NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

16-P-1497                                               Appeals Court

ANN E. PANTAZIS, executrix,1    vs.   MACK TRUCKS, INC., & another.2


                           No. 16-P-1497.

    Worcester.       September 12, 2017. - November 27, 2017.

               Present:   Milkey, Hanlon, & Shin, JJ.


Negligence, Manufacturer, Duty to warn.     Practice, Civil,
     Summary judgment.


     Civil action commenced in the Superior Court Department on
April 11, 2012.

     The case against defendant Parker-Hannifin Corporation was
heard by Raffi N. Yessayan, J., on a motion for summary
judgment, and entry of judgment was ordered by Shannon Frison,
J.; the case against defendant Mack Trucks, Inc., was heard by
Daniel M. Wrenn, J., on a subsequent motion for summary
judgment, and entry of judgment was ordered by him.


    Roger J. Brunelle for the plaintiff.
    William J. Dailey, III, for Mack Trucks, Inc.
    Richard L. Neumeier for Parker-Hannifin Corporation.




    1
        Of the estate of Mark S. Fidrych.
    2
       Parker-Hannifin Corporation. Other defendants named in
the amended complaint were dismissed in the trial court and are
not a part of this appeal.
                                                                     2


     MILKEY, J.   Mark Fidrych owned a dump truck that he used to

haul soil.   On the morning of April 13, 2009, Fidrych was seen

at his farm working on the truck.    Later that day, he was found

dead underneath it, with his clothing caught up in a spinning

universal joint (U-joint) that was part of the mechanical system

used to tilt the "dump body" of the truck.    The medical examiner

identified the cause of death as accidental asphyxiation.    In

her capacity as executrix of Fidrych's estate, his widow, Ann

Pantazis, filed a wrongful death action in the Superior Court.

She sued, among others, Mack Trucks, Inc. (Mack Trucks), which

manufactured the original, stripped-down version of the truck,

and Parker-Hannifin Corporation (Parker-Hannifin), which had

acquired the assets of Dana Corporation (Dana).3   Dana

manufactured a piece of equipment known as a "power take-off"

(PTO), which was another part of the system used to tilt the

dump body of Fidrych's truck.   In two separate summary judgment

rulings, different Superior Court judges ruled in favor of each

of these defendants.4   We affirm.


     3
       The plaintiff alleges that Parker-Hannifin is derivatively
responsible for Dana's liabilities. For purposes of our
analysis, we assume this to be true.
     4
       On January 28, 2016, one Superior Court judge allowed
Parker-Hannifin's motion for summary judgment, while a different
judge subsequently denied its motion for entry of a separate
judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974).
On August 4, 2016, yet another judge allowed Mack Truck's motion
for summary judgment, and a document entitled "Summary Judgment"
                                                                     3


     1.   Background.5   In 1987, Fidrych purchased the truck from

Winnipesaukee Truck P&T, an independent Mack Trucks dealer,

which had purchased it from Mack Trucks the previous year.6    At

the time of Fidrych's purchase, the truck was what is known as

an "incomplete vehicle."    That meant that the truck had a

chassis, cab, and engine, but it lacked essential components

(and associated equipment) necessary to carry out the truck's

ultimate intended function.    Through the installation of


was issued. The summary judgment was entered on the docket on
August 8, 2016. Although this "judgment" addressed the
plaintiff's claims only against Mack Trucks, it included no
references to, or discussion of, rule 54(b). At that point, the
January, 2016, summary judgment ruling involving Parker-Hannifin
still had not been reduced to a final judgment. On October 6,
2016, a second document entitled "summary judgment" issued, this
one discussing only the plaintiff's claims against Parker-
Hannifin. This summary judgment was entered on the docket on
October 6. The plaintiff's notice of appeal was filed on
October 13, 2016, which was within thirty days of the judgment
involving Parker-Hannifin, but more than thirty days after entry
of the only identified judgment involving Mack Trucks.
Nevertheless, we deem the notice of appeal timely with regard to
both judgments, since the first such judgment was not final
until the second one entered (and claims involving other
defendants were dismissed). See Jones v. Boykan, 74 Mass. App.
Ct. 213, 216-218 (2009). We repeat our admonition that, unless
rule 54(b) is expressly invoked, there should never be more than
one document identified as a final judgment in a civil case.
Id. at 218 n.9.
     5
       In reviewing the allowance of a motion for summary
judgment, we examine the evidence in the record de novo, view
the evidence in the light most favorable to the nonmoving party,
and draw all reasonable inferences in favor of nonmoving party.
Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016), and
cases cited.
     6
       Strictly speaking, the truck was purchased by, and
registered to, Mark Fidrych, Inc.
                                                                     4


additional components, incomplete vehicles can be outfitted for

a wide variety of uses.   For example, an incomplete vehicle can

be outfitted for everything from a flatbed truck to a fire

truck.

    After purchasing the truck as an incomplete vehicle,

Fidrych had it transformed into a dump truck.    This involved

installing a dump body, as well as a mechanical system

(auxiliary power system) for tilting that body.    The outfitting

of the incomplete vehicle occurred decades before the accident,

and it is not known who performed that work.

    The auxiliary power system used the truck's transmission as

the source of its power, employing a series of components that

connected the transmission to a hydraulic pump.     The

transmission that Mack Trucks provided in the incomplete vehicle

was designed so that it could be connected to a PTO, and in this

case, a PTO manufactured by Dana was added.     Once installed, a

PTO is a fully enclosed piece of equipment except for a short

metal post that extends from the PTO case.     The post spins when

the PTO is engaged, and the spinning post can be used to power

many different types of equipment.   In the particular system

installed in Fidrych's truck, the PTO was connected to an

exposed auxiliary drive shaft, which in turn was connected to a

U-joint (also exposed).   Finally, the U-joint was connected to a
                                                                        5


hydraulic pump that drove the piston that raised and lowered the

dump body.

       As Fidrych's accident illustrates, having an exposed

auxiliary drive shaft and U-joint7 presents serious potential

dangers, e.g., to someone working underneath the truck while the

PTO is engaged.      It is uncontested that this system could have

been designed and installed in a manner that alleviated such

risks.       For example, as the summary judgment record reveals, the

need for the exposed auxiliary drive shaft and U-joint could

have been obviated by attaching a hydraulic pump directly to the

PTO.       In addition, guards could have been installed to shield

the moving parts.       The plaintiff makes no claim that either of

the defendants here had any role in designing or installing the

auxiliary power system (beyond designing the individual

components that each manufactured and sold).

       At the time that Mack Trucks sold the incomplete vehicle

and Dana sold the PTO, each manufacturer provided various

warnings about risks presented by the future use of a completed

vehicle.       Specifically, the owner's manual that Mack Trucks

provided for the truck included a warning about the use of PTOs

and associated equipment.       As the plaintiff highlights, the

warning was set forth approximately midway through a 112-page

       7
       It is not clear on the record before us who manufactured
the auxiliary drive shaft and U-joint. In any event, there are
no claims that Mack Trucks or Dana did so.
                                                                   6


manual.   Its placement aside, the warning, set off in a box

labeled "WARNING" and accompanied by triangles containing

exclamation points, stated in bold lettering as follows:

    "Power take-off (P.T.O.) units and their related equipment
    can be very dangerous. Any P.T.O. installation, repair or
    replacement should include a warning lamp which indicates
    P.T.O. engagement. The lamp must be located close to the
    P.T.O. control and clearly visible.

    "P.T.O. units are driven by the engine or drive train
    components (flywheel, crankshaft, transmission). No work
    or service should be performed or attempted on the P.T.O.
    and related units unless the engine is shut down. Always
    keep body parts and loose fitting clothing out of the range
    of these powerful components or serious injury may result.

    "Be sure you are aware of the P.T.O.'s engagement/non-
    engagement and the position of the truck's body (dump body
    controlled by P.T.O., etc.). Be sure P.T.O. is disengaged
    when not in use."

    At the time Dana sold the PTO that eventually was installed

on the Fidrych truck, Dana provided some general warnings in its

owner's manuals about the dangers posed by exposed moving

equipment attached to a PTO.    Dana also distributed warning

stickers meant to be affixed to truck bodies in appropriate

places.   Those warning stickers stated the following:

                               "CAUTION

               "TO PREVENT POSSIBLE INJURY OR DEATH

    "DO NOT GO UNDERNEATH THE VEHICLE WITH THE ENGINE RUNNING.

    "DO NOT WORK NEAR A ROTATING DRIVE SHAFT TO PREVENT GETTING
    CAUGHT OR ENTANGLED.
                                                                    7


    "DO NOT ATTEMPT TO OPERATE THE CONTROLS OF THE POWER TAKE-
    OFF OR OTHER DRIVEN EQUIPMENT FROM UNDERNEATH THE VEHICLE
    WITH THE ENGINE RUNNING.

    "DO NOT OPERATE THE CONTROLS OF THE POWER TAKE-OFF OR OTHER
    DRIVEN EQUIPMENT IN ANY POSITION THAT COULD RESULT IN
    GETTING CAUGHT IN THE MOVING MACHINERY.

    "DO NOT ATTEMPT TO WORK ON AN INSTALLED POWER TAKE-OFF WITH
    ENGINE RUNNING."


At the same time, the installation instructions that Dana

provided stated that "the decisions of whether to install guards

and/or warning signs shall be the responsibility of the

designers or installers."

    Over the ensuing years, both Mack Trucks and Dana sought to

make various improvements to the warnings they provided.     For

example, Mack Trucks made the warning included in its owner's

manuals more prominent and added a specific warning about the

risk of "death," not just "severe personal injury."   For its

part, Dana sought to improve its warning stickers, e.g., by

adding a pictogram that depicts a human figure entangled in an

exposed auxiliary drive shaft.   In addition, Dana added a

specific warning to its owner's manuals urging that auxiliary

drive shafts be eliminated wherever possible and, if not, that

the designer or installer add a guard.

    2.   Discussion.   a.   The nature of the plaintiff's claims.

The plaintiff does not argue that the incomplete vehicle that

Mack Trucks sold, or the PTO that Dana sold, contained any
                                                                      8


design defect.8   Rather, the gravamen of her claims is that the

manufacturers had a duty to warn installers and end users about

the dangers posed by the use of unguarded auxiliary drive shafts

and U-joints, because such future uses were foreseeable.      After

all, she argues, the transmission of the truck was designed so

that it could accept a PTO, and PTOs could be operated to power

an auxiliary drive shaft.   In fact, the plaintiff maintains that

the foreseeability of the risks posed by exposed auxiliary drive

shafts and U-joints is best demonstrated by the fact that Mack

Trucks and Dana each provided some warning about them (warnings

that the plaintiff claims ultimately were inadequate).       In the

alternative, the plaintiff argues that even if the defendants

did not face an independent legal duty to warn about such

dangers, they voluntarily assumed such a duty when they provided

their warnings about such uses.   We address each of these claims

in turn.

     b.    The presence of a legal duty.   Both defendants

manufactured nondefective components of the equipment whose use


     8
       It appears that the plaintiff argued in the Superior Court
that the PTO should have been designed and sold only with
attached guards to shield whatever equipment could be attached
to it. The judge who ruled in Parker-Hannifin's favor on its
motion for summary judgment rejected this theory after
explaining how impractical he thought it would be for a
manufacturer to design guards for the wide variety of equipment
that could be attached to a PTO. As the plaintiff confirmed to
us at oral argument, she is no longer pressing this claim on
appeal.
                                                                   9


caused the harm.   As the parties recognize, the key case

addressing the extent to which such a defendant has a duty to

warn of dangers raised by use of the finished product is

Mitchell v. Sky Climber, Inc., 396 Mass. 629 (1986) (Mitchell).

In Mitchell, the decedent was electrocuted while he was working

on what he thought was a loose connection between electrical

power cords of motors used to lift scaffolding.   Id. at 630.    In

fact, the problem was that improper rigging of the scaffolding

had cut the insulation of a wire, which then came into contact

with an ungrounded junction box that the decedent touched.

Ibid.   The defendant was the manufacturer of the lift motors

that, although having produced only a component of the

scaffolding, provided its customers with instruction regarding

scaffolding "safety, rigging, operating, and maintenance."

Ibid.

     In concluding that the defendant had no underlying legal

duty to warn of dangers posed by improperly rigged scaffolding,

the Supreme Judicial Court endorsed "[t]he prevailing view . . .

that a supplier of a component part containing no latent defect

has no duty to warn the subsequent assembler or its customers of

any danger that may arise after the components are assembled."

Id. at 631.   The court rejected the plaintiff's argument that

the defendant had voluntarily assumed a legal duty by
                                                                    10


distributing its manuals.9   Id. at 632.   As the court put it, a

component part manufacturer has no duty to provide "a warning of

a possible risk created solely by an act of another that would

not be associated with a foreseeable use or misuse of the

manufacturer's own product."   Ibid.   The rule recognized by the

court in Mitchell has become known as "the component parts

doctrine."   See, e.g., Davis v. Komatsu America Indus. Corp., 42

S.W.3d 34, 38 (Tenn. 2001), citing Murray v. Goodrich Engr.

Corp., 30 Mass. App. Ct. 918, 919 (1991) (citing Mitchell for

component parts doctrine).

     We agree with the motion judges that this case is

controlled by Mitchell.   As noted above, whether an auxiliary

power system presented the risks at issue here depended on how

that system was designed and built.    Put differently, the

potential dangers here, as in Mitchell, arose from the assembly

of the component parts into the finished auxiliary power system.

As the manufacturers of mere components that were not themselves

defective, the defendants had no duty to warn assemblers or end

users of the risks presented by such systems.    Mitchell, supra

at 631.


     9
       The court separately examined whether the defendant had
"voluntarily but negligently made representations in its manual
on which [the decedent] or his employer (or others) relied in
selecting the parts and assembling the scaffolding equipment."
Mitchell, 396 Mass. at 631. It found nothing in the manual to
support such a claim. Id. at 631-632.
                                                                  11


    Based on the passage from Mitchell quoted above, the

plaintiff argues that the risks here were not created "solely"

by the acts of another, and that such risks instead were

"associated with a foreseeable use or misuse of" the components

that Mack Trucks and Dana provided.   Mitchell, supra at 632.

According to the plaintiff, the warnings that the defendants in

fact provided when their products were sold, as well as the

design features of those products, demonstrate that the risks

here were foreseeable and, in any event, whether such risks were

foreseeable raised a question of fact for a jury.

    As an initial matter, we note that whether a tort defendant

in a given context owes a legal duty to an injured party

generally is treated as an issue of law susceptible to

resolution by judges.   See Afarian v. Massachusetts Elec. Co.,

449 Mass. 257, 261 (2007) ("The existence of a legal duty is a

question of law appropriate for resolution by summary

judgment").   That is because such questions are resolved "by

reference to existing social values and customs and appropriate

social policy."   Jupin v. Kask, 447 Mass. 141, 143 (2006),

quoting from Cremins v. Clancy, 415 Mass. 289, 292 (1993).

Thus, a determination of what particular downstream dangers are

considered reasonably foreseeable, such that judicial

recognition of a legal duty is appropriate, ultimately comes

down to "public policy" factors, with the Supreme Judicial Court
                                                                   12


serving as the ultimate arbiter of how such factors are to be

applied (to the extent that such issues have not been resolved

by the Legislature itself).   See Afarian, supra at 261-262.

Contrast Luisi v. Foodmaster Supermkts., Inc., 50 Mass. App. Ct.

575, 577 (2000) (treating "foreseeability" as question of fact

for jury in context of analyzing causation, not duty, except for

"some instances where a judge may determine that, in the

circumstances presented, the harm that befell the plaintiff was

not reasonably foreseeable or preventable").

    With such considerations in mind, we decline to interpret

the language quoted from Mitchell, supra at 632, as creating a

broad exception to the component parts doctrine whenever -- as a

matter of fact -- there is a dispute on the extent to which the

relevant downstream harms could be foreseen.   In other words, we

do not view the rule established by Mitchell as turning on the

factual unforeseeability of such harms.   Notably, the appeal in

Mitchell itself was from summary judgment, and there is no

discussion in the opinion about the extent to which the

manufacturer of the lift motor in fact appreciated that

employees on a scaffolding project could face dangers from

improper rigging of the scaffolding (where proper rigging was a

subject covered by the manual the manufacturer provided).

Viewing the component parts doctrine in this context, we

interpret the court's suggestion that the risks presented there
                                                                   13


were not "reasonably foreseeable" not as a conclusion of fact,

but as a declaration that such risks would not be deemed

"reasonably foreseeable" as a matter of law.     In our view,

Mitchell stands for the proposition that, as a general rule, the

manufacturer of a nondefective component part has no underlying

duty to warn of risks posed by the assembled product that arose

out of the addition of other components and the decisions made,

and actions taken, by downstream actors.

     c.   The voluntary assumption of duty by the defendants.    As

in Mitchell, the defendants here did not take on a duty to warn

assemblers or end users by their voluntary efforts to warn

people of the downstream dangers.10   This conclusion is further

supported by the Restatement (Third) of Torts:     Products

     10
       Like Mitchell, this is not a case where the voluntary
warnings that were given could give rise to a claim that the
harm was caused by the decedent's reliance on negligent
warnings. For example, nothing in the warnings that Mack Trucks
and Dana provided suggests that it was safe for someone to be
under a truck with an exposed auxiliary drive shaft while a PTO
was engaged. Nor is this a case where the particular
relationship between the decedent and the defendants made it
necessary for the defendants to provide the decedent with a
complete and comprehensive list of dangers arising out the
functioning of their products. Contrast Cottam v. CVS Pharmacy,
436 Mass. 316, 325 (2002) ("When a pharmacy's communication with
a patient concerning a drug is limited to a single label warning
of only one side effect, the pharmacy has undertaken a duty to
warn correctly as to that specific side effect but has not
undertaken a broader duty to warn of all potential side effects.
. . . Where, as here, the patient could reasonably interpret
the warning form as a complete and comprehensive list of all
known side effects, it is appropriate to impose on the pharmacy
a duty commensurate with what it appeared to have undertaken").
                                                                   14


Liability § 5 comment d, at 134-135 (1998).    Indeed, in

discussing why a manufacturer of a component part has limited

duties with respect to risks posed by the assembled end product,

the comment to the Restatement uses as an example a manufacturer

of truck chasses.11

     3.   Conclusion.   In sum, we conclude that where, as here,

the components manufactured by the defendants included no design

defects, and the risks posed by the assembled product arose out

of the addition of other components and the decisions made, and

actions taken, by downstream actors, the defendants had no duty

to warn of those dangers.   Resolving the case as we do, we have

no occasion to consider the defendants' other arguments, such as


     11
       The relevant portion of the Restatement states as
follows:

     "Product components include products that can be put to
     different uses depending on how they are integrated into
     other products. For example, the chassis of a truck can be
     put to a variety of different uses. A truck chassis may
     ultimately be used as a cement mixer or a garbage
     compaction unit or in a flat-bed truck. . . . A seller
     ordinarily is not liable for failing to incorporate a
     safety feature that is peculiar to the specific adaptation
     for which another utilizes the incomplete product. A
     safety feature important for one adaptation may be wholly
     unnecessary or inappropriate for a different adaptation.
     The same considerations also militate against imposing a
     duty on the seller of the incomplete product to warn
     purchasers of the incomplete product, or end-users of the
     integrated product, of dangers arising from special
     adaptations of the incomplete product by others."

Restatement (Third) of Torts:    Products Liability § 5 comment d,
at 134-135.
                                                                   15


their claim that they had no duty to warn of the dangers posed

by the exposed auxiliary drive shaft and U-joint in light of the

obviousness of such risks, at least to someone with Fidrych's

presumed familiarity with the truck that he had owned for over

twenty years.   See O'Sullivan v. Shaw, 431 Mass. 201, 203-206

(2000) (recognizing continued viability of open and obvious

doctrine in duty to warn cases).

     None of this is to say that appellate courts should never

recognize exceptions to the component parts doctrine.   In fact,

this court recognized the possibility of such an exception in

Morin v. AutoZone Northeast, Inc., 79 Mass. App. Ct. 39, 51-52

(2011).12   Based on the summary judgment record and the arguments


     12
       In Morin, the plaintiff (the administratrix of her
deceased mother's estate) alleged that the decedent suffered
grave injuries as a result of exposure to asbestos contained in
brake components used in trucks, including in components used to
replace those originally supplied by the manufacturer of the
trucks. 79 Mass. App. Ct. at 40-41. In the relevant passage of
that case, we discussed whether a truck manufacturer could be
liable based on claims that the manufacturer knew or should have
known of the dangers posed by asbestos contained in replacement
components manufactured by others. Id. at 51. As the
defendants highlight, the court did not ultimately resolve
whether the truck manufacturer had a legal duty to warn of such
risks, because it ruled in the truck manufacturer's favor on
other grounds. Id. at 51-52. The statements on such issues
therefore constitute dicta. In addition, we note that in Morin,
the manufacturer knew that the brake components that it itself
supplied would need to be replaced, id. at 51, and the
particular role it played with respect to such components is at
least somewhat different than that presented in the case before
us. Finally, it bears noting that Morin arose in the context of
asbestos exposure, a substantive area in which, to some extent,
special liability rules have developed. See id. at 42-43
                                                                  16


raised, the plaintiff has not demonstrated good cause to create

an exception here.13

                                   Judgments affirmed.




(noting that "[s]everal characteristics of the generation of
disease and death by asbestos inhalation have moved courts to
adapt the standard of proof of causation").
     13
       The plaintiff argues that "[a]bsolving Mack Trucks and
[Dana] of any legal responsibility to warn about the dangers of
auxiliary drive shafts connected to and actuated by their
products would allow this extremely dangerous machinery to be
released into the stream of commerce without any warnings about
those dangers." This argument is unconvincing. Whoever
designed and assembled the auxiliary drive system might well
have faced a duty to warn future truck users of the dangers that
system posed (e.g., by installing the warning stickers that Dana
provided). That such parties could not, in fact, be identified
here does not provide a valid reason for rendering upstream
component parts manufacturers liable.
