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.

____________
The Honorable Ross A. Walters, United States Magistrate Judge for the

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Southern District of Iowa. This case was tried by a magistrate judge pursuant to the

consent of the parties under 28 U.S.C. § 636(c).

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McMILLIAN, Circuit Judge.

William C. Gremmels and his wife Sandra K. Gremmels

(together "appellants") appeal from a final order entered

in the United States District Court for the Southern

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District of Iowa granting summary judgment in favor of

defendant Tandy Corporation (Tandy) and dismissing their

complaint against Tandy. Gremmels v. Tandy Corp.,

No. 3:93-CV-30121, slip op. at 15 (S.D. Iowa 1995). For

reversal, appellants argue the district court misapplied

the Iowa negligence law of premises liability. For the

reasons discussed below, we affirm the judgment of the

district court. 

BACKGROUND

The following facts are undisputed and are based upon

a stipulation of facts filed by the parties in the

district court. 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 him by a Radio Shack salesperson collapsed as he was

watching a computer demonstration. On prior occasions

the backrest panel and one of the casters on the leg of

the chair had become loose or fallen off and had to be

repaired by store employees. Neither the backrest panel

nor the caster on the chair leg was loose on the day of

the accident. A metallurgy expert hired by appellants

testified that the chair collapsed because of a

defectively manufactured weld junction at the base of the
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chair, and that it would have been impossible for the

store employees to determine that the weld was defective

prior to the time that the weld failed. Appellants'

expert hypothesized that the repair of the loose caster

could have exacerbated the weld defect. Appellants sued

Tandy for negligence on the theory of premises liability.

Appellants also sued the manufacturer and the distributor

of the chair alleging both negligence and 
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strict liability theories against each. Additionally,

Sandra Gremmels asserted a claim for loss of spousal

consortium. 

The distributor filed a motion for summary judgment

on September 17, 1993. The district court denied the

motion on October 27, 1993. Both Tandy and the

distributor filed cross-claims against the manufacturer

of the chair. A default judgment was entered on July 26,

1995, against the manufacturer and in favor of Tandy on

its cross-claim. On August 8, 1995, the distributor

renewed its motion for summary judgment. On September 1,

1995, Tandy filed a motion for summary judgment seeking

dismissal of appellants' claims. On November 9, 1995,

the district court granted both Tandy's and the

distributor's motions for summary judgment. The district

court expressly rejected appellants' theory that the

repair of the caster could have exacerbated the weld

defect. Id. at 15, (stating that the basis for the

expert's hypothesis is purely speculative). The district

court further reasoned that Tandy had no knowledge, nor

was there a reasonable possibility that Tandy would have

discovered the weld defect that caused the accident. Id.

Therefore, the district court held that there was no

genuine issue of material fact remaining for trial with

respect to appellants' claims against the distributor and

Tandy and granted summary judgment in favor of Tandy and

the distributor. Id. Appellants filed a motion to amend

the judgment on November 17, 1995. On April 1, 1996, the

district court denied appellants' motion to amend the

judgment and ordered the claims against the manufacturer

dismissed unless requests for default judgment were

entered before April 15, 1996. Default judgment was
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entered on April 15, 1996, against the manufacturer and

in favor of appellants. The cross-claims of Tandy and

the distributor against the manufacturer were dismissed

without prejudice after summary judgment was granted for

both Tandy and the distributor. Id. at 18. Appellants

now appeal the grant of summary judgment in favor of

Tandy. 
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DISCUSSION

We review the district court's grant of summary

judgment de novo. Marshall v. UNUM Life Ins. Co., 13

F.3d 282, 283 (8th Cir. 1994) (citing Richmond v. Board

of Regents, 957 F.2d 595, 597 (8th Cir. 1992)). "Summary

judgment is appropriate if the record, when viewed in

[the] light most favorable to the non-moving party, shows

no genuine issue of material fact exists, and the moving

party is entitled to judgment as a matter of law." Id.

When the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party,

there is no "genuine issue for trial" and summary

judgment is 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

asserting that there is a lack of a proof concerning an

essential element of the non-moving party's case.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The non-moving party then has the burden of proving

"specific facts showing that there is a genuine issue for

trial." Matsushita, 475 U.S. at 586-87. Upon motion for

summary judgment, the district court's function is

neither to weigh the evidence nor make credibility

determinations, but to determine if there is a genuine

issue for trial. Grossman v. Dillard Dep’t Stores, Inc.,

47 F.3d 969, 971 (8th Cir. 1995).

Appellants concede that the defective weld caused the

accident and that Tandy could not have known of or

discovered the defective weld before the accident.

However, appellants argue that the "dangerous condition"

from which Tandy had a duty to protect their customers
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was the condition of the entire chair rather than the

defective weld on the chair. Appellants further argue

that the store employees had constructive knowledge of

the problems with the caster and the backrest of the

chair and the risk of possible injury posed by the chair.

Under appellants' theory of liability, the store

employees had a duty either to warn William Gremmels of

the dangerous conditions of the backrest and the caster,

or to provide him with a different chair. In either

case, appellants argue that William Gremmels would not

have sat in the defective chair. 
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The elements of a negligence claim under Iowa law

are: the existence of a duty to conform to a standard of

conduct to protect others; failure to conform to that

standard; 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. Page

Keeton et al., Prosser and Keeton on the Law of Torts §

30 (5th ed. 1984)). "Whether a duty arises out of the

parties' relationship is always a matter of law for the

court." Shaw v. Soo Line R.R., 463 N.W.2d 51, 53 (Iowa

1990) (citations omitted). "Under Iowa premises

liability law, the scope of the duty of care that a

possessor of land owes to an entrant is based on the

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).

William Gremmels was a business invitee to the Radio

Shack store. The Iowa Supreme Court has approved and

adopted § 343 of the Restatement (Second) of Torts (1965)

(the Restatement), which sets forth the standard for

determining whether a duty is owed to a business invitee.

See Hanson v. Town & Country Shopping Ctr., Inc., 144

N.W.2d 870, 873 (Iowa 1966). The Restatement § 343

states, in relevant part:

A possessor of land is subject to liability

for physical 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

care would discover the condition, and should

realize that it involves an unreasonable risk of

harm to such invitees, and
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(b) should expect that they will not

discover or realize the danger, or will fail to

protect themselves against it, and

(c) fails to exercise reasonable care to

protect them against the danger.
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The business owner is not subject to liability on a claim

of negligence if the owner and its agents did not know,

or could not have known, by exercise of reasonable care,

of the condition that caused the harm. Id. In the

present case, the harm was the injury sustained as a

result of collapse of the chair. However, the condition

that in fact caused the harm was the defective weld, and

that the store employees did not know of, and could not

have discovered by exercise of reasonable care, the

defective weld. Therefore, we hold that the district

court correctly granted summary judgment in favor of

Tandy because, as a matter of law, Tandy did not owe a

duty to William Gremmels to protect him from the danger

presented by the defective weld.

Appellants also argue that the store employees were

negligent in failing to warn William Gremmels about the

prior problems with the chair's backrest and caster.

Assuming for the purposes of argument that the store

employees should have warned William Gremmels about the

backrest and the caster, it is undisputed that the

backrest and the caster did not cause the collapse of the

chair. Causation "has two components: (1) the

defendant's conduct must have in fact caused the

plaintiff's damages (generally a factual inquiry)

[causation in fact] and (2) the policy of the law must

require the defendant to be legally responsible for the

injury (generally a legal question) [proximate or legal

causation]." Scoggins v. Wal-Mart Stores, Inc., 560

N.W.2d 564, 567 (Iowa 1997)(Scoggins)(citing Gerst v.

Marshall, 549 N.W.2d 810, 815-16 (Iowa 1996)). Proximate

or legal cause involves a policy decision as to whether

the defendant should be held legally responsible for the
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consequences that the defendant's actions have "in fact"

caused. Id. "[A]n actor's conduct is a proximate or

legal cause of harm to another if the conduct is a

'substantial factor' in producing the harm . . . ."

Waitek v. Dalkon Shield Claimants Trust, 908 F. Supp.

672, 683 (N.D. Iowa 1995) (citing Kelly v. Sinclair Oil

Corp., 476 N.W.2d 341, 349 (Iowa 1991)). "[I]n

determining whether conduct meets the substantial factor

test, we look to the 'proximity and foreseeability of the

harm flowing from the actor's conduct, although it is not

necessary that the actual consequences of a defendant's

negligence should have been foreseen.'" Scoggins, 560

N.W.2d at 567 (citations omitted). 
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At the time of the accident, neither the backrest nor

the caster was loose or disconnected from the chair.

Appellants do not dispute that the backrest and the

casters were functioning properly at the time of the

accident. The defective weld caused the chair to

collapse. Thus, the condition of the backrest and the

caster was neither the cause in fact nor the proximate

cause of William Gremmels's injuries. We therefore hold

the district court did not err in granting summary

judgment in favor of Tandy because, as a matter of law,

the condition of the backrest and the caster did not

cause the accident.

CONCLUSION

Accordingly, the judgment of the district court is

affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.