This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-01-1691

 

Debra Little Voice,

by and through her guardian, Freda Morris,

Appellant,

 

vs.

 

Elevator Motors Corporation,

a New York corporation,

Respondent,

 

vs.

 

Otis Elevator Company,

a New Jersey corporation,

Respondent.

 

 

Filed ≠March 5, 2002

Affirmed

Harten, Judge

 

Hennepin County District Court

File No. 0016259

 

Mark D. Streed, Meshbesher & Spence, Ltd., 8360 City Center Drive, Suite 100, Woodbury, MN 55125 (for appellant)

 

William M. Hart, Kenneth W. Dodge, Melissa Dosick Riethof, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent Elevator Motors Corporation)

 

John F. Angell, Stich, Angell, Kreidler, Brownson & Ballou, P.A., 120 The Crossings, 250 Second Avenue South, Minneapolis, MN 55401 (for respondent Otis Elevator Corporation)

 

††††††††††† Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.

U N P U B L I S H E D†† O P I N I O N

 

HARTEN, Judge

 

Respondent, a manufacturer of elevator shackles, was granted summary judgment in an action brought by appellant, a mechanicís helper who was injured by falling shackles.† Because we agree with the district court that respondent did not have a duty to provide point-of-use instructions and installation warnings on its shackles and that there were no issues of fact as to the foreseeability of appellantís co-workerís misuse of the shackles or the shacklesí allegedly defective design, we affirm.

 

FACTS

 

††††††††††† Appellant Debra Little Voice, a mechanicís helper employed by Otis Elevator Company, was assigned to help mechanic Donald Miller (an Otis employee with more than 20 yearsí experience working on elevators) install new elevator shackles manufactured by respondent Elevator Motors Corporation (EMCO).† The safe installation of shackles requires three procedures: tightening two lock nuts together, inserting cotter pins in the shackles, and installing a lacing cable through the ends of the shackles. †Although Miller knew he needed to insert cotter pins and install the lacing cable to prevent the cables and shackles from falling, he elected not to do so then.† This resulted in the shackles and some elevator cables falling 17 stories and hitting appellant.† She suffered brain damage that resulted in decreased intellect, mood swings, and inability to live independently.

††††††††††† In the ensuing action, respondent was awarded summary judgment.† The district court concluded that respondent had no duty to warn because the dangers were within the scope of Millerís professional knowledge; it also found that there were no issues of fact as to the foreseeability of his misuse of the shackles or as to their allegedly defective design.† Appellant now challenges the summary judgment, contending that the district court erred as a matter of law in concluding that respondent had no duty to warn and that issues of material fact preclude summary judgment.†

D E C I S I O N

 

††††††††††† On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).†

1.†††††††† Duty to Warn

††††††††††† There is no duty to warn when a user knows or should know of a productís potential danger.† Minneapolis Socíy of Fine Arts v. Parker-Klein Assocs. Architects, Inc., 354 N.W.2d 816, 821 (Minn. 1984), overruled on other grounds, Hapka v. Paquin Farms, 458 N.W.2d 683 (Minn. 1990).† More specifically, there is no duty to warn of a productís dangers when those dangers are within the userís professional knowledge.† Peppin v. W.H. Brady Co., 372 N.W.2d 369, 375 (Minn. App. 1985). Miller was a trained and experienced elevator mechanic.† The evidence establishes that the dangers of failing to lace shackles and install cotter pins were well within his professional knowledge.

In Minneapolis Socíy of Fine Arts,

the evidence was overwhelming that the architects employed by [the plaintiff] should have known that severe weathering could damage glazed brick curtain walls unless precautions set forth in Technical Note 13 were followed.† Moreover, Technical Note 13 itself advised architects to consult with glazed brick manufacturers when intending to use ceramic brick for exterior use.† They failed to do so.† In addition, [plaintiffís] own experts testified that construction custom and practice required the architect to initiate contact with the manufacturer.† Under these circumstances, we conclude there existed no duty on [the manufacturer] to warn of potential problems with glazed brick when they were not shown plans and specifications for the project prior to construction.†

 

Id. at 821-22.† The situation here is similar in three ways:† (1) Millerís deposition testimony shows that he was aware that the use of cotter pins and lacing would prevent spinout; (2) Otis provided its employees with work-process manuals that required them to follow all safety policies and procedures and dealt specifically with lacing and cotter pins; (3) appellantís expert witness provided evidence that (a) it was good safety practice for anyone working on an elevator system to insert cotter pins; (b) lacing is a universally recognized safety requirement commonly known in the industry; (c) a shackle is ďonly unreasonably dangerous if youíre not going to lace the shacklesĒ; (d) he had never seen a shackle with attached instructions; and (e) if instructions were needed, it was the employerís duty to provide them.† Thus, Millerís knowledge of the danger, Otisís manuals, and the expertís deposition testimony all support the district courtís determination that respondent had no duty to warn.

2.†††††††† Alleged Genuine Issues of Material Fact

††††††††††† The deposition testimony of appellantís expert also refutes appellantís argument that genuine issues of material fact exist as to whether Millerís misuse of respondentís product was foreseeable and whether the shackle was defectively designed.† The expert indicated that using cotter pins and lacing was common knowledge in the industry, and respondent could not have foreseen that a mechanic skilled and experienced in the industry would lack or ignore this knowledge.† Appellant contends that the absence of left-hand threading is a design defect, but the expert testified that he had never seen or heard of a shackle designed with left-handed threading.[1]† Appellant also argues that Millerís failure to follow the safety procedures raises a genuine issue of material fact as to whether the procedures were an industry standard, but by this reasoning, any failure to follow a standard would, ipso facto, prove there is no industry standard.†

††††††††††† Finally, in a products-liability case, the plaintiff must prove that the product was being properly used.† Magnuson v. Rupp Mfg., Inc., 285 Minn. 32, 45, 171 N.W.2d 201, 209 (1969).† Appellant cannot meet that burden, nor can she prove that her injury was due to a defect in respondentís shackle: her own expert testified that the shackle was not in a defective condition.† See id. at 43, 171 N.W.2d at 208 (the defect must proximately cause the injury).† The record is clear that it was a defect in Millerís installation, not in respondentís product, that caused appellantís injury.

As a matter of law, respondent had no duty to warn, and no genuine issue of material fact precludes summary judgment.

††††††††††† Affirmed.



[1] Appellantís expert testified in his deposition that left-handed threading is virtually unknown in the industry and that he thought of it only in hindsight in connection with this accident.† Five months later, he asserted in an affidavit that designing a shackle without left-handed threading makes the shackle unreasonably dangerous.† To the extent that appellant considers this discrepancy to produce a genuine issue of material fact, we note that a genuine issue of material fact cannot be produced by ď[a] self-serving affidavit that contradicts earlier damaging deposition testimony.Ē† Banbury v. Omnitrition Intíl, Inc., 533 N.W.2d 876, 881 (Minn. App. 1995).†