Opinion
Civil No. 02-4377 ADM/RLE.
July 28, 2004
James G. Vander Linden, Esq., LeVander Vander Linden, Minneapolis, MN, and James O. Miller, Esq., Miller Law Office, Edina, MN, appeared for and on behalf of Plaintiff.
William L. Moran, Esq., and Ricardo Figueroa, Esq., Murnane, Conlin, White Brandt, PA, St. Paul, MN, appeared for and on behalf of Defendants Pollock Engineering Group, Inc. and Pollock Research Design, Incorporated.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This action came before the Court on June 4, 2004, for oral argument on the Motion for Summary Judgment [Docket Nos. 49, 53] of Defendants Pollock Engineering Group, Inc. and Pollock Research Design, Incorporated (collectively, "Pollock"). Defendants argue Plaintiff Royce Young ("Plaintiff") has not presented sufficient evidence to allow his tort and warranty claims to proceed to trial. For the reasons set forth below, Pollock's Motion is granted.
Though not present at the hearing, Defendant Lewis L. Deland also submitted a Petition for Summary Judgment and request to be included in the hearing [Docket Nos. 59, 65] on behalf of himself and Defendant Computech, a sole proprietorship ("Computech"). Plaintiff's memorandum does not address these pleadings, and because they were not timely filed in compliance with the scheduling order of this case and Local Rule 7.1(b)(1), there is no motion properly before the Court by Defendants Deland and Computech. See Am. Pretrial Scheduling Order at 4 [Docket No. 38]; D. Minn. LR 7.1(b)(1).
II. BACKGROUND
Plaintiff brings this products liability suit seeking to hold Defendants liable for injuries he sustained while working with an aluminum extrusion press at Alexandria Extrusion Company ("AEC"), his place of employment. In 1994, Pollock and AEC contracted for Pollock to supply a shuttle die-changing system ("die changer") to be incorporated into AEC's extrusion press. Pollock designed the die changer to meet AEC's specifications and subcontracted the manufacturing to another company. When AEC attempted to install the product, various parts of the system did not fit properly with the press, and AEC made certain modifications, including addition of a "top guide" and a "guard plate." The die changer then fit in the press and functioned normally. Colden Dep. at 16. In 1997, AEC upgraded the controls of the system, which were provided and installed by Computech.
On the night of the accident, October 29, 1999, Plaintiff was working as a "die man" on the press, loading new dies into the press via the die changer and then attaching a nitrogen hose to the die. A co-employee, Robbie Betterman ("Betterman"), was operating the control panel. According to Plaintiff's version of the incident, he completed loading the die and was in the process of engaging the nitrogen hose when Betterman inadvertently activated the die changer and then turned away from the control station. Plaintiff's left hand was captured between the edge of the tool holder and the face of the guard plate. Plaintiff yelled out and Betterman stopped and reversed the changer to free Plaintiff's hand Plaintiff incurred serious injury, requiring amputation of his left thumb. Subsequent to this incident, AEC installed a barrier fence or "barrier guard" around the die changer area in order prevent any similar regrettable accidents.
Betterman states that he received an "all clear" signal from Plaintiff prior to starting the changer and that Plaintiff subsequently attempted to reattach the nitrogen hose, which had separated from the press. For purposes of the instant Motion Plaintiff's recollection and statement of the facts are accepted for evaluation of his claims. See Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995) (on a motion for summary judgment, the court views the evidence in the light most favorable to the nonmoving party).
Plaintiff's Complaint raises claims against Pollock of strict liability, negligence and breach of warranty, alleging defective design based on failure to incorporate adequate safeguards.
III. DISCUSSION
A. Standard for Summary Judgment
A party is entitled to summary judgment as a matter of law if, construing the evidence in the light most favorable to the non-movant, there exists no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir. 1995). Summary judgment is not appropriate if a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, a plaintiff facing a summary judgment motion cannot "get to a jury without any significant probative evidence tending to support the complaint." Rath v. Selection Research, Inc., 978 F.2d 1087, 1091 (8th Cir. 1992), quoting Anderson, 477 U.S. 242 at 249.
B. Defective Design: Strict Liability and Negligence
To state a claim of defective design 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) the defect was the proximate cause of the injury sustained." Bilotta v. Kelley Co., 346 N.W.2d 616, 623 n. 3 (Minn. 1984).
A product is unreasonably dangerous if the manufacturer fails to exercise the degree of care in the design necessary to avoid an unreasonable risk of harm to anyone likely to be exposed to intended or foreseeable uses. Id. at 621. To determine what constitutes reasonable care under the particular circumstances, courts balance the likelihood and gravity of the potential harm against the burden of the precaution that would effectively avoid the harm. Id. One factor bearing upon reasonable care is the availability of a feasible alternative design. D. Trost v. Trek Bicycle Corp., 162 F.3d 1004, 1009 (8th Cir. 1998).
Plaintiff concedes the die changer did not malfunction, but alleges defectiveness due to omission of safeguards. Failure to include a feasible safety device, even when the manufacturer "expects the purchaser to install that device," can provide a basis for defective design. Bilotta, 346 N.W.2d at 622.
Plaintiff proffers testimony of two experts to establish that Pollock should have installed "or at least recommended" a barrier guard in combination with an "interlock" so that power to the changer is automatically cut-off when the gate of the barrier guard is open. Kvalseth Aff. ¶¶ 3, 5; Blundell Aff. ¶¶ 5, 8. Additionally, Dr. Tarald Kvalseth opines that a light curtain would be an effective safety device for use with the die changer.Id. ¶ 5. Plaintiff argues AEC's present use of a barrier fence proves the feasibility of such guards.
Plaintiff does not contest that his proposed safety enhancements are external work area modifications available for purchase "off the shelf," rather than mechanisms incorporated into the design of the die changer or "permanently attached to" the product. Huber v. Niagara Mach. Tool Works, 430 N.W.2d 465, 466 (Minn. 1988). This fact readily distinguishes the instant case from that relied on by Plaintiff, in which the court found a manufacturer could be liable for defective design based upon exclusion of an integral safety component from some of its models. Bilotta, 346 N.W.2d at 622, 624-25. Plaintiff does not suggest or reference an alternative die changer design that includes a safety device, and cites no authority for his proposition that the failure to recommend external safeguards made by different manufacturers can constitute a defect in design. Accordingly, his claim is appropriately one of failure to warn and it will be addressed as such. Summary judgment for Pollock is thus warranted on the issue of defective design.
Although a practical alternative design "is not necessarily required in all cases," a plaintiff must present evidence to show the product was in a defective condition when it left the defendant's control. Kallio v. Ford Motor Co., 407 N.W. 2d 92, 97, 97 n. 3 (Minn. 1987) (rare cases may exist where device should be removed from the market rather than redesigned);Bilotta, 346 N.W.2d at 623 n. 3. The nature of Plaintiff's claim requires proof of a design component from which a jury could conclude that omission of such a safety feature "render[ed] the [die changer] unreasonably dangerous." Bilotta, 346 N.W.2d at 624. Here Plaintiff concedes the changer was functional and relies solely on the absence of safeguards. In contrast toBilotta, where the defendant sold two versions of its product, one with a safety device as standard and a less expensive model without it, Plaintiff offers no evidence of a "conscious" omission by Pollock of one of the die changer's components. 346 N.W.2d at 620. Since the essence of this claim is that Pollock's design was defective because it did not incorporate a safety feature, failure to identify or suggest a die changer with integral safeguards is fatal to this claim of design defect. This conclusion is bolstered by the American National Standards Institute's assignment to the employer of the obligation to provide "adequate guards, awareness devices, presence-sensing devices, and/or appropriate controls to provide proper protection to operating personnel." Miller Aff. Ex. S at 17 § 5.1.
C. Failure to Warn
"Failure to warn is a cause of action separate from defective design." Huber, 430 N.W.2d 465, 467 (Minn. 1988). A manufacturer has a legal duty to warn purchasers of foreseeable dangers related to the use of the product. Gryc v. Dayton-Hudson Corp., 297 N.W.2d 727, 739 (Minn. 1980) (internal quotation omitted). Whether such a duty exists is a question of law, determined by looking at the connection between the event causing the injury and the alleged negligent act to assess whether the damage that occurred "was or should have been reasonably foreseeable." Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924 (Minn. 1986). "[S]trict liability for failure to warn is "based upon principles of negligence." Id. at 926.
Pollock contends that it had no duty to warn AEC and Plaintiff of the danger of the pinch point between the machine's parts because industry law and standards place the obligation of ensuring a safe work environment and providing safeguards on the employer. Additionally, it argues the danger was open and obvious such that a warning was unnecessary. Lastly, it asserts that even if it had a duty to warn, AEC's status as a "sophisticated intermediary" relieved it of any such obligation.
The applicable safety requirements of the American National Standards Institute ("ANSI") require anyone manufacturing or modifying an extrusion press to do so "in accordance with Section 3," entitled "Construction and Modification." Miller Aff. Ex. S at 11 § 3.1. This section states that inherent hazards associated with moving parts must be "eliminated by design or by protection provided against the hazard." Id. § 3.2.1 (emphasis added). In addressing "Hazards to Personnel Associated with Moving Parts," ANSI references "pinch points between moving and stationary press components" as areas requiring consideration.Id. It counsels that "awareness devices, presence-sensing devices, interlocked guards, or two handed controls are some of the safeguards that can be used to satisfy the requirements of Section 3." Id. In Section 5, "Safeguarding Hazardous Areas," ANSI sets forth that "[i]t shall be the responsibility of the employer to provide, where applicable, and ensure the usage of, adequate guards, awareness devices, presence-sensing devices, and/or appropriate controls to provide proper protection to operating personnel." Id. at 17 § 5.1.
Similarly, under standards promulgated by the Occupational Safety and Health Administration ("OSHA"):
It shall be the responsibility of the employer to provide and ensure the usage of "point-of-operation guards" or properly applied and adjusted point of operation devices on every operation performed on a mechanical power press.29 C.F.R. § 1910.217(c)(1)(i). Accordingly, Pollock "had no duty to warn about possible dangers of failing to provide proper point of operation safety mechanisms" such as those advocated by Plaintiff's experts. Huber, 430 N.W.2d at 468. Nonetheless, even though Plaintiff cannot sustain a claim for failure to recommend use of "extra" safety features, this does not resolve whether Pollock had the nondelegable duty to warn users of the dangers presented by the product itself. Id. at 467, 468 n. 2.
As recited above, a manufacturer must advise of foreseeable dangers inherent in the intended use of the product. However, "a manufacturer has no duty to warn when the dangers of a product are within the professional knowledge of the user," or "are obvious to anyone using the product." Peppin v. W.H. Brady Co., 372 N.W.2d 369, 375 (Minn.Ct.App. 1985) (citation omitted);Mix v. MTD Prods., Inc., 393 N.W.2d 18, 19 (Minn.Ct.App. 1986). When assessing obviousness of the risk of harm, the court considers whether the user was aware of the specific, rather than the general, danger posed. See Independent Sch. Dist. #14 v. Ampro Corp., 361 N.W.2d 138, 143 (Minn.Ct.App. 1985) (defendant had duty to warn of danger that was "different, more serious, and more unexpected" than obvious risk); see also Kallio v. Ford Motor Co., 407 N.W.2d 92, 99 (Minn. 1987) (duty to warn exists "if the manufacturer has no reason to believe that the users will comprehend the risk").
It is undisputed that Pollock provided no written advisories or instructions. However, Plaintiff admitted in his deposition that the pinch point was an obvious hazard and that he had been trained in proper use of the die changer and instructed on machine safety. Young Dep. at 22, 26, 61, 144. Additionally, AEC was familiar with operation of the die changer and related dangers. Colden Dep. at 73; Sholts Dep. at 115. It did not place a warning on the machine because the hazard of the pinch point was obvious. Colden Dep. at 73. By contrast, the duty to warn cases cited by Plaintiff involved distinct dangers more serious than those inherent in the nature of the products. See Ampro Corp., 361 N.W.2d at 138, 143 (obviousness of flammability not equivalent to "hot, rapid, smoky burning").
The other opinions on which Plaintiff relies with respect to the issue of obviousness are inapposite, as they address design defect or post-sale duty to warn. As stated above, Plaintiff has not presented sufficient evidence to withstand summary judgment on his defective design claim, and he concedes he is not asserting a post-sale duty to warn.
Plaintiff's argument that he was not aware of the specific danger that the changer "could be unexpectedly activated" again implicates external safety devices and controls rather than the features of the die changer itself. Pl.'s Mem. at 23. Further, the obviousness or lack thereof of unanticipated activation would not have been affected by any warning Pollock may have provided regarding the risk presented by the unguarded pinch point. As such, Pollock had no legal duty to warn Young and AEC of the obvious danger associated with the pinch point of the die changer. See Peppin, 372 N.W.2d at 375.
Even if Pollock had a duty to warn Plaintiff of the danger of the pinch point, causation would present a difficult hurdle, as Plaintiff would need to show that he "would have acted differently if [he] had been warned of the risk" of catching his hand in the machine. Holowaty v. McDonald's Corp., 10 F. Supp. 2d 1078, 1085 (D. Minn. 1998). A lack of warning is not the proximate cause of an injury if the user is aware of the danger posed by the device at issue. Id. at 1085-86. With Plaintiff's admission that he understood the hazard inherent in the pinch point, it is not clear how an additional advisory of the risk would have altered his actions on the date of the unfortunate accident, which both parties agree involved some sort of miscommunication between Plaintiff and Betterman, the controller. The effect of a warning on Plaintiff's conduct is particularly questionable in light of the fact that he had performed this task many times without incident, having worked with the extrusion press since at least early 1999. Young Dep. at 34, 42. Summary judgment is granted in favor of Pollock on this claim.
D. Breach of Warranty
Plaintiff concedes that his implied warranty of merchantability theory merges with the strict liability claim. However, he argues that Defendants breached an express warranty and an implied warranty of fitness. An express warranty is created by any "affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain." Minn. Stat. § 336.2-313(1)(a). The implied warranty of fitness arises when the seller knows "of a particular purpose for which the goods are required and know[s] that the buyer is relying on the seller's skill or judgment to select and furnish suitable goods." Piotrowski v. Southworth Prods. Corp., 15 F.3d 748, 752 (8th Cir. 1994) (citing Minn. Stat. § 336.2-315).
Warranty claims must be brought within four years after tender of delivery of the goods to the purchaser. Minn. Stat. § 315.725(1), (2). The die changer was delivered and, after the required adaptations were made, installed in 1994. The warranty claims, brought in 2002, are therefore untimely. See id. Plaintiff contends these causes of action did not accrue until the date of Plaintiff's injury, October 29, 1999, and therefore that the action is within the limitations period.
The cited basis for the warranty claims is that the die changer "as originally supplied by Pollock" did not fit the extrusion press properly and required modification by AEC. Pl.'s Supplemental Mem. at 4. Pursuant to Minnesota Statutes § 315.725, this claim thus accrued when AEC received the product that allegedly did not comply with the warranties regarding incorporation of the die changer into AEC's existing press. Plaintiffs argument that Pollock's die changer failed in "the user's purpose" is incongruous with the undisputed fact that once modified, the die changer functioned properly as integrated into AEC's extrusion press and was not the source of any other injuries during the five years and approximately 60,000 die changes prior to Plaintiff's accident. Colden Dep. at 16; Kvalseth Dep. at 41. Plaintiff offers no evidence or argument as to any specific warranty of the product's future performance regarding safety features or the pinch point at issue. Summary judgment is granted on Plaintiff's breach of warranty count.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that:1. Defendants Pollock Engineering Group, Inc. and Pollock Research Design, Incorporated's Motion for Summary Judgment [Docket Nos. 49, 53] is GRANTED.
2. Although Defendants Computech, a sole proprietorship, and Lewis L. Deland have no official motion before the Court, it appears the above analysis would apply equally to the claims against these Defendants. See supra note 1. Plaintiff is therefore ordered to show cause within 15 days of this Order as to why summary judgment is not warranted against Computech and Deland If Plaintiffs do not submit any further argument, the Complaint will be dismissed against all Defendants.