Witt v. Norfe, Inc., 82-5461

• Decision Date: 17 January 1984
• Docket Number: No. 82-5461,82-5461
• Citation: 725 F.2d 1277
• Parties: William D. WITT, III, Plaintiff-Appellee, Cross-Appellant, v. NORFE, INC., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1277

725 F.2d 1277

William D. WITT, III, Plaintiff-Appellee, Cross-Appellant, v. NORFE, INC., Defendant-Appellant, Cross-Appellee.

No. 82-5461.

United States Court of Appeals, Eleventh Circuit.

Jan. 17, 1984.

William M. Howell, Jacksonville, Fla., for Norfe, Inc.

David R. Lewis, Jacksonville, Fla., for Witt.

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

Before RONEY and CLARK, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

PER CURIAM:

This products liability action was brought against Norfe, Inc., for injuries sustained by William D. Witt, III when he accidentally struck a shower door manufactured by Norfe's predecessor. A jury awarded Witt $46,000 plus costs. We reverse for a new trial.

In November 1978, plaintiff, while showering, accidentally struck the shower door with his right arm. The glass door shattered, injuring plaintiff. Plaintiff brought suit against Norfe on theories of breach of implied warranty, negligence, and strict liability, arguing principally that the manufacturer made the shower door with glass that was too easily breakable. Defendant denied all allegations of liability on its part and asserted as an affirmative defense that plaintiff misused the product and was therefore contributorily negligent.

Upon receipt of all the evidence, the judge instructed the jury on the special verdict form to be used, ¹ and submitted questions on each of Witt's three claims for recovery, after defining the terms of each claim. The verdict was returned as follows: (1) The jury found for the defendant on the breach of warranty claim, answering "no" to the question: "Was the shower door defective in that it was not reasonably fit for the intended use or a reasonably foreseeable use at the time it left the possession of Norfe?"; (2) The jury likewise decided in Norfe's favor on the strict liability claim, finding that the door was not defective in that it was not unreasonably dangerous to the user at the time it left Norfe's possession; (3) The jury found for the plaintiff on a negligence theory, concluding that although Witt was 20% negligent, Norfe was 80% so, and that Norfe's negligence was a legal cause of the plaintiff's injury. Accordingly, Norfe was held liable for $46,000, 80% of the $57,500 in damages sustained by the plaintiff.

The appellant urges us to reverse the judgment on the verdict below, on the grounds that the jury's findings were inconsistent. It is Norfe's position that the jury's third finding, that the defendant negligently designed the shower door causing plaintiff's injury, is irreconcilable with its first and second findings that the shower door was not defective.

"A finding by this court that a critical verdict was inconsistent with another would require a remand for a new trial (citation omitted) since we could not speculate which inconsistent finding the jury intended to be controlling." Miller v. Royal Netherlands Steamship Co., 508 F.2d 1103 (5th Cir.1975). In order to qualify as inconsistent, however, there must be "no rational, non-speculative way to reconcile ... two essential jury findings." Higginbotham v. Ford Motor Co., 540 F.2d 762, 773 (5th Cir.1976). "Answers should be considered inconsistent ... only if there is no way to reconcile them.... Even a jury verdict inconsistent on its face is not inconsistent if it can be explained by assuming the jury reasonably misunderstood the instructions." Willard v. Hayward, 577 F.2d 1009, 1011 (5th Cir.1978). Turning to the jury's findings in this case, we conclude that they are inconsistent as that term has been defined in the case law of this Circuit.

In Florida, as elsewhere, negligence is defined as "the failure to observe, for the protection of another's interest, such care and precaution as the circumstances demand, or the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances." Seaboard Coastline R. Co. v. Griffis, 381 So.2d 1063, 1065 (Fla.App.1979). Applying this definition to the concept of negligence in product design, "a manufacturer is held to a standard of reasonable care in the design of its products, so that they will be reasonably safe for use in a foreseeable manner." P. Sherman, Products Liability 21 (1981); See also, Matthews v. Lawnlite Co., 88 So.2d 299 (Fla.1956).

In a products liability case grounded in negligence, as in all other cases, it is necessary to establish the elements of actual negligence, namely, a breach of duty on the part of the seller toward the person complaining of the defect, and an injury to the person to whom that duty is owed. The burden of proving negligence is on the plaintiff, and he must also establish, as in any products liability case, that the product in question was defective, that the defendant manufacturer's or seller's act or omission with respect to the product was causally related to the harm, and that the defendant was actually connected with the product as the manufacturer or seller.

R. Hursh, H. Bailey, American Law of Products Liability 2d Sec. 2:3 (1974).

By comparison, strict liability, adopted by the Supreme Court of Florida in West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976), is defined in the following terms:

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 user or consumer without substantial change in the condition in which it is sold.

336 So.2d at 84; Restatement of Torts (2d) Sec. 402A(1).

At first blush, it would not seem necessarily inconsistent for a jury to find a defendant negligent, yet not strictly liable in tort. The manufacturer might well have been less than reasonably careful, i.e., negligent, in designing the shower...