• February 24, 2014

Brillion Soil BuilderA soil builder is a menacing piece of farming machinery, at least from the perspective of a Twin Cities lawyer who is a little scared of staple removers.  Human flesh and bone vs. soil builder would not be a fair fight.

But some models used to have a latent additional threat. To have its metal hooks or “shanks” dig deeper into the ground, a while back Defendant/Manufacturer Brillion Ironworks had the Brillion idea to fill the frame (the red part in the image above, a later model shown for purposes of illustration) with “galvanized steel punchings, which contained zinc and cutting oil as lubricant.” Farmers occasionally tinker with the frames for one reason or another (the winters are long, business is slow, tools are fun? (actually the things break and need repairs)). The galvanized steel punchings that contained zinc reacted with the moisture from the cutting oil to produce flammable gases such as hydrogen and methane. In two incidents in the 1990’s, when users drilled into the tubes, the gases streamed out, were ignited, and there were injuries.

No worries (going forward, that is). Brillion changed the design years ago. But Plaintiff Terrance Gardner crossed paths with a Brillion soil builder from the dangerous by-gone era when a farmer brought the soil builder to Gardner’s shop for repair in 2011.

Gardner is an experienced metal worker with an associate’s degree in mechanical and design technology and has worked for twenty-four years in the mechanic industry. His shop was asked to perform some work on a Brillion soil builder. Gardner was specifically told not to weld on the frame due to risk of explosion. But he was not told not to drill.

He drilled. He suffered burns to his face, neck, arms, and upper body when flames allegedly shot out, as if from a jet engine.

The big tussle at the summary judgment stage, in a nutshell, was whether an express warning not to weld the soil builder frame at the risk of explosion should serve as a warning not to drill the frame as a matter of law.

U.S. District Court Judge John R. Tunheim (D. Minn.) found that there were genuine issues of material fact that barred summary judgment in favor of Brillion.

I concur. In fact, I think this was so straight-forward that I am a little surprised that Brillion bothered with the motion.  On the other hand, I have to assume that Brillion’s insurer is picking up the tab here and, in my experience, insurance companies seem quite partial to invoking every possible defense without a great deal of focus on likelihood of success.

These are among the most sophisticated legal actors in our society. They undoubtedly have the data to support their strategy so I should just defer to their superior information and conclude with a congratulatory note to Plaintiff and his lawyers, Stephen F. Rufer and Chad R. Felstul, of Pemberton Law in Fergus Falls.

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