West v. Caterpillar Tractor Co., Inc.

• Decision Date: 27 November 1974
• Docket Number: No. 73-3217,73-3217
• Citation: 504 F.2d 967
• Parties: Leon WEST, Individually and as personal representative of the Estate of Gwendolyn West, Deceased, Plaintiff-Appellee, v. CATERPILLAR TRACTOR COMPANY, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 967

504 F.2d 967

Leon WEST, Individually and as personal representative of the Estate of Gwendolyn West, Deceased, Plaintiff-Appellee, v. CATERPILLAR TRACTOR COMPANY, INC., Defendant-Appellant.

No. 73-3217.

United States Court of Appeals, Fifth Circuit.

Nov. 27, 1974.

James S. Usich, Charles C. Papy, Jr., John Carruthers, II, Coral Gables, Fla., for defendant-appellant.

Philip Freidin, Robert Orseck, Miami, Fla., for plaintiff-appellee.

Before TUTTLE, WISDOM and GEE, Circuit Judges.

GEE, Circuit Judge:

This appeal presents important issues of modern tort principles which are particularly appropriate for resolution by the Florida Supreme Court. Broadly the questions include (1) whether Florida has adopted strict liability as defined by the Restatement of Torts, 402A and/or as defined by the district court in its instructions to the jury, compare McLeod v. W. S. Merrell Co., 174 So.2d 736 (Fla.1965) with Royal v. Black and Decker Manuf. Co., 205 So.2d 307 (Fla.App.-- 3d. Dist.-- 1967) and Keller v. Eagle Army-Navy Dept. Stores, Inc., 291 So.2d 58 (Fla.App.-- 4th Dist.-- 1974), and (2) whether comparative negligence, Hoffman v. Jones, 280 So.2d 461 (Fla.1973), constitutes a defense to either or both strict liability and breach of implied warranty, and if so, in particular what type of negligence or conduct by plaintiff constitutes such a defense-- abnormal, unintended or unforeseen use; lack of due care which is the sole proximate cause or just a proximate cause; voluntary encounter of a known risk; assumption of risk as defined in Cleveland v. City of Miami, 263 So.2d 573 (Fla.1972). See Coleman v. American Universal of Florida, Inc., 264 So.2d 451 (Fla.App.-- 1st Dist.-- 1972), interpreted in Florida Power & Light Co. v. R.O. Products, Inc., 489 F.2d 549 (5th Cir. 1974).

We defer decision on these questions and certify the issues to the Supreme Court of Florida. We will decide the evidentiary and procedural issues which remain after decision of the Florida Court.

Following our practice, we requested that the parties submit a proposed agreed certificate of the issues for decision. Commendably, they have reached full agreement upon them. Since we also agree that these are the substantive issues presented, we submit the parties' statement of facts and issues hereby, disclaiming, however, any intention or desire that the Supreme Court of Florida confine its reply to the precise form or scope of the questions certified. See Allen v. Estate of Carmen, 446 F.2d 1276 (5th Cir. 1971).

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TO THE SUPREME COURT OF FLORIDA, PURSUANT TO 25.031 FLORIDA STATUTES 1971, AND RULE 4.61 FLORIDA APPELLATE RULES

TO THE SUPREME COURT OF FLORIDA AND THE HONORABLE JUSTICES THEREOF:

It appears to the United States Court of Appeals for the Fifth Circuit that the above-styled case in this Court involves questions or propositions of the law of the State of Florida which are determinative of the cause, and there appear to be no clear controlling precedents in the decisions of the Supreme Court of Florida. This Court hereby certifies the following questions of law to the Supreme Court of Florida for instructions concerning said questions of law, based on the facts recited herein, pursuant to 25.031, Florida Statutes 1971, and Rule 4.61, Florida Appellate Rules, as follows:

1. Style of the Case.

The style of the case in which this certificate is made is Leon West, individually and as personal representative of the Estate of Gwendolyn West, deceased, Appellee, v. Caterpillar Tractor Company, Inc., Appellant, being Case No. 73-3217, United States Court of Appeals for the Fifth Circuit, such case being an appeal from the United States District Court for the Southern District of Florida.

2. Statement of the Case.

A caterpillar grader operated by an employee of Houdaille Industries struck and ran over, with its left rear tandem wheel, Gwendolyn West on a street under construction in Miami, Florida, on September 1, 1970. Gwendolyn West died of massive internal injuries after six days in the hospital. As a result, the deceased's husband, Leon West, individually and as administrator of the estate of his deceased wife, claimed a right to damages against Houdaille Industries and Caterpillar Tractor Company, Inc., the manufacturer of the machine. He ultimately settled with Houdaille Industries for $35,000 damages and brought a products liability suit against the manufacturer of the grader, Caterpillar Tractor Company, Inc., in the United States District Court, in and for the Southern District of Florida bottomed on diversity of citizenship jurisdiction.

West's Complaint contained two counts: (1) negligent design of the grader by failure to provide an audible warning system for use while backing the grader, by failure to provide adequate rear view mirrors, and by manufacturing the grader with a blind spot created by obstructions when looking to the rear while driving in reverse, and (2) a breach of implied warranty or strict liability based upon the same design defects.

At trial, the evidence indicated that preceding the accident Gwendolyn West had walked to the corner, stood on the west curb of the street which was under construction, speaking to a friend, for a period while the grader operated in a forward manner, southward and proceeded to pass her. The machine reached the end of its southward operation and commenced to back up. In the meantime, Mrs. West began walking across the street intersecting the path of the grader while it was travelling in reverse. She had been waiting for a bus, and as it approached she commenced to walk across the street, looking to her left; and then she looked into her purse; and continued to look into her purse until the time of the...