1 F.3d 1184 (11th Cir. 1993), 92-8005, Lamb by Shepard v. Sears, Roebuck & Co.

Docket Nº:92-8005.
Citation:1 F.3d 1184
Party Name:Travis Lee LAMB, by his Guardian ad Litem, Stephen E. SHEPARD, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.
Case Date:September 15, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1184

1 F.3d 1184 (11th Cir. 1993)

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

September 15, 1993

Page 1185

[Copyrighted Material Omitted]

Page 1186

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

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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...

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