                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                      ___________

                                      No. 99-3403
                                      ___________

Scott Erling; Terri Erling,                *
                                           *
             Appellants,                   *
                                           *
      v.                                   * Appeal from the United States
                                           * District Court for the District
American Allsafe Company,                  * of North Dakota.
                                           *
             Defendant,                    *         [UNPUBLISHED]
                                           *
ESCO Corporation,                          *
                                           *
             Appellee,                     *
                                           *
Safety Master,                             *
                                           *
             Defendant.                    *
                                      ___________

                              Submitted: July 31, 2000

                                  Filed: September 5, 2000
                                      ___________

Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                         ___________
PER CURIAM.

       Scott and Terri Erling (the Erlings) appeal the district court’s1 grant of summary
judgment in favor of mining-equipment manufacturer ESCO Corporation (ESCO) in
their product-liability action. We affirm.

       Mr. Erling, an experienced welder, was using a metal hammer to install a metal
ESCO conical point (or “tooth”) on a piece of mining equipment. Despite being aware
of his employer’s policy against striking hardened metal to hardened metal, despite
knowing of a worker who had been injured from the striking of metal against metal, and
despite instructions in ESCO’s manual describing a tooth-installation method not
requiring hammering the tooth’s tip, Mr. Erling struck the hammer against the tooth’s
tip. Unfortunately, a metal fragment separated and became embedded in his left eye,
causing him to lose all vision in that eye.

        The Erlings sued, seeking damages against ESCO under theories of negligent
manufacture and design, and negligent failure to warn and instruct; strict product
liability; and breach of implied warranty. The court granted summary judgment in favor
of ESCO after finding no genuine factual dispute existed as to the tooth and ESCO’s
installation instructions, because the instructions did not direct using a hammer to strike
the tooth’s tip, and in fact provided an installation method that eliminated the need to
apply force. In reaching its decision, the court rejected the Erlings’ experts’ opinions
as “counter to reality.” On appeal, the Erlings maintain the court erred, because (1) a
jury question was established as to whether ESCO’s product was defective and
unreasonably dangerous as a result of its design, manufacture, and lack of any warnings
or instructions, (2) their warranty claim was not time barred, and (3) the court should
not have rejected their experts’ opinions.


      1
       The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.
                                            -2-
       Upon de novo review, we conclude that summary judgment for ESCO was
appropriate as to the negligence claims, in that (1) the Erlings failed to show ESCO’s
tooth was defectively designed, because their experts failed to suggest a safer
alternative design, (2) the Erlings failed to show by expert testimony that the tooth was
defectively manufactured, and (3) ESCO owed no duty to warn of the dangers of
hammering the tip of the tooth, because the danger was obvious and known to Mr.
Erling, an experienced welder and replacer of conical points, who admitted knowing
that striking hardened metal with hardened metal could cause splintering. See N.D.
Cent. Code § 28-01.3-01 (“unreasonably dangerous” means, inter alia, dangerous to
extent beyond which would be contemplated by ordinary user of product in that
community, considering product’s characteristics, propensities, risks, dangers, and
uses, together with any actual knowledge, training, or experience possessed by
particular user), § 28-01.3-06 (Supp. 1999) (no product may be considered to be
defective unless at time product was sold there was defect or defective condition
making product “unreasonably dangerous” to user or consumer); National Bank of
Commerce v. Dow Chem. Co., 165 F.3d 602, 609-10 & n.13 (8th Cir. 1999) (affirming
grant of summary judgment in favor of manufacturer, because plaintiffs failed to elicit
admissible expert testimony supporting their defective manufacturing/design claims);
Walk v. Starkey Mach., Inc., 180 F.3d 937, 938-39 (8th Cir. 1999) (standard of
review); Vandelune v. 4B Elevator Components Unltd., 148 F.3d 943, 946 (8th Cir.)
(no duty to warn if user knows or should know of potential danger, especially when
user is professional who should be aware of product’s characteristics; applying
Restatement (Second) of Torts § 388 (1965)), cert. denied, 525 U.S. 1018 (1998);
Dancy v. Hyster Co., 127 F.3d 649, 653-54 (8th Cir. 1997) (plaintiff with defective-
design claim bears burden of proving existence of defect by showing that safer
alternative design actually exists; absent expert testimony, there is no basis to evaluate
actions of ordinarily prudent person in same situation as manufacturer), cert. denied,
523 U.S. 1004 (1998).




                                           -3-
        We also conclude summary judgment was proper on the strict liability claims,
because the Erlings provided no evidence showing that ESCO’s tooth was defective
or unreasonably dangerous, and Mr. Erling, as an experienced professional, should
have been aware of the tooth’s characteristics. See Vandelune, 148 F.3d at 946;
Morrison v. Grand Forks Hous. Auth., 436 N.W.2d 221, 223 n.2 (N.D. 1989) (strict
liability cannot attach absent proof of defect in product). Furthermore, we conclude the
court did not err as to the breach-of-warranty claim, because, regardless of the time-bar
issue, the Erlings failed to contest ESCO’s conspicuous written disclaimer of implied
warranties. See N.D. Cent. Code § 41-02-33(2) (1999) (exclusion of warranties must
be by writing and must be conspicuous). Finally, we hold the court did not err in
rejecting the Erlings’ experts’ opinions, because only one expert concluded the tooth
was defectively designed or unreasonably dangerous, but he based his opinion on the
erroneous belief that ESCO’s design required hammering the tooth’s tip.

      Accordingly, we affirm.

      A true copy.

             Attest:

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




                                           -4-
