___________ No. 96-2142

___________ Dennis Belec, * * Plaintiff/Appellant, * * Ap peal from the United State s v. * Dis trict Court for the Easter n * District of Missouri. Hayssen Manufacturing Company, * * Defendant/Appellee. *

___________ Submitted: December 9, 1996 Filed: January 27, 1997

___________ Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge.

This case arises from an injury Dennis Belec suffered at work while operating a plastic b low molding machine. Belec sued the manufacturer of th e machine, Hayssen Manufacturing Company, for strict liability an d negligence, and two co-employees for negligently modifying the machine

. The district court granted summary judgment to the defendants, and Belec
nowappeals the dismissal of his failure to warn claim against Hayssen

. We reverse.
Belec inj ured both of his hands when they were caught in a plastics blow molding machine. The machine was manufactu red by Hayssen and sold to Belec's employer, Semco Plastics. As sold, the machine operated on either aut omatic or manual cycle, but automatic cycle was its production mode

. When run on automatic cycle, the operator had to change positions t o 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 t o start t he process for the next piece. This took time, and the constan t start ing and stopping of the machine caused Semco to replace the moto r twice.

Hayssen offered a separate retrofit kit permitting the machine t o operate on semi-automatic cycle, but Semco employees arranged to modify th e machine themselves so that it could be run on semi-automatic cycle , permitting the operator to remain in one position. Belec was injured whil e removing a plastic pi ggy bank from the modified machine. The machine had begun to o perate while his hands were still inside, causing burns an d 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 th e manufacture and design of the product and negligent failure to warn. Bele c also sued the co-employees responsible for modif ying the machine, alleging that they were neglig ent. Before the district court ruled on the summary judgment motions, Belec conceded his negligence and strict liability for design defect claims against Hayssen.

The di strict court granted the defendants' motions for summar y judgment. It concluded that Belec's injuries had been caused solely b y Semco's modifications to the machine so Hayssen could not be liable. Sinc e the co-employees were acting in furtherance of Semco's nondelegable duty to provide a safe wor king environment, the Missouri Workers' Compensation Law, Mo. Rev. Stat. §§ 287.010 -811 (1993), barred legal action agains t them. 1

### 3 In Missouri, a manufacturer can be h eld strictly liable for failure to warn of t he dangers of a product even if there is no defect in it s design. Sutherland v. Elpower Corp. , 923 F.2d 1 285, 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 c aused by every possible use of a product. See Nesselrode , 70 7 S.W.2d at 375 (noting that a manufacturer is not an insurer for al l accidents caused by its product). Where a product would be used in a reasonablyforeseeable manner, however, the manufacturer can be strictly liable i f it does not provide an adequate warning of the danger of th e product. See Sutherland , 923 F.2d at 1289 (conc luding that a manufacturer
can be strictly liable for failing to warn about reasonably foreseeabl e unintended use of a m odified 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 th e affidav it of an expert witness, Keith Vidal. The affidavit containe d Vidal's opinion that the machine was unreasonably dangerous as sold becaus e 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 o n semi-automatic cycle without appropriate safegua rds. The affidavit states it was reasonably for eseeable the machine would be used in semi-automatic cycle because Hayssenitself offered a kit to enable it to be modified to operate that way. Vidal's affidavit incorporated his report which wa s based in part on a re view 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 concl usions and contradicts his earlier deposition testimony. Hayssen contends that Vidal testified at his deposition that the

### 4

machine as designed, manufactured, and shipped was reasonably operationall y safe, and that the portion of his affidavit opining that the failure t o
warn m ade the machine unreasonably dangerous was inconsistent with th e earlier testimony. I t states that the affidavit cannot therefore raise a genuine i ssue of material fact. Garnac Grain Co. v. Blackley , 932 F.2 d 1563, 1568 (8th Cir. 1991). We review a grant of summary judgment de novo. Anderson v. F.J

. Little Machine Co. , 6 8 F.3d 1113, 1114 (8th Cir. 1995). Summary judgment is appropriate only i f there is no genuine issue of material fact and the moving party is entit led 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 favora ble to the nonmoving party and all reasonable in ferences from the facts must be resolved in favor of that party. Reich v. Conagra, Inc. , 987 F.2d 1357, 1359 (8th Cir. 1993).

Vida l's affidavit did not contradict his earlier depositio n testimony. The deposition had been taken by Hay ssen's counsel at the time Belec was still claiming Hayssen was strictly li able for design defect and negl igent design. At his deposition, Vidal was testifying about th e operation of the machine as sold, on automatic or manual cycle. He was no t 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 state ment regarding the operation of the machine had in fact been mad e shor tlyafter Hayssen's attorney specifically excluded from hi s consideration any opinion on a failure to warn.

Vidal's affidavit was sufficient to create a genuine issue o f material fact. The record, when read in the light favorable to th e nonmoving party, indi cated it was reasonably foreseeable that the plastic blowmolding 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 b e modified for use without it. See Sutherland , 923 F.2d at 1289 (exper t 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 o f 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 a t 1290; Gomez v. Clark Equip. Co. , 743 S.W.2d 429 , 432 (Mo. Ct. App. 1987). Belec contends the manufacturer can be liable fo r failing to warn if it is reasonably foreseeabl e 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 fin d 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 prod uct 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 o f injury. See Sutherla nd , 923 F.2d at 1290 (discussing Gomez ). Failure to warn can provide an i ndependent basis for liability in a strict liability
case. Sutherland , 923 F.2d at 1289-90.

Since Belec produced evidence sufficient to create a genuine issu e of mat erial fact on the issue of whether Hayssen could be liable fo r failure to warn, the district court erred in granting

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summary judgment to Hayssen. The trier of fact should have the opportunit y 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.