153 F.R.D. 103 (N.D.Miss. 1994), DC 88-71-D-D, Batts v. Tow-Motor Forklift Co.
| Citation | 153 F.R.D. 103 |
| Opinion Judge | DAVIDSON, District Judge. |
| Party Name | Myron BATTS, Plaintiff, v. TOW-MOTOR FORKLIFT COMPANY and Caterpillar Industrial, Inc., Defendants. |
| Attorney | Charles M. Merkel, Jr., Clarksdale, MS, for plaintiffs. John G. Corlew, Jackson, MS, for defendants. |
| Case Date | February 08, 1994 |
| Court | United States District Courts, 5th Circuit, U.S. District Court — Northern District of Mississippi |
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Worker brought products liability suit against forklift manufacturer. After final judgment was affirmed on appeal, 978 F.2d 1386, worker sought relief from judgment. The District Court, Davidson, J., held that apparent misapplication of Mississippi law warranted relief from judgment.
Motion granted.
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MEMORANDUM OPINION
This is a six-year-old products liability case which has come before the district court for a second trip. In March of 1991, this case was tried before the undersigned, and the jury returned a verdict in favor of defendants. Post trial motions for judgment notwithstanding the verdict, or alternatively for a new trial, were denied by the undersigned on April 30, 1991. Plaintiff appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed this district court in all respects. The opinion is reported by the Fifth Circuit at Batts v. Tow-Motor Forklift Company, et al, 978 F.2d 1386 (5th Cir.1992). The opinion was released on November 25, 1993, and the mandate issued on January 4, 1993. Now, plaintiff has returned to United States District Court under the auspices of Federal Rule of Civil Procedure 60(b)(6), Relief from Judgment, for " any other reason justifying relief from the operation of the judgment." The sum and substance of plaintiff's motion travels on the coattails of the Mississippi Supreme Court's decision in Sperry-New Holland v. Prestage, 617 So.2d 248 (Miss.1993). With Prestage as his sword, plaintiff asserts that this court incorrectly applied Mississippi products liability law, an error compounded by the Fifth Circuit's affirmance, when it instructed the jury on the open and obvious defense and the " consumer expectation test" consistent with the law of strict liability, Restatement (2d) 402A of the Law of Torts. As explained in this memorandum opinion, the court has now concluded that the jury was improperly instructed on Mississippi products liability law when this case went to trial in March of 1991. Faithful to our Erie 1 duty to apply state law as expressed by the highest court of this state, this court recognizes the " retroactive rule of Prestage. " As such, the motion for relief from judgment will be granted. Prior entry of judgment on April 3, 1991, will be vacated, and the case returned to this court's active docket. Before discussing the merits of the motion as advanced by the plaintiff, the court presents some additional background facts which help complete the picture for the issues that the court addresses today.
Background
In August of 1984, Myron Batts was employed by Flavorite Laboratories, Inc., where he operated a type of forklift referred to as a " tugger." 2 The room where Batts worked was often noisy, and at least one other motorized forklift operated in the same room. The second motorized lift was operated by a seated driver using controls to his front where the forks were located. On the day in question, Charles Johnson was driving the motorized lift in reverse when he backed into Myron Batts, resulting in injury. At the time of the collision, Batts was working with his lift and was either walking beside or backwards with the tugger. Batts brought suit alleging that the forklift should have had a back-up alarm, flashing warning lights, and/or rearview mirrors. According to Batts, the absence of such warning devices entitled him to recover under either strict liability in tort (defective condition unreasonably dangerous), failure to warn, negligent manufacture, or breach of implied and express warranties. Caterpillar's principal defense was that the danger of operating a forklift (the tugger) while not facing in the direction of travel of the operator driven lift was an open and obvious danger. To this end, such open and obvious danger was a complete bar to recovery under Mississippi law.
The trial of this case was conducted before the undersigned on March 25-29, 1991. The jury was instructed on the " open and obvious" defense, sometimes referred to as the " patent danger" rule. In his brief supporting his Rule 60(b)(6) motion, plaintiff asserts that he argued for a " risk utility" instruction in lieu of the consumer expectation test and the inherent " open and obvious" rule. While the court is not disputing this assertion in the absence of a complete transcript of the
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jury instruction conference, the undersigned merely notes that the record which plaintiff has furnished does not reflect a request for the " risk utility" test. In any event, the point is academic. For the record does indicate that Batts entered several objections to the court's instruction on the " open and obvious" defense. In the case sub judice, the jury returned a verdict for defendant finding the " open and obvious" defense to be a complete bar to recovery. Post trial motions for j.n.o.v. and new trial predicated upon the court's charge to the jury were denied by the undersigned. Appeal was taken to the United States Court of Appeals for the Fifth Circuit. On appeal, Batts argued that this court committed reversible error when it instructed the jury on the " open and obvious" defense. The Fifth Circuit rejected the argument and affirmed the judgment of this court holding that the undersigned had correctly instructed the jury on Mississippi products liability law. See Batts v. Tow-Motor Forklift Co., 978 F.2d 1386 (5th Cir.1992).3 The discussion which follows completes the procedural history of this case which has new life following the Mississippi Supreme Court's decision in Sperry New-Holland v. Prestage, 617 So.2d 248 (Miss.1993).
Discussion
In 1966, Mississippi adopted the doctrine of strict liability in tort. See State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 119 (Miss.1966). With the adoption of strict liability, the Mississippi Supreme Court no longer required " privity of contract" between the manufacturer of a product and the ultimate consumer, and the plaintiff was relieved of the burden of proving negligence. Fault (negligence) is supplied as a matter of law. Toliver v. General Motors, 482 So.2d 213, 215 (Miss.1986); State Stove, 189 So.2d at 121. With State Stove, the court adopted the statement of strict liability as expressed in Section 402A of the American Law Institute's Restatement of Torts (Second). Section 402A provides as follows:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Restatement (Second) of Torts § 402A (1965). (emphasis added).
Products Liability Standards
A. Consumer Expectation Test
As noted in Prestage, the Mississippi court has had numerous opportunities to apply strict liability since its adoption in 1966.4 According to Prestage, 402A is " still the law" in Mississippi. However, there is a distinction with a difference with regard to the defining parameters of " defective condition" and " unreasonably dangerous" as expressed in section 402A(1). Comment (i) to Section 402A of the Restatement (Second) of Torts describes " unreasonably dangerous" as follows: " The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Comment g describes " defective condition" as one, " where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." This standard for liability is known as the " consumer expectation test." In order for a plaintiff to recover under the
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" consumer expectation test," he or she must prove that injury was caused by a defect in the product which the plaintiff would not know to be unreasonably dangerous. Stated differently, if the plaintiff, in applying the knowledge of an ordinary consumer in the community, sees a danger associated with a product and can appreciate that danger, then there can be no recovery from any injury that resulted from the appreciated danger. Prestage, 617 So.2d at 254. " A product that has an open and obvious danger is not more dangerous than contemplated by the consumer, and hence cannot, under the consumer expectation test applied in Mississippi, be unreasonably dangerous." Toney v. Kawasaki Heavy Industries, Ltd., 975 F.2d 162, 165 (5th Cir.1992), quoting Melton v. Deere & Co., 887 F.2d 1241, 1243 (5th Cir.1989). As noted in Prestage, the United States District Courts in Mississippi, as well as the Fifth Circuit Court of Appeals, have consistently held that Mississippi employs the " consumer expectation test" with its inherent " open and obvious" standard in products liability cases. By way of illustration, Prestage, at 617 So.2d page 254, cites four recent decisions from the Fifth Circuit wherein the " consumer expectation test" was applied to products liability actions. See Batts v. Tow-Motor Forklift Co., 978 F.2d 1386 (5th...
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