I feel there was a glaring omission in Mr. Berke's May 25, 2006 column titled "For lack of a guard, a severed hand" — personal responsibility. I would first like to express my sorrow for the injured man. But the fact is he stuck his hand where it never should have been in the first place.
Yet, because the manufacturer did not make the product in question foolproof for all situations both conceivable and inconceivable, it is at fault for his injury. Did Mr. Berke mention to the jury that it may have been a good idea to actually look into the machine prior to sticking a hand in there? I wonder just how much time the manufacturer was supposed to have spent thinking up ways people can misuse its equipment and trying to design around it. People will find ways to circumvent the best safety equipment engineers can devise.
In Mr. Berke's world, the blame lies squarely with the manufacturer, and personal responsibility has no place. In my world, that makes for a sad state of affairs.
I am in total agreement with you regarding "personal responsibility" when a person actually knows about the hazards associated with a product. In the case of this dust collector, however, the hazard is hidden from users.
Regarding your point about it being a good idea "to actually look into the machine prior to sticking a hand in there:" When investigating the accident, I did just that. The spinning rotor is invisible, similar to a rotating airplane propeller. If the injured man thought the rotor had stopped, why would he take action to protect himself from a rotating rotor? Had the dust-collector maker done a preliminary hazard analysis, the hazard would have been quickly identified.
Hazard analysis finds hazards associated with a product's normal and expected use and with "reasonably foreseeable misuses." It has been my experience as an expert witness that when people intentionally bypass safety equipment and are injured — provided the product and safety equipment have been properly designed — two things happen:
- The injured person will have a tough time finding a lawyer to take the case. A plaintiff attorney must spend a minimum of $20,000 to press a productliability case, and typically in excess of $50,000. To put out this kind of money, lawyers carefully evaluate the probability of winning.
- In most but not all instances, a company being sued in a product-liability case will go to the judge and request a summary judgment. A judge who believes the case has no merit will usually throw it out.
In conclusion, "in my world" the manufacturer is not always right, and personal responsibility does have a place in the workplace. The first thing a lawyer client wants from me as an expert witness is my honest opinion regarding the cause of the accident and injury, and the merits of the case. I am released from over 30% of the lawsuits that I am called into after giving my client a verbal report.
Lanny Berke is a registered professional engineer and Certified Safety Professional involved in forensic engineering since 1972. Got a question about safety? You can reach Lanny at [email protected].