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Ruth Bornsen and Nathan Bornsen v. Pragotrade

September 15, 2011

RUTH BORNSEN AND NATHAN BORNSEN,
PLAINTIFFS
v.
PRAGOTRADE, LLC, PRAGOTRADE, INC., AND CABELA'S RETAIL, INC.,
DEFENDANTS



Certified question from the United States District Court for the District of North Dakota, the Honorable Ralph R. Erickson, Chief Judge.

The opinion of the court was delivered by: Crothers, Justice.

N.D. Supreme Court

Bornsen v. Pragotrade, LLC,

2011 ND 183

This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect] Dissent filed.

CERTIFIED QUESTION ANSWERED.

Opinion of the Court by Crothers, Justice.

[¶1] The United States District Court for the District of North Dakota certified a question to this Court whether we apply the "apparent manufacturer" doctrine to N.D.C.C. ch. 28-01.3. We answer the question "No."

I

[¶2] Ruth and Nathan Bornsen brought a products liability action in state district court against Pragotrade, LLC, Pragotrade, Inc., and Cabela's Retail, Inc., for negligence, strict liability, and breach of warranty, alleging Ruth Bornsen injured her hand on November 21, 2007, while using a meat grinder manufactured by Pragotrade and purchased from Cabela's. The Bornsens' action was removed to the United States District Court for the District of North Dakota.

[¶3] Before answering the complaint, Cabela's moved to dismiss the action and submitted an affidavit under N.D.C.C. § 28-01.3-04, asserting it was not liable to the Bornsens because it was a nonmanufacturing seller of the meat grinder. Cabela's claimed Pragotrade manufactured the meat grinder. Pragotrade answered, admitting it participated in the design and distribution of the meat grinder, but denying it manufactured the grinder. The Bornsens resisted Cabela's motion to dismiss, claiming Cabela's was not a nonmanufacturing seller of the meat grinder and was not entitled to a dismissal under N.D.C.C. § 28-01.3-04.

[¶4] At a hearing on the motion to dismiss, the Bornsens cited Reiss v. Komatsu Am. Corp., 735 F.Supp.2d 1125 (D.N.D. 2010), and argued Cabela's was an "apparent manufacturer" of the meat grinder under the Restatement of Torts and was not entitled to dismissal under N.D.C.C. § 28-01.3-04.

[¶5] After supplemental briefing by the parties, the United States District Court for the District of North Dakota certified the following question to this Court:

"Whether the North Dakota Supreme Court intends to adopt the 'apparent manufacturer' doctrine set forth in the Restatement (Second) of Torts § 400 or more recently, the Restatement (Third) of Torts: Product Liability § 14?" The United States district court's certification stated:

"II. Statement of Facts Relevant to Question Certified. On November 21, 2007, Ruth Bornsen's left hand was injured when it became lodged in a meat grinder her husband purchased from Cabela's Retail, Inc. Plaintiffs Ruth and Nathan Bornsen have sued Pragotrade, LLC, Pragotrade, Inc., and Cabela's, alleging claims of negligence, strict liability, and breach of warranty. The Bornsens allege a design defect due to large dimensions of the grinder opening and failure to properly warn. Cabela's has asserted that Pragotrade manufactured the grinder, and seeks dismissal under N.D. Cent. Code § 28-01.3-04. The Bornsens contend that Cabela's is not entitled to dismissal because it is an 'apparent manufacturer' of the product. "III. Statement of Lack of Controlling Precedent in North Dakota. The Court believes that this question involves interpretation of North Dakota law of some magnitude. Adopting the Restatement (Second) of Torts § 400 or the Restatement (Third) of Torts: Product Liability § 14 appears to contradict the plain language of the definition of manufacturer as set forth in N.D. Cent. Code § 28-01.3-01 and likewise appears to be inconsistent with the legislature's intent in enacting N.D. Cent. Code § 28-01.3-04. The United States District Court, District of North Dakota, finds there exists no controlling precedent from the North Dakota Supreme Court on the certified question of law. Resolution will be determinative to the proceedings currently pending in the United States District Court and will impact future product liability cases. "IV. This Court's Opinion. There is a decision from the District Court for the District of North Dakota that predicts the North Dakota Supreme Court would adopt the so-called ...


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