                                   ___________

                                   No. 96-2142
                                   ___________

Dennis Belec,                           *
                                        *
     Plaintiff/Appellant,               *
                                        *   Appeal from the United States
              v.                        *   District Court for the Eastern
                                        *   District of Missouri.
Hayssen Manufacturing Company,          *
                                        *
     Defendant/Appellee.                *

                                   ___________

                         Submitted: December 9, 1996

                          Filed:    January 27, 1997
                                   ___________

Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.
                               ___________


MURPHY, Circuit Judge.


     This case arises from an injury Dennis Belec suffered at work while
operating a plastic blow molding machine.        Belec sued the manufacturer of
the machine, Hayssen Manufacturing Company, for strict liability and
negligence, and two co-employees for negligently modifying the machine.
The district court granted summary judgment to the defendants, and Belec
now appeals the dismissal of his failure to warn claim against Hayssen.
We reverse.


     Belec injured both of his hands when they were caught in a plastics
blow molding machine.    The machine was manufactured by Hayssen and sold to
Belec's employer, Semco Plastics.     As sold, the machine operated on either
automatic or manual cycle, but automatic cycle was its production mode.
When run on automatic cycle, the operator had to change positions to
produce each plastic item.     The operator started the production cycle by
pushing a button and then
had to move to remove the item, then return to the original position to
start the process for the next piece.    This took time, and the constant
starting and stopping of the machine caused Semco to replace the motor
twice.


     Hayssen offered a separate retrofit kit permitting the machine to
operate on semi-automatic cycle, but Semco employees arranged to modify the
machine themselves so that it could be run on semi-automatic cycle,
permitting the operator to remain in one position.   Belec was injured while
removing a plastic piggy bank from the modified machine.    The machine had
begun to operate while his hands were still inside, causing burns and
fractures that resulted in the amputation of fingers on his left hand.



     Belec sued Hayssen under Missouri law for strict liability for design
defect and failure to warn, and for failure to use ordinary care in the
manufacture and design of the product and negligent failure to warn.   Belec
also sued the co-employees responsible for modifying the machine, alleging
that they were negligent.   Before the district court ruled on the summary
judgment motions, Belec conceded his negligence and strict liability for
design defect claims against Hayssen.


     The district court granted the defendants' motions for summary
judgment.   It concluded that Belec's injuries had been caused solely by
Semco's modifications to the machine so Hayssen could not be liable.   Since
the co-employees were acting in furtherance of Semco's nondelegable duty
to provide a safe working environment, the Missouri Workers' Compensation
Law, Mo. Rev. Stat. §§ 287.010 -811 (1993), barred legal action against
them.1




     1
      Belec originally appealed from the dismissal of his claims
against his co-employees, but this part of the appeal was
subsequently dismissed.

                                     2
     In Missouri, a manufacturer can be held strictly liable for     failure
to warn of the dangers of a product even if there is no defect in its
design.    Sutherland v. Elpower Corp., 923 F.2d 1285, 1288 (8th Cir. 1991);
Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 382 (Mo. 1986)
(en banc).    A manufacturer is not strictly liable for failing to warn of
dangers caused by every possible use of a product.      See Nesselrode, 707
S.W.2d at 375 (noting that a manufacturer is not an insurer for all
accidents caused by its product).      Where a product would be used in a
reasonably foreseeable manner, however, the manufacturer can be strictly
liable if it does not provide an adequate warning of the danger of the
product.   See Sutherland, 923 F.2d at 1289 (concluding that a manufacturer
can be strictly liable for failing to warn about reasonably foreseeable
unintended use of a modified product);    Nesselrode, 707 S.W.2d at 380-381
(stating that strict liability applies to reasonably anticipated use and
misuse of a product).


     In opposing the motion for summary judgment, Belec offered the
affidavit of an expert witness, Keith Vidal.       The affidavit contained
Vidal's opinion that the machine was unreasonably dangerous as sold because
it did not contain a warning about modifying the machine to run on semi-
automatic cycle or of the danger posed by the machine when operated on
semi-automatic cycle without appropriate safeguards.    The affidavit states
it was reasonably foreseeable the machine would be used in semi-automatic
cycle because Hayssen itself offered a kit to enable it to be modified to
operate that way.     Vidal's affidavit incorporated his report which was
based in part on a review of documents produced by Hayssen that contained
facts supporting his conclusion that the use in semi-automatic cycle was
reasonably foreseeable.


     Hayssen argues that Vidal's affidavit contains only legal conclusions
and contradicts his earlier deposition testimony.      Hayssen contends that
Vidal testified at his deposition that the




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machine as designed, manufactured, and shipped was reasonably operationally
safe, and that the portion of his affidavit opining that the failure to
warn made the machine unreasonably dangerous was inconsistent with the
earlier testimony.    It states that the affidavit cannot therefore raise a
genuine issue of material fact.        Garnac Grain Co. v. Blackley, 932 F.2d
1563, 1568 (8th Cir. 1991).
     We review a grant of summary judgment de novo.              Anderson v. F.J.
Little Machine Co., 68 F.3d 1113, 1114 (8th Cir. 1995).          Summary judgment
is appropriate only if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.          Fed. R. Civ. P.
56 (c);   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).            The
evidence must be viewed in the light most favorable to the nonmoving party
and all reasonable inferences from the facts must be resolved in favor of
that party.   Reich v. Conagra, Inc., 987 F.2d 1357, 1359 (8th Cir. 1993).


     Vidal's      affidavit    did   not   contradict   his   earlier    deposition
testimony.    The deposition had been taken by Hayssen's counsel at the time
Belec was still claiming Hayssen was strictly liable for design defect and
negligent design.      At his deposition, Vidal was testifying about the
operation of the machine as sold, on automatic or manual cycle.          He was not
addressing any danger posed by use of the machine in semi-automatic cycle
or by the failure to warn about a modification for such use.                Vidal's
statement regarding the operation of the machine had in fact been made
shortly   after    Hayssen's     attorney      specifically   excluded   from   his
consideration any opinion on a failure to warn.


     Vidal's affidavit was sufficient to create a genuine issue of
material fact.       The record, when read in the light favorable to the
nonmoving party, indicated it was reasonably foreseeable that the plastic
blow molding machine would be operated on semi-automatic cycle.             Vidal's
affidavit states Hayssen offered a retrofit kit to modify the machine so
it would operate on semi-automatic cycle and




                                           4
the high cost of the kit made it foreseeable that the machine would be
modified for use without it.        See Sutherland, 923 F.2d at 1289 (expert
testimony regarding absence of warning sufficient to support jury verdict).


        Hayssen and Belec disagree about whether a manufacturer can be liable
for failing to warn even if a certain use is reasonably foreseeable.
Hayssen believes a manufacturer cannot be liable for failing to warn of
danger if a safe product is modified to make it unsafe, especially where
the modification is the sole cause of injury.         Sutherland, 923 F.2d at
1290;       Gomez v. Clark Equip. Co., 743 S.W.2d 429, 432 (Mo. Ct. App. 1987).
Belec contends the manufacturer can be liable for failing to warn if it is
reasonably foreseeable that a modified product will be used in a way that
poses new dangers.       Belec asserts that even under Hayssen's theory there
is an issue of fact as to the cause of his injury because a jury could find
Hayssen, the co-employees, and Belec all responsible.2


        A jury could find on this record that the failure to provide a
warning made the product unsafe and therefore caused the accident.       Gomez
does not control whether summary judgment is appropriate here because in
that case a jury had found that a modification was the sole cause of
injury.      See Sutherland, 923 F.2d at 1290 (discussing Gomez).   Failure to
warn can provide an independent basis for liability in a strict liability
case.       Sutherland, 923 F.2d at 1289-90.


        Since Belec produced evidence sufficient to create a genuine issue
of material fact on the issue of whether Hayssen could be liable for
failure to warn, the district court erred in granting




        2
      Hayssen's answer to Belec's complaint alleged Belec was
negligent, and his own expert stated he had hit a switch that
turned on the machine while his hands were in it.

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summary judgment to Hayssen.   The trier of fact should have the opportunity
to determine the questions of reasonable foreseeability and the cause of
the injury.    The judgment in favor of Hayssen is reversed, and the case is
remanded for trial.



A true copy.


     Attest:


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




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