All references in these comments to sale, sell, selling or seller 

shall be construed to include lease, leases, leasing and lessor. 

( 4) Nothing in this section shall be construed to limit the rights and liabilities 

of sellers and lessors under principles of common law negligence or under 

ORS chapter 72. 

Or. Rev. Stat. § 30.920. To determine whether a product is so umeasonably dangerous as to be 

in a defective condition when sold or leased, the Oregon courts apply a "consumer expectations" 

test, pursuant to which a product is deemed umeasonably dangerous if it is more dangerous than 

it would be expected to be by the "ordinary consumer" of such products, "with the ordinary 

knowledge common to the community as to its characteristics." Ewen v. lvlcLean Trucking Co., 

300 Or. 24, 27 (1985), quoting Restatement (Second) of Torts§ 402A, Comment i (1965). The 

Oregon Supreme Court subsequently clarified that, under Section 30.920, the comis were to 

apply only the consumer expectations test, and not any other test (as, for example, the so-called 

"reasonable manufacturer" test). See }vfcCathern v. Toyota }vfotor Corp., 332 Or. 59, 75-76 

(2001). 

The }vfcCathern court accordingly clarified that, under the Section 30.920 standard, the 

sole method available for a products liability plaintiff "to prove that a product was in a 'defective 

Page 11 - OPINION AND ORDER 
condition umeasonably dangerous to the user or consumer,"' id. at 77, quoting Or. Rev. Stat. § 

30.920(1 ), is to "prove that: (!) 'at the time it leaves the seller's hands, the product is in a 

condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to 

him,"' id. (internal modifications omitted; emphasis supplied), quoting Restatement (Second), § 

402A, Comment g (so defining "defective"), and "(2) 'the product is dangerous to an extent 

beyond that which would be contemplated by the ordinmy consumer who purchases it, with the 

ordinary knowledge common.to the community as to its characteristics,"' id. (internal 

modifications omitted; emphasis supplied), quoting Restatement (Second), § 402A, Comment i 

(so defining "unreasonably dangerous"). "Whether a product is dangerous to an extent beyond 

that which would be contemplated by the ordinary consumer is a factual question to be 

dete1mined by the jury." Id., citing Heaton v. Ford}vfotor Co., 248 Or. 467, 472-473 (1967). 

Notwithstanding the foregoing, "[i]t is the trial court's role . .. to ensure that the evidence is 

sufficient for the jury to make an informed decision about what ordinary consumers expect." Id. 

at 77-78 (emphasis supplied), citing Heaton, 248 Or. at 472-473. 

As noted in Heaton, in some cases, consumer expectations about how a product 

should perfonn under specific conditions will be within the realm of jurors' 

common experience. Heaton, 248 Ore. at 472. However, some design-defect 

cases involve products or circumstances that are "not so common * * * that the 

average person would know from personal experience what to expect." Heaton, 

248 Ore. at 473. When a jury is "unequipped, either by general background 

or by facts supplied in the record, to decide whether a product failed to 

perform as safely as an ordinary consumer would have expected," this court 

has recognized that additional evidence about the ordinary consumer's 

expectations is necessary. Heaton, 248 Ore. at 473-74. That additional 

evidence may consist of evidence that the magnitude of the product's risk 

outweighs its utility, which often is demonstrated by proving that a safer 

design alternative was both practicable and feasible. See Heaton, 248 Ore. at 

471 (user has right to expect reasonably safe design). 

Id. at 78 (internal modifications omitted; emphasis supplied). 

Page 12 - OPINION AND ORDER 
In addition to establishing that an ordinmy consumer of a given product would not 

contemplate the degree of risk the product presented by and through risk-utility balancing-

"which may include proof that a practicable and feasible design alternative was available," see id. 

- the }vfcCathern court noted that, alternatively, a products liability plaintiff could satisfy the 

consumer expectations test by and through a so-called "representational" approach, which 

requires the plaintiff to show that "the manufacturer specifically represented to the consuming 

public that the product would be able to perforn1 certain functions, when, in fact, it could not, 

resulting in the plaintiffs injmy," id. at 76, 79 (citations omitted). The comi specifically noted 

that: 

[E]vidence related to risk-utility balancing ... will not always be necessary to 

prove that a product's design is defective and umeasonably dangerous, i.e., that the 

product failed to meet ordinmy consumer expectations. However, because the 

parties did not dispute that evidence related to risk-utility balancing was necessary 

in this case, we leave for another day the question under what circumstances ORS 

30.920 requires a plaintiff to support a product liability design-defect claim with 

evidence related to risk-utility balancing .... 

Id. at 78-79. Quite recently, in 2016, the Oregon Co mi of Appeals found that a trial court did not 

el1' by concluding "that a riding lawn mower is not such a common product that the average juror 

would, from background and experience alone, have the capacity to assess what ordinmy 

consumers expect of such a product, thereby making the risk-utility evidence necessary to 

provide a foundation for the ju1y's assessment of plaintiffs claim." Purdy v. Deere & Co., 281 

Or. App. 407, 433-434 (2016). 

Where a product liability plaintiff elects or is required to satisfy the consumer 

expectations test by and through a risk-utility analysis, it is the comi's task to "balance the utility 

of the risk against its magnitude in deciding whether to submit a design defect case to the jmy." 

Page 13 - OPINION AND ORDER 
Wilson v. Piper Aircraft Corp., 282 Or. 61, 67 (1978), 3 citing Roach v. Kononen, 269 Or. 457, 

464 (1974), Phillips v. Kimwood 1\1achine Co., 269 Or. 485, 501 (1974). 

One of the factors to be weighed in making this dete1mination is the 

manufacturer's ability to eliminate the unsafe character of the product without 

impairing its usefulness or making it too expensive to maintain its utility. In other 

words, the court is to determine, and to weigh in the balance, whether the 

proposed alternative design has been shown to be practicable. The trial cou1i 

should not pe1mit an allegation of design defect to go to the ju1y unless there is 

sufficient evidence upon which to make this determination. If liability for alleged 

design defects is to stop somewhere sho1i of the freakish and the fantastic, 

plaintiffs' primafacie case of a defect must show more than the technical 

possibility of a safer design. 

In some cases, because of the relatively uncomplicated nature of the product or the 

design feature in question, evidence of the dangerous nature of the design in 

question or of a safer alternative design may be sufficient to pe1mit the court to 

consider this factor adequately. * * * 

* * * 

In other instances, however, the question of practicability cannot be properly 

weighed solely on the basis of inference and common knowledge. 

Id. at 67-68, 69 (footnotes, internal quotation marks omitted; emphasis supplied). In the latter 

scenario - that is, where the complexity or esoteric nature of the product or proposed design 

feature is such that inference and/or common knowledge are insufficient to determine the 

question of practicability- a products liability plaintiff must offer "evidence from which the jmy 

could find the suggested alternatives are not only technically feasible but also practicable in 

terms of cost and the over-all design and operation of the product. It is part of the required 

3 The Purdy comi, supra, referred to Wilson as superseded in pmi by the enaction of the 

cunent version of Section 30.920, which codified the Restatement Second standard of 

unreasonable dangerousness. However, I see no suggestion in the governing jurisprudence that 

the Wilson court's discussion of the risk-utility balancing test is not still an authoritative 

statement of Oregon law applicable to that test whenever that test is elected or required. 

Page 14 - OPINION AND ORDER 
proof that a design feature is a 'defect' to present such evidence." Id. at 69 (emphasis supplied). 

Here, there can be no serious argument that the functional characteristics of the Shear 

Machine access door are so uncomplicated that a finder of fact could dete1mine the practicability 

of alternative designs on the basis of inference and common knowledge (as may be illustrated by 

Regan's expert Meyers' fundamental misapprehension regarding the circumstances of Regan's 

inju1y). The Shear Machine is large and complex, and ve1y few members of the general public 

will have ever seen such a machine in operation. In paiiicular, questions regarding how heavy 

the door needs to be in order to ensure that metal projectiles do not escape the cutting blades 

while the machine is in operation, and whether a sliding or side-hinged door could fulfill the 

door's safety function require esoteric knowledge of the Shear Machine's operation. In . 

fulfillment of the court's gatekeeper function and mandate to ensure that the ju1y has sufficient 

evidence to make an info1med decision regarding the expectations of an ordinary consumer of a 

shear machine, I therefore find that Regan's products liability claim cannot survive Siena's 

motion for summaiy judgment unless Regan has met his burden either to offer evidence from 

which a finder of fact could reasonably conclude that Siena affirmatively misrepresented the 

features or the safety of the Shear machine access door (the representational approach) or to offer 

sufficient evidence to educate the finder of fact regarding the reasonable expectations of the 

ordinary purchaser of a shear machine by pe1mitting the finder of fact to determine whether 

proposed alternative access door designs would ameliorate the risks presented, would be 

technically feasible, and would be practicable both in te1ms of cost and in te1ms of the machine's 

functionality (the risk-utility balancing approach). 

Regan has offered no evidence toward satisfying his burden in connection with the 

Page 15 - OPINION AND ORDER 
representational approach to the consumer-expectations test. As to the risk-utility balancing 

approach, Regan offers the expert opinions of Meyers and Fries. Meyers' opinion is without 

probative value here, in that Meyers addressed a risk immaterial to the injmy Regan suffered. 

Fries' opinion, although more clearly material than Meyers', is insufficient to meet Regan's 

burden to establish that the access door was defective when sold to Bob's. Specifically, and as 

Fries expressly conceded, Fries performed no testing to dete1mine the practicability of any of his 

rather vaguely specified alternative designs for the access door (approximately half of which 

addressed a risk immaterial to the injmy Regan suffered). In addition, Fries offered no opinion 

as to the cost-effectiveness of his proposals. Fries' testimony thus provides no basis for a finder 

of fact to determine the effectiveness, the feasibility, the functional practicability, or the costeffectiveness of any of Fries' proposed safety features. Regan does not offer any evidence other 

than the opinions of Meyers and Fries as to the safety expectations of an ordinary consumer of 

shear machines. 

In fact, the only evidence of record with significant probative value as to the safety 

expectations of the ordinary consumer of shear machines is the testimony of Bob's' principal and 

corporate representative that "[t]or purposes of opening the ... door and keeping it open to 

perform maintenance on the shear blade," the problem of doing so safely was of a nature that "an 

experienced mechanic should know what to do," Weinstein Depo., 70:15-21, that "the door, as 

designed," was not viewed as a hazard "if it's properly addressed," and that "an experienced 

mechanic should be able to remediate any danger from it, id., 72: 1-6. Regan takes the position 

that a full risk-utility balancing is not necessary for the consumer expectations test to be satisfied, 

because Fries' testified that the hazard analysis he performed was that "raising the heavy door is 

Page 16 - OPINION AND ORDER 
dangerous," Fries Depa., 91 :20-21, see also id, 92:3-6. However, Fries' testimony that raising 

the access door is dangerous is probative of the proposition that the access door presented a 

hazard, but is simply not probative of the relevant question, namely whether the hazard the door 

presented was unreasonable by the metric of the expectations of the ordinary consumer of shear 

machines. 

Because Regan has failed to meet his burden to present evidence as to effectiveness, 

feasibility, functional practicability, and cost-effectiveness, and because Sierra's motion squarely 

put Regan to that burden, Sie1Ta is entitled to summmy judgment in its favor as to Regan's 

products liability claim.4 Siena's motion (#15) for summary judgment is therefore granted as to 

Regan's products liability claim. 

II. Regan's Negligence Claim 

Regan alleges Sierra's negligence "in one or more of the particulars claims [sic] in if 7" of 

his complaint. Complaint, if 5. However, Regan's complaint contains no Paragraph 7, and 

additionally contains no particularized allegations of negligent conduct in any other paragraph. 

See id, passim. At oral argument in connection with Sierra's motion ( # 15) for summaiy 

judgment, Regan's counsel informally requested leave to amend his complaint to state 

pmiicularized allegations of Sierra's purpo1iedly negligent conduct. Sie1Ta's counsel indicated 

that Sierra would oppose such a request on the grounds that amendment would be futile for the 

same reasons proffered in Sie1Ta's summary judgment briefing in supp01i of summmy 

adjudication of the negligence claim. I advised the parties that I would consider Regan's informal 

4 I therefore need not address the parties' alternative arguments as to whether Regan can 

establish causation of damages. 

Page 17 - OPINION AND ORDER 
request for leave to amend in light of Siena's arguments in favor of summmy judgment, 

constrned as arguments that amendment would be futile. 

To state a claim for negligence under Oregon common law, a plaintiff must show that the 

defendant owed the plaintiff a duty, that the duty was breached, and that the breach caused the 

plaintiff harm. See, e.g., Fazzolari v. Portland School Dist., 303 Or. 1, 14-17 (1987). In the 

absence of a specific duty created, defined, or limited by a specified status, relationship or 

standard of conduct, "the issue of liability for harm actually resulting from defendant's conduct 

properly depends on whether that conduct umeasonably created a foreseeable risk to a protected 

interest of the kind of harm that befell the plaintiff." Id at 17. Specifically, in the absence of a 

special relationship giving rise to a specific duty of care, to state a claim for negligence under 

Oregon law a plaintiff must allege: 

(1) that defendant's conduct caused a foreseeable risk ofharm, (2) that the risk is 

to an interest of a kind that the law protects against negligent invasion, (3) that 

defendant's conduct was umeasonable in light of the risk, ( 4) that the conduct was 

a cause of plaintiffs harm, and (5) that plaintiff was within the class of persons 

and plaintiffs injury was within the general type of potential incidents and injuries 

that made defendant's conduct negligent. 

Solberg v. Johnson, 306 Or. 484, 490-491 (1988), citing Fazzolari, 303 Or. 1. Although 

reasonableness is generally a question of fact to be determined by a jury, where there is no doubt 

that a defendant's conduct was reasonable, the court may resolve the question without submitting 

it to a trier of fact. See, e.g., Thurman v. Thomas, 70 Or. App. 159, 162 (1984), citing Hamilton 

v. State, 42 Or. App. 821, 828-829 (1979). 

On the basis of Ford's testimony that "you don't climb up [to the door of the Shear 

Machine] until the door is up," but that on the occasion of his accident Regan nevertheless 

"climbed up on top of it before it was even ready," Ford Depo., 14:10-24, Ford's characterization 

Page 18 - OPINION AND ORDER 
of Regan's election to climb the machine before the door was open as having "jumped the gun" or 

as having gone up "too early," id, 15:1-10, and the videorecording of the accident itself, see 

Socolow Deel., Exh. A, SielTa argues that the accident was caused by Regan's own conduct 

rather than by the negligence of Siena or any other party. Regan's expert Fries conceded that the 

accident would not have occurred had Regan not climbed up the Shear Machine before the door 

had been lifted to the vertical position, but further testified that it also would not have occulTed if 

Ford had not continued operating the forklift once Regan was in the upward path of the door. 

See Fries Depa., 135:20 ~ 136:10. 

Although Regan's proffered evidence does not clearly give rise to any inference of SielTa's 

negligence, I decline to find that the evidence of record entirely forecloses the possibility that 

Regan could establish that SielTa's conduct was in some conceivable respect negligent. 

Accordingly, Regan's informal request for leave to amend is granted, Regan is directed to amend 

his pleading within fourteen days of the date hereof to re-allege his negligence claim (only) and 

to offer particularized allegations ofSie1w's complained-of negligence, and Sierra's motion (#15) 

for summary judgment is denied as moot and with leave to refile as to Regan's negligence claim. 

CONCLUSION 

For the reasons set forth above, Regan's informal request for leave to amend his 

complaint is granted, Sierra's motion (#15) for summary judgment is granted as to Regan's 

products liability claim and denied as moot with leave to refile as to Regan's negligence claim, 

summmy judgment is entered in Sierra's favor as to Regan's products liability claim only, and 

II I 

I II 

Page 19 - OPINION AND ORDER 
Regan is directed to amend his pleading within fourteen days of the date hereof to re-allege his 

negligence claim (only) stating pmiicularized allegations of Siena's complained-of negligence. 

Dated this 6th day of July, 2017. 

Honorable Paul Papak 

United States Magistrate Judge 

Page 20 - OPINION AND ORDER