Gordon G. Roufs, Appellant, vs. AG Systems, Inc., defendant and third-party plaintiff, Respondent, Parker Hannifin Corporation, defendant and third-party plaintiff, Respondent, Atlantic Richfield Company, defendant and third-party plaintiff, Respondent, DMI, Inc., defendant and third-party plaintiff, Respondent, vs. Pine City Co-op, Third Party Defendant.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-97-1478

Gordon G. Roufs,

Appellant,

vs.

AG Systems, Inc.,

defendant and third-party plaintiff,

Respondent,

Parker Hannifin Corporation,

defendant and third-party plaintiff,

Respondent,

Atlantic Richfield Company,

defendant and third-party plaintiff,

Respondent,

DMI, Inc.,

defendant and third-party plaintiff,

Respondent,

vs.

Pine City Co-op,

Third Party Defendant.

Filed April 14, 1998

Affirmed

Mulally, Judge[*]

Isanti County District Court

File No. CX-95-991

Randall J. Fuller, Gary T. LaFleur, Robert F. Mannella, Babcock, Locher, Neilson & Mannella, 118 East Main Street, Anoka, MN 55303 (for appellant)

Patrick A. Reilly, John R. Thomas, Erstad & Riemer, P.A., 1000 Northland Plaza, 3800 West 80th Street, Minneapolis, MN 55431 (for respondent AG Systems, Inc.)

Donald Chance Mark, Jr., Richard L. Pemberton, Jr., Shannon M. McDonough, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Parker Hannifin Corp.)

Sarah L. Brew, Greene Espel, P.L.L.P., 333 South Seventh Street, Suite 1700, Minneapolis, MN 55402 (for respondent Atlantic Richfield Co.)

David E. Rollwagen, Law Offices of Frederick E. Kaiser, 2600 East Woods Drive, Suite 110, Eagan, MN 55121 (for respondent DMI, Inc.)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Mulally, Judge.

U N P U B L I S H E D O P I N I O N

MULALLY, Judge

Appellant challenges the district court's summary judgment awards to respondents in this products liability action, alleging strict liability and negligence. We affirm.

FACTS

On May 12, 1992, appellant Gordon Roufs, an employee of Pine City Co-op, delivered anhydrous ammonia (NH3) to a farm. Another Co-op employee instructed Roufs to check the quick coupler on the toolbar owned by the Co-op and loaned to a farmer for his use in applying NH3. Roufs did not bleed the system to release any remaining NH3 from the system or wear goggles during this inspection. Roufs pulled a hose to separate the quick coupler, and a small amount of NH3 was released, hitting him in the face.

At the time of Roufs's accident, the Co-op owned three toolbars and employed two of them, one blue and one green. On September 8, 1994, Roufs identified the blue toolbar as the toolbar involved in this accident. The quick couplers on the green and blue toolbars were replaced sometime between 1993 and 1995 and placed in a shed. When Kevin Carlson, the Co-op agronomist, went to the shed to find the coupler involved in this litigation, he took the first quick coupler he saw. A later search of the shed revealed no other quick couplers. At the time of Carlson's deposition in November 1996, the Co-op continued to use the blue and green toolbars.

Roufs brought this products liability action raising strict liability, negligence, and breach of warranty claims. Roufs asserted that DMI, Inc. manufactured the blue toolbar and that AG Systems, Inc. and Atlantic Richfield Company distributed it. Roufs also asserted that Parker Hannifin Corporation manufactured the quick coupler. All four respondents moved for summary judgment. At the summary judgment hearing, Roufs conceded his warranty claims were barred by the statute of limitations. The district court granted summary judgment motions on all remaining claims.

D E C I S I O N

On appeal from summary judgment, a reviewing court must consider whether genuine issues of material fact exist and whether the district court erroneously applied the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The appellate court must consider "the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellmo, 504 N.W.2d 758, 761 (Minn. 1993).

I. DMI

Roufs claims that there is a genuine issue of material fact as to whether DMI manufactured the toolbar involved in his accident. Roufs points to the deposition testimony of Craig Lenz, president of AG Systems, Inc., as proof that AG manufactured this toolbar.

In Louwagie v. Witco Chem. Co., 378 N.W.2d 63, 64 (Minn. App. 1985), Louwagie brought a strict liability and negligence action against an insulation manufacturer and distributor after he was injured when his insulated shed caught fire. Although the identity of the insulation distributor and manufacturer were unknown, this court reversed and remanded a summary judgment award to the alleged distributor, Empro, and alleged manufacturer, Witco. This court stated:

The question is not whether Louwagie has shown Witco and Empro to be the manufacturer and supplier of the insulation in his shed, but whether he has presented sufficient evidence to create a genuine issue as to that fact.

Id. at 67.

In Louwagie, there was undisputed evidence that if the manufacturer was Witco, the distributor was Empro. Id. at 65. Witco and Empro admitted manufacturing and supplying insulation to the installer during the year the insulation was installed in Louwagie's shed. Id. at 66-67. The installer also received the majority of its education and information regarding insulation from Witco and Empro and made its original insulation purchases from them. Id. at 67. Additionally, there was evidence that insulation manufactured by Witco could be distinguished on sight from the other brands of insulation purchased by the installer, and it was possible that Witco's insulation was chemically distinct. Id. Finally, Empro produced a copy of a sales proposal between Louwagie and the installer. Id.

Here, although Roufs insists that Lenz identified the toolbar as a DMI, it is clear that in Lenz's deposition he conclusively stated only that the toolbar was not a Tyler toolbar. Further, DMI's founder and a DMI engineer indicated that the design of the toolbar allegedly involved in this accident is not the same as DMI's design. An experienced employee of a distributor of DMI products also stated in deposition that this toolbar was not manufactured by DMI. Co-op employees were unable to identify the manufacturer, there are no identifying marks or numbers on the bar, and Co-op documents do not indicate where it was purchased. Finally, the toolbar has been significantly modified over time and no one knows when it was manufactured.

The district court did not err in awarding summary judgment to DMI. Roufs offered no evidence that the toolbar was manufactured by DMI, and, unlike in Louwagie, there is no evidence that further testing will assist in determining the manufacturer. Thus, no genuine issue of material fact exists here, and no strict liability or negligence claim can be supported.

AG Systems

Roufs asserts that there is a genuine issue of material fact as to whether AG Systems, Inc. (AG) distributed the toolbar involved in his accident. He points to the deposition testimony of Eldon Johnson, the former general manager of the Pine City Co-op. Roufs insists that Johnson testified that the blue toolbar was purchased from AG.

Johnson's testimony indicates he was unsure from whom this particular toolbar was purchased. When asked, he replied, "I'm not sure. AG Systems probably." He also stated, "I think we bought most of our anhydrous equipment from them." Johnson noted that another potential toolbar supplier was FEI (another fertilizer equipment distribution company).

AG emphasizes that, in the Co-op's response to interrogatories, the Co-op stated that the seller of the blue toolbar was "unknown at this time." Further, the Co-op's agronomist, Kevin Carlson, testified that he had "no idea where [the toolbars] were purchased." Carlson could only identify the two suppliers of NH3 equipment that he was aware of, AG and FEI.

AG's president, Craig Lenz, testified that he was sure AG did not sell this particular toolbar in a used condition because it was old, smaller than the toolbars they usually bought, and "well cobbled up and it's just not something that we would be very proud of putting our name on and trying to resell it." Lenz also explained that whenever AG purchased a used toolbar, they would refurbish it and paint it red.

It appears that no one knows for certain who distributed the toolbar. Further, Roufs has made no argument that additional testing could be done or that further documentation could be produced to establish the actual distributor. See Louwagie, 378 N.W.2d at 67 (noting evidence that manufacturer's insulation was distinguishable by sight and possibly by chemical composition). Even if Roufs could establish AG as the distributor, the evidence is undisputed that the Co-op continued to use the toolbar after the accident and that numerous repairs were done on it before and after the accident. There are no genuine issues of material fact here, and the district court did not err in granting summary judgment to AG.

III. Atlantic Richfield

Roufs argues that Atlantic Richfield Company (ARCO) is subject to strict liability because ARCO sold the toolbar. Roufs also asserts that ARCO is liable in negligence because ARCO owed Roufs a legal duty to warn and that whether this duty was breached is a material question of fact.

From 1967 to 1973, ARCO leased and operated an agricultural chemical manufacturing plant in Iowa. ARCO also owned and/or operated approximately 100 retail outlets, Farm Centers, in Iowa, Illinois, Indiana, and Minnesota. The Farm Centers engaged in applying NH3, and the district court determined that any toolbars owned by ARCO likely were used at one of the Farm Centers. ARCO discontinued operation of the Iowa chemical plant and the Farm Centers in 1973 and sold its interests in the Farm Centers to First Mississippi. Included in this sale was the equipment, including 1,198 toolbars. These toolbars were not identified individually in any way.

The supreme court has adopted the following definition of strict liability:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

McCormack v. Hankscraft Co., 278 Minn. 322, 338 n.15, 154 N.W.2d 488, 499 n.15 (1967) (quoting Restatement (Second) Torts § 402A (1965)).

Whether a seller has a duty to warn is generally a question of law. Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924 (Minn. 1986). There is a duty if the harmful occurrence is a direct and reasonably foreseeable consequence of the allegedly negligent act. Id. If the act and resulting damage are too remote, there is no duty and no liability. Id. If a seller knows the particular conditions under which equipment will be used, knowledge of dangers inherent in such use may be imputed to the seller. Frey v. Montgomery Ward & Co., 258 N.W.2d 782, 786 (Minn. 1977).

The district court did not err in awarding summary judgment to ARCO. ARCO was not, and is not, in the business of selling toolbars. The sale of toolbars, in conjunction with the sale of its Farm Centers, was a one-time sale. Further, there is no evidence of the condition this particular toolbar was in when it was sold, and there is undisputed evidence that this toolbar has been altered and/or repaired while owned by the Co-op. Thus, ARCO cannot be held strictly liable for damages resulting from the use of one of these toolbars. Further, the sale of the toolbars to First Mississippi and Roufs's accident were remote; therefore, ARCO had no duty to Roufs and cannot be held liable in negligence.

Parker Hannifin

Roufs asserts that Parker Hannifin (Hannifin) manufactured the quick coupler involved in his accident. Although the actual quick coupler involved in Roufs's accident has not been identified, Roufs asserts that the evidence he submitted creates a genuine issue of material fact as to whether Hannifin manufactured the quick coupler and whether the design was defective and unreasonably dangerous. Roufs also insists that, because his arguments are based on defective design rather than a manufacturing defect, it is unnecessary to produce the actual product involved in the accident.

Roufs argues that he has identified a number of ways the coupler is defectively designed. First, he contends that corrosion around the valve resulted in an imperfect sealing and NH3 escaped. He argues it was reasonably foreseeable that the quick connect valves might not close properly due to rust in the system and that the pressurized liquid could shoot out. Next, he insists that the materials used in the coupler caused it to be defective. Finally, he argues that there should have been deflectors or shields to protect users if the valve separated because it was reasonably foreseeable that a person might not bleed the lines.[1]

Whether a product is defective is generally a fact question, but if "reasonable minds cannot differ," it becomes a question of law. Drager by Gutzman v. Aluminum Indus., 495 N.W.2d 879, 882 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993). Defective design claims require proof:

(1) [T]hat the defendant's 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). Further, the plaintiff generally bears the burden of establishing the existence of a feasible and safer alternative design. Kallio v. Ford Motor Co., 407 N.W.2d 92, 96 (Minn. 1987).

In Patton v. Newmar Corp., a motor home engine burst into flames, and Patton fell and injured herself while trying to escape. 538 N.W.2d 116, 117 (Minn. 1995). Patton sued for defective design of the fuel system. Id. Prior to trial, the mobile home could not be located for an inspection by the manufacturer and components removed by plaintiff's expert were lost. Id. at 117-18. Evidence was also undisputed that the motor home had been substantially altered or repaired before the accident, "the extent to which and the effects of which can no longer be ascertained." Id. at 119. The district court excluded the plaintiff's expert's testimony and granted summary judgment for the defendant. Id. In reversing this court, the supreme court reinstated the district court's summary judgment award. The supreme court stated:

Because the critical item of evidence no longer exists to speak for the plaintiff's claims or to the defendant's defense, the trial court * * * is obligated to determine the consequences of the evidentiary loss.

Id. at 119.

The existence of a legal duty is generally a question of law. Germann, 395 N.W.2d at 924. Manufacturers have a duty to warn of dangers if they know, or should know, of such dangers. Id. But, "`a manufacturer has no duty to warn when the dangers of a product are within the professional knowledge of the user.'" Dahlbeck v. DICO Co., 355 N.W.2d 157, 163 (Minn. App. 1984) (quoting Strong v. E.I. DuPont de Nemours Co., 667 F.2d 682, 687 (8th Cir. 1981)), review denied (Minn. Feb. 6, 1985).

The district court did not err in granting summary judgment to Hannifin. It is undisputed that Roufs cannot identify the actual quick coupler involved in his accident, and there is no evidence as to when the coupler involved was manufactured. Even if Hannifin was the manufacturer, however, the critical item of evidence is missing, as in Patton, and there is no way to establish what condition the coupler was in at the time of the accident. Further, Hannifin had no duty to warn in this case because Roufs knew, or should have known, the danger involved in working with NH3. Evidence indicates that Roufs had extensive experience working with NH3, and he was aware of the dangers. Finally, Roufs cannot prove that the warnings were inadequate because without the actual quick coupler, there is no way to determine what warnings were given.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.

[ ]1 Hannifin contends that Roufs presented only unsworn testimony and his attorney's affidavit to support his design defect and failure to warn claims. Hannifin objected only to the timeliness of Roufs expert's letter at the district court level and did not object to the form of the evidence. It is within the district court's discretion to accept untimely evidence. Coller v. Guardian Angels Roman Catholic Church, 294 N.W.2d 712, 715 (Minn. 1980) (holding district court's decision to extend procedural time limit will be reversed only if abuse of discretion). Further, the issue of whether the evidence was admissible as to form is not properly before this court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating reviewing court generally may only consider issues presented and considered by the district court).