Austin v. Lincoln Equipment Associates, Inc.

• Decision Date: 05 September 1989
• Docket Number: 89-1604,Nos. 89-1272,s. 89-1272
• Citation: 888 F.2d 934
• Parties: Prod.Liab.Rep.(CCH)P 12,293 Otis AUSTIN, Plaintiff, Appellee, v. LINCOLN EQUIPMENT ASSOCIATES, INC., Defendant, Appellee. Appeal of GARLOCK EQUIPMENT CO., Defendant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 934

888 F.2d 934

Prod.Liab.Rep.(CCH)P 12,293

Otis AUSTIN, Plaintiff, Appellee, v. LINCOLN EQUIPMENT ASSOCIATES, INC., Defendant, Appellee Appeal of GARLOCK EQUIPMENT CO., Defendant.

Nos. 89-1272, 89-1604.

United States Court of Appeals First Circuit.

Heard Sept. 5, 1989.

Decided Nov. 7, 1989.

Jean Seaburg, Milwaukee, Wis., with whom James E. Olds, Ltd., Bloomington, Minn., was on brief for appellant.

William A. Filippo, for plaintiff-appellee.

Before BOWNES, BREYER and FAIRCHILD ^*, Circuit Judges.

BOWNES, Circuit Judge.

In this strict product liability diversity action, defendant-appellant Garlock Equipment Company appeals from an order of the District Court of Rhode Island denying the company's motions for a directed verdict, judgment notwithstanding the verdict, or a new trial.

I. BACKGROUND

Plaintiff-appellee Otis Austin, a roofer, suffered injuries when he fell off a roof while using a power roof sweeper manufactured by Garlock. The accident occurred as Austin was sweeping a flat roof on a building in Providence, Rhode Island. He had made two laps around the perimeter of the roof when he stopped the machine approximately two to five feet from the roof's edge to add fuel. When Austin restarted the sweeper it bucked backwards against him and he lost his balance and fell off the roof. He severely injured his back, left ankle and right wrist.

Austin sued Garlock Equipment Company as manufacturer and Lincoln Equipment Associates, Inc. as seller of the sweeper. Plaintiff alleged that the sweeper was defective because its brush and wheel clutches failed to engage simultaneously due to a poorly designed interlock mechanism. After the evidence closed, the court submitted six questions to the jury, including the following:

1. Do you find Garlock Equipment Company strictly liable?

Yes________

No________.

2. Do you find Lincoln Equipment Associates, Inc. strictly liable?

Yes________

No________.

The jury found Garlock strictly liable and Lincoln not liable. It also found that plaintiff had not assumed the risk of his injuries in operating the sweeper but that he was 60% negligent. No general verdict was given. The jury calculated Austin's damages as $400,000. Reducing the figure to take account of plaintiff's own negligence, the court awarded him $160,000.

Although Garlock had moved for a directed verdict at the close of all the evidence, it did not object to the jury's verdict before the jury was dismissed. Nine days later Garlock moved for judgment notwithstanding the verdict or, in the alternative, for a new trial because of inconsistency in the jury's verdict. After a hearing, the district court denied the company's motions. Garlock raises two issues on appeal: 1) whether it should have prevailed as a matter of law and 2) whether inconsistency within the jury's verdict requires a new trial.

II. STRICT LIABILITY IN RHODE ISLAND

The Rhode Island Supreme Court has recently reviewed comparative negligence in a strict liability context. The court stated:

In 1971 the Legislature abolished the all-or-nothing bar to recovery under contributory negligence and adopted a "pure" comparative negligence approach. P.L.1971, ch. 206, Sec. 1 (codified at G.L.1956 (1985 Reenactment) Sec. 9-20-4) [footnote omitted]. That same year this court adopted the theory of strict liability promulgated in Restatement (Second) Torts Sec. 402A (1965). See Ritter v. Narragansett Electric Co., , 283 A.2d 255 (R.I.1971). We later held in Fiske v. MacGregor, Div. of Brunswick, 464 A.2d 719 (R.I.1983), that comparative negligence principles apply to claims brought under strict liability and implied warranty theories. Id. at 726-29. In Fiske we further alluded to the availability of assumption of risk in products liability actions. Id. at 729.

Swajian v. General Motors Corp., 559 A.2d 1041, 1044 (R.I.1989) (holding evidence relating to automobile safety belt use or nonuse irrelevant in strict product liability action and inadmissable on issues of comparative fault and proximate cause).

Section 402A of the Restatement provides:

(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, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

In adopting the Restatement formulation, the Rhode Island court stated that strict liability in tort contemplates that there must be a defect in the design or the manufacture of a product that makes the product unsafe for its intended use. Ritter v. Narragansett Elec. Co., 109 R.I. 176, 283 A.2d 255, 262 (1971) (stove); see also Fiske v. MacGregor, Div. of Brunswick, 464 A.2d 719, 723 (R.I.1983) (football helmet). In Thomas v. Amway Corp., 488 A.2d 716 (R.I.1985), the court extended strict liability to cover cases in which the manufacturer failed to warn of its product's dangerous propensity. Id. at 722 (liquid soap). The court limited the failure-to-warn theory, however, by ruling that a seller need only warn of those dangers that are reasonably foreseeable and knowable at the time of marketing. Id.; see also Castrignano v. E.R. Squibb & Sons, Inc., 546 A.2d 775, 782 (R.I.1988) (prescription drug).

Before addressing defendant's contentions on appeal, we look to see whether or not plaintiff established a prima facie case for strict product liability. The plaintiff has the burden of proving a defect in the product and that his or her injury was proximately caused by this defect. Thomas, 488 A.2d at 722. Rhode Island uses a consumer expectation test to determine whether a product is defective under Sec. 402A. Castrignano, 546 A.2d at 779 (R.I.1988). "This approach seeks to protect the consumer or user who was unaware of the danger involved in using a product in a way that it was intended to be used." Id. Under this test, the term "unreasonably dangerous" means that "the defect in the product establishes a strong likelihood of injury to the user or consumer thereof." Id. (quoting Ritter, 283 A.2d at 263).

Applying this standard, we find that Austin produced evidence from which it could be found that the sweeper was unreasonably dangerous when it left Garlock's hands. Austin's expert witness testified that the use of a spring pin in the interlock mechanism between the brush and wheel clutches was a poor design. The purpose of the interlock mechanism was to ensure that the two clutches engaged simultaneously, thereby preventing the machine from moving backward, as it would do if only the brush were engaged. Since a sudden backward motion by the sweeper could upset a roofer's balance whether he was near the edge of a roof or not, the design and subsequent failure of the clutch interlock mechanism could reasonably be found to be a defect under Section 402A of the Restatement.

The next element of proof is causation. A plaintiff must prove that the defect in the product was a proximate cause of his or her injury. Thomas, 488 A.2d at 722. The record shows that Austin was standing on a flat roof parallel to the roof's edge at a distance of two to five feet from the edge when he restarted the machine. He testified that the sweeper jumped back a foot and caught him off guard so that he fell over the roof's edge. It could reasonably be found that the proximate cause of Austin's accident was the bucking motion of the Garlock sweeper due to a failure of the brush and wheel clutches to engage simultaneously.

III. MOTIONS FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT

Garlock contends that any liability on its part for a defective product is defeated by plaintiff's assumption of the risk and misuse of the sweeper, and that the judge should have directed a verdict in its favor as a matter of law.

On a motion for a directed verdict or judgment notwithstanding the verdict, the trial judge must view all the evidence and inferences flowing therefrom in the light most favorable to the non-moving party. Such a motion should be granted only if, as a matter of law, no conclusion but one can be drawn. In reviewing the trial court's decision, we are obliged to look at the evidence in the same manner. Kuras v. International Harvester Co., 820 F.2d 15, 17 (1st Cir.1987); Goldstein v. Kelleher, 728 F.2d 32, 39 (1st Cir.1984); Austin v. Unarco Indus., Inc., 705 F.2d 1, 17 (1st Cir.1983).

A. Assumption of the Risk

Garlock argues that Austin assumed the risk by using a machine that he knew to be "awkward" at a precipitous location when the availability of hand brooms and shovels provided a safer alternative. To warrant a directed verdict or judgment notwithstanding the verdict premised on plaintiff's assumption of the risk, Garlock must prove conclusively that Austin knew about the existence of a danger, appreciated its unreasonable character, and then voluntarily exposed himself to it. Drew v. Wall, 495 A.2d 229, 231 (R.I.1985). It is not Austin's exercise of care but his voluntary acceptance of the risk which is at issue. "The standard for determining whether a plaintiff voluntarily encountered a risk is subjective; therefore, we must look to the record to ascertain what this particular individual in fact saw, knew, understood, and appreciated." Id.

There is no doubt that Austin understood the danger inherent in working on a roof. A roofer inevitably takes chances by working atop buildings. Austin had seen two co-workers fall to their deaths from rooftops. The deaths were not related to the use of a sweeper. What would have...