Lamb by Shepard v. Sears, Roebuck & Co.

• Citation: 1 F.3d 1184
• Decision Date: 15 September 1993
• Docket Number: No. 92-8005,92-8005
• Parties: Prod.Liab.Rep.(CCH)P 13,616 Travis Lee LAMB, by his Guardian ad Litem, Stephen E. SHEPARD, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1184

1 F.3d 1184

Prod.Liab.Rep.(CCH)P 13,616

Travis Lee LAMB, by his Guardian ad Litem, Stephen E SHEPARD, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.

No. 92-8005.

United States Court of Appeals Eleventh Circuit.

Sept. 15, 1993.

John Chapman Bell, Jr., Bell & Pannell, Augusta, GA, for plaintiff-appellant.

Patrick J. Rice, Hull, Towill, Norman & Barett, James B. Ellington, Augusta, GA, for defendant-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before ANDERSON, Circuit Judge, MORGAN and JOHNSON, Senior Circuit Judges.

MORGAN, Senior Circuit Judge:

Appellant, through his guardian ad litem, brought this products liability action against the seller of an above-ground swimming pool for damages suffered when he nearly drowned after falling into the pool. Appellant alleges that the pool was defectively designed and that it contained inadequate and defective directions and warnings. At the close of evidence, the district court directed a verdict in favor of appellee. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

In the summer of 1982, Donald Fuller purchased a ten-foot in diameter, twenty-four inch high, above-ground swimming pool from the appellee, Sears, Roebuck & Company (Sears). The pool was manufactured by Muskin, Inc. for Sears. The instructions, which bore the Sears name, were prepared and printed by Muskin. The directions accompanying the pool warned that the pool should only be used under adult supervision. However, this pool did not come with a fence nor did any of the directions state that a fence was necessary for the proper use of the pool.

Mr. Fuller installed the pool in his backyard according to the directions provided by Sears. The directions instructed the purchaser to pick out a place in the yard for the pool, to draw a ten-foot circle, find the lowest spot within the circled area, and level the ten-foot area to the lowest spot in that circle. Mr. Fuller's backyard has a gentle slope to it and as a result of following Sears' instructions, the wall of the southern end of the pool was only fourteen to eighteen inches above ground level ¹. The southern side of the Fuller's backyard is adjacent to the Lamb property. After setting up the pool, Mr. Fuller kept the instructions and subsequently used them to order a replacement liner for the pool from Sears.

On October 23, 1985, Mrs. Jan Lamb, mother of the appellant Travis Lamb, was preparing supper while Travis and his four-year-old brother were playing in the carport area. The carport of the Lamb house is on the opposite side of the house from the Fuller's property. Sixteen-month-old Travis wandered away from his house, traveled at least one hundred and sixty feet to the Fuller's swimming pool, found his way into the pool and was discovered some time later by his mother. Lamb remained underwater for an undetermined period of time and suffered severe brain injuries from a lack of oxygen.

Photographs of the pool taken the day after the accident occurred were admitted into evidence during the trial. These photographs show that the rim of the pool wall is bent inward near the point where the pool wall is lowest. However, these photographs also show that the rim of the pool is bent inward in at least six separate locations, including an area above the pool filter which sits adjacent to the pool wall. In addition, several of the top rails of the pool wall are missing. Mr. Fuller testified that at some point between the time he purchased the pool and the date of the accident, several of the top rails were lost by children playing there. Mr. Fuller spread the remaining rails around the top of the pool wall and continued to use the pool without the missing rails. Mr. Fuller never attempted to purchase replacement rails, which were available through Sears.

Travis Lamb suffered severe brain damage from oxygen deprivation as a result of his fall into his next-door neighbor's pool. Through his guardian ad litem, Lamb filed this suit against Sears and Mr. Fuller. Mr. Fuller was dismissed as a party and the case went to trial before a jury on December 16, 1991. Following the close of evidence, the trial judge granted Sears' motion for a directed verdict on the grounds that the pool was not defective, that the dangers involved with the pool were open and obvious, and that Lamb had not presented sufficient evidence of causation. Notice of appeal was timely filed with this court.

STANDARD OF REVIEW

In determining whether the district court erred in granting Sears' motion for a directed verdict, we apply the same standard as that applied by the district court. In evaluating the standard, this court has stated:

On motions for directed verdict and for judgment notwithstanding the verdict the court should consider all of the evidence--not just that evidence which supports the non-movers case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a questions for the jury. The motions for directed verdict and judgment n.o.v. should not be decided by which side has the better of the case nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question.

Miles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525, 1528 (11th Cir.1989) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc)) ².

DISCUSSION

Lamb sued Sears under theories of negligence and strict liability for selling an above-ground pool that was defective. A defect can exist in the product design, in faulty construction, in the instructions, in the form and content of the warnings, or in the failure to warn. Collins v. Newman Machine Co., 190 Ga.App. 879, 881, 380 S.E.2d 314, 317 (1989). Lamb contends that there were defects in the design and manufacture of the pool, that the directions were defective, and that the warnings were inadequate. In order for Lamb to prove his claims against Sears under his strict liability theory, he must show that the pool, "when sold by the manufacturer, was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained." O.C.G.A. Sec. 51-1-11(b)(1) (Supp.1992). To prove his claims of negligence, Lamb must show that Sears breached some duty owing to him and that said breach was the proximate cause of Lamb's injuries. Bradley Center, Inc. v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693, 695 (1982).

I. DEFECTIVE DESIGN

Lamb contends that the swimming pool was negligently and defectively designed and manufactured in that it did not contain the appropriate safeguards to prevent the sides of the pool from collapsing, thereby creating a dangerous condition to minor children who could push over the side of the wall and fall into the pool. Lamb's expert witness, Dr. Harrenstien ³, testified that the pool, as originally designed and sold by Sears with all of its rails in place, could withstand at least fifty pounds of vertical pressure without buckling. Dr. Harrenstien also testified that the wall of the pool in its original condition provided enough support and structural integrity to keep a child the size of Lamb from pushing in the side walls of the pool, and he opined that, had the pool been on level ground with all its rails in place, Lamb probably would not have been able to get into the pool. ⁴ The uncontradicted evidence of Lamb's own expert shows that the walls of the pool, in its original condition, were structurally sound.

Lamb argues, however, that the condition of the pool at the time of the accident was a result of reasonably foreseeable wear and tear. The district court found, to the contrary, that the pool was in a materially altered condition from when it was sold. ⁵ The injuries suffered by Lamb must be the proximate result of a defect which existed in the product at the time it was sold, and if the product has been materially altered or modified by a third party after the sale, those injuries cannot be traced to be the proximate result of Sears' original design. Talley v. City Tank Corp., 158 Ga.App. 130, 134-35, 279 S.E.2d 264, 269 (1981); see also Union Carbide Corp. v. Holton, 136 Ga.App 726, 730, 222 S.E.2d 105, 109 (1975) ("A seller is not liable when he delivered the product in a safe condition and subsequent mishandling or other causes made it harmful by the time it was consumed."). The photographs of the pool show a complete failure on the part of the Fullers to observe routine care and maintenance. This goes well beyond normal wear and tear. ⁶ We can come to no other conclusion but that the Fuller's swimming pool was in a materially altered condition.

Lamb asserts that Sears should have foreseen the possibility that the top rails would wear out, break, or be lost. Sears addressed this contingency by making replacement parts available to the purchaser, but Lamb argues that Sears could have and should have designed the rails so that they could not be removed or broken. We find the analysis in Weatherby v. Honda Motor Co., Ltd., 195 Ga.App. 169, 393 S.E.2d 64 (1990) to be applicable here. In Weatherby, the plaintiff was injured while riding a motorcycle without the gas cap in place. The plaintiff argued that the vehicle was defective because the manufacturer did...