Caterpillar Tractor Co. v. Ford

Citation406 So.2d 854
PartiesCATERPILLAR TRACTOR COMPANY, a corporation v. Helen FORD, as Dependent Widow of Leonard Lane Ford, Deceased. 79-419.
Decision Date11 September 1981
CourtSupreme Court of Alabama

Robert D. Norman of Norman, Fitzpatrick & Wood, Birmingham, for appellant.

Lanny S. Vines of Emond & Vines, Birmingham, for appellee.

SHORES, Justice.

This is a products liability case. The suit was brought by Helen Ford, the widow of L. L. Ford, who was killed in an unwitnessed strip mining accident on May 30, 1972, when the Caterpillar D8H tractor he was operating rolled over three-fourths of a turn and crushed him to death.

At the time of the accident, the decedent had attempted to traverse a 42o slope at a 30o downward angle. Tracks indicated that he had tried once before to cut down the slope, had started to slide, and had backed up. There was conflicting evidence whether the blade of the tractor was up or down at the time of the roll.

Beginning in July, 1970, Caterpillar manufactured a roll bar (known as "Roll Over Protective Structure" or "ROPS") for the D8H tractor, which was sold as optional equipment in 1972. The D8H tractor in the accident was manufactured September 24, 1970, and was not equipped with a ROPS.

Ford's widow sued Caterpillar along with the D8H tractor distributor, Thompson Tractor Company, and A. E. Burgess, an executive officer of the tractor's corporate owner, contending that the absence of roll-over protection rendered the D8H tractor defective within the meaning of the Alabama Extended Manufacturers' Liability Doctrine.

Caterpillar asserted a general denial and special defenses of contributory negligence and assumption of risk. Caterpillar's motions for directed verdict at the conclusion of the plaintiff's case and at the conclusion of all the evidence were denied.

Before the case was submitted to the jury, the parties agreed that separate verdicts could be entered. The jury returned a verdict in favor of Thompson Tractor but against A. E. Burgess and Caterpillar for the sums of $150,000 and $350,000, respectively. Caterpillar's motions for judgment notwithstanding the verdict or in the alternative for a new trial were denied. Caterpillar appealed. Burgess did not.

In order to establish liability under the Extended Manufacturers' Liability Doctrine, a plaintiff must show:

(1) he suffered injury or damages to himself or his property by one who sells a product in a defective condition unreasonably dangerous to the plaintiff as the ultimate user or consumer, 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) Showing these elements, the plaintiff has proved a prima facie case 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.

Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976).

In addition to the general denial defense, the defendant may also affirmatively raise the negligent conduct of the plaintiff in using the product, as well as the defense of assumption of risk. Casrell, supra.

On appeal, Caterpillar asserts the court erred in denying its motion for a directed verdict, based on the grounds that: (1) Plaintiff failed to prove that Caterpillar's failure to equip the D8H tractor with a ROPS rendered the D8H tractor unreasonably dangerous or defective within the Extended Manufacturers' Liability Doctrine; and (2) Plaintiff failed to prove that, at the time of the accident, the decedent was using the D8H tractor in an intended or reasonably foreseeable manner. We cannot agree.

A directed verdict is proper only where there is a complete absence of proof on an issue material to the claim or where there are no disputed questions of fact on which reasonable people could differ. Deal v. Johnson, 362 So.2d 214 (Ala.1978). In considering a motion for directed verdict, the court must apply Rule 50(e), ARCP, under which "a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, ... or a scintilla in support of the theory of the complaint ...." Dixie Electric Company v. Maggio, 294 Ala. 411, 318 So.2d 274 (Ala.1975).

In addition, the trial court must view the entire evidence, and all reasonable inferences which a jury might have drawn therefrom, in the light most favorable to the non-moving party. Alabama Power Company v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975); Vintage Enterprises, Inc., v. Cash, 348 So.2d 476 (Ala.1977). Also, this Court's function in reviewing a motion for a directed verdict is to review the tendencies of the evidence most favorably to the non-movant, regardless of a view we may have as to the weight of the evidence, and we must allow such reasonable inferences as the jury were free to draw, not inferences which we may think the more probable. Beloit Corp. v. Harrell, 339 So.2d 992 (Ala.1976).

There was that scintilla of evidence present in both points to justify the trial court's actions.

There was no evidence contradicting a stipulation by the parties that the mining safety officer would have testified that the tractor rolled only three-fourths of a turn. The plaintiff introduced expert testimony that if the tractor had been equipped with a ROPS, the three-fourths of a turn would have caused no serious injury or death to the driver. Caterpillar's own expert testified that he knew of no serious injury or death from a three-fourths turn where a ROPS was used.

There was evidence that Caterpillar had knowledge of the potential of the D8H tractor to roll over and that a ROPS was effective in preventing injury or death in such accidents. It was also established that Caterpillar, as of July, 1970, offered a ROPS as optional equipment but did not install it as a standard feature on the D8H tractor. There was evidence from which a jury could conclude that the failure to include some protection against roll-overs rendered the tractor defective. On this issue and on the question of whether the deceased was using the D8H in an intended or reasonably foreseeable manner, the evidence disclosed that Caterpillar's engineers knew that its equipment would be operated on "steep mountainsides with the ever present danger of sliding off or overturning." In fact, Caterpillar's patent application for ROPS states that "earth moving vehicles are frequently operated on steep hillsides wherein lateral tipping and rolling over is a real danger."

We conclude that both issues were for the jury and that the evidence supports a finding by it that the tractor was defective.

Caterpillar argues that it is unjust to hold it responsible for not installing the ROPS when they were offered as optional equipment. We cannot agree. If the tractor was defective in the condition in which it was sold, liability for resulting injury cannot be escaped by showing that the customer could have but did not buy an item which would have removed the defect.

Caterpillar next asserts that the trial court erred in not holding as a matter of law that the plaintiff was contributorily negligent or had assumed the risk.

The burden of proving a plea of contributory negligence in a case such as this remains with the defendant. The question of whether the plaintiff is guilty of contributory negligence as a matter of law, one for the court to decide, arises only when the facts are such that all reasonable men must draw the same conclusion therefrom, and the question is for the jury when, under the facts and circumstances, reasonable minds may fairly differ upon the question of negligence vel non. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 (1972), Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276 (1928).

Mere knowledge that the D8H did not have a ROPS or that the D8H was dangerous without a ROPS does not establish contributory negligence. It is also necessary to show that the driver appreciated the danger under surrounding conditions and circumstances and that he acted unreasonably with that knowledge and appreciation.

While there is a distinction between contributory negligence and assumption of risk, certain elements are common to both. One such element is that there must have been an appreciation or consciousness of the danger with which the risk is attended. Kemp v. Jackson, 274 Ala. 29, 145 So.2d 187 (1962).

The record does not show that Caterpillar established without contradiction that the driver appreciated the danger of his acts under the surrounding conditions and circumstances. There was testimony from several employees that traversing such slopes was a routine and common practice by the mining tractor operators. In fact, the chief safety officer of the mining company stated that he had seen operators at the mining site traverse much steeper embankments than the one Ford was going down. The trial judge properly submitted the issue of contributory negligence to the jury. The evidence would have supported a verdict in favor of Caterpillar on the issue. It equally supports a verdict against it.

The next issue on appeal goes to the court's charge to the jury. Caterpillar argues that the charge was inadequate in defining the terms "defect" and "unreasonably dangerous."

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