United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DENYING DEFENDANT'S MOTION
FOR RECONSIDERATION (Dkt. 32)
GOLDSMITH UNITED STATES DISTRICT JUDGE
the Court is Defendant Mestek Machinery, Inc.'s
(“Mestek”) motion for reconsideration (Dkt. 32),
which asks the Court to reconsider its November 9, 2017
decision denying Mestek's motion for summary judgment
(Dkt. 19). See Adams v. Mestek Mach., Inc., No.
16-11764, 2017 WL 5192248 (E.D. Mich. Nov. 9, 2017). After
reviewing Mestek's motion, the Court finds no basis for
Rule 7.1(h)(3) sets forth the grounds for granting a motion
Generally, and without restricting the court's
discretion, the court will not grant motions for rehearing or
reconsideration that merely present the same issues ruled
upon by the court, either expressly or by reasonable
implication. The movant must not only demonstrate a palpable
defect by which the court and the parties and other persons
entitled to be heard on the motion have been misled but also
show that correcting the defect will result in a different
disposition of the case.
E.D. Mich. LR 7.1(h)(3). A “palpable defect” is
one “which is obvious, clear, unmistakable, manifest,
or plain.” Mich. Dep't of Treasury v.
Michalec, 181 F.Supp.2d 731, 734 (E.D. Mich. 2002).
Court's Opinion and Order denying Mestek's motion for
summary judgment, it held that while Plaintiff Robert Adams
misused Mestek's Slear machine when he entered the
machine from the wrong door, the machine's design made
this misuse reasonably foreseeable. As a result, the Court
held that Mestek was not entitled to summary judgment on this
basis. In its motion for reconsideration, Mestek does not
challenge the Court's conclusion regarding Adams's
entry into the machine. Instead, it contends that the Court
erred by failing to rule on the issue of whether Adams's
failure to adhere to the lock out, tag out procedure prior to
entering the machine constituted foreseeable misuse.
of background, the Slear machine was allegedly sold with a
safety manual that recommended a lock out, tag out practice,
under which the individual who enters the machine locks off
the power to the machine, places a tag on the lock indicating
that he has locked the machine, and takes the key with him
into the machine. This process is meant to ensure that no one
will activate the machine while someone is in direct contact
with the machine. Mestek argues that the Court's failure
to address and hold that Adams's failure to abide by the
lock out, tag out procedure was not a foreseeable misuse
amounted to palpable error.
Mestek acknowledges, the Court did not ignore the lock out,
tag out issue in its opinion.
footnote one of the opinion, the Court stated as follows:
In its motion, Mestek alludes to Adams's failure to use a
“lock out, tag out” device to power off the
machine prior to cleaning. Mestek briefly notes that its
safety manual advises customers to make sure the power is
locked off prior to servicing the machine. However, because
neither party has briefed whether the failure to use the
“lock out, tag out” device actually constituted
misuse, or whether this misuse was foreseeable, and because
Adams disputes that AutoSteel was ever provided with the
safety manual, the Court only considers whether use of the
blue door constituted foreseeable misuse.
Adams, 2017 WL 5192248, at *2 n. 1.
begins its motion for reconsideration by disputing
Adams's contention that AutoSteel, Adams's employer,
was never provided the safety manual outlining the lock out,
tag out procedure. However, even assuming Mestek is correct
that there is no genuine dispute that AutoSteel received the
manual, the Court's decision not to address whether
Adams's failure to lock out, tag out constituted
foreseeable misuse stemmed from Mestek's failure to
meaningfully brief the issue.
motion for summary judgment, Mestek focused primarily on
Adams's failure to enter the Slear through the door that
contained an interlock device, with only passing references
to the lock out, tag out procedure set forth in the safety
manual. In its motion, Mestek relied on Cobbs v. Schwing
America Inc., No. 04-72136, 2006 WL 334271 (E.D. Mich.
Feb. 13, 2006) and Fjolla v. Nacco Materials Handling
Group., Inc., No. 281493, 2008 WL 5158892, at *1 (Mich.
Ct. App. Dec. 9, 2008), in an attempt to analogize
Adams's failure to enter the machine through the correct
door to other instances where courts had found misuse to be
unforeseeable. Mestek argued “[l]ike the defendant in
Fjolla, Defendant Mestek could not reasonably
foresee that AutoSteel would permit its employees, including
Mr. Adams, to enter the machine through the blue panel (which
were bolted on) [sic], rather than using the yellow door,
which was equipped with an interlock device.” Def. Mot.
at 15; see also id. (“Like the plaintiffs in
Cobb and Fjolla, Plaintiff alleges that
Defendant Mestek negligently designed the Slear II . . . Yet,
Defendant Mestek's design included a safety feature [the
interlock device] that would have prevented ...