legal issues with the key facts what happened on the day of the explosion i broke power unit lost its hydraulic power because of a coupling broke this is  explosion was an editable if there was no safety backup because with a loss of hydraulic power the vapors would become trapped within this unit they couldn't get out and more papers were coming in acute import remember is used on a daily basis it is part of the normal cycling of the operation it provides additional power to the dampers and during normal operations it also has the know how would you state the standard for determining whether a failure to follow instructions or failure to maintain  i believe the other side cited tranquil way that's ok so i think it was an x ray machine that the hospital didn't follow specific safety instructions in the court in that case harm that happened they were trained and they didn't do what this case is different we don't have that kind of warning this is a safety device without any warnings or even information about the fact that it is a safety device remembered as a used in daily operations the safety function is secondary unbeknownst to the user so i don't i think it's foreseeable that a user who doesn't understand or have any knowledge that it's a safety device might not perform regularly that's just like perhaps we don't put oil in our car when we should but the result of bad as well maybe the car will stop only when i'm on the road but not that it will explode i get it you're going to judge but yes so so i think that that's part of it but the other part of it is so there's no warning aspect of it  the maintenance is required because of the defective design of the product the product required user intervention and order for the safety feature to better options that would not require the user to have to do anything to make the safety feature work but in this case payne i designed a system with a safety feature that required active action by the user by their standards once a month certainly the jury would be entitled to make whatever they want to make of that that goes into the comparative fault analysis but this case lays that out that says this sort of negligence by the question that i are level of generality about the law which is i gather under minnesota law foreseeability is sometimes a question of fact for a jury if so so but the highest level on this is and so what i'm trying to understand is how you would articulate the line between when it's a jury question and when it's a question of law for the court to decide this is just standard summary judgment if any reasonable jury  on the existence of the desi well and where does foreseeability come in well you at the at the well look at it has aspects of both so i mean if the designer can forcing a danger with the product they have it they have a balancing that the district court ended up doing clearly the evidence was better but judge discuss that next step and made the finding he conducted the reasonable care balancing test and made a finding that that somebody didn't read it there's evidence about this big manual about whether or not people are green plants read the manual there's no evidence about whether or not somebody don't want me and i'm only accumulator cells but that actually has nothing to do you're running a major plant like this and you get a manual about port piece equipment and you don't read it then you don't have a failure to warrant claim it's to the conduct of the plaintiff which is no less a product or in the manual it self do you think these two claims rise and fall together or if the district was right on the warning could you still proceed on the other claim superseding cause was the lack of maintenance when if that's the superseded cause that obviates then why ability then you really have a failure to warn claim because then you have to look at whether or not there was a sufficient water and again  maintain a critical component in its ethanol production plant and that component was an accumulator contained within the hydraulic power unit that powered the i think there's three critical points that i am going to point out just to start with the accumulator was charged upon commission i think there was some question by graham plans whether that occurred great plains expert admits that occurred dampers to their failsafe position again that's something that is it minute by the green plains expert actually that this component was properly sized and would do the job that it was designed to do and the rd one is that there is no evidence case there was no maintenance done and i wasn't maintained in any fashion and i think the testimony was that how many years did they have it they had it for six years and in that six years of testimony is that there and there's no record that anyone ever identify other people mr smith is the person identified as the plant manager most of this you know most knowledgeable person on it and i think at this point you know there is nothing from the poem to say well here are some other people that did  it not being perceived i understand your argument that it wasn't forseeable but i also wonder if there's an argument that it was forseeable and becomes a jury issue and that there were website construction users to check their cumulate or once per month i'm provided the instructions to do so and that's testimony from the progress of hydraulics so that means you're saying the warning incorporates the website the warning doesn't corporate the web have to put what most of the cases that we have in the syria says the court must determine the likelihood of the harm the gravity of the harm if it happens against the burden of precaution which would be effective to avoid the harm and then this is from the trust cases that test as an objective standard which focuses on the conduct of the manufacturing evaluating whether the choice of design struck an acceptable balance among several competing factors so i got i guess i disagree with it and i think the fact that there are a number of summary judgment warnings are and in this case i think that that we've given those warnings it's you know i keep going back to it but the explosion death personal injury property damage counsel again what about our cases interpret the minnesota law that say if the plane even deffeyes other feasible roughly quoting other feasible safety devices that should have been incorporated in the original design and the expert witness says that they get to the jury and split why i believe that fall together in this case i don't think but that they would be i think they could be explosive in a case of theoretical free will if we're looking at it but in this case you think they go together correct but that's because the plaintiffs are on that for the idea that this court said when there's a negligent design the negligence was continuous and ongoing so that when the user failed to follow the instructions that was not a superseding cause it was concurrent negligence and there was it was proper then to apportion the fault you don't even c brief so i want to ask you whether you think that that well you have any and you say about yeah my thoughts are there's nothing to indicate that this family here or this event occurred except for the lack of dispute about that when you look at what the experts have said certainly are experts in this is mr pennington i mr barbera indicate that maintenance was the reason that this occurred the only other expert is plain it's kind of that there is no competing argument against the main not being sufficient in this case well the argument is that there was a design defect and if he had been designed testimony can be properly excluded when an expert is proposing safety modifications if he's not demonstrated by some means that they would work to protect the machine operators or would not interfere with machines utility and that's from the  comparative negligence i plaintiff's failure to heed warnings and they did they do where they removed a safety device and they do were they which says on the machine don't put your hands in here what the power connected and they put their hands in there and they still let that go in but in any event i think the mere fact of the alternative design doesn't mean necessarily the piece design was effective and this is one thing i wanted to get to before i had to be done i'd want to make sure i was clear there is no one failsafe might be an emergency happening and i bring that up slowly because you're looking at through the different theories that are proposed none of them deal with that none of them address that wait a nd there are there is more than one fail safe position so for example