Kicklighter v. Nails by Jannee, Inc.

• Decision Date: 30 April 1980
• Docket Number: 78-1145,Nos. 77-3226,KAY-SEE,s. 77-3226
• Citation: 616 F.2d 734
• Parties: Mary KICKLIGHTER, Plaintiff-Appellant, v. NAILS BY JANNEE, INC., Defendant-Appellee. Mary KICKLIGHTER, Plaintiff, v. NAILS BY JANNEE, INC., Defendant and Third-Party Plaintiff-Appellee, v.DENTAL MANUFACTURING CO., Third-Party Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 734

616 F.2d 734

Mary KICKLIGHTER, Plaintiff-Appellant, v. NAILS BY JANNEE, INC., Defendant-Appellee.

Mary KICKLIGHTER, Plaintiff, v. NAILS BY JANNEE, INC., Defendant and Third-Party Plaintiff-Appellee, v. KAY-SEE DENTAL MANUFACTURING CO., Third-Party Defendant-Appellant.

Nos. 77-3226, 78-1145.

United States Court of Appeals Fifth Circuit.

April 30, 1980.

Rehearing Denied July 3, 1980.

Ronald F. Adams, Brunswick, Ga., for Kicklighter in No. 77-3226.

John W. Davis, Brunswick, Ga., for Kicklighter in both cases.

Perry Brannen, Jr., Savannah, Ga., for Rohm & Haas Co.

Edward T. Brennan, Savannah, Ga., for E. I. duPont de Nemours & Co.

J. Thomas Whelchel, Brunswick, Ga., for third-party defendant-appellant.

Bennet, Gilbert, Gilbert, Whittle, Harrell & Gayner, Wallace E. Harrell, Brunswick, Ga., for Nails by Jannee, Inc.

Appeals from the United States District Court for the Southern District of Georgia.

Before AINSWORTH, VANCE and ANDERSON, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

In this diversity case, Appellant Mary Kicklighter sued Nails by Jannee, Inc. for compensatory and punitive damages for injuries suffered as a result of her use of a product supplied to her by defendant, Nails by Jannee, Inc. The product is a fingernail restoration kit containing a bottle of powder and a bottle of liquid which are combined and brushed onto the natural fingernail to build up an artificial nail. The powder component is the chemical, methyl methacrylate, and the liquid component is another form of the same chemical. In combination, these components form a polymer, a hard substance which creates the artificial nail.

Plaintiff Kicklighter alleged that after she used the product for four to six weeks, she experienced coughing, bronchial spasm and headaches. She sought medical attention and was later hospitalized and found to require treatment for diabetes. In addition to these symptoms, Kicklighter complained of continued difficulty breathing and a general deterioration of her health, among other things. She attributes these injuries to the fumes and strong odor of methyl methacrylate. Kicklighter's complaint is predicated on theories of negligence, strict liability and breach of warranty.

In a third-party complaint, Nails by Jannee, Inc. sued Kay-See Dental Manufacturing Company, which supplied the bulk form of the product to Nails by Jannee, for indemnification. The third-party plaintiff's case is grounded in negligence and the theories of breach of express and implied warranty.

The main case (plaintiff versus defendant) and the third-party action (defendant versus third-party defendant) were tried together. The jury found Nails by Jannee, Inc. liable to plaintiff Kicklighter for $25,000 compensatory damages and $60,000 punitive damages and found further that Kay-See was liable over to Nails by Jannee, Inc. on the compensatory damage claim of $25,000. The motion by Nails by Jannee, Inc. for a judgment notwithstanding the verdict with respect to the award of punitive damages was granted by the district court. The trial court denied Kay-See's motion for judgment notwithstanding the verdict or in the alternative for a new trial. Kicklighter now appeals from the judgment notwithstanding the verdict for Nails by Jannee, Inc. on the issue of punitive damages, and Kay-See appeals from the denial of its motion for judgment notwithstanding the verdict or for new trial. Nails by Jannee does not appeal the finding that it was liable to Mary Kicklighter for compensatory damages. We treat these appeals seriatim.

KICKLIGHTER'S APPEAL

The only issue raised by Mary Kicklighter on appeal is whether the district court erred when it granted the motion by defendant Nails by Jannee, Inc. for judgment notwithstanding the verdict under Rule 50, Fed.R.Civ.P. on the punitive damages aspect of the verdict.

Under Georgia law, the substantive law applicable in this diversity case, imposition of punitive damages is authorized only when there is "evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care Determination of whether punitive damages are authorized is a jury question. Walk v. Carter, 110 Ga.App. 273, 138 S.E.2d 390 (1964). However, in this circuit, in diversity cases, federal courts apply a federal rather than a state test for the sufficiency of the evidence to create a jury question. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc) at 368. Under Boeing, in order to create a jury question, there must be a conflict in substantial evidence. The trial judge should grant a motion for judgment notwithstanding the verdict only when he believes that reasonable men could not arrive at a contrary verdict.

which would raise the presumption of a conscious indifference to consequences. The latter expression relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights." Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 (1975). Punitive damages cannot be awarded for mere negligence. Molton, et al. v. Commercial Credit Corp., 127 Ga.App. 390, 193 S.E.2d 629 (1972); Louisville and Nashville Railroad Co. v. Young, 112 Ga.App. 608, 145 S.E.2d 700 (1965).

The district court concluded in this case, "that the only reasonable conclusion that the jury could have reached was that the defendant (Nails by Jannee, Inc.) did not act recklessly or with that entire want of care which would raise the presumption of a conscious indifference to the consequences of its actions." The court noted further that there was no contention that Nails by Jannee acted intentionally or willfully in causing Kicklighter's injuries. There was no evidence from which the jury could have inferred that Nails by Jannee knew or suspected that the product sold to Kicklighter was potentially dangerous, the district court found.

We hold that the district court correctly applied the Boeing v. Shipman standard of review in ruling on the motion. Our review of the record below convinces us that the district court did not err when it found that the only reasonable conclusion the jury could have reached was that the defendant did not act "with that entire want of care which would raise the presumption of a conscious indifference to the consequences of its actions." The district court's grant of the motion for judgment notwithstanding the verdict with respect to punitive damages is, therefore, affirmed.

KAY-SEE'S APPEAL

Third-party defendant Kay-See has alleged nine points of error in its appeal. ¹ Three of the errors alleged relate to We have reviewed each of the three allegations of error in the third-party action concerning Kay-See's liability over to Nails by Jannee, Inc. Because we find no merit in these assertions of error, we affirm so much of the judgment of the district court which holds Kay-See Dental Manufacturing Co. liable over to Nails by Jannee, Inc. for any liability Nails is found to have to plaintiff Kicklighter.

the third-party action, Nails by Jannee, Inc. versus Kay-See Dental Manufacturing Co. The remaining six relate to the main action, i. e. plaintiff Kicklighter versus defendant Nails by Jannee, Inc.

Upon review of the six errors alleged in the main case, we conclude that the only contention which merits detailed analysis is that the trial court erred in giving the res ipsa loquitur charge. We find that the trial court did commit error in giving that charge and accordingly reverse the judgment of liability for compensatory damages in favor of plaintiff Kicklighter and remand for a new trial.

Under Georgia law, the applicable substantive law in this diversity case, res ipsa loquitur is a rule of evidence which allows the jury to infer, from circumstantial evidence, negligence on the part of the defendant. Parker v. Dailey, 226 Ga. 643, 645, 177 S.E.2d 44 (1970); Macon Coca-Cola Co. v. Chancey, 101 Ga.App. 166, 168-169, 112 S.E.2d 811, aff'd, 216 Ga. 61, 114 S.E.2d 517 (1960). The substantive law of Georgia determines which elements are required for the application of the doctrine of res ipsa loquitur in this case. Lairsey v. Advance Abrasives Co., 528 F.2d 991 (5th Cir. 1976); Simmons v. City Stores Company, 412 F.2d 897 (5th Cir. 1969); Louisiana & Arkansas Railway Co. v. Fireman's Fund Insurance Co., 380 F.2d 541 (5th Cir. 1967). Under Georgia law, the doctrine of res ipsa loquitur applies when the following elements are present: (1) the injury must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) the injury must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) the injury must not have been due to any voluntary action or contribution on the part of the plaintiff. Richmond Hospital Authority v. Haynes, 121 Ga.App. 537, 174 S.E.2d 364 (1970); Macon Coca-Cola Co. v. Chancey, supra. An additional requirement for the applicability of the doctrine under Georgia law is the absence of an intervening cause which could produce the alleged injury. Floyd v. Swift & Co., 59 Ga.App. 154, 200 S.E. 531 (1938).

Third-party defendant-appellant Kay-See asserts that the district court's res ipsa loquitur charge ² was erroneously given because While state substantive law of res ipsa loquitur applies in a diversity case, this court has indicated that it will apply federal law to test the sufficiency of the evidence to justify the res ipsa loquitur charge. Helene Curtis v. Pruitt, 385 F.2d 841 (5th Cir. 1967), cert. denied, 391 U.S. 913, 88 S.Ct. 1806, 20 L.Ed.2d 652 (1968). Helene Curtis teaches that a trial judge can appropriately give the res ipsa loquitur charge if the evidence affords a rational basis upon which the jury can conclude that the elements of the doctrine required under state substantive law are present. Thus the trial court errs in giving the charge when there is no rational basis in the evidence from which the jury could find the necessary...