Gean v. Cling Surface Co.

971 F.2d 642, 1992 U.S. App. LEXIS 20552, 1992 WL 198557

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 3, 1992
• Docket: No. 91-7098
• Status: Published

Opinions

JOHNSON, Senior Circuit Judge:

I. STATEMENT OF THE CASE

A workplace accident gave rise to this product liability case brought by Dannie Lee Gean and his wife, Mary Ann.¹ At the time of the mishap, Gean was employed by Diamond Shamrock Corporation to perform maintenance work. On May 30,1986, Gean was attempting to repair a conveyor belt manufactured by Uniroyal, Inc. and used by Diamond Shamrock to transport salt. The belt, which operated in a wet environment caused by the combination of steam and salt, had been slipping on the drive pulley manufactured by FMC Corporation. The covering on the pulley, known as “lagging,” was smooth rather than grooved. In wet environments, smooth pulleys cause chronic belt slippage, whereas grooved pulleys do not. The chronic slippage associated with smooth pulleys can be ameliorated temporarily, but not cured, by applying belt dressing to the underside of the belt while the conveyor is operating. During the application of belt dressing which was manufactured by Cling Surface Company (Cling) to the belt, Gean’s arm was caught in the conveyor. The conveyor pulled him a distance of approximately three to four feet to the nip point, where the belt establishes contact with the drive pulley. As a result, Gean suffered severe injuries necessitating the amputation of his arm and shoulder.

In federal district court, the Geans sued Uniroyal, FMC, and Cling, alleging various tort claims arising from the conveyor accident. The claims against Uniroyal were dismissed, and the case went tó trial with two defendants, FMC and Cling. The Ge-ans’ sole claim against FMC at trial proceeded under a failure-to-warn theory. After an eleven-day trial, the jury found Cling and FMC jointly liable for $4 million in compensatory damages. The jury also found Cling liable for $1 million in punitive damages.

After the district court entered judgment on the verdict, both defendants moved for judgment notwithstanding the verdict (JNOV) and, in the alternative, a new trial. The district court granted Cling’s motion for JNOV, but only as to the punitive damages. In the same order, the district court granted JNOV for FMC because the Geans had failed to establish both a duty to warn and proximate cause, but also granted an unconditional new trial to the Geans against FMC on a new theory — negligent design. The Geans had discovered and asserted the factual grounds for this theory late in the pretrial stage, and the district court had prohibited the theory from being asserted at trial. In its order granting JNOV and the new trial, the district court explained that it had prohibited the negligent-design theory for judicial economy and timeliness reasons, but that hindsight showed that negligent design was the Ge-ans’ only viable theory and, therefore, fairness dictated a new trial.² After the Geans amended their complaint to allege the negligent-design theory, FMC successfully moved for summary judgment.

On appeal, the Geans argue that the district court erred in granting FMC’s motion for JNOV on the failure-to-warn claim and its motion for summary judgment on the negligent-design claim.

II. ANALYSIS

This Court reviews JNOV orders de novo. Finch v. City of Vernon, 877 F.2d 1497, 1502 (11th Cir.1989). We “ ‘consider all of the evidence ... with all reasonable inferences most favorable to the [Geans]. If the facts and inferences point so strongly and overwhelmingly in favor of [FMC] that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motion is proper. On the other hand, if there is substantial evidence opposed to the motion ... the motion[ ] should be denied.’ ” Id. at 1501-02 (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc)).

The district court granted JNOV because it found that the Geans failed to present substantial evidence of a duty to warn and proximate cause. The Geans contend that the district court erred in both findings. FMC, however, argues that the district court’s findings were correct and further argues that JNOV was proper on its affirmative defense of assumption of risk.³

A. Duty to Warn

Under the Alabama Extended Manufacturers Liability Doctrine (“AEMLD”), the plaintiff must prove that the product was defective. Entrekin v. Atlantic Richfield Co., 519 So.2d 447, 449 (Ala.1987). A product is defective if it is marketed without a warning and is unreasonably dangerous when used as intended, unless the danger is open and obvious or known by the plaintiff. Id. See Casrell v. Altec Indus., 335 So.2d 128, 132-33 (Ala. 1976). The issue of defectiveness is usually one of fact and thus normally for the jury. Outlaw v. Firestone Tire & Rubber Co., 770 F.2d 1012, 1014 (11th Cir.1985) (reversed directed verdict “largely” because of one expert’s testimony, this Court reversed directed verdict). See Entrekin, 519 So.2d at 449; Casrell, 335 So.2d at 133. The Geans argue that the district court erred by holding that a reasonable jury could not conclude that FMC had a duty to warn Diamond Shamrock that smooth-lagged pulleys cause belt slippage when used in wet environments and that a grooved-lagged pulley is more appropriate in wet environments. We agree.

1. Intended Use

A jury could reasonably conclude that an intended use of the smooth pulley was as a drive pulley in a wet environment. A use is “intended” if it is one that the manufacturer could reasonably foresee. See Dunn v. Wixom Bros., 493 So.2d 1356, 1360 (Ala.1986) (approving jury instruction including such language). Dr. Douglas Muster gave expert testimony that, not only it is known in FMC’s industry that salt water is a common lubricant for conveyors, but that it was logical that the smooth pulley would be used as a drive pulley in a wet environment absent any warning about such misuse. Moreover, Mr. Philip Luman, an employee of the company that ordered the pulley from FMC for Diamond Shamrock, testified that the smooth pulley could be used in many ways, including as a drive pulley. Furthermore, FMC’s predecessor company participated in drafting a Convey- or Equipment Manufacturers Association Handbook that advocated the use of grooved, rather than smooth, pulleys in wet environments, which permits the reasonable inference that FMC’s predecessor was aware that smooth pulleys might be used in wet environments.

2. Unreasonable Danger

A reasonable jury could conclude that use of the smooth pulley in a wet environment is unreasonably dangerous. Dr. Mus-' ter testified that using a smooth pulley in a wet environment always leads to chronic slippage which cannot be corrected by routine maintenance, but may be temporarily addressed by application of belt dressing. Dr. Kenneth Laughery gave expert testimony that the activity that Gean was performing at the time of the accident was extremely hazardous. Further, the instructions that FMC sent with the pulley stated that maintenance on moving conveyors could cause injury, and a publication by the American National Standards Institute (ANSI) stated that maintenance generally should not be performed on moving conveyors. Finally, FMC’s counsel brought out on cross-examination Gean’s testimony that the nip point was one of the most dangerous areas on the conveyor and more importantly that, in retrospect, the application of bar belt dressing was “terribly dangerous.”

3.Lack of Knowledge of Danger

A reasonable jury could conclude that Gean was unaware of the danger posed and that such danger was not open and obvious. Gean himself testified that he was unaware of the danger of being pulled to the nip point from where he stood, three to four feet away. See, Entrekin, 519 So.2d at 450. Further, Dr. Laughery testified that Gean could not have understood the biomechanical forces created by the belt in question. Therefore, JNOV was not warranted on the defect element of AEMLD liability.⁴

B. Proximate Causation

With regard to proximate causation, the Geans bore the burden of proving that: (1) Diamond Shamrock would have read the warning and bought a grooved pulley instead of the smooth one involved in the accident, and Gean’s injuries would thereby have been avoided, Gurley v. American Honda Motor Co., 505 So.2d 358, 361 (Ala. 1987), (2) the failure to warn was not merely a “remote” cause, i.e., there was no intervening and independent cause, City of Mobile v. Havard, 289 Ala. 532, 268 So.2d 805, 810 (1972), and (3) Gean’s injury was a reasonably foreseeable result of the failure to warn, Graham v. Wal-Mart Stores, 529 So.2d 938, 939 (Ala.1988).

1. Read and Heed

Regarding the first requirement, Mr. Dennis Weber, the maintenance superintendent at Diamond Shamrock at the time of the accident, testified that he would have obeyed an instruction about the correct application of the smooth pulley. Mr. Weber also gave testimony from which a reasonable juror could infer that the smooth pulley would not have been purchased if Weber had been warned that more than routine maintenance would be required to keep it working properly. Moreover, the expert testimony given by both Dr. Muster and Dr. Laughery supported the reasonable inference that, had a grooved pulley been used, Gean’s injuries would have been averted.

2. No Intervening, Independent Cause

Concerning the second element, although Gean’s application of the belt dressing may constitute an intervening cause, there was significant evidence that it was not an independent cause. It is uncontroverted that the application of belt dressing was caused by the chronic slippage brought about by the use of the smooth pulley in the wet environment and that, prior to the chronic slippage, belt dressing had never been applied to the conveyor belt. From this evidence and the evidence supporting the reasonable inference that the failure to warn caused the chronic slippage, see supra Part II.B.l., the jury could reasonably have concluded that, but for the failure to warn, Gean would not have used belt dressing on the conveyor. Such a conclusion is tantamount to a finding that the belt dressing was not an independent cause of Gean’s misfortune. See Havard, 268 So.2d at 810.

3. Reasonably Foreseeable Result

With regard to the final requirement, there was substantial evidence that an accident like Gean’s was a reasonably foreseeable result of failing to warn of chronic slippage resulting from misuse of the smooth pulley. Dr. Muster testified directly to this issue, stating that, from FMC’s point of view, Gean’s injuries were the logical result of its failure to warn. Further, as we have already recounted there was substantial evidence regarding the foreseeability of applying bar belt dressing to a moving belt to address the chronic slippage caused by foreseeable misuse and the extremely hazardous nature of that activity. Hence, JNOV was not proper on proximate cause grounds.

C. Assumption of Risk

Assumption of risk is an accepted defense to liability under the AEMLD. Dennis v. American Honda Motor Co., 585 So.2d 1336, 1342 (Ala.1991). In order to establish assumption of risk, the defendant must prove that the plaintiff understood the danger involved. Slade v. City of Montgomery, 577 So.2d 887, 892 (Ala. 1991). The JNOV order cannot be justified on this ground because, as already shown, there was substantial evidence that Gean failed to appreciate, and was incapable of appreciating, the danger involved. See supra, Part II.A.3.

For the foregoing reasons, the district court’s order granting JNOV to FMC must be reversed. Furthermore, because the district court’s unconditional award of a new trial to the Geans depended squarely on the correctness of its disposition of the JNOV issue, the new trial order is also due to be reversed.⁵ Finally, we decline to reach the issue of the propriety of the summary judgment order because our reversal of the new trial order renders the summary judgment issue moot.

III. CONCLUSION

We REVERSE the district court’s order granting FMC’s motion for JNOV and awarding the Geans an unconditional new trial, and REMAND with instructions to reinstate the judgment on the verdict. See Wilson v. S & L Acquisition Co., 940 F.2d 1429, 1441 (11th Cir.1991).

1 . References in this opinion to "Gean” apply solely to Mr. Gean.

2 . Pending Cling’s appeal, the Geans and Cling entered into a pro tanto release for $3.3 million.

3 . FMC also argues that JNOV was proper on a fourth ground, contributory negligence. However, all of the authority that FMC cites in support of its contributory negligence argument addresses only assumption of risk which, under Alabama law, is a subspecie of contributory negligence. See Cooper v. Bishop Freeman Co., 495 So.2d 559, 563 (Ala.1986). Therefore, we address only the assumption-of-risk argument.

4 . FMC also argues that, even if it had a duty to warn, it discharged that duty by issuing instructions that informed Diamond Shamrock not to service the pulley while the conveyor is moving. Such instructions, however, are irrelevant to the Geans’ theory that there should have been a warning about misuse of the smooth pulley in a wet environment and the attendant, chronic belt slippage. Moreover, even if FMC’s instructions were relevant, in the words of Dr. Muster, they were "platitudinous” because certain maintenance procedures, including applying belt dressing to the Diamond Shamrock conveyor, required the conveyor to be moving.

5 . The new trial was ordered because the district court concluded that negligent design was the Geans’ only viable theory. Because we find that the failure-to-warn theory was also viable, the asserted ground for awarding a new trial no longer exists.