The Moes pled strict liability, negligence, and breach of 1

the implied warranties of merchantability and fitness.

___________

No. 95-1938

___________

Brian Moe; Thomas Moe; Saundra *

Moe, *

*

Plaintiffs - Appellants, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota

MTD Products, Inc., *

*

Defendant - Appellee. *

__________

Submitted: November 15, 1995

Filed: December 27, 1995

__________

Before HANSEN, LAY, and MURPHY, Circuit Judges.

__________

MURPHY, Circuit Judge.

This case arises from an accident in which the fingers of Brian Moe's

right hand were amputated when he reached into the grass chute of a

lawnmower manufactured by MTD Products, Inc. He and his parents sued MTD

under several theories of recovery, alleging that a safety device on the 1

mower was defectively designed and that MTD had failed to warn purchasers

of the design problems. The district court granted summary judgment

dismissing all of the claims on the basis that they were preempted by the

Consumer
 In ruling from the bench, the court also expressed the view 2

that the design defect claim could not succeed because the

lawnmower had been altered, making proof of proximate causation

impossible. This claim has been described by the Moes as one for

a defectively designed product actually installed, and it asserts

improper design of a safety device.

2

Product Safety Act (CPSA), 15 U.S.C. § 2051 et seq. We affirm in part

2

and reverse in part.

I.

On the morning of July 29, 1992, seventeen year old Brian Moe was

mowing a neighbor's lawn using his father's walk-behind, self propelled

mower. Brian was an experienced operator of the mower, having mowed lawns

with it for his family and neighbors for several years. The mower became

clogged with wet grass several times that morning, and Brian cleared it by

releasing the mower's operator handle, bending over, and reaching into the

side grass chute to unclog it. He had been able to do this without injury

because the mower was equipped with a safety device, called a blade

brake/clutch system (BBC), that permitted the cutting blade to rotate only

when the control lever on the operator handle was engaged. The BBC was

designed to stop the rotation of the cutting blade within three seconds of

the release of the control lever. 

When Brian released the control lever the third or fourth time the

mower became clogged, the cutting blade did not stop rotating. He did not

notice that the blade had continued to rotate, and when he reached his

right hand into the grass chute, the fingers were severed. After the

accident, his sisters continued the mowing job. At one point, the cutting

blade completely stopped rotating, and it was discovered that the BBC

control cable had broken. This cable connected the control lever to the

blade area. The cable appeared to have frayed and broken, strand by

strand, in an area where it passed through, and rubbed against, the

throttle control housing,
3

which was a black plastic box. 

Thomas Moe, Brian's father, had owned the mower for three years at

the time of the accident and had repaired several of its parts. In 1991,

the mower handle had broken from the base, and Thomas Moe had it reattached

by a welder. The repaired handle was 1 3/8" longer than the original.

II.

 

The Moes claim that Brian's accident was caused by the design of the

installed BBC and that it was defective because it routed the control cable

in an unsafe manner, resulting in fraying. They allege that the control

cable frayed because it rubbed against the plastic of the throttle control

housing and because its path included several sharp turns that increased

the pressure on the cable. MTD responds that the fraying was caused by the

lengthening of the mower handle, which made the cable more taut and

increased the stress on it. 

The Moes also claim that MTD failed to warn purchasers that the BBC

design would cause the cable to fray. Although the mower's grass chute had

a label warning of the danger of injury to the fingers from a rotating

blade, they believe that an additional label should have been placed on the

mower handle warning that the cable might fray. The owner's manual

instructed the owner to inspect the control cable because "[i]f the cable

becomes frayed, it could cause the blade brake/clutch to operate

improperly." The Moes assert that this manual information was insufficient

notice of the potential hazard. 

 
 The record indicates that the Moes also raised a claim that 3

MTD should have installed an engine-kill system rather than the

BBC. The Moes made clear at oral argument, however, that they

are presently not pursuing such a claim. Since the CPSA has

authorized installation of either an engine-kill system or a BBC,

that claim would be preempted in any event. See footnote 4,

infra.

4

The district court held that all of the Moes' claims were preempted 3

by the CPSA. That statute established the Consumer Protection Safety

Commission (CPSC), 15 U.S.C. § 2053, authorized it to promulgate federal

product safety standards for various products, id. §§ 2056, 2058, and

expressly preempted any non-identical state standards, id. § 2075. The

Moes argue that the CPSA preemption clause does not preempt their failure

to warn or design defect claims. MTD contends that the failure to warn

claim is preempted by the federal statute, but agrees that the design

defect claim is not. It argues that summary judgment was also appropriate

on that claim, however, because of undisputed evidence that the product had

been substantially altered.

III.

The CPSA expressly states the intent of Congress to preempt state

safety standards or regulations that are not identical to the federal

standard:

Whenever a consumer product safety standard under this chapter

is in effect and applies to a risk of injury associated with a

consumer product, no State or political subdivision of a State

shall have any authority either to establish or to continue in

effect any provision of a safety standard or regulation which

prescribes any requirements as to the performance, composition,

design, finish, construction, packaging, or labeling of such

product which are designed to deal with the same risk of injury

associated with such consumer product, unless such requirements

are identical to the requirements of the Federal standard.

15 U.S.C. § 2075(1). If a federal standard establishes a labelling
 The Mower Standard requires that each mower pass a "foot 4

probe" test, which in effect requires a protective shield

extending from the blade housing. Each mower must also have a

blade control system that permits the blade to rotate only if the

operator presses on a special control on the mower handle. 16

C.F.R. § 1205.5(a). The manufacturer has an option of choosing

between a BBC, similar to that in this case, or an engine-kill

system, which stops the engine when a control lever is released.

5

requirement warning of injuries to the fingers from the mower blade, any

state standard requiring different or additional warnings about the same

risk of injury would thus be expressly preempted. 

The statute preempts not only positive enactments of state standards,

but also common law tort actions that would have the effect of creating a

state standard. Allowing a jury to assess damages for MTD's failure to

place a warning label on the mower handle would create a state standard or

regulation requiring such a warning. It is well established that "[state]

regulation can be as effectively exerted through an award of damages as

through some form of preventive relief." Cipollone v. Liggett Group, Inc.,

112 S. Ct. 2608, 2620 (1992); Carstensen v. Brunswick Corp., 49 F.3d 430,

432 (8th Cir. 1995), cert. denied, 116 S. Ct. 182 (1995).

The CPSC created a federal safety standard for lawnmowers when it

promulgated a Safety Standard for Walk-Behind Power Lawn Mowers (Mower

Standard), 16 C.F.R. § 1205, as authorized by the CPSA, 15 U.S.C. § 2056.

In addition to setting out performance requirements for mowers, the Mower 4

Standard requires that a warning label be placed on each mower's blade

housing. The label must contain both a written warning against blade

contact injury and a depiction of a blade slicing into a hand. 16 C.F.R.

§ 1205.6. 

The Moes' failure to warn claim suggests that MTD should have warned

consumers that the BBC cable might fray. The risk of injury contemplated

by such a warning is the same as that addressed by the
6

labelling requirements in the Mower Standard -- injury to the hands by the

cutting blade. If the Moes' failure to warn claim were successful, it

would create a state standard requiring additional warnings on lawn mowers

or in owner manuals related to the same risk of injury addressed by the

federal standard. This claim is thus expressly preempted by the CPSA.

The Moes argue that the savings clause in the CPSA preserves their

failure to warn claim, but they read the clause too broadly. The savings

clause provides that "[c]ompliance with consumer product safety rules or

other rules or orders under this Act shall not relieve any person from

liability at common law or under State statutory law to any other person."

15 U.S.C. § 2074(a). The goals and policies of a statute must guide the

interpretation of its savings clause. International Paper v. Ouellette,

479 U.S. 481, 493 (1987). A general remedies savings clause such as this

"cannot be allowed to supersede the specific substantive pre-emption

provision." Morales v. Trans World Airlines, Inc., 112 S. Ct. 2031 (1992);

Carstensen, 49 F.3d at 432. 

One purpose of the CPSA is to "develop uniform safety standards for

consumer products and to minimize conflicting State and local regulations."

15 U.S.C. § 2051(b)(3). The statute's express preemption of mower

standards that are not identical to a federal standard addressing the same

risk of injury is consistent with this goal. The savings clause should not

be interpreted to subvert the preemption provision and should be read to

save those claims that are not expressly preempted. See Carstensen, 49

F.3d at 432. The failure to warn claim is not preserved.

The Moes' defective design claim is an example of the type of
 The Moes attempt to save their failure to warn claim by 5

framing it in terms of their design defect claim. They argue

that MTD had a duty to warn consumers that the product was

designed in a manner that would cause the cable to fray. This

does not change the analysis, however, because the warnings they

seek would be designed to prevent the same risk of injury as

those in the federal standard. The Moes do not suggest that the

design defect creates any risk of injuries other than those from

the cutting blade. 

7

claim the savings clause preserves, however. See id. A successful tort 5

action based on the defective design of an installed BBC would not create

a different standard for mower safety or impose additional requirements on

the manufacturer. Instead it would create an incentive for manufacturers

to install a BBC that works and is properly designed, and thus ensure that

the federal standard has meaning. The Moes' defective design claim is not

preempted by the CPSA and should not have been dismissed on that ground.

The question remains whether summary judgment was properly granted

on the design defect claims on the alternate theory that the mower had been

altered. Summary judgment is appropriate if there are no disputed issues

of material fact, and the moving party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(c). All evidence and inferences must be viewed

in the light most favorable to the non-moving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986). We review a grant of summary

judgment de novo.

MTD argues that it is entitled to summary judgment on the design

claim because the alteration of the mower handle makes it impossible for

the Moes to establish causation. Minnesota law requires a plaintiff

asserting any theory of products liability to show a causal link between

the alleged design defect and the injury. Bilotta v. Kelley Co., 346

N.W.2d 616, 623 n. 3 (Minn. 1984) (strict liability); Hudson v. Snyder

Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982) (negligence); Farr v.

Armstrong Rubber Co.,
 MTD also asserted misuse and alteration of the product as 6

an affirmative defense.

8

179 N.W.2d 64, 69 (Minn. 1970) (breach of warranty). A plaintiff asserting

strict liability must also show that the injury was not caused by

mishandling of the product. Magnuson v. Rupp Mfg. Inc., 171 N.W.2d 201,

206 (Minn. 1969). 

6

The record here shows that issues of material fact exist as to

whether the BBC design caused Brian's injury. The Moes claim that the BBC

control cable frayed because it was routed through the plastic control

housing that rubbed against the cable and because the cable's path included

significant bends. MTD claims that the cable frayed because the mower

handle was lengthened, which increased the stress on the cable. Although

it is undisputed that the mower handle was lengthened, there is a dispute

whether the increased length affected the BBC cable. The MTD expert

suggests that the additional length of the mower handle "contributed to

cause the cable to break or the blade brake clutch mechanism to function

improperly." (App. 148). The Moes' expert concludes that the increased

length of the mower handle did not affect the cable stress because there

was still "play" in the cable. (App. 98-99). Summary judgment was

inappropriate because of the presence of real issues of material fact.

MTD's reliance on Rients v. International Harvester Co., 346 N.W.2d

359, 362 (Minn. Ct. App. 1984), review denied (Minn. Oct. 30, 1984), is not

persuasive. The plaintiff in Rients was involved in a tractor accident and

alleged that the front axle attachment was defectively designed. Id.

Summary judgment in favor of the defendant was affirmed since the plaintiff

could not prove a causal link between the design and the accident; there

were many other possible causes. Although one alternate cause was that the

attachment had been significantly altered by the plaintiff, it was not the

only possibility. The tractor's brakes were worn, the
9

steering gear was broken, and other parts were not functional or were bent.

Id. In contrast, there is no dispute here that the frayed cable caused the

accident, and there are only two theories about how the cable became

frayed. Based on the evidence in the record, it would not be "sheer

speculation" for a jury in this case to find that the design, rather than

the alteration, caused the fraying and the accident. See id.

MTD also argues that the design defect claim cannot proceed under a

strict liability theory because the plaintiffs cannot prove that the

product reached them "without substantial change in the condition in which

it was originally sold by the manufacturer." Rients v. Int'l Harvester

Co., 346 N.W.2d at 362 (citing McCormack v. Handscraft Co., 154 N.W.2d 488,

499 (Minn. 1967)). It asserts that the Moes cannot meet this burden

because the mower was substantially altered when the handle was lengthened,

but that repair took place after the product reached the Moes. MTD does

not suggest that the mower was altered in any way before it reached them,

but cites Rients in support. The plaintiff there failed to prove his

strict liability theory, but he had bought the front axle attachment as a

used part at least twenty years after it was manufactured. Here, Thomas

Moe purchased the mower new. 

For the reasons stated, we affirm the dismissal of the preempted

claims, but reverse the dismissal of the design defect claim and remand for

further proceedings consistent with this opinion.

A true copy.

Attest:

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