676 N.W.2d 268 (Minn. 2004)
Lawrence B. Gray worked at Smith Foundry from 1951 until 1998.1 He served in the infantry in Korea for a two-year period. Smith Foundry uses sand to create molds in which metal objects are cast.2 Badger Mining Corp. supplied sand to Smith Foundry prior to 1981 and again beginning in 1992.3 All of the sand was delivered by Badger Mining in bulk by pneumatic trucks.4
Gray brought a products liability action against Badger Mining and other suppliers that manufactured and sold sand to Smith Foundry.5 He alleged that his repeated exposure to silica dust caused silicosis of the lungs.6 Gray's claims were based on negligence and strict liability for failure to warn and on breach of warranties of merchantability and fitness for the intended purpose.7
Gray provided evidence that Badger Mining knew of special hazards involved in using sand for foundry processes.8 During the phase of the process where the sand mold is knocked off of the casting, the sand is pulverized to small sub-micron sized particles of dust.9 Badger Mining's Vice President and a member of its Health and Safety Committee, Timothy Wuest, was familiar with the 1992 recommendation of the National Industrial Sand Association that disposable respirators were not recommended for routine use where exposure to respirable crystalline silica dust may occur.10 Wuest acknowledged that Badger Mining's safety director, Richard Chier, had conducted independent research in the early to mid 1980s and had determined that disposable respirators could not be used for an extended period of time because they did not provide a good seal.11
When Badger Mining renewed its sales to Smith Foundry in 1992, its shipments were accompanied by warnings and safety instructions printed on a Material Safety Data Sheet.12 The sheet was supplied pursuant to federal regulations known as the Hazard Communication Standards.13 The MSDS also instructed that, for protective equipment, purchasers should use NIOSH or MSHA approved dust respirators.14 Gray argues that this warning and the accompanying instructions were inadequate because disposable respirators are among the National Institute for Occupational Health and Safety and Mine Safety and Health Administration approved respirators.15 Gray provided evidence that Badger Mining did not provide warnings or safety instructions with shipments made prior to 1981.16
Gray testified that he believed that he was protected by the disposable respirators provided by Smith Foundry.17 Gray also contends that he personally was unaware of the extent of the danger associated with breathing silica dust.18 Badger Mining argues that Smith Foundry was aware of the dangers of silica through its involvement with the American Foundry Association (AFS) and the occupational health information it received from other industry bodies and from government agencies. Badger Mining argues that Smith Foundry's awareness of the dangers of silica dust is proven by the preventative actions it took, such as installing a dust collection system, monitoring air quality to ensure safe levels, providing respirators to its employees since the 1960s, and requiring yearly chest x-rays since the 1950s.19
Each defendant filed a motion for summary judgment.20 Badger Mining's motion was on the grounds that it owed no duty to warn Gray because it sold raw material to a sophisticated purchaser.21 The district court denied all motions.22 Prior to trial, Gray settled with all defendants except Badger Mining.23 After the district court denied Badger Mining's renewed summary judgment motion, the parties stipulated to the entry of judgment for Gray that would be either $17,500 or $75,000, depending on the outcome of this appeal.24 The court of appeals reversed the district court.25 We granted Gray's petition for review on the duty to warn and Badger Mining's petition for cross-review on the raw material/component part supplier defense.26
Whether Badger Mining breached a duty to warn Gray of the hazards associated with the use of silica in foundry processes?27
A supplier has a duty to warn end users of a dangerous product if it is reasonably foreseeable that an injury could occur in its use.28 The duty to warn includes the duty to give adequate instructions for the safe use of the product.29 To be legally adequate, the warning should attract the attention of those that the product could harm, explain the mechanism and mode of injury, and provide instructions on ways to safely use the product to avoid injury.30 Restatement (Second) of Torts § 388 imposes liability where the supplier knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied, and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and fails to exercise reasonable care to inform them of its dangerous condition or of the facts, which make it likely to be so.31
No. Gray worked at Smith Foundry from 1951 until 1998, with the exception of a 2-year period in which he served in the infantry in Korea.32 Gray alleged that his repeated exposure to silica dust caused silicosis of the lungs. Gray's claims were based on negligence and strict liability for failure to warn and on breach of warranties of merchantability and fitness for the intended purpose. Gray provided evidence that Badger Mining knew of special hazards involved in using sand for foundry processes.
During the phase of the process where the sand mold is knocked off of the casting, the sand is pulverized to small sub-micron sized particles of dust. When Badger Mining renewed its sales to Smith Foundry in 1992, its shipments were accompanied by warnings and safety instructions printed on a Material Safety Data Sheet. The sheet was supplied pursuant to federal regulations known as the Hazard Communication Standards. Gray provided evidence that Badger Mining did not provide warnings or safety instructions with shipments made prior to 1981. These facts create triable questions on whether the duty was breached rather than establishing breach as a matter of law.33
Genuine issues of material fact preclude summary judgment on whether Badger Mining breached its duty to warn.34
Whether genuine issues of material fact exist with respect to the sophistication of Gray and Smith Foundry?35
Under the sophisticated user defense, a supplier has no duty to warn the ultimate user if it has reason to believe the user will realize the dangerous condition.36 Under the sophisticated intermediary defense, a supplier has no duty to warn where the end user's employer already has a full range of knowledge of the dangers equal to that of the supplier or the supplier makes the employer knowledgeable by providing adequate warnings and safety instructions.37 Summary judgment is inappropriate if genuine issues of material fact exist as to any of the legal theories alleged in his complaint.38
Yes. Gray testified that he believed that he was protected by the disposable respirators provided by Smith Foundry. Gray also contends that he personally was unaware of the extent of the danger associated with breathing silica dust. There is no evidence that Gray was familiar with industry or government publications on the dangers of silicosis.39
His general knowledge of the risk was little more than the intuitive sense of danger from experiencing dust in the foundry environment.40 More specifically, there is no evidence that he knew that disposable respirators were ineffective in preventing silicosis in a foundry environment.41 Because there is evidence that Badger Mining had greater general knowledge of the dangers of the use of silica in the foundry process and had specific knowledge of the ineffectiveness of disposable respirators, it cannot be said as a matter of law that Gray's knowledge was sufficient to relieve Badger Mining of its duty to warn.42 These facts create genuine issues of material fact on sophistication.43
Genuine issues of material fact exist with respect to the sophistication of Gray and Smith Foundry that preclude summary judgment.44
Whether genuine issues of material fact exist with respect to the adequacy of the warnings and instructions given by Badger Mining to Smith Foundry?45
The duty to warn includes the duty to give adequate instructions for the safe use of the product. To be legally adequate, the warning should attract the attention of those that the product could harm, explain the mechanism and mode of injury, and provide instructions on ways to safely use the product to avoid injury. The adequacy of a warning is generally a fact question for the jury.46 Federal Hazard Communication Standards require suppliers to provide an MSDS including any generally applicable precautions for safe handling and use which are known to the chemical manufacturer and any generally applicable control measures which are known to the chemical manufacturer, such as appropriate engineering controls, work practices, or personal protective equipment.47
Yes. When Badger Mining renewed its sales to Smith Foundry in 1992, its shipments were accompanied by warnings and safety instructions printed on a Material Safety Data Sheet. The sheet was supplied pursuant to federal regulations known as the Hazard Communication Standards. The MSDS also instructed that, for protective equipment, purchasers should use NIOSH or MSHA approved dust respirators. Gray argues that this warning and the accompanying instructions were inadequate because disposable respirators are among the National Institute for Occupational Health and Safety and Mine Safety and Health Administration approved respirators.
Badger Mining's Vice President and a member of its Health and Safety Committee, Timothy Wuest, was familiar with the 1992 recommendation of the National Industrial Sand Association that disposable respirators were not recommended for routine use where exposure to respirable crystalline silica dust may occur. Gray provided evidence that Badger Mining did not provide warnings or safety instructions with shipments made prior to 1981. Badger Mining did provide Smith Foundry with a general warning of the dangers of silicosis but it did not warn Smith Foundry about the ineffectiveness of disposable respirators or instruct that only high efficiency respirators be used.48 These facts create genuine issues of material fact on adequacy.49
Genuine issues of material fact exist with respect to the adequacy of the warnings and instructions given by Badger Mining to Smith Foundry that preclude summary judgment.50
Whether the sophisticated purchaser defense relieves Badger Mining of any duty to warn?51
Under the sophisticated user defense, a supplier has no duty to warn the ultimate user if it has reason to believe the user will realize the dangerous condition. Under the sophisticated intermediary defense, a supplier has no duty to warn where the end user's employer already has a full range of knowledge of the dangers equal to that of the supplier or the supplier makes the employer knowledgeable by providing adequate warnings and safety instructions. The defense requires consideration of the purpose for which the product is to be used, the magnitude of the risk, the burden of providing direct warnings to end users and the reliability of the intermediary as a conduit.52
No. Gray testified that he believed that he was protected by the disposable respirators provided by Smith Foundry. There is no evidence that Gray was familiar with industry or government publications on the dangers of silicosis. His general knowledge of the risk was little more than the intuitive sense of danger from experiencing dust in the foundry environment. More specifically, there is no evidence that he knew that disposable respirators were ineffective in preventing silicosis in a foundry environment.
Badger Mining also presented evidence of the general knowledge of Smith Foundry and the information that was available to Smith Foundry from government and industry publications, other sand suppliers and the suppliers of respirators.53 But this evidence cannot be said to conclusively establish that Smith Foundry's knowledge was equal to that of Badger Mining.54 And, even if we were to conclude that Smith Foundry should have known as much as Badger Mining about the general risks of silica in foundry operations, there is no evidence that Smith Foundry shared in the special knowledge possessed by Badger Mining that disposable respirators were ineffective.55 These facts prevent the sophisticated purchaser defense from relieving Badger Mining of the duty to warn as a matter of law.56
The sophisticated purchaser defense does not relieve Badger Mining of any duty to warn as a matter of law.57
Whether the bulk supplier defense relieves Badger Mining of any duty to warn?58
The bulk supplier defense, a specialized version of the sophisticated intermediary defense, allows a supplier of material delivered in bulk to discharge its duty to warn the end user by warning the buyer of the dangerous condition because of the difficulty in reaching the end user directly.59 The defense is consistent with the federal regulation of hazardous chemicals, which requires the manufacturer to provide warnings to its purchasers in sales documents and MSDSs.60 The supplier must still provide an adequate warning to the intermediate purchaser.61
No. Because Badger Mining delivers its product by trucks in bulk, requiring Badger Mining to directly warn every employee of the potential risks involved with its product would be exceedingly costly and in some cases impossible.62 Thus, we recognize that Badger Mining likely established the predicate for the application of the bulk supplier defense.63 But the same arguments that applied to the sophisticated intermediary defense can be made as to why the bulk supplier defense raises genuine issues of material fact.64 It would not be reasonable for a bulk supplier to rely on the employer to warn its employees where the bulk supplier has not provided an adequate warning to the employer.65
The existence of fact issues concerning the adequacy of the warning in Badger Mining's MSDS prevents summary judgment on the bulk supplier defense.66
The bulk supplier defense does not relieve Badger Mining of any duty to warn as a matter of law.67
Whether the raw material/component part supplier defense relieves Badger Mining of any duty to warn?68
Under the raw material/component part supplier defense, a supplier of inherently safe raw materials used as a component in a final product is not liable when the component itself is not dangerous and the buyer integrates it into another product, provided the supplier still provides an adequate warning to the intermediate purchaser if it has superior knowledge.69 Although sand is a raw material and is not inherently dangerous, it is nevertheless dangerous when used in a foundry process.70 More importantly, the sand is not used as a component of a finished product, and it is the sand — not the finished product — that is dangerous to foundry workers.71
No. Although sand is a raw material and is not inherently dangerous, it is nevertheless dangerous when used in a foundry process. Badger specifically develops sand for foundry use and has conceded that it understands the manner in which silica is used in the foundry process.72 More importantly, the sand is not used as a component of a finished product, and it is the sand — not the finished product — that is dangerous to foundry workers. Even where this defense is applicable, the supplier must still provide an adequate warning to the intermediate purchaser.
If the manufacturer has superior knowledge, it has a duty to relay that information to the intermediate purchaser.73 In this case, there is evidence that Badger Mining did not adequately relay information on the recommended respirators to Smith Foundry.74 These facts prevent the raw material/component part supplier defense from relieving Badger Mining of the duty to warn as a matter of law.75
The raw material/component part supplier defense does not relieve Badger Mining of any duty to warn as a matter of law.76