741 F.2d 1235 (10th Cir. 1984), 82-1368, Downie v. Abex Corp.

Docket Nº:82-1368, 83-1369.
Citation:741 F.2d 1235
Party Name:David DOWNIE and Dwayne Bereska, Plaintiffs, v. ABEX CORPORATION, a corporation, Defendant-Appellee/Cross-Appellant, v. GENERAL MOTORS CORPORATION, a corporation, Third-Party Defendant-Appellant/Cross-Appellee.
Case Date:August 20, 1984
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
FREE EXCERPT

Page 1235

741 F.2d 1235 (10th Cir. 1984)

David DOWNIE and Dwayne Bereska, Plaintiffs,

v.

ABEX CORPORATION, a corporation, Defendant-Appellee/Cross-Appellant,

v.

GENERAL MOTORS CORPORATION, a corporation, Third-Party

Defendant-Appellant/Cross-Appellee.

Nos. 82-1368, 83-1369.

United States Court of Appeals, Tenth Circuit

August 20, 1984

Page 1236

James W. Gilson, Salt Lake City, Utah (L. Ridd Larson, Salt Lake City, Utah, with him on briefs) of Ray, Quinney & Nebeker, Salt Lake City, Utah, for Abex Corp.

H. James Clegg of Snow, Christensen & Martineau, Salt Lake City, Utah (Dennis C. Ferguson of Snow, Christensen & Martineau, Salt Lake City, Utah, and Otis M. Smith, Gen. Counsel, David W. Graves, Jr. and Judith Zakens, General Motors Corp., Detroit Mich., with him on the briefs), for General Motors Corp.

Before DOYLE and LOGAN, Circuit Judges, and CHILSON, District Judge. [*]

LOGAN, Circuit Judge.

In this diversity case David Downie and Dwayne Bereska, Canadian citizens employed by Western Airlines at Calgary International Airport, filed suit in federal district court in California against Abex Corporation to recover damages for injuries they suffered from the collapse of an airplane passenger loading bridge (Jetway) manufactured by Abex. The court granted Abex's forum non conveniens motion to transfer the case to Utah, the place where it manufactured the Jetway. After the transfer, Abex filed a third-party complaint stating a direct cause of action against General Motors Corporation (GM). GM manufactured the part that allegedly caused the Jetway to collapse. Before trial Abex settled the claims of Downie and Bereska. Abex sought recovery from GM for $83,224.71, the cost of reparing the Jetway, and $150,000, stipulated as the reasonable amount paid in settlement of plaintiffs' personal injury claims.

In submitting the case, the trial court asked the jury to complete a special verdict form on the comparative fault of Abex, GM, and plaintiffs. The jury found that defects in manufacturing or design on the

Page 1237

part of both Abex and GM caused the Jetway collapse. It apportioned sixty-five percent of the fault for the personal injuries and property damage to Abex and thirty-five percent to GM. The jury also found that GM breached a post-sale express warranty that its ball-screw assemblies would not fail. The jury found total damages of $237,784.88, of which $150,000 was for personal injuries to plaintiffs and $87,784.88 for property damage.

The trial court granted GM's motion for judgment n.o.v. on the express warranty issue but upheld the jury's strict liability verdict. It entered an amended judgment awarding Abex $83,224.71 (thirty-five percent of the total damages). Both parties appeal. Because we conclude that the trial judge erroneously granted GM's motion for judgment n.o.v. on the express warranty issue, we do not decide any of the issues applicable to the strict liability claims.

I

The Jetway was designed to provide an enclosed walkway from an airline terminal to an aircraft. To accommodate the different aircraft heights, it utilized a ball-screw assembly to raise and lower the Jetway. GM designed and manufactured the ball-screw assembly. GM manufactures ball-screw assemblies ranging in size from 3/16 of an inch to six inches in diameter. But Abex purchased only three- and four-inch assemblies, and it used a four-inch assembly in the Jetway involved here.

The screw and nut assembly manufactured by GM operates much like an ordinary nut and bolt. However, rather than the lands and grooves of the nut and bolt actually engaging each other, the nut is equipped with bearing balls that circulate in the concave grooves of the screw and nut. Thus, the bearing balls carry all loads imposed by the screw. For the ball-screw assembly to function properly the ball bearings must be diverted from one end of the ball nut and carried by ball guides to the opposite end of the ball nut. To accomplish this, the ball-screw assemblies are equipped with four yolk deflectors that direct the balls into three recirculating tubes. If the ball bearings fall out of the assembly the screw can free-fall through the nut. Apparently, however, if the ball bearings are lost from the assembly, the yolk deflectors will loosely engage in the grooves of the screw and act as a thread to prevent complete runout of the screw. Abex contends that GM expressly warranted this fail-safe feature of yolk deflectors for both the three- and four-inch screws. See Pl. Exs. 7 and 7a. According to GM, in the three-inch assemblies the tolerances within the nut are such that when all the ball bearings are removed, the yolk deflectors remain in contact with or "interfere" with the screw and cause the assembly to act like an ordinary nut and bolt. However, GM states that in the...

To continue reading

FREE SIGN UP