of Appeals Office of Appellate Courts
R. Dahlberg, Patterson Dahlberg, Rochester, Minnesota, for
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.
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.
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.
and remanded; motion to strike granted.
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.
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.
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.
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.
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.
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."
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
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.
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.
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.
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
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.
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.
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
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
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.
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.
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).
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 ...