Nereus Montemayor was an employee of VZ Hogs, a company that raises hogs and produces hog feed. VZ Hogs used an extruder manufactured by Sebright Products, Inc. to create hog feed out of discarded food. To make hog feed, laborers place food containers into the hopper chute. The containers are crushed by a hydraulic ram, after which liquids are siphoned into a storage tank while the food container is flattened and then deposited into another compressor machine.
The extruder manual and warning labels on the extruder caution users to use “lockout/tagout” procedures before entering the extruder to unclog a jam.
Workers are given a padlock and key so that they can disable the power source to the extruder and protect it with their own padlock so no one can re-enable the power source while they are inside.
On September 8, 2011, the extruder jammed and Montemayor and another employee, Anthony Burmea, were ordered by his boss, Ryan Cowell, to clear the jam with no additional details or instructions. Montemayor had not been given safety training on the lockout/tagout procedure nor on clearing jams. Cowell also told another employee, Brian Gray, to clear the jam.
Burmea and Montemayor used pitchforks to remove material near the entrance of the discharge chute. They eventually began to crawl inside the machine and take material out by hand once the pitchforks could not longer reach the jam. While VZ Hogs did hold possession of the safety manual and held periodic safety tests, the key to the power source was broken off in the on position.
Montemayor was inside the machine when Gray, following Cowell’s instructions, approached the extruder’s control panel and, only seeing Burmea standing beside the discharge chute, ran the extruder in manual mode and crushed both of Montemayor’s legs.
Both of Montemayor’s legs had to be amputated above the knee. Montemayor brought a product liabilities action against Sebright, the manufacturer of the extruder. The action alleged that the extruder design was defective because it allowed the relocation of the control panel to a location where the operator could not see the discharge chute. It also alleged that Sebright failed to adequately warn users of the dangers that led to Montemayor’s injury. The district court granted summary judgment to Sebright, stating that it was not reasonable to foresee that two different methods to clear a jam would be used simultaneously.
Montemayor appealed. At the heart of this case is whether Sebright had a duty of care to Montemayor; the result resting on if the accident was foreseeable by Sebright.
JUSTICE MCKEIG Failure-to-warn and design-defect claims are separate causes of action, but each requires the manufacturer to owe a duty of care to the injured party. A manufacturer has a duty to design its product to avoid an unreasonable risk of harm when the product is used as intended or misused in a reasonably foreseeable manner. Further, a manufacturer has a duty to warn if it “should anticipate that an unwarned operator might use the machine in a particular manner so as to increase the risk of injury and the manufacturer has no reason to believe that users will comprehend that risk.”
For both design-defect and failure-to-warn claims, a manufacturer’s duty “arises from the probability or foreseeability of injury to the plaintiff. Although duty is generally a legal question for the court to decide, it is well established that foreseeability is a question for the jury “if there is a specific factual dispute concerning a manufacturer’s awareness of a risk,” Further, “[w]hen the issue of foreseeability is clear, the courts, as a matter of law, should decide it,” but “[i]n close cases, the question of foreseeability is for the jury.”
To determine foreseeability, “we look to the defendant’s conduct and ask whether it was objectively reasonable to expect the specific danger causing the plaintiff’s injury.” “If the connection between the danger and the alleged negligent act ‘is too remote to impose liability as a matter of public policy, the courts then hold there is no duty.’” We do not look to “the precise nature and manner” of the injury, but rather to “whether ‘the possibility of an accident was clear to the person of ordinary prudence.’”
We have held as a matter of law that an injury is not reasonably foreseeable when the “undisputed facts, considered together,” established that the connection between the defendant’s conduct and the plaintiff’s injury was “too attenuated.”
But when “reasonable persons might differ as to whether the evidence” establishes that the injury was foreseeable, we have consistently submitted the issue to the jury.
In a case involving facts strikingly similar to those presented here, we upheld the district court’s decision to submit to the jury the question of whether it was reasonably foreseeable that a worker would unclog a machine by hand with the power connected. In Parks v. Allis-Chalmers Crop., the manufacturer guarded the dangerous mechanism with a door and warned against unclogging the machine with the power connected. But there was evidence that the manufacturer failed to install a safety mechanism that would have prevented a user from unclogging the machine with the power connected and did not provide a safe method of unclogging the machine. We concluded that, in light of this evidence, “[t]he jury could find that defendant knew, or in the exercise of reasonable care should have known, that some users would leave the power connected while unclogging.”
Likewise, the United States Court of Appeals for the Eighth Circuit, applying Minnesota law, has upheld a jury verdict imposing liability on a manufacturer for injuries sustained after a worker reached inside a power-connected machine. The federal district court in Bursch submitted the case to the jury despite evidence that the employer failed to properly train and supervise the plaintiff. The Eighth Circuit concluded that the manufacturer could reasonably foresee the employer’s failure to provide the machine’s manual to employees and to maintain the machine properly, as well as a co-worker’s activation of the wrong switch that resulted in increased injury.
Indeed, it is well established that manufacturers can be held liable despite intervening circumstances—such as an employer’s comparative negligence, a plaintiff’s failure to heed warnings, and the disabling of safety devices—if such circumstances were also foreseeable.
In Bilotta v. Kelley Co., we held that the district court was not required to provide a jury instruction on superseding causes, even though the employer’s violations of occupational safety regulations contributed to the injury, because inadequate safety training was reasonably foreseeable to the manufacturer. We noted that the manufacturer’s quality control manager wrote an article stating that high employee turnover made effective safety training difficult. And we stated that, generally, employer violations of occupational safety regulations “cannot be considered superseding causes which relieve a manufacturer of its duty to produce a safe product” as a matter of law; rather, “they are adequately taken into consideration in the comparative-fault formula” after a trial.
When an employer’s violation of occupational safety regulations is not reasonably foreseeable to the manufacturer, however, we have held that the manufacturer is not responsible for ensuring that such regulations are followed.
We now turn to the case at hand. Montemayor argues that this case presents a factual dispute regarding foreseeability and is a close case that the jury must decide. We agree.
Several undisputed circumstances establish that Sebright had, or should have had, some awareness of the risk of Montemayor’s injury. It is undisputed that Sebright knew that workers sometimes entered the extruder to perform maintenance. Sebright also provided in its manual a method of unjamming the extruder that involved operating it from the control panel. These facts support the district court’s findings that it was reasonably foreseeable that a worker could enter the extruder to unclog the machine or attempt to unclog it using the control panel.
But in finding that it was unforeseeable that the two methods would be used simultaneously, the district court ignored an important undisputed fact: Sebright designed the extruder to allow for the relocation of the control panel and failed to provide any instruction on where it should be positioned so that operators could see dangerous parts of the extruder. Thus, viewing the evidence and the inferences arising therefrom in the light most favorable to Montemayor, a reasonable person could find that Sebright should have foreseen the possibility of a worker operating the extruder from the control panel without the ability to observe another worker performing maintenance inside the machine.
Sebright argues that VZ Hogs’ negligence—including its failure to comply with occupational safety regulations requiring the use of lockout/tagout procedures and to maintain the extruder’s locking selector switch—supersedes any manufacturer liability. But VZ Hogs’ comparative negligence does not automatically foreclose Sebright’s potential liability for defective design and warnings. Rather, if reasonable minds could disagree as to whether VZ Hogs’ negligence was reasonably foreseeable to Sebright, summary judgment must be denied.
Here, there is evidence that Sebright recognized and warned against the dangers of failing to use lockout/tagout procedures before entering the extruder.
Sebright’s own expert, Skogen, stated that “Sebright did identify the potential hazards of servicing and maintaining the machine without proper lockout and tagout procedures” and “warned against doing so.” And Sebright’s general manager of marketing, Stuart Sebright, testified that Sebright incorporated the lockout/tagout warnings to comply with new industry standards, which are aimed at addressing “hazard[s].”
Further, as in Bilotta, the evidence shows a factual dispute regarding the foreseeability of a user failing to comply with occupational safety regulations requiring the use of lockout/tagout procedures. Montemayor’s expert, Berke, concluded—based on a review of the extruder, relevant documentation, and depositions, as well as his experience as a professional engineer—that Sebright should have foreseen the possibility of employees failing to perform lockout/tagout procedures. He found that Sebright did not perform an adequate hazard analysis, which would have uncovered the risk of an untrained employee failing to perform lockout/tagout procedures before entering the extruder. Berke supported this conclusion by noting that Sebright did not document customer feedback as most responsible manufacturers do. Finally, Berke concluded that Sebright increased the risk of injury by failing to comply with relevant industry standards, including those calling for startup alarms when there is limited visibility of dangerous areas.
Holmquist and Skogen, also qualified experts who performed an extensive review of the relevant evidence, disagreed. They concluded that Sebright could not have foreseen that someone would ignore its lockout/tagout warnings, and that Sebright performed an adequate hazard analysis and complied with relevant industry standards.
As to the locking selector switch, it is unclear at this stage of the litigation whether VZ Hogs’ disabling of this safety feature was a causal factor in Montemayor’s accident. Cowell, the supervisor who typically held the key to the locking selector switch, personally directed Gray to attempt to fix the extruder after Montemayor began unclogging the extruder by hand, without first instructing Montemayor to cease his efforts. Although Cowell stated that he would have retained the key to the extruder to prevent it from being operated during maintenance, a reasonable person could find that Cowell would have given the key to Gray so that Gray could attempt to fix the extruder as requested.
Moreover, neither the locking selector switch nor the lockout/tagout procedures are automatic safeguards. Both rely on operators to remove and reattach components to ensure the safe maintenance of the extruder. We have held that it is foreseeable that a user may fail to engage safety features that require the periodic attachment and detachment of the feature.
Viewing all of the evidence and the inferences arising from it in the light most favorable to Montemayor, there is “a specific factual dispute concerning [Sebright’s] awareness of [the] risk” of Montemayor’s injury. Even if there was not an explicit factual dispute in the record, “reasonable persons might differ” as to the foreseeability of Montemayor’s injury under the circumstances. Accordingly, this is a “close case” that must be resolved by the jury, not the court.
Our holding does not create “bad law” as the dissent argues. Indeed, this result is consistent with our longstanding precedent, discussed above. Moreover, a jury may ultimately find that Montemayor’s injury was not reasonably foreseeable, that Sebright was not negligent, or that others were. And manufacturers may still avoid the burden of going to trial when the evidence does not present a factual dispute or a “close case” for the factfinder to resolve. But this is a close case.
Were we to end it, we would have to “weigh facts or determine the credibility of affidavits and other evidence.” That role is properly reserved for the jury.
For the foregoing reasons, we grant Sebright’s motion to strike, reverse the decision of the court of appeals, and remand to that court to consider the remaining issues on appeal.
CRITICAL THINKING:
Does it make a difference whether a judge or a jury decide the foreseeability of the situation? For what reason would the law require the judge to have a jury settle the matter?
ETHICAL DECISION MAKING:
Do you think the foreseeability of a situation should determine to what extent a manufacturer should have a duty of care to a user? If not, what other criteria should be used?