Gardner v. Brillion Iron Works, Inc. (120 F. Supp. 3d 928, 2014)

MEMORANDUM OPINION AND ORDER DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

JOHN R. TUNHEIM, District Judge.

Terrance and Cori Gardner bring this products liability suit against Brillion Iron Works, Inc. (“Brillion”), for injuries Terrance (“Gardner”) sustained while attempting to repair a piece of farming equipment manufactured by Brillion. The Gardners bring claims for defective design strict products liability, failure to warn, breach of warranty, negligence, post-sale duty to warn, and loss of consortium. Brillion moves for summary judgment on all of the Gardners’ claims.

The Court will deny Brillion’s motion with regard to the Gardners’ claims for strict products liability, failure to warn, post-sale duty to warn, and loss of consortium because there are facts upon which a reasonable jury could conclude both that Gardner had no reason to think the repairs he attempted to conduct would be unsafe, and that attempting to repair farm equipment is a foreseeable use of the product. Because the Gardners do not oppose dismissal of the breach of warranty and negligence claims in the event the products liability claim is permitted to proceed, the Court will dismiss those claims.

BACKGROUND

I. BRILLION’S SOIL BUILDER

Defendant Brillion began manufacturing the model CD 113 soil builder in 1977. (Decl. of Tia C. Ghattas, Ex. D (Dep. of Mike Irish (“Irish Dep.”) at 8), May 31, 2013, Docket No. 51.) The soil builder, used by farmers to cultivate and dig up soil after harvest, consists of a flat frame made of steel tubes. (Irish Dep. at 8-11.) The lengthwise-tubes are the main frame tubes and across them are several “spacer” tubes, so the frame appears as a collection of connected rectangles within a larger rectangle. (Id.) Attached to the frame tubes are shanks, which are C-shaped hooks that dig into the ground to cultivate and dig up dirt. (Id.) Brillion found it would be helpful for the frame tubes to be heavy so that the shanks could dig deeper into the ground. (Id.) To add weight to the frame tubes, it added ballast to the tubes in the form of galvanized steel punchings, which contained zinc and cutting oil as lubricant. (Id.; Ghattas Decl., Ex. F (Dep. of Oliver Kruse (“Kruse Dep.”) at 14).) Brillion’s Brand Manager was not aware of any other companies that used similar materials as ballast at the time. (Irish Dep. at 50.)

Brillion ultimately manufactured 2,386 soil builders of this model. (Id. at 13.) Brillion conducted a field performance test on the model, but did not conduct any stress testing or hazard analysis on the soil builder. (Kruse Dep. at 6, 9.) In 1995 and 1996 two different users of the soil builder were injured when they were drilling into the sealed tubes. (Irish Dep. at 36-37; Kruse Dep. at 10-12.) The galvanized steel punchings that contained zinc had reacted with the moisture from the cutting oil to produce flammable gases such as hydrogen and methane. (Kruse Dep. at 14.) When the users drilled into the tubes, the gases streamed out and were ignited. (Kruse Dep. at 12-14.) Brillion learned of the injuries shortly after they occurred. (Irish Dep. at 37.) After the incidents, Brillion changed the design of the soil builder, both by not using steel mixtures for ballasts' and by venting the tubes. (Id. at 11, 45 (“[Ajfter the incidents we changed to a different type. Just straight steel, no other mixture of any kind could be in with it.”).)

Brillion also took steps after the incidents to advise owners not to weld or drill into the frame tubes, which Brillion’s Brand Manager agreed that Brillion did because it was the “right” thing to do; (Id. at 37.) Brillion got the names of 1,600 farmers who had purchased the soil builder, either through its computer records' or warranty cards, and sent an advisement to university extension services to try to reach farmers. (Id. at 40-43.) Brillion stated that it was able to reach 60-70% of the owners of the soil builder, but for the remaining 30-40% it relied on the retailers and dealers to contact the purchasers to give them -the notice, even though Brillion knew that dealers were not reliable and did not usually contact the purchasers. (Id. at 43, 48.) Brillion’s Manager of Engineering and Manufacturing stated that he did not know of any efforts after 1998 to get the word out to owners about the danger. (Kruse Dep. at 28.)

II. THE SOIL BUILDER AT ISSUE

-The soil builder at issue in this case was originally purchased by Robert Shervey, a now-retired farmer in Barrett, MN. ■ He purchased it in' 1981 from a local dealer iia Elbow Lake, MN, that went bankrupt later that year. (Ghattas Deck, Ex. H (Dep. of Robert Shervey (“Shervey Dep.”) at 7).) He received an owner’s manual and a supply catalog with the soil builder, but recalls no other pieces of paper, decals, or any other warnings on the machine. (Shervey Dep."at 10-11.) He did some welding repairs on the machine to strengthen the frames so they could support more substantial shanks. (Id. at 11-12.) He later heard that it was a hazard to weld on the tubes:

I know it was a danger with welding on these tubes. I don’t remember how. Or if I got a letter on it or if I read about it or heard it or whatever? But this was — I had already welded on it. So this would have been many years since, you know, from when it was new.

(Id. at 11.) When asked about whether he had been told that there was a problem or a hazard if he drilled into the soil builder he answered: “No. Just welded.” (Id. at 35.) He clarified that “I did not know it was a chemical — flammable gas inside those tubes. I just knew it was a hazard to weld on that tube.” (Id. at 64.) He acknowledged that if he had known about the danger with welding, he wouldn’t have welded on it, but that before he knew that he “probably would have” welded or drilled on a sealed vessel because he “wouldn’t have known any different.” (Id. at 59.)

' In or around 2005 Robert Shervey sold his farm to his daughter and son-in-law, Ronald Schack. (Ghattas Deck, Ex. G (Dep. of Ronald Schack (“Schack Dep.”) at 11).) Shervey told Schack that the tubes could not be welded on because “they could explode.” (Schack Dep. at 27.) Schack did not use the soil builder for many years, but in 2011, he wanted to use it for harvesting.- (Id. at 26.) He decided it would need repairs, and approached a repair shop, of which Gardner was an owner and.principal. (Id. at 34-35; Ghattas Deck, Ex. I (Dep.. of Terrance Gardner (“Gardner Dep.”) at 23.) Gardner is an experienced metal worker with an associate’s degree in mechanical and design technology and has worked for twenty-four years in the mechanic industry. (Gardner Dep. at. 9-22.), Gardner agreed to look at the soil builder and went out to Schack’s farm to look at it.. (Schack Dep. 36-37.) Schack mentioned to him “that we can’t weld on it so we might need to put a structure across to try to hold it altogether.” (Schack Dep. at 37.) After Schack told him . this, Gardner was surprised and asked, “you can’t weld on it?’ and Schack said “No, you can’t.” (Id. at 37-38.) When Gardner asked why, Schack said “apparently there’s something in the tubes and they can blow up.” (Id. at 38.) Gardner agreed to do the repairs and Schack brought the soil builder into Gardner’s shop.in September 2011. (Gardner Dep. at 40.)

In his deposition, Gardner described the warning he received from Schack about welding on the tubes: '

He told me that these main 4 by 4 cross tubes, were filled with a weight adding material, which made it dig better in the field and stuff.- Was or could be flammable, he wasn’t sure, so that those were not to be welded on directly.

(Id. at 57-58.) Gardner didn’t ask Schack how he knew there was material in the tubes, as Schack volunteered that his father told him. (Id. at 71.)

III. GARDNER’S ATTEMPT TO REPAIR AND INJURY

Once the soil builder arrived in Gardner’s shop, he told his employees that the soil builder could not be welded on. (Ghattas Decl., Ex. K (Dep. of Josh Warner (“Warner Dep.”) at 38, 64); id., Ex. L (Dep. of David Kjorness (“Kjorness Dep.”) at 33).) Gardner’s employees testified that they received instructions not to weld on it, but did not hear that drilling on it would cause flames. Employee Josh Warner testified: “I don’t remember hearing ‘flammable,’ ” just that it could explode. (Warner Dep. at 42.) Employee David Kjorness was instructed not to “heat the tubes, the main tubes of the machine because they were loaded,” but he “didn’t think it would hurt anything to drill into it.” (Kjorness Dep. at 40.) He explained, “[t]he way I understood it is you couldn’t heat it or- it would become explosive. That’s why we opted to drill it, because there was no heat involved then.” (Id.)

Before embarking on any repairs, Gardner asked around — and other farmers — to see if anyone knew what might be -in the frame tubes that would be flammable, (Gardner Dep. at 72, 83-84.) He testified that when he talked to other farmers, everyone’s response was “Wiry would they put something flammable in something that you’re going to repair?” (Id. at 85.) On - the. day he began .doing repairs,’ he called Titan, a company he had purchased farm equipment from in the past, as. “one last safety precaution to see if [they] had ever heard. of any manufacturer putting any type of material in a piece of farm equipment that would be flammable.” (Id. at 98.) The response he received was: “Why would any manufacturer put something flammable in a piece of material — or in a piece of equipment that would have to be repaired?” (Id. at 99.)

Gardner then commenced the repair process. First, two of Gardner’s employees used grinding cutters to remove pieces that had been welded to the spacer tubes during Mr. Shervey’s repairs. (Warner Dep. at 24-28.) After they did this, Gardner set out to drill a hole into one of the tubes to determine what was inside-and to see what, if any, flammable, material the tubes contained. (Gardner Dep. at 87.) He was wearing leather gloves, safety glasses, his general rented uniform, a cotton- t-shirt, bluejeans, underwear, socks, and steel-toed boots. (Id. at 120.) He drilled into the tube, and once he punctured it a shot of flame came out of the hole that he and his employees described as comparable to a jet engine flame. (Warner Dep. at 44-45; Schack Dep. at 66.) Josh Warner testified that he did not see any sparks while Gardner was drilling or hear any metal grinding. (Warner Dep. at 43.) The flame burned Gardner on his face, neck, arms, and upper body. Warner and Kjorness put out the fire on Gardner and Gardner went to his wife’s office (she worked in the shop) and immediately went to the hospital. (Gardner Dep. at 130.) Gardner’s employees claimed that five minutes after he left, the drill he was using was still on fire. (Warner Dep. at 46.)

Gardner, Warner, and Kjorness maintained in their deposition testimony that they had no idea it would be dangerous-to drill into the tubes even though they knew not to weld, because drilling involves very little heat, especially compared to welding. (See Kjorness Dep. at 40 (“The way I understood it is you couldn’t heat it or it would become explosive. That’s why we opted to drill it, because there was no heat involved then.”); Warner Dep. 38-42, 64.) Gardner was asked during his deposition:

Q: Knowing that, Mr. Schack had told you he believed there was something in there that possibly could be flammable, do you think it would have been prudent to find out what was in there before you began working on it?

A: I guess, no, I wasn’t worried about it— He told me that you couldn’t weld directly to those tubes because what was in there was flammable.... I knew we were not going to be directly welding to those tubes.

Q: But the work you were doing would have applied heat to the tubes and the drilling itself would have transferred heat from where you were . drilling into the tube?

A: Ah, a little bit, yes.

(Gardner Dep. at 72-73.) Gardner testi-fiéd that drilling could generate up to 95 degrees in heat — that the 3/16 inch hole he made would have been cool enough that he would have been able to put his finger on it “for as long as you wanted me to.” (Id. at 90.) In contrast, he testified that it takes over 2,000 degrees' of heat to weld steel. (Id. at 60.) He also testified that in his experience drilling does not generate a spark even though it creates friction. (Id. at 88 (answering “[n]ot that I can remem7 ber, no” to the question of whether he has ever generated a spark when he was drilling with a metal bit on a piece of steel, and that drilling creates potential for a spark only if it' is not done properly).) He testified that he examined the tubes beforehand and saw that they were sealed, but did not believe that they were completely sealed (such that there could be pressurized gas in them) because they were not stamped by a certified welder, which is usually required for a tube to be considered completely sealed. {Id. at 70.)

IV. THIS ACTION

Gardner and his wife brought this action against Brillion, alleging claims for strict product liability for defective design, failure to warn, breach of warranty, negligence, post-sale failure to warn, and loss of consortium. Brillion moves for summary judgment on all claims.

DISCUSSION

I. STANDARD OF REVIEW

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A fact is material if it might affect the outcome of the suit, and a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment is appropriate if the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “To defeat a motion for summary judgment, a party may not rest upon allegations, but must produce probative evidence sufficient to demonstrate a genuine issue [of material fact] for trial.” Davenport v. Univ. of Ark. Bd. of Trs., 553 F.3d 1110, 1113 (8th Cir.2009) (citing Anderson, 477 U.S. at 247-49, 106 S.Ct. 2505).

II. DESIGN-DEFECT STRICT PRODUCTS LIABILITY

To recover under a defective design strict products liability theory, an injured party must establish (1) that the product was in a defective condition unreasonably dangerous for its intended use; (2) that the defect existed when the product left the defendant’s control; and (3) that the defect was the proximate cause of the injury sustained. Bilotta v. Kelley Co., 346 N.W.2d 616, 623 n. 3 (Minn.1984); see also Drager ex rel. Gutzman v. Aluminum Indus. Corp., 495 N.W.2d 879, 882 (Minn. Ct.App.1993). “Whether a product is defective is generally a question of fact; only where reasonable minds cannot differ does the question become one of law.” Thompson v. Hirano Tecseed Co., 456 F.3d 805, 809 (8th Cir.2006).

Brillion argues that Gardner has failed to present sufficient evidence upon which a reasonable jury could find for him on any of these three elements, but Brillion focuses its argument on two main points that relate to the first element, leaving little dispute as to the remaining elements. First, Brillion argues that the soil builder was not defective with regard to Gardner because Gardner did not use it as intended, and rather misused it-by drilling into it. Second, Brillion argues that Gardner was aware of the specific danger posed by the soil builder and nevertheless assumed the risk of that danger by choosing to drill into it. The Court will address each of these arguments.

A. Defective Condition Unreasonably Dangerous for its Intended Use

There is little dispute that the flammable material in the soil builder’s tubes made it unreasonably dangerous. The soil builder model purchased by Sher-vey and repaired by Gardner was-an inert piece of farm equipment that, unbeknownst to Brillion when it produced the machine, had the potential to explode upon exposure to heat. Once Brillion became aware of the possibility that the cut steel ballasts and oil could produce flammable gas, and after this design caused injury to two users, Brillion changed its design to add ventilation holes into the tubes. (See Irish Dep. at 11, 45.) Gardner’s expert stated in his affidavit that Brillion failed to do a hazard analysis or long-term testing, which is standard, and if it had it would have discovered the flammability of the tubes and could have corrected it by using a non-hazardous ballast material. (Aff. of Lanny Berke ¶¶3, 7, 9, June 21, 2013, Docket No. 55.) Gardner’s expert also stated that Brillion “did not have people with the proper technical education and backgrounds review and oversee the design and manufacturing of the cultivator,” as “[a] qualified metallurgist would have recognized the potential for hydrogen gas to be developed in the sealed tubes.” (Id ¶ 9.) Brillion’s Brand Manager testified that no other manufacturers at the time were using the ballast material that Bril-lion did. (Irish Dep. at 50.) Brillion’s chosen design caused injury to two users in the 1990s, and after those incidents Brillion changed its design to vent the tubes rather than sealing in the hazardous material.

Thus, the question presented by Bril-lion’s argument is not about the defective nature of the soil builder, but is instead about whether Gardner’s drilling into the tube could be reasonably viewed as the machine’s intended use. Brillion argues that no reasonably jury could find that using a high-speed drill with a metal drill bit to drill into the sealed metal framing of the soil builder was a “manner for which the product was intended.” (Mem. in Supp. of Mot. for Summ. J. at 9, May 31, 2013, Docket No. 50 (citing Burris v. Versa Prods., Inc., Civ. No. 07-3938, 2009 WL 8164783, at *2 (D.Minn. Sept. 29, 2009)).) But the standard for this element of a defective design claim is broader than Bril-lion claims. Instead, a party can succeed on this element by showing that a product is unreasonably dangerous when used in the manner for which it was intended, “as well as an unintended yet reasonably foreseeable use.” Bilotta, 346 N.W.2d at 621 (emphasis added) (internal quotation marks omitted); see also Mozes v. Medtronic, Inc., 14 F.Supp.2d 1124, 1127 (D.Minn.1998).

Gardner presents' sufficient facts upon which a jury could conclude that repairing a piece of farm equipment by drilling into a steel four-by-four inch tube that appears to be inert is reasonably foreseeable use. Gardner’s expert states that “[o]ne alternate use of this product which is obvious and would have been made obvious during a hazard analysis is that farmers will-modify the machine to make it more useful to the farmer” and that

[i]t is reasonably foreseeable that farmers will cut into, drill into, and weld onto this tubing to modify the design to meet their specific needs. Even though Bril-lion does not want anyone to do this, they know that this is in the very nature of farmers, and it is reasonably foreseeable.

(Berke Aff. ¶¶3, 9.) Even Brillion’s witnesses acknowledged this — the Brand Manager stated that “[historically farmers are very self-sufficient. If they have the skills they would [make their own repairs on machines].” (Irish Dep, at 20-21.) Brillioris Manager of Engineering and Manufacturing acknowledged that at some point “almost any piece of equipment will need some sort of repairs.” (Kruse Dep. at 20.) Furthermore, Gardner testified that the farmers and retailer he spoke to reacted to his question about flammable materials by wondering why a manufacturer would put flammable materials into a piece of equipment that farmers will inevitably attempt to repair. (Gardner Dep. at 85,99.) ' ,

Thus, the Court cannot conclude as a matter of law that attempting to repair a piece of farm equipment, including drilling into a steel tube, is beyond the scope of the intended use of such a product for the purposes of a defective design products liability claim. Whether Gardner’s drilling was within the intended use or reasonably foreseeable use of the soil bqilder is a question for the jury.

B. Assumption of Risk

Brillion also argues that Gardner’s defective design claim must fail because Gardner knew of the defect and its dangers and nevertheless assumed the risk of explosion by drilling into the tubes. In a strict liability action under Minnesota law, only a “primary” assumption of. the risk defense is available (as opposed to a defense of “secondary” assumption of the risk). See Daly v. McFarland, 812 N.W.2d 113, 120 n. 1 (Minn.2012) (“Primary assumption of risk is also applied to theories of recovery based on strict products liability theory and strict liability for abnormally dangerous activities.”); Armstrong v. Mailand, 284 N.W.2d 343, 352 (Minn.1979) (secondary assumption of risk is available only in a negligence action, but “a plaintiff may, implicitly or expressly, manifest his consent to relieve the defendant of his duty under the theories of strict liability, and, therefore, the doctrine of primary assumption of the risk may be utilized in actions based on strict products liability and strict liability for an abnormally dangerous activity”).

Primary assumption of risk is very limited under Minnesota law. Reimer v. City of Crookston, 326 F.3d 957, 968 (8th Cir.2003) (“Minnesota- courts rarely apply primary assumption of the risk, and have found that its- application is only appropriate under limited circumstances.” (internal quotation marks omitted)) (collecting cases). Courts have rarely found the evidence of the plaintiffs actions to be “so clear and undisputed as to present no fact issues for the jury to decide” and therefore to “constitute primary -assumption of risk as a matter of law.” Id. (internal quotation marks omitted). The doctrine is limited to certain types of circumstances and has typically been applied only in cases involving patrons of inherently dangerous sporting events, such as amateur golf, auto-racing, or hockey. McFarland, 812 N.W.2d at 119-20 (citing Grisim v. TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874, 876 (Minn.1987); Wagner v. Thomas J. Obert Enters., 396 N.W.2d 223, 226 (Minn.1986); Rieger v. Zackoski, 321 N.W.2d 16, 23-24 (Minn.1982); Modec v. City of Eveleth, 224 Minn. 556, 29 N.W.2d 453, 457 (1947)); see also Moe v. Steenberg, 275 Minn. 448, 147 N.W.2d 587, 589 (1966) (primary assumption of risk applies to ice skating participants). In contrast, the Minnesota Supreme Court has held that snowmobiling does not fall into the narrow category of inherently dangerous activities subject to primary assumption of risk because hazards like tipping or rolling could be successfully avoided. Id. at 120.

.Minnesota courts provide little guidance as to whether the doctrine of primary assumption of risk applies to the specific activity of farm equipment or repair generally. Thus, the Court will analyze as a matter of first impression whether the doctrine can apply to Gardner’s repair here under the basic elements of primary assumption of the risk. For primary assumption of risk to apply, the injured party must have (a) had knowledge of the risk; (b) appreciated of the risk; and (c) had a choice to avoid the risk but voluntarily chose to chance the risk. Andren v. White-Rodgers Co., 465 N.W.2d 102, 104-05 (Minn.Ct.App.1991) (citing Armstrong, 284 N.W.2d at 351).

Minnesota courts construe the relevant risk narrowly. Reimer, 326 F.3d at 969 (noting Minnesota Supreme Court “re-je