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Gardner v. Brillion Iron Works, Inc.

United States District Court, D. Minnesota

February 19, 2014

BRILLION IRON WORKS, INC., a Wisconsin corporation, Defendant

Page 929

Stephen F. Rufer and Chad R. Felstul, PEMBERTON SORLIE RUFER & KERSHNER, PLLP, Fergus Falls, MN, for plaintiffs.

Nadia B. Hasan and Thomas G. Wallrich, COZEN O'CONNOR, Minneapolis, MN; Tia C. Ghattas, COZEN O'CONNOR, Chicago, IL; and Joseph J. Bellew, COZEN O'CONNOR, Wilmington, DE, for defendant.

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JOHN R. TUNHEIM, United States District Judge.

Terrence and Cori Gardner bring this products liability suit against Brillion Iron Works, Inc. (" Brillion" ), for injuries Terrence (" Gardner" ) sustained while attempting to repair a piece of farming equipment manufactured by Brillion. The Gardners bring claims for defective design strict products liability, failure to warn, breach of warranty, negligence, post-sale duty to warn, and loss of consortium. Brillion moves for summary judgment on all of the Gardners' claims.

The Court will deny Brillion's motion with regard to the Gardners' claims for strict products liability, failure to warn, post-sale duty to warn, and loss of consortium because there are facts upon which a reasonable jury could conclude both that Gardner had no reason to think the repairs he attempted to conduct would be unsafe, and that attempting to repair farm equipment is a foreseeable use of the product. Because the Gardners do not oppose dismissal of the breach of warranty and negligence claims in the event the products liability claim is permitted to proceed, the Court will dismiss those claims.



Defendant Brillion began manufacturing the model CD 113 soil builder in 1977. (Decl. of Tia C. Ghattas, Ex. D (Dep. of Mike Irish (" Irish Dep." ) at 8), May 31, 2013, Docket No. 51.) The soil builder, used by farmers to cultivate and dig up soil after harvest, consists of a flat frame made of steel tubes. (Irish Dep. at 8-11.) The lengthwise-tubes are the main frame tubes and across them are several " spacer" tubes, so the frame appears as a collection of connected rectangles within a larger rectangle. ( Id. ) Attached to the frame tubes are shanks, which are C-shaped hooks that dig into the ground to cultivate and dig up dirt. ( Id. ) Brillion found it would be helpful for the frame tubes to be heavy so that the shanks could

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dig deeper into the ground. ( Id. ) To add weight to the frame tubes, it added ballast to the tubes in the form of galvanized steel punchings, which contained zinc and cutting oil as lubricant. ( Id.; Ghattas Decl., Ex. F (Dep. of Oliver Kruse (" Kruse Dep." ) at 14).) Brillion's Brand Manager was not aware of any other companies that used similar materials as ballast at the time. (Irish Dep. at 50.)

Brillion ultimately manufactured 2,386 soil builders of this model. ( Id. at 13.) Brillion conducted a field performance test on the model, but did not conduct any stress testing or hazard analysis on the soil builder. (Kruse Dep. at 6, 9.) In 1995 and 1996 two different users of the soil builder were injured when they were drilling into the sealed tubes. (Irish Dep. at 36-37; Kruse Dep. at 10-12.) The galvanized steel punchings that contained zinc had reacted with the moisture from the cutting oil to produce flammable gases such as hydrogen and methane. (Kruse Dep. at 14.) When the users drilled into the tubes, the gases streamed out and were ignited. (Kruse Dep. at 12-14.) Brillion learned of the injuries shortly after they occurred. (Irish Dep. at 37.) After the incidents, Brillion changed the design of the soil builder, both by not using steel mixtures for ballasts and by venting the tubes. ( Id. at 11, 45 (" [A]fter the incidents we changed to a different type. Just straight steel, no other mixture of any kind could be in with it." ).)

Brillion also took steps after the incidents to advise owners not to weld or drill into the frame tubes, which Brillion's Brand Manager agreed that Brillion did because it was the " right" thing to do. ( Id. at 37.) Brillion got the names of 1,600 farmers who had purchased the soil builder, either through its computer records or warranty cards, and sent an advisement to university extension services to try to reach farmers. ( Id. at 40-43.) Brillion stated that it was able to reach 60-70% of the owners of the soil builder, but for the remaining 30-40% it relied on the retailers and dealers to contact the purchasers to give them the notice, even though Brillion knew that dealers were not reliable and did not usually contact the purchasers. ( Id. at 43, 48.) Brillion's Manager of Engineering and Manufacturing stated that he did not know of any efforts after 1998 to get the word out to owners about the danger. (Kruse Dep. at 28.)


The soil builder at issue in this case was originally purchased by Robert Shervey, a now-retired farmer in Barrett, MN. He purchased it in 1981 from a local dealer in Elbow Lake, MN, that went bankrupt later that year. (Ghattas Decl., Ex. H (Dep. of Robert Shervey (" Shervey Dep." ) at 7).) He received an owner's manual and a supply catalog with the soil builder, but recalls no other pieces of paper, decals, or any other warnings on the machine. (Shervey Dep. at 10-11.) He did some welding repairs on the machine to strengthen the frames so they could support more substantial shanks. ( Id. at 11-12.) He later heard that it was a hazard to weld on the tubes:

I know it was a danger with welding on these tubes. I don't remember how. Or. if I got a letter on it or if I read about it or heard it or whatever? But this was - I had already welded on it. So this would have been many years since, you know, from when it was new.

( Id. at 11.) When asked about whether he had been told that there was a problem or a hazard if he drilled into the soil builder he answered: " No. Just welded." ( Id. at 35.) He clarified that " I did not know it was a chemical - flammable gas inside those tubes. I just knew it was a hazard to weld on that tube." ( Id. at 64.) He

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acknowledged that if he had known about the danger with welding, he wouldn't have welded on it, but that before he knew that he " probably would have" welded or drilled on a sealed vessel because he " wouldn't have known any different." ( Id. at 59.)

In or around 2005 Robert Shervey sold his farm to his daughter and son-in-law, Ronald Schack. (Ghattas Decl., Ex. G (Dep. of Ronald Schack (" Schack Dep." ) at 11).) Shervey told Schack that the tubes could not be welded on because " they could explode." (Schack Dep. at 27.) Schack did not use the soil builder for many years, but in 2011, he wanted to use it for harvesting. ( Id. at 26.) He decided it would need repairs, and approached a repair shop, of which Gardner was an owner and principal. ( Id. at 34-35; Ghattas Decl., Ex. I (Dep. of Terrence Gardner (" Gardner Dep." ) at 23.) Gardner is an experienced metal worker with an associate's degree in mechanical and design technology and has worked for twenty-four years in the mechanic industry. (Gardner Dep. at 9-22.) Gardner agreed to look at the soil builder and went out to Schack's farm to look at it. (Schack Dep. 36-37.) Schack mentioned to him " that we can't weld on it so we might need to put a structure across to try to hold it altogether." (Schack Dep. at 37.) After Schack told him this, Gardner was surprised and asked, " you can't weld on it?' and Schack said " No, you can't." ( Id. at 37-38.) When Gardner asked why, Schack said " apparently there's something in the tubes and they can blow up." ( Id. at 38.) Gardner agreed to do the repairs and Schack brought the soil builder into Gardner's shop in September 2011. (Gardner Dep. at 40.)

In his deposition, Gardner described the warning he received from Schack about welding on the tubes:

He told me that these main 4 by 4 cross tubes were filled with a weight adding material, which made it dig better in the field and stuff. Was or could be flammable, he wasn't sure, so that those were not to be welded on directly.

( Id. at 57-58.) Gardner didn't ask Schack how he knew there was material in the tubes, as Schack volunteered that his father told him. ( Id. at 71.)


Once the soil builder arrived in Gardner's shop, he told his employees that the soil builder could not be welded on. (Ghattas Decl., Ex. K (Dep. of Josh Warner (" Warner Dep." ) at 38, 64); id., Ex. L (Dep. of David Kjorness (" Kjorness Dep." ) at 33).) Gardner's employees testified that they received instructions not to weld on it, but did not hear that drilling on it would cause flames. Employee Josh Warner testified: " I don't remember hearing 'flammable,'" just that it could explode. (Warner Dep. at 42.) Employee David Kjorness was instructed not to " heat the tubes, the main tubes of the machine because they were loaded," but he " didn't think it would hurt anything to drill into it." (Kjorness Dep. at 40.) He explained, " [t]he way I understood it is you couldn't heat it or it would become explosive. That's why we opted to drill it, because there was no heat involved then." ( Id. )

Before embarking on any repairs, Gardner asked around - and other farmers - to see if anyone knew what might be in the frame tubes that would be flammable. (Gardner Dep. at 72, 83-84.) He testified that when he talked to other farmers, everyone's response was " Why would they put something flammable in something that you're going to repair?" ( Id. at 85.) On the day he began doing repairs, he called Titan, a company he had purchased farm equipment from in the past, as " one

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last safety precaution to see if [they] had ever heard of any manufacturer putting any type of material in a piece of farm equipment that would be flammable." ( Id. at 98.) The response he received was: " Why would any manufacturer put something flammable in a piece of material - or in a piece of equipment that would have to be repaired?" ( Id. at 99.)

Gardner then commenced the repair process. First, two of Gardner's employees used grinding cutters to remove pieces that had been welded to the spacer tubes during Mr. Shervey's repairs. (Warner Dep. at 24-28.) After they did this, Gardner set out to drill a hole into one of the tubes to determine what was inside and to see what, if any, flammable material the tubes contained. (Gardner Dep. at 87.) He was wearing leather gloves, safety glasses, his general rented uniform, a cotton t-shirt, bluejeans, underwear, socks, and steel-toed boots. ( Id. at 120.) He drilled into the tube, and once he punctured it a shot of flame came out of the hole that he and his employees described as comparable to a jet engine flame. (Warner Dep. at 44-45; Schack Dep. at 66.) Josh Warner testified that he did not see any sparks while Gardner was drilling or hear any metal grinding. (Warner Dep. at 43.) The flame burned Gardner on his face, neck, arms, and upper body. Warner and Kjorness put out the fire on ...

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