Products Liability Law Daily Refurbishment by third-party cannot rescue bar of auger injury action by statute of repose
Wednesday, August 8, 2018

Refurbishment by third-party cannot rescue bar of auger injury action by statute of repose

By Melanie King, J.D.

Strict products liability and negligence claims relating to the sale of a drill that seriously injured a state transportation department worker were properly dismissed and summary judgment favoring the manufacturer of the auger involved in the accident was appropriately granted, a federal appellate panel concluded. Recovery was barred by the state’s statute of repose, the panel held, adding that negligent entrustment claims failed as a matter of law because facts that would satisfy the knowledge requirement had not been alleged (Oppedahl v. Mobile Drill International, Inc., August 7, 2018, Shepherd, B.).

An experienced drill operator who worked for the Iowa Department of Transportation (IDOT) was taking soil samples when he became entangled in an unguarded rotating auger attached to a truck-mounted drill. The serious injuries he sustained left the employee a quadriplegic, after which he, his wife, and his children sued the truck company and three auger manufacturers. Ultimately, the trial court dismissed the claims against the truck company and two of the three auger makers, leaving the drill manufacturer as the sole defendant.

The plaintiffs’ strict liability and negligence claims against the truck company, those same claims related to the sale of the drill, and the loss of consortium claims were dismissed because Iowa’s statute of repose had run, barring recovery. The remaining drill manufacturer then moved for summary judgment on the plaintiffs’ negligent entrustment claims, after which the trial court ruled that those claims failed as a matter of law because the plaintiffs failed to allege facts that would satisfy the "knowledge requirement" necessary to establish that tort.

Statute of repose. The plaintiffs argued on appeal that the trial court’s dismissal of their negligence and strict liability claims was error. They asserted that the statute of repose had not run because IDOT had "completely refurbished the auger less than 15 years before [the plaintiff’s] injury." Although neither the Iowa Supreme Court nor the U.S. Court of Appeals for the Eighth Circuit has considered the question of whether refurbishing a product resets the time period in a statute of repose, the trial court found that "there was no basis upon which to conclude the Iowa Supreme Court would create [a refurbishment] exception."

Even if the exception applied, the plaintiffs’ claims in this case still would be barred, the appeals court said, noting that existing case law in which courts have adopted the refurbishment exception to statutes of repose requires that "the refurbishment be completed by the party being held accountable for the harm." Here, IDOT, and not the drill company, had refurbished the subject auger.

Negligent entrustment claim. The parties disputed which standard should apply in a negligent entrustment case—the Restatement (Second) of Torts §390 (1965) or the Restatement (Third) of Torts: Physical and Emotional Harm §19 (2010). Although the Iowa Supreme Court has not adopted either standard, the appellate panel found that this did not matter in the instant case because the plaintiffs’ claims failed under both.

The Restatement (Second) of Torts §390 states:

One who supplies directly … a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself … is subject to liability for physical harm resulting to them.

Here, the drilling company sold IDOT the auger, but the plaintiffs did not allege any specific facts "that would indicate IDOT had a history of irresponsible or incompetent behavior with the use of heavy machinery" or that the company "should have known that IDOT … would use the auger in a manner involving unreasonable risk of physical harm to its employees," the panel observed.

Similarly, the illustrations to the comments of Restatement (Third) of Torts §19 "all state that the defendant had knowledge of specific facts about the third party that made it foreseeable the third party would engage in improper conduct." In that regard, the plaintiffs failed to present any facts "indicating that it was foreseeable to [the drill company] that IDOT would use the auger in an unsafe way," the panel held, Moreover, the court concluded that merely because there was "some abstract possibility" that an auger might be used negligently or recklessly did not impose liability on the drill company for selling it. Thus, the panel affirmed the trial court’s decision.

The case is No. 17-1925.

Attorneys: Marc A. Humphrey (Humphrey Law Firm, PC) for Jeffery Allen Oppedahl and Angela Marie Oppedahl. Sarah Franklin (Covington & Burling LLP) for Mobile Drill International, Inc. a/k/a Mobile Drill, LLC f/k/a Mobile Drill Company, Inc.

Companies: Mobile Drill International, Inc. a/k/a Mobile Drill, LLC f/k/a Mobile Drill Company, Inc.; USExploration Equipment Co.; Central Mine Equipment Co.

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