### 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 han d were amputated when he reached into the grass chute of a lawnmower manufacture d by MTD Products, Inc. He and his parents sued MTD under seve ral theories of recovery, alleging that a safety device on the 1 mower was defectively designed and that MTD had failed to warn purchasers of t he design problems. The district court granted summary judgmen t 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 Pr oduct Safety Act (CPSA), 15 U.S.C. § 2051 et seq. We affirm in par t 2 and reverse in part.

I.

On the mo rning of July 29, 1992, seventeen year old Brian Moe wa s mowing a neighbor's lawn using his father's walk-behind, self propelle d mower. Brian was an experienced operator of the mower, having mowed lawns with it for his famil y and neighbors for several years. The mower became clogged with wet grass several times that mornin g, and Brian cleared it by releasing the mower's operator handle, bending o ver, and reaching into the side grass chute to unclog it. He had been able to do this without injury because t he mower was equipped with a safety device, called a blad e brake/clutch system (BBC), that permitted the cu tting blade to rotate only when th e control lever on the operator handle was engaged. The BBC wa s designed to stop the rotation of the cutting bla de within three seconds of the release of the control lever. When Br ian released the control lever the third or fourth time th e 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 hi s rig ht hand into the grass chute, the fingers were severed. After th e accident, his sisters continued the mowing job. At one point, the cutting blade c ompletely stopped rotating, and it was discovered that the BB C control cable had broken. This cable connected the control lever to the blade area. The cable appeared to have frayed and broken, strand b y strand, i n an area where it passed through, and rubbed against, th e throttle control housing,

### 3

which was a black plastic box.

Thomas Moe, Brian's father, had owned the mower for three years a t the time of the accid ent and had repaired several of its parts. In 1991, the mower handle had broken from the base, and Thomas Moe had it reattache d 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 cabl e in an unsafe manner, resulting in fraying. They allege that the control cable frayed because it rubbed against the plast ic 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 th e lengtheni ng of the mower handle, which made the cable more taut an d 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 ha d
a label warning of the danger of injury to the fingers from a rotatin g blade, they believe that an additional label should have been placed on th e
mower han dle warning that the cable might fray. The owner's manua l instructed the owner to inspect the control cable because "[i]f the cable become s frayed, it could cause the blade brake/clutch to operat e improperly." The Moes assert that this manual information was insufficien t 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 t hat all of the Moes' claims were preempted 3 by the CPSA. That statute established the Consumer Protection Safet y Commission (CPSC), 15 U.S.C. § 2053, authorized it to promulgate federal product safety standards for various products, id. §§ 2056, 2058, an d exp ressly preempted any non-identical state standards, id. § 2075. Th e Moes argue that the C PSA preemption clause does not preempt their failure to warn or design defect claims. MTD contends that the failure to war n claim is p reempted by the federal statute, but agrees that the desig n defect claim is not. It argues that summary jud gment was also appropriate
on that claim, however, because of undisputed evidence that the product ha d been substantially altered.

III.

The C PSA expressly states the intent of Congress to preempt stat e safety standards or regulations that are not identical to the federa l standard:

Whenever a consumer prod uct safety standard under this chapter is in effect and applies to a risk of injury associated with a consumer product, no Sta te 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, de sign, finish, construction, packaging, or labeling of suc h product which are designed to deal with the same ri sk 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 stan dards, but also common law t ort actions that would have the effect of creating a state sta ndard. Allowing a jury to assess damages for MTD's failure t o 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 a s 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 C PSC created a federal safety standard for lawnmowers when i t promul gated a Safety Standard for Walk-Behind Power Lawn Mowers (Mowe r Standard), 16 C.F.R. § 1205, as authorized by the CPSA, 15 U.S.C. § 2056. In addition to setting out performanc e requirements for mowers, the Mower 4 Stand ard requires that a warning label be placed on each mower's blad e housing. The label must contain both a written warning against blad e contact injury and a depiction of a blade slicing into a hand. 16 C.F.R. § 1205.6.
The Moes' failure to warn claim sugg ests that MTD should have warned consumers that the BB C 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, i t would create a state standard requiring addition al warnings on lawn mowers
or in o wner manuals related to the same risk of injury addressed by th e federal standard. This claim is thus expressly preempted by the CPSA.

The Moe s argue that the savings clause in the CPSA preserves thei r 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 fro m 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 (19 87). A general remedies savings clause such as this "c annot be allowed to supersede the specific substantive pre-emptio n provision." Morales v. Trans World Airlines, Inc. , 112 S. Ct. 2031 (1992) ; Carstensen , 49 F.3d at 432.

One purpo se 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 mowe r standards that are not identical to a federal st andard addressing the same risk of injury is consistent with this goal. The savings clause should no t be interpreted to subvert the preemption provision and should be read to
save those claims that are not expressly preempted. See Carstensen , 4 9 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 d efective design of an installed BBC would not create a different standard for mower safety or impose additional requirements on the manufacturer. In stead it would create an incentive for manufacturers to install a BBC that works and is properly desi gned, and thus ensure that the federal standard has meaning. The Moes' def ective design claim is not preempted by the CPSA and should not have been dismissed on that ground.

Th e question remains whether summary judgment was properly grante d
on the design defect claims on the alternate theory that the mower had bee n altered. Summary jud gment is appropriate if there are no disputed issues of material fact, and the moving party is entitl ed to judgment as a matter of law. Fed. R. Civ. P. 56(c). All evidence and inferences must be viewe d in the light most fav orable to the non-moving party. Anderson v. Liberty Lobby, Inc
. , 477 U.S. 242, 250 (1986). We review a grant of summar y judgment de novo.

MTD ar gues that it is entitled to summary judgment on the desig n claimbecause the alteration of the mower handle makes it impossible for the Moes to establish causation. Minnesota law requires a plaintif f asserting any theory of products liability to show a causal link between the alleged design defect and the injury. Bilotta v. Kelley Co. , 34 6 N.W.2 d 616, 623 n. 3 (Minn. 1984) (strict liability); Hudson v. Snyde r Body, In c. , 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 assertin g strict l iability must also show that the injury was not caused b y mishandling of the product. Magnuson v. Rupp Mfg. Inc. , 171 N.W.2d 201, 206 (Minn. 1969). 6

The r ecord here shows that issues of material fact exist as t o whether the BBC design caused Brian's injury. T he Moes claim that the BBC control cable frayed because it was routed through the plastic contro l housing that rubbed against the cable and because the cable's path include d signi ficant bends. MTD claims that the cable frayed because the mowe r handle was lengthened , which increased the stress on the cable. Although it is undisputed that the mower handle was lengthened, there is a dispute whet her the increased length affected the BBC cable. The MTD exper t sug gests that the additional length of the mower handle "contributed t o
cause the cable to break or the blade brake clutch mechanism to function improperly." (App. 1 48). 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 wa s inappropriate because of the presence of real issues of material fact.

MTD's rel iance on Rients v. International Harvester Co. , 346 N.W.2d 359, 362 (Minn. Ct. App. 1984), review denied (Minn. Oct. 30, 1984), is no t persuasive. The plaintiff in Rients was involved in a tractor accident an d alleged that the front axle attachment was defectively designed. Id

. Summary judgment in favor of the defendant was affirmed since the plaintif f could not prove a causal link between the design and the accident; there
were many other possible causes. Although one alternate cause was that th e 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 th e acci dent, and there are only two theories about how the cable becam e frayed. B ased on the evidence in the record, it would not be "shee r speculation" for a ju ry 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 th e product reached them "without substantial change in the condition in which it was originally sold by the manufacturer." Rients v. Int'l Harveste r Co. , 346 N.W.2d at 362 ( citing McCormack v. Handscraft Co. , 154 N.W.2d 488 , 499 (M inn. 1967)). It asserts that the Moes cannot meet this burde n 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 hi s strict liability theo ry, 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.

Fo r the reasons stated, we affirm the dismissal of the preempte d claims, but reverse the dismissal of the design defect claim and remand fo r further proceedings consistent with this opinion.

A true copy.

Attest:

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