817 F.2d 1452 (10th Cir. 1987), 85-1576, Karns v. Emerson Elec. Co.

Docket Nº:85-1576.
Citation:817 F.2d 1452
Party Name:Charlette A. KARNS, individually, and as mother and next friend of Donald Wayne Pearce, Plaintiff-Appellee, v. EMERSON ELECTRIC CO., a Missouri corporation, Defendant-Appellant.
Case Date:May 01, 1987
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1452

817 F.2d 1452 (10th Cir. 1987)

Charlette A. KARNS, individually, and as mother and next

friend of Donald Wayne Pearce, Plaintiff-Appellee,


EMERSON ELECTRIC CO., a Missouri corporation, Defendant-Appellant.

No. 85-1576.

United States Court of Appeals, Tenth Circuit

May 1, 1987

Rehearing Denied June 29, 1987.

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[Copyrighted Material Omitted]

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Barbara Wrubel of Skadden, Arps, Slate, Meagher & Flom, New York City (Richard C. Honn of Rogers, Honn & Associates, Tulsa, Okl., with her on the brief) for defendant-appellant.

Steven R. Hickman (James E. Frasier also of Frasier & Frasier, on the brief), Tulsa, Okl., for plaintiff-appellee.

Before LOGAN and SEYMOUR, Circuit Judges, and BROWN, District Judge. [*]

LOGAN, Circuit Judge.

This is a products liability case, in which jurisdiction is based upon diversity of citizenship. Defendant, Emerson Electric Company, is appealing a $2,000,000 judgment entered in favor of plaintiff Charlette A. Karns, individually and as mother and next friend of Donald Wayne Pearce. On appeal, defendant argues that the evidence was insufficient as a matter of law on (1) causation, (2) the defectiveness and dangerousness of the product, and (3) fault sufficient to permit punitive damages. Defendant also alleges that certain rulings by the district court were erroneous and prejudicial, and that the jury's award of compensatory damages was excessive.

Defendant manufactured and sold a product called the "Weed Eater Model XR-90," a multipurpose weed-trimming and brush-cutting device. The XR-90 consists of a hand-held gasoline-powered engine connected to a long drive shaft at the opposite end of which various cutting tools may be attached. See Appendix A. One tool sold by defendant for use with the XR-90 is a ten-inch circular steel saw blade capable of cutting through growth "up to 2"' in diameter." R. II, Def.Ex. 3 at 12. With the only blade guard available for the XR-90 in place, approximately 270? of the blade's edge is exposed during use.

The accident giving rise to this lawsuit occurred while Donald Pearce, then thirteen years old, was helping his uncle, Martin Karns, clean up an overgrown yard. Pearce was picking up trash while Karns operated an XR-90 with the circular saw blade attached. Pearce had stooped to pick up something approximately six to ten feet behind and slightly to the left of Karns when, according to Karns, the blade of the XR-90 struck something near the ground which caused the machine to swing violently around to Karns' left, cutting off Pearce's right arm above the elbow. 1

At trial, plaintiff argued that the XR-90's propensity to "kickback" when the blade strikes something it cannot cut, together with defendant's failure to provide adequate warnings concerning this phenomenon, rendered the XR-90 defective and unreasonably dangerous. Additionally, plaintiff argued that defendant's knowledge of the kickback phenomenon, and its failure to take steps to reduce the hazard, justified an award of punitive damages. The jury awarded plaintiff $1,000,000 compensatory damages and $1,000,000 punitive damages. Defendant appeals from the district

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court's denial of its alternative motions for judgment n.o.v. or new trial.


Under Oklahoma law, a plaintiff must prove three elements to recover on a theory of manufacturer's product liability: (1) the product was the cause of the injury; (2) a causally related defect existed in the product at the time it left the manufacturer's possession and control; and (3) the defect made the product unreasonably dangerous to the plaintiff or his property. Kirkland v. General Motors Corp., 521 P.2d 1353, 1363 (Okla.1974); Hurd v. American Hoist & Derrick Co., 734 F.2d 495, 499 (10th Cir.1984). A product is unreasonably dangerous if it is " 'dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.' " Kirkland, 521 P.2d at 1362-63 (quoting Restatement (Second) of Torts Sec. 402A comment i (1965)). Punitive damages may be assessed against a manufacturer whose conduct reflects "reckless disregard for the public safety." Thiry v. Armstrong World Industries, 661 P.2d 515, 518 (Okla.1983) (emphasis in original).

"To meet this standard the manufacturer must either be aware of, or culpably indifferent to, an unnecessary risk of injury. Awareness should be imputed to a company to the extent that its employee[s] possess such information. Knowing of this risk, the manufacturer must also fail to determine the gravity of the danger or fail to reduce the risk to an acceptable minimal level. 'Disregard for the public safety' reflects a basic disrespect for the interests of others."

Id. at 518-19.

Defendant contends that the evidence was insufficient as a matter of law to permit the jury to find that (1) the product was defective and unreasonably dangerous; (2) the alleged defect caused Pearce's injury; or (3) defendant acted with reckless disregard for the public safety. At the close of plaintiff's evidence, defendant moved for a directed verdict on the grounds that the evidence was insufficient to establish causation or recklessness. Defendant did not, at that time, challenge the sufficiency of the evidence with regard to the "defective" and "unreasonably dangerous" elements. 2 The district court denied the motion, and defendant then presented the testimony of its expert witness, Ronald Loyd. At the conclusion of Loyd's testimony, defendant rested its case without renewing its motion for directed verdict.

Following the jury's verdict in favor of plaintiff and the entry of judgment in accordance with the verdict, defendant filed its motion for judgment n.o.v., stating numerous grounds including those raised on appeal. The district court denied this motion by minute order.

As a general rule, a defendant's motion for directed verdict made at the close of the plaintiff's evidence is deemed waived if not renewed at the close of all the evidence; failure to renew that motion bars consideration of a later motion for judgment n.o.v. Ingram v. Hallman, 330 F.2d 453, 454 (10th Cir.1964); Fleming v. Lawson, 240 F.2d 119, 120-21 (10th Cir.1956); Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 294 (8th Cir.1982), cert. denied, 459 U.S. 1205, 103 S.Ct. 1194, 75 L.Ed.2d 438 (1983); see also Peterson v. Hager, 724 F.2d 851, 854 (10th Cir.1984). Failure to renew the motion thus prevents a defendant from challenging the sufficiency of the evidence on appeal. Ingram, 330 F.2d at 454; Fleming, 240 F.2d at 120-21.

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We have recently joined other circuits in recognizing an exception to the general rule in limited circumstances. In Armstrong v. Federal National Mortgage Association, 796 F.2d 366 (10th Cir.1986), we held that a defendant's failure to move for directed verdict at the close of all the evidence did not bar consideration of a later motion for judgment n.o.v. when (1) the defendant moved for directed verdict at the close of the plaintiff's evidence; (2) the trial court, in ruling on the motion, somehow indicated that renewal of the motion would not be necessary in order to preserve the issues raised; and (3) the evidence introduced after the motion was brief. Id. at 370; accord Ebker v. Tan Jay International, Ltd., 739 F.2d 812, 823-25 (2d Cir.1984) (noting that the proper test under the third element should be whether subsequent evidence "was of such a character that the opposing party ... could reasonably have thought that the moving party's initial view of the insufficiency of the evidence had been overcome and there was no need to produce anything more in order to avoid the risk of judgment n.o.v."); Halsell, 683 F.2d at 294; 5A J. Moore & J. Lucas, Moore's Federal Practice p 50.08 at 50-79 (1986).

In this case, the district court gave no indication in denying defendant's motion for directed verdict that it intended to reserve consideration of the issues raised. The court simply said: "I find that minds of reasonable persons could differ as to the conclusions to be drawn; therefore, your motion will be overruled. Thank you." R. V, 239. Although the Seventh Circuit has held that an express reservation of action by the trial judge is not always necessary in order to invoke the above exception, McKinnon v. City of Berwyn, 750 F.2d 1383, 1390 (7th Cir.1984), we think the rule expressed in Armstrong strikes the proper balance between the need for adherence to the federal rules of procedure and the principle of liberal construction. Because defendant did not properly renew the motion for a directed verdict, and the Armstrong exception does not apply, defendant may not now challenge the district court's denial of defendant's motions for a directed verdict and judgment n.o.v., and may not challenge the sufficiency of the evidence on appeal.


Defendant argues, in the alternative, that the lack of any competent evidence on the elements required for manufacturer's product liability under Oklahoma law mandates reversal of the district court's denial of its motion for new trial. In reviewing the district court's ruling on this motion, we do not make a de novo determination of the sufficiency or weight of the evidence. Rather, our inquiry is limited to whether the district court's refusal to set aside the jury's verdict constituted a manifest abuse of its discretion. Brown v. McGraw-Edison Co., 736 F.2d 609, 616 (10th Cir.1984); see also Harris v. Quinones, 507 F.2d 533, 535 (10th Cir.1974) (district court's grant or denial of motion for new trial made on the ground that the verdict is against the weight of the evidence will not be reversed absent an "unusual situation" or a "gross abuse of discretion"). Reversal is appropriate only when the verdict is "clearly, decidedly, or overwhelmingly" against the weight of the evidence. Brown, ...

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