Batts v. Tow-Motor Forklift Co., TOW-MOTOR

Citation978 F.2d 1386
Decision Date25 November 1992
Docket NumberTOW-MOTOR,No. 91-1511,91-1511
PartiesProd.Liab.Rep. (CCH) P 13,374 Myron BATTS, Plaintiff-Appellant, v.FORKLIFT COMPANY and Caterpillar Industrial, Inc., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Charles M. Merkel, W. Stephen Cox, Merkel & Cocke, Clarksdale, Miss., for plaintiff-appellant.

John G. Corlew, William F. Ray, Watkins & Eager, Jackson, Miss., for defendants-appellees.

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

Before BRIGHT, 1 JOLLY, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

At issue in this Mississippi diversity action is whether, under its products liability law, recovery against a product's manufacturer by an injured non-user of that product (a bystander) is barred if the product defect or danger is open and obvious to an ordinary user, regardless of whether the bystander knew, or should have known, of the danger. Myron Batts was injured when a forklift operated by a co-employee backed into him. Batts sued the forklift manufacturer, claiming that the lack of any mirror or back-up warning device on the forklift rendered the manufacturer liable under the theories of negligence and strict liability in tort. A jury returned a verdict for the manufacturer, after being instructed that Batts, a bystander, could not recover under either theory if it found that the danger was open and obvious. For both theories of liability, this was a correct statement of the law; we AFFIRM.

I.

Batts was employed in Mississippi by Flavorite Laboratories, Inc. His duties included operating a type forklift called a "tugger" 2 in a room which was often noisy. In that room, at least one forklift operated in addition to Batts' tugger. On the day Batts was injured in 1984, a co-employee, Charles Johnson, was operating a forklift manufactured in 1965 by Towmotor Corporation. 3 (Towmotor was purchased by Caterpillar.) The forklift was operated by a seated driver using controls to his front, as are the lift forks, and is generally operated in reverse as often as forward. At the time of manufacture, Towmotor produced forklifts with load capacities ranging from 2,000 to 60,000 pounds. The forklift in issue had a 2,500-pound capacity and was designed for use in warehouses and other indoor areas. The forklift collided with Batts when Batts was backing, and walking beside, the tugger; and Johnson was operating the forklift in reverse, but without sounding its manual horn.

Although neither party contends that a back-up alarm sounded on the forklift before it hit Batts, whether any such device was then in place is disputed (as discussed in note 6, infra, concerning Caterpillar's superseding proximate cause defense). After the accident, electrical alarms and flashing lights were installed on the forklifts at Flavorite. These items were available when the forklift was manufactured in 1965 and could be installed at customer request. However, they were not standard options on Towmotor forklifts of the capacity involved in this case. Indeed, no American manufacturer so offered them. Caterpillar's witnesses opined that the need for back-up warning devices depends on the customer's application and that their use is appropriate when an operator's visibility is restricted.

At trial in 1991, Batts relied on claims of negligence and strict liability in tort; 4 but the jury, by special interrogatories, found for Caterpillar on both theories. Following the denial of his motion for JNOV or new trial, Batts brought this appeal.

II.

Batts presented proof that the forklift should have had a back-up alarm, flashing warning lights, and/or rearview mirrors, and asserted that this failure entitled him to recover under either strict liability in tort (defective and unreasonably dangerous) or negligence (negligent design). On the other hand, Caterpillar presented evidence that there was no restriction on the forklift operator's visibility to the rear and that there was a danger in an operator relying on alarms, lights, or mirrors, as opposed to looking in the direction of travel. One of its principal defenses was that the absence of such devices, and the concomitant danger of the operator not facing in the direction of travel, was open and obvious to the forklift owner and its employee operator (users) and that, under Mississippi law, this barred recovery by Batts.

Several of the jury instructions and a special interrogatory incorporated this open and obvious bar. (As discussed infra, the jury was instructed that Batts could not recover under negligence or strict liability in tort if the danger was open and obvious.) Batts' challenge to those items is the primary thrust of his appeal. (In notes 5 and 6, we quickly dispose of the other issues raised by Batts 5 and Caterpillar (which did not cross-appeal) 6.)

In reviewing this challenge to jury instructions, "we view the [jury charge] as a whole in the context of the entire case. The judge must instruct the jurors fully and correctly on the law applicable to the case, including defensive theories raised by the evidence." Crist v. Dickson Welding, Inc., 957 F.2d 1281, 1287 (5th Cir.1992). However, the district court is given broad discretion in formulating the charge and special interrogatories, and our review on appeal is deferential. Bradshaw v. Freightliner Corp., 937 F.2d 197, 200 (5th Cir.1991). " 'A judgment will be reversed only when the charge as a whole leaves us with substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.' " Hall v. State Farm Fire & Casualty Co., 937 F.2d 210, 214 (5th Cir.1991) (citation omitted).

Needless to say, we apply Mississippi law in deciding whether the instructions correctly stated the applicable law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Allison v. ITE Imperial Corp., 928 F.2d 137, 138 (5th Cir.1991). And, we review de novo the district court's interpretation of that law. Salve Regina College v. Russell, --- U.S. ----, ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991). In deciding an unsettled point of state law, Erie requires that we determine how the Mississippi Supreme Court would interpret its own law if presented with the question. American Waste & Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir.1991). When we are required to make an Erie guess, it is not our role to create or modify state law, rather only to predict it. Id.

Under products liability law, recovery by a bystander against a manufacturer for an injury caused by its product can be an elusive, complex, and difficult concept, especially because of the many terms and defenses and other rules established for Mississippi products liability, and because of resulting inconsistent, if not conflicting, precedent. Batts asserts that only under the theory of assumption of risk, with its subjective standard, can an open and obvious danger associated with the forklift bar his recovery; that is, the jury would have to find that he knowingly and voluntarily encountered a known risk--the forklift backing up. But, although a subjective standard is used for assumption of risk, an objective standard, which concerns an ordinary user, not the person(s) actually using or injured by the product, is applied for the open and obvious defense to claims under negligence and strict liability in tort. Toney v. Kawasaki Heavy Industries, Ltd., 975 F.2d 162, 168-69 (5th Cir.1992); Gray v. Manitowoc Co., 771 F.2d 866, 871 (5th Cir.1985) ("both the Restatement's theory of strict liability and Mississippi's theories of negligence and implied warranty require an objective appraisal of the obviousness of a product's hazard"); Restatement (Second) of Torts § 402A cmt. i (1965) (the product "must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer ... with the ordinary knowledge common to the community"). This objective standard is all that is in issue here. 7

As discussed infra, we hold that an open and obvious danger to an ordinary user precludes recovery against the product manufacturer under negligence and strict liability in tort. Accordingly, an open and obvious defect precludes Batts' recovery against Caterpillar (the manufacturer), regardless of whether he knew, or should have known, of that danger. 8 Therefore, we reject Batts' contention that a bystander's awareness of an open and obvious danger would simply reduce any recovery under Mississippi's comparative negligence standard. 9 We now address the bases in Mississippi law for this holding.

A.
1.

It is more than well-established that, for strict liability in tort, Mississippi adheres to the Restatement (Second) of Torts § 402A. 10 E.g., Toney, 975 F.2d at 165; Lloyd v. John Deere Co., 922 F.2d 1192, 1194 (5th Cir.1991); Coca Cola Bottling Co. v. Reeves, 486 So.2d 374, 377-78 (Miss.1986) (en banc). Moreover, Mississippi law interprets § 402A to permit recovery by a "bystander". Hall v. Mississippi Chem. Express, Inc., 528 So.2d 796, 799 (Miss.1988) ("Though a bystander, [plaintiff] is ... eligible under" § 402A.); Reeves, 486 So.2d at 378 ("fact that [plaintiff] may arguably be classified as a bystander" is not bar to § 402A action).

In Reeves, a bottle fell through a carton being removed from a shelf by someone in the vicinity of the plaintiff, who was injured when the bottle shattered upon hitting the floor. A threshold issue was whether the plaintiff, neither a purchaser nor other form of user, could recover under strict liability in tort. The Mississippi Supreme Court held that he could, noting:

... the duty imposed by Restatement § 402A to the extent that same has been incorporated into the positive law of this state exists in favor of anyone who may reasonably be expected to be in the vicinity of the product's probable use and to be endangered...

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