Glorvigen v. Cirrus Design Corp.

ANDERSON, PAUL H., Justice,

dissenting.

I respectfully dissent. I write separately because I disagree with the majority’s holding that as a matter of law no consumer product exists for which a supplier is required to give any warning to consumers beyond written instructions, no matter how dangerous the product, and regardless of any jury findings to the contrary. The majority makes this holding even in the face of a supplier’s promise — here, Cirrus’s promise — to provide certain nonwrit-ten instructions. I conclude the majority’s holding usurps the role of the jury and misreads our precedent. In particular, I would defer to the verdict, which is based on the jury’s finding that Cirrus’s warning to Prokop was inadequate without Flight Lesson 4a. I would also hold that Cirrus assumed a duty in tort despite maintaining a contractual relationship with Prokop. Therefore, I would reverse the court of appeals and allow the jury verdict to stand.

I.

To prove a products liability claim based on a theory of negligence, appellants Glorvigen, Gartland, and Prokop’s estate “must prove (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) that the breach of the duty of care was a proximate cause of the injury.” Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn.2011). In Minnesota, suppliers of dangerous products have “a duty to warn end users of [the] dangerous product if it is reasonably foreseeable that an injury could occur in its use.” Gray v. Badger Mining Corp., 676 N.W.2d 268, 274 (Minn.2004). The existence of a duty to warn is a legal question “for court resolution.” Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 924 (Minn.1986). In this case, both the federal district' court and state district court determined that Cirrus owed a duty to warn foreseeable users like Prokop. No party argues otherwise.

After the state district court determined that Cirrus owed a duty to warn, that court submitted the remaining elements of appellants’ claim to the jury. The court properly submitted these elements to the jury because while the existence of a duty to warn is for court resolution, the other elements of a products liability negligence claim are not. Balder v. Haley, 399 N.W.2d 77, 81 (Minn.1987); Germann, 395 N.W.2d at 924-25. Specifically, the “adequacy of the warning” should “remain for jury resolution.” Balder, 399 N.W.2d at 81; Germann, 395 N.W.2d at 924-25. In other words, once the state district court determined that Cirrus owed a duty to warn, it was up to the jury — not the court, and certainly not our court — to determine whether Cirrus provided an adequate warning or whether Cirrus breached its duty to warn. Here, the jury determined that Cirrus’s warning was inadequate— despite all of the written materials Cirrus provided to Prokop.

We do not disturb a jury’s verdict unless the verdict cannot “be sustained on any reasonable theory of the evidence.” Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn.1998). In this case, the jury’s verdict was amply supported by evidence in the record. The jury heard evidence that in-flight instruction on recovery from VFR into IMC1 was necessary to learn how to safely exit IMC in the SR22 because, according to the University of North Dakota’s Aerospace Foundation’s director of transition training, instruction like Flight Lesson 4a was the only way “for th[e] training to take [because] you can’t just do it on the ground.... It has to be done up *586in the sky with the pilot.” The jury also heard evidence that Prokop never received in-flight instruction on recovery from VFR into IMC. Finally, the jury heard evidence that Prokop crashed and died while attempting to recover from VFR into IMC.

Based on the foregoing evidence, the jury determined that Cirrus’s written materials alone provided an inadequate warning. The jury apparently found the warning inadequate because the warning lacked Flight Lesson 4a, the only hands-on, inflight training in recovery from VFR into IMC that Cirrus offered to Prokop. Thus, the jury determined that Cirrus breached its duty to warn and returned a verdict awarding damages to the next of kin of Prokop and Kosak to help compensate them for Cirrus’s breach. Because the adequacy of the warning was for jury resolution, and because the jury’s determination is sustained by a “reasonable theory of the evidence,” I conclude that the determination is not of the type that our court has the authority to disregard. Pouliot, 582 N.W.2d at 224; Germann, 395 N.W.2d at 924-25.

Nevertheless, the majority holds as a matter of law that Cirrus was not required to provide Flight Lesson 4a. The majority does so on the theory that deferring to the jury’s determination would, in effect, require a new duty of suppliers — a duty to train. Specifically, Cirrus and amici argue, and the majority accepts, that if we were to hold that Cirrus was obligated to provide Flight Lesson 4a in order to adequately discharge its duty to warn, then all suppliers — even suppliers of coffee pots, according to statements made during oral arguments — will be required to provide training to their users. This argument overreacts to the scope and impact of such a holding.

First, this court does not determine what Cirrus, or any other supplier, must provide to adequately discharge its duty to warn; rather, we determine only the features a warning must possess.2 Further, we do not determine what form such a warning must take — the jury makes that determination. See Balder, 399 N.W.2d at 81. The jury’s determination will vary from case to case, based on the facts of the case and the type of product the supplier provides.

Second, suppliers must use care “commensurate” with “reasonably foreseeable dangers” — not with any conceivable danger. Domagala, 805 N.W.2d at 28. We have said that “ ‘[w]hat constitutes reasonable care will, of course, vary with the surrounding circumstances and will involve a balancing of the likelihood of harm, and the gravity of harm if it happens, against the burden of the precaution which would be effective to avoid the harm.’ ” Bilotta v. Kelley Co., 346 N.W.2d 616, 621 (Minn.1984) (quoting Holm v. Sponco, 324 N.W.2d 207, 212 (Minn.1982)). For example, I find it absurd to assert that the “reasonably foreseeable dangers” of operating a coffee pot are akin to the “reasonably foreseeable dangers” of operating the SR22, an undisputedly fast and highly sophisticated airplane. Domagala, 805 N.W.2d at 28. Thus, I also find it absurd to assert that the reasonable care required of a coffee pot supplier, and therefore the type of warning a coffee pot supplier must provide to consumers, is akin to the type of warning that Cirrus must provide to consumers who purchase and intend to operate the SR22.

*587Far from imposing a new duty to train on suppliers, the jury in this case simply determined that a supplier of a dangerous product must provide a warning commensurate with that danger to consumers, as required under our case law. I conclude that the majority mistook whether Cirrus owed a duty to warn, which was for court resolution, for the question whether Cirrus adequately discharged its duty to warn, which was for jury resolution. Germann, 395 N.W.2d at 924-25. Accordingly, I conclude that the majority oversteps our authority on review when the majority holds that Cirrus was not required to provide Flight Lesson 4a to adequately discharge its duty to warn, a conclusion that is clearly contrary to the jury’s determination. I would defer to the jury’s proper determination and hold that Cirrus’s warning to Prokop was inadequate.

II.

Even if the majority is correct that deferring to the jury’s determination would impose a new duty to train on suppliers, I would still hold that Cirrus owed a duty to provide Flight Lesson 4a because Cirrus assumed that duty. The majority holds that Cirrus cannot assume a duty in tort because Cirrus maintained a contractual relationship with Prokop. But it is well established in our case law that a party can assume a duty in tort despite maintaining a contractual relationship.3 Therefore, I disagree with the majority on this key point. In particular, I conclude that the majority has overlooked specific accommodation in our case law that would allow the next of kin of Prokop and Kosak to recover in tort against Cirrus despite the contract.

We have said that when the “gravamen of [a] case ... is contractual,” and “[a]ny duties between the parties arose out of contracts,” a party cannot be held liable in negligence. Lesmeister v. Dilly, 330 N.W.2d 95, 102 (Minn.1983). In other words, “[wjhen a contract provides the only source of duties between the parties, Minnesota law does not permit the breach of those duties to support a cause of action in negligence.” United States v. Johnson, 853 F.2d 619, 622 (8th Cir.1988) (citing Lesmeister, 330 N.W.2d at 102). But even when parties are bound by contract, our case law explicitly excludes claims arising from personal injury and for damages other than economic loss from the general rule that a party cannot be liable in tort. See, e.g., 80 S. Eighth St. Ltd. P’ship v. Carey-Canada, Inc., 486 N.W.2d 393, 396 (Minn.1992) (“[Ejconomic losses that arise out of commercial transactions, except those involving personal injury or damage to other property, are not recoverable under the tort theories of negligence or strict products liability.” (emphasis added) (citation omitted) (internal quotation marks omitted)). Additionally, we appear to have adopted Restatement (Second) of Torts § 323 (1965), which states that a party can assume a duty in tort even if undertaken “for consideration.” Restatement (Second) of Torts § 323 provides that

[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
*588(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

(Emphasis added.) See, e.g., Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 674 (Minn.2001); State v. Philip Morris Inc., 551 N.W.2d 490, 493-94 (Minn.1996). That a person can undertake a duty in tort “for consideration” indicates that a person can assume a duty in tort through contract.

In this case, it is undisputed that Cirrus entered into a contract with Prokop for the sale of the SR22 and that the contract specified that transition training was included in the purchase price. Based on this fact alone, the majority ends its analysis and holds that because Cirrus promised by contract to provide transition training, including Flight Lesson 4a, Cirrus cannot be held liable in tort for failing to provide Flight Lesson 4a. But our case law requires that our analysis go further.

As an initial matter, the “gravamen” of this case is not contractual. Lesmeister, 330 N.W.2d at 102. Instead, the “gravamen” of this case sounds in tort. Id. The parties assert only tort-based claims, and the parties’ relationship is as much governed by Cirrus’s tort duty to warn as the relationship is governed by Cirrus’s contractual duties. Certainly the contract gives rise to Cirrus’s duty to warn (if Prokop never contracted for the SR22, Cirrus would not owe a duty to warn to Prokop), but it is Cirrus’s status as the manufacturer and supplier of the SR22, not the contract, that imposes the tort duty to warn. See, e.g., Johnson, 853 F.2d at 622 (holding that where “a contract provide[d] the only source of duties between the parties,” tort liability was improper (emphasis added)).

Moreover, the claim in this case involves each of the two specific accommodations we have made in the past allowing a party to be liable in tort despite the presence of a contract. First, the claim at issue involves personal injury. See 80 S. Eighth St., 486 N.W.2d at 396. Second, the claim involves non-economic-loss damages. See id.; see also Black’s Law Dictionary 589 (9th ed.2009) (defining “economic loss” in a products liability suit as “including] the cost of repair or replacement of defective property, as well as commercial loss for the property’s inadequate value and consequent loss of profits or use”). Instead of seeking economic loss damages like the cost to repair the SR22, the parties seek such damages as “[l]oss of counsel, guidance, aid, advice, comfort, [assistance, protection, and companionship.” Because we have recognized that a tort duty can be assumed for consideration, see Restatement (Second) of Torts § 323, and because we have distinguished between claims arising from purely economic loss and claims arising from personal injury, our case law provides a basis to conclude that Cirrus assumed a duty in tort despite Cirrus’s contract with Prokop.

The majority reaches the opposite result. More specifically, the majority concludes that because we did not impose tort liability in cases in which the claim did not involve personal injury or non-economic-loss damages, we may not impose tort liability when a claim does involve personal injury and non-economic-loss damages. This conclusion overlooks the accommodation we have made in our case law for claims involving personal injury and non-economic-loss damages. Instead of restricting the result in this case, our case law does the exact opposite — it anticipates and intentionally accommodates an imposition of tort liability on Cirrus.4

*589It should be self-evident that a party who breaches a contract ought to be liable for the breach of that contract. But a party should not be “immunize[d] ... from tort liability for his wrongful acts,” just because those acts “grow out of’ or are “coincident” to a contract. Eads v. Marks, 39 Cal.2d 807, 249 P.2d 257, 260 (1952). If the mere presence of a contract foreclosed all tort liability, medical malpractice claims would cease to exist. A passenger injured in a car accident while riding in a taxi cab would have only a breach of contract claim against the cab driver and cab company. A paid babysitter who failed to prevent injury to a child would be liable only in contract. The list goes on. While we have rightly limited tort liability when the relationship of the parties is governed purely by contract, we have never foreclosed— indeed, we have specifically accommodated — tort liability when personal injury or non-economic-loss damages are asserted.

I conclude that the majority’s holding overlooks this accommodation. In contrast, I would hold that Cirrus may assume a duty in tort to provide Flight Lesson 4a despite Cirrus’s contract with Prokop. I reach this conclusion because the parties’ relationship is grounded in tort as well as contract, and because the claim involves personal injury and non-economic-loss damages. Further, I would conclude that by promising to provide Flight Lesson 4a, Cirrus did assume a duty in tort and may be held liable for breaching that duty.

On a final note, I am concerned about the far-reaching consequences of the majority’s holding in this case. By holding that a supplier of a dangerous product, such as the SR22, is never required to provide anything beyond written instructions — even if the supplier has promised to provide nonwritten instructions — the majority has essentially held that no consumer of a dangerous product may ever hold a supplier liable for personal injury arising out of defective nonwritten instructions. Instead, the majority’s holding indicates that the only remedy available to the injured consumer will be breach of contract. But as the majority indicates in its opinion, contract damages are generally inadequate and ill-suited for personal injury claims.

Based on the foregoing analysis, in which I conclude that the majority has usurped the role of the jury and misread our case law, I would hold that Cirrus breached its duty to warn when it failed to provide Flight Lesson 4a as promised. Therefore, I would reverse the court of appeals and allow the jury verdict to stand.

. As noted by the majority, VFR into IMC is an emergency situation in which the pilot loses the ability to see the horizon and must navigate the airplane through use of instruments alone.

. We have said that to be "legally adequate,” a supplier's warning to a user of any foreseeable dangers associated with the products intended use “should (1) attract the attention of those that the product could harm; (2) explain the mechanism and mode of injury; and (3) provide instructions on ways to safely use the product to avoid injury.” Gray v. Badger Mining Corp., 676 N.W.2d 268, 274 (Minn.2004).

. Moreover, under our case law, a party can assume a duty in tort through a contractual relationship. See, e.g., Walsh v. Pagra Air Taxi, Inc., 282 N.W.2d 567, 570-71 (Minn.1979) (holding that an airport base operator was liable for breach of a tort duty the operator assumed through its operating agreement with a city).

. Other jurisdictions also tend to allow a plaintiff to recover in tort even when the defendant assumed a duty through, or in addition to, a contract. For example, the Mary*589land Court of Appeals (the state's highest court) explained that while not every contract will give rise to a tort duty, "[wjhere a contractual relationship exists between persons and at the same time a duty is imposed by or arises out of the circumstances surrounding or attending the transaction, the breach of such duty is a tort,” and the injured party may choose to sue in tort or for breach of contract. Jacques v. First Nat'l Bank of Md., 307 Md. 527, 515 A.2d 756, 759 (1986) (citation omitted). When determining whether to impose tort liability, the court considers (1) the nature of the harm likely to arise, and (2) the relationship of the parties. Id. Where the harm likely to arise is personal injury, the court imposes tort liability. Id. at 760; see also, e.g., Eads v. Marks, 39 Cal.2d 807, 249 P.2d 257, 260 (1952) ("A tort may grow out of or be coincident with a contract, and the existence of a contractual relationship does not immunize a tortfeasor from tort liability for his wrongful acts in breach of the contract.”).