Opinion
No. A-09-1280.
Filed May 31, 2011.
Appeal from the District Court for Washington County: DARVID D. QUIST, Judge. On motion for rehearing, reargument granted. Original memorandum opinion withdrawn. Affirmed in part, and in part reversed and remanded for further proceedings.
Thomas M. Locher and Joseph J. Kehm, of Locher, Pavelka, Dostal, Braddy Hammes, L.L.C., for appellant.
Mark J. Daly and MaryBeth Frankman, of Brashear, L.L.P., for appellee.
IRWIN, SIEVERS, and CASSEL, Judges.
Jay H. Wedgewood appealed to this court from an order of the district court for Washington County that granted summary judgment in favor of U.S. Filter/Whittier, Inc. (U.S. Filter), on seven grounds and dismissed Wedgewood's second amended complaint with prejudice in his products liability suit for personal injury. In our earlier memorandum opinion, we agreed with the district court that an efficient intervening cause broke the chain of proximate causation thereby relieving U.S. Filter of liability. Accordingly, we affirmed the district court's grant of summary judgment. See Wedgewood v. U.S. Filter/Whittier, Inc., No. A-09-1280, 2010 WL 5384269 (Neb. App. Dec. 21, 2010) (selected for posting to court Web site).
Following the release of our memorandum opinion, Wedgewood filed a motion for rehearing. We granted the motion, heard reargument, and our previous opinion is hereby withdrawn. We conclude that our previous analysis of foreseeability in connection with the defense of efficient intervening cause was incorrect and that we needed to deal with other defenses discussed by the district court. Having viewed the evidence in the light most favorable to Wedgewood as our standard of review requires, we now find that there are genuine issues of material fact preventing the entry of summary judgment in favor of U.S. Filter. Thus, we reverse portions of the district court's order dismissing this suit and remand the cause based on defective design for further proceedings. We affirm the dismissal of Wedgewood's claims based on insufficient warnings and instructions as explained hereafter.
FACTUAL BACKGROUND
Wedgewood was injured on January 14, 2001, when hot lactic acid poured out of the swing door of a 500-gallon "fines filter" he was in the process of manually opening. At the time of the incident, Wedgewood was an employee of Cargill, Inc., located in Blair, Nebraska, and Cargill was participating in a joint venture doing business as PGLA-1 (PGLA). The fines filter was manufactured by U.S. Filter and sold to PGLA in 1999. PGLA purchased the fines filter for use in its production of lactic acid at the Blair facility. The purpose of the fines filter is to remove small particles, or fines, from the lactic acid solution as part of the purification process.
The fines filter is a 500-gallon cylindrical metal tank, or vessel, that contains 31 leaves, which are caked with a filtering mechanism called "precoat." Fluid, in this case a 50-percent hot lactic acid solution, flows through the leaves, and small particles, or fines, accumulate on the leaves. The fines filter has an automated cleaning process which is normally capable of washing and removing the accumulated matter from the leaves. As such, U.S. Filter also refers to the fines filter as an "Auto-Jet." During the automated cleaning cycle, water is sluiced onto the rotating leaves and matter is washed to the bottom of the tank. Once the cleansing process is complete, the liquid solution is drained into a separate tank called a "sour" tank.
The interior of the fines filter is accessed through a 6-foot-diameter "swing door" located on one end of the tank. The swing door is secured shut by 20 bolts, which must be manually removed in order to open the door to access the interior of the tank. When the fines filter was operating as expected, it was anticipated that it would only be necessary to manually access the tank's interior on an occasional basis for routine maintenance.
Jennifer DeSantis was responsible for procuring the fines filter from U.S. Filter on PGLA's behalf. She was employed by Cargill from 1996 to 2000 and worked as an engineer leased to the joint venture with PGLA at the lactic acid facility in Blair. When she arrived in Blair, only the infrastructure for Cargill's existing corn milling facility was there. Thus, she started developing the lactic acid production process almost entirely from scratch. DeSantis testified that she worked in conjunction with an engineering firm, Fluor Daniel, to help develop the overall lactic acid production process, whereas U.S. Filter was responsible for the design of the equipment, including the fines filter. The equipment purchase and sale agreement between the parties recites that U.S. Filter "has expertise with respect to the design, manufacture, assembly, installation and operation of the Auto-Jet filter." DeSantis testified that she relied on U.S. Filter's expertise to provide an equipment design-including the filter, nozzles, and internals — that met the service conditions.
The service conditions for the fines filter were provided to U.S. Filter by PGLA. They are contained in a U.S. Filter project data sheet in evidence. On the data sheet, the process liquid is listed as a 50-percent lactic acid solution with an operating temperature of 150 degrees Fahrenheit and a flow rate specified at 60 to 70 gallons per minute.
H. Bruce Sigel was the U.S. Filter engineer responsible for designing the fines filter in accordance with the service conditions listed on the data sheet (we have not included all of such) and for handling the sale of the vessel to PGLA. Sigel testified that PGLA ordered a "bare" filter without any gauges or monitoring devices and no "add-ons." Consequently, there was no mechanism on the tank itself that allowed someone working with it to detect the presence of fluid inside. Specifically, there was no viewing window to look into the tank and determine the amount of any liquid inside, nor was there any gauge on the tank to indicate either the amount or temperature of any liquid inside. Sigel testified that U.S. Filter typically installs an autolock door on its filters, but in this case "PGLA didn't want it." He elaborated that
an auto lock door seals from the inside out. If there was product against the door, you . . . wouldn't have been able to move the door. The second thing is, let's say . . . if something happened with the vent and it wouldn't allow the vessel to drain, then the auto lock door would be sucked in and you would immediately have known that you pulled the vacuum on the vessel.
When asked whether he made any recommendations for "appropriate" monitoring devices in this case, Sigel responded in the negative. We note that DeSantis testified that although PGLA would take U.S. Filter's recommendations into account with regard to monitoring devices, PGLA would install such devices itself. She stated, "It's likely more economical for us to . . . do that on site with our own personnel."
When asked at his deposition about hazards associated with this particular vessel, Sigel testified that opening the door would present a hazard because of the possibility the tank had not been emptied of 150 degrees Fahrenheit liquid, which he believed to be a dangerous temperature. Also, he testified, "Because of the rotation of the motor and the sprocket back there, there's a chain guard and you want to make sure you don't get your hand somehow in the motor." Further, "if you're filtering something bad, that's a hazard right there," due to possible leakage.
The fines filter was retrofitted into PGLA's existing lactic acid production system in 1999 in order to accommodate the introduction of gypsum into the processing of lactic acid. Thereafter, problems began to occur due to excessive gypsum accumulating on the leaves inside the tank. Sometime after July 2000, due to the amount and porous character of the gypsum, the automated cleaning process was not adequately cleaning the interior of the filter and an accumulation of gypsum was causing the leaves to become caked and clogged, which necessitated opening the filter to manually remove the accumulated gypsum.
Before Wedgewood was injured, it had become necessary to open the vessel to remove excess gypsum from the leaves as often as three to four times per day. Scott McElmury, the operations team leader, testified that he notified U.S. Filter of this problem prior to Wedgewood's injury, and U.S. Filter indicated it had not encountered such before and "couldn't believe that was the case." When asked whether U.S. Filter was told that gypsum was apparently causing the problem, McElmury replied, "I can't recall the discussion that I had, but I know we would talk about gypsum." McElmury testified that he did not recall U.S. Filter offering any solutions for the problem.
Before opening the fines filter for routine maintenance or to remove accumulated gypsum as described above, the system operators were required to complete and secure a "Line Break Permit." Both Wedgewood and his coworker, Mark Gusse, had been trained in the procedures for the Line Break Permit, and both had initiated such permits prior to the incident in question. Wedgewood testified that he had been involved in accessing the interior of the fines filter because of accumulated gypsum more than 10 times in the 2 weeks prior to the incident.
On the day Wedgewood was injured, the crew working the fines filter, which included Wedgwood and Gusse, assumed they had broken the drive that turns the leaves inside the tank due to excessive gypsum accumulation. In troubleshooting that perceived problem, the crew determined that it needed to open the fines filter to see whether anything inside of the tank was broken. Gusse initiated the Line Break Permit required to open the tank, and he was the "Permit Work Coordinator." Gusse was responsible for ensuring that the requirements listed on the permit were performed, which included draining the lactic acid solution out of the filter into the "sour tank," and, in the words of the Line Break Permit, "ensuring drains had proved cleared." After the Line Break Permit is obtained, draining the filter is an automated process in that Gusse simply had to then use a computer mouse to click on the drain command in the control room adjacent to the room where the fines filter is located. The drain command then automatically opens the 10-inch drain valve on the fines filter and empties the liquid into the sour tank. The Line Break Permit also required Gusse to verify that the temperature of the lactic acid was less than 130 degrees Fahrenheit, which could be done by touching the fines filter. Gusse placed his initials next to each requirement on the Line Break Permit and obtained verbal approval of the permit via telephone from McElmury, the operations team leader, and from Michael Hackbarth, the production team leader, as required.
However, despite indicating on the Line Break Permit that all the requirements had been performed, Gusse admitted that he failed to drain the lactic acid out of the fines filter. Gusse also admitted that he failed to verify that the temperature was less than 130 degrees Fahrenheit. Because the vessel had not been drained, a large amount of lactic acid remained inside. Gusse testified that the only way to detect whether liquid was still inside the fines filter was to determine the level of drainage in the sour tank from the control room or, if in the process of removing the bolts from the swing door, the "seal popped" and liquid spilled out, which would obviously indicate that the tank was not empty. He later testified that one could also "verify out in the field" that the drain mechanism had been activated by checking on the back of the fines filter to see whether the drain valve was open or closed. However, he testified that the position of the drain valve would not necessarily indicate whether fluid remained in the vessel because the only time the drain is open is during the actual washing and draining cycles — the drain closed when such are complete. Gusse further testified that one can hear the drain opening and closing, but "[y]ou can't hear it staying open or staying closed." When asked whether one can hear the lactic acid solution draining out of the tank, Gusse replied, "You might if you were standing right on top of it, but no."
After the Line Break Permit was obtained by Gusse as required, and believing that all the requirements had been performed, Wedgewood began removing the bolts from the swing door. When Wedgewood had only a couple of bolts left to remove, some lactic acid escaped from the swing door's seal in a small stream — indicating that the tank was perhaps not empty, but the drainage quickly ceased. Wedgewood testified, "Normally there's a little bit of liquid there around the gasket and stuff, and it did stop like it usually does. So when . . . I saw the product stop coming out, I assumed it was empty at that point." Thus, when the flow stopped, Wedgewood began to remove the remaining two or three bolts, but at that point the door could no longer hold the liquid behind it. The door quickly swung open and gallons of hot lactic acid poured out on Wedgewood. The force of the flow knocked Wedgewood backward, causing him to fall, resulting in injuries to his left knee, left shoulder, and cervical spine. He also suffered second-and third-degree thermal and chemical burns to 40 percent of his body surface area. He was subsequently diagnosed with posttraumatic stress disorder as a result of the incident.
McElmury went to the accident site immediately after being alerted of Wedgewood's injuries. When he arrived, it did not appear to him that any cleanup had yet been done. Upon inspecting the fines filter, he discovered that there was some gypsum in the bottom of the filter and outside the filter on the floor, but he was surprised to find that the filter was not clogged with gypsum as it had been in the past when the leaves would not rotate. He testified that he could not determine why the liquid was still in the tank because no mechanical problems were found. However, he noticed that the main drain valve was closed. Hackbarth testified that, assuming the Line Break Permit procedure was followed, there should not have been liquid in the vessel when Wedgewood opened the swing door. Neither McElmury nor Hackbarth indicated during their depositions that they were aware that Gusse failed to initiate the drain sequence, and they did not offer such as a potential reason why lactic acid remained inside the vessel. Although, as stated above, Gusse admitted to such failure during his deposition testimony and expressed "a lot of remorse" for Wedgewood's injuries, for which he has a "huge responsibility."
Included in the evidence offered at the hearing is the deposition testimony of Wedgewood's engineering expert, Bruce Main. Main received a master of science degree in mechanical engineering and a master of business administration degree, both from the University of Michigan in Ann Arbor, Michigan. According to Main's curriculum vitae in evidence, he is licensed in Michigan as a professional engineer with a certification in product safety management. He testified that he is currently the chair of the International Organization for Standardization's technical committee for the safety of machinery and that he owns his own design safety engineering company located in Ann Arbor. Main's professional experience includes designing warnings to reduce risk and evaluating warnings for purposes of litigation, as well as assisting manufacturers with the inclusion of safety features in their product designs.
Also in evidence is a document dated November 20, 2008, which contains seven of Main's opinions with respect to the safety of the fines filter, which we quote:
1. The Auto-Jet filter provided to PGLA for producing lactic acid was defective because the end user had no way to know if the contents were present or drained when opening this filter.
2. US Filter should have provided a means at this filter such as an auto door lock, temperature gauge, site glass, viewing hatch, signal or other device or means to allow the end user to identify if this filter was drained to prevent its opening if it was not drained.
3. US Filter should have provided such a means at the time this product was manufactured.
4. The frequent need to clean the filter (several times a day rather than the expected once per month) greatly increased the likelihood of an error occurring that could result in an incident such as occurred in this matter.
5. Not providing such a means yielded a filter with an unacceptable risk of harm.
6. Had such a means been provided the risk of harm would have been reduced to an acceptable level.
7. The lack of a means to identify the presence of liquid in this filter renders this filter unreasonably dangerous, and was the proximate cause of . . . Wedgewood's injury.
Additionally, Main testified that U.S. Filter should have warned PGLA of the foreseeable risk of hot fluid remaining in the fines filter and instructed PGLA to install a safety device to protect against that hazard. He testified that
if U.S. Filter had provided that warning and that instruction and the engineers at Cargill and their consultants did not act on that information, then absolutely it would change my opinion, but in this case, that information was not provided, and in my view, that lack of information and warning and the . . . vessel provided without those devices makes this a defective product.
Main clarified that a warning on the exterior of the fines filter would have been insufficient for an end user such as Wedgewood. Rather, "another device, such as the temperature gauge, is really a much better fix." Main said that if U.S. Filter opted not to install such a device, it should have warned PGLA of the hazard and instructed that a monitoring device be installed. Additional facts will be set forth in the analysis section as needed.
PROCEDURAL HISTORY
On December 22, 2008, Wedgewood filed a second amended complaint against U.S. Filter in which he alleged that the fines filter was defective in its design and due to insufficient warnings and instructions and that such defects made the product unreasonably dangerous. He further alleged that the defects were the proximate cause of Wedgewood's injuries and that U.S. Filter was strictly liable for the resulting damages. U.S. Filter filed a motion for summary judgment requesting that the trial court dismiss Wedgewood's case against it because there were no genuine issues of material fact and it was entitled to judgment as a matter of law. A hearing was held on the motion, and both parties offered evidence in support of their positions. Given our standard of review, as outlined below, our recitation of the factual background focuses primarily on Wedgewood's evidence opposing the motion for summary judgment.
On August 11, 2009, the trial court entered an order granting summary judgment in favor of U.S. Filter, in full or in part, on seven grounds and dismissing Wedgewood's second amended complaint with prejudice. The seven grounds are as follows: (1) Gusse's failure to drain the fines filter was an efficient intervening cause; (2) Wedgewood's misuse of the fines filter was the sole proximate cause; (3) U.S. Filter had no duty to warn Wedgewood, a sophisticated user of the fines filter; (4) U.S. Filter's warnings were sufficient because the risk of harm was readily recognizable by Wedgewood; (5) the fines filter was not unreasonably dangerous; (6) Wedgewood assumed the risk; and (7) U.S. Filter is not liable because it manufactured the fines filter according to PGLA's specifications. After some procedural "maneuvering" to secure a final, appealable order that we need not recount, Wedgewood perfected this appeal.
As explained above, this court issued a memorandum opinion in this matter on December 21, 2010, but we have granted the motion for rehearing, heard argument again, and by this opinion our previous opinion and decision is withdrawn and of no force and effect.
ASSIGNMENTS OF ERROR
Wedgewood assigns, renumbered and restated, that the district court erred in determining as a matter of law that (1) Gusse's failure to drain the fines filter constitutes an efficient intervening cause, (2) Wedgewood misused the fines filter, (3) U.S. Filter had no duty to warn because Wedgewood was a sophisticated user, (4) the fines filter was not defective due to inadequate warnings or instructions because the risk of harm was readily recognizable, (5) the fines filter was not unreasonably dangerous, and (6) Wedgewood voluntarily assumed the risk of harm posed by the fines filter. Wedgewood also alleges that the district court erred in (7) determining that U.S. Filter manufactured the fines filter according to PGLA's specifications and therefore is not liable pursuant to Moon v. Winger Boss Co., 205 Neb. 292, 287 N.W.2d 430 (1980); (8) making the finding of fact that PGLA was responsible for specifying appropriate safety devices for the fines filter; (9) receiving into evidence the affidavit of Sigel; (10) overruling Wedgewood's objections to U.S. Filter's proposed summary judgment order; and (11) determining that Wedgewood's motion to strike U.S. Filter's affirmative defense of contributory negligence was rendered moot. This appeal is resolved by discussion of the first seven assignments of error.
STANDARD OF REVIEW
Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Stones v. Sears, Roebuck Co., 251 Neb. 560, 558 N.W.2d 540 (1997). In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Id.
ANALYSIS
We begin by emphasizing that Wedgewood's claims against U.S. Filter sound in strict products liability. There is a significant distinction between a manufacturer's liability as the result of negligent manufacture and its liability for the manufactured product on account of strict liability in tort. See Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 618 N.W.2d 827 (2000). In a cause of action based on negligence, the question involves the manufacturer's conduct, that is, whether the manufacturer's conduct was reasonable in view of the foreseeable risk of injury; whereas in a cause of action based on strict liability in tort, the question involves the quality of the product, that is, whether the product was unreasonably dangerous. Id. "Unreasonably dangerous" means that a product has the propensity for causing physical harm beyond that which would be contemplated by the ordinary user or consumer who purchases it, with ordinary knowledge common to the foreseeable class of users as to its characteristics. See id. Importantly, whether a product is in a defective condition unreasonably dangerous to its user has been said to be, generally, a question of fact. Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 68 (1987).
In a products liability action on a claim of strict liability based on defect, a plaintiff must prove by a preponderance of the evidence that (1) the defendant placed the product on the market for use and knew, or in the exercise of reasonable care should have known, that the product would be used without inspection for defects; (2) the product was in a defective condition when it was placed on the market and left the defendant's possession; (3) the defect is the proximate or a proximately contributing cause of plaintiff's injury sustained while the product was being used in the way and for the general purpose for which it was designed and intended; (4) the defect, if existent, rendered the product unreasonably dangerous and unsafe for its intended use; and (5) plaintiff's damages were a direct and proximate result of the alleged defect. Jay v. Moog Automotive, 264 Neb. 875, 652 N.W.2d 872 (2002). The "proximate cause" of an injury is that cause which, in a natural and continuous sequence, without any efficient, intervening causes, produces the injury, and without which the injury would not have occurred. Stahlecker v. Ford Motor Co., 266 Neb. 601, 609, 667 N.W.2d 244, 253-54 (2003).
U.S. Filter does not contend that Wedgewood's expert witness, Main, is not qualified as an expert to render the opinions he gave in this case, or that his analytic methodology is not commonly accepted. Therefore, because Wedgewood, under our standard of review, is entitled to the benefit of all reasonable inferences deducible from the evidence, we begin with the proposition that there is evidence in the record that the fines filter was defective in its design, and defective due to insufficient warnings and inadequate instructions, and thus, that the fines filter was unreasonably dangerous and defective as testified to by Main. Accordingly, we must analyze whether Wedgewood's causes of action nevertheless fail for lack of causation due to an alleged efficient intervening cause or whether one of the affirmative defenses alleged by U.S. Filter relieves it from liability as a matter of law — despite the evidence that the product was defective-which for summary judgment purposes we take as true.
Was Gusse's Failure to Drain Fines Filter Efficient Intervening Cause?
Wedgewood first alleges that the district court erroneously determined as a matter of law that Gusse's failure to drain the fines filter amounts to an efficient intervening cause. An efficient intervening cause is a new, independent force intervening between the defendant's wrongful act and the plaintiff's injury. See Stahlecker v. Ford Motor Co., supra. This force may be the conduct of a third person who had full control of the situation, whose conduct the defendant could not anticipate or contemplate, and whose conduct resulted directly in the plaintiff's injury. Id. An efficient intervening cause must break the causal connection between the defendant's original wrong and the injury. Id. An intervening act cuts off a tort-feasor's liability only when the intervening cause is not foreseeable. Willet v. County of Lancaster, 271 Neb. 570, 713 N.W.2d 483 (2006). Gusse's conceded failure to drain the fines filter is the only evidence on this motion for summary judgment as to why the tank was full of scalding hot liquid when Wedgewood manually opened the door to inspect the interior of the vessel.
In the context of efficient intervening cause, we must address Wedgewood's claim that there is a genuine issue of material fact as to whether a failure of the fines filter to be drained before the swing door was opened was foreseeable to U.S. Filter. In its summary judgment opinion and order, the district court's analysis of foreseeability with respect to efficient intervening cause stated:
The only inference that can be drawn from the undisputed facts is that Gusse's failure to drain the fines filter and to verify the temperature constituted an unforeseeable efficient intervening cause, and therefore, was the sole proximate cause of the incident and Wedgewood's injuries and damages. The uncontroverted evidence supports a finding that the requisite causal connection with US filter fails because the incident would have occurred even without any claimed defect because of the unforeseeable failure of Gusse to drain the fines filter or verify the temperature at 130° or less as required by the Line Break Permit.
We are unable to agree with this reasoning. After viewing the evidence in Wedgewood's favor as we must, we find that there is a genuine issue of material fact with respect to whether the failure to drain the fines filter was a risk of harm that was foreseeable to U.S. Filter. We find the following facts particularly persuasive on this point: PGLA provided U.S. Filter with the operating specifications for the fines filter, including that the 50-percent lactic acid solution would reach a temperature of 150 degrees Fahrenheit. Sigel, the U.S. Filter engineer responsible for designing the fines filter according to PGLA's specifications, testified that opening the filter's swing door was a hazard associated with the product due to the possibility that 150-degree-Fahrenheit lactic acid might remain inside the tank. He further testified that he believed lactic acid at a temperature of 150 degrees Fahrenheit was dangerous. And, U.S. Filter manufactured the fines filter so that it could be manually opened via the swing door for cleaning and other maintenance purposes. Nevertheless, there is evidence that U.S. Filter provided PGLA with a fines filter without gauges or devices to enable an end user such as Wedgewood to know whether there was still hot liquid in the tank when the swing door was to be opened.
Moreover, the district court required U.S. Filter to have specifically foreseen the "failure of Gusse to drain the fines filter or verify the temperature at 130° or less as required by the Line Break Permit." However, in the context of efficient intervening cause, the law does not require precision in foreseeing the exact hazard or consequence which happens. See Libbey-Owens Ford Glass Co. v. L M Paper Co., 189 Neb. 792, 205 N.W.2d 523 (1973). It is sufficient if what occurs is one of the kinds of consequences which might reasonably be foreseen. See id. In the context of this case, particularly on a motion for summary judgment, it is sufficient that U.S. Filter could reasonably foresee that the swing door could be removed when the fines filter was still full of hot lactic acid. And, that such could occur for a number of reasons, including a failure of the Line Break Permit procedure, in which event an obvious danger would be posed to the worker who must manually remove the bolts holding the door. We find that there was sufficient evidence presented on the issue of foreseeability to preclude a finding as a matter of law that Gusse's failure was an efficient intervening cause as a matter of law and that there are no genuine issues of material fact on this issue. Where evidence conflicts on a question of proximate cause of alleged injuries, the question is ordinarily for the jury under proper instructions. See Hancock v. Paccar, Inc., 204 Neb. 468, 283 N.W.2d 25 (1979). Thus, we find that it was error for the district court to have decided this issue as a matter of law, and we reverse this finding.
Did Wedgewood Misuse Fines Filter?
Wedgewood next alleges that the district court erred when it determined as a matter of law that he misused the fines filter by opening the swing door when the vessel had not first been drained. Misuse of a product is a defense to strict liability in Nebraska. See, Jay v. Moog Automotive, 264 Neb. 875, 652 N.W.2d 872 (2002); Jameson v. Liquid Controls Corp., 260 Neb. 489, 618 N.W.2d 637 (2000); Erickson v. Monarch Indus., 216 Neb. 875, 347 N.W.2d 99 (1984). The burden of proof in connection with the defense of misuse is (1) that the plaintiff used the product as claimed by the defendant, (2) that the defendant could not reasonably have foreseen such a use, and (3) that this misuse by the plaintiff was a proximate cause of his own injury. See, NJI2d Civ. 11.25; Jay v. Moog Automotive, supra (citing NJI2d Civ. 11.25 as appropriate jury instruction for defense of misuse).
At the hearing on U.S. Filter's motion for summary judgment, counsel for U.S. Filter claimed that Wedgewood misused the fines filter because he did not ensure the tank was safe to open by draining it prior to removing the bolts from the swing door, as instructed in the operation and maintenance manual provided to PGLA by U.S. Filter. In the manual, under the heading "Installation and Assembly," the extent of the instructions with respect to the "swing bolt door opening procedure" are as follows:
Tools Required
Long Socket Wrench to fit Swing Bolt Hex Nut (3/4" to 1-1/2")
Insure Filter is Safe to Open
Drain, vent and sluice per normal cleaning cycle. Blind connections if necessary or isolate filter with manual valving.
• Loosen swing bolt-hex nuts, insure the swing bolts clear the door shell flange.
• Check to insure door seal to shell flange is broken — grasp door handles to open.
• Install in reverse order.
Counsel for U.S. Filter argued to the district court that it "was completely unforeseeable to [U.S. Filter] that [Wedgewood] would fail to follow the directions in the manual."
The district court agreed with U.S. Filter, citing to Jay v. Moog Automotive, supra, and Erickson v. Monarch Indus., supra, for the proposition that failure to follow plain and unambiguous instructions is a misuse of the product. The district court found that the manual for the fines filter, quoted above, unambiguously instructed the user to ensure that the fines filter was safe to open, which included draining the vessel, and that there is no dispute that Wedgewood opened the swing door before the filter was drained. Thus, the district court determined as a matter of law that Wedgewood's opening the swing door without first independently ensuring the fines filter was drained was an unforeseeable misuse of the product and that such was the proximate cause of Wedgewood's injury. Because this was a summary judgment motion, we must disagree.
Initially, we point out that the undisputed testimony is that Wedgewood followed the Line Break Permit procedure for opening the fines filter as he was trained by PGLA to do. As such, when Wedgewood began removing the bolts from the swing door, he was operating under the reasonable belief that the fines filter had already been drained because he and Gusse sought and obtained a Line Break Permit. That said, Gusse, not Wedgewood, concededly was solely responsible for completing the items on the Line Break Permit to ensure the vessel was safe to open, including taking the step that would actually drain the fines filter. Gusse admitted that he failed to drain the filter before Wedgewood attempted to open the swing door. The evidence supports that such led to scalding hot liquid remaining inside the vessel and pouring out onto Wedgewood. Thus, under the evidence before us, if there was any "misuse" for failing to follow the instruction manual and ensure the filter was drained prior to opening it, such was attributable not to Wedgewood, but to Gusse. And we have already rejected the trial court's conclusion that Gusse's failure, at least for summary judgment purposes, was an efficient intervening cause. And, even if U.S. Filter had alleged Gusse's misuse as an affirmative defense to Wedgewood's claims against U.S. Filter, which it did not, the Nebraska Supreme Court in Jameson v. Liquid Controls Corp., 260 Neb. 489, 618 N.W.2d 637 (2000), declined to address whether third-party misuse is a defense to strict liability in Nebraska, apparently because such was not pleaded as an affirmative defense. And as said, third-party misuse was not pleaded here as a defense either.
Assuming arguendo that Wedgewood could be guilty of misuse for failing to follow the instructions for the fines filter because he did not independently ensure the tank was safe to open, we find that there is a genuine issue of material fact with respect to whether the instructions are plain and unambiguous. See, Jay v. Moog Automotive, 264 Neb. 875, 652 N.W.2d 872 (2002); Erickson v. Monarch Indus., 216 Neb. 875, 347 N.W.2d 99 (1984) (failure to follow plain and unambiguous instructions is misuse of product, for purposes of misuse defense to products liability action). The district court decided this issue in favor of U.S. Filter, finding that Wedgewood's failure to follow the "plain and unambiguous" instructions was an unforeseeable misuse of the fines filter. However, the manual merely instructs the user to ensure the filter is safe to open by draining, venting, and sluicing per "normal cleaning cycle," but it is noteworthy that the instructions do not set forth any method by which the worker opening the door can ensure that the vessel is in fact empty of hot product. And, Wedgewood followed the Line Break Permit procedure designed to ensure that the vessel was empty before the swing door was opened. As such, this situation is clearly distinguishable from Erickson v. Monarch Indus., 216 Neb. 875, 347 N.W.2d 99 (1984), wherein an electrician failed to follow the manufacturer's "plain and unambiguous" instructions for properly wiring an electrical transformer, and the Supreme Court found that such failure amounted to an unforeseeable misuse of the product. The Erickson court noted that the manufacturer in that case not only included directions for properly wiring the transformer, it also referred the user to the National Electrical Code for proper fusing.
Here, U.S. Filter provided no specific instructions regarding the swing door opening procedure, aside from the portion of the manual reproduced above. Thus, while "drain, vent and sluice per normal cleaning cycle" might appear straightforward, in fact, such instruction does not inform a worker such as Wedgewood how to ensure that the vessel is in fact drained before removing bolts on the swing door — which brings us, and ultimately a fact finder, back to the lack of any mechanism incorporated into the design of the fines filter by U.S. Filter to enable a worker such as Wedgewood to be able to ensure that the vessel had in fact been drained before the swing door is opened. Therefore, giving Wedgewood the benefit of all reasonable inferences, we disagree that the instructions for opening the swing door are "plain and unambiguous" as a matter of law. Therefore, genuine issues of material fact remain regarding the defense of misuse, and the trial court erred in granting summary judgment to U.S. Filter on such defense.
Did U.S. Filter Have No Duty to Warn Because Wedgewood Was Sophisticated User?
Wedgewood next alleges that the district court erred in granting summary judgment in favor of U.S. Filter on the basis of a "sophisticated user" theory. Wedgewood argues that this concept, if applicable, relates to only his failure to warn/instruct claim, and we agree. See Vondra v. Chevron U.S.A., Inc., 652 F. Supp. 2d 999 (D. Neb. 2009) (under Nebraska law, "sophisticated user" defense in product liability action means that there is no duty to warn if user knows or should know of potential danger, especially when user is professional who should be aware of characteristics of product). See, also, 7 Am. Jur. Proof of Facts 3d 305 § 1 (1990). While Wedgewood contends that the district court improperly granted summary judgment to U.S. Filter with respect to both his failure to warn and defective design claims, we think he misreads the district court decision. We conclude that the district court's opinion did grant summary judgment on the failure to warn claim by its finding that Wedgewood and PGLA were "professional users" and "knew of the danger." The court further found that "there was no duty of U.S. Filter to provide further warnings of such known risk or danger." To be clear, in our analysis we operate on the basis that the "risk or danger" of which no further warning or instruction is due a sophisticated user such as Wedgewood, is that opening the swing door when the fines filter is still full of hot lactic acid will result in personal injury to the worker who opens the door.
In Strong v. E.I. DuPont de Nemours Co., Inc., 667 F.2d 682, 687 (8th Cir. 1981), the court determined that "there is no duty to warn if the user knows or should know of the potential danger, especially when the user is a professional who should be aware of the characteristics of the product." In Crook v. Kaneb Pipe Line Operating Partnership, L.P., 231 F.3d 1098 (8th Cir. 2000), the court said that there was no duty to warn experienced professionals accustomed to dealing with propane of the dangers of propane. The case seems very similar in that Wedgewood quite clearly knew of the danger of being burned if he opened the swing door when the fines filter was full of hot lactic acid.
Wedgewood argues that the sophisticated user principle has not been expressly recognized in Nebraska and that therefore it should not have been a basis for granting summary judgment. U.S. Filter responds that despite the fact that the specific nomenclature, "sophisticated user," has not been employed in this state, the legal theory was nevertheless applied in Erickson v. Monarch Indus., 216 Neb. 875, 347 N.W.2d 99 (1984), and we agree.
Erickson was a case brought by Loyal D. Erickson's personal representative to recover damages for his wrongful death. Erickson was killed when an improperly wired transformer at the grain drying facility where he was working failed, causing an explosion. As a result of the explosion, Erickson was killed. Erickson's personal representative sued the general contractor and the subcontractor-electrician for negligence in improperly wiring the transformer and for failing to give adequate warnings of the risks associated with overloading the transformer. Erickson's personal representative also sued the suppliers alleging negligence in failing to warn the user of the danger of overloading the transformer as well as for strict liability for supplying a dangerous product. No claims were brought against the manufacturer. The case was submitted to a jury, which returned verdicts in favor of the suppliers and against the subcontractor and general contractor, and appeals followed. The Erickson court affirmed, and, with regard to the supplier's duty to warn, stated:
In light of the fact that the manufacturer's instructions for proper wiring were included with the transformer, and the supplier knew that those to whom it would be sold would have special knowledge as to how to install the transformer, we conclude that the supplier had no additional duty to warn. It was only because of improper wiring and installation that the transformer could cause any hazard.
216 Neb. at 887, 347 N.W.2d at 109. According to Erickson, warning of a product's defects is unnecessary where the supplier of the product has reason to believe that those who use it will have such special experience as will enable them to perceive the danger. See, also, Martinez v. Dixie Carriers, Inc., 529 F.2d 457 (5th Cir. 1976).
Thus, while the specific term "sophisticated user" was not used in Erickson, it seems clear that conceptually the notion of a professional or sophisticated user is already part of Nebraska law. And, across numerous jurisdictions the limitation on the duty to warn sophisticated users is clearly part of the fabric of product liability law with respect to defective warning claims. See, e.g., Taylor v. American Chemistry Council, 576 F.3d 16 (1st Cir. 2009); Gray v. Badger Min. Corp., 676 N.W.2d 268 (Minn. 2004); Portelli v. I R Const. Products Co., Inc., 218 Mich. App. 591, 554 N.W.2d 591 (1996); Wasko v. R.E.D.M Corp., 217 N.J. Super 191, 524 A.2d 1353 (1986). There is authority that the sophisticated user defense applies in negligence as well as strict liability. See Johnson v. American Standard Inc., 43 Cal. 4th 56, 65-66, 179 P.3d 905, 911, 74 Cal. Rptr. 108, 115 (2008) ("defense applies equally to strict liability and negligent failure to warn cases"; "duty to warn is measured by what is generally known or should have been known to the class of sophisticated users, rather than by the individual plaintiff's subjective knowledge"). The California court's comprehensive discussion of the sophisticated user defense is instructive, including laying out the rationale for application to negligence and strict liability claims, similar to our discussion below, as well as holding that the state of an alleged sophisticated user's knowledge about the dangers of the product is measured from the time of the injury, not the date of manufacture.
Although Erickson involved a claim of negligent failure to warn, we do not see that distinction from the instant case as excluding the application of the sophisticated user defense, given the persuasive authority that the defense applies in both types of case. It has been said that with respect to lack of warning that negligence and strict liability are functional equivalents, since liability for failure to warn necessarily involves a determination of whether the defendant exercised reasonable care. See 7 Am. Jur. Proof of Facts 3d 305 § 3 (1990). It has been said that the failure to warn in the context of strict products liability "is really nothing more than a ground of negligence liability described as the sale of a product in a defective condition, subject, however, only to the defenses and other limitations on liability appropriate to strict liability rather than negligence." Prosser and Keeton on the Law of Torts (5th ed.) § 99 p. 697 § 99 (1984). It has also been said:
Most discussions of the duty to warn rely on a negligence concept — reasonableness — even in a strict liability action, i.e., does the marketing of the product without appropriate warnings pose an unreasonable risk of harm to the user. Thus, in a strict liability action, a manufacturer or supplier has a duty to warn when it would be unreasonably dangerous to market the product without a warning, or when the risk of harm would be unreasonable without an appropriate warning; if the failure to warn does not constitute negligence, the product is not "defective," and there is no strict liability. Put another way, a product is unreasonably dangerous or defective when an ordinary person would not have marketed the product without warnings or instructions as to the risks and dangers involved in its use.
3 American Law of Products Liability 3d § 32:30 at 77-78 (John D. Hodson Richard E. Kaye eds., 2004).
In the final analysis, we find that the sophisticated user defense is applicable in this strict liability action. Moreover, there can be no dispute, given the preinjury frequency that Wedgewood had employed the Line Break Permit procedure and opened the swing door, that Wedgewood was, as a matter of law, a sophisticated user. As a result, U.S. Filter, had no duty to warn him of the danger of opening the swing door if the fines filter was still filled with material. Nor did it have a duty to provide additional instruction beyond that which we have set forth herein from the manual provided by U.S. Filter to PGLA. Thus, to this extent, the trial court's grant of summary judgment applying the sophisticated user defense was correct. Finally, we note that while the trial court found that both Wedgewood and PGLA were "professional users" (another term for sophisticated user), it is unnecessary for us to discuss PGLA in this context given our finding that Wedgewood was clearly such a user and thus not entitled to additional warnings or instructions from U.S. Filter. Accordingly, to this extent, the trial court's grant of summary judgment was proper and is hereby affirmed.
Was Fines Filter Not Defective Due to Inadequate Warnings or Instructions Because Risk of Harm Was Readily Recognizable?
The district court, citing NJI2d Civ. 11.23, also made a finding that the fines filter was not defective due to inadequate warnings because the risk of harm was "readily recognizable while using the fines filter in a reasonably foreseeable manner." That jury instruction provides: "A product is defective if it is not accompanied by sufficient warnings. To be sufficient, a warning must inform a product's user of any risk of harm not readily recognizable by the ordinary user while using the product in a manner reasonably foreseeable by the manufacturer." The district court then reasoned that "the risk of harm was that of hot liquid unexpectedly escaping if someone failed to drain the fines filter before opening the swing door." This is not a correct statement of the risk that is involved in this litigation. Clearly, if the swing door was opened without the fines filter being drained, a sudden and dangerous escape of 500 gallons of scalding hot liquid would occur — and could hardly be described as an unexpected occurrence as the trial court said. Rather, the risk correctly stated, viewing the evidence in the light most favorable to Wedgewood, is that a worker would open the swing door, reasonably believing that the fines filter had been drained when it had not. Wedgewood's expert testified that it was this danger presented by the inability of the end user to verify that the vessel had been drained that made the fines filter unreasonably dangerous. We view that testimony most favorably to Wedgewood, and, on a motion for summary judgment, such is evidence that the product as built and sold was defective and thus unreasonably dangerous, rather than evidence of being defective for failure to warn.
As a "backup rationale" connected with this ground for granting summary judgment to U.S. Filter, the district found that Wedgewood was not using the product in a reasonably foreseeable manner when he opened the vessel before draining it. But, unless one assumes a perfect world in which the drain always drains, the computer always works, and a worker such as Gusse never neglects to click on the command to open the drain, this conclusion is quite meaningless. Implicit in this finding is that Wedgewood knew the filter was not drained, but opened the door anyway — but there is no evidence of that. Moreover, the claim that he could not know whether the tank was actually drained is the gravamen of this defective product case. Obviously, the fines filter was designed and built so that the interior could be accessed via the swing door by a worker. Thus, the core issue is whether U.S. Filter designed and built the vessel so that the interior of the vessel could be accessed safely via the swing door — which means whether the fines filter was designed and built in a way that a worker, such as Wedgewood, could determine whether the vessel was empty of hot lactic acid before opening the swing door.
Therefore, we agree with Wedgewood that there are genuine issues of material fact with respect to whether the risk that the filter was not actually drained before the swing door was opened was reasonably foreseeable. The crux of Wedgewood's claim is that the risk of harm was not apparent to him because an end user was unable to effectively determine whether the tank was drained, which made the product defective. The evidence is undisputed that Wedgewood followed the Line Break Permit procedure for opening the swing door as he had been trained by PGLA to do. He believed that the fines filter had been drained when he removed the last several bolts on the swing door. Having followed the Line Break Permit procedure, it cannot be said as a matter of law that he was using the fines filter in a way that was not reasonably foreseeable to U.S. Filter — unless we assume that mechanical equipment always works and that humans never err — assumptions we are unprepared to make in this summary judgment proceeding. Therefore, the trial court erred in deciding as a matter of law that the fines filter was not being used by Wedgewood in a manner foreseeable by U.S. Filter. This is a question of fact for the jury.
Did Trial Court Err in Finding, as Matter of Law, That Fines Filter Was Not Unreasonably Dangerous?
Giving Wedgewood the benefit of every reasonable inference as our standard of review dictates, we find that summary judgment was erroneously granted to U.S. Filter on the basis that the fines filter was not unreasonably dangerous. As we previously explained, Wedgewood's expert, Main, specifically opined that the fines filter was unreasonably dangerous due to its defective design. Specifically, he found the product defective because "the end user had no way to know if the contents were present or drained when opening this filter" and "[t]he lack of a means to identify the presence of liquid in this filter renders this filter unreasonably dangerous." Main testified that, in light of U.S. Filter's failure to manufacture the filter with devices allowing an end user to ascertain whether the filter had actually been drained before the swing door was opened, the product was defective, including due to its insufficient warning of such danger. However, we have found that no warning of the danger posed by opening the swing door of an undrained filter was needed because (1) Wedgewood was a sophisticated user and (2) he did not need to be warned of a danger of which he was already aware. Thus, we have concluded that summary judgment was properly granted in U.S. Filter's favor with respect to the claims that the product was defective because of inadequate warning. However, granting summary judgment to U.S. Filter on the ground that the fines filter was not defective as unreasonably dangerous in its design and manufacture was error because genuine issues of material fact remain for the jury on those issues.
Did Wedgewood Voluntarily Assume Risk of Harm Posed by Fines Filter?
Wedgewood claims that the district court erred in concluding that he assumed the risk of his injuries. Assumption of risk, under appropriate circumstances, may be an affirmative defense in an action brought for a manufacturer's strict liability in tort for a design defect. Rahmig v. Mosley Machinery Co., 226 Neb. 423, 412 N.W.2d 56 (1987). One who knows of a dangerous condition, appreciates its dangerous nature, and deliberately exposes himself to the danger assumes the risk of injury from it. Id. Stated slightly differently, assumption of risk is a user's willingness or consent to use a product which the user actually knows is defective and he or she appreciates the danger resulting from such defect. See id. Ordinarily, the question of assumption of risk is for the jury, but, where the evidence is such that only one reasonable conclusion is permissible, a court may decide the issue as a matter of law. See id.
The doctrine of assumption of risk applies a subjective standard geared to the individual plaintiff and his or her actual comprehension and appreciation of the nature of the danger he or she confronts. Hughes v. Omaha Public Power Dist., 274 Neb. 13, 735 N.W.2d 793 (2007). This subjective standard involves an inquiry into what the particular plaintiff in fact sees, knows, understands, and appreciates. Id. The doctrine of assumption of risk applies to known dangers and not to those things from which danger may possibly flow. See id. As a respected commentator has explained:
"`Knowledge of the risk is the watchword of assumption of risk.' Under ordinary circumstances the plaintiff will not be taken to assume any risk of either activities or conditions of which he has no knowledge. Moreover, he must not only know of the facts which create the danger, but he must comprehend and appreciate the nature of the danger he confronts. . . . If, because of age or lack of information or experience, he does not comprehend the risk involved in a known situation, he will not be taken to consent to assume it. His failure to exercise ordinary care to discover the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence."
Hughes v. Omaha Pub. Power Dist., 274 Neb. at 32, 735 N.W.2d at 808, citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68 (5th ed. 1984).
As in Hughes, the issue here is whether Wedgewood actually knew, understood, and appreciated that he was opening the swing door when many gallons of hot lactic acid remained inside. It is not enough that Wedgewood appreciated and understood that such act would be dangerous if the tank were full — as any rational adult would recognize. Our case law teaches that to have assumed the risk, Wedgewood must have opened the swing door being fully aware that the vessel had not been drained: an act that would seem to be the epitome of assumption of the risk. But, this is not what the evidence reveals, and in fact, the evidence is the exact opposite. Gusse's performance of the tasks associated with the Line Break Permit led Wedgewood to believe the tank had been emptied, as it had been on the approximately 10 occasions he had opened the swing door to remove excess gypsum from inside the tank over the course of the 2 weeks leading up to the incident. Further, when Wedgewood was down to the few remaining bolts left to remove on the swing door, he noticed some liquid escaping from around the door's seal. He moved away from the door and allowed this small amount of liquid to drain out before proceeding to remove the remaining bolts. He testified that it was normal for a small amount of liquid to drain "around the gasket and stuff." He then proceeded to remove the remaining bolts only after the liquid ceased, which indicated the tank was empty, as he had done without injury in the past.
Clearly, Wedgewood had knowledge of the dangers associated with the fines filter — including his obvious understanding that it would be hazardous to open the door of the 500 gallon tank that had not been emptied of 150-degree-Fahrenheit lactic acid. But, such general knowledge is markedly different than actually knowing that the tank was still full, and nonetheless removing the swing door in the face of such knowledge. The evidence clearly does not support a finding of the requisite elements of assumption of risk such that Wedgewood can be said to have assumed the risk of harm in this case as a matter of law. Accordingly, we reverse that finding of the district court.
Is U.S. Filter Relieved of Any Liability Because It Followed Completely Design of Fines Filter Provided to It by PGLA?
Wedgewood next alleges that the district court improperly granted summary judgment in favor of U.S. Filter by relying on Moon v. Winger Boss Co., Inc., 205 Neb. 292, 287 N.W.2d 430 (1980). In that case, Robert Moon was injured on the job when his arm became entangled in the sprocket, chain and framework located at the end of a conveyor-type table referred to as a "breaking table" at a beef processing plant. Moon sued the manufacturer of the breaking table, Winger Boss Company, Inc. (Winger Boss), under both negligence and strict liability theories of recovery. The sole allegation underlying these theories was that the breaking table possessed design defects. A jury returned a verdict in favor of Winger Boss, and Moon appealed.
The Nebraska Supreme Court affirmed the judgment in favor of Winger Boss, announcing a rule of no liability when "a manufacturer follows completely the design of the employer without the opportunity for final inspection." Id. at 300-301, 287 N.W.2d at 434. The rule provides that a manufacturer is not liable for injuries to a user of a product which it has manufactured in accordance with plans and specifications of one other than the manufacturer, except when the plans are so obviously, patently, or glaringly dangerous that a manufacturer exercising ordinary care under the circumstances then existing would not follow them. See id.
Wedgewood argues that the district court's grant of summary judgment under Moon was improper, because genuine issues of material fact exist as to whether U.S. Filter "follow[ed] completely" PGLA's design for the fines filter, and we agree. See id. In Moon, the court found that Winger Boss manufactured every part of the equipment system to Moon's employer's specifications and was not involved with the design of the equipment whatsoever. In its analysis, the Supreme Court distinguished a case from the Supreme Court of Colorado, Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978), which "at first blush would seem to be on all fours with [Moon], but reaching a [different] result." Moon v. Winger Boss Co., Inc., 205 Neb. at 298, 287 N.W.2d at 434. The court noted that the Colorado opinion was decided on facts suggesting that the manufacturer was the designer, whereas in Moon, such facts were not present.
Looking at the evidence in the light most favorable to Wedgewood, we find that there is clearly a genuine issue of material fact as to whether U.S. Filter was involved in the design of the fines filter or whether it simply built what it was told to by PGLA. The PGLA engineer, DeSantis, specifically testified that U.S. Filter was responsible for designing the equipment, i.e., the fines filter, and that Fluor Daniel's input was only related to the design of the overall lactic acid production process. Importantly, DeSantis further testified that she would have relied on U.S. Filter's expertise to provide an equipment design — including the filter, nozzles, and internals — that could accommodate the service conditions she supplied. Given this evidence, viewed most favorable to Wedgewood, the prerequisites for application of Moon v. Winger Boss Co., Inc., 205 Neb. 292, 287 N.W.2d 433 (1980), are simply not present as a matter of law, and the district court erred in entering summary judgment in favor of U.S. Filter on that basis.
CONCLUSION
Because we find that there are genuine issues of material fact remaining, we find that the Washington County District Court erroneously granted summary judgment in favor of U.S. Filter and in dismissing Wedgewood's suit. However, we find that the district court did properly grant summary judgment with respect to Wedgewood's claim that the fines filter was defective and unreasonably dangerous due to insufficient warnings and instructions. Accordingly, we affirm that portion of the district court's order. However, we remand the cause to the district court for further proceedings with respect to Wedgewood's claims that the fines filter was defectively designed and, thus, unreasonably dangerous, because there are genuine issues of material fact with respect to such claim.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.