Melton v. Deere & Co., 88-4439

Citation887 F.2d 1241
Decision Date26 October 1989
Docket NumberNo. 88-4439,88-4439
Parties29 Fed. R. Evid. Serv. 224, Prod.Liab.Rep.(CCH)P 12,302 Garland MELTON, Plaintiff-Appellant, v. DEERE & COMPANY, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Tom Mason, Lyon, Miss., Ralph E. Chapman, Chapman & Heaton, Clarksdale, Miss., Jack B. Sellers and Jefferson D. Sellers, Sapulpa, Okl., for plaintiff-appellant.

Jack F. Dunbar and Wylene W. Dunbar, Holcomb & Dunbar, Oxford, Miss., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before GEE, REAVLEY and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

A plaintiff injured when cleaning out a combine's unloader brought this products liability claim against the combine's manufacturer. Finding the unloader's danger open and obvious, the district court directed a verdict in favor of the manufacturer. We affirm.

I

Garland Melton's arm was caught in the auger of a vertical unloader of a combine manufactured by Deere & Co. The function of the vertical unloader is to discharge grain from the grain tank. At times, the grain tank and unloading system must be cleaned out. For this purpose, a five-by-five-inch opening is located at the bottom of the vertical unloader, covered by a door. Immediately above the door is affixed a decal:

! WARNING

To avoid bodily injury from turning auger, stop engine and remove start key before opening clean out door.

Another warning decal, located over a toolbox about two feet from the cleanout door, included the following instruction:

2. Disengage and shut off all engine and/or motor power before servicing or unclogging machine.

Despite these warnings, Melton and his co-workers used a method to clean out the unloader that required the engine to be running. They would empty the loose grain through the cleanout door, engage the auger in order to release grain that had been caught up, and then scoop out by hand this additional grain and residue.

At the time of the accident, Garland Melton was cleaning out the vertical unloader by this method. Working with him were his brother, Richard Melton, and Roger Newsome. Garland placed his hand and arm through the cleanout door in order to rake out grain residue. The engine was still running. Richard meanwhile had been kicking down grain from the grain tank. Seeing Newsome return with an empty bucket and not checking to see if anyone was at the cleanout door, Richard climbed into the cab and engaged the auger. Garland's arm was severely injured, requiring amputation.

Deere claimed at trial that several other methods can be used to clean out the vertical unloader without running the engine with the cleanout door open, including scraping out residue with a tool, washing out the unloader with a hose, or replacing the door when engaging the auger to release grain that is caught up. Melton's witnesses, on the other hand, testified that it was necessary to run the engine and engage the auger in order to clean out the grain.

Other, similar accidents with the unloading auger have occurred. Three of Melton's witnesses, for example, were injured in similar accidents with Deere combines. The trial court, however, limited Melton to evidence of those three accidents, all of which predated Melton's accident, and excluded the testimony of six other witnesses. At the time Deere manufactured the combine that injured Melton, the company knew of four accidents at the auger site, and had begun affixing the warning decals. Some time later, Deere altered the design of the unloader. The new design incorporated a smaller cleanout door through which a hand does not fit.

Melton's complaint against Deere sought actual and punitive damages. The trial proceeded solely on the theory of strict liability under Mississippi law, with Melton alleging that the combine was defective and unreasonably dangerous and that Deere's conduct in failing to correct the known defect justified punitive damages. At the close of Melton's case-in-chief, the district court granted Deere's motion for directed verdict, holding that a reasonable jury could not find other than that the danger was open and obvious and that, as a result, the defendant was entitled to judgment as a matter of law. Melton appeals, arguing that the directed verdict was erroneous and that the issue of punitive damages also should have gone to the jury. Melton also contests two evidentiary rulings.

II
A.

We first address the legal basis for the district court's directed verdict against Melton's claim. In announcing its decision, the district court first noted that Melton's case against Deere had proceeded solely on the theory of strict liability in tort. Mississippi has adopted the doctrine of strict liability as stated in Restatement (Second) of Torts, Sec. 402A (1965):

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property....

State Stove Manufacturing Co. v. Hodges, 189 So.2d 113, 118 (Miss.1966). Specifically, Mississippi applies the "consumer expectations" test for when a product is unreasonably dangerous. Id. at 121; see also Restatement Sec. 402A, comments g and i. The district court stated that the danger associated with the cleanout door of the unloader was open and obvious and therefore could not give rise to liability, citing Gray v. Manitowoc Co., 771 F.2d 866 (5th Cir.1985). In Gray v. Manitowoc, we held that "the patent danger bar adopted by the Restatement was incorporated into Mississippi's doctrine of strict liability." 771 F.2d at 869. In other words, a product that has an open and obvious danger is not more dangerous than contemplated by the consumer, and hence cannot, under the consumer expectations test applied in Mississippi, be unreasonably dangerous. In Gray v. Manitowoc, this court reversed a judgment on a jury verdict for the plaintiffs where the danger had been open and obvious as a matter of law. 771 F.2d at 870.

Melton has suggested that Mississippi may now employ a test for unreasonable dangerousness other than that based on consumer expectations. In support of this contention Melton cites Whittley v. City of Meridian, 530 So.2d 1341 (Miss.1988), a strict liability case in which the Supreme Court of Mississippi made the following statement:

In determining whether a product is unreasonably dangerous a reasonable person must conclude that the danger-in-fact, whether foreseeable or not, outweighs the utility of the product.

530 So.2d at 1347. Such a "risk-utility" test for unreasonable dangerousness is distinct from the "consumer expectations" test discussed above, and does not necessarily bar recovery when a danger is open and obvious. See W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser and Keeton on the Law of Torts Sec. 99 at 698-99 (5th ed. 1984). We cannot say, however, that Mississippi has altered its doctrine of strict liability. Whittley quoted section 402A of the Restatement as the law of Mississippi. 530 So.2d at 1347. The sentence to which Melton points was merely a description following that quote. It was unaccompanied by any discussion of unreasonable dangerousness, the "consumer expectations" test, or the "risk-utility" test. Furthermore, that section of the opinion discussed a defense based on an intervening cause; the court did not actually apply the risk-utility test. Thus, we cannot conclude from this single sentence that Mississippi has adopted a new test for unreasonable dangerousness. Accordingly, consumer expectations are still the basis of Mississippi's test, and there is still no strict liability for a patent danger.

B.

With this legal framework in mind, we review the facts and evidence of this case. On the motion for directed verdict, the district court was required to view all the evidence in a light and with all reasonable inferences most favorable to the nonmoving party, and grant the motion if no reasonable juror could arrive at a verdict in favor of the nonmoving party. Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969). On appeal, we review the district court's decision on the motion for directed verdict de novo. Id. at 367, n. 1.

We agree with the district court that the testimony in this case left no question for the jury. Melton presented six witnesses, including himself, who were familiar with the combine that injured him. These witnesses testified that they knew the auger was dangerous when moving. Furthermore, the location of the auger just inside the cleanout door was unobscured and familiar to all the witnesses. They testified that they would not put a hand through the door if they knew the auger would be engaged. It may be true, as Melton and one other witness, Adams, testified, that a nonmoving auger is itself not obviously dangerous. Nevertheless, the risk that the auger may be engaged whenever the engine is running is a matter of common sense with which a reasonable user of the combine must be charged. Indeed, there is no question here that Melton knew that the lever for activating the auger was in the combine's cab, and that nothing on the machine or elsewhere prevented anyone from engaging the auger at any time that Melton's hand was in the unloader while the engine was running. Melton testified that he knew that the auger would be activated from time to time during the cleanout process he and the other workers were using, and that he knew he would be hurt if the auger were activated while his hand was in the cleanout opening. We find, therefore, that the only reasonable conclusion from this testimony is that the danger of injury from the auger while the combine's engine was running was open and obvious. As a result, Deere was entitled to a judgment against Melton's strict liability claim as a matter of law.

Melton relies on two particular items of evidence to...

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