Holt v. Deere & Co., 93-6156

• Decision Date: 27 May 1994
• Docket Number: No. 93-6156,93-6156
• Citation: 24 F.3d 1289
• Parties: Dennis HOLT and Tonya Holt, husband and wife, Plaintiffs-Appellants, v. DEERE & COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1289

24 F.3d 1289

Dennis HOLT and Tonya Holt, husband and wife, Plaintiffs-Appellants, v. DEERE & COMPANY, Defendant-Appellee.

No. 93-6156.

United States Court of Appeals, Tenth Circuit.

May 27, 1994.

Micheal L. Darrah (Brently C. Olsson with him on the briefs), Huckaby, Fleming, Frailey Richard A. Sayles, Sayles & Lidji, P.C., Dallas, TX (Marvin S. Sloman and Jeffrey S. Levinger of Carrington, Coleman, Sloman & Blumenthal, L.L.P., McKinney, TX and Robert H. Alexander, Jr., of Robert H. Alexander, P.C., Oklahoma City, OK, with him on the brief), for appellee.

Chaffin & Darrah, Oklahoma City, OK, for appellants.

Before ANDERSON, HOLLOWAY, Circuit Judges, and OWEN, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

The plaintiff, Dennis Holt, appeals from a jury verdict in favor of the defendant, Deere & Co. ("Deere"), in a product liability suit arising from an accident in which he was crushed by a road grader when it started in gear. On a special verdict form the jury found that Holt had not proven the essential elements of his product liability claim, and that he voluntarily assumed the risk of a known defect. He contends the district court erred by instructing the jury on assumption of the risk, and by withholding his failure to warn claim from the jury. He also contends that the jury reached an inconsistent verdict, and he alleges other errors pertaining to certain jury instructions, evidentiary rulings, and the verdict form submitted to the jury.

We conclude that the jury was properly instructed on assumption of the risk under Oklahoma law and that it reached a legally permissible verdict. The jury's finding of assumption of risk makes harmless any error by the district court in granting judgment as a matter of law against his failure to warn claim. Finding no merit in Holt's remaining contentions, we affirm.

BACKGROUND

On May 6, 1991, Holt suffered severe injuries when he was run over by a John Deere 570-A grader that he was attempting to repair. Holt was in his third year as a mechanic for Lawton (Oklahoma) Transit Mix and was used to working on heavy equipment such as large trucks, tractors, and road graders, including the grader involved in this accident. He had made repairs on this specific grader seven times before the accident.

Holt drove the grader into the maintenance shop several days prior to the accident. Because his repair work required him to start and stop the engine frequently, he would, for convenience, start the grader while standing on the ground rather than climbing into the operator's chair each time. Starting the grader this way placed him directly in front of the tandem rear wheels on one side of the grader. Holt kept both gear levers--the directional lever (forward, neutral, reverse) and the speed lever (neutral, one through eight)--in neutral as he made the repairs.

One morning as he resumed repairs, Holt reached up to start the grader without checking the gears. He assumed the grader was still in neutral as he had remembered leaving it. The grader started and remained in place momentarily as the hydraulic transmission system built up pressure. Seconds later, the engine made a strange noise, prompting Holt to reach into the cab to turn it off. The grader suddenly lurched forward. Its tandem rear wheels knocked Holt to the ground and ran over his midsection, causing severe and permanent injuries. A coworker who inspected the grader after the accident found it in gear; the directional lever was in "forward" and the speed lever was in fourth.

Like most heavy vehicles, the 570-A grader was equipped with a "neutral start switch," a safety feature in the starting circuitry designed to prevent the grader from starting in gear. The switch in the 570-A has two electrical contactors positioned so they do not touch. When the grader's speed lever is put in neutral, a spring inside the switch pushes a metal ball between the contactors, "connecting" them (i.e., putting the switch in the "closed position") and thus completing the starting circuit. This allows the grader to start when the key is turned and the starter button is pushed. If the speed The grader in this case started in gear. That means either the neutral start switch failed (i.e., closed when it should not have, with the grader in gear, or remained stuck in the closed position after the speed lever was moved out of neutral), or the switch was somehow bypassed in the starting circuit. According to Holt's testimony, he did not knowingly or purposefully "bypass start" the grader, but simply followed the usual "key start" procedure of turning the key and pressing the starter button. ¹

lever is in any gear other than neutral, the contactors in the switch are supposed to remain disconnected (i.e., the "open position"), thus preventing the grader from starting even if the key is turned and the starter button is pushed.

Holt filed this diversity action against Deere under a strict liability theory, alleging that the grader was defective, unreasonably dangerous, and the cause of his injuries because its neutral start switch failed to prevent it from starting in gear. Am.Compl., Appellant's App.Vol. II, Tab 15. Holt further alleged that Deere knew the grader's neutral start mechanism was defective and failed to warn him of the danger that the grader could start in gear. Id. Holt's wife, Tonya, added a claim for damages for loss of consortium. Id.

Deere denied that the grader's neutral start switch was defective and denied that it had a duty to warn Holt of any danger or potential defect. Deere also asserted the affirmative defense that Holt voluntarily assumed the risk of a known defect. Deere's theory of why the grader started in gear was that the wires leading into the neutral start switch had been tampered with and were taped together, causing a short in the circuit which effectively bypassed the neutral start switch altogether.

At trial, Deere and the Holts contested several important factual questions, including: what caused the grader to start in gear (relevant to the design or manufacturing defect claim); whether Holt knew the grader would "key start" in gear (relevant to assumption of risk); and whether Deere knew its vehicles' neutral start switches had a propensity to close defectively (relevant to the failure to warn claim).

At the close of Holt's evidence, the district court granted Deere's motion for judgment as a matter of law against Holt's failure to warn claim. Id. Vol. I at 734-36. Holt's remaining claim of design or manufacturing defect went to the jury, which found for Deere. Answering special interrogatories, the jury specifically found that (1) Holt had not "proven the essential elements of his products liability claim," and (2) Deere had "proven the elements of its defense of Voluntary Assumption of Risk." Id. Vol. II, Tab 2.

DISCUSSION

In this diversity case we apply Oklahoma law because it is the forum state. See Erie R.R. v. Tompkins, 304 U.S. 64, 79, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938); Taylor v. Phelan, 9 F.3d 882, 885 (10th Cir.1993). We review the district court's interpretation of Oklahoma law de novo, Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S.Ct. 1217, 1220, 113 L.Ed.2d 190 (1991), and "as a matter of independent federal procedure we utilize the normal federal standards of appellate review to examine the district court's decision process." Mid-America Pipeline Co. v. Lario Enters., 942 F.2d 1519, 1524 (10th Cir.1991).

I. Submitting Assumption of Risk to the Jury

Holt contends that the evidence presented at trial was insufficient to warrant instructing the jury on assumption of the risk. He timely objected to the instruction. See Appellant's App.Vol. I at 1044. State law governs the substance of a jury instruction in a diversity case, and federal procedure governs the grant or denial thereof. Gilbert v. Cosco Inc., 989 F.2d 399, 405 (10th Cir.1993); Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1296 (10th Cir.1989).

Under Oklahoma law, a plaintiff in a strict product liability suit against a manufacturer must prove that (1) a defective product caused the plaintiff's injury; (2) the defect existed in the product at the time it left the manufacturer's control; and (3) the defect made the product unreasonably dangerous. Kirkland v. General Motors Corp., 521 P.2d 1353, 1363, 1366 (Okla.1974); see also McMurray v. Deere & Co., 858 F.2d 1436, 1439 (10th Cir.1988); Restatement (Second) of Torts Sec. 402A (1965). The alleged defect may be the result of a problem in the product's design or manufacture, or it may be the result of inadequate warnings regarding use of the product. See Smith v. United States Gypsum Co., 612 P.2d 251, 253-54 (Okla.1980) (recognizing failure to provide adequate warnings as a product defect); see also Mayberry v. Akron Rubber Mach. Corp., 483 F.Supp. 407, 412 (N.D.Okla.1979) (applying Oklahoma law); Restatement (Second) of Torts Sec. 402A cmt. h.

A manufacturer may allege as an affirmative defense the plaintiff's "voluntary assumption of or exposure to the risk of a known defect." Thomas v. Holliday ex rel. Holliday, 764 P.2d 165, 167 n. 5 (Okla.1988) (declaring this the "proper verbalization" of the defense); Kirkland, 521 P.2d at 1366 (citing Restatement (Second) of Torts Sec. 402A cmt. n). "Under this [defense] there must be a showing the plaintiff knew of a defect unreasonably dangerous in nature, yet voluntarily used the product." Hogue v. A.B. Chance Co., 592 P.2d 973, 975 (Okla.1978). We have recognized that in order to establish this defense under Oklahoma law, the manufacturer must prove the plaintiff had "[s]ubjective awareness of the defect and consequent risk of injury." McMurray, 858 F.2d at 1440 (citations omitted).

Admittedly, "defect" can mean different things depending on its context. Holt apparently interprets "defect" in the preceding statements of law to mean the precise cause (failure of the neutral start switch) of...