soper, christopher 6/26/2017 for educational use only

Soper, Christopher 6/26/2017 For Educational Use Only

§ 388Chattel Known to be Dangerous for Intended Use, Restatement (Second) of Torts...

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

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.

. . .


McCormack v. Hankscraft Co., 278 Minn. 322 (1967)

154 N.W.2d 488


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.



154 N.W.2d 488


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.



154 N.W.2d 488


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



154 N.W.2d 488


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.



154 N.W.2d 488


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



154 N.W.2d 488


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

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1957112542&pubNum=595&originatingDoc=Ia62fbad5fe8d11d9bf60c1d57ebc853e&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)




154 N.W.2d 488


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


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


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.


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)



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.


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:































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



























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


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



the courts then hold there is no 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

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Stringer v. National Football League, 749 F.Supp.2d 680 (2009)


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.


*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.


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



the courts the hold there is no 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





























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















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















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


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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.

. . .





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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


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.

Stringer v. NFL

soper, christopher 6/26/2017 for educational use only

Documents