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Reiss v. Komatsu America Corp.

August 17, 2010

PEARL REISS, INDIVIDUALLY, AND AS SURVIVING SPOUSE OF HENRY REISS, DECEASED, PLAINTIFF,
v.
KOMATSU AMERICA CORP. AND DIESEL MACHINERY, INC., DEFENDANTS.



The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court

ORDER

Before the Court are the Defendants' motions for summary judgment filed on December 22, 2009 and December 29, 2009. See Docket Nos. 20 and 22. The Plaintiff filed responses in opposition to the motions on January 28, 2010. See Docket Nos. 25 and 26. Defendant Komatsu America Corp. filed a reply brief on February 4, 2010. See Docket No. 28. For the reasons set forth below, the motions are granted in part and denied in part.

I. BACKGROUND

The plaintiff, Pearl Reiss, is a resident of North Dakota. The Plaintiff's decedent, Henry Reiss, was employed by Mariner Construction*fn1 to operate heavy construction equipment on jobsites. On September 26, 2006, Henry Reiss used a nine-wheel pneumatic rubber tire roller compactor known as the Galion P-3000 (P-3000) in the performance of his duties. The P-3000 is used by contractors to compact asphalt pavement. The P-3000 was manufactured by Tema Terra Maquinaria Ltda., a Brazilian company. See Docket No. 6. The compactor was imported by Dresser Industries, Inc. and sold by the Galion division of Dresser Industries (Dresser/Galion). Defendant Komatsu America Corp. (Komatsu) is a successor company to Dresser Industries. Komatsu is a Georgia corporation with its principal place of business in Rolling Meadows, Illinois.

Defendant Diesel Machinery, Inc. (Diesel Machinery) is a South Dakota corporation with its principal place of business in Sioux Falls, South Dakota. Diesel Machinery is in the retail business of selling, renting, and servicing construction equipment, including the P-3000. In September 1989, Diesel Machinery purchased a P-3000 from Dresser/Galion. Dresser/Galion provided "pricing sheets" to its dealers to show the available options on the compactor. Dresser/Galion provided Diesel Machinery a pricing sheet for the P-3000. See Docket No. 23-4. The pricing sheet indicates in bold print that a rollover protective structure (ROPS) was available for the compactor and could be ordered separately through Saf-T-Cab:*fn2

NOTE: Canopy, ROPS, Open w/Seat Belt is available from Safe-T-Cab 1-800-344-7491.

See Docket No. 23-4. Dresser/Galion also provided Diesel Machinery brochures of the P-3000. It was standard practice for Diesel Machinery to stamp its address and telephone number on the brochure and provide the brochure to interested customers. See Docket No. 21-12, pp. 43-44. The brochure provided the general specifications of the P-3000, a description of the standard equipment, and a description of the factory-installed optional equipment and attachments. See Docket No. 21-5. Included in the optional equipment and attachments was the "ROPS structure" which was available from Saf-T-Cab. See Docket No. 21-5.

Diesel Machinery did not order a ROPS for the P-3000. In July 1990, Mariner Construction leased the P-3000 from Diesel Machinery. See Docket No. 21-3. On the day the P-3000 was delivered to Mariner Construction, Francis Schumacher, the shop foreman at Mariner Construction, rolled it as he was taking the machine to a jobsite, jumped free of the machine, and was not injured. See Docket No. 23-6, p. 5. Francis Schumacher testified that he looked in the operation and maintenance manual to determine if a ROPS could be purchased for the machine, but made no further inquiries. See Docket No. 23-6, p. 11. Mariner Construction subsequently purchased the P-3000 on December 31, 1990. See Docket No. 21-4.

Henry Reiss was an experienced heavy equipment operator who also had prior experience using compactors. See Docket Nos. 21-10, p. 39 and 23-8, p. 16. On September 26, 2006, Henry Reiss used the P-3000 to compact a gravel road leading to the ethanol plant near Richardton, North Dakota. The edge of the road was marked by stakes with pink markers on top. See Docket Nos. 23-7, p. 15 and 23-8, p. 15. It is undisputed that Henry Reiss was operating the P-3000 beyond the stakes. The compactor rolled into the ditch and Henry Reiss died as a direct result of the injuries sustained from the rollover. James Schable, a truck driver who had passed Reiss just minutes before the compactor rolled, agreed that he was concerned about where the compactor was being operated in relation to the edge of the road and testified that he thought it was "scary, maybe, as far as for tipping over or whatever." See Docket No. 23-9, p. 4.

On August 28, 2008, the Plaintiff filed an action in Stark County District Court against Komatsu and Diesel Machinery, alleging claims of (1) strict products liability, (2) failure to warn at the time of manufacture, (3) failure to warn at the time of the discovery of the danger, (4) negligence, (5) breach of warranty of merchantability, and (6) breach of warranty of fitness for a particular purpose. See Docket No. 1-1. On September 24, 2008, Komatsu removed the action to federal district court. See Docket No. 1. The Defendants now move for summary judgment on all of the Plaintiff's claims.

II. STANDARD OF REVIEW

Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, indicates no genuine issues of material fact exist and, therefore, the moving party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir. 2007); see Fed. R. Civ. P. 56(c). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine if the evidence would allow a reasonable jury to return a verdict for the non-moving party. Id.

The Court must inquire whether the evidence presents sufficient disagreement to require the submission of the case to a jury or if it is so one-sided that one party must prevail as a matter of law. Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). The moving party first has the burden of demonstrating an absence of genuine issue of material fact. Simpson v. Des Moines Water Works, 425 F.3d 538, 541 (8th Cir. 2005). The non-moving party "may not rely merely on allegations or denials in its own pleading; rather, its response must... set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).

This action is based on diversity jurisdiction. Therefore, the Court will apply the substantive law of North Dakota. See Paracelsus Healthcare Corp. v. Philips Med. Sys., Nederland, B.V., 384 F.3d 492, 495 (8th Cir. 2004).

III. LEGAL DISCUSSION

A. DIESEL MACHINERY

Diesel Machinery moves for summary judgment on all of the Plaintiff's claims, arguing that it is a non-manufacturing seller of the P-3000 and, therefore, is entitled to dismissal under N.D.C.C. § 28-01.3-04*fn3 without further review. In the alternative, Diesel Machinery seeks summary judgment on counts II and III (failure to warn claims) and counts V and VI (breach of warranty claims).

Section 28-01.3-04 of the North Dakota Century Code governs the liability of non-manufacturing sellers. Section 28-01.3-04 provides:

1. In any products liability action maintained against a seller of a product who did not manufacture the product, the seller shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing the personal injury, death, or damage to property.

2. After the plaintiff has filed a complaint against the manufacturer and the manufacturer has or is required to have answered or otherwise pleaded, the court shall order the dismissal of the claim against the certifying seller, unless the plaintiff can show any of the following:

a. That the certifying seller exercised some significant control over the design or manufacture of the product, or provided instructions or warnings to the manufacturer relative to the alleged defect in the product which caused the personal injury, death, or damage to property.

b. That the certifying seller had actual knowledge of the defect in the product which caused personal injury, death, or damage to property.

c. That the certifying seller created the defect in the product which caused the personal injury, death, or damage to property.

3. The plaintiff may at any time prior to the beginning of the trial move to vacate the order of dismissal and reinstate the certifying seller if the plaintiff can show any of the following:

a. That the applicable statute of limitation bars a product liability action against the manufacturer of the product allegedly causing the injury, death, or damage.

b. That the identity of the manufacturer given to the plaintiff by the certifying defendant was incorrect.

A "manufacturer" means "a person or entity who designs, assembles, fabricates, produces, constructs, or otherwise prepares a product or a component part of a product prior to the sale of the product to a user or consumer. The term includes any seller of a product who is owned in whole or significant part by the manufacturer or who owns, in whole or significant part, the manufacturer." N.D.C.C. § 28-01.3-01(1).

In an attempt to comply with N.D.C.C. § 28-01.3-04(1), Diesel Machinery submitted an affidavit on behalf of its president, Dan Healy, which states that the manufacturer of the P-3000 at issue in this case is Galion Manufacturing Division, Dresser Industries, P.O. Box 67, Galion, Ohio 44833. See Docket No. 9. David D. Nardo, general counsel for Komatsu, submitted an opposing affidavit which states that the manufacturer of the P-3000 is Tema Terra Maquinaria Ltda., a Brazilian company. See Docket No. 6. David Nardo further states in his affidavit,

Komatsu America Corp. was not the manufacturer or seller of the machine involved in the accident. The machine was purchased by Dresser Industries, Inc. ("DI") or Komatsu America International Company (formerly Komatsu Dresser Company) ("KAIC") from Tema Terra Maquinaria Ltda., and DI or KAIC would have been the seller of the machine in the United States. Komatsu America Corp. is the successor in interest to KAIC for machines sold after September 1, 1988, by KAIC.

See Docket No. 6. In a supplemental affidavit, Dan Healy states he does not have the requisite knowledge to either agree or disagree with the information contained in David Nardo's affidavit. See Docket No. 10.

Nonetheless, Diesel Machinery argues that Komatsu is properly considered a "manufacturer" under N.D.C.C. § 28-01.3-01(1) as the apparent manufacturer of the P-3000. Diesel Machinery states,

[Komatsu], under its name at the time, Komatsu Dresser, held itself out as the manufacture[r] of the P-3000 by its labels on the machine, in its product literature, in its correspondence to [Diesel Machinery], and in its warranty to Mariner Construction. The actual P-3000 displays two plaques labeling the P-3000 with the Dresser name, and its trade name, Galion. Nothing on the machine indicates that it was manufacture[d] by Tema Terra. Further, the operator's manual, [identified] the P-3000 as being a Galion Dresser machine without any indication that it was not actually manufactured by Komatsu Dresser or by Galion.

See Docket No. 21 (internal citations omitted). Diesel Machinery's argument is premised on the principles set forth in the Restatement (Second) of Torts § 400 (1965) and Restatement (Third) of Torts: Products Liability § 14 (1998).*fn4 The Restatement (Second) of Torts § 400 provides: "One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer." North Dakota courts have not had an opportunity to consider whether the North Dakota Supreme Court would adopt the apparent manufacturer doctrine as set forth in the Restatement (Second) of Torts § 400 or the Restatement (Third) of Torts: Products Liability § 14.

A majority of the jurisdictions that have considered the issue have adopted the apparent manufacturer doctrine. These include Alabama, Sears, Roebuck & Co. v. Morris, 136 So. 2d 883, 885 (Ala. 1961); Arkansas, Chapman Chem. Co. v. Taylor, 222 S.W.2d 820 (Ark. 1949); California, Cravens, Dargan & Co. v. Pac. Indem. Co., 105 Cal. Rptr. 607, 611 (Cal. Ct. App. 1972); Indiana, Dudley Sports Co. v. Schmitt, 279 N.E.2d 266, 273, 274 (Ind. Ct. App. 1972); Iowa, Tice v. Wilmington Chem. Corp., 141 N.W.2d 616, 628 (Iowa 1966); Kansas, Davis v. U.S. Gauge, 844 F. Supp. 1443, 1446-49 (D. Kan. 1994); Louisiana, Chevron USA v. Aker Maritime, Inc., 604 F.3d 888, 894-99 (5th Cir. 2010) (applying Louisiana law); Penn v. Inferno Mfg. Corp., 199 So. 2d 210, 215 (La. Ct. App. 1967); New Jersey, Slavin v. Francis H. Leggett & Co., 177 A. 120, 121 (N.J. Super. Ct. App. Div. 1935); New York, Andujar v. Sears Roebuck & Co., 597 N.Y.S.2d 78 (N.Y. App. Div. 1993); North Carolina, Warzynski v. Empire Comfort Sys., Inc., 401 S.E.2d 801 (N.C. Ct. App. 1991); Pennsylvania, Forry v. Gulf Oil Corp., 237 A.2d 593, 599 (Pa. 1968); Texas, Sears, Roebuck & Co. v. Black, 708 S.W.2d 925, 928 (Tex. App. 1986); Tennessee, Travelers Indem. Co. v. Indus. Paper & Packaging Corp., No. 3:02-cv-491, 2006 WL 2050686, at *4 (E.D. Tenn. July 19, 2006); Virginia, Carney v. Sears, Roebuck & Co., 309 F.2d 300, 304 (4th Cir. 1962) (applying Virginia law); and Wisconsin, Wojciuk v. U.S. Rubber Co., 108 N.W.2d 149, 152-53 (Wis. 1961).

The Court is persuaded that the North Dakota Supreme Court would likewise adopt the Restatement (Second) of Torts § 400. The North Dakota Supreme Court has previously adopted the provisions of the Restatement concerning strict liability in products liability actions and negligent failure to warn. See Johnson v. Am. Motors Corp., 225 N.W.2d 57 (N.D. 1974); Collette v. Clausen, 667 N.W.2d 617 (N.D. 2003).

Courts are mixed as to whether the apparent manufacturer doctrine should be extended to a company that is neither the seller nor distributor of the product. See Yoder v. Honeywell Inc., 104 F.3d 1215 (10th Cir. 1997) (assuming that Colorado has adopted the Restatement (Second) of Torts § 400 and finding that the Colorado Supreme Court would likely not impose liability on a trademark owner) (applying Colorado law); Fletcher v. Atex, Inc., 68 F.3d 1451, 1462-64 (2d Cir. 1995) (finding that no New York court has ever found a company liable under the apparent manufacturer doctrine that neither sold nor distributed the product, and even if the apparent manufacturer could extend to such a company, the apparent manufacturer doctrine did not apply because the company's logo was not affixed to the product or its packaging (it was affixed only to promotional and advertising materials), the materials did not suggest that the company was the manufacturer of the product, and the product displayed the name of the actual manufacturer) (applying New York law); Travelers Indem. Co., 2006 WL 2050686, at *4 ("The apparent manufacturer doctrine states that one who puts out as his own product a chattel by another is subject to the same liability as though he were the manufacturer. 'Hold out' (or 'puts out') usually involves either a defendant's labeling or affixing to the product its own name or putting forth advertising identifying the defendant as the maker of the product.") (internal citation omitted); Torres v. Goodyear Tire & Rubber Co., 867 F.2d 1234, 1236 (9th Cir. 1989) (finding that Arizona has not adopted the apparent manufacturer doctrine, but even if it did the doctrine would not apply because Goodyear was not the seller of the tire) (applying Arizona law); Sherman v. Sunsong Am., Inc., 485 F. Supp. 2d 1070, 1080 (D. Neb. 2007) (finding the apparent manufacturer doctrine inapplicable where the name of the company did not appear on the product and there is no evidence that the plaintiffs relied on the brand name in choosing the product); Long v. U.S. Brass Corp., 333 F. Supp. 2d 999 (D. Colo. 2004) (finding the apparent manufacturer doctrine applicable where a company packaged and sold the product as its own, and the plaintiff could not have gleaned the actual manufacturer from looking at the product).

In this case, Diesel Machinery purchased the P-3000 from Dresser/Galion. The affidavit of David D. Nardo states that Tema Terra Maquinaria Ltda. is the actual manufacturer of the P-3000 at issue in this action. See Docket No. 6. However, neither the decals on the P-3000, the operator's manual, warranty materials, nor the sales brochure indicate that the compactor is manufactured by Tema Terra Maquinaria Ltda. Two decals are found on the compactor. The first decal indicates that the compactor was made in Brazil, but identifies it as a Galion product and provides the following address: Dresser Industries, Inc., Construction Equipment Division, Libertyville, IL. See Docket No. 21-6. The second decal also indicates that the compactor was made in Brazil, but identifies it as a Galion product and provides the following address: Galion Manufacturing Division, Dresser Industries, Inc., Galion, Ohio 44833.*fn5 See Docket No. 21-6. The operator's manual identifies the P-3000 as being a Dresser/Galion compactor without any indication that it was manufactured by Tema Terra Maquinaria Ltda. See Docket Nos. 21-7 and 21-8. The warranty materials for the P-3000 are for a Dresser product. See Docket No. 21-9. The P-3000 sales brochure displays the Dresser brand, and does not mention that the compactor was manufactured by Tema Terra Maquinaria Ltda. See Docket No. 21-5. Even Chris Case, the manager of Komatsu's engineering department, agreed that a person looking at the compactor and the owner's manual would get the impression that Dresser/Galion is the manufacturer of the P-3000. See Docket No. 21-11, p. 13. The Plaintiff could not have gleaned from looking at the compactor, promotional and warranty materials, and the operator's manual that Tema Terra Maquinaria Ltda. was the manufacturer.

The Court finds that Komatsu, under its name at the time Komatsu Dresser, held itself as the manufacturer of the P-3000. This is not merely a case where Komatsu is being held liable for trademarking its name on the compactor. The P-3000's decals, brochure, operator's manual, and warranty information all support a finding that Komatsu represented to the public and others that it, and not Tema Terra Maquinaria Ltda., was the manufacturer of the P-3000 at issue in this case. Thus, the facts of this case warrant application of the apparent manufacturer doctrine. Accordingly, the Court finds that Komatsu, as the apparent manufacturer of the P-3000, is a "manufacturer" under N.D.C.C. § 28-01.3-01(1).

With the manufacturer identified as Komatsu, Diesel Machinery argues that it is entitled to dismissal under N.D.C.C. § 28-01.3-04 as the non-manufacturing seller of the P-3000. Section 28-01.3-04(1) provides: "In any products liability action maintained against a seller of a product who did not manufacture the product, the seller shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing the personal injury, death, or damage to property." Diesel Machinery is a "seller"*fn6 and Komatsu is a "manufacturer" under N.D.C.C. § 28-01.3-01. Pursuant to N.D.C.C. § 28-01.3-04(2), after the plaintiff files a complaint against the manufacturer and the manufacturer answers, the court shall dismiss the claims against the seller unless the plaintiff can show any of the following:

a. That the certifying seller exercised some significant control over the design or manufacture of the product, or provided instructions or warnings to the manufacturer relative to the alleged defect in the product which caused the personal injury, death, or damage to property.

b. That the certifying seller had actual knowledge of the defect in the product which caused the personal injury, death, or damage to property.

c. That the certifying seller created the defect in the product which caused the personal injury, death, or damage to property.

The Plaintiff argues that she can establish (a), (b), and (c).

The Plaintiff first argues that Diesel Machinery exercised significant control over the design and manufacture of the P-3000. The Plaintiff states,

While [Diesel Machinery] was not responsible for the bulk of the design or manufacture of the P-3000, it nevertheless participated in both processes. Once [Diesel Machinery] received a P-3000 from Komatsu, and before [Diesel Machinery] could place the product on its sales lot, it had to perform several preparatory steps. First, a [Diesel Machinery] shop manager would check fluid levels, inspect the unit for damage, and possibly operate it around [Diesel Machinery's] yard to ensure that it was ready for use. (Don Mosey Dep. at 12:6-20.) Second, and critical to the point here, [Diesel Machinery] was the party responsible for ordering and installing ROPS for the P-3000, had it wanted to stock a P-3000 with ROPS or had a customer ordered one. (Brian Peranick Dep. at 17:24-19:7.) This process involves [Diesel Machinery's] shop employees welding parts of the ROPS structure directly to the P-3000, as it lacks appropriate mounting points when [Diesel Machinery] receives it from the factory. Id. at 25:24-26:19.

See Docket No. 26.

At the heart of the case is the fact that the P-3000 was manufactured and sold without a ROPS. It is undisputed that the P-3000 was delivered to Diesel Machinery without a ROPS, and that if Diesel Machinery or a customer had wanted a ROPS for the P-3000, Diesel Machinery was the party responsible for ordering and installing it. See Docket No. 23-2, p. 6. Accordingly, the Court finds that there are genuine issues of material fact as to whether Diesel Machinery's decision to stock the P-3000 without a ROPS is an element of its design; whether Diesel Machinery had actual knowledge of the product defect; and whether it created the defect which caused the death. Diesel Machinery is not entitled to dismissal under N.D.C.C. § 28-01.3-04. Thus, the Court will consider the Plaintiff's claims in light of both Defendants.

B. STRICT PRODUCTS LIABILITY

The Plaintiff alleges that "[r]ubber-tired roller compactors such as the P-3000 without a roll bar, roll cage, or other roll-over protection system are unreasonably dangerous to the user," and that manufacturing and/or selling the P-3000 without a ROPS was a proximate cause of Henry Reiss's fatal injuries. See Docket No. 1-1. "The doctrine of strict liability in tort imposes liability on the manufacturer or seller, or both, for injuries sustained as a result of a defective condition, unreasonably dangerous to a consumer or his property, or for failure to give adequate and proper warning." Kaufman v. Meditec, Inc., 353 N.W.2d 297, 300 (N.D. 1984). In order to recover under a strict products liability theory, (1) "the plaintiff must show by a preponderance of the evidence the product was defective in design or manufacture"; (2) "the defect rendered the product unreasonably dangerous to the consumer"; (3) "the defect existed when the product left the manufacturer"; and (4) "the defect was a proximate cause of the plaintiff's injuries." Endresen v. Scheels Hardware & Sports Shop, Inc., 560 N.W.2d 225, 229 (N.D. 1997).

The North Dakota Century Code defines a "defective product" as follows: No product may be considered to have a defect or to be in a defective condition, unless at the time the product was sold by the manufacturer or other initial seller, there was a defect or defective condition in the product which made the product unreasonably dangerous to the user or consumer.

N.D.C.C. § 28-01.3-06.

Of particular importance in North Dakota is the requirement that the defect render the product "unreasonably dangerous." Kaufman, 353 N.W.2d at 300. "Unreasonably dangerous" under North Dakota law means: the product is dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer, consumer, or user of that product in that community considering the product's characteristics, propensities, risks, dangers, and uses, together with any actual knowledge, training, or experience possessed by that particular buyer, user, or consumer.

N.D.C.C. § 28-01.3-01(4). Therefore, the Plaintiff is required to establish not only that the P-3000 had a defect that caused Henry Reiss's injuries but also that the defect rendered the P-3000 unreasonably dangerous at the time it left the manufacturer or seller. See Krosch v. JLG Indus., Inc., 590 F. Supp. 2d 1169, 1174 (D.N.D. 2008). "The mere fact that an accident or incident occurred, standing alone, does not support a claim that a product was defective." Burgad v. Jack L. Marcus, Inc., 345 F. Supp. 2d 1036, 1041 (D.N.D. 2004).

Under North Dakota law, there is a rebuttable presumption that a product is free from any defect or defective condition if the plans, designs, warnings, or instructions for the product or the methods and techniques of manufacturing, inspecting, and testing the product were in conformity with government standards established for that industry or if no government standards exist then with applicable industry standards, which were in existence at the time the plans, designs, warnings, or instructions for the product or the methods and techniques of manufacturing, inspecting, and testing the product were adopted.

N.D.C.C. § 28-01.3-09 (emphasis added).

A rebuttable presumption exists if the P-3000 was manufactured in conformance with government standards. The relevant standard in this case is 29 C.F.R. § 1926.1000 which governs ROPSs for compactors. The version of 29 C.F.R. § 1926.1000 in effect at the time the P-3000 was manufactured required some machinery to have a ROPS, but reserved ruling on the issue concerning compactors:

Rollover protective structures (ROPS) for material handling equipment

(a) Coverage.

(a)(1) This section applies to the following types of material handling equipment: To all rubber-tired, self-propelled scrapers, rubber-tired front-end loaders, rubber-tired dozers, wheel-type agricultural and industrial tractors, crawler tractors, crawler-type loaders, and motor graders, with or without attachments, that are used in construction work. This requirement does not apply to sideboom pipelaying tractors.

(a)(2) The promulgation of specific standards for rollover protective structures for compactors and rubber-tired skid-steer equipment is reserved pending consideration of standards currently being developed.

29 C.F.R. § 1926.1000(a)(1)-(2) (1989)*fn7 (emphasis added). The language of 29 C.F.R. § 1926.1000(a)(1)-(2) makes clear that no government standards existed concerning ROPSs for rubber tire roller compactors such as the P-3000. When no government standards exist, there is a rebuttable presumption against defects if the product is designed or manufactured in accordance with industry standards. N.D.C.C. § 28-01.3-09.

The Plaintiff alleges that the P-3000 was defective and unreasonably dangerous because it was designed, manufactured, and sold without a ROPS. In 1967, the United States Army Corps of Engineers issued Safety-General Requirements which required steel canopies and seat belts on compactors. Melvin L. Myers, Compactor Overturns and Rollover Protective Structures, CPWR -- Center for Construction Research and Training (2004), available at http://www.elcosh.org/en/document/695/d000656/compactor-overturns-and-rollover-protective-s tructures.html. In 1975, the Society of Automotive Engineers (SAE) recommended ROPSs on compactors. Id. In 1976, California issued safety regulations requiring ROPSs and seat belts on rollers and compactors. Id. In the 1980s, the United States Occupational Safety and Health Administration (OSHA) established a task force to develop ROPS requirements for compactors. Id. The OSHA task force "recommended that compactors be equipped with ROPSs, as specified in SAE Recommended Practice J1040 (1986); that ROPS be designed to support at least two times the weight applied at the point of impact; and seat belts meet SAE J386." Id. OSHA never promulgated the task force's recommendations into a rule. Id. In 1998, OSHA issued a guideline which recognized heavy equipment rollovers as a hazard and recognized that ROPSs and seat belts reduced this hazard. Id.

Paul Stephens, a forensic engineer and the Plaintiff's expert witness, described the history of ROPS use by compactor manufacturers:

In spite of compactor manufacturer awareness of the hazard in 1990 and prior years, most pneumatic compactor manufacturers only incorporated ROPS as standard equipment in the mid 1990's based on the writer's research to date. For example, ROPS only was offered as optional equipment on Caterpillar's 1987 era model PS-100, 130 & 180 pneumatic compactors. However, a successor model, the 150B pneumatic compactor that was sold from 1996 through at least 2002, featured ROPS as standard equipment. The sales specification sheet for this particular model contained the following language: "ROPS is standard equipment. Caterpillar strongly recommends use of the ROPS on the PS-150B and PS-200B."

ROPS also was not standard equipment on a Komatsu pneumatic compactor model JW30-1 built in 1992, a 1988 Bomag BW12R CON, and a 1989 Ingersoll-Rand PT140A.

The Hyster Company however provided ROPS as standard equipment on their 1988 and 1989 model C530A pneumatic compactors. The Case Company provided ROPS as standard equipment on their 1990 model 602 B vibratory roller compactor as demonstrated by the content of their sales specification sheet.

See Docket No. 25-5, p. 8.

Despite the SAE recommending and California requiring ROPSs for compactors, most compactor manufacturers did not offer ROPSs as standard equipment until the mid 1990s. Id. The Court finds that the industry standard for compactors in 1990 was to provide ROPSs as optional equipment and not as standard equipment. Accordingly, the rebuttable presumption under N.D.C.C. § 28-01.3-09 is inapplicable.

At issue is whether the absence of a ROPS as standard equipment was a defect which rendered the P-3000 unreasonably dangerous. "As a general rule, a plaintiff is required to prove a product defect through an expert witness." Burgad, 345 F. Supp. 2d at 1041. Paul Stephens, in his expert report, states:

The opinions expressed in this report are based on my several decades of professional experience as a mechanical engineer, which includes 18 years evaluating accidents and their causes for attorneys or other personnel representing plaintiffs, defendants, and/or employers. Such opinions are expressed within the bounds of reasonable engineering certainty and subject to change if additional information becomes available. On this case my opinions are as follows:

* The Dresser model P3000 pneumatic compactor, absent a Rollover Protective Structure, was defective and not reasonably safe.

* The presence of a ROPS structure, in conjunction with seat belt use would have prevented Mr. Reiss from incurring fatal crush injuries.

* An evaluation of the adequacy of rollover hazard warnings, if any were provided on the compactor, is pending additional information. If none were provided, the absence of manufacturer-provided rollover ...


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