                                 ___________

                                 No. 95-1938
                                 ___________

Brian Moe; Thomas Moe; Saundra      *
Moe,                                *
                                    *
      Plaintiffs - Appellants,      *
                                    *  Appeal from the United States
      v.                            *  District Court for the
                                    *  District of Minnesota
MTD Products, Inc.,                 *
                                    *
      Defendant - Appellee.         *
                               __________

                         Submitted:       November 15, 1995

                             Filed:    December 27, 1995
                                 __________

Before HANSEN, LAY, and MURPHY, Circuit Judges.
                               __________


MURPHY, Circuit Judge.


     This case arises from an accident in which the fingers of Brian Moe's
right hand were amputated when he reached into the grass chute of a
lawnmower manufactured by MTD Products, Inc.      He and his parents sued MTD
                                      1
under several theories of recovery, alleging that a safety device on the
mower was defectively designed and that MTD had failed to warn purchasers
of the design problems.     The district court granted summary judgment
dismissing all of the claims on the basis that they were preempted by the
Consumer




     1
      The Moes pled strict liability, negligence, and breach of
the implied warranties of merchantability and fitness.
Product Safety Act (CPSA), 15 U.S.C. § 2051 et seq.2      We affirm in part
and reverse in part.


                                     I.


     On the morning of July 29, 1992, seventeen year old Brian Moe was
mowing a neighbor's lawn using his father's walk-behind, self propelled
mower.   Brian was an experienced operator of the mower, having mowed lawns
with it for his family and neighbors for several years.    The mower became
clogged with wet grass several times that morning, and Brian cleared it by
releasing the mower's operator handle, bending over, and reaching into the
side grass chute to unclog it.   He had been able to do this without injury
because the mower was equipped with a safety device, called a blade
brake/clutch system (BBC), that permitted the cutting blade to rotate only
when the control lever on the operator handle was engaged.       The BBC was
designed to stop the rotation of the cutting blade within three seconds of
the release of the control lever.
     When Brian released the control lever the third or fourth time the
mower became clogged, the cutting blade did not stop rotating.    He did not
notice that the blade had continued to rotate, and when he reached his
right hand into the grass chute, the fingers were severed.        After the
accident, his sisters continued the mowing job.   At one point, the cutting
blade completely stopped rotating, and it was discovered that the BBC
control cable had broken.   This cable connected the control lever to the
blade area.    The cable appeared to have frayed and broken, strand by
strand, in an area where it passed through, and rubbed against, the
throttle control housing,




     2
      In ruling from the bench, the court also expressed the view
that the design defect claim could not succeed because the
lawnmower had been altered, making proof of proximate causation
impossible. This claim has been described by the Moes as one for
a defectively designed product actually installed, and it asserts
improper design of a safety device.

                                     2
which was a black plastic box.


     Thomas Moe, Brian's father, had owned the mower for three years at
the time of the accident and had repaired several of its parts.              In 1991,
the mower handle had broken from the base, and Thomas Moe had it reattached
by a welder.   The repaired handle was 1 3/8" longer than the original.


                                          II.


     The Moes claim that Brian's accident was caused by the design of the
installed BBC and that it was defective because it routed the control cable
in an unsafe manner, resulting in fraying.          They allege that the control
cable frayed because it rubbed against the plastic of the throttle control
housing and because its path included several sharp turns that increased
the pressure on the cable.       MTD responds that the fraying was caused by the
lengthening of the mower handle, which made the cable more taut and
increased the stress on it.


     The Moes also claim that MTD failed to warn purchasers that the BBC
design would cause the cable to fray.         Although the mower's grass chute had
a label warning of the danger of injury to the fingers from a rotating
blade, they believe that an additional label should have been placed on the
mower handle warning that the cable might fray.               The owner's manual
instructed the owner to inspect the control cable because "[i]f the cable
becomes   frayed,   it   could    cause    the   blade   brake/clutch   to   operate
improperly."   The Moes assert that this manual information was insufficient
notice of the potential hazard.




                                          3
     The district court held that all of the Moes' claims3 were preempted
by the CPSA.    That statute established the Consumer Protection Safety
Commission (CPSC), 15 U.S.C. § 2053, authorized it to promulgate federal
product safety standards for various products, id. §§ 2056, 2058, and
expressly preempted any non-identical state standards, id. § 2075.     The
Moes argue that the CPSA preemption clause does not preempt their failure
to warn or design defect claims.    MTD contends that the failure to warn
claim is preempted by the federal statute, but agrees that the design
defect claim is not.   It argues that summary judgment was also appropriate
on that claim, however, because of undisputed evidence that the product had
been substantially altered.


                                    III.


     The CPSA expressly states the intent of Congress to preempt state
safety standards or regulations that are not identical to the federal
standard:


     Whenever a consumer product safety standard under this chapter
     is in effect and applies to a risk of injury associated with a
     consumer product, no State or political subdivision of a State
     shall have any authority either to establish or to continue in
     effect any provision of a safety standard or regulation which
     prescribes any requirements as to the performance, composition,
     design, finish, construction, packaging, or labeling of such
     product which are designed to deal with the same risk of injury
     associated with such consumer product, unless such requirements
     are identical to the requirements of the Federal standard.


15 U.S.C. § 2075(1).   If a federal standard establishes a labelling




     3
      The record indicates that the Moes also raised a claim that
MTD should have installed an engine-kill system rather than the
BBC. The Moes made clear at oral argument, however, that they
are presently not pursuing such a claim. Since the CPSA has
authorized installation of either an engine-kill system or a BBC,
that claim would be preempted in any event. See footnote 4,
infra.

                                     4
requirement warning of injuries to the fingers from the mower blade, any
state standard requiring different or additional warnings about the same
risk of injury would thus be expressly preempted.


     The statute preempts not only positive enactments of state standards,
but also common law tort actions that would have the effect of creating a
state standard.   Allowing a jury to assess damages for MTD's failure to
place a warning label on the mower handle would create a state standard or
regulation requiring such a warning.   It is well established that "[state]
regulation can be as effectively exerted through an award of damages as
through some form of preventive relief."   Cipollone v. Liggett Group, Inc.,
112 S. Ct. 2608, 2620 (1992); Carstensen v. Brunswick Corp., 49 F.3d 430,
432 (8th Cir. 1995), cert. denied, 116 S. Ct. 182 (1995).


     The CPSC created a federal safety standard for lawnmowers when it
promulgated a Safety Standard for Walk-Behind Power Lawn Mowers (Mower
Standard), 16 C.F.R. § 1205, as authorized by the CPSA, 15 U.S.C. § 2056.
In addition to setting out performance requirements for mowers,4 the Mower
Standard requires that a warning label be placed on each mower's blade
housing.    The label must contain both a written warning against blade
contact injury and a depiction of a blade slicing into a hand.    16 C.F.R.
§ 1205.6.


     The Moes' failure to warn claim suggests that MTD should have warned
consumers that the BBC cable might fray.   The risk of injury contemplated
by such a warning is the same as that addressed by the




     4
      The Mower Standard requires that each mower pass a "foot
probe" test, which in effect requires a protective shield
extending from the blade housing. Each mower must also have a
blade control system that permits the blade to rotate only if the
operator presses on a special control on the mower handle. 16
C.F.R. § 1205.5(a). The manufacturer has an option of choosing
between a BBC, similar to that in this case, or an engine-kill
system, which stops the engine when a control lever is released.

                                       5
labelling requirements in the Mower Standard -- injury to the hands by the
cutting blade.     If the Moes' failure to warn claim were successful, it
would create a state standard requiring additional warnings on lawn mowers
or in owner manuals related to the same risk of injury addressed by the
federal standard.    This claim is thus expressly preempted by the CPSA.


      The Moes argue that the savings clause in the CPSA preserves their
failure to warn claim, but they read the clause too broadly.     The savings
clause provides that "[c]ompliance with consumer product safety rules or
other rules or orders under this Act shall not relieve any person from
liability at common law or under State statutory law to any other person."
15 U.S.C. § 2074(a).     The goals and policies of a statute must guide the
interpretation of its savings clause.     International Paper v. Ouellette,
479 U.S. 481, 493 (1987).    A general remedies savings clause such as this
"cannot be allowed to supersede the specific substantive pre-emption
provision."    Morales v. Trans World Airlines, Inc., 112 S. Ct. 2031 (1992);
Carstensen, 49 F.3d at 432.


      One purpose of the CPSA is to "develop uniform safety standards for
consumer products and to minimize conflicting State and local regulations."
15   U.S.C. § 2051(b)(3).      The statute's express preemption of mower
standards that are not identical to a federal standard addressing the same
risk of injury is consistent with this goal.   The savings clause should not
be interpreted to subvert the preemption provision and should be read to
save those claims that are not expressly preempted.       See Carstensen, 49
F.3d at 432.    The failure to warn claim is not preserved.


      The Moes' defective design claim is an example of the type of




                                      6
claim the savings clause preserves, however.5        See id.   A successful tort
action based on the defective design of an installed BBC would not create
a different standard for mower safety or impose additional requirements on
the manufacturer.      Instead it would create an incentive for manufacturers
to install a BBC that works and is properly designed, and thus ensure that
the federal standard has meaning.       The Moes' defective design claim is not
preempted by the CPSA and should not have been dismissed on that ground.



        The question remains whether summary judgment was properly granted
on the design defect claims on the alternate theory that the mower had been
altered.      Summary judgment is appropriate if there are no disputed issues
of material fact, and the moving party is entitled to judgment as a matter
of law.      Fed. R. Civ. P. 56(c).   All evidence and inferences must be viewed
in the light most favorable to the non-moving party.        Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986).           We review a grant of summary
judgment de novo.


        MTD argues that it is entitled to summary judgment on the design
claim because the alteration of the mower handle makes it impossible for
the Moes to establish causation.           Minnesota law requires a plaintiff
asserting any theory of products liability to show a causal link between
the alleged design defect and the injury.          Bilotta v. Kelley Co., 346
N.W.2d 616, 623 n. 3 (Minn. 1984) (strict liability); Hudson v. Snyder
Body,       Inc., 326 N.W.2d 149, 157 (Minn. 1982) (negligence); Farr v.
Armstrong Rubber Co.,




        5
      The Moes attempt to save their failure to warn claim by
framing it in terms of their design defect claim. They argue
that MTD had a duty to warn consumers that the product was
designed in a manner that would cause the cable to fray. This
does not change the analysis, however, because the warnings they
seek would be designed to prevent the same risk of injury as
those in the federal standard. The Moes do not suggest that the
design defect creates any risk of injuries other than those from
the cutting blade.

                                         7
179 N.W.2d 64, 69 (Minn. 1970) (breach of warranty).    A plaintiff asserting
strict   liability must also show that the injury was not caused by
mishandling of the product.       Magnuson v. Rupp Mfg. Inc., 171 N.W.2d 201,
                    6
206 (Minn. 1969).


     The record here shows that issues of material fact exist as to
whether the BBC design caused Brian's injury.     The Moes claim that the BBC
control cable frayed because it was routed through the plastic control
housing that rubbed against the cable and because the cable's path included
significant bends.       MTD claims that the cable frayed because the mower
handle was lengthened, which increased the stress on the cable.      Although
it is undisputed that the mower handle was lengthened, there is a dispute
whether the increased length affected the BBC cable.          The MTD expert
suggests that the additional length of the mower handle "contributed to
cause the cable to break or the blade brake clutch mechanism to function
improperly."    (App. 148).     The Moes' expert concludes that the increased
length of the mower handle did not affect the cable stress because there
was still "play" in the cable.          (App. 98-99).   Summary judgment was
inappropriate because of the presence of real issues of material fact.


     MTD's reliance on Rients v. International Harvester Co., 346 N.W.2d
359, 362 (Minn. Ct. App. 1984), review denied (Minn. Oct. 30, 1984), is not
persuasive.    The plaintiff in Rients was involved in a tractor accident and
alleged that the front axle attachment was defectively designed.          Id.
Summary judgment in favor of the defendant was affirmed since the plaintiff
could not prove a causal link between the design and the accident; there
were many other possible causes.     Although one alternate cause was that the
attachment had been significantly altered by the plaintiff, it was not the
only possibility.       The tractor's brakes were worn, the




     6
      MTD also asserted misuse and alteration of the product as
an affirmative defense.

                                        8
steering gear was broken, and other parts were not functional or were bent.
Id.   In contrast, there is no dispute here that the frayed cable caused the
accident, and there are only two theories about how the cable became
frayed.    Based on the evidence in the record, it would not be "sheer
speculation" for a jury in this case to find that the design, rather than
the alteration, caused the fraying and the accident.     See id.


      MTD also argues that the design defect claim cannot proceed under a
strict liability theory because the plaintiffs cannot prove that the
product reached them "without substantial change in the condition in which
it was originally sold by the manufacturer."     Rients v. Int'l Harvester
Co., 346 N.W.2d at 362 (citing McCormack v. Handscraft Co., 154 N.W.2d 488,
499 (Minn. 1967)).     It asserts that the Moes cannot meet this burden
because the mower was substantially altered when the handle was lengthened,
but that repair took place after the product reached the Moes.     MTD does
not suggest that the mower was altered in any way before it reached them,
but cites Rients in support.     The plaintiff there failed to prove his
strict liability theory, but he had bought the front axle attachment as a
used part at least twenty years after it was manufactured.     Here, Thomas
Moe purchased the mower new.


      For the reasons stated, we affirm the dismissal of the preempted
claims, but reverse the dismissal of the design defect claim and remand for
further proceedings consistent with this opinion.


      A true copy.


            Attest:


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




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