## United States Court of Appeals FOR THE EIGHTH CIRCUIT

____________ No. 96-2205

____________ Dr. William C. Gremmels; * Sandra K. Gremmels, * * Appellants, * * v. * * Tandy Corporation, a Texas * Corporation, doing business * as Radio Shack of Iowa, * * Appeal from the United States Appellee. * District Court for the * Southern District of Iowa Wallace Leisure Products, a * Pennsylvania Corporation; * Armet S.N.C. Di Ferronato * Giovanni & Company,a foreign * corporation, * * Defendants. *

____________ Submitted: December 11, 1996 Filed: July 10, 1997

____________ Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

____________TheHonorable Ross A. Walters, United States Magistrate Judge for th e 1 SouthernDistrict of Iowa. This case was tried by a magistrate judge pursuant to the consent of the parties under 28 U.S.C. § 636(c). -2- McMILLIAN, Circuit Judge.
William C. Gremmels and his wife Sandra K. Gremmels (together "appellants") appeal from a final o rder entered in the United States District Court for the Souther n 1 Dist rict of Iowa granting summary judgment in favor o f defendant Tandy Corporation (Tandy) and dismissing their comp laint against Tandy. Gremmels v. Tandy Corp. , No. 3:93-C V-30121, slip op. at 15 (S.D. Iowa 1995). For reversal, appellants argue the district court misapplied the Iow a negligence law of premises liability. For th e reas ons discussed below, we affirm the judgment of th e district court.

BACKGROUND The following facts are undisputed and are based upo n a stipulation of facts filed by the parties in th e district c ourt. On September 20, 1991, William Gremmels
was shopping in Tandy's Radio Shack store in Muscatine , Iowa. He fell and injured himself when a chair provided to hi m by a Radio Shack salesperson collapsed as he wa s watc hing a computer demonstration. On prior occasion s the backrest panel and one of the casters on the leg o f the c hair had become loose or fallen off and had to b e repaired by store employees. Neither the backrest panel
nor the caster on the chair leg was loose on the day o f the accident. A metallurgy expert hired by appellant s test ifiedthat the chair collapsed because of a defectively manufactured weld junction at the base of the-3-

chair , and that it would have been impossible for th e store empl oyees to determine that the weld was defective prio r to the time that the weld failed. Appellants ' expert hypothesized that the repair of the loose caste r could have exacerbated the weld defect. Appellants sued Tandy for negligence on the theory of premise s liability. Appellants also sued the manufacturer and the distributor of the chair alleging both negligence and-4-

strict liability theories against each. Additionally , Sa ndra Gremmels asserted a claim for loss of spousa l consortium.

The distributor filed a motion for summary judgment
on Se ptember 17, 1993. The district court denied th e motion o n October 27, 1993. Both Tandy and th e distributor filed cross-claims against the manufacture r of the chair. A default judgment was enteredon July 26, 1995, a gainst the manufacturer and in favor of Tandy o n it s cross-claim. On August 8, 1995, the distributo r renewed its motion for summary judgment. On September 1, 1995, Tandy filed a motion for summary judgment seekin g dism issal of appellants' claims. On November 9, 1995 , the district court granted both Tandy's and th e distributor's motions for summary judgment. The district
cour t expressly rejected appellants' theory that th e re pair of the caster could have exacerbated the wel d defec t. Id. at 15, (stating that the basis for th e expert's hypothesis is purely speculative). The district court further reasoned that Tandy had no knowledge, no r was there a reasonable possibility that Tandy would have discovered the weld defect that caused the ac cident. Id. Th erefore, the district court held that there was n o genuine issue of material fact remaining for trial wit h respect to appellants' claims against the dis tributor and Tandy and granted summary judgment in favor of Tandy and the distributor. Id. Appellants filed a mot ion to amend the judgment on November 17, 1995. On April 1, 1996, the dist rict court denied appellants' motion to amend th e judgment a nd ordered the claims against the manufacturer dis missedunless requests for default judgment wer e en teredbefore April 15, 1996. Default judgment wa s-5-

entered on April 15, 1996, against the manufacturer an d in fav or of appellants. The cross-claims of Tandy an d the distributor against the manufacturer were dismisse d without pr ejudice after summary judgment was granted for both T andy and the distributor. Id. at 18. Appellant s now appeal the grant of summary judgment in favor o f Tandy.-6- DISCUSSION

We review the district court's grant of summar y judgm ent de novo. Marshall v. UNUM Life Ins. Co. , 1 3 F.3d 28 2, 283 (8th Cir. 1994) (citing Richmond v. Boar d of Regents , 957 F.2d 595, 597 (8th Cir. 1992) ). "Summary judgmen t is appropriate if the record, when viewed i n [the] light most favorable to the non-moving party, shows no genuine issue of material fact exists, and the moving par tyis entitled to judgment as a matter of law." Id

. When the record taken as a whole could not lead a rational t rier of fact to find for the non-moving party, the re is no "genuine issue for trial" and summar y judgment i s appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986) ( Matsushita ) (citations omitted). The moving party has the burden of
asser ting that there is a lack of a proof concerning a n essential element of the non-moving party's case

. Celo texCorp. v. Catrett , 477 U.S. 317, 322-23 (1986)

. The n on-moving party then has the burden of provin g "specific facts showing that there is a genui ne issue for trial." Matsushita , 475 U.S. at 586-87. Upo n motion for
su mmaryjudgment, the district court's function i s neit her to weigh the evidence nor make credibilit y dete rminations, but to determine if there is a genuin e issue for trial. Grossman v. Dillard Dep’t S tores, Inc. , 47 F.3d 969, 971 (8th Cir. 1995).
Appellants concede that the defective weld caused th e ac cident and that Tandy could not have known of o r di scoveredthe defective weld before the accident

. However, a ppellants argue that the "dangerous condition" fromw hich Tandy had a duty to protect their customer s-7-

was t he condition of the entire chair rather than th e defe ctive weld on the chair. Appellants further argu e that the store employees had constructive knowledge o f the problems with the caster and the backrest of th e chair and the risk of possible injury posed by the chair. Under appellants' theory of liability, the stor e employe es had a duty either to warn William Gremmels o f the danger ous conditions of the backrest and the caster,
or to provide him with a different chair. In eithe r case , appellants argue that William Gremmels would no t have sat in the defective chair.-8-

The e lements of a negligence claim under Iowa la w are: the e xistence of a duty to conform to a standard of conduct to protect others; failure to conform to tha t stan dard; proximate cause; and damages. Hartig v

. Francois , 562 N.W.2d 427, 429 (Iowa 1997) (citing Marcus
v. Young , 538 N.W.2d 285, 288 (Iowa 1995), and W. Pag e Kee tonet al., Prosser and Keeton on the Law of Torts § 30 (5 th ed. 1984)). "Whether a duty arises out of th e parties ' relationship is always a matter of law for th e cou rt." Shaw v. Soo Line R.R. , 463 N.W.2d 51, 53 (Iow a 1990) (citations omitted). "Under Iowa premise s liabi litylaw, the scope of the duty of care that a possessor of land owes to an entrant is based on th e entrant's legal status as either a trespasser, licensee, or invitee ." Wieseler v. Sisters of Mercy Health Corp. , 540 N.W.2d 445, 449 (Iowa 1995) (citations omitted)

. Wi lliamGremmels was a business invitee to the Radi o Shack store. The Iowa Supreme Court has approved an d adopted § 343 of the Restatement (Second) of Torts (1965) (the Restatement), which sets forth the standard fo r determining whether a duty is owed to a busin ess invitee. See H anson v. Town & Country Shopping Ctr., Inc. , 14 4 N.W .2d 870, 873 (Iowa 1966). The Restatement § 34 3 states, in relevant part:

A pos sessor of land is subject to liability for p hysical harm caused to his [or her ] invitees by a condition on the land if, but only if, he [or she] (a) knows or by the exercise of reasonable car e would discover the condition, and shoul d realize that it involves an un reasonable risk of harm to such invitees, and-9- (b ) should expect that they will no t discover or realize the danger, or will fail to protect themselves against it, and (c ) fails to exercise reasonable care t o protect them against the danger.-10-

The business owner is not subject to liabilit y on a claim of ne gligence if the owner and its agents did not know , or could n ot have known, by exercise of reasonable care, of the condition that caused the harm. Id. In th e pres ent case, the harm was the injury sustained as a result of collapse of the chair. However, the condition that in fa ct caused the harm was the defective weld, and that the store employees did not know of, and could no t have discovered by exercise of reasonable care, th e defecti ve weld. Therefore, we hold that the distric t cour t correctly granted summary judgment in favor o f Tandybecause, as a matter of law, Tandy did not owe a dutyto William Gremmels to protect him from the dange r presented by the defective weld.
Appellants also argue that the store employees wer e negligent in failing to warn William Gremmels about th e prio r problems with the chair's backrest and caster

. As suming for the purposes of argument that the stor e empl oyees should have warned William Gremmels about th e backrest and the caster, it is undisputed that th e backrest and the caster did not cause the col lapse of the chai r. Causation "has two components: (1) th e defe ndant's conduct must have in fact caused th e plaintiff's damages (generally a factual inquiry ) [causationin fact] and (2) the policy of the law mus t require the defendant to be legally responsible for th e inju ry(generally a legal question) [proximate or lega l
caus ation]." Scoggins v. Wal-Mart Stores, Inc. , 56 0 N.W.2 d 564, 567 (Iowa 1997)( Scoggins )(citing Gerst v
. Marshall , 549 N.W.2d 810, 815-16 (Iowa 1996)) . Proximate
or lega l cause involves a policy decision as to whethe r the defend ant should be held legally responsible for the-11-

consequenc es that the defendant's actions have "in fact"
cause d. Id. "[A]n actor's conduct is a proximate o r legal cause of harm to another if the conduct is a 'su bstantial factor' in producing the harm . . . . " Waitek v. Dalkon Shield Claimants Trust , 908 F. Supp

. 672, 68 3 (N.D. Iowa 1995) (citing Kelly v. Sinclair Oi l Corp. , 476 N.W.2d 341, 349 (Iowa 1991)). "[I] n determinin g whether conduct meets the substantial factor test, we look to the 'proximity and foreseeab ility of the harm flowing from the actor's conduct, althou gh it is not
nece ssarythat the actual consequences of a defendant' s negl igence should have been foreseen.'" Scoggins , 56 0 N.W.2d at 567 (citations omitted).-12-

At the time of the accident, neither the backrest no r th e caster was loose or disconnected from the chair

. Appel lants do not dispute that the backrest and th e ca sters were functioning properly at the time of th e acc ident. The defective weld caused the chair t o collap se. Thus, the condition of the backrest and th e caster was neither the cause in fact nor the proximat e cause of W illiam Gremmels's injuries. We therefore hold the district court did not err in granting summar y judgm ent in favor of Tandy because, as a matter of law , the condition of the backrest and the caster did no t cause the accident.

CONCLUSION
Accordingly, the judgment of the district court i s affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.