Present: Carrico, C.J., Compton, Stephenson, Whiting, 1 Lacy,
Hassell, and Keenan, JJ.
DARRELL WOOD
v. Record No. 942033 OPINION BY JUSTICE LEROY R. HASSELL
September 15, 1995
BASS PRO SHOPS, INC.
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
In this appeal of a judgment for the defendant in a product
liability action, we consider whether assumption of the risk is a
defense to a claim of breach of an implied warranty, and we
decide issues relating to the admission of certain evidence.
I.
PROCEEDINGS
Darrell A. Wood filed a motion for judgment against Bass Pro
Shops, Inc. alleging, among other things, negligence and breach
of express and implied warranties. Wood alleged that he suffered
severe personal injuries, including partial paralysis, when he
fell from a hunter's tree stand purchased from the defendant.
Wood nonsuited his negligence and express warranty claims,
and the case proceeded to trial on his breach of implied warranty
claim. The jury returned a verdict in favor of the defendant.
We awarded Wood an appeal and agreed to consider the defendant's
assignments of cross-error.
II.
FACTS
In accordance with well-settled principles, we will review
the facts and all reasonable inferences they raise in the light
1
Justice Whiting participated in the hearing and decision
of this case prior to the effective date of his retirement on
August 12, 1995.
most favorable to the defendant, who comes to this Court with a
favorable jury verdict, confirmed by the trial judge.
Wood purchased a tree stand after he had seen an
advertisement in the defendant's mail-order catalog. The tree
stand was designed by Amacker International, Inc., and
manufactured by Tree Stand Manufacturing Company. The tree stand
was packaged, placed in a box, and shipped to Wood. Wood
testified that when he opened the box, neither instructions nor a
safety belt accompanied the tree stand. The box manufacturer's
representative testified that the following instructions were
printed on the side of the box: "Always use a safety belt when
using a tree stand." The representative also stated that a
safety belt and additional instructions were routinely placed in
the same box along with each tree stand and shipped to a
customer.
The safety belt is designed to prevent the hunter from
falling. One portion of the belt is attached to the hunter's
body, and the other portion of the belt is secured to the tree.
Wood did not contact the defendant to obtain a safety belt or
instructions.
The tree stand, which Wood used when hunting, may be affixed
to a tree by wrapping a strap around the tree. The tree stand
permits a hunter to position himself at elevations above a deer's
line of sight or range of scent. The hunter may either stand on
a mesh platform on the tree stand's lower framework or sit on a
small seat on the higher portion of the stand.
On November 20, 1991, Wood and his friend, Hardin Daniel
Morrison, went on a deer hunt. Wood had previously suffered an
ankle fracture and was wearing a short-leg cast on his left
ankle. Wood climbed about 26 feet up a tree without using a
safety belt and affixed the tree stand to the tree. He took his
safety belt, which he had acquired from another manufacturer
about a year before he purchased the tree stand, out of his
pocket and put it on.
After a couple of hours, Wood decided to end his hunt. He
removed his safety belt and placed it in his pocket. He moved
the seat of the tree stand and prepared to descend. Then,
"something broke [and] Wood fell over twenty feet to the ground."
Wood suffered a spinal injury that paralyzed him below the
waist.
Wood presented evidence at trial that the tree stand
collapsed because the stand was defectively designed and
manufactured. The defendant presented evidence that the tree
stand was not defective and that Wood's injuries were caused
because, inter alia, he had failed to wear a safety belt when
preparing to descend from the tree stand.
III.
ASSUMPTION OF THE RISK
The trial court, over Wood's objection, instructed the jury
that Wood could not recover on his breach of implied warranty
claim if the jury found that he had assumed the risk of injury.
Wood contends that assumption of the risk is not a defense to a
breach of implied warranty claim. The defendant argues the trial
court properly instructed the jury that assumption of the risk is
a defense that may be asserted in a breach of implied warranty
action.
We have not heretofore considered whether the doctrine of
assumption of the risk is a defense to an action for breach of
implied warranty. See White Consolidated Industry v. Swiney, 237
Va. 23, 29-30, 376 S.E.2d 283, 286 (1989). However, in Brockett
v. Harrell Brothers, Inc., 206 Va. 457, 462-63, 143 S.E.2d 897,
902 (1965), we considered whether contributory negligence is a
defense in an action of implied warranty of fitness. There, we
stated:
There is a conflict of authority as to whether
contributory negligence is a proper defense in an
action for breach of implied warranty of fitness. The
majority view is that since the action is ex contractu,
contributory negligence as a defense has no place
therein. Other courts take the view that since such an
action has its origin in tort, contributory negligence
is a proper defense. . . .
We adopt the majority view since that is more in
accord with our concept of the nature of the action.
In actions for damages for the sale of unwholesome
foodstuffs we have recognized the distinction between
those based on negligence and those based on breach of
implied warranty of fitness. The latter we have
consistently regarded as action ex contractu. Kroger
Grocery & Baking Co. v. Dunn, 181 Va. 390, 392, 25
S.E.2d 254, 255; Blythe v. Camp Manufacturing Co., 183
Va. 432, 434, 32 S.E.2d 659, 660; Swift & Company v.
Wells, supra, 201 Va. at 217, 110 S.E.2d at 206.
Consequently, we hold that the contributory negligence
of the plaintiff will not be material on the issue of
the defendants' breach of implied warranty of fitness.
We are of opinion that the rationale we invoked in Brockett
is applicable here. Wood's action for breach of implied
warranty, just as the plaintiff's action in Brockett, is ex
contractu. Even though the tort defenses of contributory
negligence and assumption of the risk are different and
distinguishable defenses, we have described these defenses as
"associated defenses," Amusement Slides v. Lehmann, 217 Va. 815,
818, 232 S.E.2d 803, 805 (1977), and we have said that "these
defenses often overlap," Budzinski v. Harris, 213 Va. 107, 109,
189 S.E.2d 372, 375 (1972). We perceive no persuasive reason to
treat these tort defenses differently. Thus, we hold that the
tort or ex delicto defense of assumption of the risk is not
applicable in an action for breach of an implied warranty.
Nevertheless, a defendant in a product liability case has
other available defenses. As we have repeatedly stated, "there
can be no recovery against the manufacturer for breach of . . .
implied warranties when there has been an unforeseen misuse of
the article supplied." Featherall v. Firestone, 219 Va. 949,
964, 252 S.E.2d 358, 367 (1979); White Consolidated Industry, 237
Va. at 29, 376 S.E.2d at 286. We also emphasize, as we noted in
Brockett, that a plaintiff may not recover damages for breach of
an implied warranty if the purported defect of which the
plaintiff complains was "known, visible or obvious" to him.
Brockett, 206 Va. at 463, 143 S.E.2d at 902. The trial court
erred, however, in submitting the issue of assumption of the risk
to the jury.
IV.
ADMISSIBILITY OF MANUFACTURERS' INSTRUCTIONS AND WARNINGS
The trial court, over Wood's objections, permitted the
defendant to introduce in evidence a box imprinted with certain
instructions, and copies of other instructions and warnings that
were manufactured by a tree stand manufacturer, A.P.I. Outdoors,
Inc. The trial court also permitted the defendant to introduce
in evidence pages from catalogs of retailers of tree stands, even
though those retailers are not parties to this action. Wood
alleges that the trial court erred by admitting this evidence
because the defendant failed to prove that he had read the
warnings and instructions. Further, Wood says, "[t]here would be
no basis for admitting these Exhibits in evidence because the
A.P.I. instructions and warnings said nothing about the dangerous
hidden . . . defect in the structure of the 'Tree Stand,' and
thus did not warn him of it." 2
The defendant argues, and we agree, that the exhibits are
admissible because they are relevant to the issue whether Wood
misused the tree stand by failing to wear his safety belt when
descending from the tree. Wood admitted that he received
information and warnings concerning the use of a safety belt
manufactured by A.P.I. Outdoors, Inc. Wood also testified that
in 1988, before his accident, he ordered tree stands from two
companies, Cabela's, Inc. and Gander Mountain, Inc.
Cabela's catalog contained the following warning displayed
beside a picture of a tree stand that Wood had purchased:
Cabela's strongly recommends that you always use a
safety belt when using any tree stand.
Gander Mountain's catalog also contained a prominent warning
stating:
The Manufacturer and Gander Mountain strongly recommend
using a safety belt with all tree stands.
Gander Mountain's catalog also contained a photograph of a hunter
standing on a tree stand using a safety belt.
We hold that the trial court properly admitted these
2
We find no merit in Wood's argument that these exhibits
constitute "unverified hearsay." These exhibits were offered
to show notice to or knowledge held by Wood, and not for the
truth of the matter asserted therein. See State Farm Fire
and Casualty Co. v. Scott, 236 Va. 116, 122, 372 S.E.2d 383,
386 (1988).
exhibits because they support the defendant's contention that
even though Wood knew it was dangerous to use a tree stand
without wearing a safety belt, he purportedly misused the tree
stand by failing to wear a safety belt when descending from the
tree. Additionally, the jury might have inferred that Wood had
read some of the warnings because the warnings in the catalogs
were prominently displayed on pages containing pictures of items
that Wood had purchased.
V.
ADMISSIBILITY OF MEDICAL TESTIMONY
Wood asserts that the trial court erred by admitting in
evidence certain portions of the de bene esse deposition of Dr.
Carey Charles Mayer, a psychiatrist. Mayer testified that he had
treated Wood for depression and sleeplessness before Wood was
injured on November 20, 1991. Mayer also testified that Wood had
suicidal thoughts before November 20, 1991.
The defendant argues that Mayer's testimony is admissible
because Wood "claims that he has incurred physical and mental
suffering as a result of Bass Pro's alleged breaches [and thus
he] place[d] his entire medical condition into issue." We agree
with the defendant.
We have held that "[e]very fact, however remote or
insignificant, that tends to establish the probability or
improbability of a fact in issue, is relevant, and if otherwise
admissible, should be admitted." Ravenwood Towers, Inc. v.
Woodyard, 244 Va. 51, 56, 419 S.E.2d 627, 630 (1992) (quoting
Harrell v. Woodson, 233 Va. 117, 122, 353 S.E.2d 770, 773
(1987)). Additionally, the determination of relevancy involves
the exercise of the trial court's discretion. Owens-Corning
Fiberglas Corp. v. Watson, 243 Va. 128, 138, 413 S.E.2d 630, 636
(1992). Here, Wood placed his medical condition at issue and,
among other things, he sought, as an element of damages,
compensation for mental anguish that he claimed was caused as a
result of the defendant's alleged breach of implied warranty.
The defendant was entitled to present relevant evidence that
Wood's mental anguish was caused by a factor for which the
defendant was not responsible. Therefore, we hold the trial
court did not abuse its discretion in admitting this evidence.
VI.
ADMISSIBILITY OF EXPERT TESTIMONY
A.
The defendant assigns cross-error to the admission of
certain expert testimony. In the first instance, the trial court
permitted Lynwood Eugene Merricks to testify as an expert witness
on the subjects of metal fabrication, tree stand designs, the use
of tree stands, and common practices utilized in hunting white
tail deer. The defendant argues that the trial court erred by
permitting Merricks to qualify as an expert witness on these
subjects. We disagree.
In Grubb v. Hocker, 229 Va. 172, 326 S.E.2d 698 (1985), we
stated:
Whether a witness is qualified to express an
opinion as an expert is a question largely within the
sound discretion of the trial court. . . . A decision
to exclude a proffered expert opinion will be reversed
on appeal only when it appears clearly that the witness
was qualified. . . . And the expressed belief of a
witness that he is an expert does not ipso facto
require his qualification. . . . The facts must show
that he possesses sufficient knowledge, skill or
experience to make him competent to testify as an
expert on the subject matter of the inquiry.
Id. at 176, 326 S.E.2d at 700 (quoting Noll v. Rahal, 219 Va.
795, 800, 250 S.E.2d 741, 744 (1979)); Griffett v. Ryan, 247 Va.
465, 469, 443 S.E.2d 149, 152 (1994). We have also held that
"the knowledge necessary to qualify a witness to testify as an
expert might be derived from study alone, or experience, or
both." Grubb, 229 Va. at 176, 326 S.E.2d at 700-01; Griffett,
247 Va. at 469, 443 S.E.2d at 152.
The evidence shows that Merricks had 3,500 hours of
vocational education and training in mechanics, machine design,
and fabrication. He made hunting and trapping equipment for
Southern Outdoor Supplies, a sporting goods retailer. He had
made approximately 30 to 40 different types of deer hunting
stands, and he has designed tree stands. Merricks has experience
with the use of safety belts and safety harnesses. He also has
extensive experience hunting deer. Thus, we hold that the trial
court did not abuse its discretion by permitting Merricks to
testify as an expert witness.
B.
In a second assignment of cross-error, the defendant argues
that the trial court erred by refusing to permit it to conduct a
demonstration in the presence of the jury. The trial court
refused to permit this demonstration because Wood objected on the
basis that the demonstration was a test and, as such, the
demonstration would not be permissible because it did not
duplicate the accident conditions. We do not consider the
defendant's argument because the record does not contain a
proffer of the proposed demonstration. City of Manassas v. Board
of County Supervisors of Prince William County, 250 Va. 126, 137,
458 S.E.2d 568, 573 (1995); Brown v. Commonwealth, 246 Va. 460,
465, 437 S.E.2d 563, 565 (1993); Blue Cross v. Commonwealth, 221
Va. 349, 357, 269 S.E.2d 827, 832 (1980).
VII.
Accordingly, we will reverse the judgment of the trial court
and remand this case for a new trial consistent with this
opinion.
Reversed and remanded.