McElroy by McElroy v. Firestone Tire & Rubber Co.

Decision Date01 March 1990
Docket NumberNo. 88-3238,88-3238
Citation894 F.2d 1504
Parties, Prod.Liab.Rep.(CCH)P 12,396 Timothy McELROY, by his legal guardians, Thomas McELROY and Vivian McElroy, Plaintiffs-Appellants, v. The FIRESTONE TIRE & RUBBER COMPANY, a foreign corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

Thomas E. Whigham, Sanford, Fla., John C. Risjord and Randy W. James, John C. Risjord & Associates, P.C., Overland Park, Kan., Bernard Zimmerman, Orlando, Fla., for plaintiffs-appellants.

Rafael Martinez, Sanders, McEwan, Mims & Martinez, Orlando, Fla., Harvey Grossman, Los Angeles, Cal., Frances F. Prell, Colin Smith and William Turbeville, Burke, Bosselman & Weaver, Chicago, Ill., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

JOHNSON, Circuit Judge:

The plaintiffs appeal from an adverse judgment in this product liability suit brought under Florida law against the Firestone Tire & Rubber Company ("Firestone").


Timothy McElroy suffered a grievous accident on July 28, 1981, the day after his eighteenth birthday, while working for Altamonte Towing Service ("Altamonte"), a truck-towing company in Altamonte Springs, Florida. Altamonte had ordered a used truck wheel assembly for one of its tow-trucks from Odom Bandag, Inc. ("Odom"), a tire retreading service. The assembly included a retreaded tire and a used wheel. Odom had obtained the wheel from its sister corporation, Dade City Tire Service, Inc. ("Dade City"). The wheel consisted of three components, all manufactured by Firestone: a rim base manufactured in January 1974, a side ring manufactured in June 1962, and a lock ring manufactured in May 1959. An employee of Odom assembled the wheel and tire, but left the assembly uninflated. The lock ring was heavily rusted, corroded, and cracked, a condition which should have been visible to anyone assembling the wheel and tire, but which became concealed after assembly was completed.

Jeff Andrews, a mechanic employed at Altamonte, picked up the wheel assembly from Odom on the morning of July 28, and left it on a concrete slab in Altamonte's garage. McElroy, who had graduated from high school the month before, did odd jobs around the garage at Altamonte. His responsibilities did not include inflating truck tires, however, and he had no particular expertise in that area. Nevertheless, while Andrews and several other employees were eating lunch, McElroy found the uninflated tire and proceeded to inflate it. Altamonte lacked a safety cage for use during truck tire inflation, despite Occupational Safety and Health Administration ("OSHA") regulations requiring such a precaution. The tire exploded when the lock ring and side ring separated from the rim base under pressure, severely injuring McElroy and causing permanent brain damage. Although he eventually regained most physical motor functions, he incurred serious, long-term cognitive, memory, and motivational disabilities. He also lost his sense of smell, was totally blinded in one eye, and lost his peripheral vision in his other eye.

In June 1983, McElroy sued Odom, Dade City, and Firestone in Florida state court. Odom and Dade City agreed to a $475,000 settlement. In June 1984, the remaining action against Firestone was removed to federal court on diversity grounds. On October 31, 1985, Firestone moved for summary judgment on the basis of Florida's 12-year statute of repose for product liability actions. See Fla.Stat.Ann. Sec. 95.031(2) (West 1982), repealed in relevant part 1986 Fla.Laws, ch. 86-272, Sec. 2. 1 On March 4, 1986, the district court granted summary judgment for Firestone as to the lock ring and side ring. The case proceeded to trial regarding the rim base, on theories of negligence and strict liability for defective design. Trial began on April 10, 1987; following voluminous testimony and evidence, the case was submitted to the jury on May 4, 1987. The jury delivered a verdict for Firestone on May 6, 1987. McElroy filed a motion for a new trial on May 15, 1987, which was denied on March 16, 1988. On June 2, 1987, McElroy filed a motion to interview the jurors, which was denied on June 25, 1987. On March 30, 1988, McElroy appealed to this Court, contending that (1) the district court erred by granting summary judgment as to the lock ring and side ring on the basis of the Florida statute of repose, (2) the district court improperly instructed the jury regarding causation and Firestone's defenses relating to causation, and (3) the district court improperly handled an incident involving a juror who became emotionally distraught during deliberations.

A. The Statute of Repose

The district court's grant of summary judgment is subject to de novo review. Shipes v. Hanover Ins. Co., 884 F.2d 1357, 1359 (11th Cir.1989). This Court asks whether, construing the record in McElroy's favor, any genuine issue of material fact exists precluding judgment for Firestone as a matter of law. See id. at 1360-61; Fed.R.Civ.P. 56(c). "[T]he substantive law"--in this case, the Florida law of product liability--"will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). While the Florida courts are the ultimate authority on Florida law, a federal district court's interpretation of the law of the state where it sits is entitled to deference from this Court. Shipes, 884 F.2d at 1359.

Florida's statute of repose provides that "[a]ctions for products liability ... under [Fla.Stat.Ann. Sec. ] 95.11(3) 2 must be begun ... within 12 years after the date of delivery of the completed product to its original purchaser ... regardless of the date the defect in the product ... was or should have been discovered." Fla.Stat.Ann. Sec. 95.031(2) (West 1982). The statute bars untimely claims for injury from a product based on, inter alia, negligence, implied warranty, and strict liability. See Pullum v. Cincinnati, Inc., 458 So.2d 1136, 1138 (Fla.App.1984), aff'd, 476 So.2d 657 (Fla.1985), appeal dismissed, 475 U.S. 1114, 106 S.Ct. 1626, 90 L.Ed.2d 174 (1986).

It is not disputed that the lock ring and side ring involved in McElroy's injury were manufactured in 1959 and 1962, respectively, 3 and that those components were sold by Firestone well over twelve years before McElroy filed suit--indeed, well over twelve years before the accident even occurred. If, as Firestone contends, the individual wheel components constituted the separate "completed products," and the manufacturers, dealers, or distributors to which Firestone initially sold the components constituted the relevant "original purchasers," Firestone clearly would be entitled to summary judgment under the statute of repose. On the other hand, if, as McElroy contends, the wheel components did not become part of a "completed product" until assembled together as a truck wheel, and did not pass to the relevant "original purchaser" until purchased by an ultimate consumer or user of the assembled wheel, it is clear that Firestone would not be entitled to summary judgment. 4

There is no published or appellate Florida caselaw on point on this issue. 5 Cases and statutes can be found in other jurisdictions which support both McElroy's and Firestone's approaches. Indiana, for example, has interpreted its statute of repose to commence "at the time the product is delivered from the manufacturer, wholesaler, retailer, or distributor to the first consuming entity.... The term 'seller' encompasses not only manufacturers but also the intermediaries. 'User or consumer' does not." Whittaker v. Federal Cartridge Corp., 466 N.E.2d 480, 482 (Ind.App.1984). Indiana's statute, however, specifically provides that " '[s]eller' includes a manufacturer, a wholesaler, a retail dealer or a distributor" and the repose period begins only upon "delivery of the product to the initial user or consumer." See id. (quoting Ind.Code Secs. 33-1-1.5-2 and 33-1-1.5-5); cf. Daily v. New Britain Machine Co., 512 A.2d 893, 896 n. 5, 903-06 (Conn.1986) (upholding Connecticut statute barring claims brought "later than ten years from the date that the [defendant] last parted with possession or control of the product"). 6 Reliance on non-Florida case or statutory law is ultimately of little use in view of the divergent language of the various statutes. 7

A strict construction of the Florida statute tends to support Firestone's position; it is undeniable, after all, that the entities to which Firestone initially sold the components involved in this case were, literally speaking, the "original purchasers." We find support for a strict construction of the statute in Barber Greene Co. v. Urbantes, 517 So.2d 768 (Fla.App.1988), where the court addressed the applicability of the statute of repose to a piece of machinery leased to the plaintiff's employer sixteen years before the accident suffered by the plaintiff, but actually purchased only seven years before. The court held that the statute ran from the date of the purchase rather than the date of the lease, thus finding the claim not barred. The court stated: "We agree with the manufacturer that the raison d'etre for the statute should apply with equal force to manufactured products delivered under a lease, especially so when, as here, the employer eventually purchased the machinery. However, the wording of the statute is unequivocal and we decline to interpret it otherwise." Id. at 769 (emphasis in original). The court in Urbantes thus implicitly rejected McElroy's argument that the running of the statute should be tied to actual use of the product by some consumer, rather than to the date of the "original purchase," which may postdate (as in Urbantes) or predate (as in this case) the commencement of actual use.

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