           United States Court of Appeals
                       FOR THE EIGHTH CIRCUIT
                                ____________

                                 No. 96-2205
                                ____________

Dr. William C. Gremmels;             *
Sandra K. Gremmels,                  *
                                     *
                 Appellants,         *
                                     *
     v.                              *
                                     *
Tandy Corporation, a Texas           *
Corporation, doing business          *
as Radio Shack of Iowa,              *
                                     * Appeal from the United States
                 Appellee.           * District Court for the
                                     * Southern District of Iowa
Wallace Leisure Products, a          *
Pennsylvania Corporation;            *
Armet S.N.C. Di Ferronato            *
Giovanni & Company,a foreign         *
corporation,                           *
                                     *
                 Defendants.         *

                                ____________

                   Submitted:    December 11, 1996

                               Filed: July 10, 1997
                                ____________

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.
                              ____________
McMILLIAN, Circuit Judge.


     William C. Gremmels and his wife Sandra K. Gremmels
(together "appellants") appeal from a final order entered
in the United States District Court1 for the Southern
District of Iowa granting summary judgment in favor of
defendant Tandy Corporation (Tandy) and dismissing their
complaint against Tandy.      Gremmels v. Tandy Corp.,
No. 3:93-CV-30121, slip op. at 15 (S.D. Iowa 1995). For
reversal, appellants argue the district court misapplied
the Iowa negligence law of premises liability. For the
reasons discussed below, we affirm the judgment of the
district court.

                        BACKGROUND
     The following facts are undisputed and are based upon
a stipulation of facts filed by the parties in the
district court. On September 20, 1991, William Gremmels
was shopping in Tandy's Radio Shack store in Muscatine,
Iowa. He fell and injured himself when a chair provided
to him by a Radio Shack salesperson collapsed as he was
watching a computer demonstration. On prior occasions
the backrest panel and one of the casters on the leg of
the chair had become loose or fallen off and had to be
repaired by store employees. Neither the backrest panel
nor the caster on the chair leg was loose on the day of
the accident. A metallurgy expert hired by appellants
testified that the chair collapsed because of a
defectively manufactured weld junction at the base of the


      1
       The Honorable Ross A. Walters, United States Magistrate Judge for the
Southern District of Iowa. This case was tried by a magistrate judge pursuant to the
consent of the parties under 28 U.S.C. § 636(c).

                                        -2-
chair, and that it would have been impossible for the
store employees to determine that the weld was defective
prior to the time that the weld failed.       Appellants'
expert hypothesized that the repair of the loose caster
could have exacerbated the weld defect. Appellants sued
Tandy for negligence on the theory of premises liability.
Appellants also sued the manufacturer and the distributor
of the chair alleging both negligence and




                           -3-
strict liability theories against each. Additionally,
Sandra Gremmels asserted a claim for loss of spousal
consortium.

     The distributor filed a motion for summary judgment
on September 17, 1993.    The district court denied the
motion on October 27, 1993.         Both Tandy and the
distributor filed cross-claims against the manufacturer
of the chair. A default judgment was entered on July 26,
1995, against the manufacturer and in favor of Tandy on
its cross-claim.    On August 8, 1995, the distributor
renewed its motion for summary judgment. On September 1,
1995, Tandy filed a motion for summary judgment seeking
dismissal of appellants' claims. On November 9, 1995,
the district court granted both Tandy's and the
distributor's motions for summary judgment. The district
court expressly rejected appellants' theory that the
repair of the caster could have exacerbated the weld
defect.   Id. at 15, (stating that the basis for the
expert's hypothesis is purely speculative). The district
court further reasoned that Tandy had no knowledge, nor
was there a reasonable possibility that Tandy would have
discovered the weld defect that caused the accident. Id.
Therefore, the district court held that there was no
genuine issue of material fact remaining for trial with
respect to appellants' claims against the distributor and
Tandy and granted summary judgment in favor of Tandy and
the distributor. Id. Appellants filed a motion to amend
the judgment on November 17, 1995. On April 1, 1996, the
district court denied appellants' motion to amend the
judgment and ordered the claims against the manufacturer
dismissed unless requests for default judgment were
entered before April 15, 1996.      Default judgment was

                           -4-
entered on April 15, 1996, against the manufacturer and
in favor of appellants. The cross-claims of Tandy and
the distributor against the manufacturer were dismissed
without prejudice after summary judgment was granted for
both Tandy and the distributor. Id. at 18. Appellants
now appeal the grant of summary judgment in favor of
Tandy.




                           -5-
                       DISCUSSION

    We review the district court's grant of summary
judgment de novo.    Marshall v. UNUM Life Ins. Co., 13
F.3d 282, 283 (8th Cir. 1994) (citing Richmond v. Board
of Regents, 957 F.2d 595, 597 (8th Cir. 1992)). "Summary
judgment is appropriate if the record, when viewed in
[the] light most favorable to the non-moving party, shows
no genuine issue of material fact exists, and the moving
party is entitled to judgment as a matter of law." Id.
When the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no "genuine issue for trial" and summary
judgment is appropriate. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (Matsushita)
(citations omitted). The moving party has the burden of
asserting that there is a lack of a proof concerning an
essential element of the non-moving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The non-moving party then has the burden of proving
"specific facts showing that there is a genuine issue for
trial." Matsushita, 475 U.S. at 586-87. Upon motion for
summary judgment, the district court's function is
neither to weigh the evidence nor make credibility
determinations, but to determine if there is a genuine
issue for trial. Grossman v. Dillard Dep’t Stores, Inc.,
47 F.3d 969, 971 (8th Cir. 1995).

    Appellants concede that the defective weld caused the
accident and that Tandy could not have known of or
discovered the defective weld before the accident.
However, appellants argue that the "dangerous condition"
from which Tandy had a duty to protect their customers

                           -6-
was the condition of the entire chair rather than the
defective weld on the chair. Appellants further argue
that the store employees had constructive knowledge of
the problems with the caster and the backrest of the
chair and the risk of possible injury posed by the chair.
Under appellants' theory of liability, the store
employees had a duty either to warn William Gremmels of
the dangerous conditions of the backrest and the caster,
or to provide him with a different chair.       In either
case, appellants argue that William Gremmels would not
have sat in the defective chair.




                           -7-
    The elements of a negligence claim under Iowa law
are: the existence of a duty to conform to a standard of
conduct to protect others; failure to conform to that
standard; proximate cause; and damages.        Hartig v.
Francois, 562 N.W.2d 427, 429 (Iowa 1997) (citing Marcus
v. Young, 538 N.W.2d 285, 288 (Iowa 1995), and W. Page
Keeton et al., Prosser and Keeton on the Law of Torts §
30 (5th ed. 1984)). "Whether a duty arises out of the
parties' relationship is always a matter of law for the
court." Shaw v. Soo Line R.R., 463 N.W.2d 51, 53 (Iowa
1990) (citations omitted).        "Under Iowa premises
liability law, the scope of the duty of care that a
possessor of land owes to an entrant is based on the
entrant's legal status as either a trespasser, licensee,
or invitee." Wieseler v. Sisters of Mercy Health Corp.,
540 N.W.2d 445, 449 (Iowa 1995) (citations omitted).
William Gremmels was a business invitee to the Radio
Shack store.   The Iowa Supreme Court has approved and
adopted § 343 of the Restatement (Second) of Torts (1965)
(the Restatement), which sets forth the standard for
determining whether a duty is owed to a business invitee.
See Hanson v. Town & Country Shopping Ctr., Inc., 144
N.W.2d 870, 873 (Iowa 1966).      The Restatement § 343
states, in relevant part:

        A possessor of land is subject to liability
    for physical harm caused to his [or her]
    invitees by a condition on the land if, but only
    if, he [or she]

        (a) knows or by the exercise of reasonable
    care would discover the condition, and should
    realize that it involves an unreasonable risk of
    harm to such invitees, and


                           -8-
    (b)    should expect that they will not
discover or realize the danger, or will fail to
protect themselves against it, and

    (c)   fails to exercise reasonable care to
protect them against the danger.




                      -9-
The business owner is not subject to liability on a claim
of negligence if the owner and its agents did not know,
or could not have known, by exercise of reasonable care,
of the condition that caused the harm.       Id.   In the
present case, the harm was the injury sustained as a
result of collapse of the chair. However, the condition
that in fact caused the harm was the defective weld, and
that the store employees did not know of, and could not
have discovered by exercise of reasonable care, the
defective weld.    Therefore, we hold that the district
court correctly granted summary judgment in favor of
Tandy because, as a matter of law, Tandy did not owe a
duty to William Gremmels to protect him from the danger
presented by the defective weld.

    Appellants also argue that the store employees were
negligent in failing to warn William Gremmels about the
prior problems with the chair's backrest and caster.
Assuming for the purposes of argument that the store
employees should have warned William Gremmels about the
backrest and the caster, it is undisputed that the
backrest and the caster did not cause the collapse of the
chair.     Causation "has two components: (1) the
defendant's conduct must have in fact caused the
plaintiff's damages (generally a factual inquiry)
[causation in fact] and (2) the policy of the law must
require the defendant to be legally responsible for the
injury (generally a legal question) [proximate or legal
causation]."    Scoggins v. Wal-Mart Stores, Inc., 560
N.W.2d 564, 567 (Iowa 1997)(Scoggins)(citing Gerst v.
Marshall, 549 N.W.2d 810, 815-16 (Iowa 1996)). Proximate
or legal cause involves a policy decision as to whether
the defendant should be held legally responsible for the

                           -10-
consequences that the defendant's actions have "in fact"
caused.   Id.   "[A]n actor's conduct is a proximate or
legal cause of harm to another if the conduct is a
'substantial factor' in producing the harm . . . ."
Waitek v. Dalkon Shield Claimants Trust, 908 F. Supp.
672, 683 (N.D. Iowa 1995) (citing Kelly v. Sinclair Oil
Corp., 476 N.W.2d 341, 349 (Iowa 1991)).            "[I]n
determining whether conduct meets the substantial factor
test, we look to the 'proximity and foreseeability of the
harm flowing from the actor's conduct, although it is not
necessary that the actual consequences of a defendant's
negligence should have been foreseen.'" Scoggins, 560
N.W.2d at 567 (citations omitted).




                           -11-
    At the time of the accident, neither the backrest nor
the caster was loose or disconnected from the chair.
Appellants do not dispute that the backrest and the
casters were functioning properly at the time of the
accident.    The defective weld caused the chair to
collapse. Thus, the condition of the backrest and the
caster was neither the cause in fact nor the proximate
cause of William Gremmels's injuries. We therefore hold
the district court did not err in granting summary
judgment in favor of Tandy because, as a matter of law,
the condition of the backrest and the caster did not
cause the accident.

                         CONCLUSION

    Accordingly, the judgment of the district court is
affirmed.

    A true copy.

        Attest:
             CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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