Montemayor v. Sebright Products, Inc.

898 N.W.2d 623, 2017 WL 2961118, 2017 Minn. LEXIS 415

• Court: Supreme Court of Minnesota
• Decided: July 12, 2017
• Docket: A15-1188
• Status: Published

Opinions

OPINION

MCKEIG, Justice.

In this case, two long-established rules come together. First, in a negligence case, when the issue of reasonable foreseeability of the injury is close, it should be decided by the jury. Second, on a motion for summary judgment, all facts and the inferences arising from them must be considered in the light most favorable to the non-moving party.

Here, appellant Nereus Montemayor was injured as he attempted to manually clear a jam from an extruder manufactured by respondent Sebright Products, Inc., while his co-worker simultaneously operated the extruder. Montemayor brought a products liability action against Sebright, alleging failure-to-warn and design-defect claims. The district court granted summary judgment to Sebright, concluding that Sebright did not owe a duty of care to Montemayor because Montemayor’s injury was not reasonably foreseeable. Montemayor appealed, and the court of appeals affirmed. We conclude that, viewing the evidence and the inferences arising from it in the light most favorable to Montemayor, reasonable persons might differ as to the foreseeability of Montemayor’s injury. Accordingly, this is a “close case” in which foreseeability must be resolved by the jury. We therefore reverse and remand.

FACTS

In August 2011, Montemayor was hired as a laborer for VZ Hogs, a family-owned company near Claremont that raises hogs and produces hog feed. To make hog feed, VZ Hogs processes discarded food using a high-density extruder manufactured by Se-bright. Food containers are placed into the extruder’s hopper chute. The extruder crushes the containers using a hydraulic ram. Liquids are then siphoned into large storage tanks, while empty containers are pushed into a discharge-chute area. A hydraulically powered press or “plenum” compresses the empty containers before they are forced through the discharge chute and into a separate compactor machine.

Sebright shipped the extruder to VZ Hogs in 2008 with the control panel attached to the machine. The design of Se-bright’s extruder enabled users to relocate the control panel to a remote operating location; however, Sebright did not advise users regarding the safe relocation of the control panel. The extruder’s control panel is equipped with a locking selector switch, requiring a key to operate the extruder. The extruder manual states that only authorized personnel should have access to the key, and the extruder should be locked to “off’ when not in use.

The manual instructs only “thoroughly trained personnel” to operate the extruder and cautions users to ensure that no one is inside the extruder before operating it. The manual also provides instructions on clearing jams that may occur inside the extruder. It suggests that users place pieces of timber inside the extruder’s hopper, and then use the control panel to run the machine in manual mode.

Finally, both the manual and warning labels on the extruder warn users to employ “lockout/tagout” procedures before entering the extruder. Occupational safety regulations require employers to establish and implement lockout/tagout procedures to ensure that workers disable all sources of energy before entering a machine. Typically, employers place lock boxes on the power outlets, and provide workers with their own padlock and key. Workers who need to enter a machine are instructed to disable the power at the source, and then place their padlock on the lock box so that no one can restore the power until the worker removes his lock. Warning labels above the extruder’s discharge chute read “Follow Lockout/Tagout Procedures Before Entering,” and “Danger: Do Not Enter.”

On September 8, 2011, approximately one month after Montemayor started working for VZ Hogs, the extruder stopped functioning and appeared to be jammed with materials. Employees tried to clear the jam by pulling materials out with a pitchfork, but they were unsuccessful. The next morning, supervisor Ryan Cowell instructed Montemayor and his coworker Anthony Burmea to clear the jam. According to Burmea, Cowell told him and Montemayor to “just clean it out” or “just unjam it” without further instruction. Co-well later told another VZ Hogs employee, Brian Gray, to try to clear the jam.

Although VZ Hogs had a safety manual and held periodic safety trainings, Monte-mayor had not received training on lockout/tagout procedures or on clearing jams within the extruder. Montemayor also had not read‘the extruder manual. Cowell testified that he would typically put the key to the locking selector switch in his pocket to disable the power to the extruder while workers performed maintenance on it; however, the key was broken off inside the keyhole, locking the extruder in the “on” position.

Montemayor and Burmea climbed into the compactor next to the extruder’s discharge chute and attempted to clear the jam. They continued to clear materials from the discharge chute using a pitchfork. Once the materials were too far inside the discharge chute to reach them with the pitchfork, they took turns crawling inside the chute on their stomachs and pulling materials out by hand. Neither Montema-yor nor Burmea saw the warning labels above the discharge chute or disabled the power to the extruder.

While Montemayor was inside the discharge chute, Gray went to the extruder’s control panel to try to clear the jam mechanically. VZ Hogs had relocated the control panel from the extruder to an elevated room with a view over the top of the extruder. From that position, Gray could see Burmea standing in the compactor next to the discharge chute, but could not see Montemayor inside the discharge chute. Gray ran the extruder in manual mode, and the plenum located inside the discharge chute crushed Montemayor’s legs.

As a result of the ' accident, both of Montemayor’s legs had to be amputated above the knee. Minnesota’s Occupational Safety and Health Division penalized VZ Hogs more than $18,000 for violating regulations by failing to train employees on basic safety precautions, including lockout/tagout procedures, and for allowing a machine to be started with someone inside.

Montemayor brought a products liability action against Sebright, alleging that (1) Sebright’s extruder design was defective because it allowed for the relocation of the control panel without proper visibility of the discharge chute and did not include an alarm and delay .upon startup; and (2) Sebright failed to adequately warn of the dangers that led to Montemayor’s injury. Sebright brought indemnity and contribution claims against VZ Hogs.

After discovery, Sebright filed a motion for summary judgment arguing, among other things, that it did not owe a duty of care to Montemayor because his injury was not reasonably foreseeable. The parties submitted as exhibits to their attorneys’ affidavits the unnotarized reports of three experts: Lanny Berke, for Montema-yor; Michael Holmquist, for Sebright; and Dennis Skogen, for Sebright. Neither party objected to the introduction of these reports.¹

All three experts recognized that VZ Hogs’ negligence in failing to train and supervise its employees contributed to Montemayor’s injury. Berke and Holm-quist' also agreed that Sebright foresaw the possibility ■ of a worker entering the extruder to perform maintenance. The experts disputed whether Sebright should reasonably have foreseen Montemayor’s injury.

Berke opined that it was reasonably foreseeable that a worker might not disable the power to the extruder before performing maintenance. He noted that Se-bright’s own warnings instructed users to perform lockout/tagout procedures before entering the extruder. Further, Berke concluded that Sebright’s negligence made Montemayor’s accident more likely. According to Berke, Sebright failed to (1) instruct users on an adequate method of unjamming the extruder, as the “timbers” method in the manual was insufficient; (2) make the manual readily available to users; (3) provide instructions on the safe relocation of the control panel; (4) perform a proper hazard analysis, including documenting customer feedback; and (5) comply with relevant industry standards for warnings and safety features, such as alarms, set by the American National Standards Institute. Berke stated that a proper hazard analysis would have enabled Sebright to discover the risks of an untrained worker entering the extruder without performing lockout/tagout procedures, an employer positioning the control panel without proper visibility of the discharge chute, and a worker operating the extruder without knowing whether someone was inside it.

Holmquist and Skogen contested each of Berke’s conclusions regarding Sebright’s alleged negligence. They opined that it was- not reasonably foreseeable that Montemayor would crawl inside the compactor and then the extruder without first disabling the power, in violation of safety regulations as well as Sebright’s warnings. According to Holmquist and Skogen, Se-bright’s lockout/tagout warnings established that Sebright performed a thorough hazard analysis, discovered the risk of a worker entering the extruder with the power connected, and took adequate measures to protect against this risk. They further concluded that Sebright’s design and warnings satisfied relevant industry standards.

The district court granted Se-bright’s motion for summary judgment, concluding—without mentioning the expert reports;—that Sebright did not owe a duty of care to Montemayor. Although the court found that it was reasonably foreseeable that a person may physically enter the extruder or activate it from the control panel to clear a jam, it found that it was not reasonably foreseeable that two people would attempt these two methods simultaneously. The court of appeals affirmed. Montemayor v. Sebright Prods., Inc., No. A15-1188, 2016 WL 1175089, at *4 (Minn. App. Mar. 28, 2016). We granted Monte-mayor’s petition for review on the issue of foreseeability.²

ANALYSIS

We review the grant of summary judgment de novo to determine “whether there are genuine issues of material fact and whether the district court erred in its application of the law.” Stringer v. Minn. Vikings Football Club, LLC, 705 N.W.2d 746, 754 (Minn. 2005); see also Minn. R. Civ. P. 56.03. In doing so, we must not “weigh facts or determine the credibility of affidavits and other evidence.” Stringer, 705 N.W.2d at 754. “[S]ummary judgment is a blunt instrument” that is “inappropriate when reasonable persons might draw different conclusions from the evidence presented.” Osborne v. Twin Town Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 2008) (citations and internal quotation marks omitted). Thus, the moving party has “the burden of showing an absence of factual issues,” and “the nonmoving party has the benefit of that view of the evidence most favorable to him.” Lowry Hill Props., Inc. v. Ashbach Constr. Co., 291 Minn. 429, 194 N.W.2d 767, 769 (1971). “All doubts and factual inferences must be resolved against the moving party.” Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981). “Expert testimony ... at the summary judgment stage may create genuine issues of fact.” Anderson v. Dep’t of Nat. Res., 693 N.W.2d 181, 191 (Minn. 2005).

I.

Failure-to-wam and design-defect claims are separate causes of action, but each requires the manufacturer to owe a duty of care to the injured party. Huber v. Niagara Mach. & Tool Works, 430 N.W.2d 465, 467 (Minn. 1988) (failure to warn); Bilotta v. Kelley Co., 346 N.W.2d 616, 624 (Minn. 1984) (design defect); see also Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn. 2011) (describing the issue of duty as a “threshold question” to be determined before liability is considered). A manufacturer has a duty to design its product to avoid an unreasonable risk of harm when the product is used as intended or misused in a reasonably foreseeable manner. Bilotta, 346 N.W.2d at 621. Further, a manufacturer has a duty to warn if it “should anticipate that an unwarned operator might use the machine in a particular manner so as to increase the risk of injury and the manufacturer has no reason to believe that users will comprehend that risk.” Germann v. F.L. Smithe Mach. Co., 395 N.W.2d 922, 925 (Minn. 1986).

For both design-defect and failure-to-warn claims, a manufacturer’s duty “arises from the probability or foreseeability of injury to the plaintiff.” Domagala, 805 N.W.2d at 26 (failure to warn); see also Whiteford ex. rel. Whiteford v. Yamaha Motor Corp., U.S.A., 582 N.W.2d 916, 918 (Minn. 1998) (design defect). Although duty is generally a legal question for the court to decide, Germann, 395 N.W.2d at 924, it is well established that foreseeability is a question for the jury “if there is a specific factual dispute concerning a manufacturer’s awareness of a risk,” Huber, 430 N.W.2d at 467; see also Ill. Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 636 (Minn. 1978) (“[W]here there is a genuine issue as to the existence of special circumstances [indicating foreseeability of the injury], summary judgment for the defendant is inappropriate.”). Further, “[w]hen the issue of foreseeability is clear, the courts, as a matter of law, should decide it,” but “[ijn close cases, the question of foreseeability is for the jury.” Whiteford, 582 N.W.2d at 918; see also Domagala, 805 N.W.2d at 27 n.3; Bjerke v. Johnson, 742 N.W.2d 660, 667-68 (Minn. 2007); Lundgren v. Fultz, 354 N.W.2d 25, 28 (Minn. 1984).³

To determine foreseeability, “we look to the defendant’s conduct and ask whether it was objectively reasonable to expect the specific danger causing the plaintiffs injury.” Domagala, 805 N.W.2d at 27. “If the connection between the danger and the alleged negligent act ‘is too remote to impose liability as a matter of public policy, the courts then hold there is no duty.’” Id. (quoting Germann, 395 N.W.2d at 924). We do not look to “the precise nature and manner” of the injury, but rather to “whether ‘the possibility of an accident was clear to the person of ordinary prudence.’ ” Id. (quoting Connolly v. Nicollet Hotel, 254 Minn. 373, 95 N.W.2d 657, 664 (1959)).

We have held as a matter of law that an injury is not reasonably foreseeable when the “undisputed facts, considered together,” established that the connection between the defendant’s conduct and the plaintiffs injury was “too attenuated.” Doe 169 v. Brandon, 845 N.W.2d 174, 179 (Minn. 2014) (holding as a matter of law that a church’s district council owed no duty to protect a plaintiff from a church volunteer’s sexual abuse when the council was not responsible for employing or supervising the volunteer); see also Huber, 430 N.W.2d at 466-67 (holding as a matter of law that a plaintiffs injury was not reasonably foreseeable. when it resulted from the disabling of a permanently affixed safety feature); Larson v. Larson, 373 N.W.2d 287, 288-89 (Minn. 1985) (holding that foreseeability “was clear and should have been decided by the court as a matter of law” when the only evidence of foreseeability was a vague comment by an intoxicated person 2 months before the injury).

But when “reasonable persons might differ as to whether the evidence” establishes that the injury was foreseeable, we have consistently submitted the issue to the jury. Ill. Farmers Ins. Co., 273 N.W.2d at 636-37 (holding that a fact issue precluded summary judgment when “reasonable persons might differ” as to the foreseeability of a car being stolen arid injuring another person); see also Bjerke, 742 N.W.2d at 668 (holding that a fact issue precluded summary judgment on the foreseeability of a sexual abuse when the evidence showed that the- defendant observed inappropriate behavior between the victim and assailant before the abuse).

In a case involving facts strikingly similar to those presented here, we upheld the district court’s decision to submit to the jury the question of whether it was reasonably foreseeable that a worker would un-dog a machine by hand with the power connected. Parks v. Allis-Chalmers Corp., 289 N.W.2d 456, 459 (Minn. 1979). In Parks, the manufacturer guarded the dangerous, mechanism with a dopr and warned against unclogging the machine with the power connected. Id. at 458. But there was evidence that'the manufacturer failed to install a safety mechanism that would have prevented a user from unclogging the machine with the power connected and did not provide a-safe method of unclogging the machine. Id. at 458-59. We concluded that, in light of this evidence, “[t]he jury could find that defendant knew, or in the exercise of reasonable care should have known, that some users would leave the power connected while unclogging.” Id. at 459.

Likewise, the United States Court of Appeals for the Eighth Circuit, applying Minnesota law, has upheld a jury verdict imposing liability on a manufacturer for injuries sustained after a worker reached inside a power-connected machine. Bursch v. Beardsley & Piper, 971 F.2d 108, 110-13 (8th Cir. 1992). The federal district court in Bursch submitted the case to the jury despite evidence that the employer failed to properly train and supervise the plaintiff. Id. at 112, The Eighth Circuit concluded that the manufacturer could reasonably foresee the employer’s failure to provide the.machine’s manual to employees and to maintain the machine properly, as well as a co-worker’s activation of the wrong switch that resulted in increased injury. Id. at 112-13.

Indeed, it is well established that manufacturers can be held liable despite intervening circumstances—such as an employer’s comparative negligence, a plaintiffs failure to heed warnings, and the disabling of safety devices—if such circumstances were also foreseeable. See id.; Germann, 395 N.W.2d at 925 (holding that the foreseeable removal of a detachable-safety device did not negate manufacturer liability); Parks, 289 N.W.2d at 458-59 (submitting foreseeability to the jury despite the plaintiff failing to heed the manufacturer’s warnings against unclogging a machine with the power connected). i

In Bilotta v. Kelley Co., we held that the district court was not required to provide a jury instruction on superseding causes, even though the employer’s violations of occupational safety regulations contributed to the injury, because inadequate safety training was reasonably foreseeable to the manufacturer. 346 N.W.2d at 625. We noted that the manufacturer’s quality control-manager wrote an article stating that high employee turnover made effective safety training difficult. Id. And we stated that, generally, employer violations of occupational safety regulations “cannot be considered superseding causes which relieve a manufacturer of its duty to produce a safe product” as a matter of law; rather, “they are adequately taken into consideration in the comparative-fault formula” after a trial. Id.; see also Johnson v. Niagara Mach. & Tool Works, 666 F.2d 1223, 1227 n.5 (8th Cir. 1981) (applying Minnesota law and concluding that the manufacturer’s 'expectation that the user will provide a protective appliance “is not sufficient to preclude liability in most circumstances”; rather, the issue “should be decided by a jury”),

When an employer’s violation of occupational safety regulations is not reasonably foreseeable to the manufacturer, however, we have held that the manufacturer is not responsible for ensuring that such regulations are followed. See Huber, 430 N.W.2d at 468 (holding that a component, manufacturer had no duty to ensure the proper use of safety mechanisms for which regulations assigned responsibility to the employer when noncompliance was nót reasonably foreseeable to the component manufacturer).⁴

II.

We now turn to the case at hand. Montemayor argues that this case presents a factual dispute regarding foreseeability and is a close case that the jury must decide. We agree.

Several undisputed circumstances establish that Sebright had, or should have had, some awareness of the'risk of Montema-yor’s injury. It is undisputed' that Sebright knew that workers sometimes entered the extruder to perform maintenance. Sebright also provided in its manual a method of unjamming, the-extruder that involved operating it from the control panel. These facts support.the district court’s findings that .it was reasonably foreseeable that a worker could enter the extruder to unclog the machine or attempt to unclog it using the control panel.

But in finding that it was unforeseeable that the two methods would be used simultaneously, the district court ignored an important undisputed fact: Sebright designed the extruder to allow for the relocation of the control panel and failed to provide any instruction on where it should be positioned so that operators could see dangerous parts of the extruder. Thus, viewing the evidence and the inferences arising therefrom in the light most favorable to Montemayor, a reasonable person could find that Sebright should, have foreseen the possibility of a worker- operating the extruder from the control panel without the ability to observe another worker performing maintenance inside the machine.

Sebright argues that VZ Hogs’ negligence—including its failure to comply with occupational safety regulations requiring the use of lockout/tagout procedures and to maintain the extruder’s locking selector switch—supersedes any manufacturer liability. But VZ Hogs’ comparative negligence does not automatically foreclose Sebright’s potential liability for defective design and warnings. Rather, if reasonable minds could disagree as to whether VZ Hogs’ negligence was reasonably foreseeable to Sebright, summary judgment must be denied. See Bilotta, 346 N.W.2d at 625 (“A defendant is liable, despite an intervening cause, if the cause is foreseeable.”).

Here, there is evidence that Sebright recognized and warned against the dangers of failing to use lockout/tagout procedures before entering the extruder. Se-bright’s own expert, Skogen, stated that “Sebright did identify the potential hazards of servicing and maintaining the machine without proper lockout and tagout procedures” and “warned against doing so.” And Sebright’s general manager of marketing, Stuart Sebright, testified that Sebright incorporated the lockout/tagout warnings to comply with new industry standards, which are aimed at addressing “hazard[s].”

Further, as in Bilotta, the evidence shows a factual dispute regarding the foreseeability of a user failing to comply with occupational safety regulations requiring the use of lockout/tagout procedures. Montemayor’s expert, Berke, concluded—based on a review of the extruder, relevant documentation, and depositions, as well as his experience as a professional engineer—that Sebright should have foreseen the possibility of employees failing to perform lockout/tagout procedures.⁵ He found that Sebright did not perform an adequate hazard analysis, which would have uncovered the risk of an untrained employee failing to perform lockout/tagout procedures before entering the extruder. Berke supported this conclusion by noting that Sebright did not document customer feedback as most responsible manufacturers do. Finally, Berke concluded that Sebright increased the risk of injury by failing to comply with relevant industry standards, including those calling for startup alarms when there is limited visibility of dangerous areas.

Holmquist and Skogen, also qualified experts who performed an extensive review of the relevant evidence, disagreed. They concluded that Sebright could not have foreseen that someone would ignore its lockout/tagout warnings, and that Sebright performed an adequate hazard analysis and complied with relevant industry standards.

As to the locking selector switch, it is unclear at this stage of the litigation whether VZ Hogs’ disabling of this safety feature was a causal factor in Montema-yor’s accident. Cowell, the supervisor who typically held the key to the locking selector switch, personally directed Gray to attempt to fix the extruder after Montema-yor began unclogging the extruder by hand, without first instructing Montema-yor to cease his efforts. Although Cowell stated that he would have retained the key to the extruder to prevent it from being operated during maintenance, a reasonable person could find that Cowell would have given the key to Gray so that Gray could attempt to fix the extruder as requested.

Moreover, neither the locking selector switch nor the lockout/tagout procedures are automatic safeguards. Both rely on operators to remove and reattach components to ensure the safe maintenance of the extruder. We have held that it is foreseeable that a user may fail to engage safety features that require the periodic attachment and detachment of the feature. Germann, 895 N.W.2d at 925.

Viewing all of the evidence and the inferences arising from it in the light most favorable to Montemayor, there is “a specific factual dispute concerning [Sebright’s] awareness of [the] risk” of Montemayor’s injury. Huber, 430 N.W.2d at 467. Even if there was not an explicit factual dispute in the record, “reasonable persons might differ” as to the foreseeability of Montema-yor’s injury under the circumstances. See Ill. Farmers Ins. Co., 273 N.W.2d at 637. Accordingly, this is a “close case” that must be resolved by the jury, not the court.

Our holding does not create “bad law” as the dissent argues. Indeed, this result is consistent with our longstanding precedent, discussed above. Moreover, a jury may ultimately find that Montemayor’s injury was not reasonably foreseeable, that Sebright was not negligent, or that others were. And manufacturers may still avoid the burden of going to trial when the evidence does not present a factual dispute or a “close case” for the factfinder to resolve. But this is a close case. Were we to end it, we would have to “weigh facts or determine the credibility of affidavits and other evidence.” Stringer, 705 N.W.2d at 754. That role is properly reserved for the jury.

CONCLUSION

For the foregoing reasons, we grant Se-bright’s motion to strike, reverse the decision of the court of appeals, and remand to that court to consider the remaining issues on appeal.

Reversed and remanded; motion to strike granted.

Dissenting, Gildea, C.J., Anderson, Stras, JJ.

1 . Indeed, Sebright initiated the introduction of the expert reports when it attached the report of Lanny Berke, Montemayor's expert, in support of its motion for summary judgment. Sebright also discussed Berke’s report during the summary judgment hearing.

2 . The district court held, in the alternative, that (1) Montemayor’s failure-to-warn claim failed on the merits because Montemayor did not read the warnings Sebright provided, and (2) Montemayor’s design-defect claim relating to the control panel failed on the merits because VZ Hogs altered the control panel after it left Sebright’s control. These issues were raised and argued to the court of appeals, but the court did not address them. See Montemayor, 2016 WL 1175089, at *4 n.3. Montema-yor’s petition for review raised only the issue of foreseeability, and Sebright did not file a petition for conditional cross-review. See Minn. R. Civ. App. P. 117, subd. 4. Montemayor nonetheless included arguments on the district court’s alternative grounds in his brief to our court. Sebright moved to strike these additional arguments as beyond the scope of the appeal.

Generally, we "will not address issues that were not specifically raised in the petition for review.” Tatro v. Univ. of Minn., 816 N.W.2d 509, 515 (Minn. 2012). Although we retain the discretion to consider issues not raised in the petition in certain circumstances, id., we decline to do so here. We therefore grant Se-bright's motion to strike, and remand this case to the court of appeals for consideration of the parties' arguments regarding the district court’s alternative holdings.

3 . We agree with the dissent that the "close cases” standard does not change our summary judgment standard for questions of foreseeability. It merely reinforces the notion that, in determining whether a dispute of material fact exists, all inferences arising from the evidence must be resolved in favor of the nonmoving party. Nord, 305 N.W.2d at 339. In other words, a case is "close” not only when the evidence presents an explicit dispute of material fact, but also when "reasonable persons might draw different conclusions from the evidence.” Osborne, 749 N.W.2d at 371 (citation omitted).

4 . The dissent characterizes Huber as our "leading case” on the foreseeability of an employer’s failure to adhere to occupational safety regulations. But Huber is not directly on point because it addressed the liability of a component manufacturer, Generally, a component manufacturer is liable only for harm caused by the defective component itself. See Restatement (Third) of Torts: Prod. Liab. § 5 (Am. Law Inst. 1998). Thus, we were careful to limit our holding in Huber to component manufacturers, stating that "[t]his reasoning does not conflict with our prior decisions establishing that the manufacturer of a finished product has a duty to warn ultimate users of dangers presented by its product and this duty may not be delegated to ah intermediary.” 430 N.W.2d at 468 n.2 (emphasis added).

5 . Although neither parly questions the validity of the expert reports in this case, the dissent challenges our discussion of them here. Both parties submitted unnotarized expert reports as exhibits on summary judgment, certified as genuine by attorney affidavits, and neither party objected to the district court’s consideration of the reports. We are not the district court, and it is not for us to make evidentiary rulings on appeal. See Minn. R. Civ. App. P. 110.01 ("The documents filed in the trial court ... shall constitute the record on appeal in all cases.” (emphasis added)); Anderson v. Twin City Rapid Transit Co., 250 Minn. 167, 84 N.W.2d 593, 604 (1957) (considering affidavits submitted on summary judgment despite a hearsay objection on appeal because the affidavits "became a part of the record free from motion to strike by either party”).

The fact that the district court did not mention the dueling expert reports does not require us to ignore them. Rather, it raises a red flag that the district court may have overlooked, if not ignored, evidence of a factual dispute (and a close case) when it granted summary judgment to Sebright. The expert reports reflect the opinions of qualified experts who conducted an extensive review of the evidence in this case. See Gianotti v. Indep. Sch. Dist. 152, 889 N.W.2d 796, 802 (Minn. 2017) (holding that an expert opinion rests on adequate foundation if the expert was provided "enough facts to form a reasonable opinion that is not based on speculation or conjecture”). It is not for us to weigh the persuasiveness of this evidence against other evidence in the record.