This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Gerald Grudnoske,

St. Paul Fire and Marine Insurance Company,
Lower Court Intervenor and Plaintiff,


Determan Welding & Tank Service, Inc.,
defendant and third party plaintiff,


DeLaria Transport, Inc., third party defendant,

American Semi Parts and Service, Inc., et al.,
Third-Party Defendants.

Filed September 7, 1999
Willis, Judge

Ramsey County District Court
File No. C197009911

Richard P. Mahoney, Victor E. Lund, Mahoney, Dougherty and Mahoney, P.A., 801 Park Avenue, Minneapolis, MN 55404 (for appellant)

Mark A. Gwin, Barton C. Gernander, Cousineau, McGuire & Anderson, Chtd., 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416 (for respondent)

Considered and decided by Willis, Presiding Judge, Harten, Judge, and Thoreen, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellant Determan Welding and Tank Service, Inc., appeals from the district court's grant of summary judgment to respondent DeLaria Transport, Inc., arguing that DeLaria is a manufacturer, nonmanufacturing seller, or designer of machinery that injured Gerald Grudnoske, and, therefore, DeLaria should be liable for contribution to Determan's settlement costs with Grudnoske. We affirm.


DeLaria, a trucking company, installed a power take-off (PTO) shaft assembly and pump on a semi-tanker it owned and later sold the vehicle to Worum Chemical Company. Worum hired Determan, a petroleum-handling equipment sales and service company, to install a new PTO shaft assembly and a larger pump on the semi-tanker. Gerald Grudnoske was injured while adjusting the pump connected to the PTO shaft assembly installed by Determan.

After being sued by Grudnoske, Determan commenced a third-party action against DeLaria. DeLaria moved for summary judgment on the grounds that it did not design, manufacture, sell, distribute, or install the PTO shaft assembly that injured Grudnoske, and, therefore, it could not be held liable for Grudnoske's injuries or for contribution to Determan's settlement costs with Grudnoske. The district court granted the motion, and Determan appeals.


On appeal from a summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). We must view the evidence in the light most favorable to the nonmoving party. Id.

Determan first argues that DeLaria is a manufacturer of the PTO shaft assembly and pump in question, and, therefore, it should be held strictly liable for harm caused by any design defect, citing McCormack v. Hankscraft Co., 278 Minn. 322, 331-41, 154 N.W.2d 488, 496-501 (1967) (adopting rule of strict liability for manufacturers), and Bilotta v. Kelley Co., 346 N.W.2d 616, 624 (Minn. 1984) (holding manufacturer may not delegate duty to design reasonably safe product). See also Marcon v. Kmart Corp., 573 N.W.2d 728, 730 (Minn. App. 1998) (noting that Minnesota courts subject manufacturers to strict liability for injury resulting from defect in design or failure to warn), review denied (Minn. Apr. 14, 1998). Determan further argues that replacement of the component parts of a product by a third party should not insulate a manufacturer from liability for a defective design, citing Rolph v. EBI Cos., 464 N.W.2d 667, 672-73 (Wis. 1991) (concluding that company hired to recondition machine has no duty to correct design defect created by manufacturer). According to Determan, DeLaria, a manufacturer, assembled a PTO shaft and pump and did not place a safety device on the shaft; Determan then simply followed this "design" when it replaced the PTO shaft assembly and installed a new, larger pump. Determan argues that this design was defective and, therefore, DeLaria is subject to liability despite Determan's replacement of all the component parts of the PTO shaft assembly.

A manufacturer is "[a]ny individual, partnership, corporation, * * * which manufactures, assembles, or produces goods." Black's Law Dictionary 965 (6th ed. 1990); see also Graff v. Minnesota Flint Rock Co., 147 Minn. 58, 60, 179 N.W 562, 563 (1920) (stating that manufacturer is one who by labor, art, or skill transforms raw material into finished product). We conclude that DeLaria is not a manufacturer of the PTO assembly and pump. DeLaria is not in the business of manufacturing, assembling, or producing goods, and it does not transform raw material into a finished product. Instead, it hauls industrial liquids; it attached the PTO assembly and pump to the semi-tanker for its own use. Further, Determan cites no authority for the proposition that a manufacturer can be subject to liability where a third party completely replaces a product and the replacement causes injury. Simply put, even if DeLaria were a manufacturer, nothing it manufactured harmed Grudnoske.

Determan also argues that if DeLaria is not a manufacturer of the PTO assembly and pump, it is a seller and is therefore strictly liable. Nonmanufacturing sellers and distributors are subject to strict liability for selling products that are defective. Marcon, 573 N.W.2d at 731; see also Restatement (Third) of Torts: Product Liability § 1 cmt. a (1998). But the rule does not apply in the case of occasional or casual sales outside the regular course of the seller's business. Id. cmt. c. Here, DeLaria's sale of the semi-tanker to which the assembly was attached was an occasional or casual sale outside the regular course of DeLaria's business of hauling industrial liquids. And the sale of the PTO shaft assembly and pump was incidental to the sale of the semi-tanker. We conclude, therefore, that DeLaria is not a nonmanufacturing seller of PTO shaft assemblies or pumps and is not subject to strict liability for Grudnoske's injuries. And, again, even if DeLaria were a nonmanufacturing seller, nothing it sold harmed Grudnoske.

Finally, Determan claims that even if DeLaria is not strictly liable as a manufacturer or nonmanufacturing seller, it still had a duty of reasonable care to Grudnoske because assembling the PTO shaft and pump without a safety guard created a foreseeable risk of injury, citing Oswald by Thies v. Law, 445 N.W.2d 840, 842 (Minn. App. 1989) (stating whether duty exists depends on whether injury was reasonably foreseeable), review denied (Minn. Nov. 15, 1989). But Determan's replacement of the PTO shaft assembly and pump was a superseding cause of Grudnoske's injury. See Hedlund v. Hedlund, 371 N.W.2d 232, 236-37 (Minn. App. 1985) (concluding that owner of tractor was not entitled to contribution from third-party seller of tractor where owner's negligence was a superseding cause to any duty of the seller).

Because DeLaria is not a manufacturer or nonmanufacturing seller, because Determan completely replaced the PTO shaft assembly and pump before Grudnoske was injured, and because there are no material facts in dispute, the district court did not err in granting summary judgment to DeLaria.


[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.