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Montemayor v. Sebright Products, Inc.

Supreme Court of Minnesota

July 12, 2017

Nereus Montemayor, Appellant,
v.
Sebright Products, Inc., d/b/a/ Bright Technologies, Respondent,
v.
VZ Hogs, LLP, Third Party Defendant.

         Court of Appeals Office of Appellate Courts

          Paul R. Dahlberg, Patterson Dahlberg, Rochester, Minnesota, for appellant.

          R. Stephen Tillit, Marissa K. Linden, Gislason & Hunter LLP, Minneapolis, Minnesota, for respondent.

          Charles A. Bird, Grant M. Borgen, Bird, Jacobsen & Stevens, P.C., Rochester, Minnesota, for amicus curiae Minnesota Association for Justice.

          Gregory Merz, Gray Plant Mooty, Minneapolis, Minnesota; and Deborah J. La Fetra, Sacramento, California, for amicus curiae Pacific Legal Foundation.

         SYLLABUS

         1. In a products liability case, summary judgment on the issue of whether the risk of injury was reasonably foreseeable to the manufacturer should be granted only when there is no genuine issue of material fact and the issue is not close.

         2. In this case, viewing all of the evidence including expert reports in the light most favorable to the non-moving party, summary judgment on the issue of whether the risk of injury was reasonably foreseeable to the manufacturer should have not have been granted because there was a genuine issue of material fact and the issue was close.

         Reversed and remanded; motion to strike granted.

          OPINION

          McKEIG, Justice.

         In this case, two long-established rules come together. First, in a negligence case, when the issue of reasonable foreseeability of the injury is close, it should be decided by the jury. Second, on a motion for summary judgment, all facts and the inferences arising from them must be considered in the light most favorable to the non-moving party.

         Here, appellant Nereus Montemayor was injured as he attempted to manually clear a jam from an extruder manufactured by respondent Sebright Products, Inc., while his co-worker simultaneously operated the extruder. Montemayor brought a products liability action against Sebright, alleging failure-to-warn and design-defect claims. The district court granted summary judgment to Sebright, concluding that Sebright did not owe a duty of care to Montemayor because Montemayor's injury was not reasonably foreseeable. Montemayor appealed, and the court of appeals affirmed. We conclude that, viewing the evidence and the inferences arising from it in the light most favorable to Montemayor, reasonable persons might differ as to the foreseeability of Montemayor's injury. Accordingly, this is a "close case" in which foreseeability must be resolved by the jury. We therefore reverse and remand.

         FACTS

         In August 2011, Montemayor was hired as a laborer for VZ Hogs, a family-owned company near Claremont that raises hogs and produces hog feed. To make hog feed, VZ Hogs processes discarded food using a high-density extruder manufactured by Sebright. Food containers are placed into the extruder's hopper chute. The extruder crushes the containers using a hydraulic ram. Liquids are then siphoned into large storage tanks, while empty containers are pushed into a discharge-chute area. A hydraulically powered press or "plenum" compresses the empty containers before they are forced through the discharge chute and into a separate compactor machine.

         Sebright shipped the extruder to VZ Hogs in 2008 with the control panel attached to the machine. The design of Sebright's extruder enabled users to relocate the control panel to a remote operating location; however, Sebright did not advise users regarding the safe relocation of the control panel. The extruder's control panel is equipped with a locking selector switch, requiring a key to operate the extruder. The extruder manual states that only authorized personnel should have access to the key, and the extruder should be locked to "off" when not in use.

         The manual instructs only "thoroughly trained personnel" to operate the extruder and cautions users to ensure that no one is inside the extruder before operating it. The manual also provides instructions on clearing jams that may occur inside the extruder. It suggests that users place pieces of timber inside the extruder's hopper, and then use the control panel to run the machine in manual mode.

         Finally, both the manual and warning labels on the extruder warn users to employ "lockout/tagout" procedures before entering the extruder. Occupational safety regulations require employers to establish and implement lockout/tagout procedures to ensure that workers disable all sources of energy before entering a machine. Typically, employers place lock boxes on the power outlets, and provide workers with their own padlock and key. Workers who need to enter a machine are instructed to disable the power at the source, and then place their padlock on the lock box so that no one can restore the power until the worker removes his lock. Warning labels above the extruder's discharge chute read "Follow Lockout/Tagout Procedures Before Entering, " and "Danger: Do Not Enter."

         On September 8, 2011, approximately one month after Montemayor started working for VZ Hogs, the extruder stopped functioning and appeared to be jammed with materials. Employees tried to clear the jam by pulling materials out with a pitchfork, but they were unsuccessful. The next morning, supervisor Ryan Cowell instructed Montemayor and his co-worker Anthony Burmea to clear the jam. According to Burmea, Cowell told him and Montemayor to "just clean it out" or "just unjam it" without further instruction. Cowell later told another VZ Hogs employee, Brian Gray, to try to clear the jam.

         Although VZ Hogs had a safety manual and held periodic safety trainings, Montemayor had not received training on lockout/tagout procedures or on clearing jams within the extruder. Montemayor also had not read the extruder manual. Cowell testified that he would typically put the key to the locking selector switch in his pocket to disable the power to the extruder while workers performed maintenance on it; however, the key was broken off inside the keyhole, locking the extruder in the "on" position.

         Montemayor and Burmea climbed into the compactor next to the extruder's discharge chute and attempted to clear the jam. They continued to clear materials from the discharge chute using a pitchfork. Once the materials were too far inside the discharge chute to reach them with the pitchfork, they took turns crawling inside the chute on their stomachs and pulling materials out by hand. Neither Montemayor nor Burmea saw the warning labels above the discharge chute or disabled the power to the extruder.

         While Montemayor was inside the discharge chute, Gray went to the extruder's control panel to try to clear the jam mechanically. VZ Hogs had relocated the control panel from the extruder to an elevated room with a view over the top of the extruder. From that position, Gray could see Burmea standing in the compactor next to the discharge chute, but could not see Montemayor inside the discharge chute. Gray ran the extruder in manual mode, and the plenum located inside the discharge chute crushed Montemayor's legs.

         As a result of the accident, both of Montemayor's legs had to be amputated above the knee. Minnesota's Occupational Safety and Health Division penalized VZ Hogs more than $18, 000 for violating regulations by failing to train employees on basic safety precautions, including lockout/tagout procedures, and for allowing a machine to be started with someone inside.

         Montemayor brought a products liability action against Sebright, alleging that (1) Sebright's extruder design was defective because it allowed for the relocation of the control panel without proper visibility of the discharge chute and did not include an alarm and delay upon startup; and (2) Sebright failed to adequately warn of the dangers that led to Montemayor's injury. Sebright brought indemnity and contribution claims against VZ Hogs.

         After discovery, Sebright filed a motion for summary judgment arguing, among other things, that it did not owe a duty of care to Montemayor because his injury was not reasonably foreseeable. The parties submitted as exhibits to their attorneys' affidavits the unnotarized reports of three experts: Lanny Berke, for Montemayor; Michael Holmquist, for Sebright; and Dennis Skogen, for Sebright. Neither party objected to the introduction of these reports.[1]

         All three experts recognized that VZ Hogs' negligence in failing to train and supervise its employees contributed to Montemayor's injury. Berke and Holmquist also agreed that Sebright foresaw the possibility of a worker entering the extruder to perform maintenance. The experts disputed whether Sebright should reasonably have foreseen Montemayor's injury.

         Berke opined that it was reasonably foreseeable that a worker might not disable the power to the extruder before performing maintenance. He noted that Sebright's own warnings instructed users to perform lockout/tagout procedures before entering the extruder. Further, Berke concluded that Sebright's negligence made Montemayor's accident more likely. According to Berke, Sebright failed to (1) instruct users on an adequate method of unjamming the extruder, as the "timbers" method in the manual was insufficient; (2) make the manual readily available to users; (3) provide instructions on the safe relocation of the control panel; (4) perform a proper hazard analysis, including documenting customer feedback; and (5) comply with relevant industry standards for warnings and safety features, such as alarms, set by the American National Standards Institute. Berke stated that a proper hazard analysis would have enabled Sebright to discover the risks of an untrained worker entering the extruder without performing lockout/tagout procedures, an employer positioning the control panel without proper visibility of the discharge chute, and a worker operating the extruder without knowing whether someone was inside it.

         Holmquist and Skogen contested each of Berke's conclusions regarding Sebright's alleged negligence. They opined that it was not reasonably foreseeable that Montemayor would crawl inside the compactor and then the extruder without first disabling the power, in violation of safety regulations as well as Sebright's warnings. According to Holmquist and Skogen, Sebright's lockout/tagout warnings established that Sebright performed a thorough hazard analysis, discovered the risk of a worker entering the extruder with the power connected, and took adequate measures to protect against this risk. They further concluded that Sebright's design and warnings satisfied relevant industry standards.

         The district court granted Sebright's motion for summary judgment, concluding- without mentioning the expert reports-that Sebright did not owe a duty of care to Montemayor. Although the court found that it was reasonably foreseeable that a person may physically enter the extruder or activate it from the control panel to clear a jam, it found that it was not reasonably foreseeable that two people would attempt these two methods simultaneously. The court of appeals affirmed. Montemayor v. Sebright Prods., Inc., No. A15-1188, 2016 WL 1175089, at *4 (Minn.App. Mar. 28, 2016). We granted Montemayor's petition for review on the issue of foreseeability.[2]

         ANALYSIS

         We review the grant of summary judgment de novo to determine "whether there are genuine issues of material fact and whether the district court erred in its application of the law." Stringer v. Minn. Vikings Football Club, LLC, 705 N.W.2d 746, 754 (Minn. 2005); see also Minn. R. Civ. P. 56.03. In doing so, we must not "weigh facts or determine the credibility of affidavits and other evidence." Stringer, 705 N.W.2d at 754. "[S]ummary judgment is a blunt instrument" that is "inappropriate when reasonable persons might draw different conclusions from the evidence presented." Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367');">749 N.W.2d 367, 371 (Minn. 2008) (citations and internal quotation marks omitted). Thus, the moving party has "the burden of showing an absence of factual issues, " and "the nonmoving party has the benefit of that view of the evidence most favorable to him." Lowry Hill Props., Inc. v. Ashbach Constr. Co., 194 N.W.2d 767, 769 (Minn. 1971). "All doubts and factual inferences must be resolved against the moving party." Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981). "Expert testimony . . . at the summary judgment stage may create genuine issues of fact." Anderson v. Dep't of Nat. Res., 693 N.W.2d 181, 191 (Minn. 2005).

         I.

         Failure-to-warn and design-defect claims are separate causes of action, but each requires the manufacturer to owe a duty of care to the injured party. Huber v. Niagara Mach. & Tool Works, 430 N.W.2d 465, 467 (Minn. 1988) (failure to warn); Bilotta v. Kelley Co., 346 N.W.2d 616');">346 N.W.2d 616, 624 (Minn. 1984) (design defect); see also Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011) (describing the issue of duty as a "threshold question" to be determined before liability is considered). A manufacturer has a duty to design its product to avoid an unreasonable risk of harm when the product is used as intended or misused in a reasonably foreseeable manner. Bilotta, 346 N.W.2d at 621. Further, a manufacturer has a duty to warn if it "should anticipate that an unwarned operator might use the machine in a ...


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