66 F.3d 743 (5th Cir. 1995), 94-60606, Batts v. Tow-Motor Forklift Co.

Docket Nº:94-60606.
Citation:66 F.3d 743
Party Name:Myron BATTS, Plaintiff-Appellee, v. TOW-MOTOR FORKLIFT COMPANY and Caterpillar, Inc., Defendants, Caterpillar, Inc., Defendant-Appellant.
Case Date:October 03, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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66 F.3d 743 (5th Cir. 1995)

Myron BATTS, Plaintiff-Appellee,


TOW-MOTOR FORKLIFT COMPANY and Caterpillar, Inc., Defendants,

Caterpillar, Inc., Defendant-Appellant.

No. 94-60606.

United States Court of Appeals, Fifth Circuit

October 3, 1995

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Frank A. Wood, Jr., John G. Corlew, Watkins & Eager, Jackson, MS, for appellant.

Jack F. Dunbar, Robert S. Mink, Holcomb, Dunbar, Connell, Chaffin & Willard, P.A., Oxford, MS, for amicus curiae--Deere & Co.

William B. Raiford, III, Charles M. Merkel, Merkel & Cocke, Clarksdale, MS, for appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before JOLLY and BENAVIDES, Circuit Judges, and FITZWATER, District Judge. [*]

FITZWATER, District Judge:

We are asked to decide in this Erie 1 case whether a change in state decisional law--in this instance, Mississippi's conversion from the "consumer expectations" to the "risk-utility" test in products liability actions--constituted an extraordinary circumstance that vested the district court with discretion to grant Fed.R.Civ.P. 60(b)(6) relief. Because we hold that it did not, we reverse.


The relevant background facts are set out in our prior opinion in this case, see Batts v. Tow-Motor Forklift Co., 978 F.2d 1386, 1387-88 (5th Cir.1992) ("Batts I "), and in the district court's decision below. See Batts v. Tow-Motor Forklift Co., 153 F.R.D. 103, 104-05 (N.D.Miss.1994) ("Batts II "). We therefore recount them only briefly, adding subsequent procedural facts that necessarily were not set out in those opinions.

In 1984 plaintiff-appellee Myron Batts ("Batts") was injured when a coworker using a forklift collided with Batts. Batts I, 978 F.2d at 1388. The coworker hit Batts as he was operating a "tugger"--a type of motorized forklift that a person walks behind and guides--as the coworker was operating his forklift in reverse, but without sounding the equipment's manual horn. Id. at 1387-88. The forklift was generally maneuvered equally in reverse and in forward. Id. at 1387.

In 1988 Batts brought a diversity action against defendant Tow-Motor Forklift Company, the manufacturer of the forklift, and its successor-in-interest, defendant-appellant Caterpillar Industrial, Inc. ("Caterpillar"), alleging inter alia theories of negligence and strict liability. Id. at 1388. The case was tried in March 1991. Batts II, 153 F.R.D. at 104. Batts introduced evidence at trial to prove that the forklift should have been equipped with a back-up alarm, flashing warning lights, and/or rearview mirrors, and that this failure entitled him to recover on the basis of strict liability (defective and unreasonably dangerous product) or negligence (negligent design). Batts I, 978 F.2d at 1388. Caterpillar presented evidence that there was no restriction on the operator's visibility to the rear, and that there was a danger in the operator's relying on alarms, lights, or mirrors rather than simply looking in the direction of travel. Id.

One of Caterpillar's principal defenses was that the absence of the devices on which Batts relied to establish liability, coupled with the danger of the forklift operator's not facing the direction of travel, was open and obvious to the forklift owner (Batts' employer) and to users (the employee operators), thus barring recovery by Batts under Mississippi law. Id.; see Batts II, 153 F.R.D. at 104 ("To this end, such open and obvious danger was a complete bar to recovery under Mississippi law."). Over Batts' objection, the trial court instructed the jury on Caterpillar's "open and obvious" defense, Batts II, 153 F.R.D. at 104-05, charging the jury that an open and obvious danger could not render the product unreasonably dangerous. Batts I, 978 F.2d at 1391. The court also directed the jury to find whether the defect was open and obvious to a reasonable and prudent user, and instructed the jury that if it so found, it was to render a verdict in favor of Caterpillar. Id. at 1392. The jury returned a verdict for Caterpillar.

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Following denial of his post-verdict motions, Batts appealed to this court and moved the court to stay the appeal pending the Mississippi Supreme Court's expected decision in Sperry-New Holland v. Prestage, 617 So.2d 248 (Miss.1993), an unrelated and as yet undecided case then pending before that court. A panel of this court denied the motion in June 1991. We later affirmed the judgment in favor of Caterpillar. Batts I, 978 F.2d at 1397. We filed our opinion on November 25, 1992, and denied a petition for rehearing and rehearing en banc on December 23, 1992. Our mandate issued on January 4, 1993.

In 1991, when the case was tried, and in 1992, when we decided Batts' appeal, we understood Mississippi to follow the consumer expectations rather than risk-utility test in strict liability actions. See id. at 1392; Melton v. Deere & Co., 887 F.2d 1241, 1243 (5th Cir.1989). 2 In Batts I we noted that "our court has held ... that there is no strict liability in tort under Mississippi law for a patent--open and obvious--danger." Batts I, 978 F.2d at 1392. Batts conceded that our decisions "support[ed] Caterpillar's contention that the consumer expectation test applies, as opposed to a risk utility analysis." Id. (footnote omitted). He urged, however, that we had misinterpreted Mississippi law. Id. at 1392-93. We disagreed with Batts' analysis, holding that the cases on which he relied "do not persuade us that Mississippi has fundamentally shifted its test from one of consumer expectation to risk utility." Id. We also held that even if we agreed with Batts, we were still bound by the prior panel opinion in Melton. Id. & n. 15. We declined to certify the issue to the Mississippi Supreme Court, noting that "[o]ur law is clear" and that "the Mississippi law upon which our precedent is based is unchanged." Id. at n. 16.

On March 25, 1993--subsequent to issuance of our mandate on January 4, 1993--the Mississippi Supreme Court filed its opinion in Prestage, holding that Mississippi applied the risk-utility test of products liability, and that it had done so since 1988. Prestage, 617 So.2d at 252, 254-55. Prestage involved a suit for injuries caused when the plaintiff's leg was caught in a combine manufactured by Sperry-New Holland, requiring amputation of the lower portion of the plaintiff's leg. Prestage sued Sperry-New Holland on strict liability and negligent design theories. The trial court instructed the jury using risk-utility analysis, and it returned a verdict for the plaintiff. Id. at 251.

On appeal, the Mississippi Supreme Court affirmed, reasoning that it had moved away from consumer expectations analysis in two 1988 decisions, Hall v. Mississippi Chem. Exp., Inc., 528 So.2d 796 (Miss.1988), and Whittley v. City of Meridian, 530 So.2d 1341 (Miss.1988). Prestage, 617 So.2d at 254-55. The court noted that most courts employ the risk-utility test, and that this standard protects both manufacturers and consumers by requiring that manufacturers make products that are reasonably safe under all circumstances, as opposed to absolutely safe unless the danger is facially apparent. Id. at 256. The court expressly rejected this court's conclusion in Melton, 887 F.2d at 1243, that Whittley had not altered the test for strict liability. Prestage, 617 So.2d at 255. The court held that an open and obvious danger was not an absolute bar to recovery. Id. at 256 n. 4.

On April 19, 1993 Batts filed in the district court below a Rule 60(b)(6) motion, urging the court on the basis of Prestage to relieve him from the adverse judgment. See Batts II, 153 F.R.D. at 109. The district court granted Batts' motion, vacated the judgment in favor of Caterpillar, and restored the action to the court's active docket. Id. at 104, 109-10. The court stated that it had considered the factors of Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (5th Cir.1981), but did not explain how it had weighed any particular factor in reaching its decision. See Batts II, 153 F.R.D. at 109-10. It is otherwise

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clear from the district court's opinion, however, that the court granted Rule 60(b)(6) relief on the ground that it had applied the consumer expectations test at trial in March 1991, notwithstanding that Mississippi law had converted to the risk-utility test in 1988. Id. at 104 (holding "that the jury was improperly instructed on Mississippi products liability law when this case went to trial in March of 1991"), id. (recognizing "the retroactive rule of Prestage "), & 106-07 (observing that Prestage announced that Mississippi products liability law had changed in 1988).

The district court thereafter granted Caterpillar leave to take an interlocutory appeal of the order, and stayed all proceedings below. A panel of this court first denied, and later granted, leave to appeal.

Caterpillar asks us to reverse the order of the district court and reinstate the prior judgment in its favor.



Rule 60(b)(6) provides that a court may "relieve a party ... from a final judgment ... for ... any other reason justifying relief from the operation of the judgment." Rule 60(b) sets out five specific bases for granting relief from a final judgment, followed by clause (b)(6). We have held that this clause's " 'any other reason' language refers to any other reason than those contained in the five enumerated grounds on which a court may grant a Rule 60(b) motion." Government Fin. Servs. One Ltd. Partnership v. Peyton Place, Inc., 62 F.3d 767, 773 (5th Cir.1995) (citing cases). Although we frequently have recognized that " 'Rule 60(b)(6) is a grand reservoir of equitable power to do justice in a particular case when relief is not...

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