Toney v. Kawasaki Heavy Industries, Ltd.

• Decision Date: 07 October 1992
• Docket Number: No. 91-1577,91-1577
• Citation: 975 F.2d 162
• Parties: Prod.Liab.Rep. (CCH) P 13,416 Billy H. TONEY, Plaintiff-Appellant, v. KAWASAKI HEAVY INDUSTRIES, LTD., etc., et al., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 162

975 F.2d 162

Prod.Liab.Rep. (CCH) P 13,416

Billy H. TONEY, Plaintiff-Appellant, v. KAWASAKI HEAVY INDUSTRIES, LTD., etc., et al., Defendant-Appellee.

No. 91-1577.

United States Court of Appeals, Fifth Circuit.

Oct. 7, 1992.

S. Wayne Easterling, Carey R. Varnado, Easterling & Varnado, Hattiesburg, Miss., Eugene Tullos, Tullos & Tullos, Raleigh, Miss., for Toney.

Joseph L. McNamara, Jennifer L. Welsh, Ray McNamara, Kelly & Welsh, Jackson, Miss., for Kawasaki & Kawasaki.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JOLLY and DUHE, Circuit Judges, and PARKER, District Judge. ^*

E. GRADY JOLLY, Circuit Judge:

Billy H. Toney was riding a Kawasaki motorcycle when he was struck by an automobile that crushed his leg, which later had to be amputated. He sued Kawasaki under various theories of strict liability and negligence, primarily asserting that the motorcycle was defective because it lacked leg guards. We hold that under the applicable Mississippi law, the consumer expectations test applies in product liability cases, and because the alleged defect and danger were open and obvious to the ordinary consumer, the motorcycle was not "unreasonably dangerous." Similarly, because the danger was open and obvious to a casual observer, Toney is barred from recovery on his negligence claim. The district court's dismissal of Toney's complaint is, consequently, affirmed.

I

On August 16, 1985, Toney purchased a used Kawasaki 750 motorcycle from an individual. The motorcycle was designed and manufactured by Kawasaki Heavy Industries, Ltd. (KHI), a Japanese corporation; Kawasaki Motor Corporation is a Delaware corporation that distributes KHI products in the United States (we refer to both simply as "Kawasaki"). On the very next day, August 17, 1985, Toney was struck from the side by a truck while riding his motorcycle on an open highway. He suffered severe injuries in the collision that later necessitated the amputation of his left leg.

II

On April 11, 1989, Toney filed suit in the Circuit Court of Smith County, Mississippi. Kawasaki removed the case to federal district court invoking diversity jurisdiction. Toney asserted negligence, strict liability, and breach of warranty claims against the appellees. Specifically, he alleged that the Kawasaki motorcycle was not equipped with leg protection devices as reasonable care would require, that the product was unreasonably dangerous, and that the appellees failed to adequately warn users of the motorcycle about the potential danger. Kawasaki moved for summary judgment asserting that the risks associated with the use of a motorcycle not equipped with leg protection features were open and obvious, and that the plaintiff's claims were barred as a matter of law.

The district court held that there was no genuine issue of material fact and granted Kawasaki summary judgment as a matter of law 763 F.Supp. 1356 (1991). The court first considered whether the defendants were strictly liable for a design defect in the motorcycle or for the failure to warn users of the motorcycle about potential dangers associated with the use of the product. The court found no merit in the plaintiff's strict liability claims, because the risks to a rider's legs were patently obvious to any ordinary consumer. The court further held that appellant's negligence and breach of warranty claims were similarly barred by the "open and obvious" defense. This appeal followed.

III

In reviewing the trial court's grant of summary judgment, this court applies the same standard as the trial court, viewing the facts in the light most favorable to the nonmoving party. Federal Deposit Ins. Corp. v. Hamilton, 939 F.2d 1225, 1228 (5th Cir.1991). We decide questions of law de novo. Walker v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.1988). Summary judgment is proper if the pleadings, depositions, admissions, and other summary judgment evidence demonstrate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Brown v. Southwestern Bell Tel. Co., 901 F.2d 1250, 1255 (5th Cir.1990).

IV

In order to recover under a theory based on Mississippi product strict liability law, the injured plaintiff must show that the product was "in a defective condition unreasonably dangerous." Melton v. Deere & Co., 887 F.2d 1241, 1243 (5th Cir.1989) (quoting Restatement (Second) of Torts, § 402A (1965) as cited in State Stove Mfg. Co. v. Hodges, 189 So.2d 113, 118 (Miss.1966)); Gray v. Manitowoc Co., 771 F.2d 866, 868-69 (5th Cir.1985). Mississippi has adopted the objective "consumer expectations" test to determine whether a product is unreasonably dangerous and therefore defective. Melton, 887 F.2d at 1243; Toliver v. General Motors Corp., 482 So.2d 213, 218 (Miss.1985). Thus, the plaintiff must establish that the product was "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." Restatement (Second) of Torts § 402A, Comment i (1965) (emphasis ours). Furthermore, in a product liability action, "a product that has an open and obvious danger is not more dangerous than contemplated by the consumer, and hence cannot, under the consumer expectations test applied in Mississippi, be unreasonably dangerous." Melton, 887 F.2d at 1243.

In Gray, we examined the genesis and development of product liability law in Mississippi and concluded that "the patent danger bar adopted by the Restatement was incorporated into Mississippi's doctrine of strict liability." Gray, 771 F.2d at 868-70. We then concluded that Gray could not maintain his strict liability action because the defect he complained of was open and obvious and no "reasonable jury [could] have concluded that the [product] was dangerous to a degree not anticipated by the ordinary consumer of that product." Id. at 871. Thus it is clear that Mississippi law dictates that a manufacturer cannot be held liable for injuries caused by dangers arising from either a defective design or a sound but unavoidably dangerous design so long as the hazard is open and obvious "to a casual observer." Our court follows this rule. Id. at 870; Melton, 887 F.2d at 1243.

The case of Toliver v. General Motors Corporation illustrates the application of these principles by the Mississippi court. In Toliver, the Mississippi Supreme Court observed that "[i]n the context of fuel tank design, obviously the plaintiff contemplated that the automobile which he purchased had a fuel tank affixed to it, which could become dangerous under some circumstances." Toliver, 482 So.2d at 218. The Mississippi court then pointed out that the fact the fuel tank was dangerous was not a sufficient basis for Toliver to recover. More was required: Toliver had to show that the placement of the tank was "defective: ... below the standard of automotive design contemplated by the user, and, thus, ... unreasonably dangerous." Id. In other words, the danger from the fuel tank of an automobile was open and obvious; however, the danger presented by the design and placement of the fuel tank was not. Consequently, if the design and/or placement were defective and unreasonably dangerous, Toliver would have been entitled to recover, notwithstanding the obvious danger generally presented by the gas tank of an automobile. ¹

Similarly, under Mississippi negligence law it has also been long established that if the hazard of an allegedly defective design is "apparent and obvious to a casual observer," then the injured plaintiff may not recover on a negligence theory. Harrist v. Spencer-Harris Tool Co., 244 Miss. 84, 140 So.2d 558, 561 (1962). In Harrist, the Mississippi Supreme Court held that Harrist could not recover for injuries received because of an allegedly defective design because "[i]f we assume there were defects, we think they were apparent and obvious to a casual observer." Harrist, 140 So.2d at 561 (emphasis ours). The court then elaborated: "No duty rests upon a manufacturer or seller to warn a purchaser of a dangerous design which is obvious. If this were not true, a manufacturer could not design and sell a pocket knife, axe, planer or gun." Id. at 562 (emphasis ours). We explained in Gray that "a manufacturer's liability for product defects under Mississippi's doctrines of negligence and implied warranty may not, as a matter of law, be premised on the existence of an obvious hazard in a product which functions properly for its intended purpose." Gray, 771 F.2d at 868.

As to breach of warranty claims, the Mississippi Supreme Court held in Harrist:

According to the majority view, a general warranty does not extend to open and visible defects in the quality or condition of goods sold, although they are inconsistent with the warranty.

... It has been stated that neither a general nor an implied warranty covers external and visible defects which are plain and obvious to the purchaser upon mere inspection with the eye.

Harrist, 140 So.2d at 561 (quoting 41 Am.Jur. Sales § 377 (1957)). The plaintiffs cite no authority to the contrary.

Thus, in Mississippi, an injured plaintiff is barred from recovering for injuries resulting from a product's open and obvious dangers, e.g., one attributable to an automobile gas tank; if, however, the particular hazard is not open and obvious, e.g., one attributable to the design and placement of the gas tank, the plaintiff is not barred from recovery. ² With these standards in mind, we turn to examine Toney's claims.

V

A

Toney first urges us to apply the holding of Toliver v. General Motors Corp., 482 So.2d 213 (Miss.1985), to the case sub judice. The Mississippi Supreme Court held in Toliver that it would impose strict liability in tort, in accordance...