Nаncy L. BLY, Administratrix of Wayne A. Bly, deceased, Appellee, v. OTIS ELEVATOR COMPANY, a New Jersey Corporation, Appellant.
No. 82-1430.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 13, 1983. Decided Aug. 4, 1983.
713 F.2d 1040
Before WINTER, Chief Judge, PHILLIPS, Circuit Judge, and BUTZNER, Senior Circuit Judge.
JAMES DICKSON PHILLIPS, Circuit Judge:
Otis Elevator Co. appeals from a final judgment in the district court, entered on a general jury verdict, holding it liable on a breach of warranty theory for personal injuries suffered by plaintiff‘s decedent. Because there was error in the jury instructions regarding the manufacturer‘s duty to warn as an element of the warranty of merchantability, we vacate the judgment and remand for a new trial.
I
Plaintiff‘s decedent, Wayne Bly, was injured while operating a lift truck at the Avtex Fibers Plant in Virginia whеre he was employed. The truck was equipped in the front with a lift mechanism used to transport large canisters throughout the factory, and in the rear with a shin-high guard designed to provide protection from objects encountered while the truck was travelling in reverse. Operators of this and other lift trucks owned by Avtex stand on a small platform at the rear of the truck with their torso facing forward to maneuver the steering and other controls. Because the large canisters impair visibility to the front, the trucks are driven in reverse around the plant, necessitating that operators look over their shoulders in the direction of travel.
The particular truck Bly was driving when he sustained injury was manufactured by Baker Raulang Co., which sold the truck to the predecessor-in-interest of Avtex in 1944. Baker Raulang last exercised control over the truck in 1948, when it modified the truck‘s lift mechanism.
The parties agree that Bly was injured in September 1979 when he backed his truck without looking behind him and ran into a canister perched on the front-end lift of another truck. Because thаt canister was raised off the floor, the shin-high guard on Bly‘s truck slipped underneath, and Bly was crushed between the canister and the controls of his truck.
Bly‘s mother, as administratrix of his estate, then instituted the present wrongful death action against Otis Elevator Co.—the successor-in-interest to Baker Raulang—seeking relief on the basis of negligence and breach of warranty for alleged defects in the lift truck. The district court granted Otis‘s motion for directed verdict on the negligence count, holding as a matter of law that Bly‘s contributory negligence barred recovery. Accordingly, the case went to the jury solely on a theory of breach of the implied warranty of merchantability.
On appeal from thе judgment entered on a jury verdict for the plaintiff, Otis contends there was insufficient evidence to support a verdict on this theory, and that the trial court‘s jury instructions erroneously included a charge on the manufacturer‘s duty to warn. We sketch briefly the contours of an action for breach of warranty, and then turn to the merits of these claims.
II
Under Virginia lаw, which the parties agree controls resolution of this diversity action, manufacturers and sellers of defective products can be held liable on theories of negligence and breach of the implied warranty of merchantability. See
III
We dispose quickly of Otis‘s contention that the evidence adduced on trial was insufficient to support the jury verdict.1
The primary theory of plaintiff‘s breach of warranty claim was that the lift truck as designed was defective аnd “unreasonably dangerous” because its shin-high guards provided inadequate protection to the operator in rear-end collisions. In support of this theory, plaintiff produced substantial expert and documentary evidence which if accepted by the jury indicated that, by the 1940‘s when this truck was manufactured and sold, industry and government circles hаd recognized the need for waist-high guards on such lift trucks as a reasonable means of ensuring greater safety. Cf. Dreisonstok v. Volkswagenwerk, A.G., 489 F.2d at 1073 (“if an article can be made safer and the hazard of harm may be mitigated ‘by an alternative design or device at no substantial increase in price,’ then the manufacturer has a duty to adopt such a design“). In light of this evidence suggesting thаt waist-high guards reflected prevailing industry views on the appropriate level of operator protection at the time this lift truck was manufactured and sold, coupled with expert testimony opining that the truck was, in this sense, defective in design, a jury could certainly conclude that a lesser standard of protection was “unreasonable” and a breach of the warranty of merchantability that proximately caused Bly‘s death.2 See Foster v. Ford Motor Co., 616 F.2d 1304, 1311 (5th Cir.1980); Weakley v. Fischbach & Moore, Inc., 515 F.2d 1260, 1268-69 (5th Cir.1975).
A jury verdict that unquestionably rested upon this theory of defective design would accordingly have been unassailable. That this was the basis of the verdict is not, however, certain, and in consequence the matter does not end here.
IV
In addition to her theory оf defective design, plaintiff sought to prove at trial
The trial court charged the jury on plaintiff‘s theory that “in the original dеsign in ‘44, ‘48, and after the learning of the ‘77 death of Wilson ... it was necessary that the defendant give a warning in order for the forklift not to be unreasonably dangerous or cause an unreasonable risk of injury to users of the lift.” The court summarized the factual elements that could give rise to
We disagree with the general contention advanced by Otis on appeal that the trial court, by instructing on the duty to warn, necessarily erred by injecting negligence princiрles into a case being tried solely on a theory of breach of warranty. A manufacturer or seller that fails to warn of the dangers of its products can be held liable, in appropriate circumstances, either on a theory of negligence, see Featherall v. Firestone Tire & Rubber Co., 219 Va. 949, 961-64, 252 S.E.2d 358, 367 (1979);
This duty to warn under a theory of implied warranty or strict liability in tort is obviously similar, in many respects, to the manufacturer‘s duty to warn under a negligence theory.7 But it differs in critical aspects important to the resolution of this appeal.
First, as the district court properly charged the jury, the duty to warn under an implied warranty theory focuses upon whether the lack of warning renders the product unreasonably dangerous; in contrast, a manufacturer will be liable in negligence for a failure to warn if its conduct is unreasonable.8 See Jackson v. Coast Paint & Lacquer Co., 499 F.2d 809, 812 (9th Cir.1974); Woodill v. Parke Davis & Co., 79 Ill.2d 26, 35, 37 Ill.Dec. 304, 308, 402 N.E.2d 194, 198 (1980); 2 L. Frumer & M. Friedman, Products Liability § 16A[4][f][vi] (1982).9 Second, under a negligence theory
In light of this latter distinction, the trial court erred in instructing the jury that it could find a “renewal” of the duty to warn after Otis received notice in 1977 of the death of Wilson in circumstances similar to the accident suffered by plaintiff‘s decedent. Under the breach of warranty theory by which this case was submitted to the jury, the manufacturer‘s duty to warn, as relevant to determining whether the lift truck was “unreasonably dangerous” when manufactured and sold, could have arisen only in 1944 and 1948 when Baker Raulang had control over the truck. By instructing the jury that the duty to warn could be revived by subsequent notice of injuries, the district court intrоduced elements of a negligence cause of action for failure to warn not applicable where the controlling theory is breach of warranty. This instruction made possible a verdict based on an erroneous theory of liability. Accordingly, it fatally taints the general jury verdict, which cannot stand.
V
For the foregoing reasons, the judgment of the district court is vacated, and the case remanded for further proceedings consistent with this opinion.
VACATED AND REMANDED.
BUTZNER, Senior Circuit Judge, dissenting:
I agree with the court‘s exposition of the law. I disagree about application of the law to the jury instructions.
The only proof of the forklift‘s unfitness was its defective design which made it unreasonably dangerous when the manufacturer sold it.
The court correctly told the jury that in order for the plaintiff to recover she had to show that the forklift was unfit when it was made available for the buyer‘s use in 1944 or 1948. The instructions explained that the word “unfit” meant “reasonably dangerous or a condition that subjects the users of the forklift to an unreasonable risk of injury.” The court emphasized the importаnce of the time for determining whether the forklift was unfit by telling the jury that they should consider the state of technology and art on the subject “as it was in the years 1944 and at the latest ‘48 because they are the crucial years when this product was in the—last in the possession of the defendant.”
The instructions on warning must be considered in the context of the entire charge. They cannot be divorced from the following paragraph of the charge:
In order to find an obligation to warn, however, you must first find that there was an unfit condition to warn about and that a warning was necessary to prevent the forklift from being unreasonably dangerous or subjecting its users to an unreasonable risk of injury.
Thus, the jury could not base its vеrdict solely on a lack of warning in 1977. Under the instructions of the court, the jury first had to find “an unfit condition to warn
Parenthetically, if the manufacturer had fulfilled its warranty by giving adequate warning when it sold the forklift in the 1940‘s, the court‘s instruction about warning in 1977 would have injected error in the case. But this is not the situation, for the evidence is undisputed that the manufacturer gave no warning when it sold the defectively designed machine.
In sum, considering the charge as a whole, I believe that the instructions about warning did not mislead the jury. In order for the plaintiff to prevail, the jury was required to find that the forklift was unfit when it left the manufacturer‘s hands. Because the evidence was sufficient to support such a finding, I would affirm the judgment entered on the verdict of the jury.
JAMES DICKSON PHILLIPS
UNITED STATES CIRCUIT JUDGE
Notes
During its deliberations, the jury requested and was given supplemental instructions on the duty to warn. In these the court reiterаted the substance of its prior instructions, including: “The duty to warn, if it existed, was during ... the forties, when the forklift was made available to Avtex. It was not a continuing duty thereafter. However, you may find, provided the conditions for the requirement of such a warning existed, a renewal of that obligation after the notice of the Wilson death.”In addition to defective, unfit design, the plaintiff asserts that originally in ‘44 through ‘48, and again after the defendant was notified of the death of Wilson while Wilson was operating this forklift ... it was necessary that the defendant give a warning in order for the forklift not to be unreasonably dangerous or cause an unreasonable risk of injury to users of the lift.
Where, however, any such risk would be apparent to any person that the manufacturer reasonably should foresee might use the product there is no duty to warn.
The duty to warn if it existed was during the times, the yеars when the forklift was made available to Avtex. It was not a continuing duty to warn. This duty ended in ‘44 and at the latest ‘48. However, you may find, provided the conditions for a requirement of such a warning existed, a renewal of that obligation after notice of the Wilson death.
In order to find an obligation to warn, however, you must first find that there was an unfit condition to warn аbout and that a warning was necessary to prevent the forklift from being unreasonably dangerous or subjecting its users to an unreasonable risk of injury.
You‘ve heard evidence of the Wilson death and the Wilson lawsuit filed by his estate against this same defendant, the Otis Elevator Company. This testimony is solely for the purpose of showing that the defendant had notice of a possible defect in the design of the lift insofar as not having any waist-high guards and is to be considered by you in determining whether that notice renewed or gave rise to any obligation on the part of Otis to warn in order to fulfill its warranty obligation.