Opposition Brief — Elliott v. Mercury Marine

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No. 90-814 | O8% Bap

— JR.

Iu the Supreme Court of the Unite States ——

OCTOBER TERM, 1990

ASHLEY ELLIOTT, PETITIONER

Vv.

MERCURY MARINE, a Division of

Brunswick Corporation, RESPONDENT

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF FOR THE RESPONDENT IN OPPOSITION

KENNETH S. GELLER *

Mayer, Brown & Platt

2000 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 7780613

RONALD L. REID

R. WAYNE THORPE

Alston & Bird

One Atlantic Center

1201 West Peachtree Street

Atlanta, Georgia 30309-3424

(404) 881-7000

Counsel for Respondent

* Counsel of Record

WILSON - Epzs Pecntina Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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QUESTION PRESENTED

Whether the Court should hold this case on its

docket for the indefinite future because the Alabama

Supreme Court might issue a decision in another case

that might be inconsistent with the court of appeals’

rulings on issues of state law.

(i)

RULE - 29.1 STATEMENT

Respondent Mercury Marine is a division of Bruns-

wick Corporation. Brunswick has no parent corpora-

tions but has the following subsidiaries, excluding

wholly-owned subsidiaries: Doellwood Financial,

Inc.; Enhanced Energy Systems, Inc.; Intellitec In-

ternational Inc.; Jewon, Co., Ltd.; Jiangxi Marine

Company, Limited; Mere Spader, Inec.; Nippon

Brunswick Kabushiki Kaisha; Nireco Corporation;

Sugita Seisakusho Co., Ltd.; Texas Lounge Opera-

tions, Inc.; Texas Thousand Oaks, Inc.; Tohatsu

Marine Corporation; and Wayne Recreation Center

Lounge, Inc. '

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....2222222.2ooeeeeeceee cee ceeeceneeeees i

RULE Ee ii

pe | ee iv

SEEDS ce ORD oT 1

REASONS FOR DENYING THE PETITION 7

I. PETITIONER DOES NOT CONTEND THAT

THE COURT OF APPEALS COMMITTED

ANY ERROR OF FEDERAL LAW ........ 8

II. THE COURT OF APPEALS CORRECTLY

DECIDED ISSUES OF ALABAMA STATE

al neaedaiee Ry 2.) ee 9

A. Consumer Expectations ........00000000000000000222222---- 11

B. Availability of Alternative Design ................ 14

III THERE IS NO REASON TO HOLD THIS

CASE ON THE COURT’S DOCKET PENDING

A DECISION BY THE ALABAMA SUPREME

COURT IN AN UNRELATED CASE ................ 15

Tee cake ch Samlecidaghanitewubaasectbsetebianioniee sent 20

(iii)

TABLE OF AUTHORITIES

Cases: Page

Andes V. Knox, cert. denied, 111 S.Ct. 373 (Oct. 29,

IID alinnniap piitiauinsaneaae sth oun socibeate eas andllinicndaaiuiliiannsen 16

Atkins v. American Motors Corp., 335 So.2d 134

FR ROR ER AE A ERO eel, 10

Beech v. Outboard Marine Corp., No. CV-89-AR-

I cnc cmsesoteisaoell 7, 17, 18, 19

Butner v. United States, 440 U.S. 48 (1979) .......... 10

Casrell vy. Altec Industries, Inc., 335 So.2d 128

a 5, 10, 12

Entrekin v. Atlantic Richfield Co., 519 So.2d 447

(Fille aS La aR OL a Na IIE: 6, 11, 12, 13

Erie R.R. v. Tompkins, 304 U.S. 64 (19388) ............. 8

General Motors Corp. Vv. Edwards, 482 So.2d 1176

(AR ESEAEY PREY Fe Paes dee Oe ee ee oO passim

Gondeck v. Pan Am. World Airways, Inc., 382 U.S.

a ambarbe 16

Grossman V. United States, 59 U.S.L.W. 3392 (U.S.

pe IIE Te ye it Ve ts On ee a 16

Haring V. Prosise, 462 U.S. 306 (1983) —................ 10

Hawkins v. Montgomery Industries Int’l, Inc., 536

8k Se ESR ae passim

Kramer v. Hammond, 111 S.Ct. 373 (Oct. 29,

es cumekeisiane 16

Layne & Bowler Corp. v. Western Well Works, Inc.,

Nee amore ensyaiugiinicese 20

Lehman Brothers v. Schein, 416 U.S. 386 (1974) .... 8

Magnum Import Co. v. Coty, 262 U.S. 159 (1928) .. 7

Missouri Vv. Jenkins, 110 S.Ct. 1651 (1990) -............ 6

Vaccaro V. Jorling, 111 S.Ct. 397 (Nov. 6, 1990) -... 16

Volt Information Sciences, Inc. V. Board of Trust-

eG es : S 10

Weed Vv. Bilbrey, 400 U.S. 982 (1970) -.................. 16

Statute and Rules:

RF | eee 3

ORIN Ce RUN BO nn ceivncccesncemvvnnencesorecennsnene 7

Supreme Court Rule 10.1 _................. APNE ST ERPS 8

TABLE OF AUTHORITIES—Continued

Miscellaneous: Page

2 Restatement (Second) of Torts (1965) ................ 10

R. Stern, E. Gressman & S. Shapiro, Supreme

Court Practice (6th ed. 1986) ....................-......... 9

In the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-814

ASHLEY ELLIOTT, PETITIONER

Vv.

MERCURY MARINE, a Division of

Brunswick Corporation, RESPONDENT

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF FOR THE RESPONDENT IN OPPOSITION

STATEMENT

Petitioner Ashley Elliott was injured when she

jumped from a pier at night into the water next to

a boat\and was struck by the rotating propeller on

the boat's motor. The motor was designed and manu-

factured\ by respondent Mercury Marine. Boais

like the one involved here, typically used for skiing

and other \recreational activities and typically oper-

ated at speeds exceeding 20 m.p.h., are generically

known as “planing” pleasure craft. ‘Planing’ refers

to the fact that, as these boats pick up speed (to

approximately 20 m.p.h.), they rise up part-way out

of the water and “plane” on the surface. Pet.

App. 2a.

Petitioner claimed that Mercury violated Alabama

tort law by not including a so-called “propeller

guard” in the motor’s design. This “propeller guard”’

would consist of a structure that in some fashion

would surround the propeller. The evidence at trial

showed that, despite substantial efforts of Mercury

and others over many years to design such a device,

no propeller guard existing and available at the time

the motor was manufactured would have been a safer,

practical, alternative design for planing pleasure

boats, and that proposed guards are actually unsafe

for use by the boating public.

Thus, witnesses for both sides testified that no boat

manufacturer, boat motor manufacturer, or boating

accessory manufacturer has ever been able to offer a

propeller guard for planing pleasure boats for the

purpose of protecting human beings from propeller

contact. Pet. App. lla; R4-185; R9-858. Use of such

propeller guards is virtually unheard of anywhere in

the world, except in a few special applications that

are wholly unlike recreational planing boats.’ Indeed,

! Propeller guards are used in some parts of California, as

well as in New Zealand and Australia, for life rescue opera-

tions conducted in high surf; at one time they were also used

on certain United States Marine Corps landing craft operating

in high surf. It is expected that life rescue boats or military

landing craft would be stationary or moving at very slow

speeds, as contrasted with planing pleasure craft operated

frequently at high speeds. It is also expected that, in both

circumstances, floundering human beings would be in the

water near the turning propeller. Propeller guards are used

Dr. Arthur Reed, one of petitioner’s expert witnesses,

estimated that it would take some 15 man-years of

effort by biomechanical, hydrodynamic, structural and

materials engineers, followed by prototype testing, to

design and manufacture a safe and feasible propeller

guard. R4-168-169. He also acknowledged that every

propeller guard currently proposed needed further

technical development before it would be ready for

use. Pet. App. 9a.

Furthermore, che United States Coast Guard, which

is charged with exclusive responsibility for establish-

ment of boating safety regulations (see 46 U.S.C.

§§ 4301 et seg.), has rejected any requirement of pro-

peller guards after extensively studying the question.

Exh. 33 (1987 report). Similarly, as petitioner’s wit-

nesses acknowledged, propeller guards are not required

by any states (R4-192; R8-608-611; R9-860-863) and

are not required by the safety standards promulgated

by responsible and authoritative boat safety organiza-

tions such as the American Boat and Yacht Council

and the Society of Automotive Engineers. R4-192;

R8-608-611; R9-860-863.

Finally, both parties’ experts described numerous

hydrodynamic, biomechanical and other dangers pre-

sented by propeller guards. Pet. App. 9a. These in-

cluded :

* Substantial loss of power and hence speed due

to added drag. R4-143, 149, 157, 175; RT7-

as weil on slow-moving passenger boats in amusement parks.

In addition, Outboard Marine Corp., one of Mercury's com-

petitors, has developed a propelier guard for low-horsepower

motors on non-planing fishing boats, which are expected to

be used in shallow water containing underwater hazards

such as rocks and stumps. Pet. App. 7a n.2.

516, 524; R9-943, 986, 993; R10-1036, 1050,

1068.

Safety hazards due to consumers’ likely re-

moval of guards to gain added power and im-

proved fuel economy; removal of the guard

would cause the boat to exceed its power rat-

ing and would create handling difficulties. R9-

986; R10-1056.

Handling and steering problems because a

guard, due to its circular shape, would add

new rudder area in entirely new planes; ad-

ditional rudder would create additional steer-

ing torque. R4-222-223, 263, 289-290; R7-

483, 504-507; R8-712, 735-737; R9-981-982,

985-986, 994-999 ; R10-1046-1049.

Improper handling resulting in increased risk

that the operator or a passenger might be

ejected from the boat, as well as the obvious

risk of simply losing control and running the

boat into another boat or the shore. R7-507.

Dangers associated with breaking the guard

and thus creating an additional set of steer-

ing problems. R7-525; R8-718.

Dangers caused by the fact that a propeller

encircled by a guard creates a surface area

with which to strike a person in the water

that is much larger than the unguarded pro-

peller; the combined hazard of the propeller

and guard moving through the water at mod-

erate to high speed is at least as great as that

created by the propeller itself. R7-474-479;

R9-953, 984-985; R10-1037-1038.

Injuries resulting from a “guard strike,”

which are often more serious than a propeller

strike because a “guard strike” causes a

“crushing” blow or “blunt trauma’; such in-

juries are more difficult to repair than lacer-

ations caused by a propeller, because a guard

would cause smashing and tearing of nerves,

muscles and bones. R7-480-481.

Possible entrapment of a human limb between

the guard and propeller, resulting in mutila-

tion, amputation or drowning; were the guard

not present, the propeller might miss the per-

son altogether or make a glancing and rela-

tively less severe laceration. R7-485; R8-735;

R9-987; R10-1039.

2. Despite the overwhelming evidence that safe

propeller guards for planing pleasure craft simply

did not exist when this motor was built (and do not

exist today), the district court allowed the case to

go to the jury, which returned a verdict for petitioner

in the amount of $1.5 million in compensatory dam-

ages and $3.0 million in punitive damages. Pet. App.

14a. The court of appeals unanimously reversed. Jd.

at la-lla.

The Eleventh Circuit began its analysis by setting

forth the elements of a defective design claim under

Alabama law. First, a plaintiff must prove that a

product is “defective” in that it “does not meet the

reasonable expectations of an ordinary consumer as

to its safety.” Pet. App. 4a, citing Casrell v. Altec

Industries, Inc., 335 So.2d 128, 133 (Ala. 1976).

Second, a plaintiff must prove in addition that “a

safer practical, alternative design was available to

the manufacturer at the time it manufactured the

[product].” Pet. App. 4a-5a, citing General Motors

Corp. v. Edwards, 482 So.2d 1176, 1191 (Ala. 1985).

On the “consumer expectations” issue, the Eleventh

Circuit based its analysis not only on Casrell but also

on two recent decisions of the Supreme Court of Ala-

bama that ruled in favor of a product manufacturer

as a matter of law. Hawkins v. Montgomery Indus-

tries Int’l, Inc., 536 So.2d 922, 926 (Ala. 1988) ; En-

trekin v. Atlantic Richfield Co., 519 So.2d 447, 450

(Ala. 1988). Applying the teaching of these cases,

the court below concluded that “the ordinary con-

sumer clearly understands that a revolving propeller

involves danger” (Pet. App. 5a) and that “the dan-

gers inherent in Mercury’s product should have been

apparent to, or within the contemplation of,” peti-

tioner. Jd. at 6a.

Additionally, the Eleventh Circuit held that peti-

tioner failed as a matter of law to establish the ex-

istence and availability of a safer, practical, alterna-

tive design. The court of appeals noted that “although

[petitioner’s] experts promoted the use of propeller

guards, they agreed that companies could not yet

market them for general use. Both sets of experts,

moreover, discussed the problems that these devices

engender.” Pet. App. 10a. Applying this uncontro-

verted evidence to the standard announced in settled

precedent, the court concluded that “when [peti-

tioner] failed to demonstrate the existence of a safer,

practical propeller guard for use on planing pleasure

boats, as required by the Alabama Supreme Court in

Edwards, she failed to establish [her] claim.” Jd. at

lla.

Following the court of appeals’ decision, petitioner

filed a “petition for rehearing en banc” (see Missouri

v. Jenkins, 110 S.Ct. 1651, 1661 (1990)), suggesting

for the first time that the Eleventh Circuit certify to

the Supreme Court of Alabama “questions concerning

whether the obvious danger of an unguarded pro-

peller prohibits a cause of action under Alabama law”

(Petition For Rehearing En Banc at 2). The court of

appeals denied the petition on August 24, 1990.

3, At the same time that this case was proceeding

in the Eleventh Cireuit, another product liability case

involving a swimmer injured by the propeller on a

pontoon boat was pending in federal district court in

Alabama. Beech vy. Outboard Marine Corp., No. CV-

89-AR-0789-M (N.D. Ala.). Within days after the

Eleventh Circuit issued its decision in this case, the

plaintiff in Beech, who was represented by the same

counsel as petitioner, filed a motion to certify certain

issues of state tort law to the Alabama Supreme

Court. Judge Acker, who also was the trial judge in

this case, granted the motion on September 19, 1990,

and certified five detailed questions to the state court.

Pet. App. 19a-22a. The Alabama Supreme Court ac-

cepted the certification on October 11, 1990 (id. at

23a-25a), and the case is currently in the process of

being briefed.

REASONS FOR DENYING THE PETITION

The petition for certiorari in this case is in flagrant

disregard of the longstanding principle that “[t]he

[certiorari] jurisdiction was not conferred upon this

Court merely to give the defeated party in the Circuit

Court of Appeals another hearing.” Magnum Import

Co. v. Coty, 262 U.S. 159, 163 (1923). Petitioner does

not suggest that the court of appeals committed any

error of federal law, much less that its decision con-

flicts with the decision of any other court. See S. Ct.

R. 10. As petitioner concedes (Pet. 12), this diversity

case is controlled by state law. Rather, petitioner con-

tends that the Court should simply hold this case on

its docket for the indefinite future, because the Ala-

bama Supreme Court might issue a decision in an

unrelated case that might give the Eleventh Circuit

grounds to reconsider its rulings on issues of state

law. Petitioner’s attempt to “warehouse” this case

on this Court’s docket is both unprecedented and in-

appropriate.

I. PETITION DOES NOT CONTEND THAT THE

COURT OF APPEALS COMMITTED ANY ERROR

OF FEDERAL LAW

One searches in vain through the petition for cer-

tiorari for any contention that the court of appeals

committed any error of federal law, reached a result

in conflict with the decision of any other court, or

“so far departed from the accepted and usual course

of judicial proceedings * * * as to call for an exercise

of this Court’s power of supervision” (S. Ct. R. 10.1).

Petitioner does not make any such claim.” Instead, she

acknowledges (Pet. 12) that, under Erie R.R. v.

Tompkins, 304 U.S. 64 (1938), the dispositive ques-

tions in this case are entirely ones of state law.

Moreover, even as to the controlling state law ques-

tions, petitioner does not seriously contend that the

court of appeals failed to abide by its obligation under

Erie to follow decisions of the Alabama courts. To

2 Petitioner does suggest (Pet. 14 n.17) that the Eleventh

Circuit might have “certified the unresolved questions [of

state law] to the Supreme Court of Alabama,” but she does

not argue that the court below erred in failing to do so. The

decision whether to seek certification rests in the sound dis-

cretion of the federal court. See Lehman Brothers v. Schein,

416 U.S. 386, 394 (1974). It is significant that petitioner

did not request certification until after she had lost in the

court of appeals.

the contrary, petitioner grudgingly admits that the

“Eleventh Circuit did purport to rely on Supreme

Court of Alabama cases in determining the relevant

legal standard” (Pet. 17 n.21). She asserts only

that the issues of Alabama law were “unresolved”

(Pet. 12), that the “Eleventh Circuit travelled into

uncharted waters” (ibid.), and that the “Eleventh

Circuit was wrong in reversing, on state law grounds,

the jury verdict and judgment in [her] favor’ (Pet.

16), *

As we explain below, the court of appeals properly

applied state law to the facts of this case. But

whether or not the court of appeals decided this fact-

bound case correctly under Alabama law, the matter

does not warrant further consideration by this Court.

See R. Stern, E. Gressman & S. Shapiro, Supreme

Court Practice § 4.10 (6th ed. 1986).

II. THE COURT OF APPEALS CORRECTLY DECIDED

ISSUES OF ALABAMA STATE LAW

The bulk of the certiorari petition is devoted to the

assertion that the court of appeals reached an errone-

ous result on an unresolved issue of Alabama tort

law.* This Court, however, does not sit to review :

3 Petitioner also suggests that the Eleventh Circuit ignored

Alabama authorities and rendered its decision svlely on the

basis of rulings from other jurisdictions. Thus, with respect

to the consumer expectations issue, petitioner contends (Pet.

16; emphasis in original) that “[ijn concluding that, under

Alabama law, an unguarded boat propeller is not dangerous

beyond the reasonable expectations of an ordinary consumer,

the Eleventh Circuit cited no Alabama authority.” Similarly,

with respect to the available alternative design issue, peti-

tioner contends (Pet. 6, 18; emphasis in original) that “the

Eleventh Circuit relied on no Alabama cases whatsoever”

questions of state law. See, e.g., Volt Information

Sciences, Inc. v. Board of Trustees, 109 S.Ct. 1248,

1253 (1989); Haring v. Prosise, 462 U.S. 306, 314

n.8 (1983); Butner v. United States, 440 U.S. 48,

57-58 (1979). In any event, petitioner is plainly

wrong in suggesting that the decision below represents

a departure from prior Alabama law.

As the Eleventh Circuit observed (Pet. App. 4a),

Alabama case law recognizes a principle of product

liability known as the Alabama Extended Manufac-

turer’s Liability Doctrine (“AEMLD”), based on

Casrell y. Altec Industries, Inc., 335 So.2d 128 (Ala.

1976), Atkins v. American Motors Corp., 335 So.2d

134 (Ala. 1976), and Section 402A of the Second Re-

statement of Torts (1965). Section 402A provides in

part that “[o]ne who sells any product in a defec-

tive condition unreasonably dangerous to the user

or consumer or his property is subject to liability

for physical harm thereby caused to the ultimate

user or consumer, or to his property * * *.” In

Casrell, relying on comments g and i to Section 402A,

the Supreme Court of Alabama defined “defective”

to mean that “the product does not meet the reason-

able expectations of an ordinary consumer as to its

safety.” * 335 So.2d at 183. Suvusequently, in Gen-

and that the “court cited no Alabama case law in support of

its conclusion.” As we explain in the text, these fanciful

assertions are belied by the court of appeals’ opinion, which

cited and applied several decisions of the Alabama Supreme

Court.

* Comment g states in part:

{[T]his Section applies only where the product is, at the

time it leaves the seller’s hands, in a condition not cop-

eral Motors Corp. v. Edwards, 482 So.2d 1176, 1191

(Ala. 1985), the same court added that the plaintiff

must also prove that a “safer, practical, alternative

design was available to the manufacturer at the time

it manufactured the [ product].”

In this case, the Eleventh Circuit extensively con-

sidered this relevant Alabama authority and con-

cluded that petitioner had failed at trial to establish

both of these elements of her cause of action.’ Peti-

tioner may disagree with this conclusion, but that is

a far cry from proving that, “instead of attempting

to ascertain what Alabama law ‘is,’ the Eleventh

Circuit apparently sought only to determine ‘what it

ought to be.’” Pet. 18.

A. Consumer Expectations

The court of appeals first held that petitioner failed

to meet the “consumer expectations” test. In particu-

lar, the Eleventh Circuit concluded (Pet. App. 5a)

that “[t]he ordinary consumer clearly understands

that a revolving propeller involves danger.” In sup-

port of this determination, the Eleventh Circuit re-

lied upon Alabama law set forth in Entrekin v. At-

lantic Richfield Co., 519 So.2d 447 (Ala. 1988), and

Hawkins v. Montgomery Industries Int’l, Inc., 536

-So.2d 922 (Ala. 1988).

templated by the ultimate consumer, which will be unrea-

sonably dangerous to him.

Comment i states in part:

The article sold must be dangerous to an extent beyond

that which would be contemplated by the ordinary con-

sumer who purchases it, with the ordinary knowledge

common to the community as to its characteristics.

5 Of course, Mercury would have prevailed in the Eleventh

Circuit if that court had ruled in its favor on either point.

In Hawkins, the plaintiff was injured in the work-

place by allegedly defective industrial machinery. In

analyzing whether the product was defective, the Su-

preme Court of Alabama quoted at length from

Casrell and Comments g and i of Section 402A in

focusing on what was “expected” and “‘contemplated.”’

536 So.2d at 926. Applying the consumer expecta-

tions test of Casrell and Section 402A to the evidence

in Hawkins, the court noted at least three times that

the alleged defect was “contemplated.” 536 So.2d at

925, 926. The Alabama Supreme Court accordingly

conclude] that there was not even a “scintilla of evi-

dence” that the product at issue was defective, and

it affirmed summary judgment in favor of the de-

fendant. Here, the Eleventh Circuit closely followed

the analytical framework set forth in Hawkins and

likewise concluded that Mercury was entitled to judg-

ment as a matter of law because “the ordinary con-

sumer clearly understands that a revolving propeller

involves danger.” Pet. App. 5a.

Petitioner’s attempted distinctions of Hawkins and

Entrekin make little sense. She argues first (Pet.

17 n.21) that Hawkins “may not be applicable in the

context of this case” because it involved a failure to

warn. In fact, as the Alabama Supreme Court’s opin-

ion in Hawkins makes clear, that case involved al-

leged design defects: ‘“[ Plaintiffs] sued Montgomery

Industries as the designer and constructor cf the suc-

tion system, alleging that the system was defectively

or negligently designed or constructed.” 536 So.2d

at 924. Indeed, the Alabama court’s ruling on re-

hearing, which did deal exclusively with a warning

issue, plainly recognized that the court’s original

opinion had decided a design issue. Jd. at 927. Of

course, even if Hawkins were exclusively a warning

case—and it certainly was not—petitioner has of-

fered no reason to believe that it would be any less

applicable as authority in a design case.

Petitioner next seeks to distinguish both Hawkins

and Entrekin on the ground that she was a mere

“bystander” rather than “the ultimate consumer of

the allegedly defective product.” Pet. App. 17 n.21

(emphasis in original). This effort to avoid the force

of controlling Alabama authority also must fail. To

begin with, the plaintiffs in Hawkins and Entrekin

were employees who were injured in the workplace

by products purchased by their employer; thus, they

were “bystanders” at least to the same extent as pe-

titioner. Moreover, by now claiming that she was a

mere “bystander,” petitioner seeks to “have her cake

and eat it too” under the AEMLD and Section 402A.

Section 402A permits recovery only by “the user or

consumer.” See page 10, supra. If, as petitioner now

claims, she was a “bystander” and not a “user” or

“consumer,” then she may not recover at all under

Section 402A. If, on the other hand, petitioner quali-

fies as a “user” or “consumer,” and is thus eligible

to sue under Section 402A, then she is bound by the

ordinary “expectations” and “contemplations” that

Alabama law attributes to such a plaintiff. Finally,

petitioner has cited no authority under Alabama law

that grants preferential treatment to “bystanders”

injured by defective products.

Not only did the Eleventh Circuit base its decision

on solid Alabama precedent that petitioner cannot

successfully avoid, but the cases relied upon by pe-

titioner (see Pet. 17 n.21) do not in any way detract

from the decision below. Those cases are distinguish-

able because they hold only that, or their particular

facts, a jury question was presented regarding the

defenses of assumption of risk and contributory neg-

ligence. It is a fundamentally different matter to

hold, as the court of appeals did here, that a product

is not defective as a matter of law because the danger

is within the normal “expectations” or “contempla-

tions” of a consumer. In addition, several of the

eases cited by petitioner predate the Alabama Su-

preme Court’s decision in Hawkins and thus would

not be controlling authority even if they were in

tension with Hawkins.

B. Availability of Alternative Design

Just as the court of appeals adhered to sound Ala-

bama precedent on the consumer expectations issue,

it similarly applied established Alabama law on the

available alternative design issue. On this point, the

Eleventh Circuit followed General Motors Corp. v.

Edwards, supra, the same case principally relied on

by petitioner not only before this Court but through-

out this litigation. Pet. App. 8a-11la.

Although petitioner concedes the applicability of

Edwards, she offers a strained interpretation of that

decision, arguing that “feasibility” should be equated

with mere technical and economic feasibility, appar-

ently without regard for such other important factors

as the safety of a proffered alternative design. See

Pet. 20. However, the Supreme Court of Alabama

clearly rejected that notion in Edwards:

In order to prove defectiveness, the plaintiff

must prove that a safer, practical alternative de-

sign was available to the manufacturer at the

time it manufactured the [product].

482 So.2d 1176, 1191,

Based upon the standard announced in Edwards,

the Eleventh Circuit carefully examined the testimony

of both sides’ experts, including their description of

the numerous safety hazards created by proposed

propeller guards, as well as current industry stand-

ards and federal regulations. In light of the undis-

puted evidence, the court of appeals determined that

“the industry’s adaptation of propeller guards at this

point would not only be infeasible, but unwise, unsafe

and unfortunate.” Pet. App. 10a. Indeed, “the chal-

lenged designs are not even in a state of transition;

at trial, even experts who promoted these guards

agreed that their application was not yet possible.”

Ibid. Accordingly, the Eleventh Circuit concluded

that a satisfactory guard was not yet available and

that, “as required by the Alabama Supreme Court in

Edwards, [petitioner] failed to establish a claim

under” Alabama law. /d. at lla. Once again, peti-

tioner may disagree with this conclusion, but that

hardly justifies her blatant misrepresentation that

“the Eleventh Circuit relied on no Alabama cases

whatsoever.” Pet. 18.

III. THERE IS NO REASON TO HOLD THIS CASE ON

THE COURT’S DOCKET PENDING A DECISION BY

THE ALABAMA SUPREME COURT IN AN UNRE-

LATED CASE

Having failed to show that the court of appeals’

decision violates either federal or state law, petitioner

urges the Court simply to hold this case on its docket

for an indefinite period because the Alabama Supreme

Court might reach a decision in another case that

might give the Eleventh Circuit grounds to reconsider

some of its rulings under Alabama law. We are not

aware of any precedent that would support the ware-

housing of wholly uncertworthy cases on this Court’s

docket because they might be affected by litigation

pending elsewhere in the lower courts, and petitioner

has cited none.“ Indeed, the Court routinely denies

motions to hold certiorari petitions in abeyance until

some other event has occurred. See, e.g., Andes v.

Knox, 111 8S. Ct. 373 (Oct. 29, 1990); Kramer v.

Hammond, 111 S. Ct. 373 (Oct. 29, 1990); Vaccaro

v. Jorling, 111 S. Ct. 397 (Nov. 6, 1990); Grossman

v. United States, 59 U.S.L.W. 3392 (U.S. Nov. 27,

1990). Any other rule would be wholly inconsistent

with this Court’s certiorari jurisdiction and would

serve only to encourage litigants to clutter the Court’s

docket with similar requests, in an effort to prevent

adverse decisions from becoming final.’

® The one case petitioner offers, Gondeck v. Pan Am. World

Airways, Inc., 382 U.S. 25 (1962) (per curiam), is hardly

“analogous” (Pet. 138 n.16). The Court there granted an out-

of-time rehearing petition and remanded a case in light of

an intervening decision so that two men killed in the same

accident would be treated equally under federal law. Here,

there is no intervening decision, the issues involve state law,

and the case now pending in the Alabama Supreme Court

does not involve the same accident as this case. In any event,

the Court’s decision in Gondeck was sharply criticized when

issued (see 382 U.S. at 30-31 (Harlan, J., dissenting)) and

has never since been cited by the Court, much less followed.

See Weed v. Bilbrey, 400 U.S. 982, 984 (1970) (Douglas, J.,

dissenting).

7 For example, a party seeking review of an adverse deci-

sion in one court of appeals could suggest that the Court hold

his case pending the decision of the same issue in another

court of appeals, in the hope that a conflict in the circuits

would develop. Or a party seeking review of a state law issue

in a diversity case could suggest that the Court hold his case

pending the decision of the same issue by a state tria] court

or intermediate appellate court in another case. Thus, peti-

tioner’s “fundamental fairness” argument would presumably

apply equally if the Beech case were pending in the lower

Alabama courts.

Even if petitioner’s proposal were legitimate, this

would not be an appropriate case. To begin with, the

delay in ultimately resolving this routine tort suit is

likely to be extensive. The case that petitioner would

await, Beech v. Outboard Marine Corp., No. 89-1815

(Ala. S. Ct.), was filed in federal district court in

May 1989. Not until July 3, 1990, more than a year

later and approximately one week after the Eleventh

Circuit ruled for Mercury in this case, did Beech’s

counsel (who also is petitioner’s counsel) seek certi-

fication of the state tort law issues, in an obvious

effort to avoid the precedential force of the Eleventh

Circuit’s decision. The Alabama Supreme Court did

not accept the certification request until October 11,

1990. Pet. App. 23a. Because the Beech case has

not yet been fully briefed in the Alabama Supreme

Court, much less scheduled for oral argument, it will

be many months and perhaps longer before the state

court renders a decision. We imagine that many los-

ing litigants would relish the opportunity to have

this Court put their adverse decisions on “hold” for

a year in the hope that some intervening development

would warrant reconsideration of their case.

What is more, petitioner drastically overstates the

likelihood that the Alabama Supreme Court’s decision

in Beech would require an affirmance of the jury ver-

dict in her favor. First, given the persuasive Ala-

bama authority relied on by the Eleventh Circuit,

there is every reason to believe that the Alabama

Supreme Court will reaffirm the constructions of state

law adopted by the court below.

Second, contrary to petitioner’s repeated assertions

(Pet. i, 3, 8, 12) that this case is “identical” to Beech,

the plaintiff in Beech has in fact insisted that there

are several material differences between the two cases.

oo et aaieneernneaaeeeaiil

In particular, the Beech plaintiff has contended that

the Eleventh Circuit merely decided that there was

insufficient evidence on this record to create a jury

question, and that the evidence in Beech is far

stronger:

The factual question of whether the evidence

was sufficient in Ashley Elliott to justify a ver-

dict on the issue of feasibility under Edwards

guidelines is not determinative of this case. In

reaching its decision evaluating the evidence on

feasibility, the Eleventh Circuit was reviewing

an issue of fact, sufficiency of evidence, not of

law. Hence the ruling of the Eleventh Circuit

in Ashley Elliott does not mean that in this case,

sufficiency of evidence of feasibility of propeller

guards cannot be shown to support a jury verdict.

Brief In Opposition To OMC’s Motion For Summary

Judgment And In Support Of Plaintiff’s Cross Motion

To Certify Questions at 2, Beech v. Outboard Marine

Corp., No. CV-89-AR-0789-M (N.D. Ala.) (‘Beech

Opp.”).* Because it serves his current purposes, peti-

tioner’s counsel is now singing a different tune.

8 The plaintiff in Beech emphasized the following factual

differences between the two cases in opposing OMC’s motion

for summary judgment:

Facts which distinguish this case from the case of

Ashley Elliott v. Mercury Marine, relied upon in the OMC

Motion for Summary Judgment, include the following:

(1) Matthew Beech was eight years old at the time

of this accident, whereas Ashley Elliott was fourteen

years old at the time of her accident;

(2) The contentions in the Matthew Beech caze are

that the marine engine involved in the case should have

been equipped with a cage type guard. Testing and

demonstrations, the subject of discovery in this case,

Third, the certified questions in Beech, as worded,

do not in fact present the same issues decided in this

case. For example, questions 1, 2, 4 and 5 all assume

the existence of a feasible propeller guard (see Pet.

App. 24a-25a), whereas the Eleventh Circuit ex-

pressly decided, based on the evidence introduced in

this trial, that no such guard existed at the time this

motor was manufactured. Thus, the certified ques-

tions in Beech, even if answered favorably to the

plaintiff in that case, would not mandate a different

result here.

Finally, even if the Alabama Supreme Court’s deci-

sion warranted reconsideration of the Eleventh Cir-

cuit’s decision, that would still not lead to upholding

show that a cage guard is feasible and prevents injury.

Documents obtained from OMC, which were not available

to the plaintiff at the time of the Ashley Elliott trial,

show that a cage type guard was actually in use in Au-

stralia in the late 1970s, and had been tested by OMC on

outboard marine engines of similar horsepower to that

involved in this case. None of that evidence (which is

the subject of a request for admissions in this case) was

available on the feasibility issue in the Ashley Elliott

trial ;

(3) The Beech case involves a 1988 engine. There

is no question that it was technologically feasible to manu-

facture a guard for that engine prior to the time it was

marketed and sold.

* * * *

The [Eleventh Circuit’s] language “should have been

apparent to, or within the contemplation of, Elliott” dis-

tinguishes, moreover, Elliott from the expectations of

eight year old Matthew Beech. A minor cannot, as a

matter of law, be required to have adult expectations of

dangers.

Beech Opp. at 1-3.

the jury verdict. The Eleventh Circuit would then be

obliged to consider Mercury’s other substantial claims

of error, which it had no occasion to reach in the first

appeal. See Pet. App. 11a.

In sum, petitioner would send this Court on a fool’s

errand. It would pervert the Court’s proper function

to place this concededly uncertworthy case in a hold-

ing pattern for the indefinite future while the parties

await a state court’s decision on an issue of state law

in another case, particularly when i+ is most unlikely

that the state court decision would lead to a different

outcome here. As this Court has reminded litigants

on many occasions, the certiorari jurisdiction is re-

served for issues that are “of importance to the pub-

lic’ and not just the “parties.” Layne & Bowler

Corp. v. Western Well Works, Inc., 261 U.S. 387,

393 (1923).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.