McMurray v. Deere and Co., Inc.

Citation858 F.2d 1436
Decision Date22 September 1988
Docket NumberNo. 84-2771,84-2771
PartiesProd.Liab.Rep.(CCH)P 11,928 Roberta Ann McMURRAY, executrix of the estate of Dennis Ray McMurray, deceased, Plaintiff-Appellant, v. DEERE AND COMPANY, INC., A Delaware Corporation, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Ronald S. Grant of Pray, Walker, Jackman, Williamson & Marlar, Tulsa, Okl. (Floyd W. Walker, was also on the brief), for plaintiff-appellant.

Bert M. Jones and JoAnne Deaton of Rhodes, Hieronymus, Jones, Tucker & Gable, Tulsa, Okl. (J.A. McCulloch, was also on the brief), for defendant-appellee.

Before HOLLOWAY, Chief Judge, and MOORE and BALDOCK, Circuit Judges.

HOLLOWAY, Chief Judge.

This is a diversity wrongful death-products liability action filed by Roberta Ann McMurray against Deere & Company, Inc. McMurray is the executrix of the estate her husband, Dennis Ray McMurray (decedent), who was run over and killed by his tractor after "bypass starting" it. McMurray claims the tractor was defective because it could be bypass started while in gear, and because Deere failed to warn decedent of this fact. The case was tried to a jury which returned a verdict in Deere's favor. After the district court denied her motion for a new trial, McMurray filed this appeal, asserting three claims of error regarding the jury instructions under Oklahoma law. We reverse and remand.


The pertinent facts are as follows. Decedent was killed after starting his tractor on his farm near Nowata, Oklahoma on October 9, 1983. The tractor is a 1977 John Deere 4640 agricultural model. It was first sold to another party in October 1977. The original dealer reacquired the tractor in October 1980 as a trade in, and then sold it to decedent on August 5, 1983.

The tractor is equipped with a "neutral start switch" (also known as a "starter safety switch") which prevents the engine from being started while the transmission is in gear. This device is part of the tractor's normal starting circuitry. To start the tractor, the operator inserts the key in the ignition and turns it. Because of the neutral start switch, however, the engine will not start unless the transmission is in neutral.

However, it is possible to bypass the normal starting circuitry by placing a screwdriver or similar piece of metal between two terminals on the starter and the starter solenoid. This method is often called "bypass starting" because it bypasses the normal starting circuitry. 1 When this method is employed, the neutral start switch is also bypassed and the engine can be started even though the transmission is in gear.

On October 8, 1983, the day before the accident, the tractor's normal starting circuitry malfunctioned, making it impossible to start the tractor with the key. Decedent and his helpers therefore bypass started the tractor. By the next day, decedent and his various helpers had bypass started the tractor several times, without incident.

On the day of the accident, decedent and his friend Ralph Titsworth had been plowing with the tractor. When the men broke for lunch, Titsworth left one of the transmission levers in a position which allowed it to fall into gear when he turned the engine off. When the men returned from lunch, the tractor was therefore in gear. Decedent and Titsworth stood in front of the tractor and attempted to bypass start the engine by placing a screwdriver between the starter and the solenoid. The tractor started, hesitated, and then lurched forward, crushing the decedent under its rear wheels and killing him.

Decedent's wife brought this wrongful death action claiming manufacturers' strict products liability. Specifically, McMurray claimed the tractor was defective because it could be bypass started while in gear, and because Deere failed to warn decedent of this fact, thus making the tractor dangerous beyond the contemplation of the ordinary user possessing ordinary knowledge of the tractor. 2 She claimed decedent's death resulted from this defective condition and therefore sought compensatory damages. She also sought punitive damages, contending that Deere knew of the alleged defect, and further knew that bypass starting was a common practice and that operators of Deere tractors had been injured or killed in similar accidents.

Deere denied the tractor was defective and denied decedent's death resulted from the alleged defect. Deere also asserted two affirmative defenses: first, that decedent assumed the risk of a known defect when he bypass started his tractor; and second, that the act of bypass starting constituted a misuse of the tractor. Specifically, Deere claimed that decedent had extensive experience with large pieces of earth moving equipment such as bulldozers, scrapers, graders, and loaders. Deere also claimed decedent failed to follow the operating instructions.

The district court denied McMurray's request for an instruction that if the jury found the tractor was defective, decedent's failure to follow the operating instructions would not bar recovery. Over McMurray's objection, the court instructed the jury on the affirmative defenses of misuse and voluntary assumption of the risk of a known defect. McMurray now seeks reversal, claiming the instructions misled the jury.


In this diversity case the law of Oklahoma governs. Oklahoma embraced the doctrine of manufacturers' strict products liability, as expressed in the Restatement (Second) of Torts Sec. 402(A), in Kirkland v. General Motors Corp., 521 P.2d 1353 (Okla.1974). See generally Pearson, An Overview of Oklahoma Products Liability Law: Kirkland v. General Motors Corporation and Beyond, 59 Okla.B.J. 1417 (1988) (hereafter "Pearson"). Under this doctrine,

one who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the consumer without substantial change in the condition in which it is sold.

Restatement (Second) of Torts Sec. 402(A)(1).

Under Oklahoma law, a plaintiff must prove three elements to recover on the theory of manufacturers' strict products liability: (1) the product was the cause of the injury; (2) the defect existed in the product at the time it left the manufacturer's possession and control; and (3) the defect made the product unreasonably dangerous to the plaintiff or his property. Kirkland, 521 P.2d at 1363; Smith v. United States Gypsum Co., 612 P.2d 251, 253 (Okla.1980); Cunningham v. Charles Pfizer & Co., 532 P.2d 1377, 1379 (Okla.1974); see also Karns v. Emerson Elec. Co., 817 F.2d 1452, 1455 (10th Cir.1987); Brown v. McGraw-Edison Co., 736 F.2d 609, 613 (10th Cir.1984); Hurd v. American Hoist & Derrick Co., 734 F.2d 495, 499-500 (10th Cir.1984); Hagan v. EZ Mfg. Co., 674 F.2d 1047, 1050 (5th Cir.1982) (discussing and applying Oklahoma law); Mustang Fuel Corp. v. Youngstown Sheet & Tube, 561 F.2d 202, 206 (10th Cir.1977).

A product is unreasonably dangerous if it is " 'dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.' " Kirkland, 521 P.2d at 1362-63 (quoting Restatment (Second) of Torts Sec. 402(A) comment i (1965)); see also Brown, 736 F.2d at 613; Lamke v. Futorian Corp., 709 P.2d 684, 685-86 (Okla.1985). The only defenses to this type of action are lack of proof of causation beyond a mere possibility, voluntary assumption of the risk of a known defect, or abnormal use of the product. Kirkland, 521 P.2d at 1366-68; see also Smith v. United States Gypsum Co., 612 P.2d 251, 254 (Okla.1980); Fields v Volkswagen of Am. Inc., 555 P.2d 48, 56 (Okla.1976). See generally, 46 A.L.R.3d 240 (1972). 3 The defense of contributory negligence is not available. Fields, 555 P.2d at 56; Kirkland, 521 P.2d at 1366-68; see also Saupitty v. Yazoo Mfg. Co., 726 F.2d 657, 660 (10th Cir.1984); Pearson, supra at 1421 & n. 70.

We turn to McMurray's assignments of error regarding the instructions. We examine the instructions as a whole to determine whether they properly presented the law which is applicable to the issues. Marshall v. Ford Motor Co., 446 F.2d 712, 715 (10th Cir.1971); Messler v. Simmons Gun Specialties, Inc., 687 P.2d 121, 129 (Okla.1984).


McMurray first argues the court erred by instructing the jury on assumption of the risk. 4 Specifically, she contends there was no such evidence in the record to warrant the instruction. We agree.

Kirkland recognized assumption of the risk as a valid affirmative defense in this type of action. However, there the court carefully explained that this defense differs from such a defense in negligence actions: "[c]omplicated semantic difficulties arise when the defense of assumption of the risk is considered. In order to avoid abuse of this legitimate defense, or confusion of same with its common law counterpart of the same name, it should be narrowly defined as voluntary assumption of the risk of a known defect." 521 P.2d at 1366 (emphasis in original; footnote omitted) (citing Williams v. Ford Motor Co., 454 S.W.2d 611 (Mo.Ct.App.1970); Restatment (Second) of Torts Sec. 402A comment n; W. Prosser, The Law of Torts, 3d ed., Sec. 78). Under Kirkland, "there must be a showing that plaintiff knew of a defect unreasonably dangerous in nature, yet voluntarily used the product. Only then is he precluded from recovery under this defense." Hogue v. A.B. Chance Co., 592 P.2d 973, 975 (Okla.1978) (emphasis in original).

This principle has been restated by the Supreme Court of Oklahoma, e.g., Clark v. Continental Tank Co., 744 P.2d 949, 954 (Okla.1987); Hogue v. A.B. Chance Co., 592 P.2d 973, 975 (Okla.1978); Jordan...

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