*1 Grady Judge, E. con- having Jolly, shares been shown to Cablevision 1981, specially opinion. and filed place have taken curred at time to right stockholders had no Para- rights
exercise first refusal under Subscription Agree- 8 of the
graph Stock
ment. DALTON, Plaintiff-Appellant, R.
Edward
Administrators of the Tulane Education
Fund, Tulane Medical d/b/a Center Clinic, Intervenor,
Hospital and SALES, INC.,
TOYOTA MOTOR
Defendant-Appellee.
No. 81-3768. Appeals,
United Court of States
Fifth Circuit.
April 1983. 3,1983.
Rehearing Denied June
138
from the car. Newman was also burned rescuing while Dalton. fire, nothing
Dalton remembered his rescue or other of the events be- tween the time he fell asleep and the time Rouse, Klein, Henry Klein L. Gary J. up Gulfport he woke in the Memorial Hos- Rouse, Orleans, La., plaintiff-ap- New for pital degree with second and third burns on pellant. head, face, his hands and arms. He filed Bernard, Cassisa, Saporito, Jerry Babst & this action in 1979 in the Eastern District of Metairie, La., Saporito, L. for defendant-ap- Sales, against Toyota Louisiana Motor pellee. U.S.A., (Toyota). Inc. The case was tried to
a in March 1981. at the close Both of the plaintiff’s case and at the conclusion of evidence, the Toyota all moved for dismissal of the case or a directed verdict. The trial JOLLY, Before WILLIAMS judge jury, submitted the case to the which *, Judges, Judge. and WILL District $250,000 plain- returned a of verdict WILL, Judge: District tiff. judgment The court entered a for the then jury’s Toyota on alleged- This case involves an automobile filed either judgment motions notwith- unsafe at no ly speed. The facts are that standing the verdict or for a new trial. A plaintiff, (Dalton), Edward Dalton after hearing was held on the in April motions leaving party an office Christmas on Christ- 1981 the trial judge, and November Eve, 24,1978, mas December drove his 1978 opinion, granted with an the defendant’s Mobile, Corolla his office in notwithstanding motion for a Alabama, westward on Interstate 10 in the and, alternatively, verdict the motion for a direction of New Orleans. He apparently follow, new trial. For reasons sleepy pulled pavement became off the we reverse and remand with directions to onto the grassy strip. Letting median enter a on the 526 engine (the cold), weather was he lit a F.Supp. 575. cigarette asleep. passing and fell A motor- ist, motions, the Rodney (Newman), Newman noticed the defendant's to attempted flames around the car and to court found that Dalton had failed estab- pull lish evidence either of his two by competent Dalton out. the third he attempt, On Newman, (1) contentions: converter According was successful. to (an device) improperly emission control inside of Dalton’s car was filled with smoke fire, designed, which defect caused two, during but contained no fire his first manual con- (2) owner’s unsuccessful attempts pull to Dalton out of warnings to tained insufficient during car. Newman testified that the car dangers parking involved in attempt, vinyl third and successful or engine over combustible materials plastic (i.e., top “headliner” of the car warning, which is contained running. That car) the inside of the began melt and Manual, and which Dalton in the Owner’s The caught caught top fire. fire read, he had not states: acknowledged pulled Dalton’s head as Newman him from The is an emission the car. Newman also testified that in the exhaust control device installed caught back seat of the car during also It is installed on Corolla’s system. attempt his third Dalton out of the pull sold in the U.S.A. car, but that the front seat was not on fire Newman, somewhat According at that time. Dal- converter looks muffler, performs impor- it (Dalton) ton was burned further when he like a but air. maintaining tant cleaner burning grass job fell in the three or four feet * nois, by designation. sitting Illi- District of the Northern District of large
If a amount of unburned gasoline of which was installed on Toyota. Dalton’s flows into the it may overheat One was a heat shield installed underneath prevent create fire hazard. To converter between it and the this, following precautions: observe the ground. other was a thermosensor Do extremely not drive with an low which build-up would detect heat may fuel level. This engine cause mis- catalytic converter and either turn off the *3 creates an extra load for the stop operation motor or of the converter by stopping the flow of air to it. Plaintiff’s Do not allow the engine to run at fast counsel also adduced evidence that idle speed for more than ten minutes or years models for the 1975 through 1977 at normal for more than provided a dashboard light to ad- twenty minutes. vise overheating of the catalytic convert- park Do not dry grass the car over or er which only would not warn an owner- over anything that might easily. burn user of actual overheating but abe remain- Do not turn ignition off the while the der of the possibility of the converter over- car is moving. heating. Manual, 1, Owner’s page Section 1. With adequate warnings, The court found that the plaintiff’s ex- plaintiff’s counsel introduced evidence of pert, George Pappas (Pappas), was qual- warnings contained in other owner’s manu- express ified to opinion an on the adequacy als for equipped automobiles with catalytic inadequacy or of catalytic converter designs converters. qualified expert only an “in the field Plaintiff’s expert, Pappas, testified that 6f engineering and fire investigation.” In in his opinion, “the fire started underneath event, the court found that Pappas high heat, vehicle as a result of intense testified that the skin temperature of radiating from the catalytic converter was about 1800 de- which caused combustible material under grees Fahrenheit operation when in vehicle, grass burn, like and in addi- that the fire originate did not within the tion cause heat by conduction to raise [sic] car. cqm- temperature passenger inside the With to the adequacy of the partment.” He testified categorically that warnings, the court plaintiff found that the opinion his the fire “did not start inside had “introduced no evidence relating to in- the compartment” but that “the fire started dustry standards of adequate warnings.” This, course, under the’ car.” was con- It further found that “No guidelines were sistent with the testimony only eye-
presented indicative of a more effective witness, Newman. hypothetical or actually —either Cross-examination Toyota’s of one of ex- utilized.” perts, (Parcells), expert Jack Parcells record, however, reveals testimony systems emission control sys- exhaust adduced by Dalton’s counsel Pappas tems, disclosed that Datsun and Mazda both and others that utilized sensor relays connected to dash- normally would get so hot that at night you board warning lights and that Toyota had glow could see it and radiate. On the vehi- removed the warning light from its 1978 question, cle in it was just installed forward models pressure and substituted a sensitive of the rear wheels about 5% inches off the operating switch which under certain condi- ground. A heat shield was top installed on tions supply would shut off the of air to the of the converter between it and the floor- catalytic converter and diminish stop or its board of the ear but none was installed operation. below the converter. The plaintiff’s expert also testified that he was aware of two also introduced medical evi- safety features which are used dence on other as to the location and extent of his motorists, makes of cars (Dr. neither burns. Dr. George Byrne Byrne) W. 140
testified that when he
York,
examined Dalton in
surance
Co. of New
259 La.
250
Gulfport
Hospital,
Memorial
he found acute
(1971).1
754
So.2d
also Chappuis
See
v.
face,
neck,
burns on Dalton’s
upper
fore-
Co.,
Roebuck
(La.
Sears
926
So.2d
head,
extremities,
scalp,
upper
both
right
1978); Melancon v. Western
Supply
Auto
hand,
arm and shoulder and back of left
but Co.,
(5th Cir.1980);
flames.
applicable
law with
to
the criteria to be
ruling
followed in
on
presented
defendant
expert testimo-
motions
for
notwithstanding a
ny
aby
investigator,
Antone P. Jasich
jury’s
verdict is set forth in
Co. v.
who,
(Jasich),
although acknowledging that
Shipman,
(5th Cir.1969) (en
The Louisiana law when grant to to a motion not products liability, parties both agree, withstanding is set a jury’s we conclude forth in Weber Fidelity Casualty In- judge erroneously trial set aside noteworthy Gordon, 1. It is although the late makes no reference to Weber refer- outstanding an well-respected judge, ring trial to this Court’s decision in Soileau. opinion setting jury’s in his aside the verdict certainly sonably verdict. There was evi- have found that Dalton’s car was which, on the basis of dence before dangerous in normal use unreasonably particularly weighed favorably if most to condition was cause Daltpn’s to the party opposed (plaintiff), motion and, therefpre, injuries. of the fire persons reasonable and fair-minded could There remains the issue ef whether the Indeed, have reached different conclusions. adequately defendant notified owners or they concluded, here could have they as adequate steps took own- prevent other did, apparently that the absence of a heat being injured ers and users from as a result shield under the converter or the potentially dangerous condition. absence of a thermosensor which would ef- there was evidence from which the Again, fectively turn off the converter if reasonably have found that jury could it reached a critical heat level made Dal- Manual was inade- notice Owner’s ton’s 1978 Toyota “unreasonably Corolla un- and that had not taken rea- quate potentially dangerous safe.” That a condi- steps own- sonable and available tion existed is reflected manufactur- That evidence injury.2 ers and users recognition er’s in the Owner’s Manual that included the use of dashboard conditions, under certain lights, Toyotas overheat create a fire as on earlier models of “may hazard.” makes, There follow instructions not to drive with well as on other to warn of an level, extremely low fuel not to allow overheated condition and to serve as a peri- engine run at fast potential danger odic reminder of the of an more than ten minutes or at normal idle overheated It also in- *5 minutes, twenty for more than not to by cluded evidence of the use other manu- park dry the car over any- or over facturers heat of shields under the convert- thing might easily burn or to turn off er catalytic or of thermosensors to shut off ignition while the car is moving. they converters if became overheated. There equally was evidence before the was, course, There of substantial conflict- jury from which it could have found that ing from which the jury evidence could the catalytic proximate converter was the converter, have concluded plaintiff’s injuries. cause of the The only though obviously potentially dangerous as Newman, eyewitness, testified that there out, pointed the Owner’s Manual was not was fire around the car when he arrived unreasonably dangerous or the cause of and smoke but no fire inside. That testimo- and that the fire started Dalton’s burns had ny was consistent testimony of jury might inside not the car. The outside plaintiff’s expert, Pappas, who concluded also have found that in its Owner’s overheated converter had steps Manual had taken reasonable to warn material, ignited grass or other combustible potentially danger- owners and users of the material, under the only car and later had ous them condition and thus to the car been set on fire. It was also con- injury by from fire caused sistent with testimony the medical that Dal- ton’s second and degree third burns were all upper part on the body of his and on his criteria, Applying Shipman arms. i.e., considering all the evidence with all reasonable inferences most favorable to the There suggestion has been no that Dal- motion, party opposed to the it is clear that ton’s use of the car was abnormal and no persons might, reasonable and fair-minded contention to that effect has been made in impartial judgment, defendant. It follows then that the exercise of reach jury, it, based on the evidence before could rea- different conclusions from all the evidence. fore, jury might, example, reasonably inadequate 2. The a have the manual was particularly protect against potentially concluded that owners and users such a normally either do not read Owner’s Manuals condition. that, they or remember what do read and there- jury ruling. That describes a classic case for deter- don’s J.N.O.V. his Memorandum circumstances, it mination. Under the be- Order, Judge discussed the fact Gordon ing weigh the function of the con- jury plaintiff’s theory inadequate of inferences, flicting evidence and and to de- warning self-serving was devoid “of even witnesses, termine the its credibility of ver- testimony.” Judge Gordon held that dict should not have been set aside. regarding adequacy evidence of warn- obviously This is not a case where the ing question failed to a present ap- facts point strongly and inferences so go would to the Essen- propriately jury. favor persons of reasonable tially, Judge held that the absence Gordon contrary could not arrive at a regarding accepted of evidence standards circumstances under which of relating adequacy warnings to the made the motion for n.o.v. would have it impossible jury for the to arrive at been clearly warranted. verdict was concerning sound determination the warn- within the jury’s discretion and should not ing in this case. have been vacated. An examination of the case does indeed Accordingly, for the de- very show little evidence from which the notwithstanding fendant the jury’s verdict compare danger could the level of in- plaintiff is reversed and the case volved with the converter to the remanded with instructions to reinstate the adequacy warning. As set forth in jury’s verdict. (Second) the Restatement of Torts 388 at § REVERSED AND REMANDED with in- (1965), duty 308-10 to warn increases as structions to reinstate the potential danger connected with the product Rather than presenting increases. JOLLY, E. GRADY Judge, con- bearing on the testimony duty provide curring: degree commensurate While the evidence adduced supports the presented, little danger did jury’s verdict with respect to the cause of point here other than out the fact that the fire, i.e., the catalytic I do warning was contained in the owner’s man- *6 have concerns about the lack of evidence provided ual that no other dealing alleged inadequacy of the to him. warning contained in the owner’s manual. These concerns are heightened by the weak- Notwithstanding my dissatisfaction with ness plaintiff’s of the case with issue, the state of the record on this I am an inherently defective design in the auto- prepared say that there was insuffi- mobile, is, the placement of the cata- in its common cient evidence for the lytic converter and provide the failure to sense to in the own- say safety features which prevented could have apprising inadequate er’s manual was the fire. plaintiff’s case was non- place- nature user of the existent with to the defective na- converter. As estab- ment of the ture of the catalytic itself. Shipman, we are to view lished Where, here, minimum evidence of inher- light most favor- all of the evidence ent defectiveness of the product present- is opposing the J.N.O.V. party able to the ed, a lesser warning may be held adequate thus, it appear motion. Viewed does than in cases where the proof defective- fair-minded men in the ex- “reasonable and ness, and hence dangerousness, prod- of the impartial ercise of [could have] uct greater. is ” 411 different conclusions .... reach[ed] The modesty of the evidence on defec- F.2d at 374. The of the motion tiveness my underscores concern regarding thus was in error. the dearth of evidence adduced by I in the result reached as to the therefore concur adequacy warning. This was an important opinion. basis for majority Gor-