NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 5 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK COONROD, an individual, No. 23-35215

Plaintiff-Appellant, D.C. No. 3:18-cv-01530-AR

v.

MEMORANDUM*

COLUMBUS MCKINNON

CORPORATION, a foreign business corporation,

Defendant-Appellee,

v.

KONECRANES, INC., a foreign business corporation,

Defendant-third-party- plaintiff-Appellee.

Appeal from the United States District Court for the District of Oregon Jeffrey Armistead, Magistrate Judge, Presiding

Argued and Submitted April 4, 2024 Portland, Oregon

Before: OWENS and FRIEDLAND, Circuit Judges, and RAYES,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appellant Mark Coonrod worked as a welder fitter for Pierce Pacific

Manufacturing (“Pierce”). His job required him to use a crane equipped with a

hoist and mounting hook to move heavy parts onto his workstation. Coonrod was

injured on July 13, 2016, after the hoist came loose from its mounting hook and

struck him on his head. Subsequent investigations determined that a factory-

approved screw used to secure the mounting hook to the body of the hoist had at an

unknown time been replaced with a non-conforming screw, which wiggled loose

because unlike the factory-approved screw, it was too long and lacked an adhesive

coating called Loctite that would have prevented it from backing out of its

retaining hole.

Appellee Columbus McKinnon Corporation (“CMC”) designed and

manufactured the hoist, and Appellee Konecranes Incorporated (“Konecranes”)

sold it to Pierce and performed repairs on it over a year before the accident.

Coonrod alleges that the hoist was defectively designed and unreasonably

dangerous, that CMC and Konecranes failed to adequately warn of the dangers of

replacing the factory-approved screw with a non-conforming screw, and that

Konecranes either installed the non-conforming screw when it repaired the hoist or

failed to adequately inspect the hoist and uncover the defect.

** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation.

2 The district court granted summary judgment in favor of CMC and

Konecranes. We have jurisdiction under 28 U.S.C. § 1291 and review de novo.

Nodine v. Shiley Inc., 240 F.3d 1149, 1152 (9th Cir. 2001). We affirm in part,

reverse in part, and remand for further proceedings.

I. Strict Products Liability

Oregon law imposes strict liability on a seller for injuries caused by its

product if that product is defective and unreasonably dangerous. Or. Rev. Stat.

§ 30.920(1). Dangerousness is assessed using a consumer-expectations test, under

which “the plaintiff must prove that, when the product left the defendant’s hands,

the product was defective and dangerous to an extent beyond that which the

ordinary consumer would have expected.” McCathern v. Toyota Motor Corp., 23

P.3d 320, 332 (Or. 2001).

Coonrod argues the hoist was defective and unreasonably dangerous because

it (1) was designed with inadequate safety redundancies, such as torque markers or

the use of three screws instead of one to affix the mounting hook to the hoist’s

body, and (2) lacked an adequate warning about the dangers of replacing the

factory-approved screw with a non-conforming screw.

If it is foreseeable that a consumer will modify a product in a dangerous way

and that modification causes a consumer’s injury, a manufacturer can be liable for

failing to adequately warn the consumer that the modification is dangerous and

3 failing to design the product to ameliorate that danger. E.g., Anderson v. Klix

Chem. Co., 472 P.2d 806, 811 (Or. 1970), abrogated on other grounds by Phillips

v. Kimwood Mach. Co., 525 P.2d 1033 (Or. 1974); 1 Torts (OSB) § 20.5-1(e)(3)

(Oregon State Bar 2012) (“Foreseeable misuse cannot be a defense if it was

preventable by design changes or better warnings or instructions.”).

Coonrod’s expert, Scott Buske, opined that it was foreseeable someone

servicing the hoist would replace the factory-approved screw with a non-

conforming screw that lacked Loctite coating because “[s]crews and bolts are

usually interchangeable.” Thus, viewing the facts in the light most favorable to

Coonrod, a jury could find that the modification here was foreseeable. McPherson

v. State ex rel. Dep’t of Corr., 152 P.3d 918, 924 (Or. Ct. App. 2007) (“Ordinarily,

foreseeability is a fact question for the jury.”).

If the modification was foreseeable, a jury could find that the hoist was

dangerously defective because it lacked adequate safety redundancies and lacked

an adequate warning. The safe operation of the hoist depended on one screw to

securely affix the mounting hook. Using a Loctite-coated screw of appropriate

length was critical to ensuring that this single screw remained secured. If it was

foreseeable that consumers would not use such a screw, a jury could find that the

hoist should have had other means of securing the mounting hook to the hoist. A

jury could also find the warning against using a non-conforming screw was

4 inadequate. The hoist’s operations manual advised in three different sections that

only factory-approved replacement parts should be used when servicing or

repairing the hoist. However, Buske opined that a generic warning—found only in

the operations manual—to use only factory-approved parts was insufficient, and a

more specific warning to use only a Loctite-coated screw should have been given.

Buske’s opinion creates a genuine and material factual dispute over the adequacy

of the warning. See Benjamin v. Wal-Mart Stores, Inc, 61 P.3d 257, 264–65 (Or.

Ct. App. 2002) (“A warning’s adequacy is a proper subject of expert testimony.”).

Viewing the facts in the light most favorable to Coonrod, a reasonable jury could

find it foreseeable that the generic warning to use only factory-approved

replacement parts did not adequately inform users of the dangers of using a

different screw. See id. at 264 (“[A] warning is adequate when it is ‘in such a

form that it could reasonably be expected to catch the attention of the reasonably

prudent [person] in the circumstances of its use’ and the content of the warning is

‘of such a nature as to be comprehensible to the average user and to convey a fair

indication of the nature and extent of the danger to the mind of a reasonably

prudent person.’” (emphasis omitted) (quoting Anderson, 472 P.2d at 810)).1

1 Seeborg v. General Motors Corp., 588 P.2d 1100 (Or. 1978), is distinguishable because the manufacturer there had warned the consumer against inserting a stronger fuse, and that warning was “adequate to keep the original defect in the wiring from being dangerously defective because of the possibility of

5 CMC and Konecranes argue that even if Coonrod can establish a prima facie

case, we should affirm based on their statutory affirmative defense. See Travelers

Prop. Cas. Co. of Am. v. ConocoPhillips Co., 546 F.3d 1142, 1145 (9th Cir. 2008)

(“We may affirm for any reason supported by the record.”). We disagree. Oregon

law affords a seller a complete defense if a post-sale modification (1) “was made

without the consent of or was made not in accordance with the instructions or

specifications of the manufacturer, distributor, [or] seller”; (2) “was a substantial

contributing factor to the personal injury”; and (3) “[i]f the alteration or

modification was reasonably foreseeable, the manufacturer, distributor, seller or

lessor gave adequate warning.” Or. Rev. Stat. § 30.915. Buske’s opinion creates a

genuine and material factual dispute on the third element, specifically over the

foreseeability of someone replacing the factory-approved screw with a non-

conforming screw and the adequacy of the warning given. See Lavoie v. Power

Auto, Inc., 312 P.3d 601, 607–08 (Or. Ct. App. 2013) (denying summary judgment

based on a statutory modification affirmative defense where jurors could

reasonably find that the seller failed to adequately warn of the danger of a

foreseeable modification).

the insertion of a stronger fuse,” see id. at 1105. Here, there is a genuine dispute of fact as to whether the warning was adequate.

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II. Negligence

Under Oregon law, “[a] product liability civil action ‘embraces all theories a

plaintiff can claim in an action based on a product defect,’ including . . . negligence

[and] strict liability[.]” Simonsen v. Ford Motor Co., 102 P.3d 710, 714–15 (Or.

Ct. App. 2004) (citations omitted). To prevail on a negligence claim, a plaintiff

must prove:

(1) that defendant’s conduct caused a foreseeable risk of harm, (2) that the risk is to an interest of a kind that the law protects against negligent invasion, (3) that defendant’s conduct was unreasonable in light of the risk, (4) that the conduct was a cause of plaintiff’s harm, and (5) that plaintiff was within the class of persons and plaintiff’s injury was within the general type of potential incidents and injuries that made defendant’s conduct negligent.

Stewart v. Kids Inc. of Dallas, OR, 261 P.3d 1272, 1277 (Or. Ct. App. 2011)

(citation omitted). “When a defendant’s negligence is a factual cause of harm to

the plaintiff, the defendant is subject to liability to the plaintiff as long as the harm

that the plaintiff suffered was a reasonably foreseeable result of the defendant’s

negligence.” Lasley v. Combined Transp., Inc., 261 P.3d 1215, 1219 (Or. 2011).

Generally, “the application of either the theory of strict liability or of negligence

seldom leads to different conclusions.” Roach v. Kononen, 525 P.2d 125, 129 (Or.

1974).

That general trend holds true here. Coonrod asserts negligence claims

against CMC and Konecranes based on substantially the same allegations that

7 underpin his strict products liability claims. We hold the district court erred in

granting summary judgment on those negligence claims because Buske’s expert

opinion creates a genuine and material factual dispute over the foreseeability of the

modification and reasonableness of the warning to use only factory-approved

replacement parts.

Separately, Coonrod alleges that Konecranes acted negligently by either (1)

installing the non-conforming screw or (2) failing to conduct an adequate

inspection of the hoist, which Coonrod believes would have led to the discovery of

the non-conforming screw. The district court properly granted summary judgment

on this aspect of Coonrod’s negligence claim against Konecranes. There is no

record evidence that Konecranes installed the non-conforming screw, or indicating

when or how the factory-approved screw was replaced with the non-conforming

screw. The evidence shows that in December 2014, Pierce sent the hoist to

Konecranes for repairs, none of which involved the mounting hook suspension.

Konecranes completed the repairs in early 2015 and included in the invoice a

detailed list of the repairs and parts used. The subject screw was not among them.

To find Konecranes liable, a jury would have to speculate either that Konecranes

installed the non-conforming screw, or that the non-conforming screw had been

installed before Konecranes serviced the hoist in early 2015, and not sometime

8 after Konecranes returned it to Pierce. Coonrod cannot defeat a summary

judgment motion with mere speculation.

Each party shall bear its own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for

further proceedings.

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