The opinion of the court was delivered by: FOGEL
The parties have filed cross-motions for summary judgment on a claim for reimbursement of benefits under a liability insurance contract and have agreed to have the matter handled as a case stated. A stipulation of facts, accompanied by exhibits, presents all the facts which are material to an adjudication of this controversy. The parties agree there is no genuine issue as to any of these material facts. For the reasons which follow, the motion of defendant will be granted.
This action is based on diversity jurisdiction. 28 U.S.C. § 1332. Plaintiff, Great American Insurance Company, (Great American), the successor in interest to Selective Insurance Company, Inc., is a New York Corporation with its principal place of business located in Ohio. Defendant, Robert Raque, (Raque), the successor in interest to Raque Manufacturing Company, Inc., is a citizen of Kentucky.
The amount in controversy, exclusive of interest and costs, exceeds $10,000.00. The occurrence from which this claim arises had its genesis in this district and venue is proper. 28 U.S.C. § 1391.
Shortly after November 10, 1967, Mrs. Smith's Pie Company, (Mrs. Smith's), purchased a "dough sheeter" machine from Raque. This pie-crust making machine was installed by Raque on top of another pre-existing machine, manufactured by Luty Machine Company, with which it worked in tandem. The dough sheeter was specially modified from the standard model to adapt to the Luty machine already at Mrs. Smith's. The Raque machine was smaller in size than the Luty machine and a ledge several inches wide was created where the two were connected.
The standard dough sheeter model was manufactured to be used by a worker who stood on a small platform approximately 10 inches off the floor. The machine in question had to be loaded or filled with dough or flour from the top, which was six feet above the ground. Raque did not supply a platform, nor did he suggest that one be used. He expected that Mrs. Smith's would supply its own platform.
After the installation was completed, Raque demonstrated the operation of the machine at Mrs. Smith's by standing on a small step ladder which was not attached to the machine. Raque claimed that it would have been impractical for a worker to stand on the ledge because it was 38 inches off the ground. A worker could not have reached down far enough to get the flour or dough from the floor without climbing down each time.
Raque did not guard any of the openings where the dough was added, because the guards would have blocked the openings and prevented the dough from entering the machine.
The parties stipulated that Fred E. Cook, Jr. testified as follows at his deposition:
On January 2, 1969, Cook was employed by Mrs. Smith's Pie Company to operate the pie making equipment consisting of the Raque dough sheeter apparatus and the Luty base. As part of his duties, Mr. Cook was required to place flour into hoppers which were an integral part of the dough sheeter apparatus. Although Mr. Cook was unable to load flour into the hoppers while standing on the floor, Mrs. Smith's Pie Company did not provide him with a ladder of sufficient height to enable him to reach the hoppers. Mr. Cook climbed onto the ledge created by the interface of the dough sheeter apparatus and the base. While loading flour into the hopper, Mr. Cook lost his balance and began to fall. Mr. Cook reached out with his left hand in order to catch himself. His left hand came into contact with rollers which were an integral part of the dough sheeter. His hand became caught between the rollers and he sustained serious injuries to his hand and forearm before the pie making equipment could be turned off.
Because of the small size of the ledge, Cook was only able to put the toes and balls of his feet on the ledge; ...