No. 92-578
IN THE SUPREME COURT OF THE STATE OF MONTANA
CHAD EMERY and LAURA EMERY, for herself
and as next friend to CHAD EMERY,
Plaintiffs and Appellants,
FEDERATED FOODS, INC., WEST COAST GROCERY
COMPANY and its successor-in-interest
SUPER VALU STORES, INC., MARK SORENSON, M.D.,
and KIDD & COMPANY, INC.,
Defendants and Respondents
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Frank B. Morrison, Jr., Morrison Law Offices,
Kalispell, Montana (argued)
For Respondent:
Sherman V. Lohn (argued): Garlington, Lohn &
Robinson, Kalispell, Montana (for Federated Foods)
Leonard Kaufman and James Ramlow (argued); Murray,
Kaufman, Vidal, Gordon & Ogle, Kalispell, Montana
k Sorenson, M.D.)
8 Submitted: August 30, 1993
Justice Karla M. Gray delivered the Opinion of the Court.
Chad Emery appeals from an order of the Fourth Judicial
~istrict Court, Missoula County, granting summary judgment to
Federated Foods, Inc., Kidd and Co., Inc., West Coast Grocery Co.
and its successor-in-interest Super Valu Stores, Inc. (collectively
hereafter Federated Foods). He also appeals an order changing
venue to Flathead County on a negligence claim against Mark
Sorenson, M.D. We reverse and remand.
We phrase the issues on appeal as follows:
1) Did the District Court err in changing venue to Flathead
County on Emery's negligence claim against Dr. Sorenson?
2) Did the District Court err in refusing to consider the
affidavits of Dr. Loube and Dr. Dingus?
3) Did the District Court err in granting summary judgment for
Federated Foods on Emery's products liability claim?
4) Did the District Court err in declining to rule on the
admissibility of a report compiled by the American Academy of
Pediatrics?
In 1987, Laura Emery and her two children, Zach, age 7 and
Chad, age 2 l/2, lived in Kalispell, Montana. On November 3, 1987,
Laura finished her shift as a waitress and stopped at the Price
Plus grocery store. At her children's request, she purchased a bag
of generic large marshmallows, scanning the label before making her
choice. When the family returned home, Laura put the marshmallows
on the top shelf of her kitchen cupboard, out of the children's
reach.
2
The next morning around 7:15 a.m., Ken Kerzman, a friend of
Laura's, stopped by to shower and to complete paperwork at Laura's
kitchen table. Although Laura had not risen from her bed on the
living room couch, the children asked her if they could have some
marshmallows before breakfast; she consented. Zach climbed onto
the kitchen counter and retrieved the bag of marshmallows from the
top shelf of the cupboard. Zach gave Chad some marshmallows and
took some for himself. Chad began to choke on the marshmallows
within several seconds, and pulled on Kerzman's pant leg. Kerzman
executed the Heimlich Maneuver, forcing Chad to expel several
pieces of marshmallow; Chad continued to choke. Kerzman held Chad
upside down and alerted Laura; they drove Chad to the Kalispell
hospital.
At the hospital, doctors suctioned a small liquified piece of
marshmallow from Chad's airway. Chad sustained severe brain
injuries as a result of the incident.
Laura Emery, on behalf of Chad Emery (Emery), filed the second
amended complaint against Federated Foods on May 31, 1990. The
complaint alleged that the marshmallows were defective and
dangerous to the consumer and that, in spite of the significant
danger of aspiration by small children, the product contained no
warning of such danger. Emery also asserted a breach of warranty
claim against Federated Foods. The complaint further alleged that
Dr. Mark Sorenson negligently treated Chad Emery at the Kalispell
hospital. Claims against two Missoula doctors who treated Emery
after he was transferred to Missoula subsequently were settled and
dismissed.
Upon motion of Federated Foods, the District Court granted
summary judgment for Federated Foods on the products liability and
implied warranty claims. After these claims were dismissed, the
District Court granted Dr. Sorenson's motion to change venue to
Flathead county. The District Court certified the summary judgment
order as final pursuant to Rule 54(b), M.R.Civ.P. Emery appeals
the orders granting summary judgment and changing venue.
We note initially that, notwithstanding Emery's counsel's
statement during oral argument that he also had appealed the
dismissal of his breach of warranty claim, Emery did not argue or
brief this question. As such, Emery cannot contest the District
Court's grant of summary judgment against him on the breach of
warranty claim. Nutter v. Permian Corp. (1986), 224 Mont. 72, 75,
727 P.2d 1338, 1340.
Did the District Court err in changing venue to Flathead
County on Emery's negligence claim against Dr. Sorenson?
Emery filed his complaint in Missoula County. In Dr.
Sorenson's first appearance in the action, he moved for a change of
venue to Flathead County; the District Court denied the motion.
AEter the dismissal of the other defendants, Dr. Sorenson renewed
his motion to change venue. The District Court granted the motion,
concluding that because Dr. Sorenson was the only remaining
defendant, venue was proper in the county of his residence. Our
review of such legal conclusions is plenary. See Steer, Inc. v.
Dep't of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603.
4
It is well-settled in Montana that venue will be determined by
the status of the parties and pleadings at the time of the
complaint or at the time the moving party appears in the action.
Boucher v. Steffes (1972), 160 Mont. 482, 485, 503 P.2d 659, 660;
Clark Fork Paving, Inc. v. Atlas Concrete & Paving (1978), 178
Mont. 8, 13, 582 P.2d 779, 782; Petersen v. Tucker (l987), 228
Mont. 393, 395, 742 P.2d 483, 484.
In Boucher, the plaintiff filed a complaint against defendant
Steffes and the administratrix of defendant Byer's estate in Fallon
County, where the administratrix resided. Defendant Steffes moved
for a change of venue to Yellowstone County, the county of his
residence, after the claim against the administratrix was
dismissed. Boucher, 503 P.2d at 660. In Boucher, we held that
when there are multiple defendants when the case is instituted, and
the defendants who reside in the county where the action was filed
are dismissed, the remaining defendant has Q.
Q. right to change venue
to his or her county of residence. Boucher, 503 P.2d at 660. We
concluded that the status of the parties and pleadings at the time
the moving party appears in the action determines venue. Boucher,
503 P.2d at 660.
Applying these principles to the case before us, venue was
clearly proper in Missoula County when Dr. Sorenson originally
appeared in the action, as the complaint alleged claims against
out-of-state corporations and two Missoula doctors. See §§ 25-2-
117 and -118, MCA. We conclude, therefore, that the District Court
erred in changing venue to Flathead County. To hold otherwise
would require courts to reexamine the question of venue whenever
the composition of the parties was altered; such a result would
generate needless litigation and unduly burden the judiciary.
Finally, Dr. Sorenson asserts that because the District
Court's order on Rule 54(b), M.R.Civ.P., does not mention the order
changing venue, this Court lacks jurisdiction to determine whether
venue was properly transferred. This argument is without merit.
Rule l(b) ( 2 ) , M.R.App.P., provides for the direct appeal of an
order changing or refusing to change venue when the basis for the
motion is that the county designated in the complaint is not the
proper county. As such, no Rule 54(b), M.R.Civ.P., certification
is required.
Did the District Court err in refusing to consider the
affidavits of Dr. Loube and Dr. Dingus?
In response to Federated Foods' motion for summary judgment,
Emery submitted the affidavits of Dr. Julian M. Loube, a
pediatrician, and Dr. Thomas A. Dingus, an industrial engineer.
Although this Court was not provided with a transcript of the
summary judgment hearing, apparently Federated Foods' only
objection to the affidavits was that the subject matter of the
lawsuit was not beyond the common understanding of a layperson and,
therefore, expert testimony was not required.
In its order granting summary judgment for Federated Foods,
the District Court stated:
[tlhe Court is not convinced that either Dr. Loube or Dr.
Dingus are experts on the allegedly latent design defect
or hidden dangers of marshmallows. Furthermore, the
affidavits do not offer any evidence upon which this
Court can properly base a finding or inference that
marshmallows possess any innocuous characteristics,
either by design or composition, which would enhance the
possibility of choking during consumption.
Emery contends that the District Court improperly refused to
consider the affidavits of Dr. Loube and Dr. Dingus.
It is apparent from the District Court's opinion that the
affidavits were before the District Court and it did consider their
content. Moreover, in the District Court's May 24, 1993, order on
remand from this Court, it stated that the affidavits were "relied
on by the Court in reaching its decision . . . and constituted [a
part of] the record." Therefore, although the District Court
concluded that the affidavits did not lend any support to Emery's
argument, it did not reject the affidavits on the basis argued by
Federated Foods or otherwise; nor did it exclude them from
consideration. The court having considered the affidavits, we
conclude only that the District Court did not err by refusing to
consider them; we leave for later determination by that court the
question of the admissibility of testimony by Dr. Loube and Dr.
Dingus under the Montana Rules of Evidence. The propriety of the
court's conclusion regarding the content of the affidavits is
analyzed in the following issue.
Did the District Court err in granting summary judgment for
Federated Foods on Emery's products liability claim?
In support of its motion for summary judgment, Federated Foods
filed a brief and relied on the existing record. In opposition to
summary judgment, Emery submitted four affidavits: Dr. Loube, Dr.
7
Dingus, attorney Sharon Morrison, and Laura Emery. He also filed
the sworn statement of Zach Emery, four exhibits and an
accompanying brief.
In granting Federated Foods' motion for summary judgment, the
District Court found that "the manner in which Chad consumed the
marshmallows caused his damages,v'and concluded that no genuine
issues of material fact existed. The District Court stated:
[I]t is the manufacturer's duty to warn inadequately
informed users about the risk of danger involved with the
use of a product. ..The evidence in the record clearly
supports a finding that the manner in which Chad consumed
the marshmallows caused his damages. Under these
circumstances, and for the reasons stated, the Court
finds that the Defendants were not under any duty as a
matter of law to warn the Plaintiffs that infants and
toddlers can choke on large quantities of marshmallows
eaten all at one time.
Relying on comment (j) of 5 402A of the Restatement (Second) of
Torts, the court concluded that a seller is not required to warn
with respect to products which are only dangerous when consumed in
excessive quantities if that danger is generally known and
recognized.
Our standard in reviewing a grant of summary judgment is the
same as that initially used by the district court. McCracken v.
City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894.
Summary judgment is appropriate when the pleadings, depositions,
affidavits and other documents on file demonstrate that no genuine
issue of material fact exists and that the moving party is entitled
to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The party
seeking summary judgment has the burden of demonstrating a complete
absence of any genuine factual issues. Mayer Bros. v. Daniel
Richard Jewelers (1986), 223 Mont. 397, 399, 726 P.2d 815, 816.
The burden then shifts to the non-moving party to show the
existence of a genuine issue of material fact in order to withstand
the summary judgment motion. Maver Bros., 726 P.2d at 816.
We have stated on numerous occasions that the purpose of
summary judgment is to encourage judicial economy through the
elimination of any unnecessary trial. However, summary judgment is
never to be a substitute for trial if there is an issue of material
fact. Payne Realty v. First Sec. Bank (1992), 256 Mont. 19, 24,
844 P.2d 90, 93. All reasonable inferences that may be drawn from
the offered proof must be resolved in favor of the party opposing
summary judgment. If there is any doubt regarding the propriety of
the summary judgment motion, it should be denied. Pavne Realty,
844 P.2d at 93.
After careful review of the record in this case, we conclude
that the District Court erroneously resolved disputed issues of
material fact and, therefore, exceeded the scope of its role at the
summary judgment stage of this case. Although Federated Foods
argues that the affidavits submitted do not create genuine issues
of material fact because the statements therein relate to non-
essential, non-material facts, we conclude that the documents were
sufficient to meet Emery's burden in opposing summary judgment. We
will briefly review the applicable law in this area to illustrate
the materiality and relevance of the proof offered by Emery.
A products liability claim for failure to warn requires proof
of the following elements:
1) the product was in a defective condition,
88unreasonably"
dangerous to the user or consumer:
2) the defect caused the accident and injuries complained
of; and
3) the defect is traceable to the defendant.
Riley v. Honda Motor Co. (Mont. 1993), 856 P.2d 196, 198, 50
St.Rep. 714, 715; Brown v. North American Mfg. !1978), 176 Mont.
98, 105-6, 576 P.2d 711, 717. In reviewing the District Court's
order in this case, we must consider the first two elements.
With respect to the first element, the failure to warn of an
injury-causing risk associated with the use of a technically pure
and fit product can render the product unreasonably dangerous.
Rilev, 856 P.2d at 198. The product is automatically defective if
it is unreasonably dangerous and a warning is required but not
given. Krueger v. General Motors Corp. (1989), 240 Mont. 266, 278,
783 P.2d 1340, 1348; Rost v. CF&I Steel Corp. (1980), 189 Mont.
485, 488, 616 P.2d 383, 385. A product may be defective if
purchasers and likely users have been misinformed or inadequately
informed about either the risks or the dangers involved in the use
of the product or how to avoid or minimize the harmful consequences
from such risk. Streich v. Hilton-Davis (1984), 214 Mont. 44, 54,
692 P.2d 440, 445-46.
Emery presented evidence to the District Court in support of
his theory that the marshmallows involved in this case were
defective and unreasonably dangerous because they lacked an
effective warning. Dr. Eoube's affidavit related to the
potentially hazardous properties of a marshmallow and included the
following statements:
Food items are often particularly dangerous in that they
change their characteristics and consistency when they
are soaked with the liquid secretions that are present in
the breathing tubes of the lungs. These secretions
usually cause some swelling of the food so that it
further obstructs the breathing passage.
A marshmallow is a particularly hazardous confection as
a risk of aspiration in children under the age of three.
It is sweet and, therefore, has a great deal of appeal to
small children. It appears soft and innocuous to parents
and does not present the same apparent risk that might be
perceived by a parent when considering a piece of hard
candy or a jelly bean.
An aspirated piece of marshmallow can be very difficult
to dislodge. Because it continues to expand after
entering the airway it can efficiently obstruct a large
breathing passage, perhaps even the trachea (the main
breathing tube). An aspirated marshmallow fragment might
not be reachable with a finger and could be difficult to
dislodge with a Heimlich maneuver.
Further, Dr. Dingus stated that, absent an appropriate warning, it
is foreseeable that a reasonable parent would not perceive that
marshmallows present a danger to small children.
In spite of this evidence, the District Court stated that "the
evidence does not support a finding that marshmallows pose any more
of a threat of choking upon consumption than do the majority of
other foods." The court also concluded that the affidavits did not
offer any evidence upon which the court could base a finding or
inference that marshmallows possess any innocuous characteristics,
either by design or composition, which would enhance the
possibility of choking during consumption.
We emphasize that summary judgment was not intended, nor can
it be used, as a substitute for trial of issues of fact. Edgewater
Townhouse Assoc. v. Holtman (1992), 256 Mont. 182, 185, 845 P.2d
1224, 1226. The question before the District Court was whether
genuine issues of material fact existed regarding the potential
danger of aspiration of marshmallows without an appropriate
warning. We conclude that the District Court erroneously resolved
issues of fact regarding the chemical properties of marshmallows
and the foreseeability of the danger of aspiration in children.
Regarding the element of causation, we recently stated in
that while causation is ordinarily a question of fact in a
failure to warn claim, it may be determined as a matter of law
where reasonable minds can reach but one conclusion. Rilev, 856
P.2d at 198. We also explained that this element can be satisfied
by evidence indicating that a warning would have altered the
plaintiff's use of the product or prompted the plaintiff to take
precautions to avoid the injury. w , P.2d
856 at 198-99.
In Laura Emery's affidavit, she stated that "if I had been
warned of the risk of small children choking on marshmallows, I
would not have purchased them at all . . . I usually read labels on
food products prior to buying them. I always take note of warnings
on labels about risks to children." At a minimum, pursuant to
m, this evidence raises a genuine issue of material fact
regarding causation.
Nonetheless, the District Court made a factual finding that
"Chad's overindulgence caused his injuries" and concludedthat "the
evidence in the record clearly supports a finding that the manner
in which Chad consumed the marshmallows caused his damages." We
conclude that a genuine issue of material fact exists regarding the
cause of Chad's damages. This question of causation--that is,
whether the incident was caused by the manner and quantity of
marshmallows eaten or by a product defective and unreasonably
dangerous by virtue of the absence or inadequacy of a warning--
remains to be decided by the fact-finder.
As a final matter, the District Court went on to state that:
[n]o evidence even suggests that Laura Emery was an
inadequately informed user of marshmallows. Likewise, the
record is devoid of substantial credible evidence which
would support a finding that Ms. Emery was not cognizant
of the potential h a m presented by the consumption of
marshmallows.
Laura Emery's affidavit stated that it did not occur to her
that marshmallows presented a risk of choking in small children.
Dr. Dingus' affidavit also stated that it is foreseeable that a
reasonable parent, would not, without the presence of an
appropriate warning, perceive that marshmallows present a danger to
small children. Again, the affidavits presented belie the District
Court's opinion and its conclusion that no disputed issues of
material fact exist here.
In sum, we conclude that the affidavits submitted by Emery in
opposition to Federated Foods' motion for summary judgment
adequately discharged his burden of demonstrating genuine issues of
material fact. We do not suggest that the disputed facts discussed
herein are the only disputed facts that remain to be determined in
this case; rather, those facts are indicative of the presence of
disputed issues of fact and the error in granting summary judgment.
13
We hold that the District Court erred in granting summary
judgment for Federated Foods on Emery's failure to warn claim.
Did the District Court err in declining to rule on the
admissibility of a report compiled by the American Academy of
Pediatrics?
At the summary judgment hearing, Emery's counsel attempted to
introduce into evidence a report to the Food and Drug
Administration by the American Academy of Pediatrics entitled
"Foods and Choking in Children." Federated Foods' counsel objected
to the report as hearsay. Emery contends that the study was
offered pursuant to the hearsay exception for public records and
reports under Rule 803(8), M.R.Evid., arguing that the report
contains factual findings resulting from an investigation made
pursuant to authority granted by law. Both sides briefed the
question following the summary judgment hearing. The District
Court did not rule on the admissibility of the report and does not
mention it in its opinion and order on summary judgment.
We conclude that resolution of this issue is unnecessary and
premature at this time. This Court was not provided with a
transcript of the summary judgment hearing and the record before us
does not reflect whether the District Court admitted or rejected
the report. Furthermore, the thrust of the report's conclusions is
duplicated in Dr. Loube's affidavit. Because we have determined
that summary judgment was inappropriately granted based on the
affidavits offered by Emery, the contents of the report are not
necessary for our resolution of the summary judgment issue. In the
event the report is offered into evidence at trial, the District
Court will address the question of admissibility pursuant to the
Montana Rules of Evidence.
Reversed and remanded for further proceedings consistent with
this opinion.
We concur:
Chief Justice
Chief Justice J. A. Turnage, dissenting:
I respectfully dissent.
Two-and-one-half-year-old Chad Emery choked on a marshmallow
and sustained a permanent injurj. Everyone is distressed at this
unfortunate incident. However, the issue facing this Court is
whether such incident is the basis for a products liability claim
for failure of the respondents to warn Chad Emery's mother of the
danger of allowing her son to eat a marshmallow.
The majority opinion, in citing this Court's prior case law in
Brown v. North American Mfg. (1978), 176 Mont. 38, 105, 576 P.2d
711, 716, and Riley v. American Honda Motor Co., Inc. (Mont. 1993) ,
856 P.2d 196, 198, 50 St.Rep. 714, 715, correctly states the
established rule:
A products liability claim for failure to warn
requires proof of the following elements:
I l the nroduct was in a defective condition.
l)
'unreasonablvl danaerous to the user or consumer;
"2) the defect caused the accident and injuries
complained of[.]" [Emphasis supplied.]
The majority opinion then further states:
The question before the District Court was whether
genuine issues of material fact existed regarding the
potential danger of aspiration of marshmallows without an
appropriate warning. We conclude that the District Court
erroneously resolved issues of fact regarding the
chemical properties of marshmallows and the foreseeabili-
ty of the danger of aspiration in children.
In the real world of life as it is, the marshmallows in this
case were not a product in a defective condition and thereby
unreasonably dangerous to the user or consumer. If marshmallows
are unreasonably dangerous to eat without a warning, then so would
be nearly every conceivable food item that a two-and-one-half-year-
old child would try to eat; and I submit that children of that age
will try to eat anything and everything.
The possibility of a small child choking on nearly all food
items is, or should be, a matter of common knowledge to all adults.
The net result of the majority opinion may well be that
warnings must be placed on nearly every food item available to the
public if the provider is to avoid litigation for a claim of
products liability--an interesting challenge for the pro-viders of
edible items.
I understand the majority concern about the limits on summary
judgments and district judges granting summary judgments when
genuine issues of fact exist.
In this case as a matter of law, however, the essential
element of a products liability claim is missing--the marshmallow
was not in a defective condition and unreasonably dangerous.
Justice John C. Harrison:
I concur in the dissent of Chief Justice Turnage.
November 18, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Frank B. Morrison, Jr.
Morrison Law Offices, P.S.C.
745 S. Main
Kalispell, MT 59901
Leonard Kaufman
Murray, Kaufman, Vidal, Gordon & Ogle
P.O. Box 728
Kalispell, MT 59901
Sherman V. Lohn
Garlington, Lohn & Robinson
P.O. Box 7909
Missoula, MT 59807-7909
HQN JOHNANSON
Dept. #2
2 W. Broadway
,*gens, MT 5980i'
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA