Fell v. Kewanee Farm Equipment Co. , 457 N.W.2d 911 ( 1990 )

CARTER, Justice

(dissenting).

I dissent. Thé record clearly demonstrates that this personal injury case has no merit under any of the legal theories which plaintiff urges.

In answer to the claim of error concerning removal of the strict liability claim from the case on a motion for summary judgment, the appellee devotes an entire division of its brief to arguing that this claim has been mooted by the jury’s response to the state-of-the-art interrogatories. The majority does not even speak to this issue. I submit that the appellee is entirely correct. The jury’s acceptance of the state-of-the-art defense would have been a complete defense to the strict liability claim even if it had been submitted.

Plaintiff’s strict liability claim should also be rejected on the merits. Plaintiff established a probability that the wing nut holding the auger shield would ultimately be loosened by vibrations, thereby causing the shield to fall off. The majority determines that this condition made the product “unreasonably dangerous” in the condition in which it left the manufacturer (with the shield attached). I submit that this is a doubtful conclusion. Assuming it is correct, however, a strict liability recovery tied to this defect should be limited to those instances in which there is some temporal proximity between the shield falling off and the injury for which recovery is sought. In the present case, the evidence shows that the owner of the machine had elected to leave the guard off the machine for a period of more than three years prior to plaintiff’s injury. There was, I submit, a clear break in the causal chain which should preclude recovery as a matter of law against the manufacturer based on the loose wing nut.

The majority also finds error in the district court’s refusal to submit a theory of recovery based on the manufacturer’s alleged negligence in failing to warn of dangers discovered after the machine had left the manufacturer’s hands. I agree that the state-of-the-art defense would not preclude recovery for this claim of negligence if plaintiff had made a submissible case under that theory. The plaintiff did not make a submissible case under that theory.

The alleged danger discovered by the manufacturer after the machine had been placed in the chain of commerce was the danger that the shield might fall off due to vibrations. I submit that the manufacturer’s failure to warn of this danger does not provide a basis for recovery by a plaintiff who had actual knowledge that the shield was off when using the machine prior to and at the time of injury. I would affirm the judgment of the district court.

McGIVERIN, C.J., and SCHULTZ and SNELL, JJ., join this dissent.