Bornsen v. Pragotrade Llc
| Citation | 804 N.W.2d 55,2011 ND 183 |
| Decision Date | 15 September 2011 |
| Docket Number | No. 20110087.,20110087. |
| Parties | Ruth BORNSEN and Nathan Bornsen, Plaintiffsv.PRAGOTRADE, LLC, Pragotrade, Inc., and Cabela's Retail, Inc., Defendants. |
| Court | United States State Supreme Court of North Dakota |
OPINION TEXT STARTS HERE
Nicholas B. Hall (argued), Grafton, N.D., for plaintiffs.Ronald H. Schneider (appeared), Schneider Law Firm, Willmar, MN, for plaintiffs.William L. Davidson (argued), Thomas John Evenson (appeared), Thomas Dice Jensen (on brief), Lind Jensen Sullivan & Peterson P.A., Minneapolis, MN, for defendants Cabela's Retail, Inc.Ariston Edward Johnson, Bismarck, N.D., amicus curiae.Larry L. Boschee, Bismarck, N.D., amicus curiae.CROTHERS, Justice.
[¶ 1] The United States District Court for the District of North Dakota certified a question to this Court whether we apply the “apparent manufacturer” doctrine to N.D.C.C. ch. 28–01.3. We answer the question “No.”
[¶ 2] Ruth and Nathan Bornsen brought a products liability action in state district court against Pragotrade, LLC, Pragotrade, Inc., and Cabela's Retail, Inc., for negligence, strict liability, and breach of warranty, alleging Ruth Bornsen injured her hand on November 21, 2007, while using a meat grinder manufactured by Pragotrade and purchased from Cabela's. The Bornsens' action was removed to the United States District Court for the District of North Dakota.
[¶ 3] Before answering the complaint, Cabela's moved to dismiss the action and submitted an affidavit under N.D.C.C. § 28–01.3–04, asserting it was not liable to the Bornsens because it was a nonmanufacturing seller of the meat grinder. Cabela's claimed Pragotrade manufactured the meat grinder. Pragotrade answered, admitting it participated in the design and distribution of the meat grinder, but denying it manufactured the grinder. The Bornsens resisted Cabela's motion to dismiss, claiming Cabela's was not a nonmanufacturing seller of the meat grinder and was not entitled to a dismissal under N.D.C.C. § 28–01.3–04.
[¶ 4] At a hearing on the motion to dismiss, the Bornsens cited Reiss v. Komatsu Am. Corp., 735 F.Supp.2d 1125 (D.N.D.2010), and argued Cabela's was an “apparent manufacturer” of the meat grinder under the Restatement of Torts and was not entitled to dismissal under N.D.C.C. § 28–01.3–04.
[¶ 5] After supplemental briefing by the parties, the United States District Court for the District of North Dakota certified the following question to this Court:
“Whether the North Dakota Supreme Court intends to adopt the ‘apparent manufacturer’ doctrine set forth in the Restatement (Second) of Torts § 400 or more recently, the Restatement (Third) of Torts: Product Liability § 14?”
The United States district court's certification stated:
“II. Statement of Facts Relevant to Question Certified.
On November 21, 2007, Ruth Bornsen's left hand was injured when it became lodged in a meat grinder her husband purchased from Cabela's Retail, Inc. Plaintiffs Ruth and Nathan Bornsen have sued Pragotrade, LLC, Pragotrade, Inc., and Cabela's, alleging claims of negligence, strict liability, and breach of warranty. The Bornsens allege a design defect due to large dimensions of the grinder opening and failure to properly warn. Cabela's has asserted that Pragotrade manufactured the grinder, and seeks dismissal under N.D. Cent.Code § 28–01.3–04. The Bornsens contend that Cabela's is not entitled to dismissal because it is an ‘apparent manufacturer’ of the product.
“III. Statement of Lack of Controlling Precedent in North Dakota.
The Court believes that this question involves interpretation of North Dakota law of some magnitude. Adopting the Restatement (Second) of Torts § 400 or the Restatement (Third) of Torts: Product Liability § 14 appears to contradict the plain language of the definition of manufacturer as set forth in N.D. Cent.Code § 28–01.3–01 and likewise appears to be inconsistent with the legislature's intent in enacting N.D. Cent.Code § 28–01.3–04. The United States District Court, District of North Dakota, finds there exists no controlling precedent from the North Dakota Supreme Court on the certified question of law. Resolution will be determinative to the proceedings currently pending in the United States District Court and will impact future product liability cases.
“IV. This Court's Opinion.
There is a decision from the District Court for the District of North Dakota that predicts the North Dakota Supreme Court would adopt the so-called apparent manufacturer doctrine. Reiss v. Komatsu America Corp., 735 F.Supp.2d 1125 (D.N.D.2010). This Court is unconvinced and is of the opinion that adoption of the apparent manufacturer doctrine is inconsistent with the law in North Dakota regarding liability for non-manufacturing sellers. The Court believes this question presents two reasonable interpretations of North Dakota law and it ought to be resolved by the North Dakota Supreme Court.”
[¶ 6] Certification of questions to this Court by federal courts and by our sister states' appellate courts is permitted under our appellate rule providing:
“(a) Power to Answer. The supreme court may answer questions of law certified to it by the United States Supreme Court, a court of appeals of the United States, a United States district court, or the highest appellate or intermediate appellate court of any other state, when requested by the certifying court and the following conditions are met:
(1) questions of law of this state are involved in any proceeding before the certifying court which may be determinative of the proceeding;
(2) it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.”
[¶ 7] Certified questions from foreign courts are appropriate when the legal issue “may be determinative of the proceeding” pending in that court. N.D.R.App.P. 47(a)(1). By contrast, certified questions from a North Dakota court to this Court must meet a more stringent requirement that the legal question “is determinative of the proceeding.” N.D.R.App.P. 47.1(a)(1)(A). The reason for the disparate treatment of certified questions has been described as follows:
McKenzie County v. Hodel, 467 N.W.2d 701, 704 (N.D.1991).
[¶ 8] Here, the certifying court made findings exceeding the requirements of N.D.R.App.P. 47(a), recognizing, “[T]his question involves interpretation of North Dakota law of some magnitude,” and stating:
The certifying court also noted:
[¶ 9] The District Court certified the question to us without expressly stating whether it has concluded Cabela's is or is not a “manufacturer” under N.D.C.C. § 28–01.3–01(1). It appears implicit in the certification of the “apparent manufacturer” question that the court determined Cabela's is not a “manufacturer” under North Dakota law. However, we are neither reviewing the federal court's decision nor deciding whether Cabela's is a manufacturer under the facts of this case. Rather, our role is limited to determining whether the federal court's certification meets the requirements of N.D.R.App.P. 47 and, if so, whether we should answer the question.
[¶ 10] The federal court certified to us its finding that our decision in this case “will be determinative,” which is more than the “may be determinative” certification required under N.D.R.App.P. 47(a)(1). The federal court also stated the “apparent manufacturer” doctrine runs counter to North Dakota's product liability law and it noted its disagreement with another court's recognition of the doctrine in Reiss v. Komatsu America Corporation. These statements underscore the lack of controlling precedent from this Court, as well as highlight the pitfall of a divided federal district if we do not answer the question. See N.D.R.App.P. 47(a)(2). These findings and expressions by the certifying court convince us that the requirements of N.D.R.App.P. 47(a) are satisfied, and we proceed to answering the certified question.
[¶ 11] The Bornsens seek a “yes” answer to the certified question, arguing North Dakota should adopt the “apparent manufacturer” doctrine. They argue the doctrine does not conflict with products liability law in N.D.C.C. ch. 28–01.3. They argue legislative changes to the definition of manufacturer since 1979 suggest apparent manufacturers are now considered manufacturers under N.D.C.C. ch. 28–01.3....
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