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No. 96-2142

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Dennis Belec, *

*

Plaintiff/Appellant, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Hayssen Manufacturing Company, *

*

Defendant/Appellee. *

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Submitted: December 9, 1996

 Filed: January 27, 1997

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Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.

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MURPHY, Circuit Judge.

This case arises from an injury Dennis Belec suffered at work while

operating a plastic blow molding machine. Belec sued the manufacturer of

the machine, Hayssen Manufacturing Company, for strict liability and

negligence, and two co-employees for negligently modifying the machine.

The district court granted summary judgment to the defendants, and Belec

now appeals the dismissal of his failure to warn claim against Hayssen.

We reverse. 

Belec injured both of his hands when they were caught in a plastics

blow molding machine. The machine was manufactured by Hayssen and sold to

Belec's employer, Semco Plastics. As sold, the machine operated on either

automatic or manual cycle, but automatic cycle was its production mode.

When run on automatic cycle, the operator had to change positions to

produce each plastic item. The operator started the production cycle by

pushing a button and then
 Belec originally appealed from the dismissal of his claims 1

against his co-employees, but this part of the appeal was

subsequently dismissed.

2

had to move to remove the item, then return to the original position to

start the process for the next piece. This took time, and the constant

starting and stopping of the machine caused Semco to replace the motor

twice.

Hayssen offered a separate retrofit kit permitting the machine to

operate on semi-automatic cycle, but Semco employees arranged to modify the

machine themselves so that it could be run on semi-automatic cycle,

permitting the operator to remain in one position. Belec was injured while

removing a plastic piggy bank from the modified machine. The machine had

begun to operate while his hands were still inside, causing burns and

fractures that resulted in the amputation of fingers on his left hand. 

Belec sued Hayssen under Missouri law for strict liability for design

defect and failure to warn, and for failure to use ordinary care in the

manufacture and design of the product and negligent failure to warn. Belec

also sued the co-employees responsible for modifying the machine, alleging

that they were negligent. Before the district court ruled on the summary

judgment motions, Belec conceded his negligence and strict liability for

design defect claims against Hayssen. 

The district court granted the defendants' motions for summary

judgment. It concluded that Belec's injuries had been caused solely by

Semco's modifications to the machine so Hayssen could not be liable. Since

the co-employees were acting in furtherance of Semco's nondelegable duty

to provide a safe working environment, the Missouri Workers' Compensation

Law, Mo. Rev. Stat. §§ 287.010 -811 (1993), barred legal action against

them. 

1

 
3

In Missouri, a manufacturer can be held strictly liable for failure

to warn of the dangers of a product even if there is no defect in its

design. Sutherland v. Elpower Corp., 923 F.2d 1285, 1288 (8th Cir. 1991);

Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 382 (Mo. 1986)

(en banc). A manufacturer is not strictly liable for failing to warn of

dangers caused by every possible use of a product. See Nesselrode, 707

S.W.2d at 375 (noting that a manufacturer is not an insurer for all

accidents caused by its product). Where a product would be used in a

reasonably foreseeable manner, however, the manufacturer can be strictly

liable if it does not provide an adequate warning of the danger of the

product. See Sutherland, 923 F.2d at 1289 (concluding that a manufacturer

can be strictly liable for failing to warn about reasonably foreseeable

unintended use of a modified product); Nesselrode, 707 S.W.2d at 380-381

(stating that strict liability applies to reasonably anticipated use and

misuse of a product). 

In opposing the motion for summary judgment, Belec offered the

affidavit of an expert witness, Keith Vidal. The affidavit contained

Vidal's opinion that the machine was unreasonably dangerous as sold because

it did not contain a warning about modifying the machine to run on semiautomatic cycle or of the danger posed by the machine when operated on

semi-automatic cycle without appropriate safeguards. The affidavit states

it was reasonably foreseeable the machine would be used in semi-automatic

cycle because Hayssen itself offered a kit to enable it to be modified to

operate that way. Vidal's affidavit incorporated his report which was

based in part on a review of documents produced by Hayssen that contained

facts supporting his conclusion that the use in semi-automatic cycle was

reasonably foreseeable.

 

Hayssen argues that Vidal's affidavit contains only legal conclusions

and contradicts his earlier deposition testimony. Hayssen contends that

Vidal testified at his deposition that the
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machine as designed, manufactured, and shipped was reasonably operationally

safe, and that the portion of his affidavit opining that the failure to

warn made the machine unreasonably dangerous was inconsistent with the

earlier testimony. It states that the affidavit cannot therefore raise a

genuine issue of material fact. Garnac Grain Co. v. Blackley, 932 F.2d

1563, 1568 (8th Cir. 1991). 

We review a grant of summary judgment de novo. Anderson v. F.J.

Little Machine Co., 68 F.3d 1113, 1114 (8th Cir. 1995). Summary judgment

is appropriate only if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56 (c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The

evidence must be viewed in the light most favorable to the nonmoving party

and all reasonable inferences from the facts must be resolved in favor of

that party. Reich v. Conagra, Inc., 987 F.2d 1357, 1359 (8th Cir. 1993).

Vidal's affidavit did not contradict his earlier deposition

testimony. The deposition had been taken by Hayssen's counsel at the time

Belec was still claiming Hayssen was strictly liable for design defect and

negligent design. At his deposition, Vidal was testifying about the

operation of the machine as sold, on automatic or manual cycle. He was not

addressing any danger posed by use of the machine in semi-automatic cycle

or by the failure to warn about a modification for such use. Vidal's

statement regarding the operation of the machine had in fact been made

shortly after Hayssen's attorney specifically excluded from his

consideration any opinion on a failure to warn. 

Vidal's affidavit was sufficient to create a genuine issue of

material fact. The record, when read in the light favorable to the

nonmoving party, indicated it was reasonably foreseeable that the plastic

blow molding machine would be operated on semi-automatic cycle. Vidal's

affidavit states Hayssen offered a retrofit kit to modify the machine so

it would operate on semi-automatic cycle and
 Hayssen's answer to Belec's complaint alleged Belec was 2

negligent, and his own expert stated he had hit a switch that

turned on the machine while his hands were in it.

5

the high cost of the kit made it foreseeable that the machine would be

modified for use without it. See Sutherland, 923 F.2d at 1289 (expert

testimony regarding absence of warning sufficient to support jury verdict).

Hayssen and Belec disagree about whether a manufacturer can be liable

for failing to warn even if a certain use is reasonably foreseeable.

Hayssen believes a manufacturer cannot be liable for failing to warn of

danger if a safe product is modified to make it unsafe, especially where

the modification is the sole cause of injury. Sutherland, 923 F.2d at

1290; Gomez v. Clark Equip. Co., 743 S.W.2d 429, 432 (Mo. Ct. App. 1987).

Belec contends the manufacturer can be liable for failing to warn if it is

reasonably foreseeable that a modified product will be used in a way that

poses new dangers. Belec asserts that even under Hayssen's theory there

is an issue of fact as to the cause of his injury because a jury could find

Hayssen, the co-employees, and Belec all responsible.2

A jury could find on this record that the failure to provide a

warning made the product unsafe and therefore caused the accident. Gomez

does not control whether summary judgment is appropriate here because in

that case a jury had found that a modification was the sole cause of

injury. See Sutherland, 923 F.2d at 1290 (discussing Gomez). Failure to

warn can provide an independent basis for liability in a strict liability

case. Sutherland, 923 F.2d at 1289-90.

Since Belec produced evidence sufficient to create a genuine issue

of material fact on the issue of whether Hayssen could be liable for

failure to warn, the district court erred in granting
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summary judgment to Hayssen. The trier of fact should have the opportunity

to determine the questions of reasonable foreseeability and the cause of

the injury. The judgment in favor of Hayssen is reversed, and the case is

remanded for trial.

A true copy.

Attest:

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