*1 789 4123-7-25(F) exemption applied to the panionship services (denying com- § Code Admin. case). duties). for household pensation for two rea arguments these We III. CONCLUSION rationale First, persuasive the find we sons. 1087-88, Lott, F.Supp. at the court Salyer pro- Ms. Because the services which legislative exemption’s on the drew which squarely within the for her husband fall vides service em that “domestic history to hold exemption from the “companionship services” “employed in being simply means ployment” FLSA, we AFFIRM. Salyer ren Ms. Because private home.” Salyer almost en services Mr. her ders undoubtedly home, she is
tirely their within employment in domestic service engaged dis to her companionship services provide Linn, F.Supp. at husband. abled Cf. analogous (holding that a plaintiff 578-79 private Salyer did not work who Ms. Terry POWERS, next friend of P. companionship fall within the did not homes Powers; al., Hillary et Ann Moreover, as hereto exemption). services Plaintiffs-Appellants, indicated, companionship services fore availability to increase exemption exists v. turn, which, medi address such services CORPORATION, BAYLINER MARINE argument thus Salyer’s Ms. needs. cal Corporation, a Delaware compan position that the against her works Defendant-Appellee. the FLSA exemption from ionship services 94-2035. apply to her. No. not does Second, is irrelevant regulation state Appeals, Court United States (1) directly regulation is the federal because Sixth Circuit. (2) Bureau things which the point, on Argued Nov. largely, regulation are pay for under will believe, un- companionship services also we 20, 1996. May Decided Compare 29 regulation. federal der (1995) companion- (listing, § 552.6 C.F.R. services, making, preparation, bed meal
ship services, clothes, similar washing of related along household with work individual) Admin. with Ohio care 4123-7-25(F) (1994) (allowing com- § Code bathing or eat- with for assistance pensation with assistance ing, placing bedpan, per- moving, assistance with dressing or refusing compensation hygiene, but sonal work). indeed Ohio household general contemplat- every that is pay for service not exempts regulation that by the federal ed FLSA; from the companionship services nevertheless, Ohio will for which services regulation ex- subject to federal
pay remain wage and minimum emption in the context of Sandt, F.Supp. at laws. See overtime reliance on analogous plaintiffs (rejecting an Care Pennsylvania’s Attendant provisions and its com- Act where the FLSA Services
791 *2 Mills, Gruel, Brooks, F. William Brion J. MI, Rapids, Plyman,
Mills, Grand & Nims Muller. John for John Bremer, Wade, Bremer, Nel- William M. *3 MI, Rapids, son, Corey, Grand & Lohr briefed), (argued and George Koelzer J. Lubersky, Ange- Powell, Los Lane, Spears & Corp. les, CA, Bayliner Marine for JONES, Circuit and Before: MARTIN COHN, Judge.* District Judges and D.J., opinion of COHN, delivered J., MARTIN, joined. court, in which 800-806), JONES, (pp. delivered J. opinion. dissenting separate COHN, Judge. District liability products appeal from a an This is verdict, in both following a judgment Bayliner Marine defendant-appellee, favor Plaintiffs-appellants (Bayliner). Corporation persons representatives of are (plaintiffs) man- a sailboat killed injured or when either 180) (the Bucсaneer Bayliner ufactured Michigan Lake on and overturned flooded Buc- juryA found August of 1991. Baylin- and that not defective 180 was caneer for motions negligent. Plaintiffs’ not was er trial and a new matter of law judgment as argue appeal, plaintiffs On denied. (1) proven defec- Buccaneer 180 (2) law; Bayliner was as a matter tive a matter negligence as guilty of be shown allowing (3) erred law; trial court contest- testimony, whether jury to relying not; (4) erred the trial court ed jus- evidence and immaterial irrelevant (5) jury’s verdict; and jury’s tify the weight of great against the verdict trial responds Bayliner evidence. or abuse error legal no committed court For motions. denying discretion plain- follow, the denial which the reasons lawof as a matter for motions tiffs’ affirmed. will trial be for a new Garzia, De- Carroll, & Vandeveer Hal 0. MI, Terry troit, P. Powers. for I. briefed), (argued and Heaphy J. William A. MI, Hillary Holland, Garzia, for & Vandeveer four adults three August Powers, Thomas On Powers, Nancy Diane Ann Buc- Bayliner a seventeen-foot took children Lane, Rеed. Judith E. * designation. sitting by Cohn, Dis- United States Avem Honorable Michigan, District of Judge the Eastern trict for sailboat out onto Michigan
caneer 180 Lake DeWilde night survived the and was res- five approximately hours. At around 7:30 cued the morning. next p.m., the Buccaneer 180 flooded and over- returning
turned it was Only land. one B. adult and one child survived. design did not away Buccaneer pier, A half mile from the as the bought but plans from shore, company. another Buccaneer 180 returned to the boat’s DeWilde’s (DeWilde) owner, 180 was built in Michael DeWilde Janu tried to ary of 1979. The start centerboard keel on engine the outboard but it stalled. The designed Buccaneer 180 is child, surviving who had been sleeping in retractable into trunk, cabin, cuddy centerboard much up woke at like the sound *4 blade of pocket-knife a folding into waist-deep motor and found herself its han in water. dle. design This feature allows the Bucca yelled Another adult that the boat was neer easily 180 to be more transported out of water, taking pailfuls, on bailed two realizеd the rope water. A travels from the center fast, in coming the water was too and told board keel underneath the Buccaneer get of the children to out the boat. As the through a hole, centerboard trunk ato loca children, cuddy cabin, who were in the at- in tion the cabin person where a can raise tempted through to climb opening, its the lower the Any centerboard keel. water that stern to the sunk water line and began water comes in to the Buccaneer through 180 the pour in. The quickly Buccaneer 180 flood- centerboard trunk goes hole bilge ed and overturned. DeWilde estimates that area, generally not visible to occupants. The the above events took approximately twenty bilge can directly drained of water when seconds. the Buccaneer 180 is out of the water itor Powers, Hillary eight years old at the time can be bailed or pumped through out the accident, of the was thrown into the lake cuddy cabin. The centerboard trunk hole when Buccаneer 180 overturned and was 12 inches from the bottom of the Buccaneer following morning rescued the after sixteen places which the hole four inches above hours afloat. the waterline when the empty. boat is With pounds1, Bordeaux, Joey Hillary’s brother, a weight on board was four. 800 to 1% trapped cuddy He was centerboard cabin trunk after hole is inches above the Buccaneer 180 overturned but water line. then party was Neither any utility asserts brought up to the placed specific surface and on the location of the centerboard top capsized trunk Buccaneer hole. 180. After a being repeatedly few hours of washed from boat, exposure. he died of point At a after the Buccaneer 180 placed marketplace, Bayliner rec Timothy and Knapp, aged Steven ten and ognized position of the centerboard eight, drowned hours after the Buccaneer trunk hole was a problem and a conducted 180 overturned. campaign2 retrofit tо raise the Buccaneer Powers, Nancy twenty-six, Diane left the 180’s centerboard trunk hole a dealer- overturned Buccaneer 180 after several installed device. evidence, There is no how hours in the water and during drowned ever, that unmodified Buccaneer 180 had night. Her remains were found several ever capsized as a result of the centerboard later. months trunk design. hole Bayliner notified the Muller, twenty-three, Tom tried to swim to owners known to it change, of the and sent help, for but shore did not make it. His dealers, letters to asking them to contact
body was found several weeks later. purchasers in order to install the modifiea- weight accident, 1. The at the time of the 2. A "retrofit" and a "recall” are two different computed by County Depart- Ottawa methods repairing product. Sheriff's A "recall" asks ment, for the pounds. return of the was 845 to the manufacturer while a "retrofit” users or a merely entail a letter to corrective distributed device. accident; G. night of the 180 on caneer his Buccаneer purchased DeWilde tion. Manting Peter (Wright) and Wright used. Ronald purchased turn family, who in from of Buccaneer ex-owners (Manting), both the recall notice of family received never 180s, 180 took the Buccaneer testified that was not Buccaneer particular that conditions; and E. sailing in normal water device. corrective fitted with (McGuire), products safe- McGuire Patrick consultant, Bayliner’s retrofit ty testified C. unacceptable. campaign was 1. 2. wrongful death Plaintiffs sued District injury in United States personal expert Bayliner countered Michigan District the Western Court for there not credible and tests were instructed trial court As the July the Buccaneer causes for alternate defendant claim that jury, “plaintiffs evidence that offered capsize. Bayliner 180’s one, and distributed Bayliner, manufactured marijuana and smoked adults drank beer two, sailboat; and, negligent a defective sailing trip, during the course dangers of the sailboat’s failing to warn with seven overloaded 180 was recall a reasonable *5 failing to conduct in and as it left low on the water and was people particularly, campaign.” More retrofit or sail was shore, during the the weather trunk the centerboard that claimed plaintiffs num- an insufficient threatening, were there proximate defect and board, hole was no there was on preservers life ber of accident, Bayliner and that the board, warnings cause of early and radio flares or maritime law. under strictly liable therefore ignored. coming on board water of lay through wit- evidence presented Plaintiffs testimony a small- from presented Bayliner videotaped testimony, and a nesses, expert (Villalon), sailor, who Augusto Villalon boat allowed trunk hole the centerboard test that Sponberg’s sailing and DeWilde’s criticized subflooring the Bucca- of the enter engineer, water to evidence, from and low- bilge and filling the gradually (Scarboro), neer as testified who Scarboro Clark in water. ering boat the the 180 and stat- design of the Buccaneer to the ' ever ovеr- 180 had no ed that testimony of Eric thé offered Plaintiffs Bayliner also flooding. because of turned expert in naval as an (Sponberg) Sponberg to witnesses as cross-examined that Sponberg testified architecture. testimony. credibility substantive and their on the Buccaneer weight there more the lower between the distance the shorter hole and trunk centerboard lip of the boat’s parties proofs, testified that both Sponberg also all line. the close of At
the water to law pur- hole was trunk as a matter the centerboard the closer moved 50(a). court The trial line, entered the more water to Fed.R.Civ.P. the water suant adding to the case thus and submitted of the Buccaneer the motion bilge area denied pro- decreasing objected sta- to party boat’s and weight jury. Neither instructions, trial court other boats and Sponberg jury described bility. posed also examined, had “a con- which as follows: none he had instructed a foot a hole located provides figuration that EVIDENCE- OPINION an enclosed the boat in bottom
from the WITNESS EXPERT from the visible is not compartment is under boat when the cockpit nor unbailable ordinarily do not of evidence The rules direct his testi- way.” Sponberg concluded opinions testify as to to permit witnesses significantly is a stating “[t]his mony by rule to this exception An or conclusions. boat.” dangerous “expert call whom we as to those exists who, by education Witnesses testimony witnesses.” from presented also Plaintiffs in expert become (Wolf) have experience, Adolf Wolf following witnesses: calling, or science, art, profession, some sailing of Buc- about DeWilde’s testified may opinions state their as to relevant any Consider relation also each witness matters, they profess material in which may case; bear to side of either may expert be also state their reasons manner in might which each witness opinion. for the verdict; affected and the extent which,
You expert opinion all, should consider each if at each witness is sup- either in givе received evidence in this case and ported it or contradicted other in evidence weight you may such as think it deserves. the case. you opinion If should decide that the of an discrepancies Inconsistencies or in the expert upon witness is not based sufficient testimony of a witness or between experience, you education and ifor should testimony of may different witnesses or given conclude that the support reasons may not cause the such discredit sound, opinion are not or if feel testimony_ give will [Y]ou the testimo- outweighed by it evidence, other ny of each weight, witness such any, you may disregard opinion entirely. you may think deserves. may You
short, accept the testimony any witness in part. whole or in SINGLE WITNESS testimony single of a witness which produces your belief in minds the likeli- hood of truth is proof sufficient for the IMPEACHMENT-INCONSISTENT justify fact and would a verdict STATEMENTS OR CONDUCT accordance with such testimony even may witness be discredited or im- though a number of witnesses have peached by contradictory evidencе.... If if, contrary testified after consider- *6 you believe witness has im- been case, ation of all the you evidence in the peached discredited, and your thus greater hold is belief accuracy in the province exclusive give to testimony
reliability of the one witness.
that credibility, witness any, you such as may think it deserves. CREDIBILITY OF WITNESSES—
DISCREPANCIES IN TESTIMONY REQUIRED NOT TO ACCEPT You, jurors, as judges are the sole of the UNCONTRADICTED credibility of the witnesses and weight TESTIMONY testimony their may deserves. You guided by appearance and conduct of You required are not accept to testimo- by the witness or the manner in which the ny though even testimony is uneontra- by witness testifies or the character of the dicted and the impeached. witness es not testimony given or by the evidence con- may decide, You because of the witness’s trary to testimony given. bearing and or demeanor because of the You carefully should scrutinize all the improbability inherent of his or her testi- testimony given, the circumstances mony under or for other reasons find suffi- testified, which each witness every cient, has that testimony worthy such is not matter evidence which tends to show belief. whether a worthy witness is of belief. Consider each intelligence, witness’s mo- PLAINTIFFS’ CLAIMS
tive, and state of mind and demeanor or manner while on the stand. Consider the plaintiffs The must establish [four] es- ability witness’s to observe the matters as sential elements order to recover on to which he or she has testified and wheth- their claim Bayliner that Buccaneer er he or impresses you she as having an defectively designed was or manufac- accurate recollection of these matters. tured as follows. in a defective
First, boat was that possession it left the time , condition at WARNING manufacturer. of the Bayliner failed to that claim Plaintiffs[ ] unreasonably Second, was the boat take on Buccaneer warn possession it left the the time dangerous at trunk through the centerboard water manufacturer. weight of the that the boat’s safe to warn faded capaci- apparent its less than capacity was awas Third, condition the defective dan- that these ty. claim Plaintiffs injuries. of the cause proximate of, or should knew gers which defendant expected fourth, that the boat And of, had defendant and which have known without consumer reach to and did its reasonably believe no reason re- condition and change its substantial know of. user would of the consumer possession in the mained change in its condition. substantial without RECALL the defendant claim that
Plaintiffs of the recall in its conduct negligent 180.... DEFINED CONDITION” retrofit “DEFECTIVE condition in a defective 4. to the user when unreasonably dangerous special court asked the The trial causing physical propensity for it has 49. verdict, Fed.R.Civ.P. pursuant be contem- would beyond that which harm submitted questions first two ordinary user or consumer plated were: knowledge common ordinary with Bayliner Marine Defendant 1. Did users class of the foreseeable a defective manufacture Corporation must balance [Y]ou characteristics.... _Yes_No. product? magnitude design against the utility of negligent Defendant of the risk. Was ways claimed one or more _Yes_No. Plaintiffs? *7 180 Bayliner Buccaneer find You will questions of these jury both answered only un- if was defective sailboat to the re- “no,” did not answer therefore use. its normal dangerous for reasonably were concerned which maining questions, all product includes use of a The normal cause, negli- comparative proximate with uses, including foreseeable reasonably entered trial court damages. The gence and misuse. foreseeable Bayliner. in favor of judgment
5. judg- trial post either moved for Plaintiffs TORT-
UNINTENTIONAL 50(b) law, Fed.R.Civ.P. a matter of ment as NEGLIGENCE— Fed. (Rule 50(b)), trial under or a new DEFINED 59(a)). 59(a) (Rule mo- Plaintiffs’ R.Civ.P. Bayliner argument that on the tions centered plaintiffs’ any to rebut evidence offer act did not doing of some Negligence is defec- 180 was that the Buccaneer evidence person would reasonably prudent a which plain- replied that designed. Bayliner tively something which failure to do do or not had Bayliner proof, the burden tiffs had do person would reasonably prudent a credibility of question raised by which considerations prompted when through cross-ex- expert witness plaintiffs’ conduct human ordinarily regulates the evidence, contrary had offered words, amination is, the failure in other affairs. It plaintiffs’ jury was free and the circum- ordinary care under use uncontradicted. if it even evidence .... stances judgment nonmovant, The trial court ruled that as a favorable to the there is either a plaintiffs’ complete matter of law favor was not proof absence of on the issues or no required: controverted upon issues of fact which rea persons sonable could differ.” Id. The [although defendant did not offer careful, court must be however: “the court expert testimony plaintiffs’ to rebut naval evidence, weigh should neither evaluate architect, Bayliner proof offered credibility witnesses, of the nor substi unreasonably
boat
rough
was sailed
wa-
judgment
tute its
jury.”
for that of the
winds,
size,
high
ter and
boat of this
Wayne Village
517,
v.
of Sebring, 36 F.3d
period
for an extended
of time
individu-
—
(6th Cir.1994),
denied,
-,
cert.
U.S.
impaired by
als whose
alсo-
(1995).
115 S.Ct.
free to
conclude that the accu-
B.
mulation of
water
the boat was the
deny
trial court should
a motion
result,
any design
not of
or manufacturing
for a new trial “if the verdict is one that
defect,
negligent operation
but of
reasonably
reached, regardless
could be
boat.
judge
whether
might
the trial
have
reached
Further,
plaintiffs
since
bore the burden of different conclusion were he the trier of
proof, Bayliner
obligation
present
“had no
fact.” Id.
The trial court
be reversed
evidence whatsoever.”
toAs
in its denial of a motion for
“only
new trial
on
trial,
motion for a new
the trial court said
showing
of an abuse of discretion.”
“[pjlaintiffs
proof
had the
burden of
a Cathey v.
Corp.,
Johns-Manville Sales
preponderance
jury’s
of evidence. The
de-
(6th
Cir.1985),
F.2d
denied,
cert.
termination
plaintiffs
carry
did not
this
1021, 106
478 U.S.
S.Ct.
On ask that we reverse rulings, the trial plaintiffs court’s find for III. special verdicts, and remand for trial on present Plaintiffs essentially argu- two remaining issues; alternative, inor appeal. First, ments on they argue that it that we reverse the trial rulings court’s *8 was improper for jury either the or the trial order a new liability trial on damages. rely court to relating evidence not to the design of the Buccaneer 180 in answering or
II. justifying special the questions verdict about negligence. Second, defect or they argue A. that the trial court by erred on the merits A motion for judgment as a matter denying plaintiffs’ judgmеnt motions for aas requires of law the trial court to determine matter of law and for a new trial. “whether there was sufficient pre evidence sented to raise a material issue of fact for the A. jury.” Co., Monette v. Baking AM-7-7 (6th Cir.1991). F.2d “The standard argue Plaintiffs the trial court remains the same when the trial court’s deci should only have considered the evidence sion is appeal.” reviewed on Id. regarding Evidence is design of the Buccaneer 180 in sufficient to jury unless, submit to a “when reviewing plaintiffs’ motions for as light viewed in the of those inferences most trial, a matter of law and for a new and not However, as or a new trial. on the matter of law concerning their actions the evidence stated, “[pjlaintiffs’ argument trial of court plaintiffs, According to evidence boat. jury accept proper duty of the to eventually go ignores to may misconduct their own part, reject testimony in or in a or whole negligence, ques- comparative or causation jury accurately forth in the final duty set but such jury, not сonsidered tions instructions, plaintiffs did not ob- to which initial determi- to the is irrelevant evidence following gave the ject.” The trial court negligence. of defect nations regarding acceptance or re- instructions alleged relating plaintiffs’ evidence testimony: jection of court to by the trial was not used misconduct expert opinion consider each You should cause, proximate comparative fault or show give ... it such evidence received in explanation for how but an alternative as deserves_ you may it weight as think As the the Buccaneer 180. water entered entirely. may disregard opinion [Y]ou said, ... free “the trial court reasonably conclude that the accumulation result, any not in the boat was the
water defect, negli- manufacturing design but or You, judges jurors, are the sole as no operation of the boat.” There gent weight credibility and the of the witnesses to the in the trial court’s reference error testimony deserves.... their Consider sailing the actions in evidence of which, all, each if at ... the extent boat. supported or contradicted witness is either [Y]ou in the case.... other evidence testimony give
B. of each witness will may any, you as think weight, such short, accept You deserves. Turning the answers now to evaluate testimony any witness light of the questions in special verdict part. whole or in whole, jury’s such review of as a evidence In review lightly. taken is not to be verdict 50(b) a Rule court’s denial of ing trial im- has been you If believe witness court appellate of law an as a matter motion discredited, your it is thus peached and non- inferences make reasonable must testimony of give province exclusive “it is clear ask whether favor and movant’s any, credibility, if such that witness come to but one people could that reasonable may think it deserves. Wayne, 36 from evidence.” conclusion denial of a The trial court’s at 525. F.3d for abuse trial is reviewed for a new motion testimony accept required to not You are The trial court instructed of discretion. testimony is uneontradict- though even ... [the “find it should impeached. witness is not ed and the only if it unreason defective be 180] to use. The dangerous for its ‘normal’ ably so err in the trial court did Nor all reason use of includes
normal many cir jury. “There are instructing the uses, including foreseeable ably foreseeable testimony need not in which cumstances whether, must therefore ask We misuse.” formally uncontradiet- though accepted even *9 Bayliner’s making reasonable inferences 707, Maxwell, F.2d 726 ed,” 346 Sheppard v. only come to favor, people could reasonable (6th Cir.1965), grounds, 384 rev’d on other 180 was that the Buccaneer the conclusion 1507, 333, L.Ed.2d 600 16 S.Ct. U.S. 86 use. dangerous for its normal unreasonably (1966). that it is jury is instructed “[T]he reject an ex accept to completely free 2. weight testimony, to evaluate pert’s light of the reasons testimony in rejec given such argue jury’s Plaintiffs opinion.” United supplies for his expert testimony regarding the Sponberg’s tion of Birming- Land in Acres v. 0.161 judgment as States design merits 180 798 (11th 1036,
ham, Ala., built, 1040-41 designed, 837 F.2d Cir. never nor testified about a 1988). Supreme Court has stated: As the before; centerboard boat inspect he did not rule, any boats;
Undoubtedly,
general
positive
new centerboard
in-
as a
he did not
fact,
testimony
particular
to a
uncontra-
quire
as
any
as to whether
other Buccaneer 180
one,
by any
control
dicted
should
the deci-
capsized
had ever
and he would have been
court;
that
sion of the
but
rule admits of
surprised
instances”;
“if there were not other
many exceptions.
There
be such an
the fact that no Buccaneer 180 had ever
improbability in
inherent
the statements of
capsized
entering
because of water
the cen-
jury
a witness as to induce the court or
change
opin-
terboard trunk hole did not
his
evidence,
disregard
his
even
the absence
very
ion that the Buccaneer 180
awas
dan-
Quock
any
conflicting testimony.
direct
gerous boat
expert opinion
because it was his
States,
417, 420,
Ting v.
140
United
U.S.
dangerous,
all centerboard boats are
(1891).3
733, 734,
11 S.Ct.
A. respect if it change any case examination, that he testified Wolf On cross out when were sent that other materials 180 out have taken Buccaneer would not 1 and 2 were Exhibit either or both day of weather conditions under the mailed? the accident: Yes, impinged on A. the materials a Buccaneer Q. you have taken Would testimony. area of people on Michigan with seven out on Lake you know. Q. I And don’t see. three- winds on in 15-mile-an-hour board growing on the afternoon No, waves I foot A. don’t. yes me or no. Just tell 1991?
August 4. A. I would not. having you it besides Q. attacking have done directly Would the credi- In addition smoking witnesses, and also Bayliner pre- beer to drink had some bility yes just marijuana? you tell me Would Villalon criti- testimony of own. its sented test, stating not no? did Sponberg’s cized day accurately the conditions reflect utilize the did not accident: the test no, that correct? your is Q. answer So sail; jib, the test forward 180’s Buccaneer A. Correct. and the people; weight dead instead used rather an inland lake conducted on test was Manting, past owners of Wright and Michigan. also testi- Villalon than on Lake that the Bucca- both testified might be why differences those put as to use it was fied not handle the neer could Yes. saying the de- A. Q. that neither You are 7. sign the Buccaneer nor the manufacture of you far as know standard so Sir, from deviated as differ as to the minds 9.Q. could reasonable field, yes? expert in the witness an dangerousness of configuration this design —the A. Yes. you configuration have testified to? design you agree Sponberg, Q. will with me Mr. Oh, yes. A. as the such a centerboard trunk on sailboat talking this case are not about we are ones Yes, degree about the can minds differ A. say yes tight? Would designed to be water danger. to that? *11 gаve opinion justified Villalon his as to in important. finding was that defective, accident: design for the the weather Buccaneer 180 was not the reasons it checked; justified been insufficient in report finding Bayliner had not was also negligent the use of alcohol and in safety equipment; handling was not of the Buc- to notice the drugs; campaign. failure caneer 180 or its retrofit responses; and DeWilde had sluggish 180’s There was sufficient evidence to submit far out. taken the boat too Villalon conclud- jury, “[g]iven the case to the the infirmi sailing dinghies these take wa- ed that “[a]ll only in expert testimony presented ties another, them,” way all of and that ter one by plaintiffs, there was no abuse of discretion your must be removed and it is “the water denying a new trial.” Fernandez v. Cor remove responsibility to the water.” On poracion Seguros, Insular De 79 F.3d examination, Villalon cross testified as fol- (1st Cir.1996). lows: understand, Q. your I it’s And as conten- rv. that Mr. DeWilde should tion have been above, For the reasons stated the order that a mistake had been mаde with aware denying plaintiffs’ judgment motions for as a accumulating that water his boat and matter of law and for a new trial is AF- area, bilge in the is that correct? FIRMED. A. Yes. Scarboro, Bayliner engineer, a testified JONES, NATHANIEL Judge, R. Circuit contradiction that there without had never dissenting. capsized by been a Buccaneer 180 that had case, Under the circumstances in I this coming through reason of water the center- believe the Buccaneer 180 was de- Further, Bayliner board trunk. “didn’t feel fective and the district court’s denial of the issue,” safety significant part a negli- motion for a new trial on the issue of boat, because of “the nature which is gence was analysis based an errant boat, really fairly a small which could be constituted a judgment. clear error of We easily tipped fairly really only over and was should reverse the denial of Plaintiffs’ mo- protected suitable for use on waters or areas judgment tions for as a matter of law and fairly Finally, close to shore.” Scarboro tes- new trial and find for the special Plaintiffs on many ways tified that there were that De- question verdict remanding while the case emptied could Wilde have the water from the special for trial on question verdict 2 and the Buccaneer 180. remaining jury. issues not reached Accordingly, I dissent. Making all reasonable inferences in agree I my with colleagues that this court favor, Bayliner’s the evidence on de applies the same in reviewing standard deci- fect offered the was that the Buccaneer sions on motions for aas matter of heavily operated 180 was loaded and was applies law as the district deciding court rough weather that was too for a boat of its these motions. See Monette v. AM-7-7 Bak- size and structure. There was no evidence Co., (6th Cir.1991). ing 929 F.2d In Bayliner’s boats with centerboard the case at bar the accurately district court design trunk capsized. hole had ever And explained that: importantly, plaintiffs’ most expert own wit authority grant district court has design ness testified that the Bucca judgment notwithstanding the verdict neer any safety 180 did not violate standards protect against completely unjust and un- and that reasonable minds could differ as to supported authority results. But this danger design. limited a strict standard of review. It presented Evidence was which would allow enough is not that the district court dis- person Rather, reasonable agrees come to the conclu- judg- with the verdict. sion that the Buccaneer 180 was notwithstanding “may not unrea- ment the verdict sonably dangerous if, for its normal granted only viewing use. As the admissible evi-
801 I party opposing most favorable dence motion, trier of fact could a reasonable the allegation respect to Plaintiffs’ of With Spiegel, Hill v. only one conclusion.” draw defect, jury posed product the the fol- (6th Cir.1983) (fur- Inc., 237 708 F.2d Defendant, lowing Baylin- question: “Did the omitted). citations ther Corporation, a defec- er Marine manufacture inqui- This court has defined at 40. J.A. product.” Along question, tive with motions as follows: made on Rule 50 iy to be jury given instructions on Plaintiffs’ wheth- court must determine district [T]he instructions, consistent with claim. The presented evidence was sufficient er there law, Michigan maritime read: of fact for a material issue to raise context, applied in this “sufficient jury. As unless, when be found evidence” will DEFINED “DEFECTIVE CONDITION” light those inferences in the of
viewed
product
A
is in a
condition
movant,
defective
is
non
there
favorable to the
most
unreasonably dangerous to the user when
proof
of
on the
complete absence
either a
upon
causing physical
propensity
issue of fact
no controverted
has
issues or
could differ.
person
contem-
beyond
a reasonable
harm
that which would be
which
consumer,
ordinary
or
omitted).
plated
user
(citations
Monette,
States Cir.1993). (6th cor- Again the district court determining In whether rectly notes: 180 sailboat is defective because grant utility a new you discretion to design,
The court has
of
must balance
against
appears to be
magnitude
trial if the verdict
of the
design against
of
Hawley,
great weight of the evidence.
risk.
must
at 725. The Court
supra, 958 F.2d
only if
liable
You can find the defendant
evidence,
not set
weigh
but should
risk,
reasonably
it, knowing
did not act
merely
because
aside a
verdict
the market. To
putting
different conclu-
jury could have drawn
the defendant acted
determine whether
“more
other results are
sions or because
on the
unreasonably
putting
the boat
742;
II
Portage
v.
Id. at
reasonable.”
market,
consider and balance
must
Corp., 899 F.2d
Bryant Petroleum
design process,
up
which make
factors
Cir.1990).
(6th
The
verdict
following:
including the
accepted if it is one which could
should be
Portage
reasonably
reached.
have been
desirability of the
usefulness and
II, supra
motion. I With claim, I because believe tive only jury’s opposite the reasonable verdict is conclusion, judgment as а matter of law necessary proper a new trial is not respect negli- issue. With on that claims, however, a trial in order gence new is jury’s against great because the verdict weight of evidence and the district court its discretion on review. The court’s
abused to irrelevant evidence are sub- references they demonstrate that stantial because engaged analysis in an court errant application court issues and of the law. The charged to determine whether there was support jury’s substantial evidence to special regarding product verdicts defect and *15 negligence. responded The court that there and to in- was substantial evidence went on sinuate that the substantial evidence was that negligence parties on the boat. Again, prox- I believe this evidence relates to comparative negligence,
imate cause and is- reached, sues which the never and not negligence. Accordingly defect or the court’s reliance on this evidence is a clear error judgment and abuse of discretion. Davis See Inc., Community Hosp. v. Jellico 912 F.2d (6th Cir.1990). 129, 132 A new trial should granted negligence
have been on the issue of and other unresolved issues. briefed), (argued
Wilbur C. Jacobs and Toledo, OH, Plaintiff-Appellant. for briefed), Mulcahy (argued James H. KANE, Representative Ann Jo Personal Lizza, Detroit, MI, Mulcahy Casey, & for Kane, Deceased, of the Estate of John Defendants-Appellees. Plaintiff-Appellant, v. MERRITT, Judge; Before: Chief ROHRBACHER, al., Jil et BOGGS, Judges. CONTIE and Circuit Defendants-Appellees. No. 95-1056. . MERRITT, Judge. Chief Appeals, United States Court of PlaintiffiAppellant per- seeks to recover as Sixth Circuit. representative wrongful sonal for the death Argued Feb. 1996. diversity gov- of her husband this case May Decided 1996. by Michigan erned law. She claims that the Rehearing Suggestion Rehearing by complications death was caused from a En July Banc Denied 1988 automobile accident between the dece-
dent and the named defendant. Plaintiff was party to a 1990 settlement between decedent defendant, for which decedent received