Gorath v. Rockwell Intern., Inc.

• Decision Date: 30 May 1989
• Docket Number: C8-88-2354,Nos. C6-88-2322,s. C6-88-2322
• Citation: 441 N.W.2d 128
• Court: Minnesota Court of Appeals
• Parties: Prod.Liab.Rep. (CCH) P 12,151 Gregory P. GORATH, Respondent (C6-88-2322) Appellant (C8-88-2354), v. ROCKWELL INTERNATIONAL, INC., et al., Defendants and Third-Party Plaintiffs, Appellants (C6-88-2322) Respondents (C8-88-2354). Richard LEWIN, d/b/a Printing Equipment Company and Printing Equipment and Supplies, Respondent (C8-88-2354), v. DAVIES PRINTING COMPANY, Third-Party Defendant, Respondent.

Page 128

441 N.W.2d 128

Prod.Liab.Rep. (CCH) P 12,151

Gregory P. GORATH, Respondent (C6-88-2322) Appellant (C8-88-2354), v. ROCKWELL INTERNATIONAL, INC., et al., Defendants and Third-Party Plaintiffs, Appellants (C6-88-2322)

Respondents (C8-88-2354).

Richard LEWIN, d/b/a Printing Equipment Company and Printing

Equipment and Supplies, Respondent (C8-88-2354), v. DAVIES PRINTING COMPANY, Third-Party Defendant, Respondent.

Nos. C6-88-2322, C8-88-2354.

Court of Appeals of Minnesota.

May 30, 1989.

Review Denied July 27, 1989.

Syllabus by the Court

The seller of a used paper cutter is not liable in tort or contract for injuries sustained nine years after a product was sold where there is no competent evidence that the product was in bad repair at the time of sale, or that the seller knew or should have known that the product was defectively designed.

Charles A. Bird, Bird & Jacobson, Jerome W. Perry, Jerome W. Perry Law Offices, Rochester, for Gregory P. Gorath.

Thomas M. Countryman, Eugene J. Flick, Jardine, Logan & O'Brien, St. Paul, for Rockwell International, Inc., et al., defendants and third-party plaintiffs.

James R. Carlson, Muir, Heuel, Carlson & Spelhaug, Rochester, for Richard Lewin, d/b/a Printing Equipment Company and Printing Equipment and Supplies.

James H. Malecki, Ruth Ann Webster, Gislason, Dosland, Hunter & Malecki, New Ulm, for Davies Printing Company, third-party defendant.

Heard, considered and decided by SHORT, P.J., and RANDALL and KALITOWSKI, JJ., concur.

OPINION

SHORT, Judge.

Gregory P. Gorath brought a products liability action against the manufacturer and seller of a used paper cutter for injuries he sustained while operating the machine. After discovery was completed, the trial court entered summary judgment dismissing the seller from the case. On appeal, Gorath and the manufacturer argue that the trial court erred in granting summary judgment because there are fact issues in dispute regarding appellants' claims against the seller. We disagree and affirm.

FACTS

On April 21, 1981, Gorath's hand was amputated while he was feeding paper into a Lawson 38-39 inch guillotine paper cutter at his place of employment. Gorath was knowledgeable about and had worked on the paper cutter before the accident. In fact, Gorath had maintenance responsibilities for the machine. On April 21, Gorath was placing some paper underneath the blade of the paper cutter when the blade spontaneously spun around and cut off his hand. Gorath claims he did not touch either of the two hand levers which activate the blade. Although surgeons were able to reattach his hand, Gorath suffered a 40 percent disability to the hand as a result of the accident, and received workers' compensation payments.

The paper cutter was manufactured and originally sold in 1947. The original owner used the machine for over twenty years without any incident. On May 1, 1972, the seller sold the used paper cutter with a thirty day warranty to Gorath's employer. Thereafter, the machine was in use for over nine years before the accident at issue.

The primary safety device for the paper cutter is a two-handed start mechanism. The right lever actually moves the blade, and the left lever is merely a safety feature insuring that the operator cannot operate the blade with one hand while the other hand is underneath the blade. It is undisputed that three component parts of the safety lever are not those originally manufactured.

Gorath's experts attribute the accident to the product's defective design rather than to the replaced parts. By contrast, the manufacturer's expert testified that the replaced parts (a) could have prevented the effective use of the left-hand safety lever, and (b) may have contributed to the accident by preventing the safety lever from returning to its proper position. The seller denies replacing any of the component parts in question. After the accident occurred, Gorath's employer destroyed the paper cutter.

ISSUES

I. Did the trial court properly grant summary judgment to the seller on Gorath's strict liability claim?

II. Did the trial court properly grant summary judgment to the seller on Gorath's negligence claim?

III. Did the trial court properly grant summary judgment to the seller on Gorath's breach of implied warranty claim?

ANALYSIS

Summary judgment is appropriate where the record shows that there is no genuine issue as to any material fact, and it is clear that the moving party is entitled to judgment as a matter of law. Minn.R.Civ.P. 56.03. On review of a summary judgment motion, this court must determine whether there are any genuine issues of material fact, and whether the trial court erred in applying the law. Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn.1979). The evidence must be viewed in the light most favorable to Gorath, the nonmoving party. See, e.g., Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn.1982). This court does not resolve or decide issues of fact, but only determines whether there are issues of fact to be tried. Nord v. Herreid, 305 N.W.2d 337, 339 (Minn.1981). When questions of law are raised, this court is free to conduct an independent review of the law. Service Oil, Inc. v. Triplett, 419 N.W.2d 502, 503 (Minn.Ct.App.1988), pet. for rev. denied (Minn. April 20, 1988) (citing Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 483 (Minn.1985).

The party moving for summary judgment under Rule 56 must demonstrate that no genuine issue of material fact exists. To defeat a summary judgment motion, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial. Thiele v. Stich, 425 N.W.2d 580, 583 (Minn.1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). See Hunt v. IBM Mid America Employees Federal Credit Union, 384 N.W.2d 853, 855 (Minn.1986); Erickson v. General United Life Insurance Co., 256 N.W.2d 255, 259 (Minn.1977).

I.

In certain circumstances specified by statute, a nonmanufacturing defendant may be dismissed from a products liability action based on strict liability. Minn.Stat. Sec. 544.41 (1988); see also Steenson, The Anatomy of Products Liability in Minnesota: Principles of Loss Allocation, 6 Wm. Mitchell L.Rev. 243, 353 (1980). Minn.Stat. Sec. 544.41 provides in part:

* * * * * *

Subd. 2. Once the plaintiff has filed a complaint against a manufacturer and the manufacturer has or is required to have answered or otherwise pleaded, the court shall order the dismissal of a strict liability in tort claim against the certifying defendant [nonmanufacturer], provided the certifying defendant is not within the categories set forth in subdivision 3.

* * * * * *

Subd. 3. A court shall not enter a dismissal order relative to any certifying defendant even though full compliance with subdivision 1 has been made where the plaintiff can show one of the following:

(a) That the defendant has exercised some significant control over the design or manufacture of the product, or has provided instructions or warnings to the manufacturer relative to the alleged defect in the product which caused the injury, death or damage;

(b) That the defendant had actual knowledge of the defect in the product which caused the injury, death or damage; or

(c) That the defendant created the defect in the product which caused the injury, death or damage.

Because the correct identity of the manufacturer of the paper cutter is known, the seller is not subject to an action based on strict liability in tort unless one of the statutory exceptions applies.

Appellants argue that the seller in this case exercised significant control over the product due to his alteration of the paper cutter. See Minn.Stat. Sec. 544.41, subd. 3(a). The seller, however, has denied that he altered the product in any way, and appellants have not presented either direct or circumstantial evidence to the contrary. See, e.g., Glass v. Allis-Chalmers Corp., 789 F.2d 612, 613 (8th Cir.1986) (plaintiff must prove that product reached user or consumer without substantial change in the condition in which it was sold). The mere fact that the product may have been altered at some point in its 34-year life does not in itself constitute circumstantial evidence that the seller made those modifications. See id. at 614; see also Rochester Wood Specialties, Inc. v. Rions, 286 Minn. 503, 508-09, 176 N.W.2d 548, 552 (1970).

Appellants make a related argument under Minn.Stat. Sec. 544.41, subd. 3(c) that there is a factual dispute as to whether the original defect was due to the manufacturer's design or to the seller's modification. This argument also fails because appellants (a) have not presented evidence tending to show that the seller made any modifications to the product; and (b) have not established a reasonable inference that any modification allegedly made by the seller caused the accident. See, e.g., Stewart v. Ford Motor Co., 553 F.2d 130, 137 (D.C.Cir.1977); see also Church v. Martin-Baker Aircraft Co., 643 F.Supp. 499, 505 (E.D.Mo.1986).

Having failed to show that the seller created any defect that allegedly caused the accident, appellants also have not presented evidence contradicting the seller's testimony that he had no actual knowledge of any defect in the paper cutter. See Minn.Stat. Sec. 544.41, subd. 3(b). Appellants have failed to show that any of the statutory exceptions apply in this case. Appellants thus have failed to provide evidence sufficient to survive a summary judgment motion.

Appellants next argue that the entire statute is inapplicable to this case because the seller is also a "manufacturer" within the meaning of the statute by virtue of his alleged alteration of the product. According to appellants, the statute presumes a seller whose function is limited to that of a passive middleman in the sales transaction. The statute, however, clearly contemplates the possibility of a seller who altered the...