The opinion of the court was delivered by: John W. Darrah, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Eduardo Caballero ("Caballero"), filed a multi-count complaint against Defendants Uniloy Milacron, Inc. ("Uniloy") and Eaton Hydraulics, Inc. ("Eaton"), stemming from an injury he received while working on a plastics blow molding machine. Subsequently, the Defendants filed a third-party action against Caballero's employer at the time of the injury, Liquid Container ("Liquid"). Presently before the Court are Uniloy's and Eaton's Motions for Summary Judgment against Caballero. Page 2
The blow molding machine that Caballero was working on was not designed, manufactured or sold by Uniloy. Rather, Hoover Ball & Bearing Company ("Hoover") designed and manufactured the machine and sold it to Liquid in 1974. (Def.'s 56.1(a)(3) Statement ¶ A8)*fn1. Hoover subsequently changed its name to Hoover Universal, Incorporated ("HVU"). (Id., ¶ A9),
In May 1985, a wholly-owned subsidiary of Johnson Controls, Incorporated ("Johnson"), known as HVU Acquisition Corporation, acquired the shares of common stock of HVU. HVU was then, and has for some time been, in the business of manufacturing various products, including plastics machinery manufactured under the brand name "Uniloy". (Def.'s 56.1(a)(3) Statement ¶ A10). hi May 1985, HVU was merged into HVU Acquisition Corporation; and the name HVU Acquisition Corporation was changed to Hoover Universal, Inc. ("Hoover Universal"). (Id., ¶ A11). Since May 1985, Hoover Universal has been a wholly-owned subsidiary of Johnson. (Id., ¶ A12).
On September 30, 1998, Johnson and Hoover Universal completed the sale of the plastics machinery manufacturing business of Hoover Universal, referred to as the Plastics Machinery Division, to Cincinnati Milacron, Inc. (now known as Milacron). (Def.'s 56.1(a)(3) Statement ¶ A13). The purchase agreement allowed Cincinnati Milacron, Inc. to insert one of its affiliates, Uniloy, a wholly-owned subsidary, as the purchaser. (Id., ¶ A14). Uniloy did not come into existence until September 22, 1998, when the Certificate of Incorporation was filed with the Secretary of State of Delaware. (Id., ¶ A15). The asset purchase agreement specifically provides that Uniloy did not assume liability for products shipped prior to September 30, 1998. (Id., ¶ A18). Page 3
Milacron Inc. is a publicly traded company on the New York Stock Exchange. (Id., ¶ A22). No directors of officers of Hoover Universal or Johnson have served as directors or officers of Uniloy since it was formed. (Id., ¶ A25), No stockholders, directors, or officers of Hoover Universal have ever been stockholders, directors or officers of Uniloy. (Id., ¶ A26).
From September 22, 1998 through the present, Uniloy has been a manufacturer of plastics blow molding machinery. (Def.'s 56.1(a)(3) Statement ¶ A17). Uniloy was not involved in any way with the original design, manufacture or sale of the blow molding machine that is the subject of the instant lawsuit. (Id., ¶ A16).
Since Septmeber 30, 1998, Uniloy has maintained a service department and has offered technical support and maintenance service to machine owners. (Def.'s 56.1(a)(3) Statement ¶ A29). Any service provided on a machine by Uniloy technicians is performed on a "need" basis. If Liquid ever requested services on one of its machines, Uniloy would send a technician to the Liquid plant, and Liquid would be charged for the services. (Id., ¶ A31).
Uniloy employee Richard Cooper ("Cooper") has been servicing Hoover Universal Machines since he was first employed by HVU in 1975. He trained customers hi the operations and maintenance of Model 35OR2. He was employed by Johnson after Johnson bought Hoover Universal in 1985 and had manufacturing responsibilities for Johnson for Model 35OR2. He later became customer service manager for Johnson and remained in that position for Uniloy when Uniloy purchased Johnson. (Plaint's 56.1(b)(3) Statement ¶ 60).
Eugene Ridenour ("Ridenour") was customer service manager for Hoover Universal beginning in 1979; and when Johnson bought Hoover Universal in 1985, he became technical consultant for product safety until his retirement in 1990. (Plaint's 56.1(b)(3) Statement ¶ 61). Page 4
Douglas Sten ("Sten") began work for Johnson in 1992 until July 31, 2001. With his job responsibilities unchanged, Sten stayed with Uniloy as manager of product safety when Uniloy purchased Johnson. (Plaint's 56.1(b)(3) Statement ¶ 62).
Johnson and Uniloy offered technical and maintenance support for owners of model 350R2. From time to time, the service department of the three companies — Hoover, Johnson and Uniloy — would issue safety bulletins to owners of Model 35OR2. This was a continuing practice for each of the companies originating before 1992. (Plaint's 56.1(b)(3) Statement ¶ 64). The bulletins were issued to give safety advice and to tell customers about upgrades, retrofits, and new electronics. (Id., ¶ 165).
Liquid owned eleven "Uniloy" brand blow molding machines. (Def.'s 56.1(a)(3) Statement ¶ A31). Uniloy sold replacement parts for the "Uniloy" machines to Liquid. (Id., ¶ A32).
On January 3, 2000, Caballero and a coworker, Jose Miranda ("Miranda"), were troubleshooting the blow molding machine identified as a "Uniloy" Model 350R2 with Serial Number 2697. (Def.'s 56.1(a)(3) Statement ¶ A33). Caballero and Miranda were attempting to correct a "mold over-travel" problem which occurred upon a cold start-up after the long holiday weekend. (Def.'s 56.1(a)(3) Statement ¶ B3). While attempting to correct the mold over-travel problem, Miranda would close the molds by pushing or activating the 9CR relay inside the electrical cabinet of the operator's side of the machine which would enable the molds to close even though they had opened beyond the electric eye which halted the normal operation of the machine. (Id., ¶ B4). After the molds closed, Caballero would open the molds by pressing the "mold open" button on the side of the machine adjacent to the safety gate. (Id., ¶ B5). Caballero and Miranda opened and closed the molds utilizing this method of pressing the "mold open" button and pressing the 9CR relay inside Page 5 the electrical cabinet for several cycles. (Id., ¶ 6). While Miranda was working inside the electrical cabinet on the side of the machine, Caballero opened the safety gate and reached in between the molds to retrieve a piece of plastic when the molds closed on his hand upon the "mold close" activation by Miranda inside the electrical cabinet. (Id., ¶ B7)
There are three ways to correct an over-travel problem: (1) the electrical one, used by Caballero and Miranda, by moving the molds by activating 9CR; (2) a hydraulic one, which involves manually activating a hydraulic directional valve; and (3) manually moving the molds. (Plaint,'s 56.1(b)(3) Statement ¶ 36). The machine manufacturer's manuals or technical bulletins did not prescribe or stipulate a method for troubleshooting an over-travel problem. (Id., ¶ 37). The method used by Caballero to correct the over-travel problem was a method known by the machine's manufacturer. (Id., ¶ 38). In order for Caballero to be injured, both the electrical and hydraulic safeties had to be overcome. (Def.'s 56.1(a)(3) Statement ¶ A34). The electrical safety was overridden as part of the troubleshooting. (Id., ¶ A35). Caballero understood that he was to turn off the hydraulic pump when working between the molds. (Def.'s 56.1(a)(3) Statement ¶ B8). Caballero testified at his deposition that he had turned off the hydraulic power to the machine. (Id., ¶ B9). Miranda testified at his deposition that the hydraulic power was on during the troubleshooting on the morning of January 3, 2000. (Id., ¶ B11). It is impossible for the molds to move without hydraulic power to the machine. (Id., ¶ Bl0).
Within a half hour of Caballero's injury, Liquid's plant engineer, Michael Auth ("Auth"), investigated why the injury had occurred. After conducting various tests, Auth determined that the Vickers' hydraulic directional valve was stuck in the open, or operating, position. In the closed Page 6 position, the valve stops the flow of hydraulic fluid and power to the molds. (Plaint's 56.1(b)(3) Statement ¶ 44).
The machine's electrical system was designed and manufactured so that no safety switch would interrupt the flow of power along wire number 5 between the machine's power source and the mold, when 9CR is manually activated; and electrical power will flow along wire 5 without interruption and will close the molds when 9CR is manually activated, even with the safety gates open. (Plaint,'s 56.1(a)(3) Statement ¶ 45). Auth testified that the electrical circuitry in the machine was not a good design, based on principles applicable when it was manufactured, because there was no safety interrupt on wire 5. A reasonably careful designer of the electrical system would have used a safety interrupt in the circuit, and a reasonably careful manufacturer should have foreseen and anticipated the possibility of the valve sticking. (Id., ¶ 53).
Uniloy periodically sent bulletins to remind customers of safety issues and inform them of machine enhancements. (Def.'s 56.1(a)(3) Statement ¶ A36). A Uniloy safety bulletin, dated November 1999, included the warning statement: "DANGER Failure to daily test and verify the proper operation of the hydraulic safety interlocking system following the procedures provided may result in severe injury." (Id., ¶ A37). The same bulletin also explained, "Recently, it was discovered that a hydraulic blocking valve stuck in the open position during a setting realignment and the clamps closed when the electrical interlocking system was manually by-passed." (Id., ¶ A38). The incident referenced in and giving rise to the November 1999 safety bulletin occurred in California and was reported in a field report dated August 18, 1999. (Id., ¶ A39).
In the normal course of its business, Uniloy sent safety bulletins to identified contact people at various customers' locations, including Liquid. (Def.'s 56.1(a)(3) Statement ¶ A4O). The Page 7 November 1999 safety bulletin would have been sent to Liquid between November 15 and November 30, 1999. (Id., ¶ A41). At least one Liquid employee admits it received the November 1999 ...