773 F.2d 1421 (4th Cir. 1985), 84-1681, Klein v. Sears Roebuck and Co.

Docket Nº:84-1681(L), 84-1682.
Citation:773 F.2d 1421
Party Name:Steven B. KLEIN and Claudia C. Klein, Appellees, v. SEARS ROEBUCK AND COMPANY, A New York Corporation, Appellant, and Murray Ohio Manufacturing Company, Inc., An Ohio Corporation, Defendant. Steven B. KLEIN and Claudia C. Klein, Appellants, v. SEARS ROEBUCK AND COMPANY, A New York Corporation, Appellee, and Murray Ohio Manufacturing Company, Inc.,
Case Date:September 17, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1421

773 F.2d 1421 (4th Cir. 1985)

Steven B. KLEIN and Claudia C. Klein, Appellees,

v.

SEARS ROEBUCK AND COMPANY, A New York Corporation, Appellant,

and

Murray Ohio Manufacturing Company, Inc., An Ohio

Corporation, Defendant.

Steven B. KLEIN and Claudia C. Klein, Appellants,

v.

SEARS ROEBUCK AND COMPANY, A New York Corporation, Appellee,

and

Murray Ohio Manufacturing Company, Inc., An Ohio

Corporation, Defendant.

Nos. 84-1681(L), 84-1682.

United States Court of Appeals, Fourth Circuit

September 17, 1985

Argued Feb. 6, 1985.

Page 1422

Arthur L. Klein, Chicago, Ill., (Kurt J. Heinz, Arnstein, Gluck, Lehr, Barron & Milligan, Chicago, Ill., James K. Archibald, John H. Morris, Jr., Venable, Baetjer & Howard, Baltimore, Md., on brief), for appellant.

George W. Shadoan, Rockville, Md., for appellees.

Before SPROUSE and WILKINSON, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

SPROUSE, Circuit Judge:

Sears, Roebuck and Co. appeal from a judgment entered in this diversity case after a jury verdict awarding Steven B. Klein $633,000 compensatory damages and his wife Claudia Klein $104,000 for lost consortium due to Steven's injuries received in a riding lawn mower accident. Klein, a jeweler,

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received extensive and severe injuries to his right hand when the mower overturned while he was cutting grass on a 19% incline slope and his hand came into contact with the rotating mowing blade. The issues were submitted to the jury on theories of express and implied warranties of fitness for a particular purpose and negligent misrepresentation. Sears contends that the court erred in not granting a directed verdict or judgment n.o.v. because there was not sufficient evidence to sustain the verdict; in allowing evidence of the lack of a safety device; in failing to instruct on proximate cause; and in failing to set aside both awards as excessive. The Kleins cross-appeal contesting the denial of leave to file an amendment to their complaint to assert a claim against Sears for punitive damages. Finding no reversible error except that relating to the issue of consortium, we affirm the award of compensatory damages to Steven Klein. We reverse the award of damages for lost consortium, however, finding insufficient evidence to support it. We also affirm the district court's denial of leave to amend the complaint.

Steven and Claudia Klein were married in the fall of 1979. In February 1980, they moved to a new home in Silver Spring, Maryland. Steven's parents came for a visit in May, 1980 and decided to buy a riding mower as a gift for Steven and Claudia. Claudia and Steven's parents went to a local Sears store where they consulted with a Sears salesman about the intended purchase.

The three of them informed the salesman that they had no experience with lawnmowers and that the property on which the mower was to be used was a 3/4 acre tract containing numerous hills. The salesman recommended a Sears Craftsman, eight horsepower electric start rear engine riding mower with a 30-inch cutting deck. 1 The sale, however, was conditioned on an inspection of the Kleins' property, to be conducted at the time of delivery of the mower.

A few days later, the Sears salesman delivered the mower to the Kleins' residence. At this time, the salesman conducted an inspection of the property and pronounced the mower suitable for mowing the property, although he warned that the mower should be driven vertically up and down the hills.

Steven used the mower without incident from late May throughout the summer and early fall of 1980. On April 18, 1981, the first day that Steven mowed that year, he was mowing vertically up a 19? slope on the property when the mower tipped over backwards and Steven's hand came in contact with the rotating mower blade. His right thumb and part of his right index finger were severed, all of his fingers were fractured, and he suffered extensive lacerations and nerve damage to his right hand. At trial, the orthopedic surgeon who treated Steven testified that Steven had suffered an 80% permanent impairment of his entire right arm, including his right hand. The doctor also testified that Steven had undergone nine surgical procedures.

At the time of the accident, Steven was employed as a jeweler--a talent that he had developed over many years. The injuries to his right hand, however, rendered continued employment in this capacity an impossibility. After receiving physical therapy, he returned to work as the manager of a jewelry store, a position at which he earned approximately $175 per week less than what he would have earned as a jeweler. The evidence proved also that Steven must take medication for pain for the rest of his life--forty years according to actuarial figures. Additionally, the evidence demonstrated that he can no longer play tennis or other sports, is saddled with a disfiguring and highly conspicuous injury, and must wear a device on his hand designed to maintain his fingers in a stationary position while he is sleeping.

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A.

Sufficiency of Evidence

Although the complaint alleged other grounds for relief, including negligent design and strict liability, the case was submitted to the jury only on the theories of express and implied warranties and negligent misrepresentation. The jury found for Sears on the negligent misrepresentation question, so the issues on appeal relate only to express and implied warranties.

Under Maryland law, recovery for breach of warranty requires proof of three elements: (1) the existence of a warranty, (2) a breach of the warranty, and (3) harm proximately caused by the breach. Mattos, Inc. v. Hash, 279 Md. 371, 368 A.2d 993 (1977).

An express warranty is created by "[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain." Md.Com.Law Code Ann. Sec. 2-313(1)(a) (1975). Sears contends that the statements made by their salesman, both at the store and at the Klein's residence, were insufficient to constitute express warranties because they were statements of opinion or commendation. See Md.Com.Law Code Ann. Sec. 2-313(2) (1975). Sears also urges that the sale was completed at the Sears store and thus any later statements were necessarily not part of express warranties. See Thomas v. Ford Motor Credit Co., 48 Md.App. 617, 429 A.2d 277 (1981).

The implied warranty of fitness for a particular purpose arises "[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods." Md.Com. Law Code Ann. Sec. 2-315(1) (1975). Sears fails to advance any argument that no implied warranty emerged from the facts of this case.

If express or implied warranties did arise, Sears argues that they were limited to include only a warranty that the mower was fit to cut grass safely when used properly. See Myers v. Montgomery Ward & Co., 253 Md. 282, 252 A.2d 855 (1969). Sears also contends that the fact that Steven used the mower during the first mowing season without mishap prevents the Klein's from satisfying the requirement that the mower did not conform to the representations of the warranty at the time it left their control. Fellows v. USV Pharmaceutical Corp., 502 F.Supp. 297, 299 (D.Md.1980); Sheeskin v. Giant Food, Inc., 20 Md.App. 611, 630, 318 A.2d 874 (1974).

Finally, Sears maintains that the evidence fails to support a finding that the alleged breach was the proximate cause of Steven's injury, arguing that because Steven was operating the mower on a slope in excess of 15 degrees, contrary to the instructions contained in the Owner's Manual, it was Steven's intervening activities that caused the unfortunate accident.

In testing the sufficiency of the evidence, we must view the evidence in the light most favorable to the jury's verdict and afford the prevailing party the benefit of all reasonable inferences which can be drawn from the evidence. Krotkoff v. Goucher College, 585 F.2d 675, 677 (4th Cir.1978). Applying this standard, we believe that there is ample evidence to support the jury's conclusion that Sears made and breached express and implied warranties and that the breach was the proximate cause of Steven's injury.

Claudia Klein testified that she and Steven's parents told the Sears salesman of the intended use of the mower and that the salesman responded by suggesting that they purchase the specific model involved here. She also testified that although payment was made at the Sears store, the sale was contingent upon an inspection of the Kleins' property by the salesman and was not finalized until the salesman pronounced the mower safe for use on the Kleins' property. The salesman essentially corroborated Claudia's testimony. We believe it was reasonable for the jury to find, under these circumstances, that an express warranty was created.

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There was also ample evidence presented that Claudia and Steven's parents relied on the Sears salesman to recommend a suitable mower and that the salesman had reason to know of both their reliance and the particular purpose for which the mower was being purchased. This was sufficient to constitute an implied warranty of fitness for a particular purpose.

We also find adequate evidence to support the finding that Sears breached the warranties. Assuming the accuracy of Sears' assertion that it only promised that the mower was fit to cut grass safely when used properly, there was ample evidence that Steven was operating the mower in a manner consistent with the representations made by Sears' salesmen, i.e. vertically on a slope that was...

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