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§ 388Chattel Known to be Dangerous for Intended Use, Restatement (Second) of Torts...
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Restatement (Second) of Torts § 388 (1965)
Restatement of the Law - Torts | June 2017 Update
Restatement (Second) of Torts
Division Two. Negligence
Chapter 14. Liability of Persons Supplying Chattels for the Use of Others
Topic 1. Rules Applicable to All Suppliers
§ 388 Chattel Known to be Dangerous for Intended Use
Comment: Reporter’s Notes Case Citations - by Jurisdiction
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom
the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use,
for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is
supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is
supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition,
and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it
likely to be dangerous.
See Reporter’s Notes.
Comment:
. . .
b. This Section states that one who supplies a chattel for another to use for any purpose is subject to liability for physical harm
caused by his failure to exercise reasonable care to give to those whom he may expect to use the chattel any information as to
the character and condition of the chattel which he possesses, and which he should recognize as necessary to enable them to
realize the danger of using it. A fortiori, one so supplying a chattel is subject to liability if by word or deed he leads those who
are to use the chattel to believe it to be of a character or in a condition safer for use than he knows it to be or to be likely to be.
Illustration:
1. A sells to B a shotgun, knowing that B intends to give it to his son C as a birthday present. A knows, but does not
tell B, that the trigger mechanism of the gun is so defective that it is likely to be discharged by a slight jolt. B gives
the gun to C. While C is using the gun it is discharged, and C is injured, by reason of the defective mechanism. A is
subject to liability to C.
. . .
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McCormack v. Hankscraft Co., 278 Minn. 322 (1967)
154 N.W.2d 488
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 2
e. Ambit of liability. The liability stated in this Section exists only if physical harm is caused by the use of the chattel by those
for whose use the chattel is supplied, and in the manner for which it is supplied. Except possibly where there is a privilege to
use the chattel, the one who supplies a chattel for another’s use is not subject to liability for bodily harm caused by its use by a
third person without the consent of him for whose use it is supplied. This is true although the chattel is one of a sort notoriously
likely to be so used. So too, the supplier is not subject to liability for bodily harm caused by its use by a third person who uses
it even with the consent of him for whom it is supplied, if the supplier has no reason to expect that such a third person may be
permitted to use it.
In order that the supplier of a chattel may be subject to liability under the rule stated in this Section, not only must the person
who uses the chattel be one whom the supplier should expect to use it with the consent of him to whom it is supplied, but the
chattel must also be put to a use to which the supplier has reason to expect it to be put. Thus, one who lends a chattel to another
to be put to a particular use for which, though defective, it is safe, is not required to give warning of the defect, although he
knows of its existence and knows that it makes the chattel dangerous for other uses, unless he has reason to expect such other
uses.
. . .
Comment on Clause (b):
k. When warning of defects unnecessary. One who supplies a chattel to others to use for any purpose is under a duty to exercise
reasonable care to inform them of its dangerous character in so far as it is known to him, or of facts which to his knowledge
make it likely to be dangerous, if, but only if, he has no reason to expect that those for whose use the chattel is supplied will
discover its condition and realize the danger involved. It is not necessary for the supplier to inform those for whose use the
chattel is supplied of a condition which a mere casual looking over will disclose, unless the circumstances under which the
chattel is supplied are such as to make it likely that even so casual an inspection will not be made. However, the condition,
although readily observable, may be one which only persons of special experience would realize to be dangerous. In such case,
if the supplier, having such special experience, knows that the condition involves danger and has no reason to believe that those
who use it will have such special experience as will enable them to perceive the danger, he is required to inform them of the
risk of which he himself knows and which he has no reason to suppose that they will realize.
Soper, Christopher 6/23/2017 For Educational Use Only
McCormack v. Hankscraft Co., 278 Minn. 322 (1967)
154 N.W.2d 488
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 3
278 Minn. 322 Supreme Court of Minnesota.
Andrea Marie McCORMACK, by Donald McCormack, her father and natural guardian,
Appellant, v.
HANKSCRAFT COMPANY, Inc., Respondent.
No. 39627. |
Nov. 17, 1967. |
Rehearing Denied Dec. 12, 1967.
Action against manufacturer of vaporizer which
overturned, causing severe burns to three-year-old child.
The District Court, Ramsey County, Albin S. Pearson, J.,
granted judgment notwithstanding the verdict and a
conditional new trial in favor of the manufacturer, and
appeal was taken. The Supreme Court, Rogosheske, J.,
held, inter alia, that evidence supported the finding that
manufacturer of vaporizer, which upset and severely
burned three-year-old child, failed to exercise reasonable
care to inform users, including child’s parents, who
purchased the vaporizer at drugstore, of scalding
temperatures of the water or to warn of dangers reasonably
foreseeable in the use of the vaporizer, and evidence did
not as a matter of law compel the conclusion that true
nature and gravity of dangers which could result from
scalding water in the jar were sufficiently obvious to most
potential users as to preclude a finding that due care
required an appropriate warning.
Reversed with directions to enter judgment upon the
verdict.
**491 Syllabus by the Court
*322 1. A manufacturer is subject to liability for failure to
exercise reasonable care in designing its product to protect
users or those endangered by its probable use from
unreasonable risk of physical harm while its product is
being used for its intended purpose. Liability also may be
predicated upon failure to exercise reasonable care in the
adequacy of its instructions as to the use of its product and
a warning as to any dangers reasonably foreseeable in its
intended use.
2. Where the evidence permitted the jury to find that
plaintiff, a 3-year-old child, sustained third-degree burns
by contact with the undisclosed presence and rapid
discharge of near-boiling water from an *323 electric
steam vaporizer manufactured by defendant which plaintiff
upset while it was being used in the manner prescribed and
for the purpose intended by defendant, and that defendant,
who knew or should have reasonably foreseen that a child
might be severely burned by scalding water upon upset,
failed to warn of such danger, which it should have realized
was neither obvious nor likely to be apprehended by users,
or failed to protect against the danger by exercising due
care in adopting a safe, althernative design to make the
vaporizer safe for use unattended in a child’s room, the
evidence justified the verdict finding that defendant’s
negligent lack of warning and defective design caused
plaintiff’s injuries.
3. In an action for personal injuries caused by a defective
product, a manufacturer also may be subject to liability for
breach of an express warranty despite the nonexistence of
privity between the manufacturer and the injured person
and the failure to give notice of the breach. Held, the
evidence justified the verdict finding defendant liable to
plaintiff for breach of an express warranty.
4. Abolishing the requirements of privity and notice in
personal injury actions sounding in breach of warranty is
only a transparent device to eliminate bars to recovery
imposed by the law of sales. Preferably, a manufacturer of
a defective product should be held liable to a user or those
endangered by its probable use under the now tested and
developing rule of strict tort liability, imposed by law, as a
matter of policy, without the limitations of any illusory
contract defenses.
5. Where, pursuant to a blended motion for judgment
notwithstanding the verdict or a new trial, a conditional
order granting a new trial is based in whole or in part upon
the insufficiency of the evidence and such issue is also
raised and determined on review of the order granting
judgment notwithstanding the verdict, the order granting a
new trial is subject to discretionary review by this court.
Attorneys and Law Firms
*324 Robins, Davis & Lyons, and John F. Eisberg, St. Paul,
for appellant.
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McCormack v. Hankscraft Co., 278 Minn. 322 (1967)
154 N.W.2d 488
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 4
Murnane, Murnane, Battis & DeLambert, St. Paul, for
respondent.
OPINION
ROGOSHESKE, Justice.
Plaintiff appeals from the judgment entered upon an order
of the district court granting judgment n.o.v. and a
conditional new trial in favor of defendant, Hankscraft
Company, Inc.
Plaintiff, Andrea McCormack, brought this action for
damages by Donald McCormack, her father and natural
guardian, alleging that defendant’s negligence and breach
of implied and express warranties in the manufacture and
sale of a steam vaporizer caused her to suffer substantial
personal injuries. During the 3-week trial, defendant’s
motions for a directed verdict following the submission of
plaintiff’s evidence and at the close of all the evidence were
denied. The court submitted the case to the jury on the
questions of negligence and breach of express warranties,
refusing **492 to instruct on implied warranties. The jury
returned a verdict against defendant, awarding plaintiff
$150,000 damages.
Defendant’s motion for judgment n.o.v. and in the
alternative for a new trial was granted. The motion alleged
multiple grounds, including that the verdict was ‘not
justified by the evidence,‘ was ‘contrary to law,‘ and that
there were ‘excessive damages,‘ but the court in its order
merely declared that the motion ‘is in all things granted’
without expressly specifying the grounds upon which the
relief was granted.
Understandably, the briefs comprehensively attack or seek
to justify the court’s order; but, as the parties apparently
agree and as we view it, the primary issue is whether the
evidence is sufficient to sustain the *325 jury’s verdict of
liability upon a theory either of negligence or breach of
express warranty. [1] Viewing, as we must, the evidence and all permissible
inferences most favorably to the sustaining of the verdict,
the jury reasonably could have found the following facts.
In October 1957, Andrea’s father, Donald McCormack,
purchased from a retail drugstore an electric Hankscraft
steam vaporizer manufactured by defendant. It was
purchased pursuant to the advice of a doctor to be used as
a humidifier for Andrea, then 8 months old, who had just
returned from being hospitalized for croup and pneumonia.
After unpacking the vaporizer, Andrea’s parents read the
instruction booklet accompanying the unit from ‘cover to
cover.’ Then, following defendant’s printed instructions,
they put the vaporizer to use in the treatment of Andrea.
Thereafter, from time to time as the need arose, it was used
for the young children of the family in the prescribed
manner, including the use of it unattended throughout the
night, without any problem.
The vaporizer was used exclusively in the treatment of the
children of the family. After its initial use, Andrea’s mother
invariably took charge of filling it, setting it up, plugging
in the electric cord, replenishing the water in the glass, jar,
and occasionally, as directed by the booklet, cleaning the
heating unit. In using the vaporizer, she relied upon
defendant’s printed representations that the unit, except for
cleaning, needed no attention, could be left unattended in a
child’s room, would ‘run all night on one filling of water,‘
and was ‘safe’ and ‘practically foolproof.’
In the spring of 1960, the children had colds and Mrs.
McCormack desired to use the vaporizer but found it
‘wasn’t working.’ She went to the same self-service
drugstore and purchased another Hankscraft vaporizer
similar to the first unit. She personally selected it without
the aid or recommendation of any clerk because it was a
Hankscraft, knowing defendant to be a manufacturer of a
number of products for children and relying upon
defendant’s prior representations contained in the booklet
accompanying the first vaporizer that its vaporizers were
‘safe’ and ‘practically foolproof,‘ as well as advertisements
representing them *326 to be ‘tip-proof.’ This second
vaporizer, purchased in a sealed carton, was known as
Model 202A, and its general appearance as to size and
shape and its method of operation were identical with the
first unit. It was accompanied by an instruction booklet
substantially identical to that furnished with the first
vaporizer, which Mrs. McCormack again completely read.
This second vaporizer had been used about a half dozen
times without incident when, on November 20, 1960, it was
again set up for use in a small bedroom in the northwest
corner of the house, occupied by Andrea, then 3 years and
9 months old, and her baby sister, Alison, 1 year and 10
months old. Andrea slept in a regular single bed and Alison
in a crib. To the east of the doorway of this bedroom is an
adjoining bathroom, which Andrea frequently used during
the night. The doors of the **493 bedrooms and bathroom
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McCormack v. Hankscraft Co., 278 Minn. 322 (1967)
154 N.W.2d 488
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 5
were habitually left open and a light was usually burning
in the bathroom. Andrea’s bed was located in what might
be described as the southwest corner of the room with the
headboard against the doorway wall. The crib was in the
northeast corner. A chifforobe stood next to the crib against
the north wall. Andrea’s mother set up the vaporizer at
about 8 p.m. on a seat-step-type metal kitchen stool about
2 1/2 feet high. She placed the stool in front of and against
the chifforobe. The electric cord was extended behind the
chifforobe and plugged into an outlet located there. The
stool was about 4 feet from the foot of Andrea’s bed. When
steam started coming from the hole in the top of the unit,
Mrs. McCormack left the room. After visiting a neighbor
until about 11 p.m., she did some ironing, and at about 1:30
a.m., she returned to the room to replenish the water supply
in the vaporizer. Using some type of ‘mitt,‘ she lifted the
cap and poured water from a milk bottle into the jar. She
then went to bed.
At about 2:30 a.m., Mrs. McCormack heard a terrible
scream and got out of bed. She found Andrea lying on the
floor of her bedroom, screaming. The metal stool was
upright, but the vaporizer was on the floor and the water
had come out of the jar. The vaporizer had separated into
its three component parts—a glass jar, a metal pan, and a
plastic top-heating unit. The electric cord was still plugged
into the electric outlet. In some manner, Andrea, while
intending to go to the bathroom, *327 had tipped over the
vaporizer and caused the water in the jar to spill upon her
body.
Andrea was rushed to the hospital for treatment. More than
30 percent of her body had severe burns; she was suffering
from shock; and her condition was critical for some time.
She had third-degree burns on her chest, shouldres, and
back. Skingraft surgery was performed on her twice. She
was hospitalized for 74 1/2 days. Ten days later she was
admitted to the Kenny Institute for treatment. She remained
there 102 days and thereafter was taken to the Mayo Clinic,
where she had further surgery in August 1961. At the time
of the trial, Andrea had heavy scar tissue on her chest,
stomach, legs, arms, and neck; a deformed jaw; restricted
movement of her head; an irregular posture; and the
prospect of 6 to 12 more surgical procedures during her
lifetime. Her condition is largely permanent.
The ‘automatic-electric’ vaporizer in question is of normal
design and consists of three component parts—an
aluminum pan which serves as a base, a 1-gallon glass jar
or water reservoir which is inserted into the pan, and a
black plastic cap to which is fastened a black plastic
heating-chamber tube.
The glass jar, 6 5/8 inches square and 8 inches high, is a so-
called ‘standard gallon pickle jar’ not specially
manufactured as a component part. The top opening is 4
1/2 inches in diameter and its outer neck has a male-type
glass thread. To fill the jar to a designated fill mark requires
.73 gallon of water.
The aluminum pan, which is made to fit the bottom of the
jar, is 4 inches high. It has two plastic lifting and carrying
handles. Four projections, 3/4 inch in diameter and 1/8 inch
in height, are regularly spaced on the bottom of the pan and
serve as feet for the unit.
The plastic cap and heating chamber assembly has a dome-
like appearance in its upper portion, which is 5 inches in
diameter and 2 3/4 inches high. Enclosed in a plastic tube
which attaches to the upper portion are two narrow, 8-inch-
long steel electrodes which extend from the underside of
the cap and are fastened to terminals which connect to an
electric plug-in type cord. This cord, about 6 feet long, is
attached to the terminals through a hole in the cap.
Opposite the electric cord is *328 a round steam hole 3/16
inch in diameter. Directly below this there is moulded into
the top a ‘medicament hollow.’ The heating chamber tube
enclosing the electrodes is about 7 5/8 inches **494 long.
It consists of a lower section 5 1/8 inches long, which
tapers upward from 1 1/2 inches to 1 7/8 inches in diameter,
and an upper section 2 1/2 inches long and 3 inches in
diameter. The upper section has a flange 3 3/4 inches in
diameter through which three screws are used to fasten
both sections to the cap. A hole 1/8 inch in diameter is in
the bottom of the lower section through which water in the
jar reaches the electrodes. Eight holes 1/4 inch in diameter
are in the bottom of the upper section. They are intended to
relieve any steam pressure that might build up inside the
lower tube or the jar should the steam hole become
obstructed and also to guard against ‘any chance of water
spitting out the steam hole.’ The cap and heating chamber
assembly, by its own weight, rests loosely upon the glass
jar with the black tube extending down into the jar. There
are no threads inside the plastic cap or any other means
provided to fasten the cap to the threaded neck of the jar.
This design and construction were intended by defendant
to serve as a safety measure to avoid any buildup of steam
in the glass jar, but it also has the result of allowing the
water in the jar to gush out instantaneously when the
vaporizer is tipped over. This unit can be tipped over easily
by a child through the exertion of about 2 pounds of force.
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McCormack v. Hankscraft Co., 278 Minn. 322 (1967)
154 N.W.2d 488
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 6
To operate the vaporizer in accordance with the
instructions contained in defendant’s booklet, the ‘entire
plastic cover’ is removed, the glass jar is filled to the filling
market with tap water containing minerals, and the cord is
plugged into an electric outlet, whereupon ’(t)he vaporizer
will produce a gentle cloud of steam within a few minutes.’
The heating unit is designed so that it automatically turns
off whenever the water in the jar decreases to a certain
level. As the booklet pictorially illustrates, the water from
the jar enters the lower section of the heating chamber
through the small hole at the bottom. Here it is heated until
it boils and is vaporized into steam, which passes out of the
unit through the hole in the cap.
Tests made of the unit established that after about 4
minutes of operation the water in the heating chamber
reaches 212 degrees Fahrenheit *329 and steam emanates
from the steam port. Although the water in the jar outside
the heating chamber does not reach the boiling point, the
upper portion of this water does reach 211 degrees within
35 minutes of operation and the middle portion reaches 211
degrees within 3 hours. The temperature of the outside of
the jar ranges from 172 degrees after about 1 hour to 182
degrees after 5 hours. Thus, during most of the 6- to 8-hour
period in which the unit is designed to operate without
refilling, the water in the reservoir is scalding hot, since
water of 145- degree temperature will burn and 180-degree
water will cause third-degree burns on a child 5 years old.
By touch, a user can determine that the water in the jar
outside the heating unit, as well as the jar and the plastic
cap, becomes hot during the operation of the vaporizer.
However, there is no movement of the water in the jar and
no means by which a user could discern by sight or touch
that this reserve water in the jar became and remained
scalding hot. Plaintiff’s parents, relying upon their
understanding of what defendant represented in its
instruction booklet, were reasonably led to believe up to
the time of plaintiff’s injury that, since steam was
generated only in the heating unit, the temperature of the
water in the jar during the entire operation of the vaporizer
remained the same as when put in. At all of the times when
replenishing the water in either the first or second
vaporizer, plaintiff’s mother followed the routine of
removing the entire plastic cover by using some ‘glove’ or
‘mitt’ as a precaution against the steam. She would leave
the cord plugged in, add water to the jar, replace the cover,
wait until steam appeared, and then leave the unit
unattended in the room. As her testimony implied, she are
no time discovered by touching or handling the unit when
it was in use that the temperature of any part of the water
in the jar became hot.
**495 The instruction booklet furnished by defendant did
not disclose the scalding temperatures reached by the water
in the jar, nor was any warning given as to the dangers that
could result from an accidental upset of the unit. While
plaintiff’s mother realized that the unit could be tipped over
by a sufficient external force, she justifiably relied upon
defendant’s representations that it was ‘safe,’ ‘practically
foolproof,‘ and ‘tip-proof.’ She understood this to mean
that the unit ‘was safe to *330 use around (her) children’
and that she ‘didn’t have to worry’ about dangers when it
was left unattended in a child’s room since this was the
primary purpose for which it was sold.
In its booklet and advertising, defendant in fact made the
representations relied upon by plaintiff’s mother. In
addition to the simple operating instructions and a pictorial
‘cut-away’ indicating how the steam is generated by the
electrodes in the heating chamber, the booklet stated:
‘WHY THE HANKSCRAFT VAPORIZER IS
SUPERIOR TO OTHERS IN DESIGN.
‘Your vaporizer will run all night on one filling of water,
directing a steady, gentle flow of medicated steam exactly
where it is needed. No attention is necessary.
‘It’s safe, too, and practically foolproof. Since the water
itself makes the electric contact, the vaporizer shuts off
automatically when the water is gone. The electric unit
cannot burn out.’
The booklet also had a picture of a vaporizer sending steam
over a baby’s crib, alongside which was printed:
‘For most effective use, the vaporizer
should be placed at least four feet away
from the person receiving treatment,
and should not be placed above the
patient’s level.’
Defendant’s officers realized that the vaporizers would be
primarily used in the treatment of children and usually
would be unattended. They had knowledge that the water
in the jar got scalding hot; that this water would cause third-
degree burns on a small child; that the water in the jar
would gush out instantaneously if the unit were tipped
over; that the unit was not ‘tipproof’; that the combination
of the unsecured top and the hot water in the jar was
dangerous because of the possibility that a child might tip
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McCormack v. Hankscraft Co., 278 Minn. 322 (1967)
154 N.W.2d 488
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 7
it over during operation; and that, prior to plaintiff’s injury,
at least 10 to 12 children had been burned in this manner.
Furthermore, defendant’s officers realized that the fact the
water in the jar got hot was not discernible during operation
except by touching or handling the unit and that a user
could conclude from their booklet that *331 steam was
generated in the plastic core and be led to believe that the
reserve water in the jar did not itself become scalding hot.
Plaintiff called two expert witnesses, whose qualifications
in the field of product design were unquestioned. Both
testified that the design of the vaporizer was defective
principally in that it failed to provide a means for securing
the plastic cover to the jar in a manner which would prevent
the water in the jar from instantaneously discharging when
the unit was tipped over. In the opinion of both, the unit
could be tipped over with little force and this defective
design created a risk of bodily harm to a child if the unit
were left operating and unattended in the room. This defect
could have been eradicated by the adoption of any one of
several practical and inexpensive alternative designs which
untilized simple and well known techniques to secure the
top to the jar. Any of these alternative designs could have
been employed by defendant prior to its production of the
second vaporizer by the application of sound product-
design principles current at that time. Among these
alternative designs was that of making threads on the inside
of the plastic top so it could screw onto the jar and the
putting of two or three small holes in the top, which would
take care of any danger that steam would build up inside
the **496 jar. Both witnesses stated that such a change in
design was essential to make the unit safe for its intended
use because the presence of near-boiling water in the jar
was not discernible by sight or touch and not warning of
the risk of harm was contained in defendant’s instruction
booklet.
Plaintiff contends that the evidence not only raised jury
issues as to negligence, breach of warranties, and causation
but also is more than sufficient to support the jury’s finding
of liability on the two theories submitted. Defendant
contends the evidence presented was so deficient to
establish its liability on any ground that it is entitled to a
judgment on the merits as a matter of law. [2] At this late date in the development of the law relating
to the tort liability of manufacturers of all types of products
for injuries caused by their products, there can be no doubt
that a manufacturer is subject to liability for a failure to use
reasonable care in the design of its product to any user or
consumer, including any person who may reasonably *332
be expected to be in the vicinity of its use, to protect against
unreasonable risk of physical harm while the product is
used for its intended purpose. Such liability may equally be
predicated upon a failure to use reasonable care in giving
adequate and accurate instructions as to the use of the
product and a warning as to any dangers reasonably
foreseeable in its intended use. Lovejoy v. Minneapolis-
Moline Power Imp. Co., 248 Minn. 319, 79 N.W.2d 688.
Plaintiff urges that defendant was negligent both in its
failure to give any warning of the dangers inherent in the
use of the vaporizer and in its adoption of an unsafe design.
Plaintiff claims among other things that defendant, in
undertaking to instruct as to the use of its vaporizer,
violated its duty to use due care when it failed to inform
that the water in the jar got scalding hot with temperatures
up to 211 degrees Fahrenheit and to warn of the dangers of
serious injury if the unit were upset during operation.
Defendant concedes it gave no such warning but
vigorously argues that a warning was not necessary since
the fact that the water in the jar becomes and remains hot
should be obvious to any user.
In support of its position, defendant claims that anyone
touching the jar or plastic top after the vaporizer had been
working for some time would realize they are hot and
conclude the water in the jar is also hot, and that because
the instructions indicate that steam is produced in the
plastic heating chamber, a reader would necessarily
conclude the water in the jar is hot since the heating unit
obviously comes into direct contact with such water.
Plaintiff, on the other hand, contends that a warning is
necessary because the average user would not realize that
this water becomes hot, much less that it becomes scalding
hot. Plaintiff relies upon the undisputed evidence that there
is no boiling activity of the reserve water in the jar and that
there is no way short of actual temperature measurements
to discern by sight or touch that this water reaches the
dangerous temperature of 211 degrees. Further, plaintiff
relies upon the evidence that the instructions furnished by
defendant served to allay any suspicions a user might
otherwise have as to the nearboiling temperature of the
water or any apprehension of danger by indicating that the
vaporizer was safe to use unattended in a child’s *333 room
throughout the night. Moreover, both of plaintiff’s parents
testified that neither had in fact become aware of the
temperature of the water nor realized the danger that, if the
unit were upset while in use, the water could scald and
inflict third-degree burns on a child. [3] We have little difficulty in reaching the conclusion that
the evidence justified the jury in finding that defendant
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McCormack v. Hankscraft Co., 278 Minn. 322 (1967)
154 N.W.2d 488
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 8
failed to exercise reasonable care to inform users, including
plaintiff’s parents, of the scalding temperatures of the
water and to warn of the dangers reasonably foreseeable in
the use of the vaporizer. Hartmon v. National Heater Co.,
240 Minn. 264, 60 N.W.2d 804. **497 Surely the evidence
does not as a matter of law compel a conclusion that the
true nature and gravity of the dangers which could result
from the scalding water in the jar were sufficiently obvious
to most potential users as to preclude the jury from finding
that due care required an appropriate warning. Under the
court’s instruction, the jury could, and quite likely did,
conclude that defendant knew or should have reasonably
foreseen that the primary use of its vaporizer involved the
danger that a child might be severely burned by the rapid
discharge of near-boiling water upon an intentional or
accidental upset, and that a substantial number of users
would not become aware of the scalding temperature of the
water nor realize the potential dangers of using the
vaporizer unattended in a child’s room unless adequate
information and an appropriate warning were given so that
parents would take extraordinary precautions. These
findings, together with defendant’s utter failure to warn,
and the finding that the dangers inherent in the vaporizer’s
use were not obvious and were outside the realm of
common knowledge of potential users (especially in view
of defendant’s representations of safety)1 are, we hold,
supported by the evidence and alone justified the jury’s
verdict of liability.
1
Restatement, Torts (2d) s 388, comment B.
[4] [5] We similarly conclude and hold that the evidence is
also sufficient to support the jury’s verdict of liability on
the ground that defendant was negligent in adopting an
unsafe design.
. . .
[7] [8] We also conclude that the evidence was sufficient to
support a finding of liability upon a breach of an express
warranty.
. . .
[13] [14] We also hold the evidence adequate to support a
reasonable inference that defendant’s negligence and
breach of warranty proximately caused plaintiff’s injury.
From the fact that plaintiff sustained third-degree burns by
coming in contact with near-boiling water, the obvious and
reasonable inference is that her injuries were directly
caused by the undisclosed presence and rapid discharge of
the scalding water in the vaporizer jar.18 *341 At best, under
the court’s instructions, defendant was permitted to argue
that the negligence of plaintiff’s mother was a superseding
cause, for it is clear that the failure of plaintiff’s parents to
discover the defect or any other negligent conduct on the
part of plaintiff’s mother under any theory of liability
cannot be imputed to plaintiff.19 The jury found against
defendant on this issue, and we doubt that a contrary
finding could be sustained. We discover no evidentiary
basis for a claim that the vaporizer was abnormally used or,
indeed, was so placed in plaintiff’s room that the
propensity of children to tip things over when going to the
bathroom at night was deliberately or negligently ignored,
amounting to unforeseeable negligent conduct or
assumption of risk by plaintiff’s mother. Foreseeable
intervention by a third party is not a superseding cause.20
18
Standafer v. First Nat. Bank, 243 Minn. 442, 68 N.W.2d
362; Paine v. Gamble Stores, Inc., 202 Minn. 462, 279
N.W. 257, 116 A.L.R. 407; Lindroth v. Walgreen Co.,
329 Ill.App. 105, 67 N.E.2d 595, affirmed, 407 Ill. 121,
94 N.E.2d 847.
19
Peterson v. Richfield Plaza, Inc., 252 Minn. 215, 89
N.W.2d 712.
20
Knutson v. Nielsen, 256 Minn. 506, 99 N.W.2d 215. See,
also, Prosser, The Fall of the Citadel (Strict Liability to
the Consumer), 50 Minn.L.Rev. 791, 826, for his
treatment of intervening conduct to relieve a supplier of
strict liability in tort.
Finally, we come to the troublesome question of
reviewability of the order conditionally granting a new
trial. Plaintiff urges that we review and reverse, and
defendant **502 insists that, since judicial discretion was
exercised in granting the order, Minn.St. 605.09(e); Satter
v. Turner, 257 Minn. 145, 100 N.W.2d 600; and Gothe v.
Murray, 260 Minn. 181, 109 N.W.2d 350, require a
dismissal of this portion of plaintiff’s attempted appeal.
It is at once evident that if we agree with defendant we are
placed in the untenable position of having held the
evidence adequate to sustain the verdict while at the same
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154 N.W.2d 488
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 9
time permitting a new trial on all issues to occur because
the trial court in the exercise of discretion, as urged by
defendant, presumably found the verdict not justified by
the evidence. Complicating the matter is defendant’s
omission to assert before this court any claim that the order
could be sustained on the ground that it was based
exclusively upon errors of law prejudicial to defendant or
that the damages awarded were excessive for reasons
requiring a retrial on all issues; that the court did not
specify the grounds for the order either in the order or an
explanatory memorandum; and that *342 Rule 59.01(8),
Rules of Civil Procedure,21 provides that, if it was based on
insufficient evidence, ‘it shall not be presumed’ on appeal
to have been made on that ground unless ‘it be so expressly
stated in the order.’
21
Rule 59.01, Rules of Civil Procedure, provides: ‘A new
trial may be granted * * * for any of the following
causes:
‘(8) The verdict, decision, or report is not justified by the
evidence, or is contrary to law; but, unless it be so
expressly stated in the order granting a new trial, it shall
not be presumed, on appeal, to have been made on the
ground that the verdict, decision, or report was not
justified by the evidence.’
. . . [15] [16] We believe the situation presented compels us to
exercise our discretionary authority provided by the
Constitution, if not, indeed, intended by s 605.05, subd. 2,
of the new Civil Appeal Code.24 **503 This amendment,
enacted subsequent to the cases relied upon, surely intends
that once a case has been properly brought before us on
appeal we may, in our discretion, ‘review any other matter
as the interests of justice may require.’ In exercising this
discretionary power, we are for all practical purposes
overruling our decisions in Satter v. Turner, supra, and
Gothe v. Murray, supra, wherein we held we could not
review conditional orders granting a new trial despite our
review of the orders granting judgment n.o.v. Even though
there are statutory limitations on a litigant’s right to a
review of an order granting a new trial, the order granting
judgment n.o.v. is clearly reviewable of right on an appeal
from the judgment and both the amendment to the code and
common sense dictate that we should review the whole
order. We hold therefore that where, as here, a conditional
order granting a new trial is based in whole or in part upon
the insufficiency of the evidence and such issue is also
raised and determined on review of the order granting
judgment n.o.v., we will, if we deem the interests of justice
require, review the order in its entirety. Perhaps future
cases may require broadening this exercise of discretionary
review, but this holding is sufficient for this case.25
24
Section 605.05, subd. 2, provides: ‘On appeal from an
order the supreme court may review any order affecting
the order from which the appeal is taken and on appeal
from a judgment may review any order involving the
merits or affecting the judgment. It may review any other
matter as the interests of justice may require.’
25
See Ginsberg v. Williams, 270 Minn. 474, 476, note 3,
135 N.W.2d 213, 216, note 3, citing cases which
‘emphasize(d) the view that appeals pursuant to statute
are rights granted to litigants by the legislature, not
limitations on the ‘appellate jurisdiction of this court
(which) is not derived from the legislature, but from the
constitution (article 6, s 2).‘‘ See, also, proposed
amendment to Rule 50.02(4, 5, 6), Rules of Civil
Procedure and Rule 103.04, subd. 2, of the proposed
Rules of Civil Appellate Procedure.
*344 In reversing the order, we are unable to find a ground
upon which it can be upheld. As we have stated, the
evidence justified the verdict of liability and also, we
believe, the award of damages. We find no errors of law
occurring at trial which were prejudicial to defendant.
Defendant did not specifically assign any such errors in its
motion in the trial court or assert any by brief or argument
before this court. Nor is it claimed on this appeal that the
damages are excessive. We appreciate that defendant may
have refrained from arguing prejudicial error or excessive
damages because of its position that the order for a new
trial was not reviewable, but we have scrutinized the record
with great care, resolving any doubts most favorably to
defendant, and we are unable to find any procedural,
evidentiary, or other errors which adversely affected
defendant’s substantial rights and upon which the
conditional order granting a new trial could be sustained.
Reversed with directions to enter judgment upon the
verdict. All Citations
278 Minn. 322, 154 N.W.2d 488
End of Document
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Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922 (1986)
55 USLW 2328, Prod.Liab.Rep. (CCH) P 11,175
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395 N.W.2d 922 Supreme Court of Minnesota.
Dan GERMANN, Respondent, v.
F.L. SMITHE MACHINE COMPANY, Defendant and Third Party Plaintiff, Petitioner, Appellant, Quality Park Products, Third Party Defendant.
No. C9–85–1442 |
Nov. 14, 1986.
Employee of business using hydraulic press brought
products liability action against manufacturer for injuries
sustained when his leg was caught in press. Manufacturers
brought third-party action against business using press. The
District Court, Ramsey County, Edward R. Mulally, J.,
entered judgment on jury verdict against manufacturer, and
business and manufacturer appealed. The Court of
Appeals, 381 N.W.2d 503, affirmed. On appeal, the
Supreme Court, Kelley, J., held that: (1) removal of
detachable safety bar on press and injuries resulting
therefrom were foreseeable, and manufacturer had legal
duty to warn operators of dangers from that misuse; (2)
jury’s answers to special verdict interrogatories, that design
was not defective and that manufacturer had breached duty
to warn, were not inconsistent; and (3) verdict, that
manufacturer had breached duty to warn and that breach
was legal cause of injuries, was not manifestly contrary to
evidence.
Affirmed.
*923 Syllabus by the Court
1. Manufacturer of industrial machine that posed danger of
injury to operator if operated without a manufacturer-
provided safety device had the duty to warn users or
operators of the machine of the existence of the danger,
when removal of the safety device by others was
foreseeable.
2. Answers of the jury to interrogatories on the special
verdict were neither inconsistent, nor were they clearly
erroneous.
Attorneys and Law Firms
Henry A. Cousineau, Jr., Bruce D. Elliot, Minneapolis, for
F.L. Smithe Mach. Co.
Steven J. Kirsh, Michael S. Ryan, St. Paul, for Dan
Germann.
Michael Forde, Minneapolis, for Quality Park Products.
Heard, considered and decided by the court en banc.
Opinion
KELLEY, Justice.
The manufacturer properly designed an industrial
hydraulic press by equipping it with safety devices. Had
those devices as designed been properly attached to the
hydraulic press, an operator of the machine would not have
sustained an injury. The question presented is whether,
under existing circumstances, the manufacturer had the
legal duty to warn users or operators of the machine of the
dangers inherent in its operation without having the
designed safety devices functionally operative. The trial
court and the court of appeals1 ruled it did have such a duty.
We concur and affirm.
1
Germann v. F.L. Smithe Machine Co., 381 N.W.2d 503
(Minn.App.1986).
In 1975 appellant F.L. Smithe Machine Company (Smithe)
delivered to Quality Park Products (Quality Park) a
programmable hydraulic press (hereinafter referred to as
PHP 33) in two separate crates. The stationary table for the
machine was in one crate; the operating and moving
machinery was in the other. Smithe provided manuals
containing instructions for assembling and maintenance of
the PHP 33. Employees of Quality Park, using those
manuals, assembled the machine. As part of the assembly,
a safety bar needed to be attached to the machine. When
properly placed, the safety bar would prevent the operator
from being injured as the result of entanglement of body
members in the “pinch point” between the moving and
stationary tables that were part of the press. On original
assembly, by following Smithe’s manual instructions and
diagrams, Quality Park’s employees properly attached the
safety bar. Because the safety bar was located between the
moving and stationary tables of the press, it had to be
removed in order to permit access to the machine for
maintenance and repair. From the time of the original
assembly of the press by Quality Park’s employees until
the date of the accident, the safety bar had been removed
for maintenance service on only one or two occasions. But
on the day of the accident giving rise to this case, the safety
bar was unattached.
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More than six years after the installation and assembly of
the PHP 33, respondent Germann, a Quality Park
employee, sustained serious injuries to his left leg when it
became caught in the press between the moving and
stationary table.
At the time of the accident Quality Park had three PHP’s in
its plant. The two others were similar to the PHP 33 except
*924 the latter was equipped with additional safety devices
not attached to the other two. At the time of the accident
Germann was operating the PHP 33, which he had operated
previously on a number of occasions. Undisputed evidence
clearly establishes that the safety bar was not in place at the
time of the accident, and had not been for months.2
2
The usual operator of PHP 33 stated the bar had not been
attached for months prior to the accident. Germann
indicated he never had seen the safety bar and only
learned of its existence after the accident. Neither of the
other PHP’s, one of which Germann usually operated,
came equipped with a safety bar.
Germann sought personal injury damages from appellant
Smithe claiming that the PHP 33 had been defectively
designed, and that Smithe had failed to adequately warn
operators of dangers connected with the machine’s use
when functional safety equipment was not attached. Smithe
impleaded Quality Park. At trial the jury found (1) that the
PHP 33 was not defective because of design, but (2) that
the PHP 33 was defective because Smithe failed to provide
adequate warnings for the safe use of the product.3
Following the verdict, Smithe moved for judgment
notwithstanding the verdict or for a new trial. The trial
court denied both motions and the court of appeals
affirmed.
3
Judgment was entered in favor of Germann in the
amount of $100,000, one-half apportioned to Smithe and
one-half to Quality Park.
1. The primary issue raised in this appeal is whether Smithe
had the legal duty to warn users of the dangers of using the
PHP 33 when the safety bar was not properly attached. The
question of whether a legal duty to warn exists is a question
of law for the court—not one for jury resolution. Prosser
and Keeton, The Law of Torts § 37, p. 236 (5th ed. 1984);
Restatement (Second) of Torts § 328B (1965).
[1] Smithe contends it had no duty to provide warnings as
to the unsafe operation of a machine it manufactured (i.e.
PHP 33) when it had provided a safety bar which, if
properly installed and maintained, would have prevented
the accident. The danger caused by the absence of the
safety bar, it contends, was solely due to the neglect of
Quality Park in its failure to properly maintain the safety
bar in place. It relies on Westerberg v. School District 792,
276 Minn. 1, 148 N.W.2d 312 (1967) where we noted the
duty to warn rests directly on the foreseeability of the
injury. 276 Minn. at 9, 148 N.W.2d at 317. Improper use
of the product, however, resulting from such things as
improper maintenance need not be anticipated by the
manufacturer. 276 Minn. at 7–8, 148 N.W.2d at 316. See
also Rogers v. Unimac Co., 115 Ariz. 304, 565 P.2d 181
(1977).
While not disagreeing that foreseeability of injury is the
linchpin for determination whether a duty to warn exists,
Germann responds that because Smithe designed the press
with a removable safety bar, a design that, in fact, requires
its removal for the machine’s maintenance, Smithe
reasonably knew or should have recognized the potentiality
that the bar might not be properly replaced. Germann
argues Smithe should, therefore, have warned operators, by
the attachment of a warning decal or by other appropriate
means, that for the safe operation of the machine, the safety
bar should be properly installed and functional.
As indicated, whether there exists a duty is a legal issue for
court resolution. Green, Foreseeability in Negligence Law,
61 Colum.L.Rev. 1401, 1408 (1961). In determining
whether the duty exists, the court goes to the event causing
the damage and looks back to the alleged negligent act. If
the connection is too remote to impose liability as a matter
of public policy, the courts then hold there is no duty, and
consequently no liability. On the other hand, if the
consequence is direct and is the type of occurrence that was
or should have been reasonably foreseeable, the courts then
hold as a matter of law a duty exists. Other issues such as
adequacy of the warning, breach of duty and causation
remain *925 for jury resolution. Christianson v. Chicago
St. P., M. & O. Ry. Co., 67 Minn. 94, 69 N.W. 640 (1896).
Appellant reads Westerberg to limit the duty issue so as to
relieve the manufacturer from providing an adequate
warning against misuse. Such a reading, in our view,
extends Westerberg beyond its actual holding. In
Westerberg the court did state “[t]he manufacturer of a
chattel can hardly be expected to warn of every conceivable
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danger that might arise from misuse of the chattel or failure
to maintain it after it breaks down.” Westerberg, 276 Minn.
at 6, 148 N.W.2d at 315. Based upon the facts in that case,
the court demonstrated that it would be carrying the duty
of a manufacturer too far to require it to anticipate every
injury that might occur when the machine was so
improperly used or maintained. In Westerberg we noted the
manufacturer could not have reasonably anticipated either
the action of the school’s maintenance man in altering a
broken safety device or the action of the students in
overriding the safety lid of the laundry machine by use of
some sort of pry bar. Our later cases, however, demonstrate
that if a manufacturer-seller should anticipate that an
unwarned operator might use the machine in a particular
manner so as to increase the risk of injury and the
manufacturer has no reason to believe that users will
comprehend that risk, a duty to warn may exist. See, e.g.,
Bilotta v. Kelley Co., 346 N.W.2d 616, 621 (Minn.1984);
Holm v. Sponco Mfg., Inc., 324 N.W.2d 207, 212
(Minn.1982); Frey v. Montgomery Ward & Co., 258
N.W.2d 782, 786 (Minn.1977); Clark v. Rental Equipment
Co., 300 Minn. 420, 426, 220 N.W.2d 507, 511 (1974).
[2] In some respects the facts in Westerberg are
indistinguishable from those in the case at bar. Each case
involves injury arising from the use of a machine
approximately six years old. Each machine was heavily
used. Both accidents occurred as a result of faulty
maintenance by the purchaser-owner-employer which
caused designed safety mechanisms in each machine to
fail. However, in our opinion, a distinguishing fact of
significance exists. The safety lid device on the washer in
Westerberg was installed by the manufacturer in such a
manner it was only remotely foreseeable that the safety
feature would be altered or allowed to fall into disrepair in
a manner so as to increase any risk of injury to a user. See
276 Minn. at 3, 148 N.W.2d at 313. To the contrary, in the
case at bar, the safety bar was designed to be attached by
the purchaser. In addition, the safety bar was detachable as
the result of the machine’s design. In fact, it had to be
detached in order that the press might be serviced.
Knowing that, Smithe could have reasonably foreseen that
on a machine designed for extended and heavy use, it was
almost inevitable that for maintenance purposes the safety
bar would be removed, and that there was a risk it might
not be properly reattached. If the safety bar was not
properly reattached, there would be exposure to a user-
operator of increased danger of injury of the type the safety
bar had been designed to prevent. This misuse was
foreseeable; it was not remote; and the danger of injury to
a user because of the misuse was likewise foreseeable.
Therefore, we hold Smithe had a legal duty to warn
operators of the peril of running the press without a
properly attached and operating safety bar.
[3] 2. Next, appellant contends the jury’s answers to special
verdict interrogatories are irreconcilable. Smithe contends
that inasmuch as the jury failed to find defective design of
the press, nothing exists that would require a warning.
Smithe contends that as a manufacturer, it only had the duty
to warn of design defects. Minnesota law for many years
has been to the contrary. See, e.g., Bigham v. J.C. Penney
Co., 268 N.W.2d 892 (Minn.1978); Clark v. Rental
Equipment Co., 300 Minn. 420, 220 N.W.2d 507 (1974);
McCormack v. Hankscraft Co., 278 Minn. 322, 154
N.W.2d 488 (1967); *926 Lovejoy v. Minneapolis-Moline
Power Implement Co., 248 Minn. 319, 79 N.W.2d 688
(1956).4 The verdict answers were not inconsistent; the jury
found the machine to be properly designed but that Smithe
had breached a duty to warn of its use without the designed
safety features being attached and functional—two
different but consistent findings.
4
All of the cited cases involved negligence claims.
However, this court has adopted the position that strict
liability for failure to warn is based upon principles of
negligence. See, e.g., Hauenstein v. Loctite Corp., 347
N.W.2d 272 (Minn.1984); Holm v. Sponco Mfg. Co., 324
N.W.2d 207, 215 (1982) (Simonett, J. dissenting).
[4] Smithe likewise claims no credible evidence exists to
support the jury’s verdict. We have carefully reviewed the
evidence. After doing so, we come to the conclusion that
there was more than sufficient lay and expert testimony
combined with other evidence to justify the jury’s verdict
that Smithe breached its obligation to provide an adequate
warning, and that the breach was a legal cause of
Germann’s injuries. Accordingly, we sustain the verdict
because we find it not to be manifestly contrary to the
evidence. Sandhofer v. Abbott-Northwestern Hospital, 283
N.W.2d 362, 368 (Minn.1979); Lamke v. Louden, 269
N.W.2d 53, 56 (Minn.1978).
Affirmed. All Citations
395 N.W.2d 922, 55 USLW 2328, Prod.Liab.Rep. (CCH)
P 11,175
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Drager by Gutzman v. Aluminum Industries Corp., 495 N.W.2d 879 (1993)
61 USLW 2580, Prod.Liab.Rep. (CCH) P 13,540
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 13
495 N.W.2d 879
Court of Appeals of Minnesota.
William DRAGER, By his guardian ad litem, Edward G. GUTZMAN, and Sharlene Armstrong,
his mother, Appellants, v.
ALUMINUM INDUSTRIES CORPORATION, Respondent,
FML, Inc., et al., Defendants, Lawrence D. Foy, et al., Respondents.
No. C7–92–1202. |
Feb. 23, 1993. |
Review Denied April 20, 1993.
Child tenant brought action against window screen
manufacturer and landlord arising from child’s fall through
second-story apartment window. Manufacturer and
landlord moved for summary judgment. The District Court,
Washington County, David E. Doyscher, J., granted
manufacturer’s motion and denied landlord’s motion.
Child appealed. The Court of Appeals, Huspeni, J., held
that: (1) manufacturer had no duty to design screen which
would prevent child’s accidental dislodging of screen and
fall; (2) manufacturer had no duty to warn potential users
that screens would not keep child from falling through
window; and (3) genuine issue of material fact as to
whether landlord breached duty to use due care in
maintenance of screens precluded summary judgment for
landlord.
Affirmed.
Schumacher, J., dissented and filed opinion.
*881 Syllabus by the Court
1. Manufacturer of window screen had no duty to design a
screen which would prevent appellant’s accidental
dislodging of screen and fall from window.
2. Connection between appellant’s accidental dislodging of
window screen and fall from window, and manufacturer’s
failure to warn was, as a matter of law, too remote to
impose liability.
3. Material issue of fact existed as to whether landlord
negligently repaired window screen.
Attorneys and Law Firms
Steve Gaskins, Bradley J. Ayers, Cosgrove, Flynn, Gaskins
& O’Connor, Minneapolis, for appellants Drager and
Armstrong.
Deborah Ellis, Thomson & Ellis, Ltd., St. Paul, for
appellant Gutzman.
Gay B. Urness, Mahoney, Dougherty and Mahoney,
Minneapolis, for Aluminum Industries Corp.
Eric J. Magnuson, Rider, Bennett, Egan & Arundel,
Minneapolis, William N. Majerus, Burton D. Anderson &
Associates, Bloomington, for Lawrence D. Foy, et al.
Considered and decided by HUSPENI, P.J., and
SCHUMACHER and AMUNDSON, JJ.
OPINION
HUSPENI, Judge.
Appellant was severely injured when he accidentally
dislodged a window screen and fell from a second story
window. He brought suit against respondent window
manufacturer, respondent landlord, and others. The trial
court granted respondent manufacturer’s motion for
summary judgment on the grounds that there was no duty
to design a screen which would prevent a child from falling
out of the window. The trial court denied respondent
landlord’s motion for summary judgment. We affirm.
FACTS
In April 1987, appellant William Drager and his family
moved into an apartment building owned and operated by
respondent J.A. Management, Inc. (“landlord”). In
November 1987, appellant, then six years old, fell back in
his chair and came in contact with a window screen hung
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approximately twenty-four inches above the floor. He
claims that the screen dislodged without offering any
resistance, and that as a result he fell out of the apartment’s
second story window. Appellant suffered severe injuries as
a result of the fall.
Appellant sued respondent Aluminum Industries
Corporation (“manufacturer”) on both defective design and
failure to warn claims, and sued landlord claiming that it
was negligent in its maintenance of the window screens.
The trial court granted summary judgment to manufacturer
on the grounds that manufacturer had no duty to design a
screen that would have prevented *882 appellant’s fall.
The trial court denied landlord’s summary judgment
motion after determining the existence of a “genuine issue
of material fact as to whether [landlord] maintained the
dwelling unit in a safe condition as set out in the Lease
Agreement.”
ISSUES
1. Did the trial court err in granting manufacturer’s motion
for summary judgment?
2. Did the trial court err in denying landlord’s motion for
summary judgment?
ANALYSIS
I.
[1] [2] On appeal from summary judgment, this court’s role
is to review the record to determine: (1) whether there are
any genuine issues of material fact to be determined, and
(2) whether the trial court erred in its application of the law.
Huber v. Niagara Mach. & Tool Works, 430 N.W.2d 465,
467 (Minn.1988). When reviewing the trial court’s grant of
summary judgment, we view all evidence in the light most
favorable to the party against whom the motion was
granted. Id.
[3] [4] In reviewing the issues presented in this appeal, we
are mindful that summary judgment is a blunt instrument
to be employed “only where it is perfectly clear that no
issue of fact is involved.” Donnay v. Boulware, 275 Minn.
37, 45, 144 N.W.2d 711, 716 (1966), quoted in Poplinski
v. Gislason, 397 N.W.2d 412, 414 (Minn.App.1986), pet.
for rev. denied (Minn. Feb. 18, 1987). We also agree with
the trial court that summary judgment:
should be granted only where the
moving party has established a right
to judgment with such clarity as to
leave no room for doubt, and only
where the nonmoving party is not
entitled to recover under any
circumstances.
Appellant raised two claims against manufacturer: first,
that the window screen was defectively designed; and,
second, that the window screen was defective because
manufacturer failed to provide adequate warnings and
instructions. These claims present issues of first impression
in this state, and we shall address each claim in turn.
A. Defective Design [5] To recover against a manufacturer, an injured party must
show that (1) the product was in a defective condition
unreasonably dangerous to the user, (2) the defect existed
when it left the manufacturer’s control, and (3) the defect
was the proximate cause of the injury sustained. Bilotta v.
Kelley Co., 346 N.W.2d 616, 623 n. 3 (Minn.1984);
Westbrock v. Marshalltown Mfg. Co., 473 N.W.2d 352,
356 (Minn.App.1991), pet. for rev. denied (Minn. Sept. 13,
1991).
[6] [7] To determine whether a product is defective,
Minnesota courts apply a “reasonable care balancing test.”
Westbrock, 473 N.W.2d at 356.
[A] manufacturer is obligated to
exercise that degree of care in his
plan or design so as to avoid any
unreasonable risk of harm to anyone
who is likely to be exposed to the
danger when the product is used in
the manner for which the product
was intended, as well as an
unintended yet reasonably
foreseeable use.
Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115,
121, 348 N.E.2d 571, 577 (1976) (citations omitted),
quoted in Bilotta, 346 N.W.2d at 621 (emphasis added).
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Generally, the question of whether a product is defective is
a question of fact; however, where reasonable minds
cannot differ, the question becomes one of law. See
Peterson v. Little–Giant Glencoe Portable Elevator Div. of
Dynamics Corp. of America, 366 N.W.2d 111, 116
(Minn.1985); Independent Sch. Dist. No. 14 v. AMPRO
Corp., 361 N.W.2d 138, 142 (Minn.App.1985), pet. for
rev. denied (Minn. Mar. 29, 1985).
[8] The trial court determined as a matter of law that
manufacturer had no duty to manufacture a window screen
that would restrain a child from falling out of a window,
and observed:
There has been no case law
submitted to the Court whereby a
screen manufacturer *883 was held
liable for injuries resulting from a
child having fallen through a screen.
There are no U.S. or Minnesota
building codes or industry standards
which govern the strength of
window screens installed in
buildings. * * * The courts have
long recognized that the intended
use of screens is to keep insects out
of buildings, not people in
buildings. * * * Screens are not
security devices.
Despite the submission by appellant of evidence purporting
to demonstrate the foreseeability of his accident, we must
agree with the analysis of the trial court. Appellant has
failed to show that he was exposed to an unreasonable risk
of harm when the window screen was used for its intended
purpose or for an unintended yet foreseeable use.
Courts in numerous jurisdictions have recognized that a
window screen’s intended purpose is to allow for
ventilation while preventing the ingress of insects and not
to prevent people from falling out of windows. See, e.g.,
Schlemmer v. Stokes, 47 Cal.App.2d 164, 117 P.2d 396,
398 (1941) (“screen is not placed in a window for the
purpose of keeping persons from falling out”); Lamkin v.
Towner, 138 Ill.2d 510, 150 Ill.Dec. 562, 570, 563 N.E.2d
449, 457 (1990) (“[w]indow screens are designed to allow
air and light into an area while preventing insects from
entering”); Chelefou v. Springfield Inst. for Sav., 297 Mass.
236, 8 N.E.2d 769, 772 (1937) (keeping children from
falling out of windows “is not the ordinary purpose of
window screens”); Egan v. Krueger, 103 N.J.L. 474, 135
A. 811, 812 (1927) (purpose of a window screen is not to
keep persons from falling out of a window); Potter v.
Southwestern Associated Tel. Co., 248 S.W.2d 286, 290
(Tex.Civ.App.1952) (keeping children from falling out of
window is not “the ordinary purpose of window screens”).
[9] Appellant was not using the window screen for its
intended purpose at the time of his injury. Nor can it be said
that he subjected the screen to a foreseeable yet unintended
use. Appellant fell against the screen by accident. He did
not make a conscious decision to use the screen in any
manner.1 While, given the evidence submitted by appellant,
we must assume that this accident was foreseeable, see
Huber, 430 N.W.2d at 467, we cannot agree that the screen
was “used” in any meaningful way at the time of
appellant’s accident.
1
We reject the view expressed in the dissent that the
window screen was unreasonably dangerous when used
for ventilation. Unlike the plaintiff in McCormack v.
Hankscraft Co., 278 Minn. 322, 326–27, 154 N.W.2d
488, 493 (1967), appellant was not injured by danger
inherent to the product. Appellant was not injured by the
screen itself, but by a fall arising from appellant’s
accident which dislodged the screen.
[10] The issue of whether a manufacturer has a duty to
design a screen which would keep a person from falling
through a window was recently addressed by the Illinois
Supreme Court in a case involving facts substantially
similar to the case at bar. See Lamkin, 150 Ill.Dec. at 562,
563 N.E.2d at 449. Plaintiffs in Lamkin were children who
were injured when they fell from a window after dislodging
its screen. Id. at 563–64, 563 N.E.2d at 450–51. The trial
court in Lamkin certified a question as to the screen
manufacturer’s duty for review by the Illinois Supreme
Court. Id. at 565, 563 N.E.2d at 452.
The Lamkin court explained:
Virtually any manufactured product can cause or be a
proximate cause of injury if put to certain uses or
misuses, but strict liability applies only when the product
is “dangerous to an extent beyond that which would be
contemplated by the ordinary [person].”
Id. 150 Ill.Dec. at 571, 563 N.E.2d at 458 (quoting
Restatement (Second) of Torts § 402A cmt. i (1965) (other
citations omitted)). The court reasoned:
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The window screens were simply
serving the purpose for which they
were created when the accidents
occurred. Even assuming that “the
ordinary [person]” may recognize
the potential for a screen to restrict a
fall from a window, we cannot
conclude that, in the event a window
screen fails to prevent the fall of a
minor leaning against it, “the
ordinary [person]” would consider
the screen dangerous *884 beyond
his original contemplation of the
product.
Lamkin, 150 Ill.Dec. at 571, 563 N.E.2d at 458. Applying
this reasoning, the supreme court of Illinois granted
summary judgment to the manufacturer of the window
screens. Id.2
2
The court in Lamkin also noted that plaintiffs had
presented no evidence to support a finding that the
window screen’s design caused the injuries. Lamkin v.
Towner, 138 Ill.2d 510, 150 Ill.Dec. 562, 571, 563
N.E.2d 449, 458 (1990). While we recognize that under
Minnesota law the “existence of a safer, practical
alternative design is not an element of an alleged
defective product design prima facie case,” Kallio v.
Ford Motor Co., 407 N.W.2d 92, 97 (Minn.1987), we do
not deem this distinction sufficient to undermine the
persuasive nature of the Lamkin decision.
[11] We find the court’s reasoning in Lamkin persuasive.
The failure of a window screen to restrict a child’s fall from
a window does not render the window screen unreasonably
dangerous. Appellant’s exposure to danger in this case
resulted from an unfortunate accident. It did not result from
an intended use or from an unintended yet foreseeable use.
Accordingly, we must affirm the trial court’s grant of
summary judgment on appellant’s defective design claim.
B. Failure to Warn [12] [13] [14] The trial court did not address whether
respondents had a duty to warn potential users that the
screens would not keep a person from falling through a
window. However, we shall address that issue here,
because the existence of a duty to warn is a question of law.
Balder v. Haley, 399 N.W.2d 77, 81 (Minn.1987). While
“failure to warn is a cause of action separate from defective
design,” Huber, 430 N.W.2d at 467, we resolve the two
issues identically.
[15] To determine whether a manufacturer has a duty to
warn, the court:
goes to the event causing the
damage and looks back to the
alleged negligent act. If the
connection is too remote to impose
liability as a matter of public policy,
the courts then hold there is no duty,
and consequently no liability. On
the other hand, if the consequence is
direct and is the type of occurrence
that was or should have been
reasonably foreseeable, the courts
then hold as a matter of law a duty
exists.
Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924
(Minn.1986), quoted in Balder, 399 N.W.2d at 81. Because
appellant’s injury resulted neither from an intended use nor
an unintended but reasonably foreseeable use, but rather
from an accident, we are compelled to conclude that the
connection between the injury he sustained and the alleged
negligent act is too remote to impose liability as a matter
of public policy. Therefore, consistent with the court’s
reasoning in Germann, there is no duty to warn.
[16] In addition, even in the instance of an intended or
reasonably foreseeable unintended use, a manufacturer has
no duty to warn when the product user is aware of the risk.
Willmar Poultry Co. v. Carus Chem. Co., 378 N.W.2d 830,
835 (Minn.App.1985), pet. for rev. denied (Minn. Feb. 14
and 19, 1986); Dahlbeck v. DICO Co., 355 N.W.2d 157,
163 (Minn.App.1984), pet. for rev. denied (Minn. Feb. 6,
1985); see also Minneapolis Soc’y of Fine Arts v. Parker–
Klein Assocs. Architects, Inc., 354 N.W.2d 816, 821
(Minn.1984) (explaining “there is no duty to warn if the
user knows or should know the potential danger”),
overruled on other grounds by Hapka v. Paquin Farms,
458 N.W.2d 683, 687 (Minn.1990).
[17] Longstanding case law from foreign jurisdictions is
consistent with the observation of Minnesota courts on the
duty to warn when the risk is obvious to the user. In Egan,
135 A. at 812, the court observed:
A screen in a window, obviously
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and of common knowledge, is not
placed there for the purpose of
keeping persons from falling out of
a window, any more than the glass
in the window itself is placed there
for that purpose. Consequently it is
manifest that this accident was not
the result of the failure of the
defendant to perform any duty
which he owed to the child for her
protection.
*885 The same basic law has been applied in other
jurisdictions. See, e.g., Chelefou, 8 N.E.2d at 772 (landlord
not liable for injuries sustained by a three-year-old child
who fell through a window screen because screens are not
intended to keep children from falling out); Schlemmer,
117 P.2d at 398 (landlord not liable for injuries sustained
by a three-year-old child who fell through a screen as “[i]t
is a matter of common knowledge that a screen is not
placed in a window for the purpose of keeping persons
from falling out”). We conclude that the manufacturer had
no duty to warn potential users of a danger of which they
were aware.3
3
We recognize that when it is foreseeable that children
will come in contact with a product the manufacturer
may be required to exercise a higher degree of care in
warning potential users of the risks associated with that
product. See Augustine v. Hitzman, 287 Minn. 311, 314,
178 N.W.2d 227, 229 (1970) (holding “[a] higher degree
of care is required with respect to children than with
respect to adults”). Nonetheless, we note once again that
the injury to appellant resulted from an accident, not a
use or misuse of the screen. The connection between the
event causing appellant’s injury and the alleged
negligence of manufacturer, we believe, meets the
degree of remoteness addressed by the court in
Germann.
II.
[18] Landlord seeks review of the trial court’s order denying
summary judgment. Generally, “[a]n order denying
summary judgment is not appealable in the absence of trial
court certification as important and doubtful.” Bogatzki v.
Hoffman, 430 N.W.2d 841, 846 (Minn.App.1988), pet. for
rev. denied (Minn. Dec. 21, 1988). This court may review
nonappealable orders “as the interests of justice require.”
Minn.R.Civ.App.P. 103.04. Because the issue has been
fully briefed by the parties, we will review this issue.
[19] Appellant claims that landlord is liable for negligently
maintaining the apartment building where the injuries took
place.
The question of negligence is
normally a matter for the jury;
however, the existence of a legal
duty is an issue for the trial court to
determine as a matter of law.
Oakland v. Stenlund, 420 N.W.2d 248, 250
(Minn.App.1988) (citations omitted), pet. for rev. denied
(Minn. Apr. 20, 1988).
[20] At common law, a landlord was not liable to a tenant
for any damage caused by defective conditions existing at
the time of the lease. Id. at 251. Today, however, there are
several recognized exceptions to this general rule including
“where the landlord negligently repairs the premises.” Id.
[21] [22] Ordinarily, a landlord has no duty to maintain
premises within a lessee’s control. Saturnini v. Rosenblum,
217 Minn. 147, 152, 14 N.W.2d 108, 111 (1944); Oakland,
420 N.W.2d at 251. However, if a landlord expressly
agrees to maintain such premises, he has a duty to exercise
reasonable care. See Saturnini, 217 Minn. at 152, 14
N.W.2d at 111; Oakland, 420 N.W.2d at 251.
Appellant has presented evidence that landlord regularly
removed the screens for cleaning and maintenance.
Appellant has also offered expert testimony that the screen
was not properly lodged in the window frame at the time
of the accident and that the screen’s improper installation
was a partial cause of appellant’s fall.4 Viewing this
evidence in the light most favorable to appellant, Huber,
430 N.W.2d at 467, there is a genuine issue of fact as to
whether landlord breached his duty to use due care in the
maintenance of the screens. Accordingly, we will not
disturb the trial court’s denial of summary judgment.
4
Appellant’s expert testified that in post-accident tests the
window screen was able to withstand thirteen to fourteen
pounds of pressure if properly installed. Appellant’s
expert also testified that such resistance to displacement
exceeds the Canadian standard for screen strength.
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DECISION
The trial court did not err in granting summary judgment
for manufacturer. The window screen manufacturer had no
duty to design a screen which would prevent *886
appellant’s fall. We also conclude that the relationship
between appellant’s injury and manufacturer’s failure to
warn is too remote to impose liability as a matter of law.
The trial court did not err in denying landlord’s motion for
summary judgment.
Affirmed.
SCHUMACHER, Judge (dissenting).
I respectfully dissent from the majority’s decision as it
relates to appellant’s claim against the manufacturer. I
would reverse the trial court’s grant of summary judgment
on appellant’s defective design and failure to warn claims.
1. Summary Judgment
This is not a proper case for summary judgment. Appellant
has clearly submitted sufficient evidence that he was
exposed to an unreasonable risk of harm when using the
window screen for its intended purpose to allow the claim
to withstand a summary judgment motion. Summary
judgment shall be granted
if the pleadings, depositions,
answers to interrogatories, and
admissions on file, together with the
affidavits, if any, show that there is
no genuine issue as to any material
fact and that either party is entitled
to judgment as a matter of law.
Minn.R.Civ.P. 56.03.
On appeal from a summary
judgment, this court must determine
(1) whether there are any genuine
issues of material fact, and (2)
whether the trial court erred in its
application of the law.
Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330
(Minn.1979). The reviewing court
must take a view of the evidence
most favorable to the one against
whom the [summary judgment]
motion was granted.
Abdallah, Inc. v. Martin, 242 Minn. 416, 424, 65 N.W.2d
641, 646 (1954).
2. Defective Design
As the majority acknowledges,
a manufacturer is obligated to
exercise that degree of care in his
plan or design so as to avoid any
unreasonable risk of harm to anyone
who is likely to be exposed to the
danger when the product is used in
the manner for which the product
was intended, as well as any
unintended yet reasonably
foreseeable use.
Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115,
348 N.E.2d 571, 577–78 (1976), quoted in Bilotta v. Kelley
Co., 346 N.W.2d 616, 621 (Minn.1984) (citations omitted).
The case at bar is analogous to the landmark case of
McCormack v. Hankscraft Co., 278 Minn. 322, 154
N.W.2d 488 (1967). Plaintiff in McCormack was severely
injured when she accidently tipped over a vaporizer
manufactured by defendant and was splashed with near
boiling water. Id. at 326–27, 154 N.W.2d at 492–93.
Plaintiff claimed that the manufacturer negligently adopted
an unsafe design for the vaporizer. Id. at 324, 154 N.W.2d
at 491. After verdict for plaintiff, the trial court granted
judgment notwithstanding the verdict on the defective
design claim. Id., at 326, 154 N.W.2d at 492.
The Minnesota Supreme Court recognized that “the
primary, intended use of the vaporizer was for the
treatment of children’s colds and croup.” Id. at 334, 154
N.W.2d at 497. The court held, however, that the evidence
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presented was sufficient to support the plaintiff’s claim that
defendant failed to exercise
reasonable care * * * to guard
against the reasonably foreseeable
danger that a child would tip the unit
over when it was in use and be
seriously burned by coming in
contact with the scalding water * *
*.
Id. Therefore, under Hankscraft, a manufacturer has a duty
to use reasonable care to protect against dangers arising
when the product is used for its intended purpose. These
dangers include reasonably foreseeable accidents with
naturally arise from the use of the product. See id.
Here, the window screen’s primary, intended purpose was
to provide ventilation in a residential dwelling. The record
is clear that appellant did use the screen for this purpose.
Appellant has presented substantial evidence to establish
that it was *887 foreseeable that a young child would
accidently come in contact with the window screen.
Viewing this evidence in the light most favorable to
appellant, see Huber v. Niagara Mach. & Tool Works, 430
N.W.2d 465, 467 (Minn.1988), I would conclude that
manufacturer had a duty to manufacture its window screen
so as to avoid unreasonably exposing users to this
foreseeable risk arising from the window screen’s intended
use.
The Eighth Circuit Court of Appeals has explained that a
manufacturer’s duty of design
is met when the article is safe for its
intended use and when it will fairly
meet any “emergency of use” which
is foreseeable.
Larsen v. General Motors Corp., 391 F.2d 495, 501 (8th
Cir.1968). As discussed above, appellant has submitted
evidence to support his claim that a reasonably foreseeable
“emergency of use” is that a child will accidently come in
contact with a window screen. Thus, manufacturer had a
duty to exercise reasonable care in designing a window
screen which would mitigate the risk of harm associated
with this “emergency of use.” Id.
I would not hold that a manufacturer has a duty to design a
screen which will in every instance prevent a child’s fall.
A “manufacturer is under no duty to design an accident-
proof or fool-proof” product. Id. at 502. Rather, a
manufacturer has a duty only to exercise reasonable care in
adopting a design for its product. Holm v. Sponco Mfg.,
Inc., 324 N.W.2d 207, 212 (Minn.1982).
What constitutes “reasonable care” will, of course, vary
with the surrounding circumstances and will involve “a
balancing of the likelihood of harm, and the gravity of
harm if it happens, against the burden of the precaution
which would be effective to avoid the harm.”
Id. (quoting Micallef, 384 N.Y.S.2d at 121, 348 N.E.2d at
577–78 (other citations omitted), quoted in Bilotta, 346
N.W.2d at 621). The question of whether a manufacturer
met its duty will in most cases be a question of fact for the
jury. Peterson v. Little–Giant Glencoe Portable Elevator
Div. of Dynamics Corp. of Am., 366 N.W.2d 111, 116
(Minn.1985).
Here, appellant presented evidence that the manufacturer
took no steps in the design of the screen to alleviate the risk
that a child would dislodge the window screen and fall out
of the window. The manufacturer designed a screen for use
in a residential complex. The screen in place was a mere 24
inches off the floor and was held in place by only four
“clips.” Police investigators reported that “the screen
appeared to be extremely flimsy” and could be popped out
with two fingers. The record also contains evidence that the
window screens could be dislodged by a cat. I believe that
this evidence, viewed in the light most favorable to
appellant, establishes the existence of a material issue of
fact as to whether manufacturer met its duty of reasonable
care. Huber, 430 N.W.2d at 467.
3. Failure to Warn
To determine whether a manufacturer has a duty to warn,
this court
goes to the event causing the
damage and looks back to the
alleged negligent act. If the
connection is too remote to impose
liability as a matter of public policy,
the courts then hold there is no duty,
and consequently no liability. On
the other hand, if the consequence is
direct and is the type of occurrence
that was or should have been
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reasonably foreseeable, the courts
then hold as a matter of law a duty
exists.
Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924
(Minn.1986), quoted in Balder v. Haley, 399 N.W.2d 77,
81 (Minn.1987).
Appellant produced evidence to establish that the
manufacturer was aware a great many children have been
injured by dislodging low level window screens and falling
out of windows. This evidence also established the severe
nature of the injuries associated with this type of accident.
I do not believe appellant’s injury is so remote as to warrant
limitation as a matter of public policy. Rather public policy
favors the imposition of a duty to warn. *888 Appellant’s
injury is a direct consequence of the use of low hanging
window screens in residential dwellings. Appellant has
submitted substantial evidence that the screen
manufacturing industry has been aware of this problem for
many years, and yet the industry has refused to take steps
to warn potential users of this serious risk.
As the majority notes, generally a manufacturer has no duty
to warn of obvious risks. While the dangers of falling out
of a window may be considered obvious, it is not obvious
that a screen will dislodge without offering any resistance
whatsoever. Further, because it was foreseeable that
children would come in contact with the screen, the
manufacturer was required to exercise a higher degree of
care in warning potential users of the risks associated with
the product. See Augustine v. Hitzman, 287 Minn. 311, 314,
178 N.W.2d 227, 229 (1970) (“A higher degree of care is
required with respect to children than with respect to
adults.”)
After finding that the manufacturer had a duty to warn,
“issues such as the adequacy of the warning, breach, and
causation” are for the jury to resolve. Balder, 399 N.W.2d
at 81. I recognize that appellant may have difficulty
establishing that the manufacturer’s failure to warn was the
proximate cause of his injury, but “the fact that the
nonmoving party is unlikely to prevail at trial does not
warrant granting summary judgment.” Writers, Inc. v. West
Bend Mut. Ins. Co., 465 N.W.2d 419, 422
(Minn.App.1991) (citations omitted).
For these reasons, I would reverse the trial court’s grant of
summary judgment in favor of the manufacturer.
All Citations
495 N.W.2d 879, 61 USLW 2580, Prod.Liab.Rep. (CCH)
P 13,540
End of Document
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Stringer v. National Football League, 749 F.Supp.2d 680 (2009)
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 21
749 F.Supp.2d 680 United States District Court,
S.D. Ohio, Eastern Division.
Kelci STRINGER, Plaintiff, v.
NATIONAL FOOTBALL LEAGUE, et al., Defendants.
Case No. 2:03–cv–665. |
July 10, 2009. |
Opinion Denying Reconsideration Sept. 22, 2010.
Synopsis
Background: Widow of football player who sustained
heat stroke during training camp brought wrongful
death/survivorship action, as administrator of player’s
estate, against helmet and shoulder pad manufacturers,
alleging that helmet and pads were defectively designed
and/or manufactured because they acted as an insulating
blanket preventing evaporation and heat dissipation, and
also asserting claims for failure to warn and breach of
warranty. Manufacturers moved for summary judgment.
Holdings: The District Court, John D. Holschuh, J., held
that:
[1] Minnesota law governed widow’s products liability
claims;
[2] manufacturers had duty to warn of risk of heat
exhaustion and heat stroke;
[3] widow failed to show that the helmet and pads were in a
defective condition, as would support her design defect
claim; and
[4] manufacturers were not liable for breach of warranty.
Motion granted in part and denied in part.
Attorneys and Law Firms
*682 Stanley Morris Chesley, Louise Malbin Roselle, Paul
M. De Marco, Renee Ann Infante, Wilbert Benjamin
Markovits, Waite Schneider Bayless & Chesley Co., *683
LPA, Cincinnati, OH, Kenneth R. White, Mankato, MN,
for Plaintiff.
Robert C. Tucker, Scott J. Kelly, Irene C. Keyse–Walker,
Tucker Ellis & West LLP, Cleveland, OH, for Defendants.
MEMORANDUM OPINION AND ORDER
JOHN D. HOLSCHUH, District Judge.
Korey Stringer (“Stringer”), a football player for the
Minnesota Vikings (“Vikings”), suffered a heat stroke and
died during the Vikings’ July 2001 training camp. Plaintiff
Kelci Stringer (“Plaintiff”), Stringer’s wife and the
executor of his estate, brings this wrongful
death/survivorship action against, among others, the All
American Sports Corporation and Riddell, Inc.
(collectively, “Defendants”), and alleges that Defendants’
helmets and shoulder pads are defective and caused
Stringer’s death. This matter is currently before the court
on Defendants’ Motion for Summary Judgment. (Doc. #
53.) For the following reasons, Defendants’ Motion is
GRANTED IN PART and DENIED IN PART.
I. Background
Stringer, an offensive lineman for the Vikings, reported to
the Vikings training camp in Mankato, Minnesota on July
29, 2001. Conditions at the training camp were extremely
hot and humid, and were potentially dangerous to anyone
who was not acclimated to exercising in the heat. (Dep. of
Walter Lyons p. 29, doc. # 56.) Stringer had a history of
showing up to training camp in poor physical condition,
and even though he arrived to the 2001 training camp in
better condition than he had in previous years he still
weighed approximately 340 lbs and was not acclimated to
exercising in the heat. (Dep. of Mike Tice pp. 47, 85–6,
doc. # 54.)
Training camp practice began on July 30. During both the
morning and afternoon practices on July 30 the players,
including Stringer, wore “shells,” which consisted of a
helmet, shoulder pads, shorts and a jersey, in addition to
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shoes, socks, and undergarments. The helmet and shoulder
pads that Stringer wore were manufactured by Defendants,
and were constructed out of thick, dense padding to protect
against the impacts players experienced during football
practices and games. Although both the helmet and
shoulder pads contained warnings against misuse, neither
contained any warning about a risk of suffering a heat
stroke or other heat-related illness. Stringer participated in
the morning practice without incident, although he
complained to coaches and trainers of an upset stomach.
(Id. p. 110.)
During the afternoon practice, however, Stringer suffered
an episode of heat exhaustion. Stringer continued to
complain about his stomach, and fellow players and
coaches observed Stringer vomiting during drills. (Dep. of
Matthew Birk p. 48, doc. # 57; Tice Dep. pp. 122–25.)
Stringer’s performance was described as “sluggish” and
“struggling;” “[h]e was slow getting back to the line when
he finished his repetitions and individual drills. He was not
talkative, which he normally was; he was quiet. [He] had a
look of anguish on his face.” (Tice Dep. p. 124.) When
Stringer continued to vomit, coaches called for a trainer
and removed Stringer from practice over Stringer’s
objections. The trainers took Stringer to an air conditioned
trailer to cool down and gave him water, but did not give
him any other first aid. (Dep. of Charles Barta p. 46, 47,
doc. # 55.)
Training camp continued on July 31 with a morning
practice. During this practice the players wore full pads
instead of shells, i.e. football pants with knee, thigh, and
hip pads instead of shorts, along with a helmet, shoulder
pads, jersey, shoes, socks, *684 and undergarments. Just as
on July 30, the helmet and shoulder pads Stringer wore
were manufactured by Defendants. Stringer continued to
complain of stomach problems before the practice but
trainers, after simply weighing him and determining that he
had gained back the fluid weight he lost the previous day,
cleared him to return to practice with the direction to
continue drinking fluids. (Barta Dep. p. 259–60.) Stringer
practiced well and his coaches did not observe him
struggling with the heat (Tice Dep. 183–84), but at
approximately 11:00 a.m. during a set of extra drills after
the formal practice had ended Stringer collapsed on the
practice field. (Dep. of Billy McFarland p. 46, doc. # 90–
2.) He told his teammates that he needed a trainer (Birk
Dep. 79), and once the trainers arrived Stringer got up and
walked with them to the air conditioned trailer. (Dep. of
Paul Osterman p. 40, doc. # 66.)
Inside the trailer the trainers allowed Stringer to rest and
cool off and gave him water, but did not give him any other
aid, assess his condition, or otherwise suspect that Stringer
was in danger of or was suffering a heat related illness. (Id.
p. 65.) Stringer did not speak to or interact with the trainers
except to thank them for removing his shoes, socks, and
athletic tape (id. p. 48–57), but he moved back and forth
from a training table to the floor several times and was
detached and distant. These are symptoms of heat stroke,
but were not recognized by the trainers. After
approximately 30 minutes in the trailer Stringer laid down
on the floor and became unresponsive, and the trainers
began to suspect that something was wrong. (Id. p. 70–72.)
Stringer was still sweating after 30 minutes inside an air
conditioned trailer, and his skin felt cool and moist (id. p.
79), both of which are symptoms of heat stroke. The
trainers called for a medical advisor who arrived and
initially believed that Stringer was hyperventilating, and
consequently told one of the trainers to hold a plastic bag
over Stringer’s mouth. When Stringer did not respond to
this treatment the trainers, although still not knowing what
was wrong with Stringer, called for an ambulance at
approximately 12:00 p.m. to take Stringer to the emergency
room. (Dep. of Fred Zamberletti p. 67–69, doc. # 63.) At
no point did anyone attempt to cool Stringer or realize that
he was suffering from heat stroke.
Stringer arrived at the hospital at approximately 12:30 p.m.
By this time he was comatose and his pulse was rapid. His
temperature was taken for the first time since he collapsed,
and it registered as 108.8° F. a full hour and a half after
Stringer had stopped exercising. Stringer was admitted to
the hospital and received treatment, but died at
approximately 1:30 a.m. on August 1, 2001 due to multi-
organ failure and complications from exertional heat
stroke.
Plaintiff sued the National Football League, NFL
Properties, Inc., Dr. John Lombardo (the “NFL
Defendants”), and Defendants on July 28, 2003. (Compl.,
doc. # 1.) Plaintiff brought negligence claims against the
NFL Defendants and alleged that they breached a duty of
care to Stringer by failing to provide complete, current and
competent information and directions to NFL athletic
trainers, physicians and coaches regarding heat-related
illness and its prevention, symptoms and treatment. (Id. ¶¶
29–43.) Plaintiff brought products liability claims against
Defendants based on both design defect and failure to warn
theories, as well as breach of warranty claims. Plaintiff
alleged that Defendants’ helmets and shoulder pads were
defectively designed and/or manufactured because they act
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as an insulating blanket preventing evaporation and heat
dissipation. According to Plaintiff, this unreasonably
increases a player’s *685 body temperature and was a
substantial contributing factor to Stringer suffering a heat
stroke. Additionally, Plaintiff alleges that Defendants
breached a duty to warn of this danger by not including any
heat-related illness warning on either the helmet or
shoulder pads, and that Defendants breached implied and
express warranties. (Id. ¶¶ 44–64.)
Both the NFL Defendants and Defendants initially argued
that Plaintiff’s claims were preempted by § 301 of the
Labor Management Relations Act, 29 U.S.C. § 185, and
filed motions to dismiss on that ground. (Doc. 7, 20.) The
court, in a Memorandum Opinion and Order dated
February 1, 2007, denied Defendants’ motion in full and
granted in part and denied in part the NFL Defendants’
motion, see Stringer v. National Football League et al.,
474 F.Supp.2d 894 (S.D.Ohio 2007), and the case
proceeded to discovery. After a sufficient period of
discovery, Defendants filed a Motion for Summary
Judgment on October 30, 2008. (Doc. # 53.) Plaintiff
responded on December 24, 2008 (doc. # 80), and
Defendants replied on January 19, 2009 (doc. # 84).
Defendants’ Motion is now ripe for adjudication. Plaintiff
and the NFL Defendants, however, stipulated to the
dismissal with prejudice of Plaintiff’s claims against the
NFL Defendants on January 21, 2009. (Doc. # 89.) The
court has diversity jurisdiction pursuant to 28 U.S.C. §
1332.
II. Summary Judgment Standard
Although summary judgment should be cautiously
invoked, it is an integral part of the Federal Rules, which
are designed “to secure the just, speedy and inexpensive
determination of every action.” Celotex Corp. v. Catrett,
477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)
(quoting FED. R. CIV. P. 1).
. . .
The existence of a mere scintilla of evidence in support of
the opposing party’s position is insufficient; there must be
evidence on which the jury could reasonably find for the
opposing party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.
The nonmoving party must present “significant probative
evidence” to demonstrate that “there is [more than] some
metaphysical doubt as to the material facts.” Moore v.
Philip Morris Companies, Inc., 8 F.3d 335, 340 (6th
Cir.1993). The court may, however, enter summary
judgment if it concludes that a fair-minded jury could not
return a verdict in favor of the nonmoving party based on
the presented evidence. Anderson, 477 U.S. at 251–52, 106
S.Ct. 2505; Lansing Dairy, Inc., 39 F.3d at 1347.
III. Analysis [1] Plaintiff brings products liability claims, based on failure
to warn and design defect theories, and implied and express
warranty claims against Defendants.1 *687 Minnesota law
governs the substance of these claims. Because this court’s
jurisdiction is premised on diversity of citizenship pursuant
to 28 U.S.C. § 1332, the court must apply Ohio’s choice of
law rules, see Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), and
Ohio has adopted the Restatement (Second) of Conflict of
Laws to govern the question of what law to apply in tort
actions, see Morgan v. Biro Manufacturing, 15 Ohio St.3d
339, 342, 474 N.E.2d 286 (1984). Section 175 of the
Restatement governs actions for wrongful death, and states
that “the local law of the state where the injury occurred
determines the rights and liabilities of the parties unless,
with respect to the particular issue, some other state has a
more significant relationship ... to the occurrence and the
parties, in which event the local law of the other state will
be applied.” In this case, Minnesota is the state where the
injury occurred and there is no evidence that any other state
has a significant relationship to the occurrence or the
parties.
1
Under Minnesota law, a cause of action for failure to
warn is separate from a cause of action for defective
product design. See Bilotta v. Kelley Co., Inc., 346
N.W.2d 616, 626 (Minn.1984) (Simonett, J.,
concurring). These claims, although applying some
negligence principles, are strict liability claims.
McCormack v. Hankscraft Co., 278 Minn. 322, 154
N.W.2d 488, 501 (1967).
A. Failure to Warn Claim [2] To establish a products liability failure to warn claim
under Minnesota law, a plaintiff must show 1) that the
manufacturer had a duty to warn of the dangerous nature of
the product; 2) a breach of that duty; and 3) that the lack of
a warning caused the relevant injury. See Tuttle v. Lorillard
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Tobacco Co., 377 F.3d 917, 924 (8th Cir.2004) (applying
Minnesota law). The parties dispute the first and third
elements.2
2
There is no dispute as to the second element because,
assuming that Defendants had a duty to warn, they
unquestionably breached that duty by providing no heat-
related illness warning at all. On the other hand, if
Defendants did not have a duty to warn, there could be
no breach of duty.
1. Duty to Warn
[3] [4] [5] The question of whether a duty to warn exists is a
question of law for the court to decide. Germann v. F.L.
Smithe Mach. Co., 395 N.W.2d 922, 924 (Minn.1986).
This question hinges on whether the injury was reasonably
foreseeable to the manufacturer. Balder v. Haley, 399
N.W.2d 77, 81 (Minn.1987).
In determining whether the duty
exists, the court goes to the event
causing the damage and looks back
to the alleged negligent act. If the
connection is too remote to impose
liability as a matter of public policy,
the courts the hold there is no duty,
and consequently no liability. On
the other hand, if the consequence is
direct and is the type of occurrence
that was or should have been
reasonably foreseeable, the courts
then hold as a matter of law a duty
exists.
Germann, 395 N.W.2d at 924. There is, however, no duty
to warn of dangers if they are obvious. Westerberg v. Sch.
Dist. No. 792, Todd Cty., 276 Minn. 1, 10, 148 N.W.2d 312
(1967).
[6] Defendants argue that they had no duty to warn because
the danger presented by the helmet and shoulder pads was
obvious. Defendants point out that a fundamental
characteristic of football helmets and shoulder pads is that
they are made of thick, durable materials that protect the
body from impact, and that it is common knowledge that
wearing heavy materials will trap heat. Thus, according to
Defendants, it is obvious that wearing a helmet and
shoulder pads will make a wearer hotter, negating any duty
on their part to warn of risks associated with wearing the
helmet and shoulder pads and practicing in hot conditions.
(Def. Mot. Summ. J. pp. 17–19, doc. # 53.) Plaintiff
counters by arguing that the “event causing the damage,”
see Germann, 395 N.W.2d at 924, i.e. *688 Stringer’s heat
stroke, must have been obvious, not the general risk of
becoming hotter when wearing a helmet and shoulder pads.
Plaintiff argues that there no indication that Stringer, his
coaches, or his trainers were aware of this risk, that it was
not obvious, and that Defendants had a duty to warn of this
risk. (Pl. Resp. pp. 35–38, doc. # 80.)
The court agrees with Plaintiff that, under Minnesota law,
the specific risk of developing heat stroke, not a more
general risk of becoming hotter while wearing a helmet and
shoulder pads, must have been apparent in order to make
the danger obvious. In Indep. Sch. Dist. No. 14 v. AMPRO
Corp., 361 N.W.2d 138 (Minn.Ct.App.1985), two students
wanting to “make a little smoke” set fire to an athletic mat
stored in a high school’s gymnasium. The mat, once on fire,
burned extremely rapidly, gave off intense heat, and
emitted a considerable amount of dense, black smoke that
caused extensive damage to the school building. The
school district, in addition to suing the students, brought a
products liability claim against the mat’s manufacturers
and alleged that the mat was unreasonably dangerous and
that the manufacturers had failed to warn of the mat’s
propensity for unusually rapid burning and excessive
smoke production. Id. at 141.
The manufacturers argued that they had no duty to warn
because it was obvious that an athletic mat can burn when
exposed to flame. After the trial court granted the
manufacturers’ motion for a directed verdict on this issue,
the Minnesota Court of Appeals reversed and held that the
danger was not obvious:
[Manufacturers], however, fail to
distinguish ordinary burning from
the hot, rapid, smoky burning of
which [the school district] presented
evidence. This is a different, more
serious, and more unexpected
danger than that posed by ordinary
flammable items. Such a danger is
not obvious, and while [the school
district] admitted knowing that [the
mats] might burn, it indicated no
knowledge of the speed or intensity
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with which they burned.
Id. at 143. The court of appeals remanded the case for
submission to a jury.
The Eighth Circuit Court of Appeals applied Indep. Sch.
Dist. No. 14 in Gamradt v. Federal Laboratories, Inc., 380
F.3d 416 (8th Cir.2004) (applying Minnesota law). In that
case, a prison guard was injured during a training exercise
by a smoke grenade when the grenade was accidentally
detonated in a confined stairwell. After inhaling the smoke
in the enclosed area, the plaintiff suffered from long-term
shortness of breath and coughing, and permanently lost
60% of his aerobic lung capacity. He filed suit against the
grenade’s manufacturers and alleged that they “failed to
warn of the dangers associated with activating a black
smoke grenade in an enclosed area.” Id. at 418. Although
the manufacturers did not raise the issue, the district court
sua sponte found that the dangers associated with the
smoke grenade were obvious, and granted the
manufacturers’ motion for summary judgment.
The Eighth Circuit reversed. Relying on the reasoning in
Indep. Sch. Dist. No. 14, the court found that
[k]nowledge of the general danger associated with minor
smoke inhalation is not enough to relieve the
manufacturer of its duty to warn about foreseeable
dangers associated with indoor use of a black smoke
grenade.... The specific risk of permanent respiratory
damage posed by using the black smoke grenade indoors
must have been obvious to the user.... In this case, while
it may be obvious that a black smoke grenade may emit
an opaque gas, and it may be obvious that the substance
could cause minor *689 discomforts, we do not think it
is obvious that a person could permanently lose 60% of
his aerobic capacity as a result of being exposed to a
black smoke grenade that was detonated indoors....
Quite obviously, the dangers posed by activating a black
smoke grenade indoors are “different, more serious, and
more unexpected” than the general dangers of
detonating a black smoke grenade outdoors.
Id. at 420–21 (internal citations and paragraph breaks
omitted). The Eighth Circuit remanded the case to the
district court for trial.
[7] The court reaches the same result in this case. While it is
indeed common knowledge that wearing thick, dense items
such as a football helmet and shoulder pads will make the
wearer hotter, this general knowledge is different from the
more specific knowledge that wearing such items during
extremely hot and humid conditions and while engaged in
strenuous exercise can cause the wearer to suffer heat
exhaustion and heat stroke. Heat exhaustion and heat
stroke pose a “different, more serious, and more
unexpected” danger than any general danger that would
have been obvious to Stringer. Although Defendants argue
that Stringer was an experienced football player and
sophisticated user of the helmet and shoulder pads to whom
this danger should have been obvious (Def. Mot. Summ. J.
pp. 19–20, doc. # 53), “[p]ast experience with a product ...
does not necessarily alert users to all of the dangers
associated with the product.” Willmar Poultry Co. v. Carus
Chemical Co., 378 N.W.2d 830, 835 (Minn.Ct.App.1985).
There is no evidence in the record that Stringer had any
knowledge of the heightened risk of developing heat
stroke, as opposed to the general risk of becoming hotter,
associated with wearing Defendants’ helmet and shoulder
pads in the extremely hot and humid conditions of the
Vikings’ training camp. Additionally, the question of
whether a user’s knowledge of the risks posed by a product
will excuse the manufacturer’s duty to warn is generally a
question of fact that is not properly resolved on summary
judgment. Id. The court concludes that the risk was not
obvious.
[8] Furthermore, under the Germann test quoted above,
Defendants had a duty to warn of this risk. The connection
between Stringer’s heat stroke and Defendants’ failure to
warn is not so remote as to relieve Defendants of liability
as a matter of law, and a player suffering a heat stroke while
wearing Defendants’ helmet and shoulder pads should
have been reasonably foreseeable to Defendants. Medical
research nearly 50 years old has recognized a potential link
between wearing football equipment and heat-related
illnesses (Exs. 2, 3 to Dep. of Lawrence Armstrong, doc. #
82), and Defendants have received letters from product
designers warning of the risks of users developing heat
strokes as a result of wearing Defendants’ helmets and
shoulder pads (Mark Monica Letter, Ex. 6 to Dep. of
Lawrence Armstrong, doc. # 82). Plaintiff has also offered
expert testimony opining that Defendants’ helmet and
shoulder pads were substantial contributing factors in
Stringer suffering a heat stroke. (Pl. Resp. pp. 22–25, doc.
# 80). Although Defendants argue that this testimony does
not establish a connection between their products and
Stringer’s heat stroke and thus “the connection between the
lack of a warning ... and Stringer’s heat stroke is too remote
to impose liability as a matter of law” (Def. Mot. Summ. J.
p. 32 n. 7, doc. # 53), the court finds that Plaintiff’s expert
testimony is sufficient to create a genuine dispute as to this
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issue. The connection between Defendants’ products and
Stringer’s heat stroke is not too remote to relieve
Defendants of liability as a matter of law.
*690 Defendants have in fact recognized that other risks of
injury, such as the risks surrounding players using the
helmet to “spear” or ram into other players and the general
risks of impact injuries associated with playing football,
are reasonably foreseeable, and have included warnings
about those risks on the helmet and shoulder pads. The
same should hold true for other reasonably foreseeable
risks of injury. It was reasonably foreseeable to Defendants
that a user of their helmets and shoulder pads during
extremely hot and humid conditions might suffer from a
heat stroke, and the court thus concludes that Defendants
owed Stringer a duty to warn.
[9] [10] Defendants offer another defense, and argue that they
had no duty to warn the end users of their products, such as
Stringer, because the Vikings trainers and coaches were
sophisticated intermediaries. (Def. Mot. Summ. J. pp. 26–
28, doc. # 53.)
Under the sophisticated
intermediary defense, some courts
have held that a product supplier has
no duty to warn the ultimate user
where either of two situations is
present: (1) the end user’s employer
already has a full range of
knowledge of the dangers, equal to
that of the supplier or (2) the
supplier makes the employer
knowledgeable by providing
adequate warnings and safety
instructions to the employer....
[T]he sophisticated intermediary
defense is generally only available
where the supplier can show that it
used reasonable care in relying upon
the intermediary to give the warning
to the end user.
Gray v. Badger Mining Corp., 676 N.W.2d 268, 277–78
(Minn.2004). The sophisticated intermediary defense does
not technically discharge the duty to warn; rather, it focuses
on the conduct that the manufacturer/supplier undertook to
discharge that duty, and asks whether that conduct was
reasonable in light of the circumstances. The applicability
of the sophisticated intermediary defense is usually a
question of fact best left to the jury. See id. at 279–80 (in
action by foundry worker injured by silica dust against
silica supplier, supplier’s sophisticated intermediary
defense and reasonable reliance on foundry to impart
proper warnings presented genuine issues of material fact
that precluded summary judgment for supplier).
In this case, genuine factual issues exist as to the
reasonableness of Defendants’ reliance on the Vikings
organization to give appropriate warnings to its players.
Defendants argue that the evidence is “overwhelming” that
the Vikings trainers and coaches were aware of and knew
how to address the risk of heat illnesses (Def. Mot. Summ.
J. p. 37, doc. # 53) and there is some evidence tending to
support this argument. However, there is also evidence,
such as the Vikings trainers’ response to and treatment of
Stringer’s heat stroke, that suggests that the Vikings
trainers were not sophisticated intermediaries, that they did
not have the specialized knowledge required to properly
address the risks, and that Defendants’ reliance on them to
discharge the duty to warn was unreasonable. Questions of
reasonableness and reasonable reliance are jury questions,
and are not properly resolved by the court on summary
judgment. See, e.g., Niemi v. NHK Spring Co., Ltd., 543
F.3d 294, 303 (6th Cir.2008); Gray, 676 N.W.2d at 280.
Whether the sophisticated intermediary defense applies in
this case is best left to the jury to decide.
2. Causation
[11] To establish causation in a failure to warn claim,
Plaintiff must show that had a warning been given, the
injury would not have occurred. This requires Plaintiff to
present “some admissible evidence [that Stringer or the
Vikings] would have acted *691 differently had the
manufacturers provided adequate warnings.”3 Tuttle, 377
F.3d at 924.
. . .
Defendants offer two arguments as to why there is no
genuine issue on causation. First, Defendants argue that
there is no evidence tending to show that Stringer would
have refused to practice or otherwise changed his own
behavior in response to a warning. Second, Defendants
argue that there is no evidence that a warning would have
changed the actions of the Vikings’ trainers and staff. (Def.
Mot. Summ. J. pp. 33–34, doc. # 53.) Plaintiff responds by
arguing that a jury could reasonably infer that Stringer
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would have followed a warning, and that the Vikings’
trainers’ response to Stringer’s condition illustrates that a
warning could have altered their behavior and prevented
Stringer’s heat stroke. (Pl. Resp. pp. 43–45, doc. # 80.)
a. Whether a Warning Would Have Changed
Stringer’s Conduct
[12] As to the first argument, the court agrees with
Defendants. Defendants point out that there is no
affirmative evidence showing that Stringer would have
done anything differently during the July 31 practice if he
had been warned of the possible dangers of suffering a heat
stroke. Stringer was required to wear the helmet and
shoulder pads during practice, and although one of
Plaintiff’s experts testified that a warning might have
prompted Stringer to remove his helmet between drills,
Defendants point out that video of the July 31 practice, as
well as the testimony of Stringer’s coaches and teammates,
establish that Stringer removed his helmet between drills
even without a warning. (Def. Mot. Summ. J. p. 24, doc. #
53.) Defendants also point out that there is no evidence that
Stringer would not have practiced on July 31 if
Defendants’ products contained a warning: the Vikings
required Stringer to participate in training camp and
Stringer had resisted his coaches’ and trainers’ efforts to
remove him from practice the day before. (Id.)
Plaintiff’s response is to note that, despite his reluctance,
Stringer did in fact leave practice on July 30 when directed
to do so by his coaches and trainers. Plaintiff also notes that
Defendants’ in-house counsel testified that Defendants
intend that users of their products would comply with given
warnings. Plaintiff then argues that, based on these two
facts, a reasonable jury could infer that Stringer would not
have practiced on July 31 had Defendants included heat-
related warnings with the helmet and shoulder pads. (Pl.
Resp. pp. 43–44, doc. # 80.)
Although inferences drawn from facts must be considered
in the light most favorable to the nonmoving party on
summary judgment, see Matsushita Elec. Indus. Co., 475
U.S. at 587–88, 106 S.Ct. 1348, Plaintiff’s argument is not
tenable. The fact *692 that Stringer left practice on July 30,
reluctantly and only at the express direction of his coaches
and trainers, does not support an inference that he would
have outright refused to practice on July 31, in direct
contravention of the demands of his coaches and the
Vikings organization that required him to participate in
training camp practices, if he had read a warning about the
possibility of suffering a heat-related illness while wearing
Defendants’ products. The fact that Defendants intended
that product users comply with given warnings does not
say anything about what Stringer would have actually done
in response to a given warning.
. . .
b. Whether a Warning Would Have Changed the
Vikings’ Trainers’ and Coaches’ Conduct
[13] As to Defendants’ second argument, however, the court
agrees with Plaintiff that there is a genuine issue of material
fact that precludes summary judgment. Defendants argue
that the Vikings trainers and coaches already understood
the risks surrounding heat-related illnesses, and that
warnings on their products would not have added to the
trainers’ or coaches’ knowledge or caused them to make
different decisions about how the July 31 practice would
have been conducted or whether Stringer would have been
allowed to participate in it. (Def. Mot. Summ. J. pp. 33–34,
doc. # 53.)
[14] Plaintiff responds to Defendants’ arguments by
introducing the testimony and opinions of Dr. Michael
Wogalter, a professor of psychology who specializes in
warnings. Dr. Wogalter opines that an effective warning
would be targeted at, among other groups, the Vikings
trainers because they supervise and monitor the players
(Dep. of Michael Wogalter p. 84, doc. # 75), and further
states that an effective warning would communicate,
among other things, “predictive information such as
symptoms and signs, whether a person has had heat stroke
or heat exhaustion in the past or the past day ... [because]
having heat exhaustion the day prior is predictive of future
heat stroke” (id. at p. 136). Medical evidence in the record
does tend to establish that suffering an episode of heat
exhaustion may predispose an individual to suffer another
more serious heat related illness soon afterwards (see ex.
2C to Dep. of E.R. Eichner, doc. # 82), and Charles Barta,
the Vikings head trainer who is primarily responsible for
determining when players are able to practice or *693
return to practice after injury or illness, testified that he did
not know this fact (Barta Dep. pp. 260, 330, doc. # 55).
Barta testified that he never considered holding Stringer
out of the July 31 practice or otherwise modifying his
practice routine, and never warned Stringer about the
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increased risks associated with practicing a day after
suffering a heat related illness. (Id. at pp. 256, 287.) Given
that Dr. Wogalter’s proposed warning would have alerted
the Vikings trainers to this risk, it is reasonable to infer that
the trainers would have taken steps to address it by
monitoring Stringer more closely, by warning Stringer of
the risk, by recommending modifying Stringer’s practice
routine, or by recommending that Stringer be held out of
practice altogether. Given that the Vikings coaches nearly
always followed Barta’s recommendations about player
health and when to allow players to practice (id. at p. 327),
this would support a reasonable inference that alerting the
trainers to the risk would have prevented or at least reduced
the risk of Stringer suffering a heat stroke. A reasonable
jury could thus find that the lack of an appropriate warning
was the proximate cause of Stringer’s injury.
Defendants have asked the court not to consider Dr.
Wogalter’s opinions, but the court is not persuaded by
Defendants’ arguments.
. . .
Questions as to the admissibility of expert testimony are
governed by Federal Rule of Evidence 702 and the
Supreme Court’s interpretation of that rule in Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786,
125 L.Ed.2d 469 (1993) and later cases.5
. . .
With this in mind, the court declines to exclude Dr.
Wogalter’s testimony.
. . .
3. Conclusion
Defendants had a duty to warn of the specific risk of
developing heat stroke because it was not an obvious risk,
and because the connection between Stringer’s heat stroke
and Defendants’ failure to warn was not remote enough to
preclude liability as a matter of law. Furthermore, genuine
issues of material fact exist as to Defendants’ sophisticated
intermediary defense, and as to the issue of causation, i.e.,
whether a warning could have prompted the Vikings
trainers to have changed their behavior and prevented
Stringer’s injury. Summary judgment is not appropriate on
this claim.
B. Design Defect [15] To establish a design defect products liability claim
under Minnesota law, a plaintiff must show “(1) that the
defendant’s product was in a defective condition
unreasonably dangerous for its intended use, (2) that the
defect existed when the product left the defendant’s
control; and (3) that the defect was the proximate cause of
the injury sustained.” Bilotta v. Kelley Co., Inc., 346
N.W.2d 616, 623 n. 3 (Minn.1984). Although the parties
dispute the first and third elements, the court finds that it
need only consider the first.
. . .
C. Implied Warranty [16] Plaintiff alleges that Defendants breached the implied
warranty of merchantability because its helmet and
shoulder pads were not fit for the ordinary purposes for
which they were intended (Compl. ¶ 63, doc. # 1), but the
court agrees with Defendants that “[s]trict products
liability has effectively preempted implied warranty claims
where personal injury is involved.” Masepohl v. American
Tobacco Co. Inc., 974 F.Supp. 1245, 1253 (D.Minn.1997)
(quoting Nimeth v. Prest Equip. Co., No. C1–93–685, 1993
WL 328767 (Minn.Ct.App. Aug. 31, 1993)). The one case
Plaintiff cites in response to Defendants’ argument, Bach
v. Gehl, No. A05–1843, 2006 WL 2865166 (Minn.Ct.App.
Oct. 10, 2006), deals entirely with evidentiary objections
and does not address the issue, and the court does not find
it persuasive. Plaintiff’s implied warranty claim is
preempted by her products liability claims, and summary
judgment for Defendants is appropriate on this claim.
D. Express Warranty [17] Plaintiff’s Complaint alleges that Defendants expressly
warranted that the *699 helmet and shoulder pads were
safe for their intended use. (Compl. ¶ 60, doc. # 1.)
Defendants argue that creation of an express warranty
requires an express affirmation of fact that becomes part of
the bargain, and that there is no evidence that Defendants
ever made an express affirmation of fact to Stringer or the
Vikings about the safety of the helmet and shoulder pads.
(Def. Mot. Summ. J. p. 40–41, doc. # 53.) Plaintiff has not
responded to Defendants’ arguments, and although the
court cannot grant summary judgment simply because the
opposing party has not responded, see Carver v. Bunch,
946 F.2d 451, 455 (6th Cir.1991), in this case the court
finds that Defendants have satisfied their burden to show
Soper, Christopher 6/26/2017 For Educational Use Only
Stringer v. National Football League, 749 F.Supp.2d 680 (2009)
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 29
the absence of a genuine issue of material fact. Summary
judgment is therefore appropriate for Defendants on
Plaintiff’s express warranty claim.
IV. Conclusion
For the reasons stated above, the court GRANTS
Defendants’ Motion for Summary Judgment as to
Plaintiff’s design defect, implied warranty, and express
warranty claims, but DENIES the Motion as to Plaintiff’s
failure to warn claim.
IT IS SO ORDERED.
MEMORANDUM OPINION AND ORDER
On July 10, 2009, this court granted in part and denied in
part Riddell’s motion for summary judgment. It granted
summary judgment in favor of Riddell on Plaintiff’s claims
of design defect and breach of warranty, leaving only
Plaintiff’s failure-to-warn claim for trial. This matter is
currently before the court on Riddell’s motion for partial
reconsideration (Doc. 135) and Plaintiff’s subsequent
motion for leave to respond to Riddell’s reply
memorandum (Doc. 143). The relevant facts are set forth
in this court’s July 10, 2009 Memorandum Opinion and
Order (Doc. 100) and will not be repeated here.
I. Plaintiff’s Motion for Leave to Respond
Plaintiff Kelci Stringer seeks leave to respond to Riddell’s
reply brief. She maintains that Riddell argued for the first
time in its reply brief that because the Vikings’ trainers and
coaches were not physically injured, it is irrelevant whether
an appropriate warning would have changed their behavior.
But as Riddell accurately point out, this argument was not
raised for the first time in its reply brief. In its motion for
partial reconsideration, Riddell argued that the court erred
in assuming that a manufacturer’s duty to warn extends to
non-injured non-users of its products. Moreover, Plaintiff
has already responded to this argument. The court therefore
DENIES Plaintiff’s motion for leave to respond to
Riddell’s reply brief.
II. Riddell’s Motion for Partial Reconsideration
A. Standard of Review
“District courts have authority both under common law and
Rule 54(b) to reconsider interlocutory orders and to reopen
any part of a case before entry of final judgment.”
Rodriguez v. Tennessee Laborers Health & Welfare Fund,
89 Fed.Appx. 949, 959 (6th Cir.2004) (citing Mallory v.
Eyrich, 922 F.2d 1273, 1282 (6th Cir.1991)). Federal Rule
of Civil Procedure 54(b) states, in pertinent part, “any order
or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of
fewer than all the parties does not end the action as to any
of the claims or parties and may be revised at any time
before the entry of a judgment adjudicating all the claims
and *700 all the parties’ rights and liabilities.”
Fed.R.Civ.P. 54(b).
The court has “significant discretion” in considering a
motion to reconsider an interlocutory order. See Rodriguez,
89 Fed.Appx. at 959 n. 7. However, motions for
reconsideration are not intended to be utilized to re-litigate
arguments previously rejected by the court. See Reed v.
Islamic Republic of Iran, 242 F.R.D. 125, 126
(D.D.C.2007). “Traditionally, courts will find justification
for reconsidering interlocutory orders when there is (1) an
intervening change of controlling law; (2) new evidence
available; or (3) a need to correct a clear error or prevent
manifest injustice.” Rodriguez, 89 Fed.Appx. at 959 (citing
Reich v. Hall Holding Co., 990 F.Supp. 955, 965
(N.D.Ohio 1998)).
B. Discussion
Riddell maintains that this court committed clear error in
holding that Riddell, as a matter of law, had a duty to warn
of the risk of heat exhaustion and heat stroke, and in
extending the duty to warn to non-injured, non-users of the
products, i.e., the Vikings’ trainers and coaches. “Clear
error” is defined as a “definite and firm conviction that a
mistake has been committed.” United States v. United
States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92
L.Ed. 746 (1948). Because the court finds nothing in its
previous opinion that rises to that level, the court denies
Riddell’s motion for partial reconsideration.
. . .
Soper, Christopher 6/26/2017 For Educational Use Only
Stringer v. National Football League, 749 F.Supp.2d 680 (2009)
© 2017 Thomson Reuters. No claim to original U.S. Government Works. 30
III. Conclusion
For the reasons set forth above, the court DENIES
Plaintiff’s motion for leave to respond to Riddell’s reply
brief (Doc. 143). Because Riddell has failed to show that
the court committed clear error, Riddell’s motion for
partial reconsideration (Doc. 135) of the July 10, 2009
Memorandum Opinion and Order is also DENIED.
IT IS SO ORDERED.
All Citations
749 F.Supp.2d 680
End of Document
© 2017 Thomson Reuters. No claim to original U.S. Government Works.
Written Assignment #1 – Rule
Explanation Due Monday, September 4, 4:00 p.m., by email to your student legal
writing instructor
Using the case chart you completed in the first legal writing class, draft two to four paragraphs (not
more, not fewer) explaining the legal rule under Minnesota law on the duty to warn of a dangerous
condition. The first paragraph should: (1) start with a topic sentence orienting the reader to the topic
and (2) state the complete rule. In the remaining paragraphs, use the facts and the legal reasoning
from the cases to more fully explain the relevant elements of the rule. Focus on how the courts applied
the rule and look for patterns across the cases. Try to formulate the applied rule that underlies the
explicit rule stated by the courts. Use two or three of the cases as examples to explain the rule.
Here is a sample rule explanation using cases from one of our earlier orientation exercises:
Under traditional common law principles, the tort of conversion is the “intentional
exercise of dominion and control” over another’s property. LaPlace v. Briere, 404 N.J. Super. 585
(N.J. Super. 2009) (quoting Restatement (Second) of Torts, § 222A(1) (1965)). When a property
owner leaves property with a bailee for safekeeping under a bailment, the bailee will be liable
for conversion if the bailee uses the property for an unauthorized purpose without the owner’s
permission. See Johnson v. Weedman, 5 Ill. 495 (Ill. 1843). But the unauthorized use must cause
damage to the bailed property for conversion liability to attach. Id. at 595-96; Johnson, 5 Ill. At
497. “Mere use” of the owner’s property without causing damage is not conversion. LaPlace,
404 N.J. Super. at 595 (citations omitted).
“Mere use” of an owner’s property is ordinary use of that property, use that is typically
expected. When the bailed property is a horse, ordinary use includes riding or exercising the
horse. Such use is (or should be) typically expected by property owner. For example, in Johnson,
a bailee rode the owner’s horse for fifteen miles. Johnson, 5 Ill. at 496. The ride was considered a
“temporary exercise” and within the ordinary use of the horse. Id. In LaPlace, a bailee exercised
the owner’s horse by “lunging” it: having it walk, trot, or canter in a circle. “Lunging” is “generally
part of a horse’s daily routine” and is typically expected. LaPlace, 404 N.J. Super. at 592.
When the ordinary use of a bailed horse is unauthorized, such “mere use” must cause
damage for conversion liability to arise. In both Johnson and LaPlace, the bailee’s unauthorized
but ordinary use of a horse was not conversion because there was no causal link between the
use and the horse’s subsequent death. For example, in Johnson, the horse died shortly after the
fifteen mile ride, but there was no evidence that the ride caused the horse’s death. Johnson, 5 Ill.
at 496. The court affirmed the jury verdict that the bailee was not liable for conversion. Id. at
496-97. Similarly, in LaPlace, the horse died shortly after the bailee “lunged” the horse without
permission. LaPlace, 404 N.J. Super. at 592-93. Again, there was no evidence that the
Commented [CDS1]: Our earlier cases were from
two different states. So we cannot say in this rule
explanation paragraph that we are explaining the
law of a particular jurisdiction.
Commented [CDS2]: Direct quotations – and
attributions -- to the relevant cases is a crucial
aspect of explaining legal rules.
Commented [CDS3]: Watch Professor Clary’s
BlueBook lecture for an introduction to legal
citation.
Commented [CDS4]: This is an example of a
synthesized rule statement. This rule isn’t stated by
either court but the rule underlies both decisions.
Commented [CDS5]: Now, the writer will help the
reader understand what constitutes the “mere use”
and “causing damage” elements of the rule. First,
the writer explains “mere use.” Note that the writer
is explaining the rule as it applies to a bailed horse.
This makes the rule explanation more specific.
Commented [CDS6]: Now the author is explaining
the “causing damage” element of horse
conversion.
Commented [CDS7]: Here the author is explaining
how the key facts from the Johnson case led to
the court’s determination.
Commented [CDS8]: This is a transition word. It
signals to the reader a shift from the Johnson case
to the LaPlace case.
unauthorized – but ordinary – use caused the horse’s death. Id. at 597. The court affirmed
summary judgment for defendant-bailee and held that, absent a causal connection between
the exercise and the horse’s death, the bailee was not liable for conversion. Id.
Now, write 2-4 paragraphs explaining the rule on duty to warn under Minnesota state
law:
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Commented [CDS9]: It is usually a good idea to
include some indication of the procedural posture
when describing a case. Whether the appellate
court affirmed or reversed the trial court can
affect the persuasive force of an opinion.
CaseMcCormack v.
HankscraftDrager v. Aluminium Germann v. Smith
Citation
McCormack v. Hankscraft Co., Inc. ,
154 N.W.2d 488 (Minn. 1967)
Case Description
Vaporizer tipped over, near-boiling
water burned 3 year old girl
CourtMinnesota Supreme
Court
Year 1967
Who Wins?
Plaintiff (reversing trial court judgment n.o.v., directed to enter judgment on
verdict)Duty to warn? Yes
Reasoning
Defendant marketed product for children; knew product could burn if tipped; knew product was not "tip-
proof" despite promises; risk not obvious because
water not obviously boiling.