Ammons v. Massey-Ferguson, Inc.

663 So. 2d 961, 1995 Ala. LEXIS 295, 1995 WL 396894
CourtSupreme Court of Alabama
DecidedJuly 7, 1995
Docket1940038
StatusPublished
Cited by14 cases

This text of 663 So. 2d 961 (Ammons v. Massey-Ferguson, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ammons v. Massey-Ferguson, Inc., 663 So. 2d 961, 1995 Ala. LEXIS 295, 1995 WL 396894 (Ala. 1995).

Opinion

663 So.2d 961 (1995)

Carmen Ray AMMONS
v.
MASSEY-FERGUSON, INC.

No. 1940038.

Supreme Court of Alabama.

July 7, 1995.

James H. Tipler of The Tipler Law Offices, Andalusia, for appellant.

Peter V. Sintz of Sintz, Campbell, Duke & Taylor, Mobile, for appellee.

*962 PER CURIAM.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(A), Ala. R.App.P.

MADDOX, ALMON, SHORES, and COOK, JJ., concur.

HOUSTON, J., concurs specially.

BUTTS, J., dissents.

HOUSTON, Justice (concurring specially).

The plaintiff appeals from a judgment based on a directed verdict for the defendant manufacturer of a tractor. The plaintiff sought damages based on the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), alleging that the tractor was defective. The tractor was owned by Covington County; the plaintiff, who was an employee of the county, was injured while operating the tractor, when he was hit either by a tree branch or by an object thrown by a mower being drawn by the tractor.

The sole issue presented on appeal is whether the trial court abused its discretion in refusing to allow Herbert Bogert to testify as an expert witness. "[W]hether a particular witness will be allowed to testify as an expert is left to the sound discretion of the trial court, whose decision will not be disturbed on appeal except for abuse of that discretion." Townsend v. General Motors Corp., 642 So.2d 411, 423 (Ala.1994).

The record reveals the following colloquy between the trial court, Bogert, and the attorneys:

"The Court: What do you know that the folks in the jury box don't know about whether or not this tractor should have been guarded?
"Witness: Well, from the point of view, from a safety manufacturer's point of view, that when a condition of hazard exists, is known to exist, and is readily remediable and that is something can be done that is relatively economical, that is relatively disruptive [sic] to the machine, and practical without redesigning equipment and all of that, then it should be done.
"Well, from the point of view that a manufacturer has, for an obligation from a safety point of view, I am not talking about the legalities here, I am not a legality person. But from the point of view of a safety man, if I was serving as a consultant to a manufacturer in that situation, one of the things that I would recommend is that they make available, and openly available, knowledge of the fact that this tractor should be equipped and we have the device available and/or preferably build it on just as they have the roll bar, that becomes a standard part of the equipment.
"I am talking about a shield that goes between the vertical post of the roll bar that will stop material flying through and hitting a person. That is not a complicated thing I have to agree.
"The Court: That's what I'm asking you, what do you know about it that they don't know? You haven't told me yet.
"Witness: Well, maybe that is one of the problems in the safety business. Most things, once people put their mind to thinking about it, become obvious. A [safety man's] job, so many times, is to point out those things that ah, yeah, I see what you mean.
"My point in this is, where I fit into the picture, is bringing up a remedy, a means and method by which this particular type of an injury could have been prevented. And would have been prevented if such a grill work in the back had been installed [on] this tractor. Now the best way to have such a thing available is through a manufacturer.
"The Court: Why is that?
"Witness: Because first of all any retro-fit type of thing normally is not as well tailored to the dimensions, the mounting capability—
"The Court: You talking about a piece of expanded metal?
"Witness: Basically, yes.
"The Court: How wide does it have to be?
"Witness: In this situation it could come from the roof area above down.
*963 "The Court: From the top of the [rollover structure]?
"Witness: Yes.
"The Court: All the way down?
"Witness: Preferably all the way down. There are sometimes limitations as to how far down it could come, but it could certainly come down to as low or below the seat, which protects the main body of a person. And this particular case has a plug in for hydraulic lines, because the equipment in the back is down low, but at a level that is below where the protection is to be added.
"The Court: So how many people get hurt each year by objects thrown from a bush hog ["Bush Hog" is the trade name of a large mower generally drawn by a tractor. The term "bush hog" is often used generally for such mowers and as a verb indicating the use of such mowers.]?
"Witness: That of course is one of the questions that I cannot give an exact answer on.
"The Court: Well, if it was one person would you recommend that the entire industry put expanded metal on every machine they sell that might possibly be used for bush hogging?
"Witness: Well, first of all I know it is more than one.
"The Court: No, you don't. You don't know how many it is.
"Witness: Well, I know of two. I'm one of them. But my point is, over the years I have been in the safety business I have known of many people who have been hit by materials flying out of mowers and hitting them in the back, hitting them in the arms, back of the neck, back of the head.
"The Court: Are we talking about bush hogs or mowers?
"Witness: No, bush hog type of mowers, rotary mowers.
"The Court: You have known of a lot of drivers being hit by things?
"Witness: Yes, I have.
"The Court: How many drivers do you know of that received serious injuries as a result of that?
"Witness: I don't know of any of them that have gotten a serious enough of injury to become an issue of litigation, no. But I have known of many people who have been hit and injured, yes. But now the severity of an injury is where the issue of chance comes in. The frequency or the occurrence of the injuries is what a safety man works on.
"The Court: How many people do you know that have gotten hurt because they were bush hogging and an object, which was not thrown but was in the path of the bush hog, came through the back of the tractor and hit them? Not thrown?
"Witness: I have known several. I guess in the realm of a couple of dozen. There again, myself being one of them.
"....
"Witness: Well, when known hazards exist, corrective measures should be taken.
"The Court: Are you saying that any hazard has to be corrected regardless of how often an accident happens or regardless of what it takes to correct it?
"Witness: Well, from a safety man's point of view if accidents are occurring, the tolerance level is zero.
"The Court: So are you telling me that if a machine causes, or is involved in an accident where somebody is hurt, that that machine is unreasonably dangerous?

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Cite This Page — Counsel Stack

Bluebook (online)
663 So. 2d 961, 1995 Ala. LEXIS 295, 1995 WL 396894, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ammons-v-massey-ferguson-inc-ala-1995.