Kirkbride v. Terex USA, LLC
| Decision Date | 25 August 2015 |
| Docket Number | No. 14–4023.,14–4023. |
| Citation | 798 F.3d 1343 |
| Parties | Larry KIRKBRIDE, Plaintiff–Appellee, v. TEREX USA, LLC, d/b/a Cedarapids, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Tracy H. Fowler, Snell & Wilmer LLP, Salt Lake City, UT (Amber M. Mettler, Snell & Wilmer LLP, Salt Lake City, UT, and Shannon Wells Stevenson, John M. Bowlin, Davis Graham & Stubbs LLP, Denver, CO, with him on the briefs), for Appellant.
Paul M. Simmons (Ralph L. Dewsnup, David R. Olsen, and Jessica A. Andrew, with him on the brief) of Dewsnup, King & Olsen, Salt Lake City, UT, for Appellee.
Before HARTZ, TYMKOVICH, and PHILLIPS, Circuit Judges.
Plaintiff Larry Kirkbride was injured while attempting to dislodge a foreign object from a portable rock-crushing plant manufactured by the predecessor of Defendant Terex USA, LLC. Kirkbride brought a products-liability action against Terex, and a jury found the company liable for failure to adequately warn of the plant's dangers, for defectively manufacturing a critical part inside the crushing plant that led to Kirkbride's injury, and for breaching an implied warranty of merchantability. Terex argues that Kirkbride failed to present sufficient admissible evidence to establish his three claims and that the jury was wrongly instructed on the implied-warranty claim. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand. Because there was insufficient evidence to hold Terex liable on any of the theories of recovery that went to the jury, Terex is entitled to judgment as a matter of law. Consequently, we need not consider other arguments presented by Terex.
In 1980 Terex's predecessor manufactured and sold the portable rock-crushing plant at issue. As the name suggests, a rock-crushing plant is a large machine that crushes larger rocks into smaller ones. This particular plant was about the size of a large semitrailer and consisted of several components: a set of wheels, a chassis, a feeder system to carry material into the crusher, the crusher itself, a diesel engine to drive the crusher, and a conveyor to carry crushed material from the crusher.
Because a central issue in this case is whether the rock-crushing plant had a defective part—a “toggle plate”—that caused Kirkbride's injury, we describe how the plant works. The process begins with material being loaded into a long, narrow feeder (about 20 feet long by 3.5 feet wide) that leads into the opening at the top of the crushing chamber. To prevent oversize rocks from clogging the chamber's opening, the crushing plant when sold had a large metal bar called a crossmember before the opening to the crusher. Material that passes under the crossmember continues forward until it falls into the crushing chamber.
Reproduced below from the plant's operation and maintenance (O & M) manual is a diagram of the crusher:
Aplt.App., Vol. 11 at 2389. When material enters the crushing chamber, it is crushed by two jaws, one stationary (labeled “7” in the diagram) and one movable (8). The top of the movable jaw, powered by the pitman (1), follows a circular path with a diameter of 1 ¼ inches, closer to and then farther from the stationary jaw. The cyclical compression progressively breaks the material, allowing it to slip farther down the “V” between the jaws until it is small enough to fall through the gap at the chamber's bottom.
The bottom of the movable jaw is connected to a rectangular metal plate called a toggle plate (10) and two tension rods (15), which pull the movable jaw toward the toggle plate and away from the stationary jaw. Besides keeping the bottom of the movable jaw in place, the toggle plate also functions as a protective device for workers and the jaw crusher itself. When uncrushable material (such as a large piece of metal) falls between the jaws, the jaws can jam and store energy as they exert pressure in an effort to crush the uncrashable material. As the pressure builds, the toggle plate acts as the “weakest link” and breaks before other, more expensive components (like the pitman) are damaged. Id., Vol. 7 at 1621. When it breaks, there is nothing to hold the bottom of the movable jaw in place, so it swings open and the uncrashable material falls out. The danger to workers is that if the toggle plate does not break and a worker tries to dislodge the uncrashed material, the stored energy can cause the material to eject violently from the crashing chamber when it is released.
Terex's manuals explain the purpose of the toggle plate and the dangers of stored energy caused by jaw-crusher jams. The O & M manual contains two statements. The first is: Id., Vol. 11 at 2417. The second is: “The replaceable cast iron toggle plate also serves as a fuse or safety device in the crasher, as it will break when uncrashable material such as a shovel tooth passes between the jaws.” Id. at 2391. And the safety manual contains the following warning for those occasions when material nevertheless gets stuck: Id. at 2495. The written warning is accompanied by an illustration of a worker reaching down into the crushing chamber and being struck in the face by an ejected foreign object. That is what happened to Kirkbride.
After the rock-crushing plant was sold in 1980, it changed hands several times before being acquired in 1999 by Harper Sand and Gravel, Kirkbride's employer. At some point before Kirkbride's injury in August 2008 the plant's crossmember was removed, and its warning placards may have been lost as well. Harper modified the plant by replacing its original diesel engine with an electric motor, reducing from 16 to 8 the number of v-belts transferring power from the motor to the flywheels, and replacing the feeder's hydrostatic drive with an electric one. Harper requested from Terex a complete set of manuals for the plant; and in June 2008 (two months before Kirkbride's injury) Harper ordered a new Terex toggle plate for the crushing plant and installed it within a few weeks.
On August 2, 2008, Harper employees were running the crushing plant when they noticed that a large boulder had become stuck in the crushing chamber, just above the jaws. They shut down the feeder and the jaw crusher and attempted, unsuccessfully, to pull out the boulder with a chain pulled by a front-end loader. A supervisor noticed their efforts and called in Kirkbride, a front-end-loader operator, to help. The workers turned the crusher back on and attempted to break up the boulder by lowering a 19–inch metal “ripper tooth” on a chain into the jaws. The tooth broke off the chain and fell into the crushing chamber, wedging into the gap at the bottom and jamming the jaws. The v-belts driving the crusher began to smoke and squeal as the jaws futilely attempted to crush the tooth. The toggle plate did not break. The workers turned off the power and finally managed to remove the boulder by having Kirkbride pull it out with a chain attached to a track hoe. But the ripper tooth remained stuck.
Kirkbride brought an acetylene torch, climbed into the crusher, and began cutting the tooth. With a loud bang the tooth shot out of the jaws, striking Kirkbride's neck and jaw as it flew 25 feet into the air.
A few days after Kirkbride's injury the plant was put back into operation without changing the toggle plate then or at any time later while the plant remained in Harper's control. Harper sold the plant in 2010, and it was inspected by the parties in July 2011. Critically, although Terex toggle plates for this kind of plant are designed to be just 1 ? inches to 2 inches thick, the toggle plate found inside the plant was 2 3 /16inches thick.
Kirkbride sued Terex in Utah state court on theories of negligent manufacturing and design, negligence in providing inadequate warnings and instructions, strict products liability for manufacturing and design defects and for failure to warn, and for breach of express and implied warranty. Terex removed the case to the United States District Court for the District of Utah on the basis of diversity jurisdiction. See 28 U.S.C. §§ 1332, 1441. Before trial, Kirkbride narrowed his claims to negligence, strict products liability (based on the alleged manufacturing defect in the toggle plate and the company's allegedly inadequate warnings and instructions for resolving crusher jams), breach of express warranty (based on Terex's statements in its manuals that the toggle plate “will break” when uncrushable material enters the jaws), and breach of the implied warranty of merchantability. Aplt.App., Vol. 1 at 111–12 (internal quotation marks omitted). At trial, Terex unsuccessfully moved for judgment as a matter of law when Kirkbride rested his case. After the close of evidence, Kirkbride withdrew his express-warranty and negligence claims. The verdict form requested jury findings on the three remaining theories of liability. It asked (1) whether Terex failed to adequately warn users of the jaw crusher's dangers and whether that was a cause of Kirkbride's injury; (2) whether Terex manufactured the toggle plate that was in the crusher on the day of the accident, whether the toggle plate was defective, and whether the defect was a cause of Kirkbride's injury; and (3) whether Terex breached an implied warranty of merchantability that the toggle plate was fit for its ordinary purpose and whether that was a cause of Kirkbride's injury. The jury found Terex liable on all three theories and awarded Kirkbride damages of over $3.5 million. Terex filed a renewed motion for judgment as a matter of law or for a new trial, which was denied.
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