Fischer v. Red Lion Inns Operating L.P.

972 F.2d 906, 1992 U.S. App. LEXIS 18658, 1992 WL 191312
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 13, 1992
DocketNo. 91-2343
StatusPublished
Cited by3 cases

This text of 972 F.2d 906 (Fischer v. Red Lion Inns Operating L.P.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fischer v. Red Lion Inns Operating L.P., 972 F.2d 906, 1992 U.S. App. LEXIS 18658, 1992 WL 191312 (8th Cir. 1992).

Opinion

BEAM, Circuit Judge.

Pepsi Cola Bottling Company of Omaha (Pepsi) appeals from a jury verdict finding it liable for injuries suffered by Fischer due to an electric shock he received while operating one of Pepsi’s vending machines. Pepsi alleges that: 1) the trial court erred in instructing the jury that Pepsi had a duty to inspect its vending machine for defects; 2) if a duty to inspect did exist, there was insufficient evidence to present the issue of inspection to the jury because Fischér failed to prove what would constitute a reasonable inspection;' 3) the evidence was insufficient to support a finding of proximate cause; 4) the trial court effectively and improperly instructed the jury that Pepsi was an insurer against all possible injuries to persons who came in contact with its vending machine; and 5) the trial court erred in not directing a verdict in its favor. We affirm the district court.

I. BACKGROUND

On March 4,1987, Fischer was in Omaha, Nebraska attending a seminar, and was a guest at the Red Lion Inn. At the end of the seminar’s first day, Fischer returned to the hotel for a swim. Following his swim, Fischer visited the eleventh floor of the Red Lion to purchase a pop from the vending machine. Fischer was still wearing his wet swimming trunks and was barefoot. [908]*908As he inserted his money into the vending machine, an electrical current passed through the trunk of his body. Fischer returned to his hotel room and reported the incident to the service desk. Later that evening Fischer experienced a burning sensation while urinating.

Upon his return home, Fischer began experiencing pain during as well as difficulty sustaining an erection. This led to problems with his sexual relationship with his wife. When his condition persisted, he sought medical treatment.

Responding to a call by Red Lion, James Renner, a service technician employed by Pepsi,, inspected the vending machine on March 9, but found nothing wrong. At the time he performed his inspection, Renner was wearing tennis shoes with rubber soles. Renner then called John Gruebel, Pepsi’s service foreman, and asked him to check the machine to see if he, Renner, had missed anything.

On March 11, Gruebel inspected the machine and received an electrical shock when he inserted his key to open it. Gruebel unplugged the machine, followed the power cord from the electrical socket to the rear of the machine, and found that the cord was resting underneath the machine’s metal cabinet. He noticed that the power cord’s metal conducting wires were exposed and came into contact with the machine’s cabinet. Gruebel replaced the power cord and threw away the damaged cord.

II. DISCUSSION

A. Directed Verdict and Sufficiency of the Evidence

A motion for a directed verdict cannot be granted unless the opposing party failed to make a case as a matter of law. See Schneider v. Chrysler Motors Corp., 401 F.2d 549, 554 (8th Cir.1968). The directed verdict motion raises the question of the sufficiency of the evidence to support a jury verdict. Id. The Nebraska standard for evaluating the sufficiency of the evidence is substantially similar to the federal standard. Lord v. Wilkerson, 542 F.2d 1034, 1035 (8th Cir.1976); Schneider, 401 F.2d at 555.

“A motion for a directed verdict should be granted ‘only when all the evidence points one way and is susceptible of no reasonable inferences sustaining the position of the nonmoving party.’ ” Lord, 542 F.2d at 1035 (quoting Barclay v. Burlington Northern, Inc., 536 F.2d 263, 267 (8th Cir.1976)). Where the evidence presented allows reasonable persons “in a fair exercise of their judgment to draw different conclusions,” the directed verdict motion is properly denied. Giordano v. Lee, 434 F.2d 1227, 1231 (8th Cir.1970), cert. denied, 403 U.S. 931, 91 S.Ct. 2250, 29 L.Ed.2d 709 (1971).

In addition to the testimony outlined above, Pepsi’s service foreman, Gruebel, testified that he saw damaged power cords on Pepsi’s vending machines about nine or ten times a year, and that the service department received complaints that a vending machine was causing electrical shocks about once or twice a month. Gruebel also testified that on the day Fischer was electrically shocked, Pepsi had no policy for periodically inspecting the electrical parts of vending machines. Given this testimony, the jury could reasonably conclude that Pepsi was aware that its machines could cause injury, and that Pepsi was negligent in not inspecting its machines. It is unnecessary that “the particular injury or precise form of the injury ... be perceived or foreseen, but if there is some probability of harm sufficiently serious that an ordinary reasonable person would take precautions to avoid it[,] then failure to take such care is negligence.” Schneider, 401 F.2d at 556-57.

Relying on Pendleton Woolen Mills v. Vending Assoc., Inc., 195 Neb. 46, 237 N.W.2d 99 (1975), Pepsi contends that it had no duty to inspect its vending machine. In Pendleton, a defective valve in a vending machine leaked water and syrup, causing damage to the building it was housed in and to some machinery within the building. The Nebraska Supreme Court reversed a lower court finding of liability because “of a total lack of evidence establishing ... [909]*909negligence.” Pendleton, 237 N.W.2d at 102. The court stated:

Although there was no evidence of any “wornout” parts in the machine, ... it is possible that such a part, which could not be located by the repairman or the route-men, in the course of any reasonable inspection, malfunctioned and caused the leakage. The burden was upon the ap-pellee to establish by a preponderance of the evidence that inspection of the machine or of the shut-off valve would have revealed such a defect, and would have prevented the leakage which occurred. •

Id. at 103. Contrary to Pepsi’s assertion, Pendleton does not stand for the proposition that Pepsi had no duty to inspect. Instead, the quoted passage implies that where evidence of a defect is produced and a repairman or routeman through reasonable inspection could have discovered the defect, a finding of liability for a failure to inspect may be proper. Here, uncontro-verted testimony of a defective power cord was introduced. Additionally, Gruebel testified that he discovered the cord by simply moving the machine and following the cord from the electrical outlet to the rear of the machine’s cabinet. This evidence is sufficient to answer the Pendleton court’s objections concerning liability.

Pepsi next argues that even if they had a duty to inspect,1 their failure to do so was not the proximate cause of Fischer’s injuries. Proximate cause “is that cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred.” Travelers Indem. Co. v. Center Bank,

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Fischer v. Red Lion Inns Operating
972 F.2d 906 (Eighth Circuit, 1992)

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Bluebook (online)
972 F.2d 906, 1992 U.S. App. LEXIS 18658, 1992 WL 191312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fischer-v-red-lion-inns-operating-lp-ca8-1992.