I. PROCEDURAL BACKGROUND........................................ 1224
II. CERTIFICATION OF QUESTIONS TO THE IOWA SUPREME COURT 1225
III. STANDARDS FOR SUMMARY JUDGMENT............................ 1226
TV. FINDINGS OF FACT................................................. 1227
A. Undisputed Facts ....................... 1227
B. Disputed Facts.................................................... 1228
V. LEGAL ANALYSIS.................................................... 1228
A. Whether Rowson Read Warnings................................... 1228
B. Bryan Rowson’s Failure To Read Warnings........................ 1231
1. The Duty To Provide Adequate Warnings...................... 1232
2. Unread Warnings And Causation Issues....................... 1232
C. Bryan Rowson’s Failure To Heed An Open And Obvious Hazard---- 1240
VI. CONCLUSION......................................................... 1243
ORDER DENYING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
This is a products liability lawsuit involving a four-wheeled all terrain vehicle, or ATV. Defendants seek partial summary judgment on plaintiffs’ claims of failure to warn on the ground that plaintiff did not read any warnings, whether they were adequate or not. Defendants also seek summary judgment on plaintiffs claim that the ATV was defective because it lacked a rollover protection sys
I. PROCEDURAL BACKGROUND
Plaintiffs Bryan D. Rowson and Donna Rowson (the Rowsons) filed this lawsuit on May 23, 1991, in Iowa District Court for Cerro Gordo County. Defendants are Kawasaki Heavy Industries, Ltd., Canadian Kawasaki Motors, Ltd, Kawasaki Motors Mfg. Corp., and Kawasaki Motors Corp. (collectively Kawasaki). The Rowsons’ petition alleges that Bryan Rowson was injured in an accident on June 6, 1989, while riding a four-wheeled ATV designed, built, and sold by Kawasaki. The Rowsons assert various claims that the ATV in question was defective and unreasonably dangerous in design, manufacture, components, warnings, 1 and instructions, and that it breached express and implied warranties of merchantability and fitness. Donna Rowson also claims loss of consortium.
Kawasaki removed this matter to federal court on July 29,1991. On January 10,1994, Kawasaki moved for partial summary judgment pursuant to Fed.R.Civ.P. 56(a) on some of the claims in the Rowsons’ petition, which the court will hereafter refer to as a complaint. Specifically, Kawasaki argues that it is entitled to summary judgment on all of the Rowsons’ claims of failure to warn because Bryan Rowson admitted in his deposition that he did not read any of the warnings or safety information labels attached to the Kawasaki ATV he was operating at the time of his injury, and did not read any part of the owner’s manual that accompanied the vehicle at the time of its original sale. Consequently, Kawasaki argues that there is no genuine issue of material fact regarding the adequacy of the warnings it provided with the ATV. Kawasaki also seeks summary judgment on the Rowsons’ claims based on the lack of structural or other protection to the rider of the ATV in the event of a roll-over type of accident because the lack of ROPS is an open and obvious condition for which as a matter of Iowa law no liability can attach to Kawasaki.
Kawasaki filed its brief, statement of undisputed facts, and list of citations in support of the motion for partial summary judgment on January 10, 1994. The Rowsons filed their resistance brief, statement of disputed facts, and list of citations on January 24, 1994. No reply brief or motion to file a reply brief has been filed. However, on October 13,1994, Rowson filed as a supplement to his resistance to the motion for partial summary judgment portions of the deposition testimony of his expert witness, Dr. Edward Karnes.
2
On October 17, 1994, Rowson also filed an affidavit concerning his recollection of having seen and read at least part of several of the warning labels on the ATV in question.
3
In light of this affidavit, Rowson
Before turning to the appropriate standards for summary judgment and then addressing the merits of Kawasaki’s dual arguments for partial summary judgment in its favor, the court will examine whether the issues raised by Kawasaki, questions which the parties agreed at oral argument on October 20, 1994, are of first impression in Iowa, should be certified to the Iowa Supreme Court.
II. CERTIFICATION OF QUESTIONS TO THE IOWA SUPREME COURT
Whether a federal district court should certify a question of state law to the state’s highest court is “a matter addressed to the discretion of the district court.”
Packett v. Stenberg,
Although some of these factors might weigh in favor of certifying the two questions presented here, which appear to be questions of first impression for Iowa courts, the court was presented with no request to certify questions to the Iowa Supreme Court. At hearing on this motion the parties stated that
III. STANDARDS FOR SUMMARY JUDGMENT
The Eighth Circuit recognizes “that summary judgment is a drastic remedy and must be exercised with extreme care to prevent taking genuine issues of fact away from juries.”
Wabun-Inini v. Sessions,
The standard for granting summary judgment is well established. Rule 56 of the Federal Rules of Civil Procedure states in pertinent part:
Rule 56. Summary Judgment
(b) For Defending Party. A party against whom a claim ... is asserted ... may, at any time, move for summary judgment in the party’s favor as to all or any part thereof.
(c) Motions and Proceedings Thereon ____ The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P.
56(b)
&
(c) (emphasis added);
see also Celotex Corp. v. Catrett,
Procedurally, the moving party, Kawasaki, bears “the initial responsibility of informing the district court of the basis for their motion and identifying those portions of the record which show lack of a genuine issue.”
Hartnagel,
“When a moving party has carried its burden under
Rule
56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts.”
Matsushita,
In
Anderson, 477
U.S. at 249,
IV. FINDINGS OF FACT
A. Undisputed Facts
The following facts are undisputed. On June 6, 1989, Bryan Rowson was riding ATVs with two friends, Robert Kuhlemeier and Dennis Love, in Cerro Gordo County, Iowa. The ATVs, owned by Kuhlemeier and Love, were identical 1988 KLF300-B1 Bayous designed, manufactured, and marketed by Kawasaki. Kuhlemeier and Love had considerable experience' riding ATVs. Row-son, who was 27 years old at the time of the accident, had never ridden an ATV, although he was familiar with riding snowmobiles. Rowson borrowed Kuhlemeier’s ATV, and began riding it, accompanied by Dennis Love, who was driving his own identical ATV.
The ATV Rowson was riding bore six safety labels containing operating information and warnings. All labels were in good condition and legible.
7
An operator’s manual for the Kawasaki Bayou model ATV was available in the utility compartment of Love’s ATV. In his deposition in May of 1992, Rowson testified that he was aware that there were warning labels on the ATV, but that he did not read them before he began
The Bayou model ATV was equipped with a rear-wheel differential that could be locked or unlocked using a switch on the ATV. The locking device for the differential was designed to be used in hill climbing to prevent loss of control. 8 It is not known in what position the differential locking switch was set while Rowson was riding the Bayou model ATV. The Bayou model ATV does not have any sort of structural device or rollover protection system (ROPS) to protect the operator’s body in the event of an accident.
Rowson sustained serious injuries when the four-wheeled ATV he was driving tipped or pitched over backwards as he attempted to climb up the side of a creekbed. Dennis Love witnessed the accident.
B. Disputed Facts
The Rowsons argue that there is a dispute as to the following facts, which they argue are material. They allege that there is a factual dispute as to whether Kawasaki should have recognized the possibility that novice riders would use the Bayou model ATV. They allege that the Bayou model ATV has a high center of gravity and control difficulties that present unreasonable danger to the operator. They allege that there is a factual dispute as to the danger presented by the ATV because of the instability in its design, the lack of ROPS, and the combination of these factors, and a dispute as to whether any of these dangers would have been open and obvious to a novice ATV rider or any reasonably prudent person. They also allege that the warning labels on the Bayou model ATV were not of a size, position, coloring, or design such that the safety information they contained, if adequate, would come to the attention of a novice rider or any reasonably prudent person. Finally, as the result of Rowson’s assertion in his affidavit filed October 17, 1994, Rowson asserts that there is a genuine issue of material fact as to whether he did or did not read the warnings provided on the ATV before he rode it on June 6, 1989.
V. LEGAL ANALYSIS
A. Whether Rowson Read Warnings
Rowson’s belated affidavit filed October 17, 1994, attempts to generate a material issue of fact as to whether or not Rowson read the warnings provided on the Bayou model ATV prior to riding it on June 6, 1989. As required by Rule 56(e), Rowson has gone beyond the pleadings, and by affidavit designated “specific facts showing that there is a genuine issue for trial.”
Fed.R.Civ.P.
56(e);
Celotex,
However, Kawasaki argues that Rowson’s affidavit should not be considered or allowed to create a genuine or substantial factual issue sufficient to defeat Kawasaki’s summary judgment motion regarding the Rowsons’ failure to warn claims. Kawasaki cites
Camfield Tires, Inc. v. Michelin Tire Corp.,
In his belated affidavit, Rowson states that at the time of his May 1992 deposition he was aware of the on-product labels on the ATV, but could not recall specifically what they said. Rowson Affidavit, para. 2. He states further that at the time of his May 1992 deposition he had not seen the ATV or any photographs of it or its labels since the accident. Id. at para. 3. Specifically, he states, “No photos were shown to me at the deposition. At the time of the deposition, I had no recollection of the content of on-product labels nor of having read them.” Id. However, Rowson asserts that his memory of the labels was refreshed when he was “recently” shown photographs of them and he “now reeall[s] reading them at least partially.” Id. at para. 4, 5, 6. 9 He specifically recalls reading the differential label. Id. at para. 4. In deciding whether this affidavit may be considered and whether it creates a genuine issue of material fact, this court must consider the application in this case of the rule stated in Camfield and any exceptions to it.
In
Camfield,
the Eighth Circuit Court of Appeals had to decide whether the conflict between a last minute affidavit and the affiant’s earlier deposition testimony created a genuine issue as to any material fact, thus precluding the entry of summary judgment for defendant under
Fed.R.Civ.P.
56.
Camfield,
Subsequent appellate decisions in this circuit have sometimes read
Camfield
as stating the rule that courts will not allow an affidavit in conflict with earlier sworn testimony to create an issue of fact.
See, e.g., Schlup v. Delo,
The court concludes that the rule in Camfield is most fairly stated to be that
the Eighth Circuit Court of Appeals held [in Camfield] that an affidavit inherently contradicting the prior deposition testimony of the affiant and containing no explanation or clarification for the disparity fails to create a genuine issue of fact.
Landmark Bank of St. Charles County v. Saettele,
Rowson’s affidavit identifies as the reason for the change in his testimony his refreshed memory of having read at least some of the warning labels at least partially. Furthermore, he asserts that his memory was refreshed only by the recent review of photographs of the labels and the ATV in question, neither of which he states that he had seen since his accident. He specifically states that he was not shown these photographs during his May 1992 deposition. Such an explanation of his change in testimony is at least plausible, and the court should not now pass on what credibility a jury may give it or the changed testimony. Although Kawasaki asserts that Rowson’s new testimony is inherently inconsistent with his prior testimony, and that there was no confusion about that testimony at the time of the deposition, the court is not persuaded that these factors are relevant to circumstances in which the reason presented for the change in testimony is refreshed recollection. If an affiant has only recently recalled specific facts, then the affiant’s new statements will often be inconsistent with prior statements however unequivocally made based on a different recollection of facts.
At the October 20,1994, hearing, Kawasaki argued that if the court entertains Rowson’s belated affidavit, then that affidavit with the testimony of Rowson’s expert establish that the “differential label” was read, and its content was adequate, such that Kawasaki is entitled to summary judgment on any warning claim as to that warning label. Further, Kawasaki argued, if Rowson did not read any labels, because Rowson’s expert testified that the “differential label” was adequate in presentation and location, his expert’s testimony proves that there is no genuine issue of material fact that any attempt to warn Row-son would have been futile. However, the court does not read Rowson’s expert’s testimony to be an unequivocal statement that the “differential label” was adequate in presentation, location, or content. Rather, the expert’s testimony is that “if the reader is interested in knowing something about the differential, that [differential warning label], I think, is conspicuous for that purpose, certainly.” Plaintiffs’ Supplement To Resistance To Motion For Summary Judgment, Deposition of Dr. Edward Karnes, p. 64, lines 20-23. The expert’s testimony does not eliminate a genuine issue of material fact as to whether any user, not simply one “interested in knowing something about the differential,” would be adequately warned about use of the differential, or that the warning would have come to any user’s attention because of its presentation and location. The court concludes that Kawasaki is not entitled to summary judgment on any warnings claim related to the “differential label” or on any other label owing to the existence of genuine issues of material fact generated by Row-son’s affidavit.
Even if the court is not entitled to consider Rowson’s belated affidavit, the court concludes that Kawasaki would not be entitled to judgment as a matter of law even had Row-son not read the warnings at issue. The court will therefore turn, in the alternative, to examination of the warnings claims on the undisputed facts as they stood until very shortly before hearing on this motion, which were that Rowson had not read the warnings in question.
B. Bryan Rowson’s Failure To Read Warnings
Kawasaki argues that an issue as to the adequacy of a warning necessarily presupposes that the operator has read the warning, citing
Johnson v. Niagara Machine & Tool Works,
Prior to Bryan Rowson’s recollection of having read warnings, the Rowsons argued that, on the contrary, whether the warnings given were adequate, and whether adequate efforts were made to convey those warnings to the user, are questions of fact for the jury to decide, citing
Stapleton v. Kawasaki Heavy Indus., Ltd.,
Thus, Kawasaki appears to argue that whether or not the
content
of its warnings was adequate is irrelevant because Rowson did not read those warnings. Kawasaki argues that it is entitled to summary judgment on all of the Rowsons’ failure to warn claims because Rowson did not read the warnings, whatever their content. The Rowsons argue
In a diversity action, the federal court is not free to fashion rules of law from whole cloth.
Jackson v. Anchor Packing Co.,
Whether a products liability plaintiffs failure to read a warning entitles the defendant to summary judgment on all failure to warn claims is a thorny issue not previously presented to Iowa courts. The court will therefore be guided, where necessary, by the decisions of other jurisdictions. Id.
1. The Duty To Provide Adequate Warnings
Iowa courts have followed Restatement (Second) of Torts § 388, which states, in pertinent part, that a supplier of a chattel is subject to liability to those whom the supplier would expect to use the chattel if the supplier
(e) fails to exercise reasonable care to-inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Henkel v. R & S Bottling Co.,
Thus, under Iowa law, the duty to warn requires adequate warning, and the adequacy of the warning depends both upon its content and upon whether the person under the duty took reasonable care to inform the user of the possible danger of the product. An adequate warning that no one sees does not inform the user of anything. This far Iowa law can take us, but much of the remaining analysis of this issue requires examination of the law of other jurisdictions. The decisions of courts of other jurisdictions demonstrate that reasonable care to inform the user logically means both that the content be appropriate and that it be presented in a way likely to reach the user.
2. Unread Warnings And Causation Issues
A
number of state courts have confronted the issue of whether a products liability
Texas courts twice confronted the issue in the 1960s and 1970s. In
Charles Pfizer & Co. v. Branch,
In
Technical Chem. Co. v. Jacobs,
The Texas Supreme Court has since revisited these issues. In
Magro v. Ragsdale Brothers, Inc.,
In
E.R. Squibb & Sons, Inc. v. Cox,
We contrast the instant facts with a situation where a plaintiff cannot read and alleges that the written warning is inadequate for failure to include symbols, see e.g., Hubbard-Hall Chemical Co. v. Silverman,340 F.2d 402 (1st Cir.1965) (affirming judgment against manufacturer of crop dusting chemicals in negligent-failure-to-warn action for death of two non-English reading Puerto Ricans where label on chemical container did not display skull and cross-bones symbol in addition to written warning); or a situation where plaintiff alleges that the warning is inadequate with respect to prominence, see e.g., Spruill v. Boyle-Midway, Inc.,308 F.2d 79 , 87 (4th Cir.1962) (affirming judgment against manufacturer of furniture polish in negligent-failure-to-adequately-warn action for death of a 14-month-old child where mother did not read warning on furniture polish bottle, but warning was “not calculated to attract the user’s attention, due to its position, size, and ... coloring”).
In either of the above situations, the very nature of the alleged breach is such that it causes a potential plaintiff to fail to read the warning which causes his injury. The warning might even be perfectly adequate with respect to wording, so that if a potential plaintiff read it he would appreciate the product’s particular danger, alter his conduct accordingly, and not be injured. But, in the situations we describe above, the warnings are potentially inadequate because they are presented in a manner that prevents a consumer from reading them and being warned.
In the present situation, we have a different kind of inadequacy. Here, nothing in the nature of Squibb’s inadequate warning prevented plaintiff from reading it. Plaintiff could have read this allegedly inadequate, unspecific warning as easily as he could have read an adequate, specific warning. And, no amount of specificity would have protected this plaintiff, because he would not have read a warning. Thus, the presumed inadequacy of Squibb’s warning did not proximately cause plaintiffs injury.
Therefore, we hold today that a plaintiff who does not read an allegedly inadequate warning cannot maintain a negligent-failure-to-adequately-wam action unless the nature of the alleged inadequacy is such that it prevents him from reading it.
Id.
The Alabama Supreme Court has recently followed its ruling in
Squibb.
In
Carruth v. Pittway Corp.,
The Louisiana Supreme Court also considered whether any warning would have been futile in an unread warnings case, concluding that the defendant had shown that any warning, however given, would have been futile, and therefore plaintiff could not show causation.
Lewis Bloxom, et ux v. Lonnie Bloxom, et al.,
In
East Penn Mfg. Co. v. Pineda,
In the failure to warn context, it is first necessary to distinguish between (1) failure to take adequate steps to ensure the warning was communicated to the ultimate user — issues involving the prominence and location of the label — and (2) failure to provide a warning that, if communicated to the user, would have been adequate to warn of risk — which involves the content of the warning. When the failure to warn is based upon the steps taken to communicate the warning, the fact that the plaintiff never read the warning is itself evidence that the label was inadequate, and should not bar recovery. See Rhodes v. Interstate Battery System of Am.,722 F.2d 1517 , 1519 (11th Cir.1984). But when the cause of action is predicated on the content of the warning, as in this ease, the plaintiffs own failure to read it will be contributory negligence in some jurisdictions. Id.
Pineda,
The Arkansas Supreme Court has applied the presumption used by the Louisiana courts in
Bloxom
and
Safeco.
In
Bushong v. Garman Co.,
We think the better rule is that failure to read the label does not automatically preclude a claim for inadequate warning. We find the rule applied in Safeco Ins. Co. v. Baker,515 So.2d 655 (La.Ct.App.1987), particularly persuasive and we adopt the reasoning therein. Safeco holds the plaintiff originally has the burden of proving the warnings or instructions provided were inadequate. Once a plaintiff proves the lack of an adequate warning or instruction, a presumption arises that the user would have read and heeded adequate warnings or instructions. This presumption may be rebutted by evidence “which persuades the trier of fact that an adequate warning or instruction would have been futile under the circumstances.” Safeco Ins. Co.,515 So.2d 655 , 657 (La.Ct.App.1987); See also Johnson v. Niagara,666 F.2d 1223 (8th Cir.1981). In this case, appellant himself admitted that he had never read a label on a cleaning product during the three years he worked at Stewart Electric. Given this, we cannot say the trial court erred in finding appellant’s failure to read the label precluded his claim as any warning or instruction would have been futile since appellant would not have read it.
Bushong,
These cases lead the court to the following conclusions: (1) failure to read a warning does not as a matter of law preclude a claim of inadequate warnings if the plaintiff’s claim is that the warning given was inadequate in presentation and location unless there are no material questions of fact that any warning would have been futile; (2) where plaintiff alleges that a warning is inadequate because it was not effectively communicated — a presentation and location of warnings case — the plaintiff’s failure to read the warning may be evidence of the inadequacy of the warning; (3) where plaintiff proves that a warning is inadequate, either in content or presentation, a presumption arises that plaintiff would have heeded an adequate warning; (4) the presumption may be rebutted by evidence that any effort to warn the plaintiff would have been futile; (5) whether the presumption has been rebutted is a question of fact for the jury, not a question of law for the court appropriate for determination on a motion for summary judgment. 19
The court finds that federal cases do not undermine the validity of these conclusions. Kawasaki argues that an issue as to the adequacy of a warning necessarily presup
Federal courts have also held that it was for the jury to decide whether a plaintiff who did not read a warning actually given would have read an adequate warning, and that a failure to warn claim is not necessarily barred by evidence that plaintiff did not read a warning.
See, e.g., Thornton v. E.I. Du Pont de Nemours & Co., Inc.,
The court therefore concludes that Kawasaki is not entitled to summary judgment on the Rowsons’ failure to warn claims. Failure to read the warnings would not bar the Rowsons’ warning claims as a matter of law because the Rowsons have pleaded a case that falls, within the exception recognized by several courts: he alleges that the warnings were inadequate in presentation and location.
20
Carruth,
C. Bryan Row son’s Failure To Heed An Open And Obvious Hazard
Kawasaki argues that it is entitled to summary judgment as a matter of law on the Rowsons’ allegations that Kawasaki is liable for for failing to design the Bayou ATV with “roll bars” or “other appropriate crashworthiness features,” collectively referred to herein as ROPS, because the lack of such features and the dangers thereby created are an open and obvious condition for which no liability may attach to Kawasaki. Kawasaki cites various cases for the proposition that lack of ROPS on motorcycles and convertible automobiles, and by analogy the lack of such devices on ATVs, is an open and obvious danger for which no liability may attach.
See, e.g., McWilliams v. Yamaha Motor Corp.,
The Rowsons argue, first, that the lack of ROPS does not fit within the Iowa formulation of an open and obvious danger. Second, they argue that Kawasaki fails to address both the design claim, that lack of ROPS was a design defect, and the warnings claim, that Kawasaki should have warned of the danger constituted by the lack of ROPS on the Bayou model ATV. The Rowsons argue that the feasibility of alternative designs is a factor in proving defective design which should not be dismissed by arguments that a danger was open and obvious.
The court concludes that although Kawasaki properly states the rule that a manufacturer, designer, or seller of a product cannot be held liable for open and obvious dangers, summary judgment is inappropriate. Whether an open and obvious danger exists, both in terms of a design defect and a duty to warn, and whether the plaintiff appreciated the danger sufficiently to obviate defendant’s liability, are questions of fact for the jury.
New Iowa decisions have considered the “open and obvious danger” defense in prod
the Restatement rule was only to warn of dangers known to [the defendant] which he had reason to believe would not be realized by persons using the [product].
******
We conclude that, under section 388 of the Restatement, a supplier’s duty is to warn of dangers which are not obvious with respect to use of the chattel in the condition in which it is supplied. It does not require the supplier to give information concerning available means for amelioration of obvious dangers, even though it is aware of these means and the party to whom the chattel is supplied is not.
Nichols,
However, where plaintiff demonstrates that he or she had no knowledge of the danger from which harm resulted, a jury question is generated on whether the danger was open and obvious and a warning was required.
See Sundry v. John Deere Co.,
In the present case, the Rowsons have provided sufficient evidence to raise a jury question on the issue of whether the lack of ROPS on the Bayou ATV was an open and obvious danger requiring a warning. Row-son was not familiar with ATVs, had never ridden one, and such evidence suggests that Rowson, and others like him, would not appreciate the danger sufficiently to obviate the necessity of a warning.
Furthermore, courts have held that whether or not a danger is open and obvious is only one factor in determining whether a product is, unreasonably dangerous in design.
See, e.g., Lockley v. Deere & Co.,
The Eight Circuit Court of Appeals, applying Missouri law, has held that “[u]nless a court can say as a matter of law that a product is not more dangerous than a reasonable user would have expected, the ques
The Rowsons have argued that the lack of ROPS made the Bayou ATV more dangerous than a reasonable user would have expected, and therefore a jury question is generated. The Rowsons have also argued that the danger posed by the lack of ROPS was enhanced in a way that a reasonable person would not recognize by other hidden defects in the design and performance of the ATV. Plaintiffs expert is expected to testify that control difficulties in the Bayou ATV and its high center of gravity, combined with the lack of ROPS, presented a risk that was not known and obvious. The court believes that enhancement of one danger, which may or may not have been open and obvious, by other hidden factors logically render the danger far greater than a reasonable person could appreciate.
See, e.g., Delvaux v. Ford Motor Co.,
Nor can the court say as a matter of law that the ATV in question here is not more dangerous than a reasonable user would have expected, and a jury question is therefore presented.
Donahue v. Phillips Petroleum Co.,
Finally, courts have held that whether or not a danger is open and obvious is only one factor in determining whether a product is unreasonably dangerous in design.
See, e.g., Lockley,
VI. CONCLUSION
The court concludes that summary judgment is inappropriate on the issues Kawasaki has presented. Rowson’s affidavit filed on October 17, 1994, generates a genuine issue of material fact as to whether or not Rowson read the warnings provided on the ATV in question before riding it. Although as a general rule such a belated affidavit cannot be allowed to generate a fact question, the court finds that the affidavit in question here plausibly explains its discrepancies with prior testimony as the result of Rowson’s refreshed recollection of having read some or all of the warning labels, at least in part, prior to his accident. In the alternative, the court concludes that even if it disregards the October 17, 1994, affidavit as creating only a sham issue of fact, Kawasaki’s motion for partial summary judgment must still be denied. On the basis of undisputed facts that Rowson did not read any warning labels, which was the circumstance that obtained prior to the belated affidavit, the court’s examination of authorities leads it to conclude that failure to read a warning does not as a matter of law preclude a claim of inadequate warnings if the plaintiffs claim is that the warning given was inadequate in presentation and location unless there are no material questions of fact that any warning would have been futile. In this case, Rowson’s claim of inadequate warnings was indeed that the warnings given were inadequate in presentation and location and Kawasaki has not shown that there is no genuine issue of material fact that any warnings would have been futile in this ease. Finally, the court concludes that Kawasaki is not entitled to summary judgment on Rowson’s design and warnings claims on the ground that the lack of ROPS on the ATV in question constituted an open and obvious danger for which Kawasaki cannot be held liable. Under the Iowa formulation of the open and obvious hazard doctrine, the lack of ROPS alone and in combination with other factors may have made the Bayou ATV more dangerous than a reasonable user would have expected for its intended use on “all terrain,” and a jury question is therefore generated.
IT IS SO ORDERED.
Notes
. The court notes that on September 21, 1994, well after this action and the present motion for partial summary judgment were filed, the Iowa Supreme Court ruled that
the correct submission of instructions regarding a failure to warn claim for damages is under a theory of negligence and the claim should not be submitted as a theory of strict liability. In testing the defendant's liability for negligence in failing to warn, the defendant should be held to the standard of care of an expert in its field. See West v. Broderick & Bascom Rope Co.,197 N.W.2d 202 , 210 (Iowa 1972); Castrignano [v. E.R. Squibb & Sons, Inc.], 546 A.2d [775], 782 [(R.I.1988)]; Cf. [Owens-Illinois, Inc. v.] Zenobia, [325 Md. 420 ,] 601 A.2d [633,] 639 [(1992)]. The relevant inquiry therefore is whether the reasonable manufacturer knew or should have known of the danger, in the light of the generally recognized and prevailing best scientific knowledge, yet failed to provide adequate warning to users or consumers. See West,197 N.W.2d at 209 ; Castrignano,546 A.2d at 782 ; Cf. Zenobia,601 A.2d at 641 ; see also W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 99, at 697 (5th ed. 1984).
Olson v. Prosoco, Inc.,
. Rowson states that this deposition, taken July 1, 1994, was not available to attach to his resistance filed January 24, 1994.
. An argument can be made that this affidavit should he stricken as untimely, as it follows the filing of Rowsons' resistance to the motion for partial summary judgment by several months. However, the affidavit presents what is purportedly newly discovered information pertinent to the issues involved, and
Fed.R.Civ.P.
56(c) pro
. I was appointed as a district judge for the U.S. District Court for the Northern District of Iowa on August 26, 1994, and this case was transferred to me shortly thereafter.
. Local Rule of the United States District Court for the Northern District of Iowa 23 provides that:
When there is involved in any proceeding a question of law of a state which may be determinative of the cause then pending in this court and as to which it appears there is no controlling precedent in the decisions of the appellate courts of the state, a motion may be made to certify the question of law to the highest appellate court of the state. This court, on such motion or on its own motion, may certify such question to the appropriate court, if authorized by state or rule.
The Iowa Code provides that:
The supreme court may answer questions of law certified to it by the supreme court of the United States, a court of appeals of the United States, a United States district court or the highest appellate court or the intermediate appellate court of another state, when requested by the certifying court, if there are involved in a proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the appellate courts of this state.
Iowa Code § 684A.1 (1993).
. An issue of material fact is genuine if it has a real basis in the record.
Hartnagel v. Norman,
. The court does not believe that the content of the warning labels is dispositive of this motion, and therefore will not quote them here.
. The Owner’s Manual contains the following warning under "Climbing Hills”:
Do not operate this vehicle in the differential mode while climbing hills. If either rear wheel leaves the ground, it will spin freely, and the wheel on the ground will transmit very little power causing the vehicle to lose momentum. Then, when the spinning wheel touches the ground, it may grab abruptly, causing the operator to lose control and have an accident.
According to his May 1992 deposition testimony, Rowson did not read this or any other warning on the ATV or in the operator’s manual. Row-son now asserts that he read a warning label on the ATV itself concerning the differential. The court presents the warning from the Owner's Manual here only to explain the purpose of the locking differential.
. The court understands Rowson's affidavit to state that Rowson recalls reading these warnings, at least partially, prior to his accident, although his affidavit does not make the timing of the reading of the warnings entirely clear. See Rowson's Affidavit, para. 4.
. The Texas Court of Civil Appeals cited
Spruill v. Boyle-Midway, Incorporated,
We think the court properly concluded that the statement on the label that if an allergic reaction set in use of the medicine should be discontinued was an inadequate warning. The facts of this case show that when a severe reaction was had that mere discontinuance of use of the Combiotic was of no avail. Appellant did not advise doing the only thing that could have helped. It gave no antidote. The evidence justified the conclusion that when there was a severe reaction unless a known antidote was promptly administered the cattle would probably die; that these facts were known to appellant; that necessity for the antidote was not known to Branch, nor would it have been known to the ordinary purchaser and user of the medicine. The cause of action arose in part in Stonewall County when the medicine was sold by the dealer in Stonewall County without adequate warning.
The judgment is affirmed.
Branch,365 S.W.2d at 834-35 .
. The court wrote:
The product itself was neither defective nor unreasonably dangerous. The danger was the failure to warn consumers of an improper use of the product. It is defendant's contention that a proper warning would not have avoided Jacobs' wrong installation procedure because he would not have read a label with full and adequate warnings. This precise question has not been previously presented to this court and little has been written on the subject. Dean W. Page Keeton has carefully examined and analyzed the problem of warning and causation, and we find his several articles helpful. Keeton, Products Liability—Inadequacy of Information, 48 TEXAS L.REV. 398 (1970); Keeton, Private Law—Torts, Annual Survey of Texas Law, 24 S.W.L.J. 3, 12 (1970); Keeton, Products Liability—Problems Pertaining to Proof of Negligence, 19 S.W.L.J. 26, 33-34 (1965). Dean Keeton divides defective products into three categories: (1) those which are unreasonably dangerous due to ‘ safety legislation prohibiting the sale of the product under the circumstances; (2) those which are unreasonably dangerous since the ordinary man, knowing the risks and dangers involved in the use of the product, would not have marketed the product; (3) those which are unreasonably dangerous since the same ordinary man would not have marketed the product without supplying warnings as to the risks and dangers involved in using the product as well as instructions as to how to avoid those risks and dangers .... When the defect is due to inadequate labeling, however, there is a difference; the defect and the product are separable. In the words of Dean Keeton, when a product is defective due to inadequate labeling, "the aspect of the defendant's conduct that made the sale of the product unreasonably dangerous [i.e., the label] must be found to have contributed to the plaintiff's injury.” 48 TEXAS. L.REV. at 413. This means that it is incumbent upon the plaintiff to secure a jury finding that the faulty labeling was a cause of the injury. It is this finding that Jacobs failed to secure.
Technical Chem.,
. The court wrote:
It has been suggested that the law should supply the presumption that an adequate warning would have been read. "Where warning is given, the seller may reasonably assume that it will be read and heeded.” RESTATEMENT (SECOND) OF TORTS § 402A, Comment j (1965). See Note, 50 TEXAS L.REV. 577 (1972). Such a presumption works in favor of the manufacturer when an adequate warning is present. Where there is no warning, as in this case, however, the presumption that the user would have read an adequate warning works in favor of the plaintiff user. In other words, the presumption is that Jacobs would have read an adequate warning. The presumption, may, however, be rebutted if the manufacturer comes forward with contrary evidence that the presumed fact did not exist.
Sudduth v. Commonwealth County Mutual Ins. Co.,
Id.480 S.W.2d at 605 .
. The court held:
The jury in this case refused to find that Technical Chemical's failure to warn was a producing cause of Jacobs’ injuries, and we are unable to say that Jacobs established as a matter of law that it was a producing cause. As pointed out by Technical Chemical, this record shows that Jacobs first testified to a state of facts which had him in the process of , beginning to read the label at the time of the explosion. Later, at trial, he was forced to abandon this entire theory when confronted by eyewitness testimony that proved an entirely different state of facts. There was left in the record Jacobs' own statements that he did not read the label before the explosion. Jacobs at one time testified he had previously installed freon in his car about four dozen times, but later said he had done so a few times. From this unsatisfactory state of Jacobs’ testimony and all the circumstances, the jury could have concluded that the warning, whatever it might have contained and however it might have been displayed, would have been disregarded by Jacobs.
Id. at 606.
. The court held:
In Technical Chemical Co. v. Jacobs,480 S.W.2d 602 , 606 (Tex.1972), we considered but did not adopt a rebuttable presumption that an adequate warning will be read and that the failure to give an adequate warning is necessarily a cause of injury. Instead, we concluded that even if there were such a presumption, there was sufficient evidence to show that plaintiff would have disregarded any warning given. In Magro v. Ragsdale Brothers, Inc.,721 S.W.2d at 834 , we did adopt the presumption suggested in Technical Chemical, holding that "it may be rebutted with evidence that the user [of the product] was blind, illiterate, intoxicated at the time of the product’s use, irresponsible, lax in judgment, or by some other circumstances tending to show that the improper use would have occurred regardless of the proposed warnings or instructions.” Employment of this presumption excuses plaintiff from offering self-serving evidence— that yes, he would have followed instructions if only they had been given — simply to meet hisburden of proof. Once defendant has offered evidence of circumstances tending to show that no warning would have been heeded, an issue arises which can be resolved only by the finder of fact.
In the present case, evidence was adduced at trial that Lee had an eighth grade education, had difficulty reading, and thus did not pay attention to warning labels. Dresser offered evidence that because of the heat in the workplace Lee seldom used a mask or respirator to protect against inhaling the silica dust, even though it bothered him so much that he had to blow it out of his nose and spit it out of his mouth. Lee's working conditions — a hot, dusty, improperly ventilated foundry — are, in the words of Magro, "other circumstances tending to show that the improper use would have occurred regardless of the proposed warnings or instructions." Id. This evidence was sufficient to rebut any presumption that Lee would have heeded a warning by Dresser and that the absence of such a warning was at least a cause, if not the only cause, of Lee's injury. Although Lee disputed whether he would have heeded a warning label on bags of Dresser products, Dresser was entitled to have that conflict in the evidence resolved by the juiy. Dresser’s evidence, though certainly not conclusive, raised a factual issue for the jury to resolve. If the jury believed Dresser’s evidence, it could have concluded that Tyler Pipe's negligence was not only a cause, but the sole cause of Lee’s injuries. It follows, therefore, that the trial court's exclusion of Dresser's evidence was reversible error.
Id. (footnotes omitted).
. The court held as follows:
There is no evidence that anyone at Sascon or Cantu would have read a warning free from the inadequacies determined by the court of appeals. Indeed, given that they did not read the warnings GM provided, there is no reason why they would have read the warnings which the court of appeals held should have been provided. While GM could have made the warning inescapably obvious, more than it was, it had no duty to do so. Thus, there is no evidence that the inadequacies in GM’s warning caused the accident.
Id.
. The Alabama court recognized in another decision that in a case involving a plaintiff who read some, but not all, of the warnings given, an inference was created that the plaintiff would have followed additional or other adequate warnings.
Sears, Roebuck & Co. v. Harris,
. The Louisiana Court held as follows:
An essential element of the plaintiff's cause of action for failure to adequately warn of a product's danger is that there be some reasonable connection between the omission of the manufacturer and the damage which the plaintiff has suffered. Halphen [v. Johns-Manville Sales Corp.], [484 So.2d 110 (La.1986)] supra; Hebert v. Brazzel,403 So.2d 1242 , 1244 (La.1981); Weber [v. Fidelity & Casualty Ins. Co. of N.Y.], [259 La. 599 ,250 So.2d 754 (1971)] supra; see, generally, Prosser & Keeton on Torts § 41; Twerski, Seizing the Middle Ground, 57 N.Y.U.L.Rev. 521, 562 (1982). Once a plaintiff proves that the lack of an adequate warning or instruction rendered the product unreasonably dangerous, his cause in fact burden is assisted by a presumption: when a manufacturer fails to give adequate warnings or instructions, a presumption arises that the user would have read and heeded such admonitions. Benoit v. Ryan Chevrolet,428 So.2d 489 , 493 (La.App.2dCir.1982); Tech nical Chemical Co. v. Jacobs,480 S.W.2d 602 , 606 (Tex.1972); Wolfe v. Ford Motor Co.,6 Mass.App.Ct. 346 ,376 N.E.2d 143 (Mass.App.Ct.1978); Nissen Trampoline Co. v. Terre Haute First National Bank,332 N.E.2d 820 , 826-27 (Ind.App.Ct.1975); Reyes v. Wyeth Laboratories,498 F.2d 1264 , 1281-82 (5th Cir.1974); Jackson v. Johns-Manville Sales Corp.,727 F.2d 506 , 523 (5th Cir.1984). The presumption, may, however, be rebutted if the manufacturer produces contrary evidence which persuades the trier of fact that an adequate warning or instruction would have been futile under the circumstances. Cf. Magro v. Ragsdale Bros., Inc.,721 S.W.2d 832 (Tex.1986); See Note, Products Liability, 50 Tex.L.Rev. 577 (1972); McCormick on Evidence, 3d ed. § 343 (1984).
Assuming the role of the trier of facts once again, we conclude that because the plaintiffs proved that the manufacturer failed to give adequate warnings as to the Firebird's incendiary propensities, a presumption arose that the user, Lonnie Bloxom, would read and heedsuch a warning had it been given. However, when we examine the evidence, we find that the manufacturer has fulfilled not only its burden of producing contrary evidence but also its burden of persuading us that even an adequate warning in the owner's manual would have been futile in this case. Lonnie Bloxom testified on both direct and cross examination that he had not read any part of his owner’s manual prior to the fire. He stated that it was not his practice to refer to an automobile operator’s manual unless there was something wrong with the car. Accordingly, even if an adequate warning of the particular danger in this case had been given by a proper provision in the manual, such a warning would have been futile because Lonnie Bloxom did not read the manual before parking his car over combustible materials.
For the reasons assigned, we conclude that while the plaintiffs proved most of the elements of their case, they failed to prove that the lack of an adequate warning was a cause in fact of the damages they sustained, and the court of appeal therefore reached the correct result. Accordingly, the court of appeal judgment is affirmed.
Bloxom,512 So.2d at 850-51 .
. The court stated that
evidence that a warning, even if communicated, would not have affected the conduct of the user rebuts the presumption of causation and, indeed, may be sufficient to break the chain of proximate causation entirely. Accordingly, if the evidence shows that Pineda would not have heeded warnings communicated on an adequate warning label, he cannot rely on the Payne presumption, and may not recover absent proof that the inadequacy of the warning label was at least a substantial factor contributing to his injury. In arguing that "the alleged inadequacy of the warning had no effect on the way [Pineda] acted,” appellants rely on his testimony that he had learned how to handle batteries from his uncle and by observing his coworkers, and had successfully handled them in the same way for many years. Considering also his testimony that he knew batteries produced explosive gas that could be ignited by sparks and that goggles should be worn when working around them, appellants argue that he would have disregarded adequate instructionson the safe handling of batteries even had they been conveyed to him.
East Penn,
. The circumstances of this case, where the plaintiff was using a pleasure vehicle, are to be contrasted with the situation that might obtain where a professional fails to read warnings supplied with the tools of his trade. In
Hutchins v. Silicone Specialties, Inc.,
We held in Duane v. Oklahoma Gas & Electric Co.,833 P.2d 284 , 287 (Okla.1992), that where a product is used in an industrial setting by one supposedly skilled at his job a manufacturer has "no duty to warn of dangers inherent in the task or which are created by oversight or negligence of the contractor or fellow employees.” A defendant in a manufacturers' products liability case is not liable for misuse of its product in a manner that is not foreseeable. Fields v. Volkswagen of America, Inc.,555 P.2d 48 (Okla.1976).
Here, the P-3100 container carried explicit warnings that P-3100 primer was highly flammable, that it should not be used in poorly ventilated areas, and that no flame should be near it. Defendant was entitled to assume that [plaintiffs] would heed its warnings. Defendant was not required to foresee that professional waterproofers would fail to read its warnings, and then use the P-3100 in a manner that the manufacturer's instructions expressly warned against.
The trial court correctly granted Silicone Specialties' motion for summaiy judgment.
. At the hearing on this motion, Kawasaki argued that even if Rowson did not read the differential warning label on the ATV, his expert's deposition demonstrates that there is no genuine issue of material fact that the "differential label” is adequate in presentation and location. However, the court does not read the expert's testimony as asserting that the “differential label” is adequate in presentation and location. The expert testified only that “if the reader is interested in knowing something about the differential, that one [the differential label], I think, is conspicuous for that purpose, certainly.” Plaintiffs' Supplement To Resistance To Motion For Summaiy Judgment, Deposition of Dr. Edward Karnes, p. 64, lines 20-23. He did not testify that the warning would have come to any user’s attention because of its presentation and location, only to the attention of one “interested in knowing
. If the evidence demonstrates, and the jury finds, that Rowson did read the warnings, resolving the genuine issue of material fact that Row-son's belated affidavit has generated, Rowson may have no claim of inadequate warnings based on presentation and location that can be submitted to the jury.
. Most of the decisions on the doctrine have examined the liability of a possessor of land for open and obvious hazards to an invitee.
See, e.g., Schnoor v. Deitchler,
. In this regard, the pertinent part of § 388 states that a supplier of a chattel is subject to liability to those whom the supplier would expect to use the chattel if the supplier
(a) knows or has reason to know that the chattel is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition....