Bonds v. Snapper Power Equipment Co., a Div. of Fuqua Industries, Inc., s. 90-1807
| Decision Date | 21 June 1991 |
| Docket Number | Nos. 90-1807,90-1865,s. 90-1807 |
| Citation | 935 F.2d 985 |
| Parties | Prod.Liab.Rep.(CCH)P 12,840 H.K. BONDS; Ila Bonds, Appellants, v. SNAPPER POWER EQUIPMENT COMPANY, A DIVISION OF FUQUA INDUSTRIES, INC., Appellee. H.K. BONDS; Ila Bonds, Appellees, v. SNAPPER POWER EQUIPMENT COMPANY, A DIVISION OF FUQUA INDUSTRIES, INC., Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Steven W. Quattlebaum, Little Rock, Ark., for appellant/cross-appellee.
Gordon S. Rather, Jr., Sammye L. Taylor, Little Rock, Ark., for appellee/cross-appellant.
Before MAGILL, Circuit Judge, ROSS, Senior Circuit Judge, and HUNTER, * Senior District Judge.
Herman K. and Ila Bonds appeal the judgment of the district court 1 entered following a jury verdict for Snapper Power Equipment Company in the Bonds' products liability action. Mr. and Mrs. Bonds seek a new trial, arguing that the district court's jury instruction on assumption of risk was unwarranted by the evidence and should not have been given. They also argue that the instruction itself was erroneous because it substituted an objective standard of awareness of the risk for the subjective standard required by Arkansas law and because it suggested to the jury that assumption of risk was a complete defense to liability. Snapper cross-appeals the denial of its motion for a directed verdict on the Bonds' failure to warn claim. We affirm.
In 1980 or 1981, Herman Bonds bought a riding lawn mower made by Snapper. Unlike some mowers, the mower Bonds bought did not have a "deadman switch," a safety device that turns off the blade when the operator leaves the seat of the mower. There were numerous warnings on the mower, including several under the heading "Protection Against Tipovers." They cautioned the user to keep away from ditches, not to mow slopes of more than 15 degrees, and to exercise extreme caution on slopes of more than 10 degrees. Bonds testified at trial that he never read the warnings because he did not consider it necessary to do so.
Bonds' lawn slopes from his house toward the road at an angle of between 17 and 20 degrees, according to his expert at trial. Next to the road is an embankment, referred to at trial as the "drop-off" or the "ditch." The drop-off slopes at about 45 degrees. Bonds testified that he never mowed the drop-off and always stayed at least two feet from it when mowing. On October 7, 1986, Bonds was mowing near the drop-off, keeping about two feet away from it as usual. The mower hit a rock or other object, which caused it to stop moving forward and to slide sideways down the slope several inches. Bonds tried to back up but the wheels spun, so he put the mower into low gear, which caused it to slide down the slope even farther. The mower was still at least a foot from the edge of the drop-off, however. At that point Bonds stopped the mower, put it in neutral/park, and then reached down to disengage the blade. As he did so, he felt the mower begin to tip, and he threw himself off it. He was not able to throw himself completely clear of it, however, and the blade sliced off part of Bonds' left foot as the mower fell over into the ditch.
Bonds and his wife filed suit against Snapper, alleging negligence in the design and manufacture of the mower. They also alleged that Snapper had negligently failed to warn consumers of the mower's dangerous design and had breached implied warranties of merchantability and fitness. Finally, the complaint charged that Snapper was strictly liable for supplying an unreasonably dangerous product. At the close of a six-day trial, Snapper unsuccessfully moved for a directed verdict on the Bonds' failure to warn claim on the ground that Bonds had admitted he did not read the warnings. The jury returned a general verdict for Snapper, and judgment was entered in its favor on March 7, 1990. Bonds 2 filed a motion for new trial two days later, and the district court denied the motion. Bonds appeals; Snapper cross-appeals for a directed verdict on Bonds' failure to warn claim in the event that a new trial is granted.
Assumption of risk used to be a complete bar to recovery in Arkansas, but now it is merely an element of comparative fault. See W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526, 530 (1982). The Arkansas comparative fault statute provides that in personal injury cases, liability is determined in proportion to fault; however, a plaintiff may recover damages only if his fault is less than the defendant's fault. Ark.Code Ann. Sec. 16-64-122 (1987). "Fault" is defined to include "any act, omission, conduct, risk assumed, breach of warranty, or breach of any legal duty which is a proximate cause of any damages sustained by any party." Id. (emphasis added).
The district court gave the following instruction on assumption of risk:
Snapper contends that Herman K. Bonds assumed the risk of injury from the dangers which Herman K. Bonds contends caused his injury. In order to establish this defense, Snapper must prove:
The court also gave an instruction on comparative fault telling the jury to determine the relative percentages of fault of Snapper and Bonds, 3 and an instruction defining fault to include "negligence and assumption of risk and breach of warranty and supplying a product in a defective condition." 4
Only errors that prejudice the losing party are grounds for a new trial. 11 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2805 (1973); see Fed.R.Civ.P 61. If the district court's instruction on assumption of risk was incorrect but harmless, we must affirm.
Bonds first argues that the assumption of risk instruction should not have been given because the facts of the case did not justify it. Arkansas law requires that the plaintiff be aware of the specific risk that caused his or her injury, not merely general risks inherent in the activity. Bonds relies on a line of cases best exemplified by Simmons v. Frazier, 277 Ark. 452, 642 S.W.2d 314 (1982). In Simmons the plaintiff had gone to sleep on the shoulder of a highway and been run over by a truck backing up to a missed exit. The Arkansas Supreme Court held that the trial court did not err in refusing to give an assumption of risk instruction because although the plaintiff knew it was dangerous to sleep on the highway shoulder, he did not know of the specific danger that the defendant's truck would back up along the shoulder and hit him. Id. 642 S.W.2d at 316. Bonds characterizes the risk that caused his injury as the risk that the mower would overturn at the particular place where he was mowing when the accident occurred. Because the only evidence on this point is his testimony that he felt no sensation of tipping immediately before the accident, he argues that there was nothing in the record to warrant an instruction on assumption of the risk.
Bonds' argument does not persuade us. The tipover did not cause Bonds' injuries by itself; but for the continued rotation of the blade, he would not have been hurt. Indeed, that is the crux of his case against Snapper. Bonds faced a combination of risks: not only that the mower might tip over into the ditch when he was mowing on the slope, but also that he might then come into contact with the blade as it continued to rotate. See Tafoya v. Sears Roebuck & Co., 884 F.2d 1330, 1341 (10th Cir.1989) (). There was evidence to support the giving of the assumption of risk instruction: Bonds testified both that he knew the blade was dangerous when operating and that he knew it would keep rotating unless he disengaged it or turned off the power. It can also be inferred that he knew it was dangerous to mow close to the drop-off from his testimony that he always stayed at least two feet from the drop-off and never mowed the "tall grass." Thus, there was evidence that Bonds was aware of all the specific risks that led to his injury.
Bonds also contends that the assumption of risk instruction misstated Arkansas law. He first objects to the district court's formulation of the first element of assumption of risk: "that the dangerous situation or condition was open and obvious, or that Herman K. Bonds knew of the dangerous situation." He claims that the "open and obvious" alternative allowed the jury to substitute an objective standard for the subjective one required by Arkansas law; in other words, the jury could have found that Bonds assumed the risk without finding that he was aware of the specific danger that caused his injury. Bonds cites several Arkansas cases that stress that the plaintiff must be subjectively aware of the risk in order to have assumed the risk. See Simmons v. Frazier, 642 S.W.2d at 316 (); Price v. Daugherty, 253 Ark. 421, 486 S.W.2d 528, 529 (1972) (); McDonald v. Hickman, 252 Ark. 300, 478 S.W.2d 753, 754 (1972) (); see also Lambert v. Will Bros. Co., 596 F.2d 799, 802 (8th Cir.1979) ().
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