Folks v. Kirby Forest Industries Inc.

• Decision Date: 11 January 1994
• Docket Number: No. 92-4435,92-4435
• Citation: 10 F.3d 1173
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: Bennie Ray FOLKS and Ernestine Folks, Plaintiffs-Appellees, and Liberty Mutual Ins. Co., Intervenor-Appellee, v. KIRBY FOREST IND. INC., Defendant-Third Party Plaintiff and Third Party Defendant-Appellant, v. HOOD INDUSTRIES INC., Defendant-Third Party Plaintiff and Third Party Defendant-Appellee, v. Johnny KNIGHT, dba, Knight's Machinery Removal, Third Party Defendant-Appellee.

Page 1173

10 F.3d 1173

Bennie Ray FOLKS and Ernestine Folks, Plaintiffs-Appellees, and Liberty Mutual Ins. Co., Intervenor-Appellee, v. KIRBY FOREST IND. INC., Defendant-Third Party Plaintiff and Third Party Defendant-Appellant, v. HOOD INDUSTRIES INC., Defendant-Third Party Plaintiff and Third Party Defendant-Appellee, v. Johnny KNIGHT, dba, Knight's Machinery Removal, Third Party

Defendant-Appellee.

No. 92-4435.

United States Court of Appeals, Fifth Circuit.

Jan. 11, 1994.

Rehearing Denied Feb. 10, 1994.

Lawrence Louis Germer, Donean S. Barclay, John G. Tucker, Orgain, Bell & Tucker, L.L.P., Beaumont, TX, for appellant.

Thomas O. Moses, Lindsay, Moses & Barkley, Beaumont, TX, for Folks.

Edward H. Green, Weller, Wheelus & Green, Beaumont, TX, for Liberty Mut. Ins.

Virginia D. Williford, Houston, TX, for Liberty Mut.

Richard L. Scheer, Strong, Pipkin, Nelson & Bissell, Beaumont, TX, for Hood Industries.

Robert Allen Black, Mehaffy & Weber, Beaumont, TX, for Knight.

Appeal from the United States District Court for the Eastern District of Texas.

Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

This is an appeal from a jury verdict for the plaintiff in a personal injury case. The jury awarded Bennie Ray Folks $1,076,000 in damages, finding that he was injured in an industrial accident as a result of the negligence of Kirby Forest Industries, Inc. ("Kirby"). Kirby appeals, and we vacate and remand on account of an erroneous jury instruction and the erroneous exclusion of evidence.

I

Kirby operated a plywood plant in Silsbee, Texas. When the plant closed, Kirby held an "as is, where is" auction sale to liquidate the plant equipment. According to the terms of the "as is, where is" sale, purchasers took property without any warranties or representations Representatives of Hood Industries, Inc. ("Hood") attended the auction sale and purchased a machine or set of machines known as a glue line. Thereafter Hood hired Knight's Machinery Removal ("Knight") to cut the glue line into pieces at the Silsbee plant, load it onto a truck, and carry it to Hood's sawmill in another city. During the disassembly of the glue line, Bennie Ray Folks, an employee of Knight, was injured when the accumulator forks--a part of the glue line--fell from a raised position and landed on top of him. The forks were normally supported in the raised position by a hydraulic lift system, but that system was inoperative because of lack of hydraulic fluid. Folks suffered permanent and disabling injuries as a result of being crushed under the accumulator forks.

of quality. Purchasers were also responsible for transporting their purchases away from the Silsbee site.

Folks and his wife, Ernestine Folks, filed suit against Kirby, alleging negligence under a theory of premises liability. ¹ The Folkses sued Hood and Knight as well, alleging that they negligently caused Bennie Folks' injuries. Both Kirby and Hood filed claims for contribution and indemnity against each other and against Knight. Liberty Mutual Fire Insurance Company intervened to recover its workers' compensation lien, but it was later dismissed for failure to appear. At trial Knight was granted an instructed verdict, because it was statutorily immune as Folks' employer. ² A take-nothing judgment was entered in favor of Hood and Knight. The jury found Kirby 95% negligent, Hood 0% negligent, and Folks 5% negligent. It awarded damages to Folks of $1,076,000.00, and to his wife in the amount of $30,000.00. Kirby appeals.

II

A

Kirby argues that the district court erred by failing to give a requested jury instruction. According to Kirby, the district court was required by Texas law to instruct the jury not to find Kirby liable unless (1) Kirby knew or should have known about a dangerous condition on its premises, and (2) Kirby should have realized that the condition posed an unreasonable risk of harm to its invitees.

"In diversity actions, federal court jury instructions must accurately describe the applicable state substantive law." ³ Turlington v. Phillips Petroleum Co., 795 F.2d 434, 441-42 (5th Cir.1986). We review de novo a district court's determination of a question of state law. City Pub. Serv. Bd. v. Gen. Elec. Co., 935 F.2d 78, 80 (5th Cir.1991) (citing Salve Regina College v. Russell, 499 U.S. 225, 238, 111 S.Ct. 1217, 1225, 113 L.Ed.2d 190 (1991)), modified on other grounds, 947 F.2d 747, 748 (5th Cir.1991). " 'A party is entitled to reversal for a district court's failure to give a particularly requested instruction only if the jury was misled by the instructions that were actually given.' " Pierce v. Ramsey Winch Co., 753 F.2d 416, 425 (5th Cir.1985). "[W]e afford our district courts latitude in presenting state law as long as that presentation is substantively correct." Turlington, 795 F.2d at 442 (emphasis added).

At trial Kirby requested that the jury be given the following instruction:

You are instructed that with regard to the liability of the premises owner, Kirby Forest Industries, Inc., for the Plaintiff to establish negligence, the Plaintiff must prove that there was a condition on the property and that Kirby Forest Industries, Inc., either created or discovered the condition Record on Appeal, vol. 2, at 680. The district court refused Kirby's request and did not instruct the jury that Folks was required to prove Kirby's actual or constructive knowledge of a dangerous condition on its premises. ⁴

or by reasonable care should have discovered the condition, and should realize that it involved an unreasonable risk of harm to invitees, and that Kirby Forest Industries, Inc., failed to exercise reasonable care to protect the invitees against the danger.

Kirby's requested instruction is based on Sec. 343(a) of the Restatement of Torts. See Restatement (Second) of Torts Sec. 343 (1965). Section 343 states:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

In Adam Dante Corp. v. Sharpe, 483 S.W.2d 452 (Tex.1972), the Supreme Court of Texas adopted Sec. 343 as a summary of the duty which an occupier of premises owes to its invitees. ⁵ See id. at 454-55. ⁶ Later, in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983), the Texas Supreme Court rearticulated the duty described in Sec. 343 in terms of four elements which an invitee must prove in order to establish liability on the part of an occupier of premises: (1) the occupier had actual or constructive knowledge of some condition on the premises; (2) the condition posed an unreasonable risk of harm to the invitee; (3) the occupier did not exercise reasonable care to reduce or to eliminate the risk; and (4) the occupier's failure to use such care proximately caused the invitee's injuries. See id., 648 S.W.2d at 296. "[A]ppropriate instructions in a premises liability case must incorporate the four Corbin elements." Keetch v. Kroger Co., 845 S.W.2d 262, 266 (Tex.1992).

We conclude that Kirby owed Folks the duty which an occupier of premises owes to its invitees, as articulated in Corbin. It is undisputed that Kirby was the possessor of the premises at the Silsbee plant when Folks was injured, and we hold that Folks was Folks and Hood contend, nonetheless, that "premises liability principles need not apply" to this case because Kirby could have been found liable alternatively on the basis of simple negligence. We disagree. Although Corbin states that "an invitee's suit against a store owner is a simple negligence action," it also states that Sec. 343 of the Restatement "tailors the traditional test of the conduct of a reasonably prudent person to a specific category of defendants, namely, premises occupiers. Consequently, an occupier's liability to an invitee depends on whether he acted reasonably in light of what he knew or should have known about the risks accompanying a premises condition." See Corbin, 648 S.W.2d at 295 (emphasis added). ⁹

                Kirby's invitee. 7  Furthermore, Kirby's liability in this case was premised on the existence of a dangerous condition on its premises. 8  Therefore, the district court was required to instruct the jury on the duty owed by an occupier of premises to its invitee, as described in Corbin.   See Keetch, 845 S.W.2d at 266 ("[A]ppropriate instructions in a premises liability case must incorporate the four Corbin elements.")
                

Folks' and Hood's argument is also foreclosed by the Texas Supreme Court's recent decision in H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258 (Tex.1992). Warner was shopping at an H.E.B. grocery store when she slipped in a puddle of blood and water which had formed near the "bag your own chicken" counter. See id. at 258. Warner sued H.E.B. to recover damages for her injuries, and the trial court entered a take-nothing judgment. See id. at 258-59. The court of appeals reversed, because the trial court had submitted only a premises liability question to the jury, and had not submitted Warner's simple negligence theory--that H.E.B. negligently failed to bag chickens for its customers. See id. The Supreme Court of Texas reversed the decision of the court of appeals, holding that "it [was] undisputed that [Warner] was injured by a condition of the premises," and "[t]hus, Warner's only potential cause of action [was] limited to a premises liability theory." Id. (citing Keetch ). Likewise in this case, Folks was injured by a dangerous condition on Kirby's premises. ¹⁰ Therefore, under Warner Folks' Hood also contends that "there was no need to instruct the jury that it must be...