Lead Opinion
OPINION
In this case, two long-established rules come together. First, in a negligence case, when the issue of reasonable foreseeability of the injury is close, it should be decided by the jury. Second, on a motion for summary judgment, all facts and the inferences arising from them must be considered in the light most favorable to the non-moving party.
Here, appellant Nereus Montemayor was injured as he attempted to manually clear a jam from an extruder manufactured by respondent Sebright Products, Inc., while his co-worker simultaneously operated the extruder. Montemayor brought a products liability action against Sebright, alleging failure-to-warn and design-defect claims. The district court granted summary judgment to Sebright, concluding that Sebright did not owe a duty of care to Montemayor because Montemayor’s injury was not reasonably foreseeable. Montemayor appealed, and the court of appeals affirmed. We conclude that, viewing the evidence and the inferences arising from it in the light most favorable to Montemayor, reasonable persons might differ as to the foreseeability of Montemayor’s injury. Accordingly, this is a “close case” in which foreseeability must be resolved by the jury. We therefore reverse and remand.
FACTS
In August 2011, Montemayor was hired as a laborer for VZ Hogs, a family-owned company near Claremont that raises hogs and produces hog feed. To make hog feed, VZ Hogs processes discarded food using a high-density extruder manufactured by Se-bright. Food containers are placed into the extruder’s hopper chute. The extruder crushes the containers using a hydraulic ram. Liquids are then siphoned into large storage tanks, while empty containers are pushed into a discharge-chute area. A hydraulically powered press or “plenum” compresses the empty containers before they are forced through the discharge chute and into a separate compactor machine.
The manual instructs only “thoroughly trained personnel” to operate the extruder and cautions users to ensure that no one is inside the extruder before operating it. The manual also provides instructions on clearing jams that may occur inside the extruder. It suggests that users place pieces of timber inside the extruder’s hopper, and then use the control panel to run the machine in manual mode.
Finally, both the manual and warning labels on the extruder warn users to employ “lockout/tagout” procedures before entering the extruder. Occupational safety regulations require employers to establish and implement lockout/tagout procedures to ensure that workers disable all sources of energy before entering a machine. Typically, employers place lock boxes on the power outlets, and provide workers with their own padlock and key. Workers who need to enter a machine are instructed to disable the power at the source, and then place their padlock on the lock box so that no one can restore the power until the worker removes his lock. Warning labels above the extruder’s discharge chute read “Follow Lockout/Tagout Procedures Before Entering,” and “Danger: Do Not Enter.”
On September 8, 2011, approximately one month after Montemayor started working for VZ Hogs, the extruder stopped functioning and appeared to be jammed with materials. Employees tried to clear the jam by pulling materials out with a pitchfork, but they were unsuccessful. The next morning, supervisor Ryan Cowell instructed Montemayor and his coworker Anthony Burmea to clear the jam. According to Burmea, Cowell told him and Montemayor to “just clean it out” or “just unjam it” without further instruction. Co-well later told another VZ Hogs employee, Brian Gray, to try to clear the jam.
Although VZ Hogs had a safety manual and held periodic safety trainings, Monte-mayor had not received training on lockout/tagout procedures or on clearing jams within the extruder. Montemayor also had not read‘the extruder manual. Cowell testified that he would typically put the key to the locking selector switch in his pocket to disable the power to the extruder while workers performed maintenance on it; however, the key was broken off inside the keyhole, locking the extruder in the “on” position.
Montemayor and Burmea climbed into the compactor next to the extruder’s discharge chute and attempted to clear the jam. They continued to clear materials from the discharge chute using a pitchfork. Once the materials were too far inside the discharge chute to reach them with the pitchfork, they took turns crawling inside the chute on their stomachs and pulling materials out by hand. Neither Montema-yor nor Burmea saw the warning labels above the discharge chute or disabled the power to the extruder.
While Montemayor was inside the discharge chute, Gray went to the extruder’s control panel to try to clear the jam mechanically. VZ Hogs had relocated the control panel from the extruder to an elevated room with a view over the top of the extruder. From that position, Gray could
As a result of the ' accident, both of Montemayor’s legs had to be amputated above the knee. Minnesota’s Occupational Safety and Health Division penalized VZ Hogs more than $18,000 for violating regulations by failing to train employees on basic safety precautions, including lockout/tagout procedures, and for allowing a machine to be started with someone inside.
Montemayor brought a products liability action against Sebright, alleging that (1) Sebright’s extruder design was defective because it allowed for the relocation of the control panel without proper visibility of the discharge chute and did not include an alarm and delay .upon startup; and (2) Sebright failed to adequately warn of the dangers that led to Montemayor’s injury. Sebright brought indemnity and contribution claims against VZ Hogs.
After discovery, Sebright filed a motion for summary judgment arguing, among other things, that it did not owe a duty of care to Montemayor because his injury was not reasonably foreseeable. The parties submitted as exhibits to their attorneys’ affidavits the unnotarized reports of three experts: Lanny Berke, for Montema-yor; Michael Holmquist, for Sebright; and Dennis Skogen, for Sebright. Neither party objected to the introduction of these reports.
All three experts recognized that VZ Hogs’ negligence in failing to train and supervise its employees contributed to Montemayor’s injury. Berke and Holm-quist' also agreed that Sebright foresaw the possibility ■ of a worker entering the extruder to perform maintenance. The experts disputed whether Sebright should reasonably have foreseen Montemayor’s injury.
Berke opined that it was reasonably foreseeable that a worker might not disable the power to the extruder before performing maintenance. He noted that Se-bright’s own warnings instructed users to perform lockout/tagout procedures before entering the extruder. Further, Berke concluded that Sebright’s negligence made Montemayor’s accident more likely. According to Berke, Sebright failed to (1) instruct users on an adequate method of unjamming the extruder, as the “timbers” method in the manual was insufficient; (2) make the manual readily available to users; (3) provide instructions on the safe relocation of the control panel; (4) perform a proper hazard analysis, including documenting customer feedback; and (5) comply with relevant industry standards for warnings and safety features, such as alarms, set by the American National Standards Institute. Berke stated that a proper hazard analysis would have enabled Sebright to discover the risks of an untrained worker entering the extruder without performing lockout/tagout procedures, an employer positioning the control panel without proper visibility of the discharge chute, and a worker operating the extruder without knowing whether someone was inside it.
Holmquist and Skogen contested each of Berke’s conclusions regarding Sebright’s alleged negligence. They opined that it was- not reasonably foreseeable that Montemayor would crawl inside the compactor and then the extruder without first
The district court granted Se-bright’s motion for summary judgment, concluding—without mentioning the expert reports;—that Sebright did not owe a duty of care to Montemayor. Although the court found that it was reasonably foreseeable that a person may physically enter the extruder or activate it from the control panel to clear a jam, it found that it was not reasonably foreseeable that two people would attempt these two methods simultaneously. The court of appeals affirmed. Montemayor v. Sebright Prods., Inc., No. A15-1188,
ANALYSIS
We review the grant of summary judgment de novo to determine “whether there are genuine issues of material fact and whether the district court erred in its application of the law.” Stringer v. Minn. Vikings Football Club, LLC,
I.
Failure-to-wam and design-defect claims are separate causes of action,
For both design-defect and failure-to-warn claims, a manufacturer’s duty “arises from the probability or foreseeability of injury to the plaintiff.” Domagala,
To determine foreseeability, “we look to the defendant’s conduct and ask whether it was objectively reasonable to expect the specific danger causing the plaintiffs injury.” Domagala,
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 plaintiffs injury was “too attenuated.” Doe 169 v. Brandon,
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. Ill. Farmers Ins. Co.,
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 un-dog a machine by hand with the power connected. Parks v. Allis-Chalmers Corp.,
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. Bursch v. Beardsley & Piper,
Indeed, it is well established that manufacturers can be held liable despite intervening circumstances—such as an employer’s comparative negligence, a plaintiffs failure to heed warnings, and the disabling of safety devices—if such circumstances were also foreseeable. See id.; Germann,
In Bilotta v. Kelley Co., we held that the district court was not required to provide a
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. See Huber,
II.
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 Montema-yor’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
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. See Bilotta,
Here, there is evidence that Sebright recognized and warned against the dangers of failing to use lockout/tagout procedures before entering the extruder. Se-bright’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.
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 Montema-yor’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 Montema-yor began unclogging the extruder by hand, without first instructing Montema-yor 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. Germann,
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. Huber,
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.” Stringer,
CONCLUSION
For the foregoing reasons, we grant Se-bright’s motion to strike, reverse the decision of the court of appeals, and remand to that court to consider the remaining issues on appeal.
Reversed and remanded; motion to strike granted.
Notes
. Indeed, Sebright initiated the introduction of the expert reports when it attached the report of Lanny Berke, Montemayor's expert, in support of its motion for summary judgment. Sebright also discussed Berke’s report during the summary judgment hearing.
. The district court held, in the alternative, that (1) Montemayor’s failure-to-warn claim failed on the merits because Montemayor did not read the warnings Sebright provided, and (2) Montemayor’s design-defect claim relating to the control panel failed on the merits because VZ Hogs altered the control panel after it left Sebright’s control. These issues were raised and argued to the court of appeals, but the court did not address them. See Montemayor,
Generally, we "will not address issues that were not specifically raised in the petition for review.” Tatro v. Univ. of Minn.,
. We agree with the dissent that the "close cases” standard does not change our summary judgment standard for questions of foreseeability. It merely reinforces the notion that, in determining whether a dispute of material fact exists, all inferences arising from the evidence must be resolved in favor of the nonmoving party. Nord,
. The dissent characterizes Huber as our "leading case” on the foreseeability of an employer’s failure to adhere to occupational safety regulations. But Huber is not directly on point because it addressed the liability of a component manufacturer, Generally, a component manufacturer is liable only for harm caused by the defective component itself. See Restatement (Third) of Torts: Prod. Liab. § 5 (Am. Law Inst. 1998). Thus, we were careful to limit our holding in Huber to component manufacturers, stating that "[t]his reasoning does not conflict with our prior decisions establishing that the manufacturer of a finished product has a duty to warn ultimate users of dangers presented by its product and this duty may not be delegated to ah intermediary.”
. Although neither parly questions the validity of the expert reports in this case, the dissent challenges our discussion of them here. Both parties submitted unnotarized expert reports as exhibits on summary judgment, certified as genuine by attorney affidavits, and neither party objected to the district court’s consideration of the reports. We are not the district court, and it is not for us to make evidentiary rulings on appeal. See Minn. R. Civ. App. P. 110.01 ("The documents filed in the trial court ... shall constitute the record on appeal in all cases.” (emphasis added)); Anderson v. Twin City Rapid Transit Co.,
The fact that the district court did not mention the dueling expert reports does not require us to ignore them. Rather, it raises a red flag that the district court may have overlooked, if not ignored, evidence of a factual dispute (and a close case) when it granted summary judgment to Sebright. The expert reports reflect the opinions of qualified experts who conducted an extensive review of the evidence in this case. See Gianotti v. Indep. Sch. Dist. 152,
Dissenting Opinion
DISSENT
(dissenting).
The circumstances of this case are both disturbing and tragic. But it is not reasonable, as a matter of law, common sense, or public policy, to expect a manufacturer to foresee—absent any admissible evidence—
This case involves an extruder that Montemayor’s employer, VZ Hogs, purchased from Sebright, VZ Hogs uses the extruder to “smash” containers. Montema-yor was seriously injured in a workplace accident when, ignoring a warning affixed to the side of the extruder that stated: “Danger: Do Not Enter,” he climbed inside the extruder so that he could try to clear a jam, and a co-worker turned the extruder on while Montemayor was inside, despite another warning on the machine that said “lockout/tagout procedures”
Montemayor concedes that the negligence of VZ Hogs contributed to the accident, In fact, the government cited and fined VZ Hogs for three separate “serious” violations of basic safety regulations as a result of the accident—the failure to instruct employees in the safe operation of the extruder, the failure to ensure that electrical power was locked out before trying to clear a jam in the extruder, and the failure to verify that all employees were clear of the extruder before restarting it. In addition to these three violations, the safety key that Sebright installed on the extruder so that the extruder could be manually disabled was broken off in the machine after it was received by VZ Hogs, preventing this safety device from being used. Given these undisputed facts, I agree with the district court’s and the court of appeals’ conclusion that Sebright had no duty as a matter of law because it could not reasonably have foreseen Montemayor’s injury. Montemayor v. Sebright Prods., Inc., No. A15-1188,
I.
Under Minnesota law, “the duty to exercise reasonable care arises from the probability or foreseeability of injury to the plaintiff.” Domagala v. Rolland,
Our precedent dictates that Occupational Safety and Health Administration (OSHA) regulations are of particular relevance in this products liability case. See, e.g., Huber,
After' investigating Montemayor's injury, Minnesota OSHA (MNOSHA) cited and fined the employer fór three separate safety violations. First, MNOSHA determined that “[a] lack of training in safe operation and servicing of equipment caused and contributed” to the incident. The MNOSHA report indicated that “[ejmployees were not instructed by management* on how to clear a jam” in the extruder, “resulting in a serious injury to the employee.” Second, MNOSHA determined that the “extruder was not locked out prior to” the employees’ attempts to clear the jam, even though the employer had “a written Lock out program.” MNO-SHA also observed that “[a] lockable electrical disconnect was located on* the ex-truder.” According to the report, “if lock out was utilized the machine would have not been able to cycle, thus'not seriously injuring” Montemayor. Finally, MNOSHA determined that the operator did not “verify ' all employees were clear of the machine” before restarting the extruder. Accordingly, MNOSHA cited the employer for “serious” violations of 29 C.F.R. § 1928.57(a)(6), 29 C.F.R. § 1928.57(a)(6)(v), arid 29 C.F.R. § 1928.57(a)(6)(iv). '
' In examining foreseeability, we must determine whether Sebright reasonably should have anticipated the employer’s OSHA violations and other safety lapses. Our leading case addressing the foreseeability of OSHA violations is Huber v. Niagara Machine & Tool Works,
The majority, however, relies on a prior case, Bilotta v. Kelley Co.,
The majority also relies heavily on our decision in Parks v. Allis-Chalmers Corp.,
Parks is further distinguishable because we observed that the machine in that case “was not equipped with a safety interlock device.”
Despite the supervisor’s clear testimony, evidence that he repeated no less than three times, the majority nevertheless determines that “a reasonable person could find that [the supervisor] would have given the key” to another person, and therefore summary judgment should have been denied. The majority identifies no actual evidence from which the so-called “reasonable person” could draw such a conclusion, because there is none. And under our summary judgment standard, appellate courts do not get to make up evidence or speculate in order to create an issue for trial. See DLH, Inc. v. Russ,
In sum, our precedent compels an affir-mance.
II.
Not content with the result our precedent compels, and notwithstanding the lack of any evidence that would support the conclusion that Sebright should have reasonably anticipated the multiple employer failures that led to Montemayor’s injury, the majority manufactures an issue for trial based on what it labels as “expert reports.”
In this case, Montemayor’s expert does not rely on facts with evidentiary support, as our precedent requires; the - expert instead rested his opinion on conjecture and speculation. The majority does not demonstrate otherwise and the record here does not leave room for any other conclusion. For example, the expert does not dispute that the employer’s failure to properly train Montemayor in “the proper and safe use of the machine,” failure to use OSHA-required safety procedures such as lockout/tagout procedures, and failure to properly supervise Montemayor were “root causes” of the injury. Nonetheless, the expert concludes, without any support or explanation, ■ that these “short-comings” should have been “reasonably foreseeable” to -Sebright. The closest that Montema-yor’s expert comes to providing a basis for his opinions is his statement that if Se-bright had performed a hazard analysis or safety testing, it would have been foreseeable that untrained employees would be cleaning out the extruder and would restart the extruder from a remote location without performing lockout/tagout procedures. Montemayor’s expert further speculates that “[i]f a hazard analysis had been performed, ■ it is reasonably foreseeable that the method used by Mr. Montemayor to remove the material in the machine would have been identified.”
As an initial matter, the only evidence in the record demonstrates that the underlying assumptions of the expert’s opinions are wrong. Although Montemayor’s expert asserts that Sebright never performed any safety testing and that Sebright “did not have a system for documenting customer feedback,” Sebright’s expert points to specific testimony in the record confirming numerous operational evaluations of the extruder, as well as specific testimony that Sebright worked closely with customers to obtain feedback that was incorporated into future units. In opposing summary judgment, the nonmoving party may not rest upon “mere averments or denials ... but must present specific facts showing that there is a genuine issue for trial.” Minn. R. Civ. P. 56.05.
Further, Montemayor’s expert merely speculates that the incident here would have been reasonably foreseeable had Se-bright performed a hazard analysis or safety testing. Our case law is clear that “general assertions” and speculation “are not sufficient to create a genüiné issue of
In addition, even though foreseeability is “a threshold issue related to duty that is ordinarily ‘properly decided by the court,’ ” Domagala v. Rolland,
. Indeed, the majority’s decision that a jury must decide the issue of foreseeability rests on letters from an expert to the attorney who hired him—inadmissible hearsay—that is not even properly consid
Finally, the majority concludes that “[e]ven if there was not an explicit factual dispute in the record,” the issue of foreseeability should still go to the jury because “this is a ‘close case’ ” where “ ‘reasonable persons might differ’ as to the foreseeability of Montemayor’s injury.” The majority misstates our summary judgment standard.
For example, in one products liability case, we indicated that “[i]n close cases, the question of foreseeability is for the jury,” but we also applied our well-established summary judgment standard—that “[t]o defeat a summary judgment motion, the nonmoving party must come forward with specific facts showing that there are genuine issues for trial.” Whiteford ex rel. Whiteford v. Yamaha Motor Corp., U.S.A.,
Examination of Lundgren v. Fultz,
III.
Even if I were to apply the majority’s new rule, the result would be the same because the question of foreseeability here is not close. Montemayor’s injury occurred when an untrained employee climbed into a machine known as “the smasher” without disconnecting the power and another employee restarted the machine without ensuring that all employees were clear. Although specific, individual circumstances of this incident may have been reasonably foreseeable, in order to foresee the risk of Montemayor’s injury, Sebright would have had to anticipate the failure to perform lockout/tagout procedures; the failure to comply with two other core safety regulations, including verifying that employees were clear before restarting the extruder; and the disabling of a key safety mechanism on the machine. The court of appeals accurately summarized what Sebright would have had to foresee:
Montemayor and his fellow employees failing to follow the. instruction manual concerning how to clear jams and decals warning that no one should enter the extruder or enter the machine without following proper lockout/tagout procedures; VZ Hogs failing to implement and train its employees in general OSHA-required lockoui/tagout procedures; Montemayor and other employees attempting to clear the jam manually; the liquid shed supervisor instructing both Montemayor and the electrical maintenance person to clear the jam; the employees failing to communicate with one another; and an employee activating the extruder’s power while Montemayor was inside the machine, causing the plenum to drop on his legs.
Montemayor,
We have warned against “carrying the duty of a manufacturer too far to require it to anticipate every injury that might occur” when a machine is “improperly used.” Germann,
. As the court of appeals described:
Lockout/tagout procedures are commonly used in industrial settings and intended to safeguard employees while they work in dangerous areas. The basic procedure is that an employee disconnects a machine's power source and then places a padlock on the power switch. The employee keeps the key to the padlock so that no one can accidentally turn the machine on while the employee is working in the dangerous area. If more than one person is working in the area, multiple locks can be placed on the power source.
Montemayor v. Sebright Prods., Inc., No. A15-1188,
. The majority suggests that Huber is not relevant because we were addressing the duty of a component manufacturer. This is a distinction without a difference. In Huber, we articulated and applied “the standard for determining whether a manufacturer has a duty to warn.”
. To be clear, these reports are letters written to Montemayor’s lawyer from an expert the lawyer retained. As discussed below, these letters are likely inadmissible and, even assuming they are admissible, the reports are plainly not sufficient to create an issue for trial.
. In providing other “bases” for his opinion, Montemayor’s expert gets other facts wrong as well. For example, Montemayor’s expert indicates that the failure to have the operating manual for the-extruder “readily available at the machine” was "one of the root causes for this incident.” The evidence simply does not support this conclusion. In fact, a VZ Hogs employee specifically testified that the manual was located in "a big stainless steel box” that “stayed right with the machine.” In addition, the majority relies on the expert’s conclusion that Sebright failed to comply with American National Standards Institute (ANSI) standards for safety features as one of the circumstances that creates a fact dispute here, but the ANSI standards cited by Montemayor’s expert are the ANSI standards for conveyors and compactors, The expert did not cite any applicable standard for high density extruders like the Sebright extruder, and he did not attempt to rebut the statement of Sébright's expert that ”[n]o such time delay -and alarm system was required by any applicable standard for the high density extruder and no such start up time delay and alarm system was incorporated on any of the competitors!’] extruders.”
. The majority relies on several of these unsupported and speculative statements to conclude that this case is similar to other foreseeability cases. For example, the majority cites a nonprecedential Eighth Circuit decision, Bursch v. Beardsley & Piper,
. To be sure, we concluded in a 1985 case that "technical defects” in the letter of a licensed consulting psychologist should not have precluded consideration of the letter on summary judgment, but we also noted that the expert was not qualified to give an opinion on the conduct at issue and that the contents of the letter added nothing to what was already in the record. Lundgren v. Eustermann,
More recently, in Osborne v. Twin Town Bowl, Inc.,
. The majority agrees that "the ‘close cases’ standard does not change our summary judgment standard for questions of foreseeability,” yet the majority nonetheless indicates that "a case is ‘close’ not only when the evidence presents an explicit dispute of material fact, but also when ‘reasonable persons might draw different conclusions from the evidence,' ” (quoting Osborne,
. The majority indicates that the district court erred by failing to consider the possibility that "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.” To begin with, there is no evidence that it was reasonably foreseeable to Sebright that the employer would relocate the control panel to a remote-location, particularly where the employer chose to relocate the control panel to a different room after a Sebright employee personally visited the VZ Hogs worksite to oversee the proper installation of the extruder and where the manual specifically instructed operators to be certain that ‘‘no one is inside the equipment” or near "any point of operation” before operating the equipment. Cf. Bilotta v. Kelley Co.,
Dissenting Opinion
(dissenting).
I join in the dissent of Chief Justice Gildea.
Dissenting Opinion
(dissenting).
I join in the dissent of Chief Justice Gildea.