Citations
- 816 F. Supp. 2d 631
Full opinion text
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
MARK W. BENNETT, District Judge.
TABLE OF CONTENTS
I.INTRODUCTION..........................................................637
A. Factual Background...................................................637
B. Procedural Background................................................638
II. LEGAL ANALYSIS........................................................640
A. Standards For Summary Judgment .....................................640
B. Negligence/Strict Liability Claims ......................................642
1. Immunity of SMA to product claims .................................643
a. Arguments of the parties........................................643
b. Analysis.......................................................644
i. The applicable statute .....................................644
ii. The pertinent “products”...................................646
Hi. Was SMA an “assembler”?.................................647
iv. Summary as to “product defect” claims......................650
v. Remaining negligence claims against SMA..................650
2. Warning or instruction defect claims against Baldor..................651
a. Arguments of the parties........................................651
b. Analysis.......................................................653
3. Design defect claims against Baldor.................................655
a. Arguments of the parties........................................655
b. Analysis.......................................................657
4. Manufacturing defect claims against Baldor and Schlagel.............662
a. Arguments of the parties........................................662
b. Analysis.......................................................662
5. Installation defects and general negligence claims against
Schlagel.........................................................664
a. Arguments of the parties........................................664
b. Analysis.......................................................664
C. Breach Of Implied Warranties..........................................666
1. Warranty of merchantability........................................666
a. Immunity of SMA..............................................666
b. Timeliness of the claim against Schlagel and Baldor..............666
i. Arguments of the parties...................................667
ii. Analysis..................................................667
2. Warranty of fitness for a particular purpose..........................670
a. The claim against SMA.........................................670
i. Arguments of the parties...................................670
ii. Analysis..................................................670
b. Timeliness of the claim against Schlagel and Baldor..............672
i. Arguments of the parties...................................672
ii. Analysis..................................................672
3. Warranty of workmanlike manner...................................674
a. The claim against SMA.........................................674
i. Arguments of the parties...................................674
ii. Analysis..................................................675
b. The claim against Schlagel and Baldor...........................677
D. Breach Of Express Warranties................................... 677
1. The claim against SMA.............................................677
a. Arguments of the parties........................................677
b. Analysis.......................................................678
2. The claims against Schlagel and Baldor.............................681
a. Arguments of the parties........................................681
i. The arguments as to Schlagel...............................681
ii. The arguments as to Baldor................................681
b. Analysis.......................................................682
i. The effect of § 554.2318 ..................................... 682
ii. Schlagel’s other grounds for summary judgment..............685
Hi. Baldor’s other grounds for summary judgment...............685
E. Breach Of Contract....................................................686
1. Arguments of the parties............................................686
2. Analysis..........................................:................688
III. CONCLUSION............................................................691
This diversity action, involving claims of products liability, negligence, and breach of warranties, arises from an explosion and fire on or about July 9, 2008, at a grain elevator in Alton, Iowa. The plaintiff insurance company alleges that the explosion was caused by an overheated or hot pillow block bearing manufactured by one defendant, and selected, specified, and installed on an elevator leg by two others, the general contractor that built the grain elevator and the subcontractor that designed and manufactured the elevator legs that moved the grain around the elevator. Each of the defendants has moved for summary judgment on some or all of the claims against it.
I. INTRODUCTION
A. Factual Background
I will not attempt here an exhaustive dissertation on the undisputed and disputed facts in this case. Rather, I will set forth sufficient of the facts, both undisputed and disputed, to put in context the parties’ arguments concerning the defendants’ motions for summary judgment. Unless expressly indicated otherwise, the parties agree that the facts stated are undisputed.
At the center of this litigation is the Midwest Farmers Cooperative grain elevator in Alton, Iowa (the Alton grain elevator), which was constructed in 1997-1998. The Alton grain elevator was equipped with multiple “legs,” or “bucket elevators,” each of which was essentially an enclosed conveyor that carried grain from the “pit,” where farmers dump grain, to the top of the elevator leg, using cups attached to a conveyor belt. When a cup on the convey- or reached the top of the leg, the grain was dumped out and fell by gravity through a distributor, which directed the grain to one of a number of different silos. Near the top of a grain elevator leg is a “head pulley,” which is the shaft, motor, drive, gearboxes, bearings, and other equipment that help to power the movement of the conveyor and also secure the top of the conveyor to the greater elevator structure. The shaft in the head pulley at issue here (on the south receiving leg of the Alton grain elevator) was secured to the structure with two Dodge brand “non-expansion” tapered anti-friction (TAF) roller pillow block bearings. In a “non-expansion” bearing, the internal part of the bearing cannot move with the shaft relative to the outer housing. One such bearing was on the “drive side,” and the other was on the “non-drive side” of the conveyor and shaft. The Dodge TAF bearing at issue is a multi-purpose bearing that can be used for any number of purposes in any number of different industries or applications.
On the afternoon of July 9, 2008, a farmer was unloading grain at the Alton grain elevator. He dumped his grain into the “pit,” and it was conveyed to the top of the grain elevator by the south leg. An explosion and fire occurred shortly after the farmer started dumping his grain. A series of other explosions and fires continued at the Alton grain elevator for a few days after July 9, 2008. The plaintiffs experts have opined that the origin of the ignition of the explosion is at and/or in the head section of the south receiving leg and that the non-drive bearing on that leg became white hot. There is some dispute about whether the overheating of the bearing was because of inadequate lubrication, exposure of the uncovered bearing to weather and contaminants, corrosion, or fatigue, and whether the explosion and fire could have been avoided by adequate dust control or hazard monitoring systems or other measures. In other words, the parties dispute whether the bearing was the cause of the initial explosion and fire or was damaged by the explosion and fire.
The parties in this action are plaintiff Nationwide Agribusiness Insurance Company (Nationwide), as the insurer for Midwest Farmers Cooperative’s Alton grain elevator; defendant SMA Elevator Construction Company (SMA), which was the general contractor for the construction of the Alton grain elevator; defendant Schlagel, Inc. (Schlagel), which was the subcontractor for the grain elevator responsible for designing and manufacturing the grain handling equipment, including the elevator legs; and defendant Baldor Electric Company (Baldor), which is the successor by merger to Reliance Electric Company, and the manufacturer and seller of the Dodge brand bearing at issue here. The role of each of these defendants requires a little more discussion.
SMA was the general “design-build” contractor for the Alton grain elevator. Midwest Farmers Cooperative contracted with SMA to build the Alton grain elevator as a “turnkey operation.” SMA performed the construction of the Alton grain elevator, including installation of equipment supplied by subcontractors. SMA contends that it relied on Schlagel for the design and selection of the elevator leg at issue, and installed the leg supplied by Schlagel, but Nationwide denies this, asserting that SMA acted as a designer, manufacturer, and installer of “the project.” See, e.g., Nationwide’s Response to Defendant SMA’s Statement Of Undisputed Material Facts In Support Of Motion For Summary Judgment (docket no. 161— 1), ¶ 5. Nationwide asserts that “Schlagel products and services were part of the SMA design and installation and approved by SMA.” Id. Nationwide alleges that SMA engaged in “assembly” of the leg itself to the extent that SMA placed the cups on the belts and shimmed the bearings, see Nationwide’s Combined Statement Of Facts In Support Of Its Resistance To All Defendants’ Motions For Summary Judgment (docket no. 161-2), ¶ 196, which the defendants admit, although they assert that “nearly the entire remainder of the leg came preassembled from Sehlagel.” See Defendants’ Joint Objections And Responses To Plaintiffs Statements Of Additional Facts (docket no. 181-1), ¶ 196.
Sehlagel, as a subcontractor for SMA, designed and manufactured certain equipment, including the elevator legs, for the Alton grain elevator and sold equipment to SMA for use in the design, construction, and installation of the elevator. Sehlagel asserts that it is a manufacturer of grain storage and handling products, but does not sell directly to end users or perform any installation services. Nationwide asserts, however, that Sehlagel did have direct contact -with and made direct sales to Midwest Farmers Cooperative. The parties dispute what installation or operations materials were provided by Sehlagel to SMA for the elevator legs for the Alton grain elevator.
As of 1997, Baldor designed and manufactured approximately 3.5 million bearings per year of different types, including the type at issue here. As of 1997 and through the present, Baldor did not sell bearings, including the type at issue here, to an “end user”; instead, Baldor sold Dodge bearings through licensed distributors (such as GEECO) that stocked and sold Dodge bearings and other products. In fact, Baldor manufactured the bearing at issue here in 1997 and sold it to GEE-CO. Baldor shipped bearings with an attached instruction manual, which included lubrication instructions and other information. Baldor marketed its Dodge bearings by distributing to customers a “Dodge Bearing Engineering Catalog,” which listed the different types of Dodge bearings and accessory products available for the various types of bearings. In 1997 and 1998, Baldor offered a Dodge end closure (also called an “end cap” or “end cover”) as an accessory for the type of bearing at issue here. Such an end cap is more or less a cover that fits over the end of a shaft and attaches to one side of a bearing to cover that side. As of 1996, Baldor also sold as a Dodge auxiliary or accessory product an extra seal known as an “E-tect seal,” which is an extra rubber seal that can be added to a Dodge bearing, such as the one at issue here, to provide an additional seal and additional layer of protection from outside contaminants. The end cap and E-tect seal must be added to the bearing after installation. The bearing at issue here had neither an end cap nor an E-tect seal as installed on the Alton grain elevator, although Nationwide contends that it would have been possible to install both on that bearing. Indeed, Nationwide asserts that the bearing, end cap, and Etect seal should have been sold as a unit.
B. Procedural Background
Nationwide originally filed this action, pursuant to its subrogation rights as Midwest Farmers Cooperative’s insurer, on or about November 24, 2008, in the Iowa District Court for Sioux County, against defendants SMA, Sehlagel, Baldor, and SM Enterprises, Inc. See docket nos. 2 and 5. On January 9, 2009, Baldor removed this action to this court, based on this court’s diversity jurisdiction under 28 U.S.C. § 1332(a). See Notice Of Removal (docket no. 2). The various defendants all eventually answered Nationwide’s original state court petition or subsequent amendments. S-M Enterprises and another defendant named in a subsequent amendment, GEECO, eventually settled with Nationwide and are no longer part of this lawsuit.
The pertinent pleading at this point in the proceedings is Nationwide’s Fourth Amended Complaint (docket no. 180), filed March 21, 2011. In that version of the Complaint, Nationwide alleged that it insured Midwest Farmers Cooperative to a certain extent for losses caused by the explosion or fire at the Alton grain elevator and that it has made certain payments to Midwest Farmers Cooperative and/or on behalf of Midwest Farmers Cooperative as a result of the explosion. Nationwide also alleges that Midwest Farmers Cooperative has assigned all of its claims to Nationwide to the extent that Nationwide has paid for the loss to Midwest Farmers Cooperative. Nationwide alleges that it is, therefore, the proper real party in interest. Nationwide asserts claims of negligence/strict liability, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, breach of implied warranty of workmanlike manner, and breach of expressed warranties against each defendant, and a claim of breach of contract against SMA. Baldor filed an Answer (docket no. 131) on April 14, 2011; SMA filed an Answer (docket no. 132) on April 29, 2011; and Schlagel filed an Answer (docket no. 143) on May 11, 2011. Pursuant to a Trial Management Order (docket no. 93), filed April 20, 2010, after the filing of prior amendments to the Complaint, a jury trial was set to begin on September 26, 2011. However, that trial date had to be moved to accommodate my busy criminal trial calendar, so the trial was reset to begin on May 7, 2012, by Order (docket no. 222) filed on August 25, 2011.
On May 2, 2011, each of the defendants filed a separate Motion For Summary Judgment on some or all of the claims against it. See docket nos. 133, 137, 139. Nationwide filed separate Resistances (docket no. 159, 160, 161) to the defendants’ motions on June 8, 2011, with separate briefs and separate responses to the defendants’ separate statements of fact, but a single Combined Statement Of Facts In Support Of Its Resistance To All Defendants’ Motions For Summary Judgment (docket no. 161-2). On July 5, 2011, the defendants filed a Joint Objection And Responses To Plaintiffs Statements Of Additional Fact (docket no. 178). The defendants then filed separate Reply Briefs (docket nos. 176, 181, and 183) in support of their Motions For Summary Judgment on July 5 and 6, 2011.
The defendants all requested oral arguments on their Motions For Summary Judgment. However, my busy court schedule, including a two-week stint as a visiting judge in the District of the Northern Mariana Islands, has not allowed for such oral arguments.
II. LEGAL ANALYSIS
A. Standards For Summary Judgment
Motions for summary judgment essentially “define disputed facts and issues and ... dispose of unmeritorious claims [or defenses].” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 585, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation marks and citation omitted); see Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses ____”). Summary judgment is only appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c) (emphasis added); see Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir.2005) (“Summary judgment is appropriate if viewing the record in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”).
A fact is material when it “ ‘might affect the outcome of the suit under the governing law.’ ” Johnson v. Crooks, 326 F.3d 995, 1005 (8th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Thus, “the substantive law will identify which facts are material.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. An issue of material fact is genuine if it has a real basis in the record, Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), or when “ ‘a reasonable jury could return a verdict for the nonmoving party1 on the question,” Woods, 409 F.3d at 990 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see Diesel Machinery, Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir.2005) (stating genuineness depends on “whether a reasonable jury could return a verdict for the nonmoving party based on the evidence”).
Procedurally, the moving party bears “the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue,” Hartnagel, 953 F.2d at 395 (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548), and demonstrating that it is entitled to judgment according to law. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548 (“[T]he motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.”). Once the moving party has successfully carried its burden under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the pleadings and by depositions, affidavits, or otherwise, designate “specific facts showing that there is a genuine issue for trial.” Fed. R.Civ.P. 56(e); Mosley v. City of North-woods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (“The nonmoving party may not ‘rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.’ ” (quoting Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995))).
As the Eighth Circuit Court of Appeals has explained,
“On a motion for summary judgment, ‘facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts.’ ” Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) quoting Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (internal quotations omitted). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts,” and must come forward with “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “ ‘Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.’ ” Ricci, 129 S.Ct. at 2677, quoting Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042-43 (2011) (en banc).
I will apply these standards to the defendants’ Motions for Summary Judgment. In doing so, I will consider the kinds of claims, in turn, rather than defendant by defendant.
B. NegligencelStrict Liability Claims
Nationwide has asserted what it calls “negligence/strict liability” claims against SMA (in Division I of the Fourth Amended Complaint) and Schlagel (in Division VII) and Baldor (in Division XII). It appears that the majority, but not necessarily all, of these claims are “product liability” claims. Although the precise allegations of conduct giving rise to liability for negligence or strict liability vary somewhat with the defendant against whom they are asserted, they fall into the same three categories for all three of the defendants: product warning and instruction defects, product design defects, and product manufacturing defects. Nationwide also alleges “installation defect — general negligence” claims against SMA and Schlagel, but not Baldor. The grounds for summary judgment on these claims are best addressed topically, rather than defendant by defendant.
1. Immunity of SMA to product claims
a. Arguments of the parties
Only SMA asserts that it is immune to liability or damages on Nationwide’s product defect claims against it, set out in Division I of Nationwide’s latest Complaint, pursuant to Iowa Code § 613.18. More specifically, SMA argues that it is immune to Nationwide’s product defect claims, because §§ 613.18(l)(a) and (b), together, render non-assemblers, non-designers, and non-manufacturers who are wholesalers, retailers, distributors, or sellers of products “[ijmmune” from or “[n]ot liable for damages” on product manufacturing, design, and warning defect claims. SMA argues that both parts of § 613.18(1) remain viable after the Iowa Supreme Court adopted the Restatement (Third) of Torts: Products Liability (Restatement (Third)) §§ 1 and 2, which essentially eliminated artificial distinctions between “negligence” and “strict liability” for product defect claims. Here, SMA argues that it is undisputed that it did not manufacture, design, or assemble the specific products alleged to be defective — indeed, it was not the manufacturer at all, but a general contractor. More specifically, SMA argues that it did not manufacture, design, or assemble the bearing alleged to have overheated, because Baldor did; it did not manufacture, design, or assemble the portion of the south leg alleged to be defective, because Schlagel did; and it did not manufacture, design, or assemble the hazard monitoring system, because former defendant S & M did. SMA also argues that Nationwide has not proved that SMA manufactured, designed, or assembled the bearing, the elevator leg, or the hazard monitoring system. Furthermore, SMA argues that the § 613.18(2) “assembler” exception does not apply, because Nationwide cannot prove that SMA’s assembly activities caused Nationwide’s damages, and Nationwide has not even alleged that they did.
Nationwide does not dispute the continued viability of § 613.18, but does assert that § 613.18(1) provides no protection to SMA, because SMA did design and assemble the entire grain elevator. Nationwide argues that, in Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 826 (Iowa 2000), the Iowa Supreme Court made clear that liability would attach to assemblers incorporating defective component parts into their finished product. Here, Nationwide argues that SMA admits that the Schlagel legs, of which the bearings were a part, were a component of the grain elevator, that SMA made decisions about safety and monitoring equipment to include, and that SMA failed to advise Midwest Farmers Cooperative how to operate and maintain the grain elevator safely and properly. As an alternative — and contradictory — approach, Nationwide argues that § 613.18 does not apply, because the grain elevator was not a “product.” Changing theories yet again, Nationwide also argues that SMA’s “assembly” activities (apparently in relation to the entire grain elevator) did cause Nationwide’s damages, because SMA knew that its components were defective, intentionally specified defective components, and observed the defects before, during, and after it constructed the elevator. Nationwide argues that its experts have opined that the various safety defects in the elevator were the cause of the explosion or the damages from the explosion.
In reply, SMA argues that Nationwide has not alleged that the elevator was defective, only that certain parts incorporated into the elevator were defective. SMA argues that it takes a tortured reading of Weyerhaeuser to transfer liability of component part manufacturers to a general contractor, such as SMA. SMA argues that each of the component parts here had commercial value independent of and detached from the entire elevator. SMA also argues that Weyerhaeuser did not analyze § 613.18(2), but that provision would only hold assemblers liable where the assembling process — not just incorporation of a defective product in the course of assembly — has some causal connection to the alleged defect.
b. Analysis
i. The applicable statute. The statute on which SMA’s immunity argument relies provides, in pertinent part, as follows:
613.18. Limitation on products liability of non-manufacturers
1. A person who is not the assembler, designer, or manufacturer, and who wholesales, retails, distributes, or otherwise sells a product is:
a. Immune from any suit based upon strict liability in tort or breach of implied warranty of merchantability which arises solely from an alleged defect in the original design or manufacture of the product. b. Not liable for damages based upon strict liability in tort or breach of implied warranty of merchantability for the product upon proof that the manufacturer is subject to the jurisdiction of the courts of this state and has not been judicially declared insolvent.
2. A person who is a retailer of a product and who assembles a product, such assembly having no causal relationship to the injury from which the claim arises, is not liable for damages based upon strict liability in tort or breach of implied warranty of merchantability which arises from an alleged defect in the original design or manufacture of the product upon proof that the manufacturer is subject to the jurisdiction of the courts of this state and has not been judicially declared insolvent.
Iowa Code § 613.18(l)-(2) (emphasis added).
As the Iowa Supreme Court observed almost two decades ago, “the statute is not a model of clarity.” Bingham v. Marshall & Huschart Machinery Co., Inc., 485 N.W.2d 78, 80 (Iowa 1992). Nevertheless, as the Iowa Supreme Court has also explained,
The statute is divided into two subsections. Subsection 613.18(1) pertains to wholesalers, retailers, distributors and other sellers who are not the manufacturer or designer of the product and who do not assemble the product. Subsection 613.18(2) pertains to retailers who do assemble the products they sell.
Subsection 613.18(1) is itself divided into two paragraphs. Paragraph 613.18(l)(a) provides for immunity from suit when the potential claim arises solely from defects in the original design or manufacture of the product. Paragraph 613.18(l)(b) limits strict liability and implied warranty claims when the claims do not arise solely from an alleged defeet in the original design or manufacture of the product. Examples of suits arising under paragraph 613.18(l)(b) include suits under strict liability for failure to warn about the dangers of a product. See, e.g., Cooley v. Quick Supply Co., 221 N.W.2d 763, 768-69 (Iowa 1974) (citing Restatement § 402A); LaCoste v. Ford Motor Co., 322 N.W.2d 898, 900 (Iowa App.1982); Prosser & Keeton on Torts § 99, at 695 (5th ed. 1984); 63 Am.Jur.2d Products Liability § 545 (1984).
Bingham, 485 N.W.2d at 80.
If the defendant sold, but did not assemble, the product, subsection 613.18(1) may be applicable, but “subsection 613.18(2) is inapplicable.” Id. If the defendant did not assemble (or design or manufacture) the product, and the claim arises “solely from an alleged defect in the original design or manufacture of the product,” then subsection 613.18(l)(a) is applicable, and provides the wholesaler, retailer, distributor, or seller with immunity; and if the defendant did not assemble (or manufacture or design) the product, subsection 613.18(l)(b) “limits strict liability and implied warranty claims when the claims do not arise solely from an alleged defect in the original design or manufacture of the products,” such as “suits under strict liability for failure to warn about the dangers of a product.” Id. The immunity provided by subsection 613.18(l)(a) is not dependent upon proof that the manufacturer of the product is subject to the jurisdiction of the courts of this state and has not been declared judicially insolvent, as is required in subsections 613.18(l)(b) and (2). Id. On the other hand, subsection 613.18(2) is applicable if the defendant did assemble the product, but it bars liability for damages if the assembly had “no causal relationship to the injury from which the claim arises.” Iowa Code § 613.18(2); Bingham, 485 N.W.2d at 80.
The statutory protection from product defect claims in Iowa Code § 613.18(l)(a) expressly applies only to claims “which arise[ ] solely from an alleged defect in the original design or manufacture of the products,” and the protection from product defect claims in Iowa Code § 613.18(l)(b) applies to other claims “for the product,” which the Iowa Supreme Court has explained includes “failure to warn” claims. Bingham, 485 N.W.2d at 80. “Installation defect” claims do not appear to be precluded by § 613.18(1). Any statutory protection from “installation defect” claims, thus, must come from Iowa Code § 613.18(2). Indeed, it appears that the possibility of liability for “assemblers” under Iowa Code § 613.18(2) specifically acknowledges the possibility of liability for “defective installation,” at least where the statute contains no specific definition of “assembly” or “assembler” that would exclude “installation” or “installer.” Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 824 (Iowa 2000) (noting that the statute contains no definition of “assemble,” and concluding “the dictionary meanings of ‘assemble’ and ‘assembler’ contemplate a person or thing that brings together [two or more] things”); and compare Merriam Webster’s Collegiate Dictionary 606 (10th ed. 1995) (defining “install,” in the pertinent sense, as “to set up for use or service”), with id. at 68 (also defining “assemble” as “to fit together the parts of’). SMA’s statutory protection from certain “product defect” claims pursuant to § 613.18(2), where SMA allegedly “assembled,” i.e., “installed,” the products applies only if “such assembly ha[d] no causal relationship to the injury from which the claim arises.” Iowa Code § 613.18(2).
There are at least two preliminary questions that control the applicability of any portion of § 613.18 here. The first question is, what is a “product”? This question is relevant, because all of the provisions of § 613.18 at issue here relate to a “product.” See Iowa Code § 613.18(1) and (2). Furthermore, the parties here dispute whether the “products” in question are some or all of the following: the entire grain elevator, the elevator leg, the hazard monitoring system, or the bearing. The second question is, who is an “assembler”? This question is relevant here, because whether or not a party is an “assembler” is determinative of what subsection of § 613.18 is applicable. See Bingham, 485 N.W.2d at 80 (subsection 613.18(1) may apply if the party was not the manufacturer, designer, or assembler, and subsection 613.18(2) may apply if the party was an assembler).
ii. The pertinent “products.” In Kolarik v. Cory International Corp., 721 N.W.2d 159 (Iowa 2006), the Iowa Supreme Court considered the meaning of “product” in Iowa Code § 613.18. The Iowa Supreme Court relied on the following legal dictionary definition of “product”: “ ‘Something that is distributed commercially for use or consumption and that is usually (1) tangible personal property, (2) the result of fabrication or processing, and (3) an item that has passed through a chain of commercial distribution before ultimate use or consumption.’ ” Kolarik, 721 N.W.2d at 163 (quoting Black’s Law Dictionary 1225 (7th ed. 1999)). The court then opined that the statute “is aimed at situations giving rise to product liability actions,” which it found included actions based on food products and other agricultural products. Id.
Neither a grain elevator, elevator leg, hazard monitoring system, or bearing is an agricultural or food product, but that is not the extent of possible “products” within the meaning of the statute. What is determinative here is that the Alton grain elevator clearly does not fit the definition applied by the Iowa Supreme Court in Kolarik, because a grain elevator is not distributed commercially for use or consumption, is not tangible personal property, and has not passed through a chain of commercial distribution before ultimate use or consumption. The Alton grain elevator is a building erected upon and affixed to real property — i.e., it is “real property.” See, e.g., Black’s Law Dictionary 1218 (6th ed. 1990) (defining “real property” as “Land, and generally whatever is erected or growing upon or affixed to land”). In contrast, an elevator leg, a hazard monitoring system, and a bearing not only meet these requirements but also are the result of fabrication or processing. See Kolarik, 721 N.W.2d at 163. Thus, § 613.18 applies, if at all, only to SMA’s conduct as to the elevator leg, hazard monitoring system, and the bearing, but not on its conduct as to the grain elevator in its entirety.
Perhaps just as importantly, none of Nationwide’s product liability claims can be asserted against SMA on the basis that the Alton grain elevator in its entirety is the pertinent “product.” As the Iowa Supreme Court noted in Kolarik, § 613.18 “is aimed at situations giving rise to product liability actions.” Kolarik, 721 N.W.2d at 163. Thus, if something does not meet the definition of “product” within the meaning of § 613.18, then it also is not a “product” that would give rise to a products liability action. Cf. id. Nationwide has not cited any Iowa product liability case in which the purported “product” was a grain elevator that was real property, like the Alton grain elevator, and I have found none. Unlike the Alton grain elevator, the “grain elevators” at issue in the product liability cases of Fell v. Kewanee Farm Equipment Co., 457 N.W.2d 911 (Iowa 1990), and Flattery v. Goode, 240 Iowa 973, 38 N.W.2d 668 (Iowa 1949), were mobile pieces of equipment — ie., “tangible personal property,” resulting from fabrication or processing, distributed commercially for use or consumption, that passed through a chain of commercial distribution before ultimate use or consumption. See Kolarik, 721 N.W.2d at 163 (defining “product”) (citing Black’s Law Dictionary 1225 (7th ed. 1999)); see also Anderson v. Glynn Constr. Co., Inc., 421 N.W.2d 141 (Iowa 1988) (personal injury case by a grain elevator employee, based on injury from a grain augur in the elevator, not on the elevator in its entirety). Thus, the only “products” that are relevant to Nationwide’s product liability claims are the elevator leg, the hazard monitoring system, and the bearing.
iii. Was SMA an “assembler”? The next question is whether or not SMA was an “assembler” — or, for that matter, a “manufacturer” or “designer” — of the elevator leg, the hazard monitoring system, or the bearing, which is determinative of whether subsection (1) or (2) of § 613.18 is or might be applicable here. As the Iowa Supreme Court has noted, § 613.18 does not define “assembler.” Weyerhaeuser Co., 620 N.W.2d at 824. As the court explained,
We therefore resort to its common and ordinary meaning. See Gerst v. Marshall, 549 N.W.2d 810, 814 (Iowa 1996).
The verb “assemble” means “to bring together or gather together into one place, company, body, or whole.” Webster’s Encyclopedic Unabridged Dictionary 125 (rev. ed. 1996). “Assembler” is defined as “a person or thing that assembles.” Id. Thus, the dictionary meanings of “assemble” and “assembler” contemplate a person or thing that brings together [two or more] things into a whole.
The dictionary definition of “assembler” closely resembles the definition of “assembler” in a torts liability setting.
Weyerhaeuser Co., 620 N.W.2d at 824. As I suggested above, nothing in these definitions of “assembly” and “assembler” would exclude an “installation” or “installer.”
In Weyerhaeuser, the Iowa Supreme Court explained that an assembler can be held liable for failure of a component that it did not manufacture. Id. at 825. Here, Nationwide asserts that SMA’s “assembly” of the leg involved placing the cups on the belts and shimming the bearings, and SMA admits that it put the cups on the belts and shimmed the bearings. See Nationwide’s Combined Statement Of Facts In Support Of Its Resistance To All Defendants’ Motions For Summary Judgment (docket no. 161-2), ¶ 196; Defendants’ Joint Objections And Responses To Plaintiffs Statements Of Additional Facts (docket no. 181-1), ¶ 196. While I would not so find, taking the facts in the light most favorable to Nationwide, the non-moving party, see Torgerson, 643 F.3d at 1042-43, I believe that a reasonable juror could find that SMA “assembled” the elevator leg, because SMA did bring together two or more things (such as cups and belts) into a whole (an elevator leg). Weyerhaeuser Co., 620 N.W.2d at 824. Thus, if SMA is an “assembler” of the elevator leg, the immunity and non-liability provisions of § 613.18(1) are not applicable to SMA as to defects in the elevator leg. See Iowa Code § 613.18(1) (providing for immunity or non-liability of a party that is not an “assembler”); Bingham, 485 N.W.2d at 80 (subsection 613.18(1) only applies if the party was not the manufacturer, designer, or assembler). Of course, if a jury find that SMA is not an “assembler” of the elevator leg, then SMA will be entitled to the immunity and non-liability protections of § 613.18(1).
The determination that there are genuine issues of material fact as to whether or not SMA was an “assembler” of the elevator leg does not end the inquiry as to SMA’s potential immunity or non-liability for defect claims related to the elevator leg, however. Rather, I must also consider whether SMA can raise the non-liability protection of § 613.18(2), even if it was an “assembler” of the elevator leg. See Bingham, 485 N.W.2d at 80 (explaining that “[s]ubseetion 613.18(2) pertains to retailers who do assemble the products they sell”). Although Nationwide alleges that SMA “assembled” the elevator leg by placing the cups on the conveyor and shimming the bearing, nowhere in either its Fourth Amended Complaint or its responses to the defendants’ statements of fact or its own statement of additional facts has Nationwide alleged that these aspects of SMA’s “assembly” of the elevator leg had a “causal relationship to the injury from which the claim arises.” Iowa Code § 613.18(2). Furthermore, the manufacturer of the elevator leg, Schlagel, is not only subject to the jurisdiction of the courts of this state, but is a party to this litigation, and has not been judicially declared insolvent. Id. Thus, even if SMA was an “assembler” of the elevator leg, there is no genuine issue of material fact barring summary judgment on SMA’s non-liability for product defect claims as to the elevator leg. The Iowa Supreme Court’s decision in Weyerhaeuser, on which Nationwide relies, is not to the contrary. As Nationwide argues, the Iowa Supreme Court did conclude in Weyerhaeuser, in its analysis of § 613.18(1), that the theory of assembler liability applies to an assembler who incorporates a defective component part into its finished product, even if the assembler did not manufacture the component part. See Weyerhaeuser Co., 620 N.W.2d at 824. Even so, the decision in Weyerhaeuser nowhere considered the effect of § 613.18(2). SMA is correct that Nationwide’s reading of Weyerhaeuser as stripping it of immunity or non-liability protection, if it was an assembler, would nullify § 613.18(2). I cannot conclude that the Iowa Supreme Court intended any such result in Weyerhaeuser, where the court did not even discuss the effect of § 613.18(2).
Thus, notwithstanding genuine issues of material fact as to whether or not SMA was an “assembler” or “installer” of the elevator leg, SMA is entitled to immunity or non-liability for product defect claims relating to the elevator leg. If SMA was not an “assembler” of the elevator leg, it is entitled, as a matter of law, to the immunity and non-liability protection of § 613.18(1) to defect claims relating to the elevator leg, but if SMA was an “assembler,” it is entitled, as a matter of law, to the non-liability protection of § 613.18(2) as to claims of defects relating to the elevator leg. Thus, SMA is entitled to summary judgment on Nationwide’s product defect claims relating to the elevator leg pursuant to § 613.18.
The analysis is somewhat different as to whether or not SMA has statutory protection from Nationwide’s manufacturing, design, and warning defect claims as to the bearing and the hazard warning system. Nationwide offers no facts from which a reasonable jury could find that SMA assembled (or designed or manufactured) the bearing or the hazard warning system. For purposes of § 613.18(l)(a), SMA is entitled to immunity to any claims which arise solely from an alleged defect in the original design or manufacture of the bearing or the hazard warning system. For purposes of § 613.18(l)(b), where there is no dispute that Baldor, the manufacturer of the bearing, and S-M, the manufacturer of the hazard warning system, are not only subject to the jurisdiction of the courts of this state, but are or were parties to this litigation, and neither has been judicially declared insolvent, SMA is entitled to non-liability for damages on warning defect claims relating to the bearing and the hazard warning system. Thus, SMA is entitled to statutory protection pursuant to § 613.18(1) from product defect claims relating to the bearing and the hazard warning system and is, therefore, entitled to summary judgment on Nationwide’s product defect claims as to the bearing and the hazard warning system.
The “installation defect” claims against SMA, relating to any of the “products” at issue — the elevator leg, the bearing, or the hazard monitoring system — also require separate consideration. As noted above, statutory protection, if any, from “installation defect” claims must come from Iowa Code § 613.18(2), where the general definition of “assembler” under the statute appears to encompass “installation.” SMA’s statutory protection from certain “product defect” claims pursuant to § 613.18(2), where SMA allegedly “assembled,” ie., “installed,” the products applies only if “such assembly ha[d] no causal relationship to the injury from which the claim arises.” Iowa Code § 613.18(2). Here, I find no claims of “installation defects” that did allegedly have a causal relationship to the injury from which Nationwide’s claims arise, because the only claim that appears to be an “installation defect” claim is actually, as a matter of law, a “design defect” claim masquerading as an “installation defect” claim. As such, it cannot evade SMA’s statutory protection from “design defect” claims.
Specifically, Nationwide claims in ¶ 17(4)(a) of the Fourth Amended Complaint that SMA “fail[ed] to install the head pulley bearing correctly, including, but not limited to, the failure to install a non-expansion and expansion pillow block bearing on the head section of the south leg.” I have found no specification in the current record or briefing of how SMA incorrectly installed the head pulley bearing other than in the alleged failure to install a non-expansion and expansion pillow block bearing on the head section of the south leg, but that allegation is simply that SMA installed the leg as it had been designed by Schlagel. Cf. See, e.g., Khoury v. Philips Medical Sys., 614 F.3d 888, 892 (8th Cir.2010) (the plaintiff did not state an installation defect claim when the allegedly negligent installer installed a wrongly designed installation precisely correctly). The record does not generate any genuine issues of material fact that SMA’s installation of the leg involved selection of the bearings to be used in the installation, where the bearings were part of the leg, or that SMA failed to follow instructions for proper installation. Compare Hendricks v. Great Plains Supply Co., 609 N.W.2d 486, 490 (Iowa 2000) (sustaining a claim of negligent installation, where the installer failed to follow instructions to install an attic radiation shield around the chimney flue and to keep insulation away from light fixtures and flues). Thus, SMA is entitled to summary judgment on Nationwide’s only claim alleging an “installation defect,” because SMA is entitled to summary judgment on the basis of the statutory protections provided by § 613.18 on what is, in reality, a “design defect” claim.
iv. Summary as to “product defect” claims. In short, Nationwide’s product defect claims will not lie against SMA as they relate to the grain elevator as a whole, because the grain elevator is not a “product” within the meaning of either § 613.18 specifically or Iowa products liability law generally. SMA was not an “assembler” (or manufacturer or designer) of the bearing or the hazard warning system, so that, as a matter of law, SMA is entitled to the immunity and non-liability protections of § 613.18(1) as to defect claims relating to the bearing and the hazard warning system. SMA is also entitled to immunity or non-liability for product defect claims relating to the elevator leg. If SMA was not an “assembler” of the elevator leg, it is entitled, as a matter of law, to the immunity and non-liability protection of § 613.18(1) to defect claims relating to the elevator leg, but if SMA was an “assembler,” it is entitled, as a matter of law, to the non-liability protection of § 613.18(2) as to claims of defects relating to the elevator leg. Thus, SMA is entitled to summary judgment on Nationwide’s product defect claims relating to the elevator leg pursuant to § 613.18. SMA is also entitled to summary judgment on the only claim cognizable as an “installation defect” claim, because that claim is really a “design defect” claim, from which SMA has statutory protection, masquerading as an “installation defect” claim.
I need not and will not consider any of SMA’s other grounds for summary judgment on Nationwide’s design, manufacture, warning, or installation product defect claims in Division I of the Fourth Amended Complaint.
v. Remaining negligence claims against SMA. The conclusions just above do not mean that SMA is entitled to summary judgment on all of the claims in Division I, however. I note that, in addition to claims that are plainly “product defect” claims, Nationwide also asserts in Division I of the Fourth Amended Complaint various claims, including those expressly denominated “general negligence” claims, that are not necessarily “product defect” claims. Cf. Estate of Pearson ex rel. Latta v. Interstate Power and Light Co., 700 N.W.2d 333, 341 n. 1 (Iowa 2005) (finding that the court did not need to decide the applicability of Restatement (Third) § 2, “because the parties tried the ease as a negligence case, rather than as a defective product case”). Indeed, while the parties seem to have addressed the claims in Division I as if they were all “product defect” claims under strict liability and/or negligence theories, at least for purposes of summary judgment briefing, Division I does not expressly limit the claims therein in that way. Instead, Division I alleges more generally “[t]hat Defendant, SMA, was negligent and/or strictly liable in one or more of the following particulars.” Fourth Amended Complaint, ¶ 17. SMA and Nationwide have not addressed any “negligence” claims beyond “product defect” claims. I find that numerous general “negligence” claims have been alleged, but I find nothing in SMA’s Motion For Summary Judgment that addresses these “general negligence” claims, which are not based on product defects. See Brief In Support Of Defendant [SMA’s] Motion For Summary Judgment (docket no. 137-4), § III.B.4 (arguing that summary judgment is proper on Nationwide’s negligence-based product defect claim).
Specifically, while I read claims alleging negligence “[i]n designing the elevator” in ways that relate specifically to the elevator leg, the hazard monitoring system, or the bearings, which are “products,” as alleging “product defect” claims, and SMA has statutory protection from any such “product defect” claims, I do not read claims alleging negligence in other respects that relate to the design of the elevator as a whole as “product defect” claims, whatever their designation in the Fourth Amended Complaint. The claims in Division I that I find can fairly be read to assert general “negligence” claims, rather than “defective product” claims — and that, as such, survive summary judgment — are the following: “failing to use reasonable care in designing the elevator,” see Fourth Amended Complaint, 1117(2)(g); “designing the elevator such that it did not include a distributor and/or gates that would prevent the propagation of fire and/or pressure waves,” see id. at ¶ 17(2)(n); negligence “[i]n manufacturing a grain elevator with a manufacturing defect,” see id. at ¶ 17(3)(c), although this claim is too vague to state any claim; negligence “[i]n violating NFPA 61,” which is the National Fire Protection Association Standard For The Prevention Of Fires And Dust Explosions In Agricultural And Food Processing Facilities, see id. at ¶ 17(4)(b); negligence “[i]n the selection of the hazard monitoring subcontractor,” see id. at ¶ 17(4)(c); negligence “[i]n failing to commission the hazard monitoring system,” see id. at ¶ 17(4)(d); and negligence “[i]n failing to provide the Dodge maintenance manual to the end user,” see id. at ¶ 17(4)(e). Therefore, SMA is not entitled to summary judgment on these portions of Nationwide’s claims in Division I.
2. Warning or instruction defect claims against Baldor
I turn, next, to Nationwide’s product liability claims based on warning or instruction defects. Although Nationwide asserted such claims against all three defendants, I determined, above, that SMA has statutory protection from such claims, and Schlagel does not seek summary judgment in its favor on these claims in its Motion For Partial Summary Judgment (docket no. 139). Thus, I need only consider Baldor’s motion for summary judgment on the merits of the warning or instruction defect claims against it.
a. Arguments of the parties
Baldor contends that, in Olson v. Prosoco, Inc., 522 N.W.2d 284, 289-90 (Iowa 1994), the Iowa Supreme Court expressly rejected strict liability failure-to-warn claims, so that such claims may be asserted, if at all, only as negligence claims. Baldor argues that its duty to warn Midwest Farmers Cooperative was very limited under Iowa law, because Schlagel was a “sophisticated” intermediary user of bearings, Schlagel was responsible for designing and manufacturing the grain elevator leg at issue, in which Baldor’s Dodge brand bearings were incorporated, and Schlagel decided what type of bearings to order. Baldor also argues that it provided Schlagel with information and instructions regarding Dodge bearings, but that Baldor was not consulted for or involved in the construction of the Alton grain elevator. Baldor also contends that it provided Schlagel with information about the existence and benefits of optional items, such as hazard monitoring systems, E-tect seals, and end caps. Indeed, Baldor contends that it cannot know the particular applications of the millions of bearings that it manufactures. In essence, Baldor contends that it fulfilled its duty to warn by warning an intermediary, Schlagel.
Baldor also argues that any failure to warn on its part was not a proximate cause of the incident at issue, because Midwest Farmers Cooperative’s personnel admit that they never read the Dodge bearing instruction manual and claimed never to have received it and never communicated with Baldor regarding the bearing; Baldor provided Schlagel with information regarding the use of expansion and non-expansion bearings and sold both kinds, but Schlagel made the decision to use two non-expansion bearings on the leg in question and did not pass along information about expansion and non-expansion bearings to SMA or others; Baldor provided a catalog to Schlagel that included information about hazard monitoring systems and bearings pre-drilled for internal sensing equipment, E-tect seals, and end caps, but Schlagel made the decisions about whether or not to use any such components; and there is no evidence that internal sensing equipment, an E-tect seal, or an end cap would have prevented or affected the incident at issue. Finally, Baldor argues that Nationwide’s vague “catch all” allegations of inadequate warnings are insufficient bases for any claim.
Nationwide counters that Iowa’s adoption of the Restatement (Third) renders invalid the “sophisticated intermediary” defense, which was premised on Restatement (Second) of Torts § 338, comment n. Nationwide argues that, if the defense is still viable, the Iowa Supreme Court has only recognized it in the context of prescription drugs and medical devices. Moreover, Nationwide argues that, if the defense is viable, the question of “reasonableness” on which the defense depends is for the jury to decide. Nationwide argues that a reasonable jury could reject such a defense in this case, if it is otherwise viable, because Baldor had repeated contact with Midwest Farmers Cooperative, Baldor knew that Schlagel was not properly warning end users, Baldor knew that Schlagel was not knowledgeable about bearings, and Baldor gave inadequate warnings and instructions in the first place. In other words, Nationwide argues that the disputed facts are sufficient to present a jury question on whether Baldor acted in a manner reasonably calculated to assure that the necessary information would be passed to Midwest Farmers Cooperative or that Midwest Farmers Cooperative’s safety would otherwise be addressed.
Somewhat more specifically, Nationwide argues that a jury could find from the record that Baldor knew that Schlagel was using the bearings for elevating legs in grain elevators; that the risk of a grain dust explosion in a grain elevator posed by an overheated bearing was grave; that Baldor could relatively easily have warned Midwest Farmers Cooperative directly; and that Baldor did not use due care to ascertain whether it could reasonably rely on Schlagel to warn its customers. Nationwide also argues that the “bulk supplier” doctrine also is inapplicable here. Finally, Nationwide argues that Baldor’s instructions were inadequate, even if they had been passed on by Schlagel, and the inadequacy of the warnings was a proximate cause of the explosion.
b. Analysis
Baldor is correct that the Iowa Supreme Court has repeatedly held that “[flailure to warn claims cannot be brought under a theory of strict liability.” Scott v. Dutton-Lainson Co., 774 N.W.2d 501, 504 (Iowa 2009) (citing Olson v. Prosoco, Inc., 522 N.W.2d 284, 289 (Iowa 1994)). The Iowa Supreme Court has also reiterated, “In Wright [v. Brooke Group, Ltd., 652 N.W.2d 159 (Iowa 2002) ], we adopted the Restatement (Third) of Torts: Products Liability sections 1 and 2 (1998),” which, in turn, “recognizes that ‘strict liability is appropriate in manufacturing defect cases, but negligence principles are more suitable for other defective product cases.’ ” Id. at 504 (quoting Wright, 652 N.W.2d at 168). Still more specifically, “[t]he standards for ... failure to warn claims — as recognized by the Third Products Restatement and Wright — require consideration of reasonableness and therefore incorporate negligence principles.” Id. at 506 (citing RESTATEMENT (THIRD) § 2(c), at 14). Thus, failure-to-warn product defect claims are negligence claims under Iowa law, as defined in RESTATEMENT (THIRD) § 2(c).
That section of the RESTATEMENT (THIRD) defines a warning defect claim, in pertinent part, as follows:
§ 2. Categories of Product Defect
A product is defective when, at the time of sale or distribution, it ... is defective because of inadequate instructions or warnings. A product:
* * *
(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.
Restatement (Third) § 2(c).
As Baldor contends, I find that the “intermediary” defense is still viable under Iowa law. Specifically, I find that Restatement (Third) § 2(c) and comment i recognize a defense to a warning defect claim based on the duty of an intermediary — and not even necessarily a “learned” or “sophisticated” intermediary — to warn the end user. Section 2 expressly considers whether “the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution.” Restatement (Third) § 2(c) (emphasis added). Still more specifically, comment i provides as follows:
Depending on the circumstances, Subsection (c) may require that instructions and warnings be given not only to purchasers, users, and consumers, but also to others who a reasonable seller should know will be in a position to reduce or avoid the risk of harm. There is no general rule as to whether one supplying a product for the use of others through an intermediary has a duty to warn the ultimate product user directly or may rely on the intermediary to relay warnings. The standard is one of reasonableness in the circumstances. Among the factors to be considered are the gravity of the risks posed by the product, the likelihood that the intermediary will convey the information to the ultimate user, and the feasibility and effectiveness of giving a warning directly to the user. Thus, when the purchaser of machinery is the owner of a workplace who provides the machinery to employees for their use, and there is reason to doubt that the employer will pass warnings on to employees, the seller is required to reach the employees directly with necessary instructions and warnings if doing so is reasonably feasible.
Restatement (Thir