1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-22-1994

Metzgar v. Playskool, Inc.

Precedential or Non-Precedential:

Docket 93-3508

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Recommended Citation

"Metzgar v. Playskool, Inc." (1994). 1994 Decisions. Paper 90.

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1 

 UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

___________ 

No. 93-3508 

___________ 

 RONALD W. METZGAR 

 MAUREEN INGRAM, co-administrators of 

 estate of MATTHEW C. METZGAR, deceased, 

 Appellants

 vs. 

 PLAYSKOOL INC., a corporation 

 K MART CORP., a corporation 

___________ 

Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Civ. No. 92-cv-00031J) 

___________ 

 

Argued 

April 11, 1994 

Before: BECKER, MANSMANN and SCIRICA, Circuit Judges. 

(Filed July 22, 1994) 

___________ 

Kevin R. Lomupo, Esquire 

Gilardi & Cooper 

310 Grant Street 

808 Grant Building 

Pittsburgh, Pennsylvania 15219 

Alfred S. Pelaez, Esquire (ARGUED) 

Duquesne University School of Law 

900 Locust Street 

Pittsburgh, Pennsylvania 15282 

 COUNSEL FOR APPELLANTS 

Edward A. Yurcon, Esquire (ARGUED) 

William M. Adams, Esquire 

Anstandig, Levicoff & McDyer 

2200 Gulf Tower 

Pittsburgh, Pennsylvania 15219 

 COUNSEL FOR APPELLEES 
2 

___________ 

OPINION OF THE COURT 

__________ 

MANSMANN, Circuit Judge. 

 Fifteen month old Matthew Metzgar was tragically 

asphyxiated to death on a purple half-column Playskool building 

block. In resolving his parents' civil action against the 

manufacturer and the retailer of the toy, brought under 

Pennsylvania's negligence and strict product liability rules of 

law, the district court entered summary judgment for the 

defendants on all four counts of the complaint. 

 We address the district court's application of the 

traditional risk-utility analysis which the district court 

utilized in resolving the negligence product liability cause of 

action. We disagree with the district court on its determination 

that the statistical risk of injury from the Playskool block to 

children like Matthew is so small as to preclude a finding of 

unreasonably defective design. We also address the district 

court's construction of the "intended user" element of the strict 

liability cause of action. We reject the district court's 

determination that the age guideline on the product packaging 

precludes the manufacturer's liability for safety when used by 

children, like Matthew, who may be shown to be developmentally 

within the age category, although chronologically slightly 

younger. We also reject the district court's dismissal of the 

failure to warn claims, brought both in strict liability and 

negligence. We cannot agree that the danger of a small child 
3 

choking on the block was obvious so as to negate any duty by 

Playskool to so warn. 

I. 

 On the morning of February 12, 1990, Matthew's father, 

Ronald, was babysitting Matthew and had placed Matthew, awake and 

healthy, in his playpen. Ronald left the room for just five 

minutes and upon his return, he found Matthew lifeless. His 

efforts to revive his son, after he called "911" and removed the 

Playskool block lodged in Matthew's throat, were to no avail. 

 The block which caused Matthew's untimely death is a 

cylindrical column, 7/8" wide by 1-3/4" long, the smallest block 

among the 49 brightly colored and variously shaped wood blocks 

marketed by Playskool, Inc.0 Playskool did not place any warning 

of a choking hazard on the box containing the blocks, but clearly 

and boldly imprinted on the front, back and top of the box are 

the words, "Ages 1-1/2 - 5." The size and shape of the block 

satisfied existing federal standards and regulations for risk 

mitigation and cautionary labeling promulgated and enforced by 

the Consumer Products Safety Commission, 16 C.F.R. § 1501.4, 

under the Federal Hazardous Substances Act, 15 U.S.C. §§ 1261-77. 

The Playskool block also met the small toy and toy part standard 

established by the American Society for Testing Materials. 

 On February 6, 1992, Mr. Metzgar and Maureen Ingram, 

Matthew's mother, filed a complaint against Playskool, Inc. and 

 

0 The blocks are manufactured and packaged for Hasbro, 

Inc. by Strauser Manufacturing, Inc. according to Hasbro 

specifications and are sold under the Playskool name. 
4 

K-Mart Corp., the retailer, setting forth essentially four counts 

under Pennsylvania law: negligent design, manufacture and sale 

of a toy block of a size and shape which made the block 

susceptible of being swallowed and causing a child to choke; 

strict liability under § 402A of the Restatement (Second) of 

Torts for manufacturing and selling a toy block in a defective 

condition, unreasonably dangerous to intended users, which the 

plaintiffs alleged includes a child of fifteen months; negligent 

failure to warn of the hazard to children of the toy block; and 

strict liability for failing to warn of the product hazard 

potential. Matthew's parents alleged that the manufacturer's age 

span recommendation on the box was inadequate to warn of the 

block's inherent danger.0

 In ruling upon the defendants' motion for summary 

judgment, the district court found with regard to the plaintiffs' 

negligent design and manufacture cause of action, that although 

the danger of choking was foreseeable, "[t]he historical risk of 

choking from the Playskool blocks is so small that, even ignoring 

the issue of parental supervision, the risk from the design as a 

matter of law is not unreasonable." District Court Opinion of 

Sept. 9, 1993 at A. 21. The court dismissed this cause of 

action. Further, in light of the explicit age designation on the 

box, the district court found that Playskool did not subjectively 

intend a fifteen month old child to use this particular Playskool 

 

0 An additional cause of action based on breach of 

unspecified express and implied warranties was withdrawn by 

letter dated April 13, 1993. 
5 

product. Thus the court also dismissed the plaintiffs' defective 

design strict liability cause of action, holding that "[i]f the 

concept of intended use . . . is to retain any meaning 

whatsoever, it necessarily means that use intended from the point 

of view of the manufacturer putting a product into the 

marketplace." District Court Opinion of Sept. 9, 1993 at A. 13 

(citing Griggs v. Bic Corp., 981 F.2d 1429 (3d Cir. 1992) 

(product not defective unless it possesses a feature which 

renders it unsafe for its intended use); Brantner v. Black & 

Decker, C.A. No. 93-1J, slip op. at 7-12 (W.D. Pa. Aug. 23, 

1993)). Further, reasoning that no warning is necessary where a 

risk of danger is obvious, the district court concluded as a 

matter of law that the likelihood of a young child choking on a 

small block is too obvious for the court to sustain the 

plaintiffs' failure to warn strict liability and negligence 

causes of action;0 (citing Mackowick v. Westinghouse Electric 

Corp., 525 Pa. 52, 575 A.2d 100, 102 (1990); Dauphin Deposit Bank 

and Trust Co. v. Toyota Motor Corp., 408 Pa. Super. 256, 596 A.2d 

845, 849 (1991)). Thus the district court granted summary 

judgment in favor of the defendants on all pending claims. 

 Our review of the district court's summary judgment 

order is plenary, and we will utilize the same tests and 

 

0 As a preliminary matter, the district court decided 

that neither the Federal Hazardous Substances Act, 15 U.S.C. 

§§1261-77, nor general principles of implied preemption, preempt 

Pennsylvania's labeling or design and manufacturing regulations. 

The district court's holding on this issue has not been appealed 

and is not, therefore, before us for review. 
6 

standards which the district court was constrained to apply.0 We 

will address each cause of action seriatim. 

II. 

 We are troubled by the district court's summary 

judgment disposition of the plaintiffs' negligent design and 

strict liability design defect causes of action. With regard to 

the negligence claim, the district court properly engaged in a 

risk-utility analysis. Griggs, 981 F.2d at 1435-36 (negligence 

law requires balancing of risk in light of social value of 

interest at stake, and potential harm, against value of 

conflicting interest) (citing W. Page Keeton et al., Prosser and 

Keeton on Torts § 31, at 173 (5th ed. 1984); Benson v. 

Pennsylvania Cent. Transp. Co., 463 Pa. 37, 342 A.2d 393, 397 

(1975); Clewell v. Pummer, 384 Pa. 515, 121 A.2d 459, 462 

(1956)); see also Kleinknecht v. Gettysburg College, 989 F.2d 

1360, 1369-70 (3d Cir. 1993) (the classic risk-utility analysis 

is used to determine whether a risk is unreasonable in a 

negligence cause of action). In performing this analysis, the 

district court relied heavily on the statistical fact that the 

general population of small children suffer a mortality rate from 

choking on small toys or toy parts of approximately only one per 

720,000 children. We note also that according to Playskool's 

representative, Charles Fischer, over the past twenty years, the 

 

0 The district court exercised diversity jurisdiction 

over these claims. 28 U.S.C. § 1332. Our jurisdiction arises 

from the final order of the district court. 28 U.S.C. § 1291. 
7 

Playskool block in question, of which easily hundreds of 

thousands have been sold, has not generated any complaints of 

choking deaths or injuries. A. 286; 299. Nevertheless, the 

plaintiffs' expert, E. Patrick McGuire, reported for the record 

that in one year studied, 1988, there were eleven deaths due to 

aspiration of small toys or toy parts by children. A. 79. The 

record does not indicate the current infant mortality rate due to 

small toy related asphyxiation, but the plaintiffs submitted a 

CPSC estimate reported in the House Congressional Record0 that in 

each year from 1980-88, an average of 3,200 small children were 

treated in hospital emergency rooms for toy related ingestion and 

aspiration injuries. A. 476. The CPSC also reported that 

between 1980 and 1991, 186 children choked on small toys, toy 

parts, and other children's products. 

 We share the district court's concern that without "at 

least a realistic threshold of risk," District Court Opinion of 

Sept. 9, 1993 at A. 21, n.10, courts should avoid intrusion into 

product design by too readily weighing risk-utility factors 

against the defendant, even in those cases where a grievous 

injury has been suffered. Nonetheless, we believe that an annual 

mortality rate of eleven is a "realistic threshold of risk" in 

this case. The fact that the Playskool purple half-column block 

has not been a contributor to the infant mortality rate until now 

may be simply happenstance from which we cannot conclude that the 

 

0 138 Cong. Rec. H8264 (daily ed. September 10, 1992) 

(statement of Rep. Collins concerning bill (H.R. 4706) to amend 

Consumer Product Safety Act to, among other things, extend 

authorization of appropriations under the Act). 
8 

block will be safe for future reasonably foreseeable users. We 

note that although the purple half-column was in technical 

compliance with CPSC and ASTM standards, the block only minimally 

met the required standards by protruding in length slightly 

beyond the ASTM test cylinder. The block's width, however, was 

slightly narrower than the test cylinder. It appears that a 

slight modification to the block design could virtually eliminate 

the choking potential without detracting from the block's 

utility. We do not believe that the evidence demonstrates, 

therefore, that the risk of a reasonably foreseeable user choking 

on the block is so relatively small -- measured against the 

block's decreased utility by modifying its present design -- as 

to permit summary judgment for the defendants on the basis of a 

risk-utility analysis. Therefore, we will vacate the summary 

judgment order as it pertains to the claim of negligent design.0

 

0 Judge Scirica would affirm the grant of summary 

judgment to Playskool on the negligent design claim on the basis 

of the district court's risk-utility analysis, which noted that 

the purple block exceeded the CPSC minimum size for toys for 

children under three. Where there is utility to the toy's size, 

the toy is safe for children of certain ages or under 

supervision, it is accompanied by adequate warnings, and the 

statistical probability of the risk is extremely low, the riskutility analysis may preclude a negligent design claim. 

Otherwise, it would appear that every marble would be subject to 

a negligent design claim. The only evidence on the risk posed by 

the block consisted of statistics on children's choking injuries 

and deaths from congressional testimony, but there was no 

evidence the choking incidents in the statistics involved objects 

of comparable size to the purple block. Indeed, Congresswoman 

Collins cited the statistics as evidence that children were 

choking on toys that were, unlike the purple block, smaller than 

the CPSC minimum. 138 Cong. Rec. H8264. 

 While Judge Becker believes that Judge Scirica's 

argument has considerable force, he adheres to the opinion of the 
9 

III. 

 We turn now to the district court's summary judgment 

disposition of the plaintiffs' strict liability design defect 

claim. We quite agree with the district court's reiteration that 

"a product is not defective unless it possesses `any feature that 

renders it unsafe for the intended use,'" and that the concept of 

intended use "`encompasses the participation of an intended 

user.'" District Court Opinion of September 9, 1993 at A.10 

(citing Griggs v. BIC Corp., 981 F.2d 1429, 1433 (3d Cir. 1992) 

and Azzarello v. Black Bros. Co., 480 Pa. 547, 391 A.2d 1020, 

1027 (1978)). We are much less certain, however, that Matthew, 

at age fifteen months, was not an intended user of this 

particular product. The eighteen month to five year 

recommendation boldly marked on the Playskool box is not, to our 

minds, an unequivocal indication that these blocks are unsuitable 

for use by a child who is just three months shy of eighteen 

months, particularly given the potential disparities among young 

children in the relation of their chronological age to their 

 

court because he believes that the statistical evidence 

concerning the magnitude of the risk of asphyxiation and related 

injures to children under the age of six may support a finding 

that all intended and likely users of the blocks are exposed to 

an unreasonable risk of asphyxiation. That is, to the extent 

that legally adequate warnings would leave no real market for the 

product (because, for example, the warning would have to include 

all children under the age of six and children over the age of 

six would have no real interest in the blocks), the plaintiffs 

could prevail on the negligent product design claim. Judge 

Becker notes in this regard that, were it unreasonable, given the 

nature of the particular product in light of its intended use, to 

expect an adult to engage in constant supervision of a child 

playing with it, a warning that the product should be used only 

with adult supervision would be legally inadequate. 
10 

physical and mental "developmental age." Moreover, the 

plaintiffs produced several experts who concluded that 

Playskool's age guideline pertained to the intended user's 

developmental stage.0

 We must emphasize that under Pennsylvania's 

interpretation of section 402A strict liability,0 an "intended 

user" of a product is not so broad a class as to encompass every 

user reasonably foreseeable to the manufacturer. Foreseeability 

pertains to a duty analysis under negligence tort law, but 

strictly speaking does not form a part of the appropriate 

analysis under Pennsylvania strict products liability law. 

Griggs, 981 F.2d at 1435 (". . . the `duty' analysis in strict 

liability eschews foreseeability as an element"). See also

Azzarello, 391 A.2d at 1025; Berkebile v. Brantly Helicopter 

 

0 The plaintiffs submitted three expert reports to the 

district court, including that of Sylvan E. Stool, M.D., A.69, 

Theodora Briggs Sweeney, A.70-73, and E. Patrick McGuire. A.77-

81. All three experts concurred that the age guideline served 

primarily as a developmental gauge, and did not convey safety 

hazard information based solely or primarily on the child's 

chronological age. 

0 In Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), the 

Pennsylvania Supreme Court adopted the Restatement (2d) Torts 

Section 402A as the law of Pennsylvania. Section 402A provides: 

(1) One who sells any product in a defective 

condition unreasonably dangerous to the user 

or consumer . . . is subject to liability for 

physical harm thereby caused to the ultimate 

user or consumer, or to his property, if 

(a) the seller is engaged in the business of 

selling such a product, and 

(b) it is expected to and does reach the user 

or consumer without substantial change in the 

condition in which it is sold. 
11 

Corp., 462 Pa. 83, 337 A.2d 893, 900 (1975) (plurality opinion) 

("Foreseeability is not a test of proximate cause [under strict 

liability]; it is a test of negligence."); Lewis v. Coffing Hoist 

Div., Duff-Norton Co., 515 Pa. 334, 528 A.2d 590, 593 (1987) (". 

. . negligence concepts [such as foreseeability] have no place in 

a case based on strict liability").0 Furthermore, it is the 

 

0 Prior to Griggs, in our reported decisions we did not 

carefully distinguish the role of foreseeability in negligence 

and in strict liability, and the concept has become blurred in 

the two contexts. See Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 

107, 119 (3d Cir. 1992) ("The inquiry is whether the product is 

defective for ordinary use and foreseeable misuse"), cert.

denied, 113 S.Ct. 1645 (1993); Sheldon v. West Bend Equip. Corp., 

718 F.2d 603, 608 (3d Cir. 1983) (". . . the intended use of a 

product includes any use which is reasonably foreseeable to the 

seller"); Schell v. AMF, Inc., 567 F.2d 1259, 1263 (3d Cir. 1977) 

("`. . . whether a particular use of a product is abnormal 

depends on whether the use was reasonably foreseeable by the 

seller'") (citing Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 

321 n.13 (1974)); Eshbach v. W. T. Grant's & Co., 481 F.2d 940, 

943 (3d Cir. 1973) ("`the duty of a manufacturer . . . is limited 

to foreseeing the probable results of the normal use of the 

product or a use which can be reasonably anticipated'") (citing 

Kaczmarek v. Mesta Machine Co., 463 F.2d 675 at 679 (3d Cir. 

1972)). In Griggs, in attempting to retain the important 

distinction between negligence and strict liability, we rejected 

the term "foreseeability" in the context of a strict liability 

analysis. 

 We note some difference in the panel's view here: Judge 

Mansmann would emphasize Griggs' sensitivity to keeping the 

terminology of negligence and strict liability distinct, and also 

reaffirm an objective standard to determine the manufacturer's 

intent in a strict liability analysis. See also, Pacheco v. The 

Coats Co., Inc., No. 93-1791, Slip op. at 8 (3d Cir. June 6, 

1994) (acknowledging that "foreseeability" is a term of 

negligence, although an objective standard is appropriate to a 

strict liability analysis of manufacturer's intent). Judge 

Becker and Judge Scirica believe that, at least insofar as Griggs

rejected a forseeability analysis in context of the intended use

(as opposed to the intended user) analysis, Griggs departed from 

prior Third Circuit caselaw just cited on the role played by 

foreseeability in strict liability cases, and to that extent 

carries no precedential weight. See O. Hommel Co. v. Ferro, 659 
12 

court which decides the threshold determination of the product's 

intended use based upon the parties' averments, and as part of 

that determination, whether the injured party was an "intended 

user." Griggs, 981 F.2d at 1432-33. Thus, the district court 

was obliged to focus on the intent of the manufacturer of the 

Playskool blocks in determining whether Matthew was an "intended 

user" for purposes of resolving the summary judgment motion. The 

court properly reasoned that a "foreseeable user" such as Matthew 

is not by strict definition coincident with an "intended user." 

Logic and prudence lend weight to the court's unwillingness to 

conflate the "intended user" with the "foreseeable user" in 

strict liability, especially where children are concerned, 

because so many varied and necessary products are hazards in the 

unintended but foreseeable hands of children, but cannot be 

"childproofed" without being rendered significantly less useful 

or even useless. This is not only true of inherently dangerous 

products, but is, to some extent, true even of toy products. 

Children are inherently vulnerable and in many circumstances, the 

product design cannot replace the adult supervision of a child. 

 Our concern here pertains to the fact that unlike the 

circumstances in Griggs involving the use of a BIC lighter by a 

three year old child -- clearly an unintended user -- here the 

record shows a lack of clear indication of who exactly the 

 

F.2d 340, 354 (3d Cir. 1981) ("[A] panel of this court cannot 

overrule a prior panel precedent . . . . To the extent that [the 

later case] is inconsistent with [the earlier case, the later 

case] must be deemed without effect."), cert. denied, 455 U.S. 

1017, 102 S. Ct. 1711 (1982); Pfeiffer v. School Bd. for Marion 

Ctr. Area, 917 F.2d 779, 781 (3d Cir. 1990) (same). 
13 

manufacturer intended to use the Playskool building blocks. 

Without sufficient evidence demonstrating that Playskool intended 

that the "Ages 1-1/2 - 5" user recommendation on the box only 

pertains to children who are chronologically 1-1/2 to 5 years old 

rather than the broader category of children who are 

developmentally 1-1/2 to 5 years old, we decline to accept the 

district court's interpretation of the age guideline indicated on 

the box as a strict chronological age category of intended users, 

which would exclude Matthew. It is possible that the indications 

on the package refer more broadly to the physical and mental 

aptitude of small children and do not contain any strict 

chronological age implication. A developmental age category 

might be shown to include Matthew. 

 We believe that the "intended user" must be determined 

in the context of the knowledge and assumptions of the ordinary 

consumer in the relevant community, at least, as here, in the 

absence of explicit warnings. Thus, although foreseeability is 

not a term that should be associated with strict liability, the 

concept, to the extent it implies an objective test, is not 

entirely foreign to a strict liability analysis, although it is 

applied in a more narrow sense than in negligence law. The 

court's inquiry into the intent of the manufacturer asks what the 

consumer could reasonably have understood the manufacturer's 

intent to be. Unless the use giving rise to a strict liability 

cause of action is a reasonably obvious misuse, or the user a 

reasonably obvious unintended user, as was the case in Griggs, or 

unless the particular use or user is clearly warned against, the 
14 

manufacturer is not obviously exonerated. We do not believe that 

here Matthew's parents were clearly alerted to the fact that the 

product presented a special danger to Matthew; nor do we believe 

that it was objectively unreasonable for them to have assumed 

that Matthew was an intended user. The plaintiffs' experts 

testified that the ordinary consumer in the present case would 

interpret the age guideline to be a developmental age 

recommendation. Moreover, Charles Fischer, the defendants' 

witness, testified that the "Ages 1-1/2 - 5" guideline 

represented the stage in which "the child has the coordination 

and will derive play value from [the blocks] . . . ," suggesting 

that those years were chosen for their correspondence to a 

child's physical and mental developmental age. A. 301. 

Furthermore, the evidence of record does not establish that the 

blocks posed a substantially greater risk of choking a fifteen 

month old than an eighteen month old; thus it may be that, even 

assuming that Matthew was an unintended user from the subjective 

perspective of the manufacturer, because it was not shown that 

the block posed a substantially greater risk to the unintended 

user, the manufacturer's subjective intent would not in justice 

be dispositive. 

 Because we are not convinced that there was sufficient 

indication to a reasonable consumer that Matthew was not an 

intended user, we will vacate and remand the summary judgment 

order as it pertains to the claim of defective design. 

IV. 
15 

 We turn finally to the remaining claims brought in both 

strict liability and negligence on the theory that the defendants 

failed to warn of the hazard potential of their product. The 

district court reasoned that the risk of a small child choking on 

an object such as one of Playskool's smaller blocks is so 

objectively obvious as to preclude the requirement for a 

cautionary warning as a constituent of the product design, or the 

creation of a duty to provide an express warning of that fact. 

See Dauphin, 408 Pa. Super. 256, 596 A.2d 845, 850 (1991) 

(Pennsylvania law imposes no duty to warn of obvious risks); 

Mucowski v. Clark, 404 Pa. Super. 197, 590 A.2d 348 (1991) 

(standard of obviousness of danger for claim in strict liability 

is virtually identical for purposes of claim in negligence under 

Pennsylvania's application of Restatement (Second) Torts § 388). 

We will vacate the district court's ruling and remand on the 

ground that the question of obviousness in this case was not a 

proper subject of summary judgment. 

 We note that although the standard of obviousness is 

the same in strict liability and in negligence, the role of the 

court differs according to the legal theory governing the cause 

of action. In strict liability, an inadequate warning is a 

species of product defect, and hence is properly decided 

initially by the court as a matter of law. Mackowick, 525 Pa. 

52, 575 A.2d 100, 102 (1990) ("The determinations of whether a 

warning is adequate and whether a product is 'defective' due to 

inadequate warnings are questions of law to be answered by the 

trial judge.") For a risk to be deemed obvious for purposes of a 
16 

failure to warn claim, however, there must be general consensus 

within the relevant community. We cannot see how the purple 

Playskool block can be deemed as a matter of law an obvious 

safety hazard in the eyes of the relevant community, when 

Playskool itself believed the block was safe for its intended 

use. Furthermore, Matthew's parents and his aunt, who purchased 

the Playskool blocks for Matthew, testified that they did not 

believe that the product posed an obvious threat of asphyxiation 

to Matthew. A. 200-01, 376, 442. Moreover, the defendant did 

not proffer any evidence tending to show that the danger of 

asphyxiation was obvious. 

 Under a negligence theory, although a failure to warn 

claim may be defeated if the risk was obvious or known, the 

question of obviousness is more properly submitted to a jury than 

disposed on motion for summary judgment. See Laaperi v. Sears, 

Roebuck & Co., 787 F.2d 726, 731 (1st Cir. 1986) (whether danger 

of smoke detector's malfunction was obvious is question for 

jury); Mucowski v. Clark, 590 A.2d 348, 351 (Pa. Super. 1991) 

(whether absence of warning is legal cause of injury is usually 

matter for trier of fact; but court may decide where only 

reasonable conclusion is that plaintiff's foolhardiness, not lack 

of warning, legally caused injury). The court's role in deciding 

a motion for summary judgment is merely to decide whether there 

is a genuine issue of material fact for trial. The district 

court's dismissal of Metzgar's negligent claim on the basis of 

its determination that the danger to Matthew was obvious was 
17 

tantamount to holding that no reasonable jury could conclude 

otherwise. Based on the evidence of record, we cannot agree. 

V. 

 We will vacate and remand that portion of the district 

court's summary judgment order of September 9, 1993 which 

disposes of the plaintiffs' failure to warn claims brought in 

negligence and strict liability. We will also vacate that 

portion of the district court's summary judgment order of 

September 9, 1993 which disposes of the plaintiffs' defective 

design claims brought in negligence and strict liability, and 

remand for trial on the merits of the complaint.