Batts v. Tow-Motor Forklift Co.

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-1511
_____________________
MYRON BATTS,
Plaintiff-Appellant,
VERSUS
TOW-MOTOR FORKLIFT COMPANY and CATERPILLAR INDUSTRIAL, INC.,
Defendants-Appellees.
____________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_____________________________________________________
(November 25, 1992)
Before BRIGHT,1 JOLLY, and BARKSDALE, Circuit Judges.
BARKSDALE, Circuit Judge:
At issue in this Mississippi diversity action is whether,
under its products liability law, recovery against a product's
manufacturer by an injured non-user of that product (a bystander)
is barred if the product defect or danger is open and obvious to an
ordinary user, regardless of whether the bystander knew, or should
have known, of the danger. Myron Batts was injured when a forklift
operated by a co-employee backed into him. Batts sued the forklift
manufacturer, claiming that the lack of any mirror or back-up
warning device on the forklift rendered the manufacturer liable
under the theories of negligence and strict liability in tort. A
1
Senior Circuit Judge of the Eighth Circuit, sitting by
designation.
jury returned a verdict for the manufacturer, after being
instructed that Batts, a bystander, could not recover under either
theory if it found that the danger was open and obvious. For both
theories of liability, this was a correct statement of the law; we
AFFIRM.
I.
Batts was employed in Mississippi by Flavorite Laboratories,
Inc. His duties included operating a type forklift called a
"tugger"2 in a room which was often noisy. In that room, at least
one forklift operated in addition to Batts' tugger. On the day
Batts was injured in 1984, a co-employee, Charles Johnson, was
operating a forklift manufactured in 1965 by Towmotor Corporation.3
(Towmotor was purchased by Caterpillar.) The forklift was operated
by a seated driver using controls to his front, as are the lift
forks, and is generally operated in reverse as often as forward.
At the time of manufacture, Towmotor produced forklifts with load
capacities ranging from 2,000 to 60,000 pounds. The forklift in
issue had a 2,500-pound capacity and was designed for use in
warehouses and other indoor areas. The forklift collided with
Batts when Batts was backing, and walking beside, the tugger; and
Johnson was operating the forklift in reverse, but without sounding
its manual horn.
2
A tugger is motorized; and the operator walks behind and
guides it.
3
Flavorite purchased the forklift from a third party in 1980.
- 2 -
Although neither party contends that a back-up alarm sounded
on the forklift before it hit Batts, whether any such device was
then in place is disputed (as discussed in note 6, infra,
concerning Caterpillar's superseding proximate cause defense).
After the accident, electrical alarms and flashing lights were
installed on the forklifts at Flavorite. These items were
available when the forklift was manufactured in 1965 and could be
installed at customer request. However, they were not standard
options on Towmotor forklifts of the capacity involved in this
case. Indeed, no American manufacturer so offered them.
Caterpillar's witnesses opined that the need for back-up warning
devices depends on the customer's application and that their use is
appropriate when an operator's visibility is restricted.
At trial in 1991, Batts relied on claims of negligence and
strict liability in tort;4 but the jury, by special
interrogatories, found for Caterpillar on both theories. Following
the denial of his motion for JNOV or new trial, Batts brought this
appeal.
II.
Batts presented proof that the forklift should have had a
back-up alarm, flashing warning lights, and/or rearview mirrors,
and asserted that this failure entitled him to recover under either
strict liability in tort (defective and unreasonably dangerous) or
negligence (negligent design). On the other hand, Caterpillar
4
Prior to trial, a breach of warranty claim was dismissed as
time-barred and is not in issue on appeal.
- 3 -
presented evidence that there was no restriction on the forklift
operator's visibility to the rear and that there was a danger in an
operator relying on alarms, lights, or mirrors, as opposed to
looking in the direction of travel. One of its principal defenses
was that the absence of such devices, and the concomitant danger of
the operator not facing in the direction of travel, was open and
obvious to the forklift owner and its employee operator (users) and
that, under Mississippi law, this barred recovery by Batts.
Several of the jury instructions and a special interrogatory
incorporated this open and obvious bar. (As discussed infra, the
jury was instructed that Batts could not recover under negligence
or strict liability in tort if the danger was open and obvious.)
Batts' challenge to those items is the primary thrust of his
appeal. (In notes 5 and 6, we quickly dispose of the other issues
raised by Batts5 and Caterpillar (which did not cross-appeal)6.)
5
Batts contends that several instructions and a special
interrogatory improperly commented on the evidence. (We reject
Caterpillar's contention that Batts did not preserve these
objections.) The items so challenged were consistent with the
evidence and the various claims and theories in issue. Contrary to
Batts' contention, they were not peremptory; and, taken as a whole,
the charge was proper, as discussed infra.
6
Caterpillar contends on two bases that the district court
erred in denying it summary judgment or a directed verdict. First,
it relies on the theory of superseding proximate cause. The jury
was instructed on that defense and given a special interrogatory.
The leadperson in the blending department and a co-employee who
sometimes operated the tugger testified that no back-up alarms were
in place. On the other hand, the plant engineer testified that a
back-up alarm bell was installed on the Towmotor forklift in 1980
or 1981. But, he had no knowledge that the alarm was functional on
the day of the accident, or even six months or a year prior to it.
And, the mechanic in charge of maintaining Flavorite's forklifts
testified that the forklift Johnson was driving had a back-up bell;
- 4 -
In reviewing this challenge to jury instructions, "we view the
[jury charge] as a whole in the context of the entire case. The
judge must instruct the jurors fully and correctly on the law
applicable to the case, including defensive theories raised by the
evidence." Crist v. Dickson Welding, Inc., 957 F.2d 1281, 1287
(5th Cir. 1992). However, the district court is given broad
discretion in formulating the charge and special interrogatories,
and our review on appeal is deferential. Bradshaw v. Freightliner
Corp., 937 F.2d 197, 200 (5th Cir. 1991). "`A judgment will be
reversed only when the charge as a whole leaves us with substantial
and ineradicable doubt whether the jury has been properly guided in
its deliberations.'" Hall v. State Farm Fire & Casualty Co., 937
F.2d 210, 214 (5th Cir. 1991) (citation omitted).
that it was Flavorite's practice to check the alarm bells every 30
days; that replacement bells were needed for the forklift one or
two times a year, because they would get knocked off or operators
would tamper with them; that he examined the forklift on the day
after the accident; and that the back-up bell was working at that
time. Accordingly, Caterpillar asserts the proof showed that
several years before the accident, it equipped the forklift with a
back-up warning device; it was in place within a month before the
accident; and, if it was not operable at the time of the accident,
that fact -- including its removal or destruction -- cannot be
charged to Caterpillar.
Second, Caterpillar contends that reasonable minds could not
differ regarding warning devices not being needed on the forklift,
as demonstrated by the proof that the forklift complied with all
industrial standards and consumer expectations. (As discussed
infra, "consumer expectations" is a critical issue in a Mississippi
strict liability in tort action.)
Caterpillar did not cross-appeal from these rulings. Assuming
that we can reach these issues, they were for the jury; the
district court did not err in denying the motions.
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Needless to say, we apply Mississippi law in deciding whether
the instructions correctly stated the applicable law. Erie R. Co.
v. Tompkins, 304 U.S. 64 (1938); Allison v. ITE Imperial Corp., 928
F.2d 137, 138 (5th Cir. 1991). And, we review de novo the district
court's interpretation of that law. Salve Regina College v.
Russell, __ U.S. __, __, 111 S. Ct. 1217, 1221 (1991). In deciding
an unsettled point of state law, Erie requires that we determine
how the Mississippi Supreme Court would interpret its own law if
presented with the question. American Waste & Pollution Control
Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991).
When we are required to make an Erie guess, it is not our role to
create or modify state law, rather only to predict it. Id.Under products liability law, recovery by a bystander against
a manufacturer for an injury caused by its product can be an
elusive, complex, and difficult concept, especially because of the
many terms and defenses and other rules established for Mississippi
products liability, and because of resulting inconsistent, if not
conflicting, precedent. Batts asserts that only under the theory
of assumption of risk, with its subjective standard, can an open
and obvious danger associated with the forklift bar his recovery;
that is, the jury would have to find that he knowingly and
voluntarily encountered a known risk -- the forklift backing up.
But, although a subjective standard is used for assumption of risk,
an objective standard, which concerns an ordinary user, not the
person(s) actually using or injured by the product, is applied for
the open and obvious defense to claims under negligence and strict
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liability in tort. Toney v. Kawasaki Heavy Industries, Ltd., 975
F.2d 162, 168-69 (5th Cir. 1992); Gray v. Manitowoc Co., 771 F.2d
866, 871 (5th Cir. 1985) ("both the Restatement's theory of strict
liability and Mississippi's theories of negligence and implied
warranty require an objective appraisal of the obviousness of a
product's hazard"); Restatement (Second) of Torts § 402A cmt. i
(1965) (the product "must be dangerous to an extent beyond that
which would be contemplated by the ordinary consumer ... with the
ordinary knowledge common to the community"). This objective
standard is all that is in issue here.7
As discussed infra, we hold that an open and obvious danger to
an ordinary user precludes recovery against the product
manufacturer under negligence and strict liability in tort.
Accordingly, an open and obvious defect precludes Batts' recovery
against Caterpillar (the manufacturer), regardless of whether he
knew, or should have known, of that danger.8 Therefore, we reject
7
Batts maintained that assumption of risk had no application to
this case. That bar is not in issue.
8
In issue is only recovery by an injured bystander against a
product manufacturer where the open and obvious bar is raised.
Therefore, we are not concerned with, nor do we discuss, other
defenses or claims that might be raised. For example, contrary to
the position taken by the able dissent, although an open and
obvious danger bars recovery against the product manufacturer by an
injured bystander, he or she still has a claim against the product
user, unless, as here (workers' compensation bar), that avenue of
recovery is foreclosed. (In this case, liability is shifted not to
Batts, but to the user, and hence, workers' compensation.) And, of
course, for such a claim, assumption of risk or contributory
negligence by the injured bystander could be asserted. But, again,
we are not concerned in this appeal with the seemingly limitless
array of claims, defenses, bars, and other theories inherent in
products liability actions.
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Batts' contention that a bystander's awareness of an open and
obvious danger would simply reduce any recovery under Mississippi's
comparative negligence standard.9 We now address the bases in
Mississippi law for this holding.
A.
1.
It is more than well-established that, for strict liability in
tort, Mississippi adheres to the Restatement (Second) of Torts §
402A.10 E.g., Toney, 975 F.2d at 165; Lloyd v. John Deere Co., 922
9
The Mississippi comparative negligence statute provides in
relevant part:
In all actions hereafter brought for personal
injuries, ... the fact that the person injured ...
may have been guilty of contributory negligence
shall not bar a recovery, but damages shall be
diminished by the jury in proportion to the amount
of negligence attributable to the person injured
....
Miss. Code Ann. § 11-7-15. The jury was instructed on comparative
negligence, as part of the standard charge. See note 8.
10
That section provides in part:
§ 402A. Special Liability of Seller of Product for
Physical Harm to User or Consumer
(1) 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.
Restatement (Second) of Torts § 402A (1965).
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F.2d 1192, 1194 (5th Cir. 1991); Coca Cola Bottling Co. v. Reeves,
486 So.2d 374, 377-78 (Miss. 1986) (en banc). Moreover,
Mississippi law interprets § 402A to permit recovery by a
"bystander". Hall v. Mississippi Chem. Express, Inc., 528 So.2d
796, 799 (Miss. 1988) ("Though a bystander, [plaintiff] is ...
eligible under" § 402A.); Reeves, 486 So.2d at 378 ("fact that
[plaintiff] may arguably be classified as a bystander" is not bar
to § 402A action).
In Reeves, a bottle fell through a carton being removed from
a shelf by someone in the vicinity of the plaintiff, who was
injured when the bottle shattered upon hitting the floor. A
threshold issue was whether the plaintiff, neither a purchaser nor
other form of user, could recover under strict liability in tort.
The Mississippi Supreme Court held that he could, noting:
... the duty imposed by Restatement § 402A to the
extent that same has been incorporated into the
positive law of this state exists in favor of
anyone who may reasonably be expected to be in the
vicinity of the product's probable use and to be
endangered by it if it is defective. Therefore,
the fact that [plaintiff] may arguably be
classified as a bystander avails [defendant
bottler] nothing inasmuch as children accompanying
their parents, relatives or persons in loco
parentis while shopping or otherwise on the
premises may generally be expected to be in the
vicinity of the handling of soft drink cartons and
to be endangered if those cartons are defective.
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486 So.2d at 378 (citations omitted).11 In so holding, the court
noted:
The justness of allowing bystanders to recover on a
strict products liability theory is demonstrably
greater than is the case with almost any other
potential plaintiff, for the bystander is less able
to avoid the accident than almost any other.
Id. at 378 n.2. The open and obvious bar was not in issue in
Reeves. But, in any event, this footnote is indicative of the
competing interests in products liability law that clouds the issue
in Batts' case.
The forklift was for indoor use. For that and other reasons,
Batts could arguably "reasonably be expected to be in the vicinity
of the [forklift's] probable use and to be endangered by it if it
is defective." Id. at 378. Several of the instructions included
"bystanders" among those to be considered; and much of the language
used was similar to that in Reeves. The jury was instructed that
Batts was a bystander (Caterpillar does not contest that here) and
could "recover for injuries[,] consistent with all of the
instructions". The court instructed the jury:
Manufacturers of products have a legal duty to
design products that are not in a defective
condition unreasonably dangerous to users,
consumers, or bystanders. This duty includes the
11
Likewise, in an "Erie guess" shortly before Reeves, our en
banc court reinstated the panel's vacated holding that, under
Mississippi law, a manufacturer can owe bystanders a strict
liability "duty" that "grows out of the contemplated or normally
intended use of its defective product and extends at least to those
persons within the area of that use who can reasonably be foreseen
to be endangered." Jackson v. Johns-Manville Sales Corp., 727 F.2d
506, 514 (5th Cir. 1984), reinstated in relevant part on reh'g, 750
F.2d 1314, 1317 (5th Cir. 1985) (en banc), cert. denied, 478 U.S.
1022 (1986).
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obligation to install safety and warning devices
which will prevent accidents or injuries which are
reasonably foreseeable from occurring.
(Emphasis added.)12
For the strict liability in tort claim, the district judge, as
requested by Caterpillar, charged that an open and obvious danger
cannot render the product unreasonably dangerous. Over Batts'
objections, the district judge instructed, in part, that
the plaintiff has alleged that the absence of a
back-up alarm, flashing warning lights, and/or
rearview mirrors on the forklift ... entitles him
to recover against the defendant on the theory of
strict products liability. ... [I]n order for the
plaintiff to prevail on this theory he must prove
by a preponderance of the evidence that the
forklift ... was in a defective condition when it
was sold in 1965 and unreasonably dangerous to the
user of the forklift and that the defective
12
In fact, one of the instructions given for Batts, over
Caterpillar's objection, erroneously conflated "ordinary consumer"
and "ordinary bystander":
If you find ... that the forklift was in a
defective condition, unreasonably dangerous when
sold by [Caterpillar] ... because it failed to have
mirrors, audible back-up alarms, and/or flashing
warning lights, and that the danger from the
forklift in its defective condition, unreasonably
dangerous, was not reasonably foreseeable by the
ordinary consumer or bystander with the ordinary
knowledge common to the community as to the
characteristics in common usage of forklift
products ... and that Myron Batts was injured while
the forklift was being used in a manner which was
reasonably foreseeable by [Caterpillar], and that
the lack of mirrors, audible back-up alarms, and/or
flashing warning lights was the sole proximate
cause or a proximate contributing cause of Myron
Batts's injuries, then in that event your verdict
should be for [Myron Batts].
In any event, taken as a whole, the charge does not constitute
reversible error.
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condition, if any, was a proximate cause of the ...
accident ....
... [T]o find the forklift ... to be in a
defective condition means that you find that there
was something wrong with the [forklift]. To find
that the forklift was unreasonably dangerous means
that the forklift posed some danger beyond the
contemplation of the ordinary user of the forklift.
... [A]ny alleged danger which is open and
obvious cannot be considered to be unreasonably
dangerous.
(Emphasis added.) After giving the strict liability instruction,
the district judge later reemphasized -- without specifying under
which theory of recovery -- the preclusion to recovery if the
following danger was open and obvious:
If you find ... that the operation of the forklift
... without the driver facing in the direction of
travel and without sounding the manual horn to warn
a pedestrian presents an open and obvious danger,
regardless of whether the forklift was equipped
with [a mirror or warning device], then ... it is
your sworn duty to return a verdict for the
defendant.
Finally, a special interrogatory asked correctly whether, on the
date of the accident, "the defect, if any, was open and obvious to
a reasonable and prudent user...." (Emphasis added.)13 The jury
was instructed properly that if it so found, it was to find for
Caterpillar. Concerning the challenged instructions that
incorporated open and obvious danger elements, as well as the
13
This was the third interrogatory; the first two, which the
jury answered in the negative, asked whether "Caterpillar was
negligent in its design of the forklift" and whether "the forklift
as manufactured and sold by Caterpillar was defective and
unreasonably dangerous at the time of the sale and delivery". The
jury was instructed to stop if it answered "no" to these two.
Accordingly, it did not reach the open and obvious danger
interrogatory.
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corresponding special interrogatory, the charge, as a whole, was
correct; we are not left "with substantial and ineradicable doubt
whether the jury [was] properly guided in its deliberations."
Hall, 937 F.2d at 214.
2.
Batts admits that "the patent danger doctrine ... has been
embraced by Mississippi jurisprudence in the past", but contends
that the Mississippi Supreme Court has now "laid to rest" the
notion that an open and obvious danger exonerates the product
manufacturer from strict liability in tort. Along that line, the
Mississippi Supreme Court has adhered to a "consumer expectation"
test. In Ford Motor Co. v. Matthews, 291 So.2d 169, 172 (Miss.
1974), it stated that liability lies under § 402A "`only when the
product is, at the time it leaves the seller's hands, in a
condition not contemplated by the ultimate consumer, which will be
unreasonably dangerous to him.'" (Quoting Restatement (Second) of
Torts § 402A cmt. g (1965)). As a gloss on the terms "unreasonably
dangerous", it quoted comment i, stating: "`The article sold must
be dangerous to an extent beyond that which would be contemplated
by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics.'" Id.
(quoting Restatement (Second) of Torts § 402A cmt. i (1965)). As
discussed infra, the Mississippi Supreme Court has continued to use
this approach. E.g, Toliver v. General Motors Corp., 482 So.2d
213, 218 (Miss. 1985) (citing § 402A cmt. g and Ford Motor, 291
So.2d at 169).
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Accordingly, based on Mississippi's choice to define
"unreasonably dangerous" by reference to a reasonable, or ordinary,
consumer's expectations of product performance, our court has held,
as discussed infra, that there is no strict liability in tort under
Mississippi law for a patent -- open and obvious -- danger. "[A]
product that has an open and obvious danger is not more dangerous
than contemplated by the consumer, and hence cannot, under the
consumer expectations test applied in Mississippi, be unreasonably
dangerous." Melton v. Deere & Co., 887 F.2d 1241, 1243 (5th Cir.
1989). (As quoted above, Batts' jury was so instructed.) See also
Gray, 771 F.2d at 869 ("the consumer expectation test of section
402A ... requires that harm and liability flow from a product
characteristic that frustrates consumer expectations"; "the patent
danger bar adopted by the Restatement was incorporated into
Mississippi's doctrine of strict liability"). This rule is
discussed fully in this court's recent decision in Toney, 975 F.2d
at 165-66 (motorcycle owner injured in collision; claimed
motorcycle should have had leg guards).
Batts concedes that decisions by our court support
Caterpillar's contention that the consumer expectation test
applies, as opposed to a risk utility analysis.14 He asserts,
14
For example, the Supreme Courts of New Jersey and Texas have
applied the latter. See, e.g., Ryan v. KDI Sylvan Pools, Inc., 121
N.J. 276, 290, 579 A.2d 1241, 1248 (1990); Turner v. General Motors
Corp., 584 S.W.2d 844, 851 (Tex. 1979). Under the risk-utility
approach, "a product can be said to be defective in the kind of way
that makes it `unreasonably dangerous' if a reasonable person would
conclude that the danger-in-fact, whether foreseeable or not,
outweighs the utility of the product." W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 99, at 699 (5th ed. 1984).
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however, that our interpretation is at odds with the position taken
by the Mississippi Supreme Court in two decisions in 1988, Whittley
v. City of Meridian, 530 So.2d 1341 (Miss. 1988) and Hall v.
Mississippi Chemical Express, Inc., 528 So.2d 796 (Miss. 1988), as
well as in Toliver, rendered in 1986.
First, these cases do not persuade us that Mississippi has
fundamentally shifted its test from one of consumer expectation to
risk utility. Second, even if we agreed with Batts, we would be
bound by the interpretation given by a prior panel of this court in
Melton (which rejected a similar contention, 887 F.2d at 1243) and
Toney.15 No Mississippi case has appeared since Melton was rendered
in 1989 to indicate that its analysis of Mississippi law was
incorrect.16
3.
As noted, there is no contention that Batts was a "user". At
trial, Caterpillar repeatedly stated that the owner was the "user";
there is no charge that Batts, in performing his duties with the
tugger, or otherwise, was working in conjunction with the forklift,
so as to make him a "user" of it; and, in fact, the district court
instructed that Batts was a "bystander". As discussed earlier,
15
"`In this circuit one "panel may not overrule the decision,
right or wrong, of a prior panel" in the absence of en banc
reconsideration or superseding decision of the Supreme Court.'"
Burlington N. R.R. v. Brotherhood of Maintenance of Way Employees,
961 F.2d 86, 89 (5th Cir. 1992) (citations omitted).
16
Batts also requests, in the alternative, that we certify this
question to the Mississippi Supreme Court. Our law is clear; the
Mississippi law upon which our precedent is based is unchanged. We
thus decline to do so.
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Batts status as a "bystander" does not prevent him from asserting
a § 402A claim that the forklift was defective and unreasonably
dangerous. Among other things, he had to prove that (1) he could
"reasonably be expected to be in the vicinity of the [forklift's]
probable use and to be endangered by it if it is defective",
Reeves, 486 So.2d at 378; and (2) "the [forklift] was defective and
... its defective condition made the [forklift] unreasonably
dangerous to him", Toliver, 482 So.2d at 216 (emphasis in
original). As discussed and quoted supra, in proving that a
product was "defective and unreasonably dangerous", Mississippi
applies the consumer expectation test -- the product is (1)
"defective" when, at the time it leaves the seller's hands, it is
in a condition not contemplated by the ultimate consumer, which
will be unreasonably dangerous to him; and (2) "unreasonably
dangerous" when it is dangerous to an extent beyond that which will
be contemplated by the ordinary consumer, with the ordinary
knowledge common to the community as to its characteristics.
Simply put, products liability, whether under negligence or
strict liability in tort, does not focus on the status of the
plaintiff; instead, it focuses on the product. The focus is not on
whether the injured party is a consumer, or user, or bystander, or
whether the product is unreasonably dangerous to a particular
person. E.g., Toney, 975 F.2d at 169; Gray, 771 F.2d at 869(discussed infra); Page v. Barco Hydraulics, 673 F.2d 134, 138 (5th
- 16 -
Cir. 1982).17 Moreover, as discussed, the inquiry for strict
liability is not whether the product was dangerous; it is whether
it was both defective and unreasonably dangerous. For example, an
ordinary kitchen knife is dangerous, simply because of its blade;
but, it is not unreasonably dangerous, because the ordinary
consumer understands that the blade, due to its sharpness or point,
can cause injury. In products liability cases, by which we impose
liability on a manufacturer, among others, it is the product -- the
item placed in commerce for use or consumption -- on which
liability turns.
Accordingly, even when the bystander is the injured party, the
test must remain the same -- the product is defective if, when it
leaves the seller's hands, it is in a condition not contemplated by
the ordinary consumer, which will be unreasonably dangerous to him;
and, it is unreasonably dangerous if it is dangerous to an extent
beyond that which will be contemplated by the ordinary consumer,
with the ordinary knowledge common to the community as to its
characteristics. This is essentially how the district court
instructed the jury.
17
This court stated in Page:
... [I]n strict liability the focus is on the
safety of the product itself. The question is
whether the product meets the reasonable
expectations of the ordinary consumer as to its
safety, irrespective of all the care that the
manufacturer might have put into making it.
673 F.2d at 138 (citations omitted).
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Our decision in Gray, followed in Melton and Toney, controls
on an open and obvious danger precluding strict liability in tort
recovery by a bystander against a manufacturer. (All three cases
concerned injured users, not injured bystanders.) While Gray was
changing sections of a crane boom, the crane operator swung the
boom, striking Gray.18 771 F.2d at 867. He sued under strict
liability in tort, implied warranty, and negligence, contending,
inter alia, that there was a design defect in the crane, because
the operator's vision was obscured to the left side, and that the
crane should have provided mirrors or other devices to compensate.
The defendant manufacturer contended that the hazard was "open
and obvious to ordinary users of the crane" and constituted a bar
under any theory of products liability. Id. at 868. (Gray's
holding for negligence is discussed in part II.B.) As for strict
liability in tort, our court felt "bound to apply" the consumer
expectation test, and stated: "the consumer expectation test of
section 402A is rooted in the warranty remedies of contract law,
and requires that harm and liability flow from a product
characteristic that frustrates consumer expectations." Id. at 869(emphasis added).
Gray was rendered six months before the Mississippi Supreme
Court expressly held in Reeves what earlier Mississippi cases had
implied -- that a bystander could recover under § 402A. Gray does
not make a distinction between "users" and "bystanders"; the latter
18
Because Gray was working with, or on, the boom, we consider
him a user, not a bystander.
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is not mentioned. It is true, as noted in the dissent, that a
bystander's expectations, if any, about a product would not
necessarily include knowledge of a danger that is open and obvious
to an ordinary consumer; but, again, the test under Mississippi law
for whether a product is defective and unreasonably dangerous does
not focus on the actual user or the actual bystander (the persons
actually using or injured by the product) but, instead, focuses on
the ordinary consumer with ordinary knowledge common to the
community as to its characteristics. For this reason, Gray held
that "the Grays' right to recover under the theory of strict
liability depends upon whether the evidence was sufficient to
permit the jury to find that the ... crane was `dangerous to an
extent not contemplated by the ordinary consumer who purchased it,
with the ordinary knowledge common to the community as to its
characteristics.'" Id. at 870 (emphasis added). Again, this rule
is solidified in Toney.19
As noted, in the challenged strict liability instructions, the
district court instructed that "any alleged danger which is open
and obvious cannot be considered to be unreasonably dangerous" and
that the jury was to return a verdict for Caterpillar if it found
"that the operation of the forklift ... without the driver [user]
facing in the direction of travel and without sounding the manual
horn to warn a pedestrian presents an open and obvious danger,
19
The dissent posits that we fail to explain why the consumer
expectation test applies to bystanders. In short, as discussed
above, Mississippi law and our circuit precedent require it. The
same is true for our holding on the negligence claim.
- 19 -
regardless of whether the forklift was equipped with [a mirror or
warning device]. ..." In addition, as also noted, in a special
interrogatory, the jury was instructed that if it found "[t]hat the
defect, if any, was open and obvious to a reasonable and prudent
user on" the date of the accident, then it must return a verdict
for Caterpillar. This was a correct statement of the law, even for
a bystander plaintiff.
B.
For the negligence claim, as discussed, whether the danger is
open and obvious is also measured by an objective -- reasonable
person -- standard, e.g., Toney, 975 F.2d at 168-69; Gray, 771 F.2d
at 871. In instructing the jury, over Batts' objections, on that
claim, the district judge stated:
... [T]he duty of a manufacturer is to provide a
product which is reasonably fit. There is no duty
to provide a perfectly safe product. [Batts]
alleges negligence in the design of the forklift
... involved in the accident. ... In order for
[him] to recover under this theory, ... the burden
of proof is upon [him] to prove ... that the
absence of [a mirror or warning device] constituted
a concealed or hidden dangerous condition, thereby
making the forklift defective and unreasonably
dangerous. If you find ... that the alleged danger
of the forklift ... was open and obvious, and that
the forklift functioned properly for its intended
use, then ... you must return a verdict for the
defendant as to [Batts'] claim of negligent design.
As quoted earlier, the district court also gave a general
instruction that the jury had to find for Caterpillar if it found
that a driver operating the forklift without facing in the
direction of travel and without sounding his horn presented an open
- 20 -
and obvious danger. And, it gave the special interrogatory on open
and obvious danger.
1.
The district court's instruction is consistent with Toney and
Gray.20 And, Gray relied on decisions by the Mississippi Supreme
Court in Harrist v. Spencer-Harris Tool Co., 244 Miss. 84, 140
So.2d 558 (1962) and Jones v. Babst, 323 So.2d 757 (Miss. 1975).
As in Gray, those Mississippi cases concerned injured users, not
injured bystanders.21 Gray held that
20
Indeed, at the charge conference, the district judge placed
considerable reliance on Gray.
21
In Harrist, decided before the adoption of strict liability in
tort in Mississippi, the plaintiff/"employee-user" alleged
negligence in the design of steps aboard an oil rig. 140 So.2d at
559. He requested that the court abolish the privity of contract
rule for products cases grounded in negligence and implied
warranty. Id. at 561. The court found it unnecessary to do so
because, assuming it would, it
would be required to affirm the trial court because
the alleged defects are not considered to be latent
or concealed. If we assume there were defects, we
think they were apparent and obvious to a casual
observer.
Id. (emphasis added). Despite the opportunity presented for the
court to hold that the obviousness of the danger was a comparative
negligence factor, it held instead that the defendant's negligence
vel non in designing the steps was not even a jury question.
In Jones, the court quoted with approval this court's opinion
in Ward v. Hobart Manufacturing Co., 450 F.2d 1176, 1180 (5th Cir.
1971), stating that Ward
set out the general rule for negligent design cases
followed by this Court; "[W]here the alleged danger
is open and obvious and the manufacturer has done
everything necessary to insure that the machine
will function properly for its designed purpose any
duty owed to a future user has been fulfilled."
- 21 -
a manufacturer's liability for product defects
under Mississippi's doctrines of negligence and
implied warranty may not, as a matter of law, be
premised on the existence of an obvious hazard in a
product which functions properly for its intended
purpose.
Gray, 771 F.2d at 868.22 Toney repeats this rule. 975 F.2d at
169. We are not cited to, nor have we found, a Mississippi case
holding that an open and obvious danger, without more, can bar
recovery for a products liability negligence claim by a bystander.
But, as discussed supra, the focus in products liability is on the
product. Moreover, for negligence, and as the Batts' jury was
instructed, the manufacturer's duty is to produce a reasonably safe
product. Therefore, Gray controls.
323 So.2d at 759 (emphasis added). The court affirmed a directed
verdict for the manufacturer on strict liability and negligence
claims, because there was no evidence supporting those theories; it
found the evidence instead supported a hypothesis that the subject
accident resulted from improperly attaching lug nuts in repairing
an automobile tire. Accordingly, a jury verdict against the
defendants involved in the repair was affirmed.
In applying Mississippi law, we, of course, are controlled by
decisions by the Mississippi Supreme Court; but, it does appear
that Jones overstates the holding in Ward, a pure negligent design
case brought by a plaintiff injured while cleaning a meat grinder.
450 F.2d at 1178, 1180. Gray, however, ruled that the Mississippi
Supreme Court would follow Jones. 771 F.2d at 868 n.1.
22
Toney and Gray are this court's latest pronouncements on the
open and obvious defense in a Mississippi negligent design case.
Melton concerned only strict liability in tort, 887 F.2d at 1242;
and in Lloyd (1991) (open and obvious danger to injured user;
improper design and failure to warn claims; directed verdict
granted), "while we ... applied the standard for a directed verdict
as to all three theories, or bases, for liability [negligence,
warranty, strict liability in tort], and [found] it correctly
granted for each, our analysis [was] couched in the language of §
402A strict liability." 922 F.2d at 1194 n.2.
- 22 -
2.
Batts contends, however, that recent premises liability
decisions by the Mississippi Supreme Court control. Liability for
negligently designed products is, of course, merely one form of
common law negligence, to which the ordinary rules of negligence
apply. E.g., Toliver, 482 So.2d at 219 ("[S]trict liability `does
not preclude liability based upon the alternative ground of
negligence ...' .... Under this theory, the usual defenses to a
charge of negligence would apply." (citations omitted)). And, in
some types of negligence cases in Mississippi involving open and
obvious dangers, the jury may find for the plaintiff, and then
apply comparative negligence. E.g., Goodwin v. Derryberry Co., 553
So.2d 40, 43 (Miss. 1989). In Goodwin, a premises liability case,
the Mississippi Supreme Court cited its earlier premises liability
decision in Bell v. City of Bay St. Louis, 467 So.2d 657, 664
(Miss. 1985), which stated:
In prior cases involving hazards that were
extremely "open and obvious", this Court has not
barred injured parties from recovery, but rather
has left the issue to the jury properly instructed
regarding comparative negligence. ...
We have repeatedly condemned jury instructions
which, if followed by the jury, would completely
deny a negligent plaintiff recovery, even though
the defendant may also be negligent.
See also Caruso v. Picayune Pizza Hut, 598 So.2d 770 (Miss. 1992)
(affirming jury verdict against plaintiff who stumbled on mat
placed over loose stripping; mat was "open and obvious", and
question went to jury properly instructed on comparative
negligence); Biloxi Regional Medical Ctr. v. David, 555 So.2d 53,
- 23 -
56 (Miss. 1989) ("`[C]onditions are not either open and obvious or
not open and obvious. Common sense and experience negate[] an
either or categorization of such conditions. Just how open and
obvious a condition may have been is a question for the jury in all
except the clearest of cases.'" (quoting Bell, 467 So.2d at 664)).23
Batts contends that these cases control; but they concern
premises, not products, liability. We do not find them persuasive
in making our Erie guess on this issue. This is aptly demonstrated
by a simple, but conclusive, analogy in Bell. In rejecting the
claim that recovery in a premises liability action was barred if
the danger was open and obvious, the Mississippi Supreme Court
noted: "We might as well exonerate as a matter of law a defendant
who leaves his car parked in the middle of the street on grounds
that the car was open and obvious." 467 So.2d at 664. In this
example, it was not a defect in the product (automobile) that
caused the injury; it was the negligence of its owner, who left it
in the middle of the street. The same is true for this products
liability negligence claim. The forklift was operated in reverse
and struck Batts, a bystander. The jury found that a product
defect did not cause the injury.
23
The Mississippi Supreme Court presumably relied on this
"clearest of cases" exception when, in McGovern v. Scarborough, 566
So.2d 1225 (Miss. 1990), it affirmed a directed verdict against a
plaintiff who stumbled on a raised threshold when entering a
business premises. The court expressed concern at the prospect of
creating a jury question for "any doorway from the street which is
not on the same level as the street." Id. at 1228.
- 24 -
Consistent with our Erie holding for a strict liability in
tort claim, an open and obvious danger in a product bars recovery
on a products liability negligence claim by an injured bystander
against the product's manufacturer. Indeed, as discussed, there is
a whole body of products liability law dating from Harrist that
effectively absolves a manufacturer from liability resulting from
open and obvious product defects. Therefore, the district court
correctly instructed the jury that, if it found "that the alleged
danger of the forklift ... was open and obvious", it must return a
verdict for Caterpillar on the negligent design claim.
III.
For the foregoing reasons, we
AFFIRM.
E. GRADY JOLLY, Circuit Judge, specially concurring:
I concur in Judge Barksdale's opinion. I write separately
only to set out in one place the principles of Mississippi products
liability law that control this case today: First, I would
emphasize that a manufacturer's duty to exercise due care in
designing a product that is reasonably safe should not be confused
with a manufacturer's strict liability for a defective product that
is unreasonably dangerous. A manufacturer who has not negligently
designed a product may nonetheless, in given cases, be held
strictly liable for producing a defective product that is
unreasonably dangerous. Thus, the distinction between the two
standards may be critical.
- 25 -
In order to recover on a negligent design claim, the burden is
on the plaintiff to prove that the defendant manufacturer failed to
exercise due care in designing the product. The manufacturer may
then raise, in the nature of an affirmative defense, that the
claimed defect was open and obvious. If the manufacturer
demonstrates, as a matter of law, that the defect in the product
would be open and obvious to a casual observer, the plaintiff will
be barred from recovery under his negligence claims, because "no
duty rests upon a manufacturer or seller to warn a purchaser of a
dangerous design that is obvious." Harrist v. Spencer-Harris Tool
Co., 140 So.2d 558, 562 (Miss. 1962). Moreover, one factor that is
often considered when determining whether a manufacturer breached
its duty to design a reasonably safe product is "the conformity of
[its] design to the practices of other manufacturers in its
industry at the time of manufacture." Ward v. Hobart Manufacturing
Co., 450 F.2d 1176, 1182 (5th Cir. 1971). This factor is often
determinative because in most cases it serves as a reliable indicia
of the standard of care that a reasonably prudent manufacturer
would exercise.
In order to recover on a strict products liability claim based
on a design defect, the plaintiff need only prove that the
manufacturer produced a defective product that is unreasonably
dangerous to the ordinary consumer, and that the product was
defective when it left the control of the manufacturer.
Traditional negligence notions of fault and care are not relevant
in making this determination; the primary focus of the inquiry is
on the character of the product, not on the conduct of the
manufacturer. A manufacturer may be strictly liable even if it has
exercised all possible care in making the product, if that product
is dangerous to an extent beyond that which would be contemplated
by an ordinary consumer with the ordinary knowledge common to the
community of the product's characteristics. See Restatement
(Second) of Torts, § 402A, comment i. It follows that a product
with an open and obvious defect is not "dangerous to an extent
beyond that which would be contemplated by an ordinary consumer,"
and thus cannot be unreasonably dangerous. In strict products
liability claims, then, the open and obvious nature of the defect
is necessarily tied to the definition of an unreasonably dangerous
product. Under the consumer expectation test, a plaintiff can
never prove that an alleged defect renders a product unreasonably
dangerous if that defect is open and obvious to the ordinary
consumer or user.
We thus make clear that, concerning strict products liability
claims, Mississippi follows the consumer expectations test, that
this test is an objective one, that whether the product is
unreasonably dangerous is judged from the point of view of the
ordinary consumer or user, and that if the alleged defect or danger
is open and obvious to an ordinary consumer or user, the product is
not unreasonably dangerous as a matter of law. Thus, although a
bystander can recover against a manufacturer, he stands in the
shoes of the ordinary consumer, because the test's primary focus is
on the characteristics of the product and not the individual status
--27--
27
and viewpoint of the individual plaintiff. With respect to
negligent design claims, a traditional negligence analysis is
employed, with its focus on whether the product has been designed
with due care by the defendant manufacturer. The open and obvious
nature of the alleged defect can be raised, and if proved as a
matter of law, the defense will operate to bar the plaintiff's
recovery; material factual disputes with respect to the open and
obvious defense, both with respect to strict liability claims and
negligent claims, are to be resolved by the jury.
Thus, applying these principles to the case before us, we have
concluded that Batts' strict products liability claims fail because
the evidence fully supports that the alleged defects in the
forklift were open and obvious to an ordinary consumer or user and
thus the forklift was not an unreasonably dangerous product. With
respect to Batts' negligence claims, we have concluded that, under
Mississippi law, Batts' claim is barred because the evidence
supports the finding that the alleged defects in the forklift were
open and obvious to a casual observer.24
24
The dissent states that "denying Batts recovery under strict
liability because the danger of the forklift is open and obvious to
an ordinary consumer, shifts the liability costs from the
manufacturer, in this case, Caterpillar, to Batts." In our view,
this statement is inaccurate. To the extent that the holding of
the majority opinion "shifts" liability, it does so to the
purchaser, user, employer, and/or operator; it does not shift the
liability to Batts himself. Indeed, Batts' employer has already
accepted statutorily imposed liability and has remitted payment to
Batts under Mississippi's workers' compensation program. The
removal of one "deep pocket" defendant is just not tantamount to
the shifting of liability to the tort victim himself.
--28--
28
BRIGHT, Senior Circuit Judge, dissenting:
The dissent argues that "this court's willingness here to
extend user injury analysis to a bystander case, in my opinion, is
not what the Supreme Court of Mississippi would do, were it ruling
on this issue." The dissent ignores the principle that we are not
permitted to guess what the Mississippi Supreme Court might do when
the present law is perfectly clear. Mississippi has expressly
stated on numerous occasions that it follows the Restatement and
that it follows the consumer expectation test. This test evaluates
the product's defect from the point of view of the ordinary
consumer. The rule explicitly states that if the product meets
consumer expectations, it is not defective. In other words,
consumer expectations define what is and what is not an
unreasonably dangerous product. The Mississippi rule--at present
clearly enunciated--leaves no room for a "bystander expectation"
test to define an unreasonably dangerous product. Thus, to address
the dissent's suggestion that we are only engaging in an
"analytically convenient argument": The reason the consumer
expectation test applies to bystanders is because the test
specifically and expressly defines a manufacturers liability for
injury alleged to have been caused by its products. Moreover, as
we have said in the body of the opinion, the test of whether a
product is unreasonably dangerous, places the primary focus on the
characteristics of the product and not the individual status and
personal viewpoint of the particular plaintiff.
With respect to the negligent design claim, the dissent
states:
However, if he is viewed as a "bystander," then I agree
with Batts that the open and obvious test requires two
significant modifications. First, the person to whom the
danger must objectively be open and obvious is Batts, not
the user of the forklift. Second, the defense is not an
absolute bar, but, like in ordinary negligence actions,
is subject to comparative negligence.
We think this quote misstates the applicable law. The test
employed for negligent design claims is whether the alleged defect
or danger is open and obvious to a casual observer--a category that
surely applies to Batts. The consumer expectation test is not
applicable to negligent design claims. Thus, the first
"modification" is no modification of Mississippi law; it is simply
a restatement of current Mississippi law on negligent design. With
regard to the second "modification," we have no authority to make
this type of change in the law; the Mississippi Supreme Court has
said that the defense is an absolute bar, and thus we are bound to
follow its dictate. Of course, the Mississippi Supreme Court can
I respectfully dissent here because I believe the Supreme
Court of Mississippi would consider the status of the person
injured by a product in determining whether the open and obvious
danger rule bars that person from recovering in a products
liability suit. Specifically, I believe the court, at a minimum,
would apply a premises liability approach to application of the
rule in a negligence case, in which a bystander, injured by a
product, brings suit against the manufacturer.
I agree with this court that, for purposes of users and
consumers, strict liability focuses on whether a particular product
is dangerous, and not on the status of the person injured. Ante at
16. I also agree with this court's reading of Ford Motor Co. v.
Matthews, 291 So. 2d 169 (Miss. 1974), its progeny, Toliver v.
General Motors Corp., 482 So. 2d 213 (Miss. 1985) and Hall v.
Mississippi Chem. Express, Inc., 528 So. 2d 796 (Miss. 1988), and
this court's prior decisions in Gray v. Manitowoc Co., Inc., 771
change this rule if it wishes, and, indeed, it might; the point is
that it has not and its present law is clear.
Similarly, the dissent argues that "[t]he crucial distinction
between these cases and the instant case is that a bystander is
generally not aware of the dangers that are, or should be, open and
obvious to an owner, consumer or user." As stated above, the test
used in negligent design claims is whether the defect is open and
obvious to a casual observer; Batts, as a "bystander," and as a
casual observer who worked in the plant where the forklift was
used, would clearly fall within this category of persons to whom
the defect of the forklift would have been open and obvious.
--30--
30
F.2d 866 (5th Cir. 1985); Melton v. Deere & Co., 887 F.2d 1241 (5th
Cir. 1989); and now Toney v. Kawasaki Heavy Indus., Ltd., No. 91-
1577 (5th Cir. Oct. 7, 1992) that the Mississippi Supreme Court has
adopted the "consumer expectation" test in determining strict
liability under section 402A of the Restatement (Second) of Torts.
Ante at 13. Moreover, I acknowledge this court has ruled that, for
purposes of "users," there is no recovery for a patent, open and
obvious danger. Melton, 887 F.2d at 1243. Finally, I do not
disagree that the Mississippi Supreme Court employs an objective
standard in applying the consumer expectation test. Gray, 771 F.2d
at 871.
However, I do disagree with this court's application of these
cases to the instant case. Each of the above cases relates to a
user injury.25 Collectively, these cases represent a significant
body of case law derived from, and specifically tailored to, user
injuries. But Batts was a bystander, not a user.26 There was
25
In Ford, an employee was injured when a truck he was attempting
to repair moved forward, pinning him against another truck. In
Toliver, an owner of a vehicle suffered injuries resulting from a
defective gas tank in the car. In Gray, an ironworker foreman was
injured when the butt end of a crane's boom struck him while he
supervised his crew in changing sections on the boom. In Melton,
a user of a combine was injured in attempting to clean it. In
Toney, a driver of a motorcycle was injured when he was struck by
a car.
26
This court concedes that Batts was a bystander, and not a user.
Ante at 15-16. "Bystanders" are expressly permitted recovery under
Mississippi strict liability law. Hall v. Mississippi Chem.
Express, Inc., 528 So. 2d 796, 799 (Miss. 1988). See also Jackson
v. Johns-Manville Sales Corp., 727 F.2d 506, 514 (5th Cir. 1984).
--31--
31
nothing he could have done to avoid the accident because he neither
had control over the danger, nor was aware of its presence.
In my opinion, this court's failure to address Batts'
bystander status is at odds with the fundamental purpose of strict
liability as developed in Mississippi. The Supreme Court of
Mississippi has long recognized that the purpose of product
liability "is to insure that the costs of injuries resulting from
defective products are borne by the manufacturers . . . rather than
by the injured persons who are powerless to protect themselves."
State Stove Mfg. Co. v. Hodges, 189 So. 2d 113, 120 (Miss. 1966),
cert. denied, Yates v. Hodges, 386 U.S. 912 (1967) (quoting
Greenman v. Yuba Power Products, Inc., 377 P.2d 897, 900-01 (Cal.
1963)). The court has noted that the purpose and subsequent effect
of forcing manufacturers to internalize these costs is to create
incentives for manufacturers to produce safer products. See
generally id. at 119.
But denying Batts recovery under strict liability because the
danger of the forklift is open and obvious to an ordinary consumer,
shifts the liability costs from the manufacturer, in this case,
Caterpillar, to Batts. Consequently, Caterpillar has less
incentive to make its equipment safer. Application of the open and
obvious rule here encourages manufacturers to produce goods that
The distinction I draw here between a user and bystander is a
narrow one. It applies only for purposes of applying the open and
obvious danger rule in a case in which a bystander injured by a
product seeks to recover against the manufacturer.
--32--
32
are increasingly more dangerous because, in effect, the greater the
"open and obvious" danger, the greater the protection from
liability the manufacturer enjoys.
This court's willingness here to extend user injury analysis
to a bystander case, in my opinion, is not what the Supreme Court
of Mississippi would do, were it ruling on this issue.27 Although
analytically convenient, this court's application of a consumer
expectation test fails to explain the reason why the test should
apply to bystanders.
To the extent Mississippi would apply a different rule for
bystanders, Batts should be entitled to recovery. However, I
recognize this issue remains a question of first impression in
Mississippi and, thus, do not rest my decision on these grounds
alone.
In my opinion, an even more persuasive case is made on Batts'
negligent design claim. As a general rule, manufacturers have a
duty to design reasonably safe products. Ward v. Hobart Mfg. Co.,
450 F.2d 1176, 1182 (5th Cir. 1971). However, if the danger of a
particular product is "open and obvious," and the product functions
properly for its intended use, parties are barred from recovery.
See Harrist v. Spencer-Harris Tool Co., 140 So. 2d 558, 562 (Miss.
1962).
27
It might very well adopt the rationale of looking to the nature
of the accident and the obviousness of the danger to the person
injured, as this court did in Page v. Barko Hydraulics, 673 F.2d
134 (5th Cir. 1982).
--33--
33
In Harrist, an employee of the purchaser of an oil rig slipped
and fell on the steps of the rig due to "external and visible
defects which . . . [were] plain and obvious to the purchaser . . .
." Id. at 561. Faced with a possible no privity defense, the
court treated the employee as a purchaser and denied him recovery
because the defect in the rig was open and obvious.
The bar in Harrist, however, does not apply in every case.
Whether it applies here should turn on whether Batts is considered
a product "user" or a "bystander." If he is a "user" and, as such,
should recognize a forklift operating in reverse to be an open and
obvious danger, he would be barred from recovering on a negligent
design claim. Id.; Ward v. Hobart Mfg. Co., 450 F.2d 1176 (5th
Cir. 1971); Gray v. Manitowoc Co., 771 F.2d 866 (5th Cir. 1985).
However, if he is viewed as a "bystander," then I agree with
Batts that the open and obvious test requires two significant
modifications. First, the person to whom the danger must
objectively be open and obvious is Batts, not the user of the
forklift. Second, the defense is not an absolute bar, but, like in
ordinary negligence actions, is subject to comparative negligence.
Again, the cases on which Caterpillar relies deal exclusively
with employees who, unlike Batts, were injured while using the
source of the danger which caused their injury.28 The crucial
28
As we have observed, in Harrist, an employee working on an oil rig
was injured when he slipped and fell on stairs on the rig's
platform. Harrist, 140 So. 2d at 559. In Ward, a woman lost
several fingers cleaning a meat grinder manufactured by Hobart and
--34--
34
distinction between these cases and the instant case is that a
bystander is generally not aware of the dangers that are, or should
be, open and obvious to an owner, consumer or user.
Support for Batts' right to recover comes from premises
liability cases in Mississippi. These cases generally hold that
recovery for injuries resulting from open and obvious hazards is
not automatically barred, but rather goes to the jury on the
question of comparative negligence. Biloxi Regional Medical Center
v. David, 555 So. 2d 53, 56 (Miss. 1989); Goodwin v. Derryberry
Co., 553 So. 2d 40, 43 (Miss. 1989); Bell v. Bay St. Louis, 467 So.
2d 657, 664 (Miss. 1985).
In my opinion, the jury "charge as a whole leaves . . .
substantial and ineradicable doubt" that the jury was properly
guided in its deliberations. Hall v. State Farm Fire & Casualty
Co., 937 F.2d 210, 214 (5th Cir. 1991). The trial court neither
fully nor correctly instructed the jury as to the negligent design
or strict liability claims. See Crist v. Dickson Welding, Inc.,
957 F.2d 1281, 1287 (5th Cir. 1992). In my opinion, the jury
should have been instructed that if Batts' injuries resulted from
open and obvious hazards, his claims were not automatically barred,
but were to be weighed against his comparative negligence.
used by the woman and her husband in a small restaurant they owned
and operated. Ward, 450 F.2d at 1182. In Gray, as discussed
above, an ironworker foreman suffered injury when the butt end of
a crane's boom struck him while he supervised his crew in changing
sections on the boom. Gray, 771 F.2d at 871.
--35--
35
Moreover, as I read the record, there exists little evidence
of actual lack of due care on the part of Batts. He neither saw
nor apprehended the danger as it bore down upon him. In these
circumstances, I do not believe the federal courts should, nor the
Mississippi courts would, necessarily bar Batts' recovery on the
basis of an open and obvious defect to a user. Accordingly, I
would reverse and remand this case for a new trial under corrected
instructions.29
29
The concurrence suggests that, for the purposes of defining strict
liability in Mississippi, no real distinction exists between a
"consumer" and a "bystander." Similarly, for purposes of negligent
design, that opinion suggests "bystander" denotes "casual observer"
in determining to whom the danger should be open and obvious.
Regardless of the terminology, it seems to me that one in Batts'
posture lacks knowledge of the danger as open and obvious, as a
matter of law, by merely watching the general operation of the
forklift. The open and obvious danger comes about only when Batts,
or one similarly situated, might actually see the forklift while it
travelled backwards bearing down upon the person, inasmuch as this
machine carried no automatic warning sounds or signals.
--36--
36