Present: All the Justices
MORGEN INDUSTRIES, INC.
v. Record No. 951619 OPINION BY JUSTICE BARBARA MILANO KEENAN
June 7, 1996
DELORES VAUGHAN
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dennis F. McMurran, Judge
In this appeal of a judgment entered in a products liability
action, we consider whether there is sufficient evidence to
support the jury's verdict.
We review the evidence in the light most favorable to the
plaintiff, the prevailing party below. Besser Co. v. Hansen, 243
Va. 267, 269, 415 S.E.2d 138, 139 (1992). Delores Marie Vaughan
was injured on the job when her leg was trapped by the
undercarriage wheel of a concrete conveyor unit manufactured by
Morgen Industries, Inc. (Morgen). Adams-Dewind Machinery Company
(Adams), a dealer of various construction machinery products,
sold the conveyor unit to Vaughan's employer, Misener Marine
Construction (Misener).
Misener had contracted to build a portion of the Monitor
Merrimac Bridge Tunnel on Interstate Route 664 between Newport
News and Suffolk. Misener purchased from Adams eleven Morgen
conveyor units to transport wet concrete to the bridge spans from
the site where the concrete was mixed. Four conveyor units were
85 feet long; the other seven conveyor units were 40 feet in
length. Each conveyor unit included a rectangular-shaped bin
mounted on a wheeled undercarriage. Each undercarriage was
comprised of four wheels with steel flanges designed to keep the
undercarriage on a tubular steel track.
Misener attached the 85-foot conveyor units together,
placing them in line with the 40-foot conveyor units. The
conveyor unit closest to the pour site was attached to a Morgen
side discharge unit, from which the concrete was poured. Morgen
equipped the side discharge unit with a four-cylinder, 30
horsepower engine, which enabled the unit to move back and forth
as the concrete was being poured. Misener removed that engine
and replaced it with a more powerful, six-cylinder Ford engine,
which was capable of operating all the conveyor units at one
time.
In addition to altering the power source of the side
discharge unit, Misener used a truck, which was attached to the
other end of the conveyor system with cables, to retract the
conveyor units away from the pour site. The truck was needed to
move the 85-foot conveyor units, which were too heavy to be moved
manually.
A Morgen sales brochure stated that the conveyor units could
be used in a "train" configuration to transport concrete over
long distances. The brochure noted that such conveyor "trains"
had been successfully used on several construction sites across
the country.
Misener's employees regularly cleaned the conveyor system.
The employees sprayed the system with water and then "chipped
off" cement that had dried and become affixed to the conveyor
- 2 -
components. Misener's employees regularly stood on the rails in
order to clean certain parts of the conveyor system. Misener did
not warn its employees not to stand on the rails while cleaning
the conveyor units.
On the day Vaughan was injured, the machines were scheduled
to remain stationary for cleaning. In a departure from the
established routine, another employee activated the side
discharge unit without warning, setting the undercarriage wheels
of the conveyor units in motion. Vaughan's foot was pinned
between a moving wheel and the undercarriage rail. Her foot was
trapped in the "nip point" where the wheel and the rail met.
Vaughan was unable to move her foot and the wheel rolled over her
foot, ankle, and leg. While her foot was still pinned by the
wheel, she fell off the rail, sustaining multiple fractures of
both her tibia and her fibula.
Vaughan filed a motion for judgment against Morgen and Adams
alleging, among other things, that the conveyor unit was
unreasonably dangerous and unsafe for its intended use. Vaughan
later nonsuited her claims against Adams and the case proceeded
to trial.
At trial, George W. Pearsall, a professor of mechanical
engineering at Duke University, testified that the design of the
conveyor unit was unreasonably dangerous and defective. Among
the defects he observed was the absence of wheel guards which
would have prevented Vaughan's foot from being pinned between the
- 3 -
wheel and the rail.
Pearsall stated that, for approximately one hundred years,
mechanical engineers have been aware that "nip points" create a
hazard. The use of wheel guards eliminates this hazard, because
the guards are designed to sweep all objects from the path of the
wheels. Pearsall stated that such wheel guards were feasible for
use in the Morgen conveyor undercarriages, and that Morgen's
failure to install wheel guards on these undercarriages was the
single most significant design defect that caused Vaughan's
injury.
Pearsall testified that industry standards promulgated by
the American National Standards Institute recommend the use of
wheel guards to prevent injuries from occurring at "nip points."
Pearsall also testified that "nip points" are not dangers that
are obvious to most people. He stated that Morgen should have
foreseen the need for wheel guards, since it is foreseeable that
a worker would stand on the undercarriage rails to clean certain
areas of the conveyor units.
Hal I. Dunham, a mechanical engineer specializing in design
consulting, product testing, and accident investigation, also
testified that the conveyor undercarriages were defectively
designed. He based his opinion on Morgen's failure to include
wheel guards to sweep objects away from the "nip points."
The trial court denied Morgen's motion to strike made at the
conclusion of Vaughan's evidence. Morgen then presented evidence
- 4 -
that the conveyor units were not defective in design. William W.
Stone, an engineer experienced in the design and building of
conveyors and bucket elevators, testified that the Morgen
conveyor units were not defective in design. He stated that
guards were not required on the undercarriage wheels because the
individual conveyor units were not motorized. Stone also stated
that the "nip points" were an open and obvious hazard.
James N. Clark, an engineer with experience in industrial
equipment safety and design, agreed that the "nip points" were an
open and obvious hazard. Clark also testified that the conveyor
units were not designed defectively, and that Vaughan's injury
was caused by her act of standing on the rails, combined with the
absence of adequate safety measures at the work site. Clark
stated that the unexpected movement of the conveyor unit was
caused by Misener's failure to adhere to standard work practices.
James M. Hart, Jr., a consultant who had served as a project
manager in highway and bridge construction operations,
acknowledged that it was foreseeable by Morgen that a purchaser
would assemble a large number of conveyor units together in a
"train" configuration. Hart stated that it was also foreseeable
that this conveyor system would be joined with a motorized side
discharge unit.
At the close of all the evidence, Morgen moved the trial
court to strike the evidence, arguing, among other things, that
there was no evidence of any defect in the design of the conveyor
- 5 -
units. The trial court denied Morgen's motion.
The trial court also refused Morgen's request for certain
jury instructions, and the case was submitted to the jury on both
negligence and breach of implied warranty theories. The jury
returned a verdict for Vaughan in the amount of $850,000.
On appeal, Morgen first argues that the evidence
established, as a matter of law, that its conveyor units were not
unreasonably dangerous when manufactured and sold to Misener.
Morgen asserts that its conveyor units were unpowered and were
separate pieces of equipment designed to be moved manually and
individually. Alternatively, Morgen contends that any alleged
danger in the design of the conveyor units was open and obvious,
thus relieving it of liability for Vaughan's injury.
In response, Vaughan argues that the evidence is sufficient
to present a jury question on the issue whether the conveyor
units were unreasonably dangerous for their intended or
reasonably foreseeable use. Vaughan further notes that there is
evidence that the "nip points" were not an open and obvious
hazard, and that the jury resolved this issue in her favor. She
also asserts that the evidence supports the jury's implicit
finding that Misener's modifications to the conveyor system
constituted a foreseeable use of the product, and that these
modifications were not a proximate cause of her injury. We agree
with Vaughan.
In order to recover under either a negligence or a breach of
- 6 -
implied warranty theory for the manufacture of an unreasonably
dangerous product, a plaintiff must show (1) that the goods were
unreasonably dangerous either for the use to which they would
ordinarily be put or for some other reasonably foreseeable
purpose, and (2) that the unreasonably dangerous condition
existed when the goods left the manufacturer's hands. Logan v.
Montgomery Ward & Co., 216 Va. 425, 428, 219 S.E.2d 685, 687
(1975). A product is unreasonably dangerous if it is defective
in assembly or manufacture, unreasonably dangerous in design, or
unaccompanied by adequate warnings concerning its hazardous
properties. See Austin v. Clark Equip. Co., 48 F.3d 833, 836
(4th Cir. 1995); Bly v. Otis Elevator Co., 713 F.2d 1040, 1043
(4th Cir. 1983). The issue whether a product is unreasonably
dangerous is a question of fact. See Singleton v. International
Harvester Co., 685 F.2d 112, 115 (4th Cir. 1981).
Here, there is sufficient evidence from which the jury could
have found that Misener's use of the conveyor units was
reasonably foreseeable. For example, Morgen's own advertising
brochure stated that the conveyor units could be used
successfully in a "train" configuration, and James Hart testified
that it was foreseeable by Morgen that the conveyor units would
be attached to a motorized side discharge unit.
The side discharge unit motor moved the undercarriage wheels
on the day Vaughan was injured. Although there is evidence that
the Ford motor used on the side discharge unit was a
- 7 -
"considerably larger power source" than the four-cylinder, 30
horsepower engine it replaced, Morgen did not present evidence
that this additional engine power was causally related to
Vaughan's injuries.
The unreasonably dangerous condition of the conveyor units
was established by the testimony of Pearsall and Dunham. Both
experts stated that the absence of wheel guards created an
unreasonably dangerous product which existed when the conveyor
units left Morgen's hands. Pearsall stated that this defective
condition was the primary cause of Vaughan's injury. Further,
since the evidence was in conflict on the issue whether the "nip
points" were an open and obvious hazard, the jury was entitled to
accept Pearsall's testimony that the hazard was not open and
obvious and to consider the fact that the injury occurred when
the machines were not scheduled for movement. See Whitting v.
Doxey, 217 Va. 482, 484, 230 S.E.2d 251, 253 (1976); Batts v.
Tow-Motor Forklift Co., 978 F.2d 1386, 1391 (5th Cir. 1992);
Gracyalny v. Westinghouse Elec. Corp., 723 F.2d 1311, 1321-22
(7th Cir. 1983).
We find no merit in Morgen's argument that Misener's
modifications to the system relieved Morgen of any liability for
the defective design of the conveyor units. Morgen presented no
testimony that any of Misener's modifications to the system,
namely, using the Ford engine to provide power to the side
discharge unit and to the other conveyor units, latching the 85-
- 8 -
foot conveyor units together, or using a truck to retract the
conveyor units after the concrete was poured, were causally
related to Vaughan's injury.
Morgen argues, nevertheless, that it is not liable for
Vaughan's injuries, because Misener was a "sophisticated user" of
construction equipment, which had knowledge of the unreasonably
dangerous condition caused by the absence of wheel guards, as
well as knowledge of the other design defects identified by
Pearsall. Morgen's argument, however, is inapposite, because the
issue of Misener's sophistication and knowledge as an industrial
user of this equipment is relevant to the claim of failure to
warn, not to the claim of manufacture of an unreasonably
dangerous product. See Featherall v. Firestone Tire & Rubber
Co., 219 Va. 949, 962, 252 S.E.2d 358, 366 (1979); Oman v. Johns-
Manville Corp., 764 F.2d 224, 233 (4th Cir.), cert. denied, 474
U.S. 970 (1985). Thus, we do not consider Misener's so-called
status as a "sophisticated user" in reviewing the sufficiency of
the evidence of Vaughan's claims that Morgen manufactured an
unreasonably dangerous product.
Morgen also argues that it is not liable for the injury
arising from use of its product because Misener was aware of, but
did not use, procedures which would have improved the product's
safety, such as setting the brakes on the individual conveyor
units to prevent movement during maintenance. Morgen also
contends that Misener could have added wheel guards, provided
- 9 -
ladders for cleaning the machinery, and implemented various other
safety measures. However, the issues whether Misener misused the
product and whether Misener's conduct constituted superseding
negligence were matters submitted to the jury under the trial
court's instructions. Since there is evidence to support the
jury's verdict, we conclude that the jury resolved these
questions in Vaughan's favor. 1
Morgen next argues that the trial court erred in refusing to
grant certain jury instructions concerning its so-called
"sophisticated user" defense, Misener's modification of the
equipment as an allegedly knowledgeable purchaser, the absence of
a duty to install warning devices, and a definition of the term
"reason to know." Vaughan replies that Morgen is procedurally
barred from raising this issue, because the record does not show
that Morgen presented to the trial court the same arguments it
raises here. We agree with Vaughan.
The purpose of Rule 5:25 is to give the trial court an
opportunity to rule on a matter with knowledge of the substance
of a party's objection, in order to avoid needless mistrials,
reversals, and appeals. See Marshall v. Goughnour, 221 Va. 265,
1
Because we have determined that the evidence of Morgen's
manufacture of an unreasonably dangerous product is sufficient to
support the jury's verdict, we need not review the sufficiency of
the evidence of Vaughan's separate claim of failure to warn.
- 10 -
269, 269 S.E.2d 801, 804 (1980). Generally, the reasons for
objecting to the grant or refusal of a jury instruction must be
presented to the trial court before such objection will be
considered on appeal. See Ames & Webb, Inc. v. Commercial
Laundry Co., 204 Va. 616, 623, 133 S.E.2d 547, 552 (1963). The
objection must be made in the trial court when the instruction is
tendered. Smith v. Commonwealth, 165 Va. 776, 781, 182 S.E. 124,
127 (1935). 2
The record here shows that the trial court considered the
jury instructions outside the court reporter's presence. Since
these proceedings are not part of the record before us, we are
presented only with the instructions marked "refused" by the
trial court, along with citations to various cases at the bottom
of the refused instructions.
Morgen's citation to cases at the bottom of each instruction
page does not satisfy the requirement that an objection be stated
"with reasonable certainty at the time of the ruling." Rule
5:25. A case can often be cited for numerous propositions, and
2
In the absence of a transcript or written statement, timely
objection to a granted instruction may be shown and preserved
when, in a refused instruction, the objecting party advances the
contrary theory to one set forth in the granted instruction.
Pilot Life Ins. Co. v. Karcher, 217 Va. 497, 498, 229 S.E.2d 884,
885 (1976). This exception is inapplicable here, however,
because the instructions at issue were refused by the trial court
and the present record contains no statement providing the
reasons for Morgen's objection to the trial court's refusal of
the proposed jury instructions.
- 11 -
the trial court is not required to determine sua sponte what
argument a party may be entitled to make under a given case.
Since Morgen did not preserve the reasons for its objections on
the record, we do not consider its arguments raised on appeal
concerning the trial court's refusal of the proposed jury
instructions. Rule 5:25.
For these reasons, we will affirm the trial court's
judgment.
Affirmed.
JUSTICE STEPHENSON, concurring in part, dissenting in part.
I agree with that portion of the majority opinion which
holds that the evidence is sufficient to present a jury issue on
liability. I do not agree, however, that Morgen is procedurally
barred from challenging on appeal the trial court's failure to
grant a certain jury instruction tendered by Morgen. With
respect to that issue, I agree with Justice Compton's dissent.
Consequently, I would reverse the judgment and remand the case
for a new trial.
JUSTICE COMPTON, dissenting.
In my opinion, the danger resulting from the alleged defect
in the design of the conveyor units, that is, failure to include
wheel guards to sweep objects away from the "nip points," was a
danger that was open and obvious to a lay person. Indeed, the
plaintiff testified, "When the machine was on or being moved, it
was quite obvious it's very dangerous not to be -- well, you
- 12 -
would not want to be on the rail." Examination of the exhibits,
including the photographs, reveals there is nothing so mysterious
about the patent condition that an expert's testimony can be used
to create a question of fact; there is simply a wheel on a rail.
And, the fact that the unit may have been moved without warning
is irrelevant to the question whether the condition was obviously
dangerous.
Under these circumstances, when the dangerous condition "is
obvious and patent to all," Brown v. General Motors Corp., 355
F.2d 814, 819 (4th Cir. 1966), cert. denied, 386 U.S. 1036
(1967), the manufacturer of the product is not liable for injury
to the user. Spangler v. Kranco, Inc., 481 F.2d 373, 375 (4th
Cir. 1973). I would so hold in this case.
Furthermore, I believe the defendant properly preserved for
appeal its objection to the failure of the trial court to grant
the proffered instruction dealing with Misener's modification of
the equipment and its utilization in a configuration that it
devised.
The record is clear that this instruction was tendered to
the trial court and marked "refused." Code § 8.01-384(A)
provides that an objection is sufficient to preserve the issue
for appeal if "a party, at the time the ruling . . . of the court
is made or sought, makes known to the court the action which he
desires the court to take . . . and his grounds therefor." Here,
tender of the instruction certainly informed the trial court that
- 13 -
the instruction was a correct statement of the law and applied to
the facts of this case. Nothing more is required after the
instruction was refused to save the point for appeal. And, the
majority's attempt to distinguish this Court's holding on the
issue in Pilot Life Insurance Co. v. Karcher, 217 Va. 497, 498,
229 S.E.2d 884, 885 (1976), is a distinction that makes no
difference.
The evidence clearly established that Misener designed,
assembled, and motorized this conveyor system of inordinate
length, using parts from different manufacturers and its own
inventory, and modified the conveyors received from the
defendant. The jury should have been permitted to consider this
aspect of defendant's case, and I would hold the trial court
erred in refusing the instruction.
Consequently, I cannot join an opinion affirming the
judgment below.
- 14 -