                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 4 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    JIMMIE BRETT WALTERS,

                Plaintiff-Appellant,

    v.                                                   No. 98-6303
                                                    (D.C. No. 97-CV-1520)
    MATERIALS TRANSPORTATION                             (W.D. Okla.)
    COMPANY,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before TACHA , BARRETT , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Jimmie Brett Walters appeals from summary judgment granted in favor of

Materials Transportation Company (MTC) on his Oklahoma products liability

claim. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.

      Walters lost the fingers on his left hand in 1996 when he reached up under

the safety hood of a large meat blender to distribute some ground meat as it was

discharged into a tub. Although the main power switch to the blender was turned

off, just before reaching under the safety hood, Walters had pushed a “jog” button

that he knew temporarily started the augers for whatever period of time was

necessary to completely clear the blender of residual meat. Walters was aware

that the augers did not immediately stop turning after the power to the machine

was shut off, but he believed that enough time had passed (between fifteen

seconds and a minute) since he released the jog switch that the blades should have

stopped turning.   See Appellant’s App. at 125, 127, 129. He admitted that one

can see an external part of the machinery connected to the augers that rotates,

indicating that the augers were still moving, but he did not notice the rotation

before he put his hand under the safety hood.    See id. at 126, 129-31. Walters

apparently asserts that he did not realize the auger blades were still moving or

that his fingers were getting close to the blades because his direct view of the

blades was obscured by the safety hood.     See id. at 126, 130a. There were

warning stickers on the safety hood stating “Danger Keep Away” and showing a


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picture of a hand with the fingers cut off, and Walters was aware of those

stickers. See id. at 89, 130a, 133. He testified, however, that he was trained to

ignore the warnings.   See id. at 133.

      The basis of Walters’ products liability claim is that the absence of a brake

that would immediately stop the augers from turning when no power is on created

a design defect that made the blender unreasonably dangerous. Relying on the

uncontroverted testimony that the danger that the augers could still be moving

after a power shutoff was both obvious and generally known by Walters; that

Walters knew it was dangerous to reach under the cover of the blender; that MTC

provided a warning that directly addressed the danger; that if Walters had simply

looked before reaching in, he would have seen that the augers were still rotating;

and that nothing in the evidence suggested that the blender could not be operated

safely without modifications, the district court held, as a matter of law, that

Walters could not establish that the blender was unreasonably dangerous.      See

Appellant’s App. at 172-75.

      Walters raises three issues on appeal: (1) the district court erred in finding

as a matter of law that the blender was not unreasonably dangerous; (2) the court

erred in implicitly finding that Walters was a “knowledgeable user” to whom

MTC owed no duty; and (3) the court erred in implicitly ruling that Walters

assumed the risk of his own injury. Because the basis of the court’s judgment


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rests only on its legal conclusion that Walters could not establish that the blender

was unreasonably dangerous, and the court did not have to find that Walters was a

“knowledgeable user” in order to draw that conclusion, we address only the first

claim of error. We review the grant of summary judgment           de novo , applying the

same standard employed by the district court under Rule 56(c) of the Federal

Rules of Civil Procedure.     See Riley v. Brown & Root, Inc. , 896 F.2d 474, 476

(10th Cir. 1990). “We must consider factual inferences tending to show triable

issues in the light most favorable to the existence of those issues.”        Id. There is

no genuine issue of fact, however, “[w]here the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party.”         Matsushita Elec.

Indus. Co. v. Zenith Radio Corp.     , 475 U.S. 574, 587 (1986).

       Walters argues that the issue of whether the blender was unreasonably

dangerous as designed is a jury question, and that a triable issue of fact has been

presented by his evidence, including evidence that everyone who worked in his

position bypassed the safety warnings because of the way the machine was

designed to discharge meat into a pile instead of into an even distribution. He

also points to his testimony that the safety cover actually increased the danger by

obscuring the view of the augers and to MTC’s president’s testimony that motors

could probably be purchased with electric brakes that would immediately stop




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rotation when the electricity is turned off without destroying the utility of the

blender, see Appellant’s App. at 153.

       Under Oklahoma law, a product is unreasonably dangerous in design only if

the design “renders it less safe than expected by the ordinary consumer . . . . This

is particularly true in cases . . . where the ‘defect’ alleged is the failure to

minimize an obvious danger which is inherent in the product itself.”        Lamke v.

Futorian Corp. , 709 P.2d 684, 686 (Okla. 1985). The Oklahoma Supreme Court

has held that when a product is used in an industrial setting by a skilled employee,

the manufacturer is entitled to assume that a professional would heed its warnings

and is not required to foresee that the professional would use the product in a

manner specifically warned against.      See Hutchins v. Silicone Specialties, Inc.   ,

881 P.2d 64, 67 (Okla. 1993). In addition, under Oklahoma products liability law,

the fact that it is possible to make a product more safe does not render its design

defective; “only when a defect in the product renders it less safe than expected by

the ordinary consumer will the manufacturer be held responsible.”         Lamke , 709

P.2d at 686.

       This case is similar to   Woods v. Fruehauf Trailer Corp.    , 765 P.2d 770

(Okla. 1988). There, the professional truck driver/plaintiff alleged that a gas

tanker trailer was unreasonably dangerous because it was not equipped with an

available automatic shut-off nozzle that could have prevented the spillage that


                                            -5-
resulted in a fire that injured him.   See id. at 774. In holding that the trial court

should have directed a verdict in favor of the tanker manufacturer on the

plaintiff’s products liability claim, the court noted that because there were ways

to fill the tanker safely as equipped, and the overfilling of the tanker was an

obvious danger of which the plaintiff was well aware, evidence that the tank

could have been made safer did not establish that it was less safe than would be

expected by the plaintiff.    See id. at 775.

       Similarly, in the case at bar, the evidence is undisputed that the blender

may be operated safely without the modification urged by Walters if the blender

operator simply does not override or ignore the safety features and warnings

incorporated into the machinery. The district court properly concluded under

these facts that no rational trier of fact could find that the blender was

unreasonably dangerous.

       The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED.



                                                        Entered for the Court



                                                        James E. Barrett
                                                        Senior Circuit Judge



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