Freeman v. Case Corp.

• Decision Date: 08 July 1997
• Docket Number: No. 96-1626,96-1626
• Citation: 118 F.3d 1011
• Parties: Prod.Liab.Rep. (CCH) P 15,032 Daniel FREEMAN, Plaintiff-Appellant, and Mary Freeman, Plaintiff, v. CASE CORPORATION, a/k/a J.I. Case Company, A Tenneco Corporation; Case International, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1011

118 F.3d 1011

Prod.Liab.Rep. (CCH) P 15,032

Daniel FREEMAN, Plaintiff-Appellant, and Mary Freeman, Plaintiff, v. CASE CORPORATION, a/k/a J.I. Case Company, A Tenneco

Corporation; Case International, Defendants-Appellees.

No. 96-1626.

United States Court of Appeals, Fourth Circuit.

Argued May 6, 1997.

Decided July 8, 1997.

ARGUED: J. Farrest Taylor, Cherry, Givens, Peters, Lockett & Diaz, Dothan, AL, for Appellant. Michael Harper Gladstone, Mays & Valentine, L.L.P., Richmond, VA, for Appellees. ON BRIEF: John K. Givens, Cherry, Givens, Peters, Lockett & Diaz, Dothan, AL, for Appellant. Dabney J. Carr, IV, Mays & Valentine, L.L.P., Richmond, VA, for Appellees.

Before HAMILTON and MOTZ, Circuit Judges, and LEGG, United States District Judge for the District of Maryland, sitting by designation.

Reversed and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge HAMILTON and Judge LEGG joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

In this product liability diversity case, after the jury awarded the plaintiff substantial damages, the district court granted the defendant's motion for judgment. Because the district court erred in concluding that the hazard presented by defendant's product was open and obvious as a matter of law, and because sufficient evidence supported the jury verdict, we reverse and remand for further proceedings.

I.

Daniel Freeman purchased a Case International 1130 tractor with a mower attachment ("1130" or "mower" or "tractor") to care for his lawn. On May 22, 1992, the second time he used the 1130, Freeman suffered a serious accident.

While Freeman was mowing his lawn near a rocky slope, the mower blades glanced against a partially-buried boulder. Freeman lifted his foot off the speed ratio control pedal, bringing the tractor to a stop; he then pushed in the clutch and brake pedals and raised the mower attachment, intending to see if the rock had damaged the blades. Freeman had never used the brakes before because the mower is designed not to move unless the rider is pressing the speed ratio control pedal. Freeman removed his foot from the clutch to allow the blades to spin in order to check their alignment, planning then to back away from the boulder. Suddenly, the mower lunged forward, toward, and then over, the rocky embankment. Freeman leapt away from the machine, rolling forty feet down the hill. He came to rest on his stomach, safely, but the 1130 tumbled down on top of him, with the mower blades still activated. The blades severely and permanently injured him.

Freeman initiated this action against Case asserting negligence and breach of implied warranties. Two asserted defects in the mower provided the factual basis for both of these theories.

First, Freeman alleged that the brake pedal, which was located directly above the speed ratio control pedal, was too close to that pedal so that when a rider released the clutch and attempted to brake the mower, he risked pushing both pedals at the same time. Simultaneous engagement caused the 1130 to lurch forward once the clutch was released because the brakes were unable to override the mower's forward propulsion. ¹ Freeman maintained that this defect caused his accident.

Freeman also claimed that the 1130 was defective because it was not equipped with an operator presence control device, which would have discontinued power to the mower blades as soon as Freeman's weight left the tractor seat. If the mower had been designed with an operator presence control device, Freeman contended, the blades would have been moving much more slowly, if at all, by the time they hit him, and would not have injured him so badly.

A jury heard the case for seven days in October and November 1995 and awarded Freeman $3.8 million in compensatory damages. On a special verdict form the jury expressly found that Case negligently designed the 1130 in a manner that made it unreasonably dangerous, that the negligence proximately caused the accident, that Freeman was not contributorily negligent, and that he did not assume the risk of injury by voluntarily exposing himself to a known danger. The jury also found that Case breached its "implied warranty of merchantability and/or fitness for a particular use," that Freeman did not unforeseeably misuse the mower, and that the defects that made the 1130 unreasonably dangerous were not open and obvious.

Case moved for judgment as a matter of law and a new trial. On April 19, 1996, the court granted Case judgment as a matter of law because it found that the proximity of the pedals and the absence of the operator presence control device were open and obvious hazards. See Freeman v. Case Corp., 924 F.Supp. 1456, 1467-68 (W.D.Va.1996). The court also concluded that although Freeman had presented sufficient evidence of an unreasonably dangerous defect in the lack of an operator presence control device, he failed to present sufficient evidence of an unreasonably dangerous defect in the pedal configuration. Id. at 1462-64. Additionally, the court held that Freeman had failed to establish a breach of the implied warranty of fitness for a particular purpose and entered a conditional order granting a new trial on that issue. Id. at 1464. Finally, the court preliminarily determined that the $3.8 million jury award was excessive. Id. at 1473-74.

Freeman appeals. Because our jurisdiction is based on diversity of citizenship--a suit by a Virginia resident against a Delaware corporation--we must apply the law of the state where the accident occurred, Virginia. In doing so, we review de novo the district court's grant of judgment as a matter of law to determine whether the evidence presented at trial, viewed in the light most favorable to Freeman, would have allowed a reasonable jury to render a verdict in his favor. See Andrade v. Mayfair Management, Inc., 88 F.3d 258, 261 (4th Cir.1996). We review the district court's conditional grant of a motion for new trial for abuse of discretion, see City of Richmond v. Madison Management Group, Inc., 918 F.2d 438, 458 (4th Cir.1990), recognizing that an error of law constitutes an abuse of discretion. See Koon v. United States, --- U.S. ----, ----, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1990).

II.

The district court held, as a matter of law, that the mower's asserted defects were open and obvious. ² If that conclusion is correct, it bars Freeman's recovery under either a contract or tort theory. This is so because in Virginia, a plaintiff cannot recover for a breach of an implied warranty or negligence if the "purported defect of which the plaintiff complains was 'known, visible or obvious' to him." Wood v. Bass Pro Shops, Inc., 250 Va. 297, 462 S.E.2d 101 (1995) (citing Brockett v. Harrell Bros., 206 Va. 457, 143 S.E.2d 897, 902 (1965)) (applying open and obvious defense in warranty); Harris-Teeter, Inc. v. Burroughs, 241 Va. 1, 399 S.E.2d 801 (1991) (applying open and obvious defense in negligence).

"A risk is open and obvious if the person using the product is or should be aware of the risk." Austin v. Clark Equip. Co., 48 F.3d 833, 836 (4th Cir.1995) (interpreting Virginia law). Whether a hazard is open and obvious is a question of fact, and should be left to the jury when "the evidence [is] in conflict." Morgen Indus., Inc. v. Vaughan, 252 Va. 60, 471 S.E.2d 489, 492-93 (1996).

In granting judgment to Case, the district court determined that the arrangement of the brake and speed ratio control (SRC) pedals was open and obvious. While this may be true, it is not dispositive of the issue. The relevant question under Virginia law is not whether the defect itself--here the pedal arrangement--was obvious, but whether the hazard--the risk of inadvertent coengagement causing the tractor to lurch after release of the clutch--was open and obvious. ³

For example, in Morgen, 471 S.E.2d at 491, the asserted defect was an unguarded "nip point." The nip point is simply the point on a rail where the rail meets a wheel rolling on it, a design feature clearly visible to an observer. The plaintiff's expert testified nevertheless "that 'nip points' are not dangers that are obvious to most people." Id. (emphasis added). Despite testimony to the contrary, the Virginia Supreme Court found that "the jury was entitled to accept [the expert's] testimony that the hazard was not open and obvious." Morgen, 471 S.E.2d at 492. Thus, Virginia law looks not to whether the defect itself was obvious, but whether the hazard was clearly apparent.

Here, the hazard--that the pedals could easily be inadvertently coengaged and that coengagement could cause the mower to lurch because the brakes would not override the SRC--is far from obvious. Indeed, an operator might well not realize that the mower's pedals were coengaged unless he looked down at his feet. Unlike the accelerator pedal in an automobile, the SRC operates on hydrostatic principles; pressing the SRC does not affect engine speed so the operator would not perceive a change in engine noise due to faster engine rotation were the SRC inadvertently engaged.

Moreover, Case's expert testified that the brakes should overpower the SRC if an operator simultaneously pushes both pedals. This testimony alone would prevent a conclusion as a matter of law that the hazard caused by the brake's failure to override the SRC was "obvious." Case itself said such a hazard did not exist. Finally, the jury examined Freeman's mower in detail--two jurors actually sat in the operator's position, observed the pedals from that perspective, and pushed them--before the jury concluded that the defect was not open and obvious. ⁴

Viewing the evidence in the light most favorable to Freeman, as we must, the jury could reasonably have determined that the hazard presented by the pedals' proximity combined with the strength of the brakes relative to...