Barbara Robinson v. Brandtjen & Kluge

Barbara Robinson and her husband Kent sued Brandtjen & Kluge, Inc.,
("B&K"), alleging causes of action based on strict products liability and negligence,
as well as a derivative claim based on loss of consortium and a claim for punitive
damages. The district court1 granted summary judgment for B&K, and we affirm.

I

Barbara Robinson ("Robinson") worked at Clark Printing, Inc., a printing
business in Spearfish, South Dakota. Clark Printing owned a printing press
manufactured by B&K in 1939. While Robinson was operating the press in December
2001, her hand became lodged between the two large surfaces of the press, and she
suffered severe injury to her hand. Robinson and her husband brought this diversity
action against B&K, alleging negligence, strict liability, and loss of consortium under
South Dakota law.

The press was a Kluge 6 Roller Automatic Platen Printing Press, which B&K
sold in 1940 to a newspaper in Deadwood, South Dakota. Clark Printing acquired the
press over fifty years later, in 1991 or 1992. B&K had designed the press for
automatic feeding, a mechanical process in which paper is fed by a mechanical arm
onto one large surface, called a "platen," before it rises to meet a second surface,
called the "bed," which stores typeface that prints onto the paper. After the printing
occurs, the surfaces separate, a second mechanical arm removes the paper, and the
first arm then moves another piece of paper onto the platen for the next printing.

Even with the automatic feeder, however, an operator was required to use the
press manually during what is described as the "make-ready" process. During this
process, a test sheet of paper is printed to ensure that the press is set properly for a
series of papers to be printed through use of the automatic feeder. The B&K operating
instructions explained the steps necessary for the operator to disable the automatic
feeder in order to undertake the make-ready process, stating that after these steps are
completed, "[t]he press may now be operated in the same manner as an open press."
(Robinson App. 238). The instructions contemplate that once this make-ready process
is completed, the operator will reattach the automatic feeder for mechanical operation.
(Id. at 236).

In 1996 or 1997, Clark Printing converted the press from a printing press to a
foil stamping press. The foil stamping process used heat to transfer gold or silver,
rather than ink, onto paper. After this conversion, Clark Printing employees fed the
machine exclusively by hand. Ivan Clark, the founder and owner of Clark Printing,
testified that manual feeding was more efficient for typical foil stamping jobs, most
of which tended to be "short-run" jobs.

Robinson began working for Clark Printing in 1998, but had never operated the
press before her injury. Janet Davidson, another employee at the firm, usually
operated the press, but on December 7, 2001, a supervisor asked Davidson to perform
another task and directed Robinson to perform a foil stamping job. Davidson testified
that she "did not feel comfortable" with Robinson operating the press, citing the
dangerous nature of the machine and Robinson's lack of experience operating it, but
that Clark ordered her to show Robinson how to use it. (Id. at 277).

Robinson received only five to ten minutes' training, and no safety instruction,
before beginning to operate the press. Robinson testified that she was unaware of the
risk of feeding the press by hand, and instead focused her efforts on printing the job
properly. After about fifteen minutes of operating the press, Robinson's hand became
caught between the platen and the bed. Davidson quickly freed Robinson's hand, but
the hand was nonetheless severely injured.

South Dakota's law limited the Robinsons' recovery against Clark Printing to
claims for workers' compensation. S.D. Codified Laws § 62-3-2. The Robinsons
brought suit against B&K, alleging that the machine was defectively designed and that
B&K failed to warn of the defects.

The district court granted summary judgment for B&K on all claims. On the
strict liability claim, the court concluded that Clark Printing modified the press by
removing the automatic feeder, and that this modification was not reasonably foreseeable by B&K. Accordingly, the court held that B&K had immunity from
liability for product defects or failure to warn under S.D. Codified Laws § 20-9-10(3).
On the negligence claim, the district court concluded as a matter of law that Clark
Printing's modification of the press was a superseding, intervening cause that shifted
liability from B&K to Clark Printing. The court also held that B&K was not liable for
a post-sale failure to warn, because B&K had no duty to identify Robinson as a party
to be warned, and, alternatively, because B&K had provided adequate warnings to
Clark Printing. The court dismissed the claims for loss of consortium and punitive
damages, because they depended on an underlying finding of strict liability or
negligence. We review the district court's grant of summary judgment de novo, taking
the facts in the light most favorable to the Robinsons.

* * *

South Dakota has adopted the rule of strict products liability as stated in the
Restatement (Second) of Torts § 402A (1965). Engberg v. Ford Motor Co., 205
N.W.2d 104, 109 (S.D. 1973). Section 402A makes liable "one who sells any product
in a defective condition unreasonably dangerous to the user or consumer or to his
property." The Supreme Court of South Dakota has not elaborated on how "defective
condition" should be defined, but it has adopted section 402A of the Restatement, and
that section endorses the so-called "consumer expectations test." The commentary to section 402A provides that a product is defective if it leaves the seller "in a condition
not contemplated by the ultimate consumer, which will be unreasonably dangerous to
him." Restatement (Second) of Torts § 402A cmt. g. A product is "unreasonably
dangerous" where it is dangerous "to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics." Id., cmt. i.