Billy G. Greenwood v. McDonough Power Equipment, Inc.

731 F.2d 690
CourtCourt of Appeals for the Tenth Circuit
DecidedMay 9, 1984
Docket80-1698
StatusPublished
Cited by11 cases

This text of 731 F.2d 690 (Billy G. Greenwood v. McDonough Power Equipment, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Billy G. Greenwood v. McDonough Power Equipment, Inc., 731 F.2d 690 (10th Cir. 1984).

Opinions

OPINION ON REMAND

BARRETT, Circuit Judge.

Billy G. Greenwood (Billy), a minor, by and through his parents, John and Freda Greenwood (Greenwoods) appeals from an adverse jury verdict and related judgment in a products liability action predicated upon strict liability. Jurisdiction rests upon diversity of citizenship. The facts will be discussed only insofar as relevant for purposes of our decision.

On May 25, 1976, Jeff Morris, thirteen years of age, was mowing the Morris yard, pursuant to his father’s instructions, on a riding mower manufactured by appellee, McDonough Power Equipment, Inc. (McDo-nough). Jeff had previously operated the mower approximately thirty hours over a three to four year period.

On this particular day, Troy Greenwood, Billy’s older brother, was riding on the mower with Jeff. The Morrises and Green-woods were next door neighbors. While operating the mower, Jeff watched the left front wheel to make certain that he was getting an even cut. Jeff was aware that Billy, two years of age, and several other children, were playing at and around a swing set in the back yard, approximately twenty-five feet from the area where he was mowing.

While Jeff was mowing the yard, Billy, undetected by Jeff, approached the mower to pick up a doll in the path of the mower. Immediately prior to the accident, Jeff, upon realizing that Billy was in the path of the mower, shouted “watch out!” Fearing that he could not stop before hitting Billy, Jeff turned the mower to the right to avoid hitting Billy. During the course of the turn, the left front tire of the mower went over Billy’s left foot. Billy subsequently kicked at the mower with his right foot but both feet went under the mower where they contacted the mower blade, resulting in the loss of both feet.

At the time of the accident, Freda Greenwood was in her home doing housework. Although she was aware that Troy and Billy were playing in the Morris’ yard, she was unaware that Jeff was mowing the yard until Troy notified her óf the accident.

Within their complaint, the Greenwoods alleged that (1) the mower was of defective design and workmanship, and negligently constructed (2) the defects of the mower were hidden and latent and could not be discovered by general observation or superficial examination (3) the defects were due to McDonough’s negligence (4) the mower was not fit for its intended purpose (5) Billy sustained permanent disability and (6) that, as Billy’s parents, they sustained severe emotional shock and damages.

[692]*692Within its answer, McDonough denied that the mower was negligently or improperly designed or that it was unfit for its intended use. McDonough also alleged that the combined negligence of Ira Morris, as the owner of the mower, and Jeff Morris, as the operator of the mower, and that of John and Freda Greenwood, caused the injuries and damages to Billy.

Following several pretrial motions, the case proceeded to trial on the basis of strict liability. The Greenwoods alleged that the mower was defective because (1) the blade was below the deck of the mower (2) the blade bar, as manufactured, was not within McDonough’s manufacturing tolerances thus causing the blade level to be below the deck, aggravating the injury to the left foot (3) the blade was improperly designed (4) the blade brake-clutch was defectively designed in its failure to provide a deadman control for stopping and (5) the blade brake-clutch was defectively designed in durability.

The trial extended over a three-week period. The parties presented substantial evidence supportive of their respective contentions. McDonough’s defense throughout trial was that the mower was not negligently designed and that the combined negligence of the Morris’ and Greenwood’s gave rise to the accident and injuries sustained by Billy. The trial court’s instructions to the jury included Instruction No. 8 on strict liability:

Even though you'may find and believe that the defendant exercised all possible care with regard to the product, under the strict liability theory defendant is legally at fault and therefore liable for plaintiff’s injuries if the product was defective and unreasonably dangerous when it left defendant’s control and the defective condition caused, in whole or in part, plaintiff’s injuries.
A defendant may be liable under the strict liability theory if the product was defective and unreasonably dangerous and the defective condition caused plaintiff’s injuries even though plaintiff did not buy the machine or enter into any contractual relation with defendant.
(R., Vol. II at p. 296).

The jury, in accordance with the law of Kansas, was allowed to compare the fault of McDonough, Jeffrey Morris, Ira Morris, and Freda Greenwood. The jury returned a verdict finding McDonough, 0% negligent, Jeffrey Morris, 20% negligent, Ira Morris, 45% negligent, and Freda Greenwood, 35% negligent. The jury also assessed damages at $0.00. Upon being instructed by the trial court that inasmuch as Billy had lost both feet he had definitely suffered some damages, the jury reconvened for further deliberations, and found that Billy had been damaged in the amount of $375,000.00. The district court thereafter entered judgment that Billy take nothing, that the action be dismissed on the merits, and that McDonough recover its costs.

On appeal, the Greenwoods contend the trial court erred, inter alia, in (1) denying their motion to approach the jurors and in denying leave to subpoena the jurors to give testimony at the hearing on plaintiffs’ motion for a new trial, and (2) in admitting McDonough’s expert testimony that the blade bar was not that shipped with the machine, inasmuch as McDonough failed to provide said information in interrogatory responses.

I.

The Greenwoods contend the district court erred in denying their motion to approach the jurors and in denying leave to subpoena the jurors to give testimony at the hearing on their motion for a new trial. The Greenwoods also contend they are entitled to a new trial for juror misconduct.

The judgment against Billy and in favor of McDonough was entered on April 25, 1980. On April 29, 1980, the Greenwoods filed a motion to approach the jurors contending:

In support of this Motion, plaintiff shows to the Court:
[693]*6935. That plaintiffs are of recent information and belief that the jury foreman’s, Mr. Payton, son may have been injured at one time, which fact Mr. Pay-ton did not state in response to juror voir dire questions.
(R., Vol. II at p. 325).
During his voir dire, counsel for the Greenwoods related:
Now the judge asked you about facts of the accident. There were several newspaper articles about four years ago. This accident occurred at Cullen Village out just south of town and involved loss of both feet to young Mr. Billy Greenwood ____
(R., Vol. XXI at p. 37).

Thereafter, the district court, in its voir dire, asked the prospective jurors:

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