713 F.2d 1040 (4th Cir. 1983), 82-1430, Bly v. Otis Elevator Co.

Docket Nº:82-1430.
Citation:713 F.2d 1040
Party Name:Nancy L. BLY, Administratrix of Wayne A. Bly, deceased, Appellee, v. OTIS ELEVATOR COMPANY, a New Jersey Corporation, Appellant.
Case Date:August 04, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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713 F.2d 1040 (4th Cir. 1983)

Nancy L. BLY, Administratrix of Wayne A. Bly, deceased, Appellee,


OTIS ELEVATOR COMPANY, a New Jersey Corporation, Appellant.

No. 82-1430.

United States Court of Appeals, Fourth Circuit

August 4, 1983

Argued Jan. 13, 1983.

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Jean-Pierre Garnier, Falls Church, Va., for appellant.

Stephen D. Annand, Alexandria, Va. (Cohen & Annand, P.C., Charles Shepard Cox, Jr., Alexandria, Va., on brief), for appellee.

Before WINTER, Chief Judge, PHILLIPS, Circuit Judge, and BUTZNER, Senior Circuit Judge.


Otis Elevator Co. appeals from a final judgment in the district court, entered on a general jury verdict, holding it liable on a breach of warranty theory for personal injuries suffered by plaintiff's decedent. Because there was error in the jury instructions regarding the manufacturer's duty to warn as an element of the warranty of merchantability, we vacate the judgment and remand for a new trial.


Plaintiff's decedent, Wayne Bly, was injured while operating a lift truck at the Avtex Fibers Plant in Virginia where he was employed. The truck was equipped in the front with a lift mechanism used to transport large canisters throughout the factory, and in the rear with a shin-high guard designed to provide protection from objects encountered while the truck was travelling in reverse. Operators of this and other lift trucks owned by Avtex stand on a small platform at the rear of the truck with their torso facing forward to maneuver the steering and other controls. Because the large canisters impair visibility to the front, the trucks are driven in reverse around the plant, necessitating that operators look over their shoulders in the direction of travel.

The particular truck Bly was driving when he sustained injury was manufactured by Baker Raulang Co., which sold the truck to the predecessor-in-interest of Avtex in 1944. Baker Raulang last exercised control over the truck in 1948, when it modified the truck's lift mechanism.

The parties agree that Bly was injured in September 1979 when he backed his truck without looking behind him and ran into a canister perched on the front-end lift of another truck. Because that canister was raised off the floor, the shin-high guard on Bly's truck slipped underneath, and Bly was crushed between the canister and the controls of his truck.

Bly's mother, as administratrix of his estate, then instituted the present wrongful death action against Otis Elevator Co.--the successor-in-interest to Baker Raulang--seeking relief on the basis of negligence and breach of warranty for alleged defects in the lift truck. The district court granted Otis's motion for directed verdict on the negligence count, holding as a matter of law that Bly's contributory negligence barred recovery. Accordingly, the case went to the jury solely on a theory of breach of the implied warranty of merchantability.

On appeal from the judgment entered on a jury verdict for the plaintiff, Otis contends there was insufficient evidence to support a verdict on this theory, and that the trial court's jury instructions erroneously included a charge on the manufacturer's duty to warn. We sketch briefly the contours of an action for breach of warranty, and then turn to the merits of these claims.


Under Virginia law, which the parties agree controls resolution of this diversity action, manufacturers and sellers of defective products can be held liable on theories of negligence and breach of the implied warranty of merchantability. See

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Featherall v. Firestone Tire & Rubber Co., 219 Va. 949, 961-64, 252 S.E.2d 358, 367 (1979); Logan v. Montgomery Ward & Co., 216 Va. 425, 428, 219 S.E.2d 685, 687 (1975); see also Va.Code §§ 8.2-314, 8.2-318 (1965). A personal injury or wrongful death claimant may recover for breach of warranty under Virginia law by establishing "(1) that the goods were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose, and (2) that the unreasonably dangerous condition existed when the goods left the defendant's hands." Logan v. Montgomery Ward & Co., 216 Va. at 428, 219 S.E.2d at 687. A product can be "unreasonably dangerous" if defective in assembly or manufacture, see, e.g., Matthews v. Ford Motor Co., 479 F.2d 399, 400 (4th Cir.1973), if imprudently designed, see, e.g., Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066, 1071 (4th Cir.1974), or if not accompanied by adequate warnings about its hazardous properties, see, e.g., Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 85-86 (4th Cir.1962).


We dispose quickly of Otis's contention that the evidence adduced on trial was insufficient to support the jury verdict. 1

The primary theory of plaintiff's breach of warranty claim was that the lift truck as designed was defective and "unreasonably dangerous" because its shin-high guards provided inadequate protection to the operator in rear-end collisions. In support of this theory, plaintiff produced substantial expert and documentary evidence which if accepted by the jury indicated that, by the 1940's when this truck was manufactured and sold, industry and government circles had recognized the need for waist-high guards on such lift trucks as a reasonable means of ensuring greater safety. Cf. Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066, 1073 (4th Cir.1974) ("if an article can be made safer and the hazard of harm may be mitigated 'by an alternative design or device at no substantial increase in price,' then the manufacturer has a duty to adopt such a design"). In light of this evidence suggesting that waist-high guards reflected prevailing industry views on the appropriate level of operator protection at the time this lift truck was manufactured and sold, coupled with expert testimony opining that the truck was, in this sense, defective in design, a jury could...

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