Lust v. Clark Equipment Co., Inc., 85-1367

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Before WINTER, Chief Judge, WIDENER, Circuit Judge, and BUTZNER; BUTZNER; WIDENER
• Citation: 792 F.2d 436
• Parties: , 1 UCC Rep.Serv.2d 697, Prod.Liab.Rep.(CCH)P 11,025 Jack LUST, Jr., Appellant, v. CLARK EQUIPMENT CO., INC., Appellee, JOHN CECIL LEWIS CO., INC., Third-Party Defendant, v. Floyd Stephen CHAPMAN, Third-Party Defendant.
• Docket Number: No. 85-1367,85-1367
• Decision Date: 04 June 1986

Page 436

792 F.2d 436 55 USLW 2024, 1 UCC Rep.Serv.2d 697,
Prod.Liab.Rep.(CCH)P 11,025 Jack LUST, Jr., Appellant,
v.
CLARK EQUIPMENT CO., INC., Appellee,
JOHN CECIL LEWIS CO., INC., Third-Party Defendant,
v.
Floyd Stephen CHAPMAN, Third-Party Defendant. No. 85-1367. United States Court of Appeals,
Fourth Circuit. Argued Dec. 5, 1985.
Decided June 4, 1986.

Page 437

Hugh E. Donovan (Donovan & Nash, Silver Springs, Md., on brief), and Peter C. Burnett, Leesburg, Va., for appellant.

Edward S. Digges, Jr. (Digges, Wharton & Levin, Annapolis, Md., on brief), for appellee.

Before WINTER, Chief Judge, WIDENER, Circuit Judge, and BUTZNER, Senior Circuit Judge.

BUTZNER, Senior Circuit Judge:

Jack Lust, Jr., asserting breach of an implied warranty of merchantability, appeals from an order granting Clark Equipment Co. judgment notwithstanding a verdict awarding him $55,000 for personal injuries he sustained while attempting to repair a machine manufactured by Clark. The district court held that there was insufficient evidence for the jury to find that Clark's product was unreasonably dangerous for its intended use and alternatively that recovery was barred as a matter of law because Lust assumed the risk of injury from the product. Because there was evidence to support the jury's finding in favor of Lust on both these issues, we reverse.

I

Lust suffered a crushing injury to his right hand while attempting a minor repair on a Model 720 Bobcat Skid Steer Loader that was manufactured and sold by Clark. The Bobcat is a front-end loader that uses a hydraulic lift to raise and lower a bucket with a capacity of about 1100 pounds. As a result of his injury, Lust's right thumb was amputated.

Lust worked as a laborer for Southland Concrete Construction Company. On the day of the accident he was using a hand rake to fine grade gravel the Bobcat brought to the ground floor of a building under construction. During the work, the machine's choke rod became disconnected, reducing the air supply to the engine and causing it to sputter. Without turning the engine off or lowering the bucket from its raised position, the Bobcat's operator asked Lust to reconnect the rod. To make the repair, Lust reached his right hand between the horizontal metal frame, or gusset, of the Bobcat and the upraised lift cylinder which raises and lowers the arms of the bucket. While Lust's hand was in this "pinch point," the lift cylinder for unknown reasons suddenly lowered, crushing his hand.

II

The question to be resolved when deciding a motion for judgment notwithstanding the verdict is whether there is evidence on which a jury can properly base a verdict. Ralston Purina Co. v. Edmunds, 241 F.2d 164, 167 (4th Cir.1957). A mere scintilla of evidence is insufficient to sustain the verdict, and the inferences a jury draws to establish causation must be reasonably probable. Improvement Co. v. Munson, 81 U.S. (14 Wall) 442, 448 (1871); Lovelace v. Sherwin Williams Co., 681 F.2d 230, 241-42 (4th Cir.1982). Speaking of review of the analogous motion for a directed verdict, we said in Tights, Inc. v. Acme-McCrary Corp., 541 F.2d 1047, 1055-56 (4th Cir.1976):

[O]ur power of review continues to be limited by the Seventh Amendment, which provides that "no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than

Page 438

according to the rules of the common law." ... We may not, therefore, weigh the evidence, pass on the credibility of witnesses, or substitute our judgment of the facts for that of the jury.... Instead, we must view the evidence in the light most favorable to the party against whom the motion is made, giving him the benefit of all reasonable inferences from the evidence....

The standard imposes a strict limitation on a court's function when it addresses a motion for a directed verdict or a judgment notwithstanding the verdict. These principles govern both the trial of this case and its appeal. See 9 Wright & Miller, Federal Practice and Procedure, Sec. 2525 (1971).

III

Virginia law, which is applicable to this diversity action, requires a plaintiff bringing a claim for breach of an implied warranty of merchantability to show that he was injured by "goods [that] were unreasonably dangerous either for the use to which they would ordinarily be put or for some other reasonably foreseeable purpose," and that "the unreasonably dangerous condition existed when the goods left the defendant's hands." Logan v. Montgomery Ward & Co., 216 Va. 425, 428, 219 S.E.2d 685, 687 (1975). A product may be unreasonably dangerous if imprudently designed. See, e.g., Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d 1066, 1069-73 (4th Cir.1974). Lack of adequate warnings about its hazards may also establish that it is unreasonably dangerous. See, e.g., Spruill v. Boyle-Midway, Inc., 308 F.2d 79, 85-86 (4th Cir.1962). If, however, the danger from the product is known, visible, or obvious to the plaintiff, there is no liability on an implied warranty of merchantability. Brockett v. Harrell Bros., Inc., 206 Va. 457, 463, 143 S.E.2d 897, 902 (1965).

Lust's mechanical engineering and safety expert testified that the Bobcat was unreasonably dangerous because the design was defective. He explained that if the pivot point of the lift cylinder had been raised two inches the space between the cylinder and the frame or gussett would have been increased and Lust's hand would not have been crushed. He added that the "pivot could have been raised several inches without causing any problems as it relates to the operation of this equipment. There are other similar front end loaders, skidsteer loaders, which indeed have that pivot point substantially higher, and the danger which is present in this machine simply isn't there."

Lust's expert also testified that even with the pivot point located where it was, Clark could have avoided the danger by placing an inexpensive screen in front of the pinch point where Lust was injured. The screen or guard would have prevented a worker from putting his hand in the space when he attempted to connect the choke rod.

As a third means of preventing the type of injury Lust received, the expert testified that Clark should have complied with...