Harrison v. McDonough Power Equipment, Inc., 73-542-Civ-NCR.

• Decision Date: 21 June 1974
• Docket Number: No. 73-542-Civ-NCR.,73-542-Civ-NCR.
• Citation: 381 F. Supp. 926
• Parties: Scott HARRISON, a minor, By and Through his father and natural guardian, James Harrison, and James Harrison, Individually, Plaintiffs, v. McDONOUGH POWER EQUIPMENT, INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

381 F. Supp. 926

Scott HARRISON, a minor, By and Through his father and natural guardian, James Harrison, and James Harrison, Individually, Plaintiffs, v. McDONOUGH POWER EQUIPMENT, INC., Defendant.

No. 73-542-Civ-NCR.

United States District Court, S. D. Florida, Fort Lauderdale Division.

June 21, 1974.

Gerald M. Walsh, of Walsh & Dolan, Fort Lauderdale, Fla., for plaintiffs.

Wesley G. Carey, and Michael C. Spring, of Carey, Dwyer, Austin, Cole & Selwood, P. A., Miami, Fla., for defendant.

ORDER

ROETTGER, District Judge.

The minor plaintiff, Scott Harrison, suffered the loss of a foot when a power mower operated by a 15-year old girl, Carolyn Holloway, ran over the young boy's leg. Scott Harrison was six at the time. The same plaintiffs had brought suit against Ira Harrison, the owner of the mower and grandfather of the minor plaintiff, and Carolyn Holloway in state court; a settlement resulting in a final judgment of $24,000 for plaintiffs was entered, which amount the parties agreed must be set off against any recovery in this case, pursuant to Florida law.¹

Plaintiffs then brought this diversity action against the manufacturer of the riding-type rotary mower claiming, in addition to charges of negligence, strict liability and a breach of implied warranty, that defendant was negligent in not designing a safety shield or guard to be placed underneath the mower. Plaintiffs presented a professor from Iowa State who had "invented" a shield which left the forward five inches of the cutting area unprotected. However, the professor's experiment showed that the mower would substantially destroy a dead chicken when the mower ran over it without the guard but only slice off a portion of it if the guard were in place. The shield has an obvious marketing handicap because the mower cannot operate effectively if it cuts the grass lower than a height of three and one-half inches.

Defendant contended there was no negligence or breach of warranty for a number of reasons including the fact that the grandfather, Ira Harrison, had removed one of the throttle controls when he altered the mower a few months prior to the accident. The alteration was effected after he had owned and operated the mower for several years. Defendant further contended that the accident was caused by a combination of the inadvertence of the inexperienced operator and the plaintiff's falling in the path of the mower while picking up stones.

At the close of all the evidence the court granted the motion of defendant for a directed verdict on the issues of breach of implied warranty and strict liability in tort but sent those issues to the jury for its deliberation along with the issues of whether defendant was guilty of negligence and whether there could have been any negligence on the part of defendant in the aggravation of the injury because of a negligent design of the mower. A number of the cases which have considered this point use the phrase "enhancement of injury."² The phrase "enhancement of injury" seems particularly vulgar when referring to serious personal injury and an inaccurate description of the theory which is simply the aggravation of the injury.

The court submitted the case to the jury on special verdicts asking the jury to decide four separate questions on the issue of liability: whether defendant was guilty of negligence which was the legal cause of the injury; was it guilty of any negligence which aggravated the injury; whether it had breached an implied warranty; or whether it was strictly liable in tort. The jury answered each of these questions in the negative except for the interrogatory about the aggravation of injury. The jury also found that Scott Harrison had been contributorily negligent in a percentage of 25%. The jury returned a verdict of $87,500 for the minor plaintiff and $12,500 for his father for his damages. Pursuant to Florida law on comparative negligence³ abatement of 25% was applied to the $87,500 in addition to the setoff from the previous state court judgment.

Defendant has moved for judgment notwithstanding the verdict and the question presented is whether this court should have submitted the issue to the jury of whether defendant was negligent in a manner causing aggravation of the injury to Scott Harrison.

This diversity case must be governed by Florida law and the question of the doctrine of aggravation of damages has not been squarely resolved by a Florida court.

Defendant contends the issue has been resolved by Royal v. Black & Decker Mfg. Co., 205 So.2d 307 (Fla.App.1967). At first reading, the Royal decision appears to be squarely on point and the court would be Erie-bound to follow it. In Royal the appeal was from the dismissal of a complaint with prejudice; the complaint charged the manufacturer of a drill on the theories of negligence, implied warranty and strict liability in tort. Each of those questions has been answered by the jury adversely to plaintiff in the instant case. Royal charged that the plaintiff's decedent was electrocuted when he attempted to connect the plug of a power drill into an extension cord. The complaint alleged that the drill plug could have been designed in such a fashion as to make more remote the possibility of a direct or accidental contact with the energized prongs.

The court noted that the plaintiff failed to allege any facts to show the plug was unreasonably dangerous or defective, or that there were any deviations from standards of similar characteristics or any latent functional defects. Consequently, the Florida Court of Appeal affirmed the verdict in favor of the defendant manufacturer.

The last paragraph of the opinion contains language supporting defendant's position that it has no obligation to make the product "`more' safe when the danger to be avoided is obvious to all." The opinion also cites the leading case of Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966). However, the court feels the only question presented to the Third District was whether the allegations of the complaint were sufficient to sustain a recovery under any of the theories of negligence, implied warranty or strict liability in tort. The Florida Court did not reach the question presented here: whether a defendant manufacturer can be held liable when plaintiffs' injuries are not caused by but are aggravated by the negligence of failing to add a safety device, which device would make the machine more safe but not totally safe?

Plainly, Royal v. Black & Decker is dicta on this question but dictum is of help to a Federal Court in resolving Erie problems. Doucet v. Middleton, 328 F.2d 97, 101 (5th Cir. 1964); Tampa Electric Co. v. Stone & Webster Engineering Corp., 367 F.Supp. 27, 37 (M. D.Fla.1973). The court must agree with the observations of the Eighth Circuit Court of Appeal which expressed its dislike for the problem of "attempting to predict the course of action the highest tribunal of a state might follow under similar circumstances." Passwaters v. General Motors Corporation, 454 F.2d 1270, 1277 (8th Cir. 1972). Nevertheless, this court must attempt to determine how the Florida Supreme Court would define the extent of the manufacturer's duty to exercise reasonable care in the design of its product under the circumstances of this case based on existing Florida law and a judgment as to its probable application to areas where the law has not been fully developed.

In the field of products liability and general negligence law the trend of the Florida courts has been an expansive and liberal one with regard to affording more complete relief to the victim-plaintiffs. The Florida Supreme Court in the...