IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JASON REGAN, 

Plaintiff, 

v. 

SIERRA INTERNATIONAL MACHINERY, 

LLC, 

Defendant. 

PAPAK, Magistrate Judge: 

3:15-CV-2302-PK 

OPINION AND 

ORDER 

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

International Machinery, LLC ("Sierra") (a citizen of California), in Multnomah County Circuit 

Comi on September 30, 2015. Sie1rn removed Regan's action to this comi effective December 

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

By and through his complaint as originally filed, Regan alleged 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 was Regan's position that the design of the machine was umeasonably 

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

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

law on a strict products liability theo1y, and (ii) under Oregon common law for negligence. 

On July 6, 2017, I granted summmy judgment in Sierra's favor as to Regan's products 

liability claim, but denied summmy judgment as moot as to Regan's negligence claim, on the 

ground that Regan's complaint failed, apparently inadvertently, to allege Sie11'a's negligent 

conduct. I directed Regan to amend his complaint to restate his negligence claim only. Regan 

filed an amended complaint stating a single claim for negligence effective July 18, 2017. 

By and through his amended complaint, Regan seeks $750,000 in non-economic damages 

and approximately $52,000 in economic damages, plus pre- and post-judgment interest and 

reimbursement of his costs. This comi has diversity jurisdiction over Regan's claim pursuant to 

28 U.S.C. § 1332, based on the complete diversity of the pmiies and the amount in controversy. 

Now before the court is Sie1rn's second motion (#31) for summary judgment. I have 

considered the motion, oral argument on behalf of the pmiies, and all of the pleadings and papers 

on file. For the reasons set forth below, Sie11'a's motion (#31) for sunm1my judgment is granted. 

1 Sierra has taken the position that it did not learn 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 
LEGAL STANDARD 

Summmy 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 information, affidavits or declarations, stipulations (including 

those made for purposes of the motion only), admissions, interrogatory answers, or other 

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

absence of such a dispute, or by showing that an opposing party 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 

lvforeland v. Las Vegas lvfetro. 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 Co17J. 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 summary judgment, the district courts of the 

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

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

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

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

Page 3 - OPINION AND 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 P01iland, 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 machine1y. 

II. The Parties' Dispute' 

It appears to be undisputed that, 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 

Amended Complaint, ~ 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 approximately 700 tons, and that its cutting blades are 

accessible for maintenance purposes, including for replacement of the blades (which must take 

place approximately eve1y two months), behind a heavy top-hinged steel door that plaintiff has 

calculated as weighing between 300 and 400 pounds. See id.,~ 2. It is undisputed that the 

primaiy 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 ( # 16) 

of John M. Socolow ("Socolow Deel."), Exh. E (Deposition of Stephen Simmons (collectively 

with the Declaration (#32) of Michael Yoshida ("Yoshida Deel. I"), Exh. I, "Simmons Depo."), 

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

the evidentiaiy record in light of the legal standard governing motions for summary judgment 

under Federal Civil Procedure Rule 56. 

Page 4 - OPINION AND ORDER 
40:5-22. The door that affords the most convenient 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 ve1iical, 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 (collectively with Yoshida Deel. I, Exh. L, "Weinstein Depo.")), 72:19- 73:11. 

Notwithstanding the foregoing, it was not necessary to use the door to access the cutting blades 

for maintenance purposes, as it was possible (if relatively inconvenient) to access the blades from 

underneath, without any need for moving the door. See Socolow Deel., Exh. L (Deposition of 

Trevor Ford (collectively with Yoshida Deel. I, Exh. N, and Declaration (#38) of Michael A. 

Yoshida ("Yoshida Deel. II"), Exh. A, "Ford Depo.")), 19:1-23. 

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

pmiy herein prior to its distribution by Sierra. See Weinstein Depo., 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 ofEmique Robles 

(collectively with Yoshida Deel. I, Exh. K, "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 

Page 5 - OPINION AND ORDER 
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. Sie11'a 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. It is 

undisputed that 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 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, "[fjor 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 Sillllllons 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 

Page 6 - OPINION AND ORDER 
CONDITIONS CAUSED BY INAPPROPRIATE ... 

MAINTENANCE OF THE BALER. 

• SIERRA RECOMMENDS THAT THIS MANUAL 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 

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 

etiforce such measures as he/she determines necessary to assure safe 

operntion cmd maintenance oftlze equipment. 

Socolow Deel., Exh. 0 (Repmi 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 Memorandum (#18) in Opposition to Siena's First Motion (#15) for 

Summary Judgment, Exh. A (Affidavit ofR. Brendan Dummigan ("Dummigan Aff.")), Exh. B 

(Declaration of Jason Regan ("Regan Deel.")), ~~ 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 (collectively with Yoshida Deel. I, Exh. M, "Regan Depo. ")), 

Page 7 - OPINION AND ORDER 
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., iii! 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 

climbing up above four feet. See Socolow Deel., Exh. L (Deposition of Trevor Ford (collectively 

with Yoshida Deel. I, Exh. N, and Declaration (#38) of Michael A. Yoshida ("Yoshida Deel. II"), 

Exh. A, "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 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 nevertheless "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" 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 

Page 8 - OPINION AND ORDER 
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, 

36:3-25.3 

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

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

door higher notwithstanding that he was in its upward path), and the door swung abruptly 

upwards and s!luck him in the cheek, causing him to suffer injmy. See Weinstein Depo., 72:7-

18, 76:2-8; Regan Depo., 107:23-108:13; see also SocolowDecl., Exh. A (videorecording of 

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

slipped off the plate it was standing on. See Weinstein Depa., 78:4-15. Ford did not believe the 

accident was caused by any design defect in the door. See Ford Depo., 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 (collectively with Yoshida Deel. I, Exh. H, "Fries Depo.")), 

135:20-136:10. Fries nevetiheless offered the opinion that the Shear Machine door was 

"umeasonably dangerous and defective with regard to changing the cutting blades" because the 

3 As noted above, Ford futiher testified that it was not necessaty to open the door in order 

to access the cutting blades for maintenance pmposes, as the blades were accessible from 

underneath. See Ford Depo., 19:1-23. 

Page 9 - OPINION AND ORDER 
door is heavy, its top hinge created a "stored energy" hazard when the heavy door was lifted to its 

vertical 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 if the door were side-hinged, or if the door had been designed with 

"springs, winches, safety support poles, instructions, decals, and/or a platform that keeps the door 

open." Id Fries testified thathe had "[c]e1iainly not" tested any of these alternatives, Fries 

Depo., 90:24-25, that he had not performed any analysis of the alternatives, including any costeffectiveness analysis or 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 performed was to formulate the conclusion that "raising the heavy door is 

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

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. Fries subsequently supplemented his opinion to add that a 

"removable door" would likewise reduce hazards associated with accessing the baler's blades, as 

would the addition of "chains, or cables, or locks, or winches, that would raise and hold the door 

in a safe position." Yoshida Deel. I, Exh. G ("Supplemental Fries Opinion"). Fries did not 

supplement his opinion with hazard analysis, cost-effectiveness analysis, feasibility analysis, or 

testing. See id. 

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 

Page 10 - OPINION AND ORDER 
downward, an assumption which is flatly inaccurate. Socolow Deel., Exh. N (Deposition of John 

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

III. Procedural History 

Regan's complaint, as originally filed, alleged Sierra's negligence "in one or more of the 

particulars claims [sic] in 'if 7" of his original complaint. Complaint, 'if 15. However, Regan's 

complaint contained no Paragraph 7, and additionally contained no paiiicularized allegations of 

negligent conduct in any other paragraph. See id., passim. In consequence of Regan's failure to 

offer allegations of Sierra's negligent conduct, I directed Regan to amend his complaint to state 

"particularized allegations of Sierra's complained-of negligence" and denied Siena's first motion 

for summary judgment as moot to the extent it addressed Regan's negligence claim. 

Effective July 18, 2017, Regan amended his pleading. Regan's amended pleading is 

substantially similar to his original pleading. See id,passim; Amended Complaint, passim. 

Specifically, Regan amended his pleading by removing all of the allegations of his original 

pleading that specifically addressed negligence, see Complaint, 'if 'if 14-15, Amended Complaint, 

passim, by modifying his allegation of the "particulars" in which the Shear Machine was 

allegedly a defective product to allege that those same "particulars" instead constituted 

negligence on the part of Sie1rn, Complaint, 'if 6, Amended Complaint, 'if 6, and to allege that 

Regan's physical injuries were caused solely by Sierra's "negligence" as opposed to Sierra's "strict 

liability and/or negligence," Complaint, 'if 8, Amended Complaint, 'if 8. Regan's Amended 

Complaint, like his originally filed Complaint, contains no Paragraph 7. 

Accordingly, Regan has elected to allege that Sie1rn's conduct was negligent in precisely 

the same ways in which he previously alleged that Sierra was strictly liable for distribution of a 

Page 11 - OPINION AND ORDER 
defectively designed product, specifically as follows: 

a) The Shear Machine was not properly designed because there were no 

adequate means or methods for safely lifting the approximately 393-pound 

door from the closed to the open position; 

b) The Shear Machine was not properly designed because there was no 

adequate mechanism or method for safely securing the approximately 

393-pound door in the open position after it was lifted to allow access for 

maintenance of the shear. 

c) The Shear machine was not properly designed because there was no safe 

access, either a ladder or a platform, for an employee to work at the 

location where the approximately-393 pound door could be secured in the 

open position. 

d) The Shear Machine was not properly designed because its approximately 

393-pound door was hinged at the top, rather than the side, which, in the 

absence of an adequate means of lifting and securing the door, created the 

foreseeable hazard of the door striking an employee working in or around 

the Shear Machine, while employees were attempting to lift the door and 

secure it in the open position, in order to perform maintenance and/or 

replacement activities on the cutting blades; 

e) The Operator's Manual provided by defendant with the Shear Machine to 

plaintiff's employer, Bob's Metals Inc., failed to include any written 

procedures to enable workers to safely change the cutting blades, i.e., a 

LOTO program, and a safe location and method to raise the door to the 

open position and secure it, in order to provide safe access to the cutting 

blades; 

f) The Shear Machine was sold without any or adequate warnings, either by 

way of warnings in the Operating Manual or other type of manual, or by 

way of warning decals placed in strategic locations on the Shear Machine 

itself, of the risk of serious injury to individuals that worked in close 

proximity to the 393-pound door, when it was being lifted from the closed 

position to the open position; 

g) The Shear Machine was not properly inspected and tested prior to its sale, 

which proper testing and inspection would have identified the risk of 

serious injury to individuals that worked in close proximity to the 

approximately 393-pound door, when it was being moved from the closed 

position to the open position[.] 

Page 12 - OPINION AND ORDER 
Amended Complaint,~ 6. 

ANALYSIS 

As noted above, Regan alleges Siel1"a's liability under Oregon common law for negligence 

in the design of the Shear Machine, in failing to provide adequate written safety procedures for 

opening and securing the Shear Machine door, in failing adequately to warn regarding the risk 

presented by the Shear Machine door, and in failing to inspect or test the Shear machine before 

selling it to Bob's. 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 hatm actually resulting from defendant's conduct 

properly depends on whether that conduct unreasonably 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 of harm, (2) that the risk is 

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

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

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

and plaintiff's injmy 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 Fazzo/ari, 303 Or. 1. Although 

reasonableness is generally a question of fact to be determined by a jmy, 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 

Page 13 - OPINION AND ORDER 
v. State, 42 Or. App. 821, 828-829 (1979). 

As to the causation element of a claim for negligence under Oregon common law, the 

Oregon Court of Appeals has held that where a person injured by a risk was fully aware of the 

risk when the inju1y occurred, a claim for failure to warn the person regarding the risk will not 

lie, because in light of the person's awareness of the risk, the absence of adequate warning could 

not have contributed to causation of the injmy. See Garrison v. Deschutes Cty., 334 Or. 264, 

278-279 (2002). In so holding, the Garrison court expressly rejected the argument that, under 

such circumstances, the party allegedly responsible for failure to provide an adequate warning 

regarding the risk could nevertheless be liable on a theory of comparative negligence. See id. I 

find no indication in Oregon law that the Oregon Supreme Court would hold to the contra1y, and 

accordingly adopt the Garrison court's holding. 

Here, Regan has alleged seven separately enumerated theories of SieIT"a's negligence. The 

first four enumerated allegations of negligence, as Regan elected to articulate them by and 

through his amended complaint, all clearly rely on the premise that Sierra was negligent in 

connection with designing the Shear Machine. See Amended Complaint, ii 6(a)-(d). Because it is 

undisputed that Siena played no role in designing the Shear Machine, it is clear as a matter oflaw 

that Sierra's conduct in connection with designing the Shear Machine could not have contributed 

in any degree to causation of Regan's injmy. Because Regan cannot establish the requisite 

element of causation in connection with any of his four a1ticulated theories of Sierra's negligence 

in connection with designing the Shear Machine, Sierra is entitled to summmy judgment as a 

matter oflaw as to Regan's negligence claim to the extent premised on Sierra's negligent design 

Page 14 - OPINION AND ORDER 
thereof.4 

Regan's seventh enumerated allegation of Sierra's negligence is that Sie1rn was negligent 

in failing properly to inspect and to test the Shear Machine before selling it to Bob's, where such 

inspection or testing would have revealed the safety hazard presented by the Shear Machine door. 

See id., i! 6(g). However, there is no evidence ofrecord with any tendency to suggest that Sie1rn's 

alleged failure to conduct proper inspection or testing of the Shear Machine could possibly have 

caused Regan's injmy: patently, Regan's injmy was not caused by Sierra's failure to educate itself 

as to the extent of the safety risk presented by working with the Shear Machine door, and had 

Sierra engaged in exhaustive testing and inspection of the Shear Machine before selling it, that 

fact without more would have had no tendency to reduce the risk of Regan's injury. Because 

Regan has adduced no evidence tending to support his theo1y that Sierra's alleged negligence in 

failing adequately to inspect or test the Shear Machine could have caused his injmy, Sierra is 

entitled to summary judgment as a matter oflaw as to Regan's negligence claim to the extent 

premised on Sierra's failure to conduct proper inspection and testing.' 

4 At oral argument in connection with Sierra's motion, counsel for Regan explained that 

notwithstanding the plain language of Paragraph 6(a)-(d) of Regan's amended complaint, 

Paragraph 6(a)-(d) was intended to allege Sierra's negligence in connection with selling the Shear 

Machine without providing adequate warnings as to the safety hazard its access door presented. 

So construed, it is clear that Paragraph 6(a)-(d) is-again notwithstanding the plain language of 

Regan's amended complaint - not intended to constitute allegations of Sierra's negligent conduct 

but rather allegations of background fact in support of the separate and distinct allegation or 

allegations that Sierra was negligent in failing adequately to warn regarding the alleged defects in 

the Shear Machine's design. To the extent Paragraph 6(a)-(d) may properly be so construed, it is 

within the scope of the discussion infi"a of Regan's the01y of negligence as alleged by and 

through Paragraph 6(e) and/or 6(f) of his amended complaint. 

5 Again, at oral argument in connection with Sierra's motion, counsel for Regan indicated 

that Paragraph 6(g) was intended, notwithstanding its plain language, to miiculate Regan's theo1y 

that had Sierra understood the full extent of the safety hazard presented by the Shear Machine 

door, it would have understood the need to warn purchasers of the machine regarding that hazard. 

Page 15 - OPINION AND ORDER 
Regan's fifth and sixth enumerated allegations of Siena's negligence articulate Regan's 

theory that Siena was negligent in selling the Shear Machine without adequately warning 

purchasers and users of the machine as to the safety hazard presented by its heavy access door, 

either through providing adequate written instruction in how to mitigate the risk the door 

presented or through placing salient and adequate warnings on the machine itself or on its 

operations manual. Regan's negligence claim to the extent premised on such a theory is without 

merit as a matter of law for at least two independent reasons. 

First, as discussed above, it is undisputed that Regan was at all material times fully aware 

of the risk presented by the door, and of Bob's' standing safety protocol (developed in connection 

with training provided by Sierra) for accessing the door safely notwithstanding that risk. 

Specifically, it is undisputed that Siena personnel provided Bob's personnel with training in how 

to change out the Shear Machine cutting blades safely, see Robles Depo., 52:9 - 54: 12, see also 

Socolow Deel., Exh. G at 4, that in the course of that training, Siena 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, that 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, that Siena personnel counseled Bob's personnel 

that it was up to them to develop their own safe procedures for securing the door in its ve1tical, 

To the extent Paragraph 6(g) may properly be construed as articulating such a theo1y, again, that 

themy is within the scope of the discussion infra ofRegan's theory of negligent failure 

adequately to warn as alleged by and through Paragraph 6(e) and/or 6(f) of his amended 

complaint. 

Page 16- OPINION AND ORDER 
open position while it was being held open by a forklift, see id, 52:9 - 54: 12, see also Simmons 

Depo., 98:3 - 100: 11, and that 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 Shear machine door, Weinstein Depo., 67:5-11. It is further 

undisputed that the operations manual that Sierra provided to Bob's in connection with Bobs's 

purchase of the Shear Machine specifically advised in bold font that eve1yone using the machine 

should be trained in its safe use, and that purchasers of the machine were responsible for 

developing safe procedures for operating and maintaining it. See Fries Report at 11. It is further 

undisputed that at the time Regan's injury occurred, Bob's personnel had changed out the cutting 

blades seventy times without any person suffering an injury such as Regan's, that Regan had 

previously changed out the blades safely on three to five occasions, that Regan understood and 

had previously used Bob's' safety protocols for accessing the Shear Machine blades, that on the 

occasion of his injury Regan simply failed to follow the established safety protocol that he had 

used in the past notwithstanding that a man lift and safety basket were available to him and that 

there was adequate room for him to have used them to access the machine. See Regan Depo., 

70:10-19, 80:20- 81:2, 81:7-10, 82:19- 84:16, 98:1-4, 99:24-100:19; Ford Depo., 14:3-6, 

14:10-24, 15:1-10, 32:6-17, 32:20-33:9, 36:3-25; Weinstein Depo., 76:2-25. A finder of fact 

could not reasonably conclude, in light of the undisputed evidence of record that Regan was at all 

material times aware of the risk presented by the Shear Machine door and of the established 

methods for mitigating that risk, that Regan was less than fully aware of the safety hazard 

presented by the door at the time his injury occuTI'ed. As such, under Garrison, supra, as a 

matter of Oregon law the absence of any more salient warning of the extent and nature of the risk 

Page 17 - OPINION AND ORDER 
presented could not have contributed to causation of Regan's injmy. See Garrison, 334 Or. at 

278-279. 

Second, it seems clear in light of the undisputed evidentimy record that, independently of 

Regan's full knowledge of the door's safety hazard, his injmy could not have been caused by any 

failure adequately to warn regarding the risk. Regan's injmy was not caused when the door 

unexpectedly fell, or when the chain securing the door unexpectedly failed, but rather when the 

door was thrown upward when the back tires of the forklift Ford was operating slipped off the 

steel plate Bob's had elected to place by the Shear machine door, causing the front end of the 

forklift to thrnst upwards, in turn causing the door to swing upwards abruptly. Sierra had no 

control over Bob's' election not to reposition the steel plate (or to use a larger one or a second 

one) so as to avoid causing the heavy door to swing upwards uncontrollably at some point during 

its otherwise controlled and slow upward movement, and could not have been expected to 

foresee that Bob's would adopt a safety protocol that introduced a new and unanticipated risk of 

propelling the door upwards with sufficient force to cause injmy. It was within Sierra's power to 

warn regarding safety hazards inherent in the Shear Machine itself (as it in fact did, albeit not 

through placement of warning decals on the machine itself), but not regarding new and 

unanticipated risks created by the conduct of the purchaser of the machine after the machine left 

Sierra's possession and control. Because Regan's injmy was caused by such a new and 

unanticipated risk, Sierra's conduct could not have contributed to its causation. 

For the foregoing reasons, Sierra is entitled to summary judgment in its favor as to 

Regan's negligence claim. 

Ill 

Page 18 - OPINION AND ORDER 
CONCLUSION 

For the reasons set forth above, Sierra's motion (#31) for summaty judgment is granted in 

its entirety, and summa1y judgment is granted in Sierra's favor as to Regan's negligence claim. A 

final judgment will be prepared. 

Dated this 14th day of March, 2018. 

Honorable Paul Papak 

United States Magistrate Judge 

Page 19- OPINION AND ORDER