Cates v. Sears, Roebuck & Co.

• Decision Date: 01 April 1991
• Docket Number: Nos. 89-4879,90-4181,s. 89-4879
• Citation: 928 F.2d 679
• Parties: , 32 Fed. R. Evid. Serv. 823, Prod.Liab.Rep.(CCH)P 12,798 Charles Anthony CATES and Donna Gwynn Cates, Individually and as Administrator to the Estate of Their Minor Child, Seth Cates, Plaintiffs-Appellants, Cross-Appellees, v. SEARS, ROEBUCK & CO. and Emerson Electric Co., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 679

928 F.2d 679

19 Fed.R.Serv.3d 784, 32 Fed. R. Evid. Serv. 823,

Prod.Liab.Rep.(CCH)P 12,798

Charles Anthony CATES and Donna Gwynn Cates, Individually and as Administrator to the Estate of Their Minor Child, Seth Cates, Plaintiffs-Appellants, Cross-Appellees, v. SEARS, ROEBUCK & CO. and Emerson Electric Co.,

Defendants-Appellees, Cross-Appellants.

Nos. 89-4879, 90-4181.

United States Court of Appeals, Fifth Circuit.

April 1, 1991.

Lawrence W. Pettiette, Jr., J. Jay Caraway, Blanchard, Walker, O'Quin & Tobers, Shreveport, La., for plaintiffs-appellants, cross-appellees.

Paul V. Cassisa, Sr., Carl J. Griffin, Jr., Bernard, Cassisa, Saporita & Elliott, Metairie, La., for defendants-appellees, cross-appellants.

Appeals from the United States District Court for the Western District of Louisiana.

Before POLITZ, WILLIAMS, and SMITH, Circuit Judges.

POLITZ, Circuit Judge:

Injured while using a power saw built by Emerson Electric Company and marketed as its own by Sears, Roebuck & Co. (hereafter collectively referred to as "Sears"), Charles Anthony Cates, joined by his wife, ¹ filed suit seeking a refund of the purchase price in a redhibitory action and damages for a products liability claim. The jury awarded a refund of the purchase price and damages in the ex delicto claim reduced by 85% for Cates' comparative negligence. The district court awarded attorney's fees for services in connection with the action in redhibition. Dissatisfaction abounded; both sides appealed. We consolidated the appeals. Cates seeks reversal of the comparative negligence reduction, an increase in the attorney's fee award, and the grant of expert witness fees. Sears seeks a total reversal of the adverse judgment. For the reasons assigned we affirm the judgments entered by the district court.

Background

On December 1, 1984 Cates purchased a 10-inch 2.5 horsepower Craftsman radial arm saw at a Sears store in Shreveport Louisiana. The saw, manufactured by Emerson in February 1984, was installed in Cates' home workshop in Stonewall, Louisiana, where he used it on wood craft projects. ²

On December 5, 1986 Cates was injured while using the saw; three fingers of his right dominant hand were completely severed and another was severely lacerated.

The parties differ in their explanations of the accident. Cates attests that the saw did a "kickback" ³ while he was standing behind it feeding the lumber from the "out rip" ⁴ position. Sears offered evidence that Cates' injuries probably were caused by a "wrongway feed" of the lumber. ⁵

Cates filed suit in state court; Sears removed based on diversity jurisdiction. Subsequent to removal Emerson was added as a party-defendant. We sit as an Erie court. ⁶

The factual dispute essentially revolves around the "antikickback" device installed on the saw. This device consists of a circular spreader designed to keep the cut in the wood open and small metal pawls to grip the wood. Cates claims that a blade guard should have been installed to provide protection for the user's hands, especially during an out rip. The record contains evidence of two other radial arm saws which had blade guards. In fact, an earlier model of the Emerson saw had such a guard which was removed from later models. The record contains no explanation for that removal.

Cates attempted to offer evidence that Emerson had changed the warning placard and text of the owner's manual about three months prior to his purchase, reflecting its awareness of the danger of the very accident he had experienced. Emerson successfully moved in limine for suppression of this evidence. Further, the district court disallowed Cates' effort to offer rebuttal evidence about the probability or improbability of a wrongway feed.

The jury found the saw defective; set damages at $184,273.05; found Cates 85% at fault in the accident; and reduced his damages accordingly to $27,640.95. Reimbursement of the purchase price of $349.99 was granted.

Based on the successful redhibition action, the court awarded attorney's fees of $29,000; Cates sought fees in excess of $112,000. Expert witness fees were disallowed.

Analysis

1. Comparative fault

We first address Cates' contention that the trial court erred by applying the comparative fault concept to his claims. He argues that Louisiana jurisprudence, and consideration of the factor that reducing recovery because of Cates' negligence would serve to reduce the incentive of manufacturers to produce a safe product, both militate in his favor. Alternatively, he proposes that the court set an absolute ceiling of 25% fault attributable to Cates. This latter contention is addressed to the wrong forum--this is fit grist for the Louisiana legislative mill, not that of an Erie court seeking to apply existing state law.

In this diversity action involving a saw purchased and used in Louisiana, where the accident occurred, we apply Louisiana substantive law. The Louisiana Supreme Court, responding to a question we certified, ⁷ discussed in depth the issue of a manufacturer's liability for its product in Halphen v. Johns-Manville Sales Corporation, 484 So.2d 110 (La.1986). The Halphen court outlined the categories of products liability cases then existing, ⁸ noting that an essential element in each category was "proof that the defendant's product was unreasonably dangerous to normal use." Id. at 113. Halphen did not alter the requirement that the offending condition must exist at the time the product leaves the manufacturer's control. E.g., Bernstine v. Textron, Inc., 546 So.2d 614 (La.1989).

The Halphen court noted that products could be unreasonably dangerous: (1) per se, (2) in design, (3) in construction or composition, and (4) for failure to warn about a danger. The design category in turn has three subsets: (1) unreasonably dangerous per se, (2) readily replaceable by a safer alternative, and (3) feasibly subject to design with less harmful consequences. The second and third require proof that the manufacturer knew or could have known of and reasonably avoided the dangerous condition.

Cates contended at trial that the saw had design defects and the antikickback device was so constituted as to be more dangerous than intended. The first design defect focused on the probability of injury from an unguarded blade outweighing the social utility factor. The second was based on the feasibility of a safer alternative design, one with a blade guard. In addition Cates complained of the placement of the antikickback device and of insufficient warnings.

Sears responded that the saw was not unreasonably dangerous and, alternatively, if it were, the accident was caused by Cates' negligent use and not by any latent danger. The issue of comparative negligence was presented squarely to the district court and was extensively briefed in limine.

Whether to apply comparative fault is a question of law, freely reviewable on appeal. Robertson v. Superior PMI, Inc., 791 F.2d 402 (5th Cir.1986). The Louisiana Supreme Court provided guidance in Bell v. Jet Wheel Blast, 462 So.2d 166 (La.1985), ⁹ which we discussed at length in Robertson. In Robertson we noted that the Bell rule "therefore seems to be that a court will introduce comparative fault to reduce a strict liability judgment when the consequent reduction of the award will realistically promote user care without 'drastically reducing' the manufacturer's incentive to make a safer product." Robertson, 791 F.2d at 407 (emphasis original).

Both parties and the trial court put special emphasis on whether Cates' actions constituted a repetitive operation as existed in Bell. While repetitive actions, and the monotony and routine of the assembly line may "breed a complacency in the employee, who will then tend to ignore danger areas because she has previously avoided injury," Robertson, 791 F.2d at 408, it is error to assume that Bell gives repetitive motion a talismanic effect in the comparative fault determination. The instant case does not involve an assembly line and the dangers of the subject home workshop saw may not be directly analogous. Nonetheless, Bell guides our analysis which we conclude should be on a flexible case-by-case basis and not pursuant to a rigid checklist. For as the Louisiana Supreme Court informed:

Our decision is intended as an answer to the certified question and as a first step in the formulation of a just and socially useful rule, not as an answer to all questions that may be expected to arise. For example, the question of whether other classes of cases fall within the category to which comparative fault may apply must be decided on a case-by-case basis. Pending future judicial or legislative developments, we are content for the present to assume the position taken by the California court which scrupulously abstained from issuing a detailed guidebook to the new area of comparative negligence, preferring to adopt the view " 'that ... the trial judges of this State are capable of applying [a] comparative negligence rule without our setting guidelines in anticipation of expected problems. The problems are more appropriately resolved at the trial level in a practical manner instead of a theoretical solution at appellate level. The trial judges are granted broad discretion in adopting such procedure as may accomplish the objectives and purposes expressed in this opinion.' "

Bell, 462 So.2d at 172-73 (abridgement original) (quoting Daly v. General Motors Corp., 20 Cal.3d 725, 741-43, 144 Cal.Rptr. 380, 390, 575 P.2d 1162, 1172 (1978)). The question thus remains one of law, but it is one inextricably tied to specific factual findings which implicates the customary deference on review.

We perceive no basis for rejecting the trial court's studied decision to apply comparative fault principles to the situation at bar. The court aptly noted in a pretrial order, "This result will not drastically reduce the manufacturer's incentive to make such saws safer. It...