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This case required the Supreme Court to decide whether an airplane manufacturer owed a duty to a noncommercial pilot who, after purchasing an airplane from the manufacturer but failing to receive all of the flight training promised to him as part of that purchase, died when his airplane crashed. The district court found the manufacturer was negligent. The court of appeals reversed, concluding that the manufacturer did not have a duty to provide training and that the claims were barred by the educational malpractice doctrine. The Supreme Court affirmed, holding (1) the manufacturer did not owe a duty to the pilot, and thus the district court erred in its judgment; and (2) accordingly, the Court did not reach, among other things, the issues of educational malpractice or causation.Receive FREE Daily Opinion Summaries by Email
STATE OF MINNESOTA
IN SUPREME COURT
A10-1242, A10-1243, A10-1246, A10-1247
Court of Appeals
Anderson, G. Barry, J.
Dissenting, Anderson, Paul H. and Page, JJ.
Took no part, Stras, J.
Rick Glorvigen, as Trustee for the next of
kin of decedent James Kosak,
Thomas M. Gartland, as Trustee for the
next of kin of decedent Gary R. Prokop,
Filed: July 18, 2012
Office of Appellate Courts
Cirrus Design Corporation,
Estate of Gary Prokop, by and through
Katherine Prokop as Personal
University of North Dakota Aerospace
Philip Sieff, Vincent J. Moccio, Robins, Kaplan, Miller & Ciresi, L.L.P., Minneapolis,
Minnesota, for appellant Glorvigen.
Sam Hanson, Diane B. Bratvold, Briggs and Morgan, P.A., Minneapolis, Minnesota; and
Edward J. Matonich, Darrold E. Persson, David Arndt, Matonich & Persson, Chartered,
Hibbing, Minnesota, for appellant Gartland.
Bruce Jones, Daniel J. Connolly, Daniel J. Herber, Faegre & Benson LLP, Minneapolis
Patrick E. Bradley, Reed Smith, LLP, Princeton, New Jersey, for respondent Cirrus
Timothy R. Schupp, Robert W. Vaccaro, Gaskins, Bennett, Birrell, Schupp, L.L.P.,
Minneapolis, Minnesota, for appellant Estate of Prokop.
Charles E. Lundberg, Steven P. Aggergaard, Bassford Remele, A Professional
Association, Minneapolis, Minnesota; and
William J. Katt, Leib & Katt, LLC, Milwaukee, Wisconsin, for respondent University of
North Dakota Aerospace Foundation.
Lori Swanson, Attorney General, Alan I. Gilbert, Solicitor General, John S. Garry,
Assistant Attorney General, Saint Paul, Minnesota, for amicus curiae State of Minnesota.
Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota, for amicus curiae
Minnesota Assocation for Justice.
Mark B. Rotenberg, General Counsel, William P. Donohue, Deputy General Counsel,
University of Minnesota, Minneapolis, Minnesota, for amicus curiae Regents of the
University of Minnesota.
Mark S. Olson, Michael J. Vanselow, Mark Schneebeck, Oppenheimer Wolff &
Donnelly LLP, Minneapolis, Minnesota; and
Hugh F. Young, Jr., Product Liability Advisory Council, Reston, Virginia, for amicus
curiae Product Liability Advisory Council, Inc.
William M. Hart, Damon L. Highly, Meagher & Geer P.L.L.P., Minneapolis, Minnesota,
for amici curiae Minnesota Private College Council, Minnesota Career College
Association, and Minnesota Defense Lawyers Association.
Robert J. Hajek, Hajek & Beauclaire, LLC, Minnetonka, Minnesota; and
Kenneth M. Mead, Baker Botts, L.L.P., Washington, DC; and
Ronald D. Golden, Raymond C. Speciale, Yodice Associates, Frederick, Maryland, for
amicus curiae Aircraft Owners and Pilots Association.
An airplane manufacturer’s duty to warn does not include a duty to provide
training to pilots who purchase an airplane from the manufacturer.
A pilot may not recover in tort against an airplane manufacturer when the duty
owed to the pilot by the manufacturer was imposed only by contract.
ANDERSON, G. Barry, Justice.
This case requires our court to decide whether an airplane manufacturer owed a
duty to a noncommercial pilot who, after purchasing an airplane from the manufacturer
but failing to receive all of the flight training promised to him as part of that purchase,
died when his airplane crashed. Gary R. Prokop and his passenger, James Kosak, died
when Prokop’s Cirrus SR22 airplane crashed near Hill City. Prokop had purchased the
SR22 just 1 month before the crash. As part of the purchase of the SR22, Cirrus provided
a training program for new owners. That training program was designed to help alreadylicensed pilots transition into the SR22. One of the program’s lessons detailed how to
recover from a specific emergency situation while flying the SR22.
received this lesson, and he was attempting to recover from that emergency situation
when he crashed.
Following the crash, Rick Glorvigen, as trustee for the next of kin of Kosak,
commenced an action against Cirrus and Prokop’s estate in Itasca County District Court.
Thomas M. Gartland, as trustee for the next of kin of Prokop, also commenced an action
against Cirrus in Itasca County District Court. Glorvigen and Gartland alleged that
Cirrus, as a manufacturer and seller, breached its duty to warn and to provide adequate
instructions for the safe use of its airplanes. Cirrus sought indemnity from the University
of North Dakota Aerospace Foundation (UNDAF), with whom Cirrus had contracted to
provide the training to new owners. UNDAF subsequently intervened in the case.
The district court combined the two cases.
At trial, the jury found Cirrus,
UNDAF, and Prokop negligent. Cirrus and UNDAF made motions for judgment as a
matter of law, which the district court denied. Cirrus and UNDAF appealed. The court
of appeals reversed the district court, concluding that Cirrus did not have a duty to
provide training and that the claims were barred by the educational malpractice doctrine.
Glorvigen, Gartland, and Prokop’s estate petitioned our court for review. On appeal, the
parties raise four primary issues: (1) whether Cirrus owed a duty, (2) whether the
negligence claim against Cirrus and UNDAF is barred by the educational malpractice
doctrine, (3) whether the evidence presented at trial was legally sufficient to support the
jury’s finding on causation, and (4) whether UNDAF can be held liable as an intervenor.
Because we conclude that Cirrus did not owe a duty to Prokop or Kosak, we affirm.
Cirrus SR22 Purchase
In December 2002 Gary R. Prokop, a licensed pilot, purchased a Cirrus SR22
airplane. The SR22 was Prokop’s second airplane. Before purchasing the SR22, he
owned and flew a 1968 Cessna 172 Sky Hawk, logging at least 200 hours of flight time
over the course of 2 years in the Cessna.
It is undisputed that piloting the Cessna is different than piloting the SR22. Cirrus
had incorporated into the SR22 “several features that [were] uncommon or entirely new
to certified general aviation aircraft.” Because of these features, the SR22 was more
sophisticated and powerful than the Cessna. For example—and most important here—
the SR22 had an autopilot function and the Cessna did not. Captain James M. Walters,
an expert airplane accident investigator, testified at trial about the significance of an
autopilot. According to Captain Walters,
an autopilot will do a lot of good things for the pilot of an aircraft
depending on the capabilities of that particular autopilot and this one [in the
SR22] is a very good one. In its most basically [sic] form it will keep the
It will also maintain a heading across the ground and it will maintain
altitude if it’s all program[m]ed properly to do that.
The SR22 also had an advanced GPS system and travelled at a cruising speed of 180
knots, one-third times faster than the Cessna.
Finally, the Federal Aviation
Administration (FAA) requires most pilots, including Prokop, to earn a “high
performance endorsement” before flying the SR22.
Despite the special qualifications required to fly the SR22, Cirrus marketed the
airplane to “pilots with a wide range of experience.” To “facilitate[ a] pilot’s transition to
the SR22,” Cirrus provided a “two-day, new-owner training program” as part of the
purchase price of the airplane. Cirrus described the training program in a document
provided to new owners called the “Pilot Training Agreement.” Cirrus also provided
other written materials to new owners, including a Cirrus SR22 Training Manual, an
FAA-approved Pilot’s Operating Handbook, and a separate Autopilot Pilot’s Operating
Handbook. As a new owner, Prokop received all of these resources when he purchased
It is standard in the general aviation industry to provide “transition training” to
already-licensed pilots who plan to fly a new or unfamiliar airplane. Transition training
builds on the pilot’s previous experience and “give[s the pilot] extensive[, individualized]
training” in the new airplane, “teach[ing the pilot] the differences” between the previous
airplane and the new airplane. A pilot is trained to “proficiency” when the pilot can
“continually repeat whatever it is that he is expected to do in a proficient manner.”
As noted earlier, Cirrus provided transition training as part of the purchase price of
the SR22. In the past, Cirrus had contracted with the Wings Aloft flight school to
provide transition training to new owners. Then, from October 2001 to July 2002, Cirrus
provided transition training to new owners directly. But by the time Prokop purchased
his SR22, Cirrus had contracted with the UNDAF flight school—an entity separate from
the University of North Dakota1—to provide transition training.
Prokop purchased his SR22 and registered for transition training in December
2002. The Cirrus SR22 Training Manual outlined the 2-day transition training Prokop
was to receive. Cirrus explained that the purpose of the training program
[was] to build on the pilot’s existing knowledge and experience, by
reviewing the systems and procedures of the SR22, and by paying close
attention to those areas that may be new to many pilots and owners.
At the completion of the training, pilots should feel confident and
comfortable with the operation of their new aircraft.
The training consisted of five separate sessions. In each session, the new owner would
receive a lesson on the ground previewing certain in-flight maneuvers and concerns.
Following each ground lesson, the owner would then participate in an in-flight lesson in
which he would review in the air what he had just learned on the ground.2
As the new owner completed each round of ground and in-flight lessons, the
UNDAF instructor would check off the ground lessons, and the tasks and maneuvers the
owner completed in the air, on a corresponding syllabus. At the same time, the instructor
would grade the owner’s performance by placing the check mark under “U” for
“unsatisfactory,” “M” for “marginal,” “S” for “satisfactory,” and “E” for “excellent.”
UNDAF describes itself as “a public, non-profit corporation serving the business
arm between the aerospace industry and the John D. Odegard School of Aerospace
Sciences at the University of North Dakota.”
In addition to the 2-day transition training, Prokop contracted for 2 days of
supplementary training. He also sought a “high-performance aircraft endorsement” and
an “instrument competency check” through the training.
The syllabus explained that “[s]kipped items should be left unchecked,” though “[a]
maneuver in which a U or M grade is posted may be discontinued and remain incomplete
at the instructor’s discretion.” In order to receive a completion certificate, however, the
owner had to complete all maneuvers in the Final Evaluation Flight earning an S or E
At the time Prokop purchased the SR22 and began training, he was licensed only
to fly in “visual flight rule,” or VFR conditions.3 VFR conditions are weather conditions
in which “visibility is three miles or greater” and the pilot is able to see the ground.
Because Prokop was only VFR licensed, he could not legally fly in “instrument
meteorological conditions,” or IMC.
In IMC, a pilot is deprived of visual ground
references and must rely on instruments to fly the airplane.
Cirrus noted in its training manual that inadvertently entering IMC, a circumstance
known as “VFR into IMC,” is an emergency situation. The emergency arises because the
pilot experiences spatial disorientation, which is a disagreement between the pilot’s
senses and the pilot’s visual cues. Captain Walters explained:
Basically [spatial] disorientation is when your mind perceives something
different in terms of your relationship with the earth . . . . Your mind thinks
it’s climbing or descending or turning when, in fact, it may not be or in fact
[may be] just the opposite.
It’s a disagreement in simple terms in terms of what your senses are
feeling, your senses are essentially your ear, your inner ear is a big one . . .
[it’s] what we would call flying by the seat of your pants, you know, how
that feels. So when you don’t agree you have a real problem, you don’t
Prokop lacked an instrument rating, which would have qualified him to fly in
conditions other than VFR.
know which one to believe, and typically you tend to believe the visual one
which isn’t what you should believe . . . .
Spatial disorientation caused by VFR into IMC is a leading cause of small plane crashes.
In the SR22, the correct procedure to follow upon entering inadvertent IMC is to activate
Cirrus provided Prokop with information, in a variety of formats, about using the
autopilot to recover from VFR into IMC in the SR22. First, the Pilot’s Operating
Handbook and Autopilot Pilot’s Operating Handbook explained how to use the autopilot,
and the Cirrus SR22 Training Manual included diagrams about coping with inadvertent
IMC. Second, Prokop watched PowerPoint slides about the autopilot and recovering
from VFR into IMC during a ground lesson. Finally, the training syllabus indicates that
in Flight Lesson 4a, Prokop was supposed to practice a maneuver called “Recovery from
VFR into IMC (auto-pilot assisted).” Flight Lesson 4a is at the heart of this case.
Prokop arrived for training in Duluth on December 9, 2002. Prokop’s UNDAF
instructor was Yu Weng Shipek. It appears from the record that Prokop’s training began
in keeping with the process discussed earlier: each time Prokop completed a ground
lesson or in-flight maneuver, Shipek placed a corresponding check mark next to the
lesson or maneuver on the syllabus.4
The majority of the maneuvers listed on the
syllabus have a corresponding check mark. But none of the maneuvers under Flight
Lesson 4a have a corresponding check mark. According to the syllabus, that omission
indicates that the maneuvers were either skipped or left incomplete at Shipek’s discretion.
Prokop received “Satisfactory” grades on his maneuvers.
Flight Lesson 4a was titled “IFR5 Flight (non-rated)” and was supposed to follow
a ground lesson titled “VFR into IMC Procedures.” Flight Lesson 4a is generally taught
“under the hood.” In “under the hood” lessons, a new owner wears a hood over his head
so that he cannot use visual cues outside the airplane. In Flight Lesson 4a, the owner is
supposed to activate the autopilot and make a 180 degree turn, as if exiting inadvertent
IMC, while wearing the hood. Shipek testified that he gave Flight Lesson 4a to Prokop
but failed to document it on the syllabus. But neither the syllabus nor Prokop’s log books
confirm that the lesson was completed.
Evidence was presented at trial emphasizing the importance of learning to activate
the autopilot while in flight.
For example, John Wahlberg, UNDAF’s director of
transition training at the Cirrus facility, testified that autopilot-assisted recovery is “the
safest maneuver” during VFR into IMC, but that “in order for this training to take, in
order for training to be effective, you can’t just do it on the ground . . . . It has to be done
up in the sky with the pilot.” Wahlberg also agreed that the speed at which an SR22 can
travel complicates the recovery because it requires a fast response from the pilot,
increasing the importance that the pilot is able to execute the recovery procedure quickly,
or the pilot “may die.” Further, Captain Walters testified that skipping an in-flight lesson
“IFR” appears to stand for “Instrument Flight Rating,” which relates to the flying
and navigating of an airplane using only instruments.
On January 18, 2003, Prokop and his friend and passenger James Kosak intended
to fly from Grand Rapids to Saint Cloud to watch their sons play in an early-morning
hockey game. To determine whether weather conditions were safe to fly in, Prokop
called FAA weather briefers twice. When Prokop called the FAA at 4:56 a.m., the
briefer told Prokop that there was “potential for some IFR” and “occasional moderate
turbulence.” Prokop called the FAA again around 5:45 a.m. This time the briefer told
Prokop there were “marginal” conditions around Grand Rapids. Prokop told the briefer
he was “hoping to slide underneath [the conditions] and then climb out.”
Walters testified that while these conditions were not ideal for flying, Prokop could fly
legally under these circumstances.
Around 6:30 a.m., while it was still dark outside, Prokop and Kosak departed from
the Grand Rapids airport in Prokop’s SR22.
The flight began in VFR conditions.
According to Captain Walters, Prokop started the flight by taking off to the northwest.
Soon after the takeoff, Prokop encountered turbulence. Because Prokop was likely
“being bumped around like crazy,” Captain Walters said he believed that Prokop “[made]
a decision. He [said], this is lousy, I’m going home.” But before Prokop could safely
begin his route home, he entered IMC-like conditions and became spatially disoriented.
Captain Walters explained:
He’s not an instrument rated pilot. He’s in a really uncomfortable position.
He can’t see the horizon, it’s dark, there’s very few lights to navigate by but
he wants to go home.
Walters stated that Prokop struggled to maintain appropriate altitude and control of the
angle of the airplane due to his spatial disorientation. Eventually the SR22 entered an
accelerated stall.6 Captain Walters testified that the accelerated stall
was a sudden event.
It wasn’t something that was expected because it happened at a
speed that was faster than he expected. It happened at an altitude of the
airplane that was different than expected, so it was a surprising event.
After the airplane entered the accelerated stall, Prokop lost control of the airplane. The
airplane then “rapidly descended to the ground,” killing both Prokop and Kosak.
Captain Walters testified that the entrance into “IMC-like conditions” triggered the
crash: “Had [Prokop] been able to recover during those IMC-like conditions certainly the
accident would not have happened.” Captain Walters also testified that Prokop had not
activated the autopilot at all during the flight. Finally, Captain Walters testified to “three
root causes” of the crash:
(1) “Prokop made a poor decision [to go flying],”
(2) “Prokop was not given the tools that he needed to make an appropriate decision,” and
(3) Prokop was not “given the proper tools to be able to recover from that event.”
In July 2005 Rick Glorvigen, as trustee for the next of kin of Kosak, commenced
an action against both Cirrus and Prokop’s estate. Glorvigen alleged negligence and
breach of an implied warranty of merchantability against Cirrus, and alleged negligent
piloting against Prokop’s estate. At the same time, Thomas M. Gartland, as trustee for
An accelerated stall occurs when there is not enough air moving across the
airplane’s wing to keep the airplane aloft.
the next of kin of Prokop, also brought a wrongful death action against Cirrus alleging
negligence and various products liability claims.
The negligence claims of both
Glorvigen and Gartland alleged that Cirrus had a duty to train Prokop by virtue of
including transition training as part of the purchase price of the SR22.
In September 2005 Cirrus removed the two cases to federal district court, arguing
that FAA regulations preempted state law claims. The court rejected Cirrus’s claims and
remanded both cases to state court. On remand, the state district court “consolidated the
actions for purposes of discovery and trial.”
Cirrus subsequently brought a third-party action against employees of the FAA.
The FAA responded to the third-party action by removing the cases to federal district
court. Cirrus then sought summary judgment in the federal district court. In February
2008 the court granted Cirrus’s motions for summary judgment on claims of strict
liability and breach of implied and express warranty. But the court denied Cirrus’s
motions for summary judgment on the claim of preemption and, notably, on the claim of
negligence. The federal district court then remanded the cases to state court.
In September 2008 UNDAF intervened.
UNDAF asserted that it hoped “to
control the strategy of and to present its own defense for any claims for which UNDAF
may have indemnity liability under the indemnity agreement between UNDAF and
Cirrus.” UNDAF also submitted answers to the complaints brought by Glorvigen and
Gartland against Cirrus. Meanwhile, Cirrus appealed the federal district court’s remand
of the cases to the state court to the Eighth Circuit, which affirmed the federal district
court. Glorvigen v. Cirrus Design Corp., 581 F.3d 737 (8th Cir. 2009).
Finally, in May 2009 the combined remaining claims of Glorvigen and Gartland
were tried to a state court jury. At the close of trial, the district court submitted a special
verdict form to the jury. The special verdict form asked the jury to consider whether
Cirrus, UNDAF, and Prokop were (1) negligent, and if so (2) whether that negligence
was a direct cause of the crash. The special verdict form also asked whether UNDAF had
acted as an agent for Cirrus at the time of Prokop’s training, and whether Cirrus and
UNDAF had acted in a joint enterprise. The jury answered “yes” to all of the questions
presented and found Cirrus 37.5 percent negligent, UNDAF 37.5 percent negligent, and
Prokop 25 percent negligent.
The jury awarded Glorvigen (on behalf of Kosak)
$7,400,000 in damages and Gartland (on behalf of Prokop) $12,000,000 in damages.
Cirrus and UNDAF brought motions for (1) judgment as a matter of law, (2) a new
trial, and (3) amendment of the findings of fact, conclusions of law, order for judgment,
and judgment. The district court denied the motions for judgment as a matter of law and
for a new trial. The court granted the motions for amendment of findings of fact,
conclusions of law, order for judgment and judgment.
Cirrus and UNDAF appealed the district court’s denial of their motions for
judgment as a matter of law. Glorvigen v. Cirrus Design Corp., 796 N.W.2d 541 (Minn.
App. 2011). A divided panel of the court of appeals concluded that Cirrus and UNDAF
were not liable as a matter of law because Cirrus’s duty to warn did not include a duty to
provide pilot training, and because the negligence claim was barred by the educational
malpractice doctrine. Id. at 552-58. The dissent concluded that “the majority’s view of
this case depends on weighing the facts found by the jury in a light unfavorable to its
verdict, sidestepping settled principles of negligence law while expanding the
educational-malpractice doctrine.” Id. at 561 (Klaphake, J., dissenting). We granted
review of the claims of Glorvigen, Gartland, and Prokop’s estate, and also granted the
conditional petition for further review brought by UNDAF.
On appeal, appellants Glorvigen, Gartland, and Prokop’s estate argue that they
submitted a products liability claim based on a theory of negligence at trial, and that the
jury’s verdict in their favor should not be overturned. First, appellants contend that
Cirrus and UNDAF owed a duty to Prokop and Kosak to give Flight Lesson 4a because,
as a supplier and manufacturer, Cirrus owed a duty to give adequate instructions in the
safe use of its airplane. Second, appellants contend that even if Cirrus did not owe a duty
to give Flight Lesson 4a as part of its duty to give adequate instructions, Cirrus assumed a
duty to provide Flight Lesson 4a when it undertook to provide the lesson as part of the
purchase price of the SR22. Under either theory, appellants contend that the jury found
that Cirrus breached its duty by failing to provide Flight Lesson 4a and that the district
court’s denial of judgment as a matter of law (“JMOL”) was appropriate.
Cirrus argues that it did not owe a duty to train Prokop and thus appellants’
products liability claim fails. First, Cirrus contends that it properly discharged its duty to
give adequate instructions through the written instructions provided to Prokop. Second,
Cirrus contends that it could not assume a duty in tort to provide Flight Lesson 4a
because any such duty arose out of the contract with Prokop. Additionally, Cirrus
contends that even if it owed a duty to provide Flight Lesson 4a, the educational
malpractice doctrine bars appellants’ claim, and that appellants did not establish
causation at trial.
UNDAF argues that it owed no relevant duty to Prokop or Kosak. First, UNDAF
contends that it had no duty to prevent injury to Prokop after its instruction with Prokop
ended. Second, UNDAF contends that it owed no duty to Kosak because it had no
special relationship with Kosak. Additionally, UNDAF contends that the educational
malpractice doctrine bars appellants’ claim, that appellants failed to establish causation at
trial, and that appellants never asserted claims against UNDAF and thus UNDAF cannot
be held liable.
We turn first to the products liability claim. But before reaching the merits of the
claim, we consider two preliminary procedural issues raised by Cirrus. First, Cirrus
contends that the federal district court “necessarily foreclose[d]” appellants’ products
liability claim based on negligence when the court dismissed on summary judgment
appellants’ strict liability for failure to instruct claim. See Hauenstein v. Loctite Corp.,
347 N.W.2d 272, 274 (Minn. 1984) (“ ‘As a practical matter, where the strict liability
claim is based on . . . failure to warn . . . there is essentially no difference between strict
liability and negligence.’ ” (quoting Holm v. Sponco Mfg., Inc., 234 N.W.2d 207, 215
(Minn. 1982))). Second, Cirrus contends that at trial appellants pleaded and argued a
common law negligence claim, not a products liability claim. Thus, Cirrus contends that
appellants are now attempting to “recharacterize” their common law negligence claim,
and that the products liability claim is not before our court. Because we conclude that
appellants’ claim fails on its merits, we need not and do not reach these procedural issues.
We turn now to the merits of the products liability claim. Appellants Glorvigen,
Gartland, and Prokop’s estate appeal from the court of appeals’ reversal of the district
court’s denial of Cirrus’s and UNDAF’s motions for JMOL. We review a district court’s
denial of a JMOL motion de novo. Bahr v. Boise Cascade Corp., 766 N.W.2d 910, 919
(Minn. 2009). In this case, our review of the denial of the JMOL motions requires us to
determine whether Cirrus owed a duty to Prokop or Kosak. We also review the existence
of a duty de novo. Bjerke v. Johnson, 742 N.W.2d 660, 664 (Minn. 2007). Finally, when
reviewing the existence of a duty on denial of a JMOL motion, we view the evidence in
the light most favorable to the verdict. See Bahr, 766 N.W.2d at 919.
Products liability is “[a] manufacturer’s or seller’s tort liability for any damages or
injuries suffered by a buyer, user, or bystander as a result of a defective product.
Products liability can be based on a theory of negligence, strict liability, or breach of
warranty.” Black’s Law Dictionary 1328 (9th ed. 2009). When liability is based on a
theory of negligence, “a plaintiff must prove (1) the existence of a duty of care, (2) a
breach of that duty, (3) an injury, and (4) that the breach of the duty of care was a
proximate cause of the injury.” Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011).
Duty is a threshold question “[b]ecause a defendant cannot breach a nonexistent duty.”
Id. Further, “whether there exists a duty is a legal issue for court resolution.” Germann
v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924 (Minn. 1986). If no duty exists, it is
error for the district court to submit the negligence claim to the jury. See id. at 924-25.
In Minnesota, “negligence law on a supplier’s duty to warn is well developed. In
general, a supplier has a duty to warn end users of a dangerous product if it is reasonably
foreseeable that an injury could occur in its use.” Gray v. Badger Mining Corp., 676
N.W.2d 268, 274 (Minn. 2004). A supplier’s duty to warn extends to all “reasonably
foreseeable users.” Hauenstein v. Loctite Corp., 347 N.W.2d 272, 275 (Minn. 1984).
We have described the duty to warn as consisting of “two duties: (1) [t]he duty to give
adequate instructions for safe use; and (2) the duty to warn of dangers inherent in
improper usage.” Frey v. Montgomery Ward & Co., 258 N.W.2d 782, 787 (Minn. 1977).
“To be legally adequate, [a] warning should (1) attract the attention of those that the
product could harm; (2) explain the mechanism and mode of injury; and (3) provide
instructions on ways to safely use the product to avoid injury.” Gray, 676 N.W.2d at
274. Foreseeability is the “linchpin for determination whether a duty to warn exists.”
Germann, 395 N.W.2d at 924. To determine whether a duty to warn exists, our court
goes to the event causing the damage and looks back to the alleged
negligent act. If the connection is too remote to impose liability as a matter
of public policy, [we] then hold there is no duty, and consequently no
liability. On the other hand, if the consequence is direct and is the type of
occurrence that was or should have been reasonably foreseeable, [we] then
hold as a matter of law a duty exists. Other issues such as adequacy of the
warning, breach of duty and causation remain for jury resolution.
Id. at 924-25.
Here, no party disputes that as a supplier and manufacturer of airplanes, Cirrus had
a duty to warn foreseeable users like Prokop. Further, no party disputes that Cirrus’s
duty to warn included a “duty to give adequate instructions” on the safe use of Cirrus
airplanes to foreseeable users. Gray, 676 N.W.2d at 274. Instead, the dispute centers on
whether Cirrus’s duty to warn required Cirrus to provide Flight Lesson 4a.
We conclude that Cirrus’s duty to warn did not require Cirrus to provide Flight
Cirrus provided Prokop with written instructions on the autopilot and
recovery from VFR into IMC—the same information that was to be presented in Flight
Lesson 4a—in a number of formats. The Pilot’s Operating Handbook and Autopilot
Pilot’s Operating Handbook explained how to use the autopilot.
The Cirrus SR22
Training Manual included diagrams about coping with inadvertent IMC. And Prokop
watched PowerPoint slides about the autopilot and VFR into IMC during a ground lesson.
Appellants do not argue that these written instructions were inaccurate or
incomplete, only that the written instructions could not adequately instruct Prokop in the
safe use of the SR22 because the instructions necessarily lacked Flight Lesson 4a. We
disagree. The duty to warn has never before required a supplier or manufacturer to
provide training, only accurate and thorough instructions on the safe use of the product,
as Cirrus has done here. See Frey, 258 N.W.2d at 787.
Our case law bears out this conclusion. For example, in Frey v. Montgomery
Ward & Co., we considered whether a manufacturer of space heaters breached its duty to
warn because its “printed booklets did not state that the space heaters should not be used
in house trailers”—information necessary to “assure safe use” of the product. Id. at 786,
788 (emphasis added). Likewise, in Germann v. F.L. Smithe Machine Co., we held that
the evidence was sufficient to support a verdict that a manufacturer of hydraulic presses
breached its duty to warn because its “manuals containing instructions for assembling
and maintenance” did not warn of the danger “of running the press without a properly
attached and operating safety bar.” 395 N.W.2d at 923, 925 (emphasis added). Finally,
in Gray v. Badger Mining Corp., we considered whether a supplier of sand had a duty to
warn, looking to the supplier’s “warnings and safety instructions printed on a Material
Safety Data Sheet,” to see if they adequately warned of the “hazards of silica dust.” 676
N.W.2d at 272, 281-82 (emphasis added).
These cases demonstrate that we have recognized that the duty to warn requires a
supplier or manufacturer to provide adequate instructions and warnings to foreseeable
users. Frey, 258 N.W.2d at 787. But there is no duty for suppliers or manufacturers to
train users in the safe use of their product. Indeed, imposing a duty to train would be
wholly unprecedented. Appellants cite no case—from any court—in which a supplier or
manufacturer was obligated to provide training in order to discharge its duty to warn. Yet
that obligation is exactly what appellants request our court to impose here. Specifically,
appellants argue that because it was foreseeable that “a pilot . . . not adequately instructed
and trained to take the necessary actions in the SR22 to escape from inadvertent entry
into IMC” may have an accident, and because a “direct connection exists between the
omitted training and the accident here . . . a conclusion that a duty exists necessarily
While we agree that foreseeability guides our
determination of whether a duty to warn exists, we do not agree that foreseeability leads
to a conclusion that Cirrus’s duty to warn included an obligation to provide training.
Cirrus provided written instructions that “(1) attract[ed] the attention of those that
the product could harm; (2) explain[ed] the mechanism and mode of injury; and
(3) provide[d] instructions on ways to safely use the product to avoid injury,” as required
under our law. Gray, 676 N.W.2d at 274. Thus, Cirrus adequately discharged its duty to
warn. Because Cirrus adequately discharged its duty to warn without providing training,
to hold now that Cirrus must provide training would either create a new common law
duty to train or expand the duty to warn to include training.
Under either theory,
imposition of a duty to train would require an unprecedented expansion of the law, and
we decline to do so. Accordingly, we conclude that Cirrus did not owe a duty to train
This conclusion does not end our analysis, however. While Cirrus did not owe a
duty to train Prokop, Cirrus may have assumed a duty to provide Flight Lesson 4a by
undertaking to provide the lesson. We have said that “[i]t is ancient learning that one
who assumes to act, even though gratuitously, may thereby become subject to the duty of
acting carefully, if he acts at all.” Isler v. Burman, 305 Minn. 288, 295, 232 N.W.2d 818,
822 (1975) (citation omitted). In other words, “one who voluntarily assumes a duty must
The dissent argues that the question whether Cirrus was obligated to provide
training to Prokop was for jury resolution. We disagree. The dissent is correct that the
adequacy of a warning is for jury resolution, but whether a duty exists at all is for court
resolution. Germann, 395 N.W.2d at 924. As noted earlier, whether a duty exists is a
“threshold” question “[b]ecause a defendant cannot breach a nonexistent duty.”
Domagala, 805 N.W.2d at 22. Thus, if no duty exists as a matter of law, the remaining
elements of the claim should not be submitted to the jury. Because no duty to train exists
as a matter of law, it was improper in this case for the jury to consider whether Cirrus
breached that duty, and we need not defer to the jury’s determination.
exercise reasonable care,” even if he is not otherwise obligated to provide the care, “or he
will be responsible for damages resulting from his failure to do so.” Id. at 295, 232
N.W.2d at 822
Nevertheless, a party is not responsible for damages in tort if the duty breached
was “ ‘merely . . . imposed by contract,’ ” and not “ ‘imposed by law.’ ” D & A Dev. Co.
v. Butler, 357 N.W.2d 156, 158 (Minn. App. 1984) (quoting Keiper v. Anderson, 138
Minn. 392, 398, 165 N.W. 237, 238 (1917)). The “ ‘fundamental difference[s] between
tort and contract’ ” actions support this rule. Id. at 158 (quoting W. Prosser, Handbook of
the Law of Torts § 92, at 613 (4th ed. 1971)). We explained those differences in 80 South
Eighth Street Ltd. Partnership v. Carey-Canada, Inc.:
Tort actions and contract actions protect different interests. Through a tort
action, the duty of certain conduct is imposed by law and not necessarily by
the will or intention of the parties. The duty may be owed to all those
within the range of harm, or to a particular class of people. On the other
hand, contract actions protect the interests in having promises performed.
Contract obligations are imposed because of conduct of the parties
manifesting consent, and are owed only to the specific parties named in the
486 N.W.2d 393, 395-96 (Minn. 1992). Because of the differences between tort and
contract actions, “[w]hen a contract provides the only source of duties between the parties,
Minnesota law does not permit the breach of those duties to support a cause of action in
United States v. Johnson, 853 F.2d 619, 622 (8th Cir. 1988) (citing
Lesmeister v. Dilly, 330 N.W.2d 95, 102 (Minn. 1983)).
Here, Prokop contracted with Cirrus to purchase the SR22. In that contract, Cirrus
undertook to provide Flight Lesson 4a as part of the transition training included in the
purchase price of the SR22. Accordingly, Cirrus’s obligation to provide Flight Lesson 4a
arose from the contract.
Where a party cannot prove that the duty at issue arose
independent of a contract, “Minnesota law precludes [that party] from recovering in
negligence based upon breach of [that duty.]” Johnson, 853 F.2d at 622. As discussed
above, we conclude that Cirrus does not owe a duty imposed by law to provide Flight
Lesson 4a. Thus, because the duty at issue—to provide Flight Lesson 4a—could only
have arisen from the contract, appellants may not recover in tort. See id.; D & A Dev. Co.,
357 N.W.2d at 158-59.
Because we conclude that (1) Cirrus did not owe a duty to train and that (2) Cirrus
did not assume a duty to provide Flight Lesson 4a outside of its contract with Prokop, we
hold that Cirrus did not owe a duty to Prokop or Kosak, the breach of which is recoverable
We therefore hold that the district court erred when it denied Cirrus’s and
UNDAF’s motions for JMOL, and affirm the court of appeals. Accordingly, we do not
reach the issues of educational malpractice, causation, or UNDAF’s liability.
STRAS, J., took no part in the consideration or decision of this case.
ANDERSON, Paul H., Justice, dissenting.
I respectfully dissent. I write separately because I disagree with the majority’s
holding that as a matter of law no consumer product exists for which a supplier is
required to give any warning to consumers beyond written instructions, no matter how
dangerous the product, and regardless of any jury findings to the contrary. The majority
makes this holding even in the face of a supplier’s promise—here, Cirrus’s promise—to
provide certain nonwritten instructions. I conclude the majority’s holding usurps the role
of the jury and misreads our precedent. In particular, I would defer to the verdict, which
is based on the jury’s finding that Cirrus’s warning to Prokop was inadequate without
Flight Lesson 4a.
I would also hold that Cirrus assumed a duty in tort despite
maintaining a contractual relationship with Prokop. Therefore, I would reverse the court
of appeals and allow the jury verdict to stand.
To prove a products liability claim based on a theory of negligence, appellants
Glorvigen, Gartland, and Prokop’s estate “must prove (1) the existence of a duty of care,
(2) a breach of that duty, (3) an injury, and (4) that the breach of the duty of care was a
proximate cause of the injury.” Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011).
In Minnesota, suppliers of dangerous products have “a duty to warn end users of [the]
dangerous product if it is reasonably foreseeable that an injury could occur in its use.”
Gray v. Badger Mining Corp., 676 N.W.2d 268, 274 (Minn. 2004). The existence of a
duty to warn is a legal question “for court resolution.” Germann v. F.L. Smithe Mach.
Co., 395 N.W.2d 922, 924 (Minn. 1986). In this case, both the federal district court and
state district court determined that Cirrus owed a duty to warn foreseeable users like
Prokop. No party argues otherwise.
After the state district court determined that Cirrus owed a duty to warn, that court
submitted the remaining elements of appellants’ claim to the jury. The court properly
submitted these elements to the jury because while the existence of a duty to warn is for
court resolution, the other elements of a products liability negligence claim are not.
Balder v. Haley, 399 N.W.2d 77, 81 (Minn. 1987); Germann, 395 N.W.2d at 924-25.
Specifically, the “adequacy of the warning” should “remain for jury resolution.” Balder,
399 N.W.2d at 81; Germann, 395 N.W.2d at 924-25. In other words, once the state
district court determined that Cirrus owed a duty to warn, it was up to the jury—not the
court, and certainly not our court—to determine whether Cirrus provided an adequate
warning or whether Cirrus breached its duty to warn. Here, the jury determined that
Cirrus’s warning was inadequate—despite all of the written materials Cirrus provided to
We do not disturb a jury’s verdict unless the verdict cannot “be sustained on any
reasonable theory of the evidence.” Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.
1998). In this case, the jury’s verdict was amply supported by evidence in the record.
The jury heard evidence that in-flight instruction on recovery from VFR into IMC1 was
As noted by the majority, VFR into IMC is an emergency situation in which the
pilot loses the ability to see the horizon and must navigate the airplane through use of
necessary to learn how to safely exit IMC in the SR22 because, according to the
University of North Dakota’s Aerospace Foundation’s director of transition training,
instruction like Flight Lesson 4a was the only way “for th[e] training to take [because]
you can’t just do it on the ground . . . . It has to be done up in the sky with the pilot.”
The jury also heard evidence that Prokop never received in-flight instruction on recovery
from VFR into IMC. Finally, the jury heard evidence that Prokop crashed and died while
attempting to recover from VFR into IMC.
Based on the foregoing evidence, the jury determined that Cirrus’s written
materials alone provided an inadequate warning. The jury apparently found the warning
inadequate because the warning lacked Flight Lesson 4a, the only hands-on, in-flight
training in recovery from VFR into IMC that Cirrus offered to Prokop. Thus, the jury
determined that Cirrus breached its duty to warn and returned a verdict awarding
damages to the next of kin of Prokop and Kosak to help compensate them for Cirrus’s
breach. Because the adequacy of the warning was for jury resolution, and because the
jury’s determination is sustained by a “reasonable theory of the evidence,” I conclude that
the determination is not of the type that our court has the authority to disregard. Pouliot,
582 N.W.2d at 224; Germann, 395 N.W.2d at 924-25.
Nevertheless, the majority holds as a matter of law that Cirrus was not required to
provide Flight Lesson 4a. The majority does so on the theory that deferring to the jury’s
determination would, in effect, require a new duty of suppliers—a duty to train.
Specifically, Cirrus and amici argue, and the majority accepts, that if we were to hold that
Cirrus was obligated to provide Flight Lesson 4a in order to adequately discharge its duty
to warn, then all suppliers—even suppliers of coffee pots, according to statements made
during oral arguments—will be required to provide training to their users. This argument
overreacts to the scope and impact of such a holding.
First, this court does not determine what Cirrus, or any other supplier, must
provide to adequately discharge its duty to warn; rather, we determine only the features a
warning must possess.2 Further, we do not determine what form such a warning must
take—the jury makes that determination. See Balder, 399 N.W.2d at 81. The jury’s
determination will vary from case to case, based on the facts of the case and the type of
product the supplier provides.
Second, suppliers must use care “commensurate” with “reasonably foreseeable
dangers”—not with any conceivable danger. Domagala, 805 N.W.2d at 10. We have
said that “ ‘[w]hat constitutes reasonable care will, of course, vary with the surrounding
circumstances and will involve a balancing of the likelihood of harm, and the gravity of
harm if it happens, against the burden of the precaution which would be effective to avoid
the harm.’ ” Bilotta v. Kelley Co., 346 N.W.2d 616, 621 (Minn. 1984) (quoting Holm v.
Sponco, 324 N.W.2d 207, 212 (Minn. 1982)). For example, I find it absurd to assert that
the “reasonably foreseeable dangers” of operating a coffee pot are akin to the “reasonably
foreseeable dangers” of operating the SR22, an undisputedly fast and highly sophisticated
We have said that to be “legally adequate,” a supplier’s warning to a user of any
foreseeable dangers associated with the products intended use “should (1) attract the
attention of those that the product could harm; (2) explain the mechanism and mode of
injury; and (3) provide instructions on ways to safely use the product to avoid injury.”
Gray v. Badger Mining Corp., 676 N.W.2d 268, 274 (Minn. 2004).
airplane. Domagala, 805 N.W.2d at 10. Thus, I also find it absurd to assert that the
reasonable care required of a coffee pot supplier, and therefore the type of warning a
coffee pot supplier must provide to consumers, is akin to the type of warning that Cirrus
must provide to consumers who purchase and intend to operate the SR22.
Far from imposing a new duty to train on suppliers, the jury in this case simply
determined that a supplier of a dangerous product must provide a warning commensurate
with that danger to consumers, as required under our case law. I conclude that the
majority mistook whether Cirrus owed a duty to warn, which was for court resolution, for
the question whether Cirrus adequately discharged its duty to warn, which was for jury
resolution. Germann, 395 N.W.2d at 924-25. Accordingly, I conclude that the majority
oversteps our authority on review when the majority holds that Cirrus was not required to
provide Flight Lesson 4a to adequately discharge its duty to warn, a conclusion that is
clearly contrary to the jury’s determination.
I would defer to the jury’s proper
determination and hold that Cirrus’s warning to Prokop was inadequate.
Even if the majority is correct that deferring to the jury’s determination would
impose a new duty to train on suppliers, I would still hold that Cirrus owed a duty to
provide Flight Lesson 4a because Cirrus assumed that duty. The majority holds that
Cirrus cannot assume a duty in tort because Cirrus maintained a contractual relationship
with Prokop. But it is well established in our case law that a party can assume a duty in
tort despite maintaining a contractual relationship.3
Therefore, I disagree with the
majority on this key point. In particular, I conclude that the majority has overlooked
specific accommodation in our case law that would allow the next of kin of Prokop and
Kosak to recover in tort against Cirrus despite the contract.
We have said that when the “gravamen of [a] case . . . is contractual,” and “[a]ny
duties between the parties arose out of contracts,” a party cannot be held liable in
negligence. Lesmeister v. Dilly, 330 N.W.2d 95, 102 (Minn. 1983). In other words,
“[w]hen a contract provides the only source of duties between the parties, Minnesota law
does not permit the breach of those duties to support a cause of action in negligence.”
United States v. Johnson, 853 F.2d 619, 622 (8th Cir. 1988) (citing Lesmeister, 330
N.W.2d at 102). But even when parties are bound by contract, our case law explicitly
excludes claims arising from personal injury and for damages other than economic loss
from the general rule that a party cannot be liable in tort. See, e.g., 80 S. Eighth St. Ltd.
P’ship v. Carey-Canada, Inc., 486 N.W.2d 393, 396 (Minn. 1992) (“[E]conomic losses
that arise out of commercial transactions, except those involving personal injury or
damage to other property, are not recoverable under the tort theories of negligence or
strict products liability.” (emphasis added) (citation omitted) (internal quotation marks
omitted)). Additionally, we appear to have adopted Restatement (Second) of Torts § 323
Moreover, under our case law, a party can assume a duty in tort through a
contractual relationship. See, e.g., Walsh v. Pagra Air Taxi, Inc., 282 N.W.2d 567, 57071 (Minn. 1979) (holding that an airport base operator was liable for breach of a tort duty
the operator assumed through its operating agreement with a city).
(1965), which states that a party can assume a duty in tort even if undertaken “for
consideration.” Restatement (Second) of Torts § 323 provides that
[o]ne who undertakes, gratuitously or for consideration, to render services
to another which he should recognize as necessary for the protection of the
other’s person or things, is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to perform his
his failure to exercise such care increases the risk of such harm, or
the harm is suffered because of the other’s reliance upon the
(Emphasis added.) See, e.g., Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 674
(Minn. 2001); State v. Philip Morris Inc., 551 N.W.2d 490, 493-94 (Minn. 1996). That a
person can undertake a duty in tort “for consideration” indicates that a person can assume
a duty in tort through contract.
In this case, it is undisputed that Cirrus entered into a contract with Prokop for the
sale of the SR22 and that the contract specified that transition training was included in the
purchase price. Based on this fact alone, the majority ends its analysis and holds that
because Cirrus promised by contract to provide transition training, including Flight
Lesson 4a, Cirrus cannot be held liable in tort for failing to provide Flight Lesson 4a. But
our case law requires that our analysis go further.
As an initial matter, the “gravamen” of this case is not contractual. Lesmeister,
330 N.W.2d at 102. Instead, the “gravamen” of this case sounds in tort. Id. The parties
assert only tort-based claims, and the parties’ relationship is as much governed by
Cirrus’s tort duty to warn as the relationship is governed by Cirrus’s contractual duties.
Certainly the contract gives rise to Cirrus’s duty to warn (if Prokop never contracted for
the SR22, Cirrus would not owe a duty to warn to Prokop), but it is Cirrus’s status as the
manufacturer and supplier of the SR22, not the contract, that imposes the tort duty to
warn. See, e.g., Johnson, 853 F.2d at 622 (holding that where “a contract provide[d] the
only source of duties between the parties,” tort liability was improper (emphasis added)).
Moreover, the claim in this case involves each of the two specific
accommodations we have made in the past allowing a party to be liable in tort despite the
presence of a contract. First, the claim at issue involves personal injury. See 80 S. Eighth
St., 486 N.W.2d at 396. Second, the claim involves non-economic-loss damages. See id.;
see also Black’s Law Dictionary 589 (9th ed. 2009) (defining “economic loss” in a
products liability suit as “includ[ing] the cost of repair or replacement of defective
property, as well as commercial loss for the property’s inadequate value and consequent
loss of profits or use”). Instead of seeking economic loss damages like the cost to repair
the SR22, the parties seek such damages as “[l]oss of counsel, guidance, aid, advice,
comfort, [a]ssistance, protection, and companionship.” Because we have recognized that
a tort duty can be assumed for consideration, see Restatement (Second) of Torts § 323,
and because we have distinguished between claims arising from purely economic loss
and claims arising from personal injury, our case law provides a basis to conclude that
Cirrus assumed a duty in tort despite Cirrus’s contract with Prokop.
The majority reaches the opposite result.
More specifically, the majority
concludes that because we did not impose tort liability in cases in which the claim did not
involve personal injury or non-economic-loss damages, we may not impose tort liability
when a claim does involve personal injury and non-economic-loss damages.
conclusion overlooks the accommodation we have made in our case law for claims
involving personal injury and non-economic-loss damages. Instead of restricting the
result in this case, our case law does the exact opposite—it anticipates and intentionally
accommodates an imposition of tort liability on Cirrus.4
It should be self-evident that a party who breaches a contract ought to be liable for
the breach of that contract. But a party should not be “immunize[d] . . . from tort liability
for his wrongful acts,” just because those acts “grow out of” or are “coincident” to a
contract. Eads v. Marks, 249 P.2d 257, 260 (Cal. 1952). If the mere presence of a
contract foreclosed all tort liability, medical malpractice claims would cease to exist. A
passenger injured in a car accident while riding in a taxi cab would have only a breach of
contract claim against the cab driver and cab company. A paid babysitter who failed to
prevent injury to a child would be liable only in contract. The list goes on. While we
have rightly limited tort liability when the relationship of the parties is governed purely
Other jurisdictions also tend to allow a plaintiff to recover in tort even when the
defendant assumed a duty through, or in addition to, a contract. For example, the
Maryland Court of Appeals (the state’s highest court) explained that while not every
contract will give rise to a tort duty, “[w]here a contractual relationship exists between
persons and at the same time a duty is imposed by or arises out of the circumstances
surrounding or attending the transaction, the breach of such duty is a tort,” and the
injured party may choose to sue in tort or for breach of contract. Jacques v. First Nat’l
Bank of Md., 515 A.2d 756, 759 (Md. 1986) (citation omitted). When determining
whether to impose tort liability, the court considers (1) the nature of the harm likely to
arise, and (2) the relationship of the parties. Id. Where the harm likely to arise is
personal injury, the court imposes tort liability. Id. at 760; see also, e.g., Eads v. Marks,
249 P.2d 257, 260 (Cal. 1952) (“A tort may grow out of or be coincident with a contract,
and the existence of a contractual relationship does not immunize a tortfeasor from tort
liability for his wrongful acts in breach of the contract.”).
by contract, we have never foreclosed—indeed, we have specifically accommodated—
tort liability when personal injury or non-economic-loss damages are asserted.
I conclude that the majority’s holding overlooks this accommodation. In contrast,
I would hold that Cirrus may assume a duty in tort to provide Flight Lesson 4a despite
Cirrus’s contract with Prokop. I reach this conclusion because the parties’ relationship is
grounded in tort as well as contract, and because the claim involves personal injury and
non-economic-loss damages. Further, I would conclude that by promising to provide
Flight Lesson 4a, Cirrus did assume a duty in tort and may be held liable for breaching
On a final note, I am concerned about the far-reaching consequences of the
majority’s holding in this case. By holding that a supplier of a dangerous product, such
as the SR22, is never required to provide anything beyond written instructions—even if
the supplier has promised to provide nonwritten instructions—the majority has essentially
held that no consumer of a dangerous product may ever hold a supplier liable for personal
injury arising out of defective nonwritten instructions. Instead, the majority’s holding
indicates that the only remedy available to the injured consumer will be breach of
contract. But as the majority indicates in its opinion, contract damages are generally
inadequate and ill-suited for personal injury claims.
Based on the foregoing analysis, in which I conclude that the majority has usurped
the role of the jury and misread our case law, I would hold that Cirrus breached its duty
to warn when it failed to provide Flight Lesson 4a as promised. Therefore, I would
reverse the court of appeals and allow the jury verdict to stand.
PAGE, Justice (dissenting).
I join in the dissent of Justice Paul H. Anderson.