Elliott v. Brunswick Corp.

• Citation: 903 F.2d 1505
• Decision Date: 25 June 1990
• Docket Number: No. 89-7190,89-7190
• Parties: Prod.Liab.Rep.(CCH)P 12,543 Ashley ELLIOTT, Plaintiff-Appellee, v. BRUNSWICK CORPORATION, Defendant. Appeal of MERCURY MARINE, A DIVISION OF BRUNSWICK CORPORATION, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1505

903 F.2d 1505

Prod.Liab.Rep.(CCH)P 12,543

Ashley ELLIOTT, Plaintiff-Appellee, v. BRUNSWICK CORPORATION, Defendant Appeal of MERCURY MARINE, A DIVISION OF BRUNSWICK CORPORATION, Defendant-Appellant.

No. 89-7190.

United States Court of Appeals Eleventh Circuit.

June 25, 1990.

John W. Clark, Anthony N. Fox, Amy K. Myers, Clark & Scott, P.C., Birmingham, Ala., and Ronald L. Reid, and R. Wayne Thorpe, Alston & Bird, Atlanta, Ga., for defendant-appellant.

Richard D. Stratton and Ben Hogan, III, Hogan, Smith & Alspaugh, P.C., Birmingham, Ala., for plaintiff-appellee.

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

Before COX, Circuit Judge, and HILL ^*, Senior Circuit Judge, and SMITH ^**, Senior Circuit Judge.

HILL, Senior Circuit Judge:

The appellant, a manufacturer of motors for boats, appeals an unfavorable judgment of $4,375,000.00 in this lawsuit based on diversity jurisdiction. At trial, the appellee contended that the appellant should have constructed guards on the propellers that it manufactures, and asserted three theories of recovery: (1) compensatory damages based on alleged negligence, (2) compensatory damages based on alleged product liability under the Alabama Extended Manufacturer's Liability Doctrine, and (3) punitive damages based on alleged wantonness. The jury returned a verdict in favor of the appellee against Mercury in the amount of $1,500,000.00 compensatory damages, and $3,000,000.00 punitive damages. The district court entered a judgment against Mercury in the amount of $4,375,000.00, a sum which reflected a setoff for the amount the appellee received in settlement from other defendants. We reverse.

FACTS

In July, 1982, the appellee, Ashley Elliott, then fourteen years old, jumped from a pier at night into the water next to a boat; the rotating propeller on the boat's motor, and perhaps the boat's cavitation plate, struck and injured her. Elliott suffered grievous injuries requiring extensive surgery. The appellant, Mercury Marine, designed and manufactured the motor at issue, including the drive mechanism which required a propeller. Consumers generally use boats such as the one involved here, (of the sort often referred to as "planing" pleasure crafts ¹), for skiing, fishing and other recreational activities. At trial, the evidence showed that the boat operator had been drinking, but his conduct is not at issue in this appeal.

TRIAL PROCEEDINGS

In July, 1983, Elliott filed suit in the Circuit Court of Jefferson County, Alabama against Mercury and several other defendants; most defendants settled with Elliott prior to trial. Elliott contended that Mercury should have constructed a guard around the boat's propeller to protect her from injury. In July, 1988, Mercury and a co-defendant removed this diversity case to the United States District Court for the Northern District of Alabama. The parties tried the case in August, 1988, but after two days of deliberation, the jury failed to reach a verdict as to Mercury, and the court declared a mistrial.

In January, 1989, the parties retried the case, and the court instructed the jury on three theories of recovery: (1) compensatory damages based on alleged negligence, (2) compensatory damages based on alleged product liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), and (3) punitive damages based on alleged wantonness. The jury returned a verdict, and the court entered a judgment for the amount we have already discussed.

Mercury filed a Motion for Judgment Notwithstanding the Verdict or in the Alternative for Remittitur or in the Alternative for a New Trial, which the court denied. This appeal followed.

DISCUSSION

Mercury now asserts that the district court erred in denying Mercury's motion for both a directed verdict and a judgment notwithstanding the verdict as to the issue of Mercury's liability; Mercury also asserts that the district court erred in denying this same motion on the issue of the punitive damages assessed against Mercury. Mercury also challenges the district court's admission into evidence of a videotape deposition of one of Mercury's attorneys who repeatedly invoked the attorney-client privilege and refused to answer. Likewise, Mercury contends that the district court erred by denying its motion for a new trial, and by allowing the admission of evidence concerning Mercury's wealth. Finally, Mercury asks in the alternative that we enter a remittitur as to the amount of punitive damages that the district court assessed.

MERCURY'S LIABILITY

The trial court charged the jury in this case on two liability theories, product liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), and negligence. Case law, found in Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), and Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), created Alabama's AEMLD. Virtually the same principles apply under either theory.

In Casrell and Atkins, Alabama, like many states, partially adopted Section 402A of the American Law Institute's Second Restatement of Torts. That Section banished the traditional obstacles of both privity and contractual defenses to product liability claims by changing the nature of the cause of action from contract to tort. Plaintiffs, moreover, no longer needed to With this qualification in mind, we now examine the pertinent Alabama case law. Elliott contends that Mercury's design for its propeller was defective, since it did not provide for a guard to encircle it. In Casrell, the Supreme Court of Alabama interpreted "defective" to mean "... that the product does not meet the reasonable expectations of an ordinary consumer as to its safety." 335 So.2d at 133. In General Motors Corp. v. Edwards, 482 So.2d 1176, 1191 (Ala.1985), that same court held that if a plaintiff wishes to show that an allegedly dangerous product is defective, he must also prove that a "... safer, practical, alternative design was available to the manufacturer at the time it manufactured the [product]." Mercury contends that Elliott failed to establish either element of her cause of action. We agree.

prove the seller's lack of due care, since the new action, although based in tort, removed the requirement that the product's defect result from the seller's negligence. Advocates and scholars have divided the new tort into many subparts, but the instant case clearly involves, not an alleged manufacturing flaw, but a manufacturer's alleged conscious decision to design an inherently dangerous product.

1. Consumer Expectations Test

As adopted by the Alabama Supreme Court in Atkins v. American Motor Corp., 335 So.2d 134, 147 (Ala.1976), the Second Restatement states that a defective product is one "... dangerous beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Restatement (Second) of Torts, Sec. 402A comment i. Our task today is to determine whether a pleasure boat's unguarded propellers are dangerous beyond the expectations of the ordinary consumer. We conclude that they are not.

Although, under Alabama law, a jury ordinarily evaluates a plaintiff's claims that a product is defective, our review of the pertinent case law convinces us that certain products whose inherent danger is patent and obvious, do not, as a matter of law, involve defects of a sort that a jury should resolve.

In our view, the ordinary consumer clearly understands that a revolving propeller involves danger. "The use of certain products," as the Alabama Supreme Court has noted, has always been "... firmly grounded in common sense." Entrekin v. Atlantic Richfield Co., 519 So.2d 447, 450 (Ala.1988). In Hawkins v. Montgomery Industries Int'l, Inc., 536 So.2d 922, 926 (Ala.1988), moreover, that same court held that although a jury must normally assess a plaintiff's allegations that a product is defective, an "exception[ ]" exists when the involved parties "contemplated" the nature of the defect at the time of the accident.

Some products, by their nature, (or, in modern parlance, by their conscious design), place both users and bystanders in some measure of danger. A knife or an axe may cut persons, as well as their intended targets. Fish hooks can wound; saws can maim, and revolving propellers can cause fearful damage. Yet as the Georgia Court of Appeals noted in Stovall & Co. v. Tate, 124 Ga.App. 605, 184 S.E.2d 834, 838 (1971), we do not hold manufacturers liable simply because the use of their products involves some risk:

To illustrate, the manufacturer who makes, properly and free of defects, an axe or a buzz saw or an airplane with an exposed propeller, is not to be held liable if one using the axe or the buzz saw is cut by it, or if someone working around the airplane comes in contact with the propeller.

We hold that the dangers inherent in Mercury's product should have been apparent to, or within the contemplation of, Elliott. Thus, Mercury has not manufactured a defective product within the meaning of the Restatement (Second) of Torts.

2. Available Alternative Design

Elliott vigorously contends that Mercury had access to a safe, practical design for propeller guards "which it could have manufactured and marketed many years in advance of the manufacture of the We agree with Mercury that courts cannot burden companies with an immediate duty to revolutionize their industry. Elliott has demonstrated to our satisfaction than an experimental propeller guard, useful for some purposes, existed at the time of her accident. Elliott also argues, however, that we should hold Mercury for its failure to adapt and refine that design into one feasible for use on planing propeller craft. With this we do not agree.

                engine involved in this lawsuit."    Mercury just as vigorously contends that Elliott is unfairly attempting to penalize the company by creating an

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