IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 91-1577 ____________________
BILLY H. TONEY,
Plaintiff-Appellant,
versus
KAWASAKI HEAVY INDUSTRIES, LTD., ETC., ET AL.,
Defendant-Appellee.
__________________________________________________________________
Appeal from the United States District Court for the Southern District of Mississippi
__________________________________________________________________ (October 7, 1992)
Before JOLLY and DUHÉ, Circuit Judges, and PARKER, District Judge.*
E. GRADY JOLLY, Circuit Judge:
Billy H. Toney was riding a Kawasaki motorcycle when he was
struck by an automobile that crushed his leg, which later had to be
amputated. He sued Kawasaki under various theories of strict
liability and negligence, primarily asserting that the motorcycle
was defective because it lacked leg guards. We hold that under the
applicable Mississippi law, the consumer expectations test applies
in product liability cases, and because the alleged defect and
danger were open and obvious to the ordinary consumer, the
* Chief Judge of the Eastern District of Texas, sitting by designation. motorcycle was not "unreasonably dangerous." Similarly, because
the danger was open and obvious to a casual observer, Toney is
barred from recovery on his negligence claim. The district court's
dismissal of Toney's complaint is, consequently, affirmed.
I
On August 16, 1985, Toney purchased a used Kawasaki 750
motorcycle from an individual. The motorcycle was designed and
manufactured by Kawasaki Heavy Industries, Ltd. (KHI), a Japanese
corporation; Kawasaki Motor Corporation is a Delaware corporation
that distributes KHI products in the United States (we refer to
both simply as "Kawasaki"). On the very next day, August 17, 1985,
Toney was struck from the side by a truck while riding his
motorcycle on an open highway. He suffered severe injuries in the
collision that later necessitated the amputation of his left leg.
II
On April 11, 1989, Toney filed suit in the Circuit Court of
Smith County, Mississippi. Kawasaki removed the case to federal
district court invoking diversity jurisdiction. Toney asserted
negligence, strict liability, and breach of warranty claims against
the appellees. Specifically, he alleged that the Kawasaki
motorcycle was not equipped with leg protection devices as
reasonable care would require, that the product was unreasonably
dangerous, and that the appellees failed to adequately warn users
of the motorcycle about the potential danger. Kawasaki moved for
summary judgment asserting that the risks associated with the use
-2- of a motorcycle not equipped with leg protection features were open
and obvious, and that the plaintiff's claims were barred as a
matter of law.
The district court held that there was no genuine issue of
material fact and granted Kawasaki summary judgment as a matter of
law. The court first considered whether the defendants were
strictly liable for a design defect in the motorcycle or for the
failure to warn users of the motorcycle about potential dangers
associated with the use of the product. The court found no merit
in the plaintiff's strict liability claims, because the risks to a
rider's legs were patently obvious to any ordinary consumer. The
court further held that appellant's negligence and breach of
warranty claims were similarly barred by the "open and obvious"
defense. This appeal followed.
III
In reviewing the trial court's grant of summary judgment, this
court applies the same standard as the trial court, viewing the
facts in the light most favorable to the nonmoving party. Federal
Deposit Ins. Corp. v. Hamilton, 939 F.2d 1225, 1228 (5th Cir.
1991). We decide questions of law de novo. Walker v. Sears,
Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988). Summary judgment
is proper if the pleadings, depositions, admissions, and other
summary judgment evidence demonstrate that there is no genuine
issue of material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v.
-3- Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Brown v.
Southwestern Bell Tel. Co., 901 F.2d 1250, 1255 (5th Cir. 1990).
IV
In order to recover under a theory based on Mississippi
product strict liability law, the injured plaintiff must show that
the product was "in a defective condition unreasonably dangerous."
Melton v. Deere & Co., 887 F.2d 1241, 1243 (5th Cir. 1989) (quoting
Restatement (Second) of Torts, § 402A (1965) as cited in State
Stove Mfg. Co. v. Hodges, 189 So.2d 113, 118 (Miss. 1966)); Gray v.
Manitowoc Co., 771 F.2d 866, 868-69 (5th Cir. 1985). Mississippi
has adopted the objective "consumer expectations" test to determine
whether a product is unreasonably dangerous and therefore
defective. Melton, 887 F.2d at 1243; Toliver v. General Motors
Corp., 482 So.2d 213, 218 (Miss. 1985). Thus, the plaintiff must
establish that the product was "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." Restatement (Second) of Torts § 402A, Comment i
(1965) (emphasis ours). Furthermore, in a product liability
action, "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, 887 F.2d at 1243.
In Gray, we examined the genesis and development of product
liability law in Mississippi and concluded that "the patent danger
-4- bar adopted by the Restatement was incorporated into Mississippi's
doctrine of strict liability." Gray, 771 F.2d at 868-70. We then
concluded that Gray could not maintain his strict liability action
because the defect he complained of was open and obvious and no
"reasonable jury [could] have concluded that the [product] was
dangerous to a degree not anticipated by the ordinary consumer of
that product." Id. at 871. Thus it is clear that Mississippi law
dictates that a manufacturer cannot be held liable for injuries
caused by dangers arising from either a defective design or a sound
but unavoidably dangerous design so long as the hazard is open and
obvious "to a casual observer." Our court follows this rule. Id.
at 870; Melton, 887 F.2d at 1243.
The case of Toliver v. General Motors Corporation illustrates
the application of these principles by the Mississippi court. In
Toliver, the Mississippi Supreme Court observed that "[i]n the
context of fuel tank design, obviously the plaintiff contemplated
that the automobile which he purchased had a fuel tank affixed to
it, which could become dangerous under some circumstances."
Toliver, 482 So.2d at 218. The Mississippi court then pointed out
that the fact the fuel tank was dangerous was not a sufficient
basis for Toliver to recover. More was required: Toliver had to
show that the placement of the tank was "defective: . . . below the
standard of automotive design contemplated by the user, and, thus,
. . . unreasonably dangerous." Id. In other words, the danger
from the fuel tank of an automobile was open and obvious; however,
-5- the danger presented by the design and placement of the fuel tank
was not. Consequently, if the design and/or placement were
defective and unreasonably dangerous, Toliver would have been
entitled to recover, notwithstanding the obvious danger generally
presented by the gas tank of an automobile.2
Similarly, under Mississippi negligence law it has also been
long established that if the hazard of an allegedly defective
design is "apparent and obvious to a casual observer," then the
injured plaintiff may not recover on a negligence theory. Harrist
v. Spencer-Harris Tool Co., 244 Miss. 84, 140 So.2d 558, 561
(1962). In Harrist, the Mississippi Supreme Court held that
Harrist could not recover for injuries received because of an
allegedly defective design because "[i]f we assume there were
defects, we think they were apparent and obvious to a casual
observer." Harrist, 140 So.2d at 561 (emphasis ours). The court
then elaborated: "No duty rests upon a manufacturer or seller to
warn a purchaser of a dangerous design which is obvious. If this
were not true, a manufacturer could not design and sell a pocket
knife, axe, planer or gun." Id. at 562 (emphasis ours). We
2 In the event the product was shown to be unreasonably dangerous, Toliver's recovery could nevertheless have been barred if the jury found that he had assumed the risk, a defense that would be based on his subjective knowledge, Alexander v. Conveyors & Dumpers, Inc., 731 F.2d 1221, 1223-24 (5th Cir. 1984), or reduced if he was comparatively negligent, Braswell v. Economy Supply Co., 281 So.2d 669, 676 (Miss. 1973). If the two defenses overlap, comparative negligence applies. Braswell, 281 So.2d at 677.
-6- explained in Gray that "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.
As to breach of warranty claims, the Mississippi Supreme Court
held in Harrist:
According to the majority view, a general warranty does not extend to open and visible defects in the quality or condition of goods sold, although they are inconsistent with the warranty.
. . . It has been stated that neither a general nor an implied warranty covers external and visible defects which are plain and obvious to the purchaser upon mere inspection with the eye.
Harrist, 140 So.2d at 561 (quoting 41 Am. Jur. Sales § 377 (1957)).
The plaintiffs cite no authority to the contrary.
Thus, in Mississippi, an injured plaintiff is barred from
recovering for injuries resulting from a product's open and obvious
dangers, e.g., one attributable to an automobile gas tank; if,
however, the particular hazard is not open and obvious, e.g., one
attributable to the design and placement of the gas tank, the
-7- plaintiff is not barred from recovery.3 With these standards in
mind, we turn to examine Toney's claims.
V
A
Toney first urges us to apply the holding of Toliver v.
General Motors Corp., 482 So.2d 213 (Miss. 1985), to the case sub
judice. The Mississippi Supreme Court held in Toliver that it
would impose strict liability in tort, in accordance with Section
402A, Restatement (Second) of Torts (1965), upon automobile
manufacturers who design vehicles in such a way that they are
unreasonably dangerous, allowing recovery for "second impact" type
3 As in many areas of the law, there is no bright line rule delineating products that present an open and obvious danger and those which are unreasonably dangerous. It is clear, however, that whether a product presents an open and obvious danger barring recovery is, in the first instance, a question of law for the court. See, e.g., Melton v. Deere & Co., 887 F.2d 1241, 1244 (5th Cir. 1989) (court decided that danger presented by product was open and obvious and barred plaintiff from recovery); Harrist v. Spencer-Harris Tool Co., 244 Miss. 84, 140 So.2d 558, 561 (1962). If, as a matter of law, the danger is open and obvious, it follows that the product is not "unreasonably dangerous" under Mississippi's consumer expectations standard. Melton, 887 F.2d at 1243. Conversely, if the danger is not open and obvious as a matter of law, whether the product is "unreasonably dangerous" is for the jury. E.g., Dunson v. S.A. Allen, Inc., 355 So.2d 77, 79 (Miss. 1978). In the event these issues are submitted to the jury, there is some authority in our Circuit that indicates that the jury may consider the extent of the product's open and obvious danger as a factor in deciding whether the product was "unreasonably dangerous." Lloyd v. John Deere Co., 922 F.2d 1192, 1195 (5th Cir. 1991); Ward v. Hobart Mfg. Co., 450 F.2d 1176, 1187 (5th Cir. 1971).
-8- injuries. Id. at 215.4 Given the Mississippi court's application
of Section 402A in Toliver, it is our Erie guess that it would
apply the same test to an alleged motorcycle design defect: is the
design of the motorcycle defective--did it fall below the standard
of motorcycle design contemplated by the ordinary consumer and,
thus, become unreasonably dangerous to him? Toliver, 482 So.2d at
218. In this case, however, the application of the test set out in
Toliver is of little help to Toney.
As we have earlier noted, in Toliver the fuel tank's placement
and design were not apparent to the owner, to a casual observer or
to the ordinary consumer, all of whom had to rely on the
manufacturer's judgment. The contrary is true of the Kawasaki
motorcycle involved in this case. The ordinary consumer could see
that this motorcycle had no leg protection and, thus, could fully
appreciate the motorcycle's design and its open and obvious
dangers. Therefore, the motorcycle was not in a "defective
condition . . . `a condition not contemplated by the ultimate
consumer, which will be unreasonably dangerous to him.'" Toliver,
482 So.2d at 218 (quoting Restatement (Second) of Torts, § 402A,
cmt. g). Under Mississippi law, he was, therefore, barred from
4 A defect in design or manufacture that does not minimize injury is viewed as making the automobile "unreasonably dangerous," and thus as a cause of the injury, and, therefore, justifies imposition of liability on the manufacturer. See, e.g., Toliver at 214-15.
-9- recovery on both his negligence and his product liability claims.
Melton, 887 F.2d at 1243-44; Harrist, 140 So.2d at 561.
Citing Dunson v. S.A. Allen, Inc., 355 So.2d 77 (Miss. 1978),
Toney argues that a jury question exists concerning the design
standard, even if any danger is open and obvious, when the
manufacturer is aware of a method of alleviating a danger presented
by a product, but does not incorporate it into the design. In
Dunson, the product was a tree shear (made by Allen to be installed
on other manufacturers' tractors) designed to cut trees and hold
them while the tractor transported the cut tree to the point where
it was to be stacked for further handling. The shear had
malfunctioned, on occasion, allowing the cut tree to fall out of
its grasp. One brand of tractor was made with a shield which
protected the operator. The brand of tractor involved in Dunson's
suit, a Case, did not have a shield, and Allen knew this. As the
Mississippi Supreme Court stated,
[the] case involve[d] the question of whether the manufacturer of a product can be held strictly liable in tort when such product is intended to be used only in conjunction with a second product and when so combined, the combination of the two is unreasonably dangerous and could only be remedied by changes or adjustments to the second product.
Id. The court held that "the allegations . . . and the evidence
are sufficient to create a jury issue as to whether the product was
defective or unreasonably dangerous when it was attached to the
Case Uniloader." Id. at 79.
-10- A close reading of Dunson reveals there was a danger known to
Allen, the manufacturer: the shear would sometimes, without any
act of the operator, suddenly release a cut tree; Allen knew the
falling tree could possibly strike the operator; one tractor
manufacturer installed a shield to protect the operator but Allen
knew Case did not. The danger presented by the defective shear was
not "apparent and obvious" to the operator; consequently, the
design was unreasonably dangerous because the operator had no
expectation that the shear would release the cut tree and allow it
to fall on him. If the "ultimate consumer" had considered the
possibility, he would have expected the manufacturer to design the
shear so that the operator would be shielded.
In this case, there is no dispute that the motorcycle
functioned properly as a motorcycle; nor is there any dispute that
both the lack of leg protection and the hazard it presented were
"apparent and obvious to a casual observer," and were also open and
obvious to the "ordinary consumer . . . with the ordinary knowledge
common to the community as to its characteristics." Melton, 887
F.2d at 1243-44; Harrist, 140 So.2d at 561. In short, an ordinary
consumer would fully appreciate the danger that, if an automobile
struck the side of the motorcycle, the rider's leg would be
ruinously crushed. The danger of the product thus revealed and
appreciated, it was not an unreasonably dangerous product for a
manufacturer to market, nor may Toney complain that the design was
-11- negligent. Recovery is barred under Mississippi law. Melton, 887
F.2d at 1246; Gray, 771 F.2d at 868, 870.
B
Toney next asserts that the district court erred in failing to
consider his subjective state of mind in determining whether the
danger presented by the design of his motorcycle was patent or
latent. Toney's affidavit and deposition testimony were included
in the evidence considered by the trial court. He testified that
he did not appreciate the danger involved in riding a motorcycle
without any leg protection features. He now contends that the
court should have considered his subjective state of mind, rather
than employing the objective consumer expectations test. He makes
similar arguments equating the "open and obvious" defense with the
defense of assumption of risk, measured by a subjective standard
under Mississippi law, Alexander, 731 F.2d at 1223, and with
comparative negligence. He also argues that the "open and obvious"
defense should be tested against the plaintiff's subjective
knowledge of available alternative designs, and the plaintiff's
subjective belief that he is using the product in a safe way even
though it presents a clear hazard. He also asserts these arguments
with respect to his negligence and implied warranty claims.
Notwithstanding Toney's arguments, the indisputable fact
remains that the Mississippi Supreme Court has adopted an objective
test of "consumer expectations" for claims under Section 402A.
Melton, 887 F.2d at 1243; Gray, 771 F.2d at 870. The test is the
-12- objective measure of the expectations of the generic "consumer" who
has "ordinary knowledge common to the community." Gray, 771 F.2d
at 870 (citing Ford Motor Co. v. Matthews, 291 So.2d 169 (Miss.
1974)) (emphasis ours). For negligent design and warranty claims,
a similar objective test is used: was the defect or danger
"apparent and obvious to a casual observer [?]" Gray, 771 F.2d at
868 (citing Harrist, 140 So.2d at 561).
To be sure, Toney's personal knowledge and expectations have
little relevance to the issues presented in this litigation. The
question in product strict liability cases is not whether the
product is unreasonably dangerous to a given individual, nor is it
whether a particular individual has bargained for a particular
danger. Modern products are sold by the millions in markets
comprising a cross section of the population and therefore are used
by people with varying levels of education, experience, and
ordinary common sense. The question is whether the manufacturer
has released to the general public a product that is "unreasonably
dangerous." Restatement (Second) of Torts, § 402A (1965). The
focus in product liability cases is on the product, not the
individual purchaser. Mississippi measures that product by an
objective standard, from the perspective of the "ordinary consumer
who purchased it, with the ordinary knowledge common to the
community as to its characteristics." Melton, 887 F.2d at 1243;
Gray, 771 F.2d at 870. We therefore must reject Toney's arguments
that we should use a subjective standard, as well as the idea
-13- implied in his arguments that the "open and obvious" defense, a
defense that is based on objective standards, should be conflated
with the assumption of risk defense and measured by a subjective
standard.
VI
We sum up as follows:
1. In Section 402A product liability actions in Mississippi,
the plaintiff cannot recover unless he shows that the product was
"unreasonably dangerous"--"dangerous to an extent not contemplated
by the ordinary consumer . . . with the ordinary knowledge common
to the community of its characteristics." Melton, 887 F.2d at
1243; Gray, 771 F.2d at 870.
2. In product liability actions in Mississippi that are
grounded in negligence or implied warranty, the plaintiff cannot
recover if the danger presented by the defect in the product was
"apparent and obvious to a casual observer." Harrist, 140 So.2d at
561-62. We stated this rule as: "[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.
3. Both standards are objective standards to which the
subjective knowledge or belief of the individual plaintiff about
the product involved has little relevance.
-14- 4. Assumption of risk and comparative negligence are separate
and distinct doctrines that take into account, among other things,
the plaintiff's subjective knowledge or belief.
5. In this case, the lack of leg protection on the Kawasaki
motorcycle was open and obvious to a casual observer, and Toney's
negligence and implied warranty claims, as a matter of law, are
therefore barred. Gray, 771 F.2d at 868.
6. Because its lack of leg protection and concomitant danger
were open and obvious to the ordinary consumer, the motorcycle was
not "unreasonably dangerous" and Toney's strict liability claim, as
a matter of law, is barred. Melton, 887 F.2d at 1243, 1245-46.
We, therefore, AFFIRM the district court's order of summary
judgment.
A F F I R M E D.
-15-