NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARK COONROD, an individual, No. 23-35215
Plaintiff-Appellant, D.C. No. 3:18-cv-01530-AR
v. MEMORANDUM* COLUMBUS MCKINNON CORPORATION, a foreign business corporation,
Defendant-Appellee,
v.
KONECRANES, INC., a foreign business corporation,
Defendant-third-party- plaintiff-Appellee.
Appeal from the United States District Court for the District of Oregon Jeffrey Armistead, Magistrate Judge, Presiding
Argued and Submitted April 4, 2024 Portland, Oregon
Before: OWENS and FRIEDLAND, Circuit Judges, and RAYES,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appellant Mark Coonrod worked as a welder fitter for Pierce Pacific
Manufacturing (“Pierce”). His job required him to use a crane equipped with a
hoist and mounting hook to move heavy parts onto his workstation. Coonrod was
injured on July 13, 2016, after the hoist came loose from its mounting hook and
struck him on his head. Subsequent investigations determined that a factory-
approved screw used to secure the mounting hook to the body of the hoist had at an
unknown time been replaced with a non-conforming screw, which wiggled loose
because unlike the factory-approved screw, it was too long and lacked an adhesive
coating called Loctite that would have prevented it from backing out of its
retaining hole.
Appellee Columbus McKinnon Corporation (“CMC”) designed and
manufactured the hoist, and Appellee Konecranes Incorporated (“Konecranes”)
sold it to Pierce and performed repairs on it over a year before the accident.
Coonrod alleges that the hoist was defectively designed and unreasonably
dangerous, that CMC and Konecranes failed to adequately warn of the dangers of
replacing the factory-approved screw with a non-conforming screw, and that
Konecranes either installed the non-conforming screw when it repaired the hoist or
failed to adequately inspect the hoist and uncover the defect.
** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation.
2 The district court granted summary judgment in favor of CMC and
Konecranes. We have jurisdiction under 28 U.S.C. § 1291 and review de novo.
Nodine v. Shiley Inc., 240 F.3d 1149, 1152 (9th Cir. 2001). We affirm in part,
reverse in part, and remand for further proceedings.
I. Strict Products Liability
Oregon law imposes strict liability on a seller for injuries caused by its
product if that product is defective and unreasonably dangerous. Or. Rev. Stat.
§ 30.920(1). Dangerousness is assessed using a consumer-expectations test, under
which “the plaintiff must prove that, when the product left the defendant’s hands,
the product was defective and dangerous to an extent beyond that which the
ordinary consumer would have expected.” McCathern v. Toyota Motor Corp., 23
P.3d 320, 332 (Or. 2001).
Coonrod argues the hoist was defective and unreasonably dangerous because
it (1) was designed with inadequate safety redundancies, such as torque markers or
the use of three screws instead of one to affix the mounting hook to the hoist’s
body, and (2) lacked an adequate warning about the dangers of replacing the
factory-approved screw with a non-conforming screw.
If it is foreseeable that a consumer will modify a product in a dangerous way
and that modification causes a consumer’s injury, a manufacturer can be liable for
failing to adequately warn the consumer that the modification is dangerous and
3 failing to design the product to ameliorate that danger. E.g., Anderson v. Klix
Chem. Co., 472 P.2d 806, 811 (Or. 1970), abrogated on other grounds by Phillips
v. Kimwood Mach. Co., 525 P.2d 1033 (Or. 1974); 1 Torts (OSB) § 20.5-1(e)(3)
(Oregon State Bar 2012) (“Foreseeable misuse cannot be a defense if it was
preventable by design changes or better warnings or instructions.”).
Coonrod’s expert, Scott Buske, opined that it was foreseeable someone
servicing the hoist would replace the factory-approved screw with a non-
conforming screw that lacked Loctite coating because “[s]crews and bolts are
usually interchangeable.” Thus, viewing the facts in the light most favorable to
Coonrod, a jury could find that the modification here was foreseeable. McPherson
v. State ex rel. Dep’t of Corr., 152 P.3d 918, 924 (Or. Ct. App. 2007) (“Ordinarily,
foreseeability is a fact question for the jury.”).
If the modification was foreseeable, a jury could find that the hoist was
dangerously defective because it lacked adequate safety redundancies and lacked
an adequate warning. The safe operation of the hoist depended on one screw to
securely affix the mounting hook. Using a Loctite-coated screw of appropriate
length was critical to ensuring that this single screw remained secured. If it was
foreseeable that consumers would not use such a screw, a jury could find that the
hoist should have had other means of securing the mounting hook to the hoist. A
jury could also find the warning against using a non-conforming screw was
4 inadequate. The hoist’s operations manual advised in three different sections that
only factory-approved replacement parts should be used when servicing or
repairing the hoist. However, Buske opined that a generic warning—found only in
the operations manual—to use only factory-approved parts was insufficient, and a
more specific warning to use only a Loctite-coated screw should have been given.
Buske’s opinion creates a genuine and material factual dispute over the adequacy
of the warning. See Benjamin v. Wal-Mart Stores, Inc, 61 P.3d 257, 264–65 (Or.
Ct. App. 2002) (“A warning’s adequacy is a proper subject of expert testimony.”).
Viewing the facts in the light most favorable to Coonrod, a reasonable jury could
find it foreseeable that the generic warning to use only factory-approved
replacement parts did not adequately inform users of the dangers of using a
different screw. See id. at 264 (“[A] warning is adequate when it is ‘in such a
form that it could reasonably be expected to catch the attention of the reasonably
prudent [person] in the circumstances of its use’ and the content of the warning is
‘of such a nature as to be comprehensible to the average user and to convey a fair
indication of the nature and extent of the danger to the mind of a reasonably
prudent person.’” (emphasis omitted) (quoting Anderson, 472 P.2d at 810)).1
1 Seeborg v. General Motors Corp., 588 P.2d 1100 (Or.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARK COONROD, an individual, No. 23-35215
Plaintiff-Appellant, D.C. No. 3:18-cv-01530-AR
v. MEMORANDUM* COLUMBUS MCKINNON CORPORATION, a foreign business corporation,
Defendant-Appellee,
v.
KONECRANES, INC., a foreign business corporation,
Defendant-third-party- plaintiff-Appellee.
Appeal from the United States District Court for the District of Oregon Jeffrey Armistead, Magistrate Judge, Presiding
Argued and Submitted April 4, 2024 Portland, Oregon
Before: OWENS and FRIEDLAND, Circuit Judges, and RAYES,** District Judge.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appellant Mark Coonrod worked as a welder fitter for Pierce Pacific
Manufacturing (“Pierce”). His job required him to use a crane equipped with a
hoist and mounting hook to move heavy parts onto his workstation. Coonrod was
injured on July 13, 2016, after the hoist came loose from its mounting hook and
struck him on his head. Subsequent investigations determined that a factory-
approved screw used to secure the mounting hook to the body of the hoist had at an
unknown time been replaced with a non-conforming screw, which wiggled loose
because unlike the factory-approved screw, it was too long and lacked an adhesive
coating called Loctite that would have prevented it from backing out of its
retaining hole.
Appellee Columbus McKinnon Corporation (“CMC”) designed and
manufactured the hoist, and Appellee Konecranes Incorporated (“Konecranes”)
sold it to Pierce and performed repairs on it over a year before the accident.
Coonrod alleges that the hoist was defectively designed and unreasonably
dangerous, that CMC and Konecranes failed to adequately warn of the dangers of
replacing the factory-approved screw with a non-conforming screw, and that
Konecranes either installed the non-conforming screw when it repaired the hoist or
failed to adequately inspect the hoist and uncover the defect.
** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation.
2 The district court granted summary judgment in favor of CMC and
Konecranes. We have jurisdiction under 28 U.S.C. § 1291 and review de novo.
Nodine v. Shiley Inc., 240 F.3d 1149, 1152 (9th Cir. 2001). We affirm in part,
reverse in part, and remand for further proceedings.
I. Strict Products Liability
Oregon law imposes strict liability on a seller for injuries caused by its
product if that product is defective and unreasonably dangerous. Or. Rev. Stat.
§ 30.920(1). Dangerousness is assessed using a consumer-expectations test, under
which “the plaintiff must prove that, when the product left the defendant’s hands,
the product was defective and dangerous to an extent beyond that which the
ordinary consumer would have expected.” McCathern v. Toyota Motor Corp., 23
P.3d 320, 332 (Or. 2001).
Coonrod argues the hoist was defective and unreasonably dangerous because
it (1) was designed with inadequate safety redundancies, such as torque markers or
the use of three screws instead of one to affix the mounting hook to the hoist’s
body, and (2) lacked an adequate warning about the dangers of replacing the
factory-approved screw with a non-conforming screw.
If it is foreseeable that a consumer will modify a product in a dangerous way
and that modification causes a consumer’s injury, a manufacturer can be liable for
failing to adequately warn the consumer that the modification is dangerous and
3 failing to design the product to ameliorate that danger. E.g., Anderson v. Klix
Chem. Co., 472 P.2d 806, 811 (Or. 1970), abrogated on other grounds by Phillips
v. Kimwood Mach. Co., 525 P.2d 1033 (Or. 1974); 1 Torts (OSB) § 20.5-1(e)(3)
(Oregon State Bar 2012) (“Foreseeable misuse cannot be a defense if it was
preventable by design changes or better warnings or instructions.”).
Coonrod’s expert, Scott Buske, opined that it was foreseeable someone
servicing the hoist would replace the factory-approved screw with a non-
conforming screw that lacked Loctite coating because “[s]crews and bolts are
usually interchangeable.” Thus, viewing the facts in the light most favorable to
Coonrod, a jury could find that the modification here was foreseeable. McPherson
v. State ex rel. Dep’t of Corr., 152 P.3d 918, 924 (Or. Ct. App. 2007) (“Ordinarily,
foreseeability is a fact question for the jury.”).
If the modification was foreseeable, a jury could find that the hoist was
dangerously defective because it lacked adequate safety redundancies and lacked
an adequate warning. The safe operation of the hoist depended on one screw to
securely affix the mounting hook. Using a Loctite-coated screw of appropriate
length was critical to ensuring that this single screw remained secured. If it was
foreseeable that consumers would not use such a screw, a jury could find that the
hoist should have had other means of securing the mounting hook to the hoist. A
jury could also find the warning against using a non-conforming screw was
4 inadequate. The hoist’s operations manual advised in three different sections that
only factory-approved replacement parts should be used when servicing or
repairing the hoist. However, Buske opined that a generic warning—found only in
the operations manual—to use only factory-approved parts was insufficient, and a
more specific warning to use only a Loctite-coated screw should have been given.
Buske’s opinion creates a genuine and material factual dispute over the adequacy
of the warning. See Benjamin v. Wal-Mart Stores, Inc, 61 P.3d 257, 264–65 (Or.
Ct. App. 2002) (“A warning’s adequacy is a proper subject of expert testimony.”).
Viewing the facts in the light most favorable to Coonrod, a reasonable jury could
find it foreseeable that the generic warning to use only factory-approved
replacement parts did not adequately inform users of the dangers of using a
different screw. See id. at 264 (“[A] warning is adequate when it is ‘in such a
form that it could reasonably be expected to catch the attention of the reasonably
prudent [person] in the circumstances of its use’ and the content of the warning is
‘of such a nature as to be comprehensible to the average user and to convey a fair
indication of the nature and extent of the danger to the mind of a reasonably
prudent person.’” (emphasis omitted) (quoting Anderson, 472 P.2d at 810)).1
1 Seeborg v. General Motors Corp., 588 P.2d 1100 (Or. 1978), is distinguishable because the manufacturer there had warned the consumer against inserting a stronger fuse, and that warning was “adequate to keep the original defect in the wiring from being dangerously defective because of the possibility of
5 CMC and Konecranes argue that even if Coonrod can establish a prima facie
case, we should affirm based on their statutory affirmative defense. See Travelers
Prop. Cas. Co. of Am. v. ConocoPhillips Co., 546 F.3d 1142, 1145 (9th Cir. 2008)
(“We may affirm for any reason supported by the record.”). We disagree. Oregon
law affords a seller a complete defense if a post-sale modification (1) “was made
without the consent of or was made not in accordance with the instructions or
specifications of the manufacturer, distributor, [or] seller”; (2) “was a substantial
contributing factor to the personal injury”; and (3) “[i]f the alteration or
modification was reasonably foreseeable, the manufacturer, distributor, seller or
lessor gave adequate warning.” Or. Rev. Stat. § 30.915. Buske’s opinion creates a
genuine and material factual dispute on the third element, specifically over the
foreseeability of someone replacing the factory-approved screw with a non-
conforming screw and the adequacy of the warning given. See Lavoie v. Power
Auto, Inc., 312 P.3d 601, 607–08 (Or. Ct. App. 2013) (denying summary judgment
based on a statutory modification affirmative defense where jurors could
reasonably find that the seller failed to adequately warn of the danger of a
foreseeable modification).
the insertion of a stronger fuse,” see id. at 1105. Here, there is a genuine dispute of fact as to whether the warning was adequate.
6 II. Negligence
Under Oregon law, “[a] product liability civil action ‘embraces all theories a
plaintiff can claim in an action based on a product defect,’ including . . . negligence
[and] strict liability[.]” Simonsen v. Ford Motor Co., 102 P.3d 710, 714–15 (Or.
Ct. App. 2004) (citations omitted). To prevail on a negligence claim, a plaintiff
must prove:
(1) that defendant’s conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that defendant’s conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiff’s harm, and (5) that plaintiff was within the class of persons and plaintiff’s injury was within the general type of potential incidents and injuries that made defendant’s conduct negligent.
Stewart v. Kids Inc. of Dallas, OR, 261 P.3d 1272, 1277 (Or. Ct. App. 2011)
(citation omitted). “When a defendant’s negligence is a factual cause of harm to
the plaintiff, the defendant is subject to liability to the plaintiff as long as the harm
that the plaintiff suffered was a reasonably foreseeable result of the defendant’s
negligence.” Lasley v. Combined Transp., Inc., 261 P.3d 1215, 1219 (Or. 2011).
Generally, “the application of either the theory of strict liability or of negligence
seldom leads to different conclusions.” Roach v. Kononen, 525 P.2d 125, 129 (Or.
1974).
That general trend holds true here. Coonrod asserts negligence claims
against CMC and Konecranes based on substantially the same allegations that
7 underpin his strict products liability claims. We hold the district court erred in
granting summary judgment on those negligence claims because Buske’s expert
opinion creates a genuine and material factual dispute over the foreseeability of the
modification and reasonableness of the warning to use only factory-approved
replacement parts.
Separately, Coonrod alleges that Konecranes acted negligently by either (1)
installing the non-conforming screw or (2) failing to conduct an adequate
inspection of the hoist, which Coonrod believes would have led to the discovery of
the non-conforming screw. The district court properly granted summary judgment
on this aspect of Coonrod’s negligence claim against Konecranes. There is no
record evidence that Konecranes installed the non-conforming screw, or indicating
when or how the factory-approved screw was replaced with the non-conforming
screw. The evidence shows that in December 2014, Pierce sent the hoist to
Konecranes for repairs, none of which involved the mounting hook suspension.
Konecranes completed the repairs in early 2015 and included in the invoice a
detailed list of the repairs and parts used. The subject screw was not among them.
To find Konecranes liable, a jury would have to speculate either that Konecranes
installed the non-conforming screw, or that the non-conforming screw had been
installed before Konecranes serviced the hoist in early 2015, and not sometime
8 after Konecranes returned it to Pierce. Coonrod cannot defeat a summary
judgment motion with mere speculation.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED for
further proceedings.