# Petition for Writ of Certiorari — Batts v. Tow-Motor Forklift Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1221

## Text

IN THE
SUPREME COURT OF THE UNITED STATES

October Term, 1995

MYRON BATTS,
Petitioner

Vv.
TOW-MOTOR FORKLIFT COMPANY and

CATERPILLAR INDUSTRIAL, INC.
Respondents

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Charles M. Merkel, Jr.
P.O. Box 1388
Clarksdale, Mississippi 38614

Attorney for Petitioner

QUESTIONS PRESENTED FOR REVIEW

This Petition presents the
following important question:

i. Whether a federal district
court has authority pursuant to Fed. R.
Civ. P. 60(b) (6) to grant an
unsuccessful litigant relief from a
final judgment where a_ subsequent
decision of a state’s highest court in
an unrelated case makes clear that the
federal district court improperly
instructed the jury on state substantive
law at the time of trial, over
Petitioner’s ttimely objections, and
where the Petitioner was unsuccessful on
appeal raising these identical issues?
In this case there are additional
extenuating circumstances in that the
appellant unsuccessfully moved the Court
of Appeals to stay the appeal pending
the expected forthcoming decision of the
Mississippi Supreme Court in an
unrelated case which raised identical
issues and questions of law as those
presented in the instant case, the
decision of the Mississippi Supreme
Court was expected to be rendered in the
immediate future and would clarify any
uncertainties as to the application of
state law in the context of the federal
appeal, and the subsequent decision of
the Mississippi Supreme Court, in fact,
made clear Appellant was correct all
along in his interpretation of state law
which would have mandated that he be
given a new trial had the case been
stayed as requested.

TABLE OF CONTENTS

Page
Questions
Presented......-. Pree ee ee i
Table of AuthoritiesS.......++s+.5. ii
Citations to Opinions Below..... vi
Jurisdiction...... Pe ee er ee vi
Statement of the CaS@....--+eee: 1
Argument for Allowance of the
Writ. sces b0306 6688 Terey rr. TE 11
Conc lusiOh. < «sss ss seeeees 06.05 05 14
APPENdix...ceeeeeeeereeeeeeceees 15
A. re) s v. Tow-
Forkli ompany an
Caterpillar, Inc., 978 F.2d
1386 (5th Cir. 1992) «cece 15
B. Myron Batts v. Tow-Motor
Forklift Company and
Caterpilar Industrial, Inc.,
153 F.R.D. 103
(N.D. Miss. 1994).....+-- 35
Cc. Myron Batts v. Tow-Motor
Forklift Company and
Ca j ustri ;
F.3rd (No. 94-60606)
(Sth Cir. 1995) ...cecsese 82

ii

TABLE OF AUTHORITIES
CASES
Page
790 F.Supp 1234 (S.D.N.Y.
Bes 66 be0b en beses BeHBhK & . eeeeeeeeeeé 13
130 F.R.D. 625 (S.D. Miss.
ee ee 13
Vv - fe) :
978 F.2d 1386 (5th Cir.
2992) ccc *e © ff c= eenwee 8&6 6 6 64 8 & & 4, Q
Batts v. Tow-Motor Forklift Co.,
153 F.R.D. 103
Prema MEMES BOOED ic aececccecccccec 8
Batts v. Tow-Motor Forklift Co.,
F.3rd
SIME CID wok Nga bv cececc ee 11
s cti Vv. Goodwin,
116 F.R.D. 281 (E.D. Mo.
DPPC RPeeeL aD cea Ghct sk beh eececee 13
Vv. W ,
873 F.2d 200 (8th Cir. 1989)
cert. denied 110 S.Ct. 105....... 13
Digicourse, Inc. v. AMA
Distribut I

113 F.R.D. 35 (E.D. La. 1986).... 13

First Amer: Nationa) ae

Vv Vv 27
Bak FiRios 74 (W.D.Ky. 1988)..... 13
Hal] Mi : ic ical
Express, Inc.
528 So.2d 796 (Miss. SESS) ecccec » §

iii

' eek aie a

anin iad ej vere, _—
776. F.2d 1277 (5th Cir. 1985)... 11
In Re: Disclosure Of Grand
7
821 F.2d 1290 (7th Cir. 1987).... 13
- j j Vv.

’
634 F.Supp. 656 (E.D.Cal. 1986).. 13

Vv j s,
335 U.S. 601 (1949)... eee eeee ka, 4
. V. a ,
350 F.2d 817 (5th Cir. 1965)..... an
McGrath v. Potash,
199 F.2d 166 (D.C. Cir. 1952).... 13

Matarese v. LeFevre,
801 F.2d 98 (2nd Cir. 1986) cert.

denied 480 U.S. 908 (1987)....... 13
Melton Vv. ere & Co.,
887 F.2d 1241 (5th Cir. 1989) ..ce- 2

Pierce v. Cook & Co.,
518 F.2d 720 (10th Cir. 1975)

cert. denied
423 GaSe TOTS C2976) «occ sc ces 13, 14
Vv ;
811 F.2d 1398 (11th Cir. 1987)... 12
’

883 F.2d 1418 (9th Cir. 1989).... 13
Vv Vv Vv ’

635 F.2d 396 (5th Cir. 1981)...... 7

iv

Sperry-New Holland v. Prestage,
617 So.2d 248 (Miss. 1993)....

Marine, Inc.,
805 F.2d 599, 604

(Sth Cir. 1986)... ccsccccccees Li, 12

whitt] v. Cit € Meridian,
530 So.2d 1341 (Miss. 1988)....... 5

Wilson v. Fenton,

684 F.2d 249 (3rd Cir. 1982)..... 12
RULES
Fed. R. Civ. P. 60(b) (6)......00- 6, 9,

26:0. 80 SEO iC ee 8, 10

CITATIONS TO OPINIONS BELOW

The relevant opinions on this
Petition for Certiorari are the
following: (1) The opinion of the United
States Court of Appeals for the Fifth
Circuit affirming the jury verdict in
favor of the Defendant Caterpillar,
Inc., being
Co., 978 F.2d 1386 (5th Cir. 1992); (2)
The opinion of the United States
District Court for the Northern District
of Mississippi granting Myron Batts
relief from the final judgment in favor
of Caterpillar pursuant to Fed. R. Civ.
Pro. 60(b) (6), being Batts v. Tow-Motor
Forklift Co., 153 F.R.D. 103 (N.D. Miss.
1994); and (3) The opinion of the United
States Court of Appeals for the Fifth
Circuit reversing the decision of the
District Court granting Myron Batts
relief from the original final judgment,

being Batts v. Tow-Motor Forklift Co.,
F.3d (No. 94-60606) (5th Cir.

———— ee

1995).
JURISDICTION

This cause of action was originally
filed by Plaintiff Myron Batts against
Defendants Tow-Motor Forklift Company
("Tow-Motor") and Caterpillar, Inc.
("Caterpillar") in the United States
District Court for the Northern District
of Mississippi based on a diversity of
citizenship between the parties. After
the jury verdict in favor of Defendant
Caterpillar,? the Plaintiff filed a

vi

1Tow-Motor was purchased by
Caterpillar with assumed liability for
products manufactured prior to. the
purchase.

timely appeal to the United States Court
of Appeals for the Fifth Circuit. On
November 25, 1992, the United States
Court of Appeals for the Fifth Circuit
rendered its opinion affirming judgment
in favor of the Defendant. On December
23, 1992, the Court entered an order
denying Appellant Myron Batts’ petition
for rehearing and rehearing en banc. On
or about January 4, 1993, following the
decision of the Mississippi Supreme
Court in Sperry-New Holland v. Prestage,
617 So.2d 248 (Miss. 1993), Plaintiff
Myron Batts moved the district court for
relief from the judgment pursuant to
Fed. Rule Civ. Proc. 60(b)(6) on the
basis that Prestage made clear that the
Plaintiff was correct all along in his

interpretation of Mississippi
substantive law and that the jury was
Clearly improperly instructed. The

district court agreed and granted the
Plaintiff’s motion, vacated the judgment
and restored the case to its active
docket. The district court allowed
Defendant leave, however, to file an
interlocutory appeal pursuant to 28
U.S.C. § 1292(b), which the Fifth
Circuit initially denied, then agreed to
hear. On October 3, 1995, the Fifth
Circuit rendered its opinion reversing
the decision of the district court
granting Plaintiff relief under Fed. R.
Civ. Proc. 60(b)(6) as being an abuse of
discretion. No petition for rehearing
was filed. Plaintiff Myron Batts now
files this Writ of Certiorari seeking
review of the decision of the Fifth
Circuit reversing the district court’s
order granting Plaintiff relief from the
final judgment in favor of Defendant.

vii

STATEMENT OF THE CASE

Plaintiff instituted this action
against Defendant Caterpillar on or
about April 27, 1988. In his Complaint
and Amended Complaint, Plaintiff alleged
that on April 17, 1984, the Plaintiff
was employed by Flavorite Laboratories
in Horn Lake, Mississippi and was
injured when a forklift manufactured by
the Defendant backed into him, crushing
his leg. Plaintiff charged that the
Defendant was negligent in its design of
the forklift and that the forklift was
defective and unreasonably dangerous in
failing to provide backup warnings,
lights, mirrors and other devices so as
to prevent Plaintiff’s injury.
Plaintiff’s Complaint and = Amended
Complaint alleged both strict liability
in tort and negligence.

This matter was subsequently tried
by the United States District Court for
the Northern District of Mississippi,
per District Judge Glen Davidson with a
jury, commencing in April 1991. At the
conclusion of the proof, over
Plaintiff’s objections, the district
court instructed the jury that under
Mississippi law any "alleged danger
which is open and obvious cannot be
considered to be unreasonably
dangerous." The Court further
instructed the jury that:

If you find from a
preponderance of the evidence
in this case that’ the
operation of a forklift truck
without the driver facing in
the direction of travel and
without sounding the manual
horn to warn a pedestrian

1

presents an open and obvious
danger, regardless of whether
the forklift was equipped with
an audible backup alarm
device, flashing warning
lights, and/or rear view
mirrors, then in that event,
it is your sworn duty to
return a verdict in favor of
the Defendant.

These instructions, given over
Plaintiff’s objections, were apparently
predicated on prior decisions of the
United States Court of Appeals for the
Fifth Circuit, applying Mississippi law,
which held that Mississippi followed,
exclusively, the “consumer expectations
test" in determining whether a product
was defective and unreasonably
dangerous. Under this test, any product
which contained a defect which was “open
and obvious" could not, as a matter of
law, be more dangerous than contemplated
by the ordinary consumer and thus could

not be considered defective and
unreasonably dangerous under §402A as
applied in Mississippi. See, e.g.,

Melton v. Deere & Co., 887 F.2d 1241
(Sth Cir. 1989).

Because the dangers of a mov.ny
forklift are without doubt “open and

obvious," the jury, as so instructed,
naturally returned a verdict in favor of
the Defendant. In a timely fashion,
Plaintiff moved for judgment

notwithstanding the verdict or, in the
alternative, for a new trial contending
that the district court had erred in
instructing the jury that it must find
for the Defendant as a matter of law in
the event that the jury found the
dangers of operating a forklift without

wi

backup warning devices, flashing
signals, or a mirror to be open and
obvious. This motion was denied by
order of the district court dated April
30, 1991.

On May 7, 1991, Plaintiff filed a
timely appeal to the Fifth Circuit from
the jury verdict entered in favor of the
Defendant on March 29, 1991 and from the
order of the district court overruling
Plaintiff’s motion for judgment
notwithstanding the verdict, or in the
alternative, for a new trial dated April
30, 1991. On appeal, Plaintiff again
asserted the district court erred in
instructing the jury as to the consumer
expectation test and to the effect that
a open and obvious danger constituted a
complete bar to Plaintiffs’ claims.

Plaintiff also filed with the Fifth
Circuit a motion requesting the court to
stay the appeal pending the expected
forthcoming decision of the Mississippi
Supreme Court in a case styled Sperry-

New Holland, a Division of Sperry

Corporation v. John Paul Prestage and
Pam Prestage, Docket No. 90-CA-0657 (now
reported at 617 So.2d 248 (Miss. 1993)).

In his motion, Plaintiff noted that
Prestage involved identical issues to
those presented by Plaintiff in the
instant appeal’, that Prestage had been

?Prestage was tried before Hinds
County Mississippi Circuit Judge (now
Mississippi Supreme Court Justice) Fred
Banks. At trial, Judge Banks denied
almost identical “open and obvious"
instructions offered by Sperry-New
Holland. At trial, the Prestages were
represented by the Clarksdale,

fully briefed and argued to the
Mississippi Supreme Court well in
advance of the instant appeal to the
Fifth Circuit and that the expected
forthcoming decision of the Mississippi
Supreme Court would make clear whether
under Mississippi law an open and
obvious danger would preclude recovery
under Mississippi product liability
law.? By Order dated June 10, 1991,
the Fifth Circuit denied Plaintiff’s
motion to stay. The Court also denied
the Plaintiff’s motion to certify the
case to the Mississippi Supreme Court.
On November 25, 1992, a three judge
panel of the Fifth Circuit, ina 2 tol
decision, rendered an opinion affirming
the jury verdict below. See Batts v.

Tow-Motor Forklift Co., 978 F.2d 1386
(5th Cir. 1992).

Mississippi firm of Merkel & Cocke. The
defendant Sperry-New Holland was
represented by the Jackson, Mississippi
firm of Watkins & Eager. Ironically,
these same firms represent the Plaintiff
and Defendant, respectively, in the
instant matter. Because of this
representation, obviously both counsel
for Myron Batts and Caterpillar were
well aware of the exact issues and
arguments in the Prestage appeal, and
its obvious impact on the identical
issues raised in Batts. The Fifth
Circuit was informed of all of this in
Plaintiff’s motion to stay.

3prestage was tried beginning April
9, 1990. Batts was not tried until
April 1, 1991, almost a full year later.
Thus, by the time Batts was even tried
the Prestage appeal had been fully
perfected.

On December 7, 1992, the Plaintiff
served a petition for rehearing and
rehearing of en banc requesting that the
Court reconsider its decision en banc.
By decision dated December 23, 1992,
Plaintiff’s suggestion for re-hearing en
banc was denied. The Fifth Circuit’s
mandate issued January 4, 1993.

On March 25, 1993, Mississippi
Supreme Court rendered its expected
decision in Sperry-New Holland v.
Prestage, 617 So.2d 248 (Miss. 1993).
In Prestage, as argued by Myron Batts in
the instant case, the Mississippi
Supreme Court expressly recognized that
it had previously adopted a "risk-
utility" analysis in Whitley v. City of
Meridian, 530 So.2d 1341 (Miss. 1988)
and Hall] _v. Mississippi Chemical
Express, Inc., 528 So.2d 796 (Miss.
1988). The Court further expressly
rejected the analysis of a long line of
Fifth Circuit decisions, including the
decision cf the Fifth Circuit in Batts,
that Mississippi had adhered solely to
the “consumer expectations" standard
articulated by the Fifth Circuit.

» 617 So.2d at 256. The Court
further noted that:

Having here reiterated this
Court’s adoption of a "risk-
utility” analysis for products
liability cases, we hold,
necessarily that the "patent
danger" bars no longer
applicable in Mississippi.
Under a "risk-utility"
analysis, the “patent danger"
rule does not apply. In
"“risk-utility," the openness
and obviousness of a products
design is simply a factor to

5

consider in determining
whether a product is
unreasonably dangerous.

Prestage, Id. at n. 4.

As is evident from the Mississippi
Supreme Court’s decision in Prestage,
the jury in the instant action was
improperly instructed on the law,
particularly to the effect that if the
jury found that the danger associated
with the forklift in question was open
and obvious it must find for the
Defendant as a matter of law. As is
evident from the foregoing, Plaintiff
properly objected to the Defendant’s
jury instructions incorporating the
patent danger rule. Upon the Court’s
granting of the Defendant’s requested
instructions, and the subsequent verdict
in favor of the Defendant, Plaintiff
took every step necessary to preserve
the issue on appeal, including a direct
request that the Fifth Circuit stay its
decision and/or certify the case pending
the expected outcome of the Mississippi
Supreme Court’s decision in Prestage.
As evident, all of Plaintiff’s timely
efforts to preserve the issue
nevertheless failed.

On the heels of Prestage, however,
on April 19, 1993, Myron Batts moved the
district court pursuant to Fed. R. Civ.
P. 60(b)(6) for relief from the final
judgment in favor of Caterpillar. This
rule, of course, provides that "on
motion and upon such terms as are just,
the court may relieve a party or a
party’s legal representative from a
final judgment, order, or proceeding
for...any other reason justifying relief
from the operation of the judgment." In

6

his motion, Myron Batts noted that he
had raised identical issues to those
presented in Prestage, that he had done
everything within his power to convince
the Fifth Circuit and the district court
below that the jury had been improperly
instructed, that but for the Fifth
Circuit’s unreasonable refusal to stay
his appeal, Plaintiff would be entitled
to a new trial, and that justice
dictated that he be given a new trial on
proper jury instructions.

On February 8, 1994, United States
District Judge Glen Davidson entered an
order and memorandum opinion granting
the Plaintiff’s motion for relief from
the court’s final judgment. In his
memorandum opinion, the district judge
concluded:

The Court has considered
Batts’ Motion for Relief from
Judgment in light of the

(Seven Elves, Inc. Vv,

Eskenazi, 635 F.2d 396 (5th
Cir. 1981) } factors and

mindful that Rule _ 60(b) (6)
relief from judgment is
reserved for extraordinary
circumstances. Obviously, the
respect for the finality of
judgment must be weighed
against the Court’s principle
interest that substantial
justice be achieved with each
case. To this end, this case
falls within that
"extraordinary" category....

For reasons which are
explained in this Opinion,
Myron Batts’ Motion for Relief
from Final Judgment pursuant

7

to Rule 60(b) (6) is well taken
and the same will be granted
by separate order to issue
this date. This Court’s final
judgment in this case sub
entered on or about
April 3, 1991 is vacated and
the case is returned to the
undersigned’s active docket.

Defendant Caterpillar subsequently
moved the district court to reconsider,
or in the alternative, amend the order
granting relief from the final judgment
and/or to certify an interlocutory
appeal to the Fifth Circuit. On April
11, 1994, the district court entered an
order denying the Defendant’s motion to
reconsider but granting the Defendant’s
motion to amend the February 8, 1994
order to allow an interlocutory appeal.
In granting the Defendant’s request for
an interlocutory appeal the court held:

This case squarely presents
a controlling question of law
for which there is a
substantial ground for 4a
difference in opinion.
Specifically, the key inquiry
concerns the time, or date,
when Mississippi products
liability law changed from the
consumer expectation test for
defining "unreasonably
dangerous--defective
condition" to the risk utility
approach.

From this order, Defendant Caterpillar
filed with the Fifth Circuit a petition
for permission to appeal under 28 U.S.C.
§1292(b).

On May 24, 1994, the Fifth Circuit
entered an order denying Caterpillar’s
petition to appeal from an interlocutory
order. In its order, the Court stated:

The question certified by
the district court with
respect to the date on which
the risk-utility test became
applicable under Mississippi’s
products-liability law does
not involve ae_ée controlling
question of law to which there
is a substantial ground for a
difference of opinion. This
issue has been determined by
the Mississippi Supreme Court,
and this Court is bound by

that determination. See

w- iv. oO

Sperry Corp. v. Prestage, 617

So.2d 248, 253 (Miss. 1993);

Vv. w-Mot klift

Co., 978 F.2d 1386, 1389 (5th
Cir. 1992).

This Court may consider
issues other than the
certified question only if the
interlocutory appeal has been
properly filed and
accepted.... Because the
certified question does not
present a question of law to
which there is a substantial
ground for difference of
opinion, the Petitioner cannot
obtain an interlocutory appeal
of the Rule 60(b) issue.

From this order, Caterpillar
subsequently moved the district court to

restate the controlling question and to
re-certify the issue to the Fifth
Circuit.

On August 1, 1994, the district
court entered a further order re-stating
the controlling question of law and re-
certifying an interlocutory appeal. In
his order, the district judge stated:

This case presents a
controlling question of law
for which there is a
substantial ground for a
difference of an opinion and
from which an immediate appeal
would materially advance the
ultimate termination of this
litigation as well as_ the
progress of other cases which
are similarly situated.
Specifically, the controlling
question of law is as follows:
was it proper for this
district court to grant
Plaintiff’s Rule 60(b) (6)
motion for relief from
judgment, in light of the
Mississippi Supreme cCourt’s
——— in Sperry-New Holland

Prestage, 617 So.2d 248
ieee 1993), after the

judgment had been entered by
the district court and
confirmed by the Circuit Court
of Appeals on direct review?

From this order, Defendant
Caterpillar again filed a petition for
permission to appeal under 28 U.S.C.
§1291(b). This petition was granted by
the Fifth Circuit on September 2, 1994.

10

On October 3, 1995, the Fifth
Circuit rendered its opinion reversing
the district court and reinstating the

original judgment in favor of
Caterpillar See Batts v. Tow-Motor
Forklift, Co, F.3d (Sth Cir.

1995). By this writ, Plaintiff now
seeks review of the decision of the
Fifth Circuit.

ARGUMENT FOR ALLOWANCE OF WRIT

Federal Rule of Civil Procedure
60(b) (6) provides:

On motion and upon such
terms as are just, the court
may relieve a party or a
party’s legal representative
from a final judgment, order
or proceeding for...(6) any
other reason justifying relief
from the operation of the
judgment.

Rule 60(b) was intended to confer
broad discretion on the trial court to
grant relief when appropriate to
accomplish justice. See, e.g.,
Sti vi Vv a oo.
805 F.2d 599, 604 (5th Cir. 1986) citing
Laguna Royalty Co. v. Marsh, 350 F.2d
817, 822 (5th Cir. 1965) ("[{R]Jule 60(b)
is to be liberally construed to do

substantial justice.") Cf. Hibernia

National Bank v. Administracion Central
Sociedad Anonima, 776 F.2d 1277, 1279
(Sth Cir. 1985) ("[R]ule 60(b) (6) is to
be liberally construed so that doubtful
cases may be resolved upon the merits.")
"Clause (6) is a residual clause used to
cover unforeseen contingencies; that is,
it is a means for accomplishing justice
in exceptional circumstances."

11

, 805 F.2d at 604-5 (cites
omitted). It is properly invoked where
there are extraordinary circumstances,
or where the judgment may work an
extreme and undue hardship and should be
liberally construed when substantial
justice will thus be served.

, 805 F.2d at 604. As noted
by United States Supreme Court Justice
Black:

In simple English, the
language of the “other reason"
clause, for all reasons except
the five particularly
specified, vests power in
courts adequate to enable them
to vacate judgments whenever
such action is appropriate to
accomplish justice.

Klapprot v. United States, 335 U.S. 601,
614-615 (1949). As recognized by Judge

Davidson below, numerous courts have
recognized that a post-decision change
or clarification in controlling law may,
in appropriate cases, constitute
"extraordinary circumstances" warranting
Rule 60(b) (6) relief. See, e.g., Ritter
v. Smith, 811 F.2d 1398, 1401-1403 (11th
Cir. 1987) (subsequent decision of U.S.
Supreme Court made appellate decision
clearly erroneous; factors, including
the fact that prior judgment remained
unexecuted, minimal delay between
finality of judgment and motion for Rule
60(b)(6) relief, close relationship
between issues decided, and
considerations of comity constituted
"extraordinary circumstances" warranting
60(b) (6) relief); Wilson v. Fenton, 684
F.2d 249, 261 (3rd Cir. 1982) ("a
decision of the Supreme Court of the
United States or a court of appeals may

12

provide the extraordinary circumstances
for granting a Rule 60(b) (6)
motion...."); Pierce v. Cook & Co., 518
F.2d 720 (10th Cir. 1975) cert. denied
423 U.S. 1079 (1976). See also Matarese

vy. LeFevre, 801 F.2d 98, 106 (2nd Cir.
1986); McGrath v. Potash, 199 F.2d 166

(D.C. Cir. 1952); Adler v. Berg Harmon
Associates, 790 F.Supp 1235 (S.D.N.Y.
1992). See
Ponmona, 883 F.2d 1418, 1423 (9th Cir.
1989); Cox v. Wyrick, 873 F.2d 200, 201
(8th Cir. 1989) cert. denied 110 S.Ct.
105;
Material, 821 F.2d 1290 (7th Cir. 1987)
(independent action in equity based
change in law; consideration same as
Rule 60(b) (6)); Kern-Tulare Water
j 7 j , 634
F.Supp. 656 (E.D.Cal. 1986) aff'd in
part, rev’d in part, 828 F.2d 514 (court
may reconsider ruling based on change in

controlling law) ; First American

National Bank of Nashville v. Bonded
Elevator, Inc., 111 F.R.D. 74 (W.D.Ky.

1988) (defendant entitled to relief from
final judgment where law relied upon by
district court subsequently overturned
by state supreme court); Atkins v.

Marathon Le Tourneau Co., 130 F.R.D. 625
(S.D. Miss. 1990) (change in controlling

law may provide basis to alter or amend
judgment under Rule 59(e)); Digicourse,
inc, v. AMA Distributors, Inc., 113

F.R.D. 35 (E.D. La. 1986) (under Rule
60(b) (6), change in applicable law may
dictate relief in extraordinary
circumstances) ; Ben Hur Construction Co.
v. Goodwin, 116 FRD 281 (E.D. Mo. 1987)
(decision of U.S. Supreme Court may
provide extraordinary circumstances
under Rule 60(b) (6)).

13

CONCLUSION

The decision of the Fifth Circuit
in the instant case is that the District
Judge abused his discretion in granting
Plaintiff relief from the final judgment
pursuant to Rule 60(b) (6). This holding
is inconsistent with the stated purpose
of the rule, see Klapprot v. United
States, 335 U.S. at 614-615, and with
decisions of other appellate decisions,
see, e.g., Pierce v. Cook, 518 F.2d at
720. There are no decisions of this
Court known to Petitioner which
specifically address the scope of a
federal judge’s discretion under Rule
60(b) (6). Because of the importance of
this issue, and the inconsistency by
which it has been interpreted and
applied by lower federal courts,
guidance is needed from this Court.
Petitioner urges the Court to grant
certiorari on this important issue.

Respectfully submitted,

MERKEL & COCKE
A Professional Association
Post Office Box 1388
Clarksdale, Mississippi 38614
(601) 627-9641
Attorne r Plain

if

By:
CHARLES M. MERKEL, J
(MSB #2884)

14

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 94-60606

MYRON BATTS,

Plaintiff-Appellee,
versus

TOW-MOTOR FORKLIFT COWANY and
CATERPILLAR, INC.,

Defendants,

CATERPILLAR, INC.,

Defendant-Appellant.

Appeal from the United States
District Court for the Northern
District of Mississippi

Before JOLLY and BENAVIDES, Circuit
Judges, and FITZWATER, District Judge.*
FITZWATER, District Judge:

*District Judge of the Northern District
of Texas, sitting by designation.

15

We are asked to decide in this case
Erie’ whether a change in_ state

decisional law - in this’ instance,
Mississippi’s conversion from the
"consumer expectations" to the

“risk-utility"” test in products
liability actions--constituted an extra
ordinary circumstance that vested the
district court with discretion to grant
Fed. R. Civ. P. 60(b)(6) relief.
Because we hold that it did not, we
reverse.

I.

The relevant background facts are
set out in our prior opinion in this
case, see Batts v. Tow-Motor Forklift
Co., 978 F.2d 1386, 1387-88 (5th Cir.
1992) ("Batts I"), and in the district
court’s decision below. See Batts v.
Tow-Motor Forklift Co., 153 F.R.D. 103,
104-05 (N.D. Miss. 1994) ("Batts II").
We therefore recount them only briefly,
adding subsequent procedural facts that
necessarily were not set out in those
opinions.

In 1984 plaintiff-appellee Myron
Batts ("Batts") was injured when a
coworker using a forklift collided with
Batts. Batts [, 978 F.2d at 1388. The
coworker hit Batts as he was operating a
"tugger"--a type of motorized forklift
that a person walks’ behind = and
guides--as the coworker was operating
his forklift in reverse, but without
sounding the equipment’s manual horn.
Id. at 1387-88. The forklift was

‘Erie R.R. Co. v. Thompkins, 304
U.S. 64 (1938).

16

generally maneuvered equally in reverse
and in forward. Jd. at 1387.

In 1988 Batts brought a diversity
action against defendant Tow-Motor
Forklift Company, the manufacturer of
the Ferkiiee, and its
successor-in-interest,
defendant-appellant Caterpillar
Industrial, Inc. ("Caterpillar"),
alleging inter alia theories of
negligence and strict liability. Id. at
1388. The case was tried in March 1991.
Batts II, 153 F.R.D. at 104. Batts
introduced evidence at trial to prove
that the forklift should have been
equipped with a back-up alarm, flashing
warning lights, and/or rearview mirrors,
and that this failure entitled him to
recover on the basis of strict liability
(defective and unreasonably dangerous
product) or negligence (negligent
design). Batts JI, 978 F.2d at 1388.
Caterpillar presented evidence that
there was no restriction on the
operator’s visibility to the rear, and
that there was a danger in the
operator’s relying on alarms, lights, or
mirrors rather than simply looking in
the direction of travel. Id.

One of Caterpillar’s principal
defenses was that the absence of the
devices on which Batts’ relied to
establish liability, coupled with the
danger of the forklift operator’s not
facing the direction of travel, was open
and obvious to the forklift owner
(Batts’ employer) and to users (the
employee operators), thus barring
recovery by Batts under Mississippi law.
Id.; See Batts IJ, 153 F.R.D. at 104 (To
this end, such open and obvious danger
was a complete bar to recovery under
Mississippi law.). Over Batts’

17

objection, the trial court instructed
the jury on Caterpillar’s "open and
obvious" defense, Batts II, 153 F.R.D.
at 104-05, charging the jury that an
open and obvious danger could not render
the product unreasonably dangerous.
Batts I, 978 F.2d at 1391. The court
also directed the jury to find whether
the defect was open and obvious to a
reasonable and prudent user, and
instructed the jury that if it so found,
it was to render a verdict in favor of
Caterpillar. Id. at 1392. The jury
returned a verdict for Caterpillar.

Following denial of his
post-verdict motions, Batts appealed to
this court and moved the court to stay
the appeal pending the Mississippi
Supreme Court’s expected decision in

-New Vv. » 6a?
So.2d 248 (Miss. 1993), an unrelated and
as yet undecided case then pending
before that court. A panel of this
court denied the motion in June 1991.
We later affirmed the judgment in favor
of Caterpillar. Batts I, 978 F.2d at
1397. We filed our opinion on November
25, 1992, and denied a petition for
rehearing and rehearing en banc on
December 23, 1992. Our mandate issued
on January 4, 1993.

In 1991, when the case was tried,
and in 1992, when we decided Batts’
appeal, we understood Mfississippi to
follow the consumer expectations rather
than risk-utility test in strict
liability actions. See Id. at 1392;
Me Vv. -, 887 F.2d 1241,

18

1243 (5th Cir. 1989). In Batts I we
noted that “our court has held...
that there is no strict liability in
tort under Mississippi law for a
patent--open and obvious--danger." Batts
qt, 978 F.24 et 1392. Batts conceded
that our decisions "support (ed)
Caterpillar’s contention that the
consumer expectation test applies, as
opposed to a risk utility analysis." Id.
(footnote omitted). He urged, however,
that we had misinterpreted Mississippi
law. Jd. at 1392-93. We disagreed with
Batts’ analysis, holding that the cases
on which he relied "do not persuade us
that Mississippi has fundamentally
shifted its test from one of consumer
expectation to risk utility." Jd. We
also held that even if we agreed with
Batts, we were still bound by the prior
panel opinion in Melton. Id. & n. 15.
We declined to certify the issue to the
Mississippi Supreme Court, noting that
"(ojur law is clear" and that "the
Mississippi law upon which our precedent
is based is unchanged." Id. at n. 16.

2 Judge Reaviley disagreed with this
circuit’s interpretation of Mississippi
law. See Melton, 887 F.2d at 1246-48
(Reavley, J., dissenting) (urging that
Mississippi does not apply "consumer
expectations" test to determine whether
product design is defective); Satcher v.

Honda Motor, F.3d 1311, 1314 n.2 (5th

Cir. 1995) (Reavley, J.). Our more
recent opinions recognize the change to
risk utility analysis. See, ¢@.g.,

Williams V. Briggs Co. 62 F.3d 703, 705

(Sth Cir. 1995).

19

On March 25, 1993--subsequent to
issuance of our mandate on January 4,
1993--the Mississippi Supreme Court
filed its opinion in Prestage holding
that Mississippi applied the risk--
utility test of products liability, and
that it had done so _ since 1988.
Prestage, 617 So.2d at 252, 254-55.
Prestage involved a suit for injuries
caused when the plaintiffs leg was
caught in a combine manufactured by
Sperry-New Holland, requiring amputation
of the lower portion of the plaintiff’s
leg. Prestage sued Sperry-New Holland
on strict liability and negligent design
theories. The trial court instructed
the jury using risk-utility analysis,
and it returned a verdict for the
plaintiff. Id. at 251.

On appeal, the Mississippi Supreme
Court affirmed, reasoning that it had
moved away from consumer expectations
analysis in two 1988 decisions, Hall _v.
Mississippi Chemical, Inc., 528 So.2d
796 (Miss. 1988), and Whittley v. City
of Meridian, 530 So.2d 1341 (Miss.
1988). Prestage, 617 So.2d at 254-55.
The court noted that most courts employ
the risk-utility test, and that this
standard protects both manufacturers and
consumers by requiring that
manufacturers make products that are
reasonably safe under all circumstances,
as opposed to absolutely safe unless the
danger is facially apparent. Id. at
256. The court expressly rejected this
court’s conclusion in Melton, 887 F.2d
at 1243, that Whittley had not altered
the test for strict liability. Prestage,
617 So.2d at 255. The court held that
an open and obvious danger was not an
absolute bar to recovery. Id. at 256
n.4.

20

On April 19, 1993 Batts filed in
the district court below a Rule 60(b) (6)
motion, urging the court on the basis of
Prestage to relieve him from the adverse
judgment. See Batts JJ, 153 F.R.D. at
109. The district court granted Batts’
motion, vacated the judgment in favor of
Caterpillar, and restored the action to
the court’s active docket. Id. at 104,
109-10. The court stated that it had
considered the factors of Seven Elves,
Inc. v. Eskenazi, 635 F.2d 396, 402 (5th
Cir. 1981), but did not explain how it
had weighed any particular factor in
reaching its decision. See Batts JI, 153
F.R.D. at 109-10. It is otherwise clear
from the district court’s opinion,
however, that the court granted Rule
60(b)(6) relief on the ground that it
had applied the consumer expectations
test at trial in March 1991,
notwithstanding that Mississippi law had
converted to the risk-utility test in
1988. Id. at 104 (holding "that the
jury was improperly instructed on
Mississippi products liability law when
this case went to trial in March of
1991"), id. (recognizing "the
retroactive rule of Prestage"), & 106-07
(observing that Prestage announced that
Mississippi products liability law had
changed in 1988).

The district court’ thereafter
granted Caterpillar leave to take an
interlocutory appeal of the order, and
stayed all proceedings below. A panel
of this court first denied, and later
granted, leave to appeal.

21

Caterpillar asks us to reverse the
order of the district court and
reinstate the prior judgment in its
favor.

II.

A.

Rule 60(b) (6) provides that a court
may “relieve a party ... from a final
judgment ... for ... any other reason
justifying relief from the operation of
the judgment." Rule 60(b) sets out five
specific bases for granting relief from
a final judgment, followed by clause
(b) (6). We have held that this clause’s
"“‘any other reason’ language refers to
any other reason than those contained in
the five enumerated grounds on which a
court may grant a Rule 60(b) motion."

Partnership v. Peylon Place, Inc., 62
F.3d 767, 773 (5th Cir. 1995) (citing
cases). Although we frequently have
recognized that "’Rule 60(b)(6) is a
grand reservoir of equitable power to do
justice in a particular case when relief
is not warranted by the preceding
clauses,’" e.g., id. (quoting Harre] v.
DcS Equip. Leasing Corp., 951 F.2d 1453
(Sth Cir. 1992)), we have also narrowly
circumscribed its availability, holding
that Rule 60(b)(6) relief will be
granted only if extraordinary
circumstances are present." Bailey v.

, 894 F.2d 157, 160
(Sth Cir.) (affirming order denying Rule
60(b)(6) motion based on change in
federal law) (citing Ackermann v. United
States, 340 U.S. 193 (1950)), cert.
denied 498 U.S. 829 (1990); Government
Fin. Servs. 62 F.3d at 774; American
Totalisator Co. v. Fair Grounds Corp., 3
F.3d 810, 815-16 (5th Cir. 1993).

22

The district court granted Batts’
Rule 60(b) (6) motion on the ground that
the case had been tried under the
consumer expectations test, when
Mississippi had in fact converted
earlier to the risk-utility test. See
Batts IJ, 153 F.R.D. at 104, 106-07. We
review the district court’s decision for
abuse of discretion. New Hampshire Ins.
Co, Vv. Martech USA, Inc., 993 F.2d 1195,
1200 (5th Cir.1993).

At the time this case was tried,
the law of this circuit--reiterated in
1989 in Melton--was that Mississippi
followed the consumer expectations test.
Melton was decided after the 1988
decisions in Hal] and Whittlev, which
the Mississippi Supreme Court said in
Prestage changed the state’s products
liability law. Prestage, 617 So.2d at
255. Subsequent to Melton no case was
rendered that indicated that Melton’s
analysis of Mississippi law was
incorrect. Batts I, 978 F.2d at 1393.
In 1991 the district court was therefore
obligated to try the case under the
consumer expectations test, because it
was bound by our interpretation of state
law absent a subsequent state court
decision or statutory amendment that
rendered this court’s prior decision
clearly wrong. See Ginsberg 1985 Real
Estate Partnership v. Cadle Co., 39 F.3d
528, 534 (Sth Cir. 1994). Our
affirmance of the district court’s
instructions based on the consumer
expectations test makes pellucid that
the trial court correctly followed state
law as we had interpreted it. See Batts
I, 978 F.2d at 1392-93.

23

The district court vacated the
judgment in favor of Caterpillar on the
basis of a change in decisional law
announced after the 1991 trial and 1992
affirmance. In Bailey, we stated that
"ta) change in decisional law after
entry of judgment does not constitute
exceptional circumstances and is not
alone grounds for relief from a final
judgment."° Bailey, 894 F.2d at 160
(citing
Corn,, 726 F.2d 333, 336 (7th Cir.
1984); Title v. United States, 263 F.2d

28, 31 (9th Cir.), cert. denied, 359
U.S. 989 (1959).* Accordingly, because

this change from the consumer
expectations test to the risk-utility
test did not constitute an extraordinary
circumstance sufficient to justify Rule
60(b)(6) relief, we hold that’ the
district court abused its discretion
when it granted Batts’ motion and
vacated the judgment. See id. at 160.°

3This statement is dicta because
the panel had already held that Rule
60(b)(6) relief was unavailable to
appellant because he had also sought
relief on the basis of Rule 60(b) (5).

“In Picco v. Global Marine Drilling
Co., 900 F.2d 846, 851 (5th Cir. 1990),
we cited Bailey with approval in
determining that it was an abuse of
discretion for the district court to
grant relief where the Supreme Court had
changed the applicable rule of law.

Sour decision in Satcher v. Honda
Motor Co., 993 F.2d 56 (5th Cir. 1993),
is not to the contrary. Although in

24

ee

We think a proper understanding of
the limited circumstances in which
post-judgment relief is available when
decisional law changes, and of our role
as an Erie court attempting to determine
and apply state law, supports’ the
conclusion that a change in state
decisional law, rendered after this
court makes an Erie prediction, will not
normally constitute an extraordinary
circumstance, and cannot alone be
grounds for relief from a fmal judgment
pursuant to Rule 60(b) (6) .°

Satcher we vacated our opinion after the
Prestage decision was announced, we did
so while the appeal was pending on
rehearing. Id. at 57. The Mississippi
Legislature had enacted House Bill 1270,
codifying various elements of
Mississippi conunon law regarding
products liability, and the Mississippi
Supreme Court had decided Prestaple
while the petition for rehearing in
Satcher was still pending. Id. We held
that these events, occurring after the
panel decision but prior to a ruling on
rehearing, had the potential to alter
drastically Mississippi products
liability law. Accordingly, we vacated
and remanded so that the district court
could address the parties’ arguments and
apply the new law to the facts of the
case. Id. at 57-58.

SWe do not hold that a change in
decisional law can never be an
extraordinary circumstance. Courts may
find a special circumstance warranting
relief where a change in the law affects

25

a petition for habeas corpus, where
notions of finality have no place.
Matarese v. LeFevre 801 F.2d 98, 106 (2d
Cir. 1986) (denying relief where
subsequent Supreme Court decisions
indicated that change in law had not, in
fact, occurred), cert. denied, 480 U.S.
908 (1987). Relief has also been found
appropriate where the erroneous judgment
has not yet been executed, where an
appeal or remand of the case is still
pending, or the judgment is not final.
See Adams V. Merrill Lynch Pierce Fenner
& Smith, 888 F.2d 696, 702 (10th Cir.
1989) (affirming district court relief
from judgment where Supreme Court
altered law regarding arbitration of
securities claims while claims were
pending); Wilson v. Al McCord Inc., 858
F.2d 1469, 14787-79 (10th Cir. 1988)
(vacating and remanding where change in
state law while appeal was pending made
it neccesary for parties to develop more
fully the factual record); OQverbee v.
Van Waters & Rogers 765 F.2d 578, 580
(6th Cir. 1985) (holding on the basis of
"the unique facts of this case" that
district court abused its discretion in
denying Rule 60(b)(6) relief where, at
time plaintiff filed motion, judgment
was not final, and action of Ohio
Supreme Court of reversing itself within
one year was certainly unusual). Rule
60(b) (6) may also warrant relief where
the subsequent court decision is closely
related to the case in question, such as
where the Supreme Court resolves a
conflict between another circuit ruling

and that case. See, e.g., Ritter v.
Smith 811 F.2d 1398, 1402-03 (11th

Cir.), cert. denied, 483 U.S. 1010
(1987). Similarly, where two cases

26

1

"Numerous courts have held that the
mere showing of a change in the law is
not enough to demonstrate such an
extraordinary situation when the
judgment has become final." Qverbee V.

, 765 F.2d 578, 580
(6th Cir. 1985).

Absent some showing of
extraordinary circumstances, courts have
refused to vacate their prior judgments
where they correctly applied federal
law, and a subsequent Supreme Court
ruling changed the law. See, e.g.,
Travelers Indem. Co. v. Sarkisian, 794
F.2d 754, 757 (2d. Cir.) (denying Rule
60(b) (6) relief where Supreme Court
reversed ruling on claims for indemnity
under RICO statute after entry of final
judgment), cert. denied, 479 U.S. 885
(1986). A party seeking relief under
Rule 60(b) cannot simply cite a new
Supreme Court decision to support its
motion; it must present proof that
enforcement of the judgment would work
an injustice. DeFillips v. United
States, 567 F.2d 341, 344 (7th Cir.
1977) .

, 663
F.2d 1354 (7th Cir. 1981). The required

showing is substantial. See Dowell v.
Sch., 8 F.3d 1501, 1509 (10th Cir.

arising out of the same transaction
result in conflicting judgments, relief
has been found to be warranted. See
Pierce v. Cook & Co., 518 F.2d 720, 723

(10th Cir. 1975), cert. denied, 423 U.S.
1079 (1976).

27

1993). Even where the judgment provides
injunctive relief, and thus has an
ongoing effect, courts may refuse a Rule
60(b) (6) motion founded upon the Supreme
Court’s announcement of a new rule of

law. Id.

Changes in decisional law based on
constitutional principles are not of
themselves extraordinary circumstances
sufficient to justify Rule 60(b) (6)
relief. For instance, in
City of Wichita, 254 F.2d 837 (10th Cir.
1958), a plaintiff challenged the
constitutionality of a Kansas statute
relating to the notice landowners
received in condemnation actions. The
plaintiff lost at trial and on appeal.
Over one year later, the Supreme Court
held the Kansas statute unconstitutional
and plaintiff sought reiief from the
adverse judgment. The Tenth Circuit
affirmed the district court’s denial of
the motion, finding that "a judicial
change in the court’s view of the law
after its entry, does not justify
setting it aside." Id. at 839.

A circuit court’s announcement of a
new rule of federal law, like a Supreme
Court pronouncement, is similarly
insufficient without more to justify
Rule 60(b) (6) relief. See

, 806 F.2d
1031, 1033-34 (Fed. Cir. 1986) (denying
relief where no evidence presented that
continued operation of judgment would
cause unjust result). In Tomlin v.
McCaniel, 865 F.2d 209 (9th Cir. 1989),
for example, plaintiff s 42 U.S.C. §1983
action was dismissed pursuant to a Ninth
Circuit ruling that the statute of
limitations for such suits was one year.
After the Supreme Court denied plaintiff

28

s petition for a writ of certiorari, the
circuit court held in P
733° F.2d 642 (9th Cir. 1984), that
imprisonment tolled the statute. The
Supreme Court announced in

Garcia, 471 U.S. 261 (1985), that the
limitations period should be equal to
that for state personal injury actions.
Under either case, plaintiffs action
would have been timely. In affirming
the district court’s denial of plaintiff
s motion for Rule 60(b)(6) relief, the
court stated, "(plaintiff] appealed and
the judgment against him became final
before the laws changed. That is the
rock on which his arguments founder."

Tomlin, 865 F.2d at 211.
ae

Our role as an_e Erie court
strengthens, rather than undermines, the
proposition that a change in decisional
law is insufficient to constitute an
extraordinary circumstance. "In
diversity cases, we apply substantive
state law."
inc., 42 F.3d 292, 295 (5th Cir.), Gert.

denied _—iU.S. » 115 S.Ct. 2614
(1995). Our position is analogous to a
state intermediate court.
Transcontine

~] , 953 F.2d 985,

988 (5th Cir. 1992). "This court is
Erie-bound to apply state law as it
currently exists, and may not change
that law or adopt innovative theories of
recovery.” Solomon v. Walgreen Co., 975
F.2d 1086, 1089 (5th Cir. 1992) (per
curism) (citing cases).

"In order to determine state law,
federal courts look to final decisions
of the highest court of the state. When

29

a

there is no ruling by the state’s
highest court, it is the duty of the
federal court to determine as best it
can, what the highest court of the state
would decide." i

Ins. Co., 31 F.3d 350, 351 (Sth Cir.
1994) (per curism) (quoting
Transcontinental, 953 F.2d at 988). “In
deciding an unsettled point of
(Mississippi) state law, Erie requires
that we determine how the Mississippi
Supreme Court would interpret its own
law if presented with the question."

Lawrence v. Virginia Ins. Reciprocal,
979 F.2d 1053, 1055 (5th Cir. 1992)
(citing Ww

Control Co. v. Browning-Ferris Inc., 949
F.2d 1384, 1")86 (5th Cir. 1991)); Batts
1, 978 F.2d at 1389. “When we are
required to make an Erie guess, it is
not our role to create or modify state
law, rather only to. predict it.

Lawrence, 979 F.2d at 1055; Batts I 978
F.2d at 1389.

The general rule that a change in
decisional law will not ordinarily
warrant Rule 60(b) (6) relief has greater
force in an Erie case because in this
context a federal court is doing no more
than fulfilling its obligation
scrupulously to determine how a state
court would decide a question. We find
the Second Circuit’s well-reasoned
opinion in DeWeerth v. Baldinger, 38
F.3d 1266 (2d Cir.), “em
U.S. __, 115 S.Ct. 512 (1994), to be
particularly instructive.

Erie requires that diversity courts
follow state law on substantive matters
not govemed by the Constitution or by
federal law. Id. at 1272. The court is
not required to be prescient. Instead,

30

"(wjhen confronted with an unsettled
issue of state law, a federal court
sitting in diversity must make its best
effort to predict how the state courts
would decide the issue." Jd. at 1273.
Erie and its progeny require no more of
@ federal court than conscientiously to
satisfy its duty to predict how the
state court will decide a question. See
Id. at 1274.

“However, the fact that federal
courts must foliow state law when
deciding a diversity case does not mean
that a subsequent change in the law of
the state will provide grounds for
relief under Rule 60(b)(6)." Id. at
1272-73. Erie contemplates that on any
open question of state law, a federal as
opposed to a state court will determine
the applicable rules of law. See id. at
1273. That a subsequent state court
resolves the question differently does
not render the federal diversity court
decision invalid, or mar the proceeding
as unfair. Id.

The very nature of
diversity jurisdiction leaves
open the possibility that a
state court will subsequently
disagree with a federal
court’s interpretation of
state law. However, this
aspect of our dual justice
system does not mean that all
diversity judgments are
subject to revision once a
state court later addresses
the litigated issues. Such a
rule would be tantamount to
holding that the doctrine of
finality does not apply to
diversity judgments, a theory

31

that has no basis in Erie or
its progeny.

Id. at 1273-74.

Consistent with the reasoning and
result of DeWeerth are cases such as

Dowel] _v. State Farm Fire and Cas. Auto
Ins. Co., 993 F.2d 46 (4th Cir. 1993),

and Seese vy. Volkswagenwerk A.G., 679
F.2d 336 (3d Cir. 1982). In Dowel] the
Fourth Circuit affirmed the district
court’s denial of a Rule 60(b) motion
where a plaintiff sought relief on the
basis of a West Virginia Supreme Court
ruling that changed the uninsured
motorist law. Analyzing the motion
under both Rule 60(b)(5) and (6), the
Fourth Circuit held, in relevant part,
that "a change in decisional law
subsequent to a final judgment provides
no basis for relief under Rule
60(b) (6)." Id. at 48. The Third Circuit
held in Seese that after the court of
appeals affirms a judgment and the
Supreme Court denies a petition for a
writ of certiorari, the case is no
longer sub judice, and a Rule 60(b) (6)
motion provides no basis for relief.
Seese, 679 F.2d at 337. The court
affirmed the district court’s denial of
a defendant’s Rule 60(b)(6) motion,
which was based on a Fourth Circuit
ruling that North Carolina would not
recognize the negligent design theory
upon which the plaintiff had recovered.
The Third Circuit rejected the argument
that Erie required that it apply the new
law to a case no longer sub judice. Id.
It quoted with approval the district
court’s opinion, in which the court
stated that, "Even if it were true...
that we have incorrectly guessed as to
what North Carolina law would ultimately

32

ois Geen

be, that would not be cognizable under
Rule 60 this time." Id.

D.

Batts emphasizes that this case
presents an extraordinary circumstance
because he requested that this court
stay the appeal in Batts I pending the
Mississippi Supreme Court’s anticipated
ruling in Prestage. We find nothing in
the district court’s opinion to indicate
that it exercised its discretion on the
basis of Batts’ motion for a stay of the
appeal. The district court’s opinion
does not mention the request. Instead,
as we have noted, the court below
granted relief on the ground that it had
incorrectly instructed the jury
conceming the consumer expectations
test, which had been replaced by the
risk-utility test three years prior to
the Batts trial. Because we are
reviewing the district court’s decision
under an abuse of discretion standard,
and since this factor apparently played
no role in the court’s exercise of its
discretion, we hold that Batts’ request
for a stay does not change our
analysis.’

"Batts also relies on Pierce, in
which the Tenth Circuit granted relief
from summary judgment where the state
law precedent upon which the district
court relied was subsequently overruled.

presented extraordinary
circumstances in that separate state and
federal actions arose from the same
incident and involved the same parties.
In DeWeerth, 38 F.3d at 1274-75, the
Second Circuit distinguished on grounds
with which we agree.

33

* *«&
Batts did not present an
extraordinary circumstance that
warranted Rule 60(b)(6) relief. The

district court therefore abused its
discretion in,granting Batts’ motion.
The order vacating the final judgment
below is therefore

REVERSED.

34

—— ee

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 91-1511

MYRON BATTS,
Plaintiff-Appellant,
VERSUS

TOW-MOTOR FORKLIFT COMPANY
and CATERPILLAR INDUSTRIAL, INC.,

Defendants-Appellees.

Appeal from the United States District
Court

for the Northern District of
Mississippi

Before BRIGHT,’ JOLLY, and BARKSDALE,
Circuit Judges.
BARKSDALE, Circuit Judge:

At issue in this Mississippi
diversity action is whether, under its
products liability law, recovery against
a product’s manufacturer by an injured
non-user of that product (a bystander)
is barred if the product defect or
danger is open and obvious to an
ordinary user, regardless of whether the

1Senior Circuit Judge of the Eighth
Circuit, sitting by designation.

35

oF

bystander knew, or should have known, of
the danger. Myron Batts was injured
when a forklift operated by a
co-employee backed into him. Batts sued
the forklift manufacturer, claiming that
the lack of any mirror or back-up
warning device on the forklift rendered
the manufacturer liable under’ the
theories of negligence and_ strict
liability in tort. A jury returned a
verdict for the manufacturer, after
being instructed that Batts, a
bystander, could not recover under
either theory if it found that the
danger was open and obvious. For both
theories of liability, this ws a correct
statement of the law; we AFFIRM.

I.

Batts was employed in Mississippi
by Flavorite Laboratories, Inc. His
duties included operatin a type
forklift called a "tugger"* in a room

which was often noisy. In that room, at
least one forklift operated in addition
to Batts’ tugger. On the day Batts was
injured in 1984, a co-employee, Charles
Johnson, was operating a_ forklift
manufactured in 1965 by Towmotor
Corporation. ? (Towmotor was purchased
by Caterpillar.) The forklift was
operated by a seated driver using
controls to his front, as are the lift
forks, and is generally operated in
reverse as often as forward. At the
time of manufacture, Towmotor produced

2 A tugger is motorized; and the
operator walks behind and guides it.

3Flavorite purchased the forklift
from a third party in 1980.

36

forklifts with load capacities ranging
from 2,000 to 60,000 pounds. The
forklift in issue had a 2,500-pound
capacity and was designed for use in |
warehouses and other indoor areas. The

forklift collided with Batts when Batts

was backing, and walking beside, the

tugger; and Johnson was operating the

forklift in reverse, but without

sounding its manual horn.

Although neither party contends
that a back-up alarm sounded on the
forklift before it hit Batts, whether
any such device was then in place is
disputed (as discussed in note 6, infra,
concerning Caterpillar’s superseding
proximate cause defense). After the
accident, electrical alarms and flashing
lights were installed on the forklifts
at Flavorite. These items were

available when the forklift was
manufactured in 1965 and could be
installed at customer request. However,
they were not standard options. on
Towmotor forklifts of the capacity
involved in this case. Indeed, no
American manufacturer so offered then.
Caterpillar’s witnesses opined that the
need for back-up warning devices depends
on the customer’s application and that
their use is appropriate when an
operator’s visibility is restricted.

At trial in 1991, Batts relied on
Claims of negligence and strict
liability in tort;* but the jury, by
special interrogatories, found for
Caterpillar on both theories. Following

‘prior to trial, a breach of
warranty claim was dismissed as time-
barred and is not in issue on appeal.

37

the denial of his motion for JNOV or new
trial, Batts brought this appeal.

Batts presented proof that the
forklift should have had a back-up
alarm, flashing warning lights, and/or
rearview mirrors, and asserted that this
failure entitled him to recover under
either strict liability in | toet
(defective and unreasonably dangerous)
or negligence (negligent design). On
the other hand, Caterpillar presented
evidence that there was no restriction
on the forklift operator’s visibility to
the rear and that there was a danger in
an operator relying on alarms, lights,
or mirrors, as opposed to looking in the
direction of travel. One of its
principal defenses was that the absence
of such devices, and the concomitant
danger of the operator not facing in the
direction of travel, was open and
obvious to the forklift owner and its
employee operator (users) and that,
under Mississippi law, this. barred
recovery by Batts.

Several of the jury instructions
and a special interrogatory incorporated
this open and obvious bar. (As discussed
infra, the jury was instructed that
Batts could not recover under negligence
or strict liability in tort if the
danger was open and obvious.) Batts’
challenge to those items is the primary
thrust of his appeal. (In notes 5 and 6,
we quickly dispose of the other issues

38

—_

raised by Batts® and Caterpillar (which
did not cross-appeal)®.) In reviewing

*Batts contends that several
instructions and a special interrogatory
improperly commented on the evidence.
(We reject Caterpillar’s contention that
Batts did not preserve these
objections.) The items so challenged
were consistent with the evidence and
the various claims and theories in
issue. Contrary to Batts’ contention,
they were not peremptory; and, taken as
a whole, the charge was proper, as
discussed infra.

®caterpillar contends on two bases
that the district court erred in denying
it summary judgment or a directed
verdict. First, it relies on the theory
of superseding proximate cause. The
jury was instructed on that defense and
given a special interrogatory. The lead
person in the blending department and a
co-employee who sometimes operated the
tugger testified that no back-up alarms
were in place. On the other hand, the
plant engineer testified that a back-up
alarm bell was installed on the Towmotor
forklift in 1980 or 1981. But, he had
no knowledge that the alarm was
functional on the day of the accident,
or even six months or a year prior to
at. And, the mechanic in charge of
maintaining Flavorite’s forklifts
testified that the forklift Johnson was
driving had a back-up bell; that it was
Flavorite’s practice to check the alarm
bells every 30 days; that replacement
bells were needed for the forklift one
or two times a year, because they would
get knocked off or operators would
tamper with them; that he examined the

39

this challenge to jury instructions, "we
view the [jury charge) as a whole in the
context of the entire case. The judge
must instruct the jurors fully and
correctly on the law applicable to the
case, including defensive theories
raised by the evidence." Crist v.
Dickson Welding, Inc., 957 F-2d 1281,
1287 (5th Cir. 1992). However, the
district court is given broad discretion
in formulating the charge and special
interrogatories, and our review on
appeal is deferential. Bradshaw v.

forklift on the day after the accident;
and that the back-up bell was working at
that time. Accordingly, Caterpillar
asserts the proof showed that several
years before the accident it equipped
the forklift with a back-up warning
device; it was in place within a month
before the accident; and, if it was not
operable at the time of the accident,

that fact -- including its removal or
destruction -- cannot be charged to
Caterpillar.

Second, Caterpillar contends that
reasonable minds could not differ
regarding warning devices not being
needed on the forklift, as demonstrated
by the proof that the forklift complied
with all industrial standards = and
consumer expectations. (As discussed
infra, “consumer expectations" is a
critical issue in a Mississippi strict
liability in tort action.)

Caterpillar did not cross-appeal
from these rulings. Assuming that we
can reach these issues, they were for
the jury; the district court did not err
in denying the motions.

40

Preightliner Corp., 937 F.2d 197, 200
(Sth Cir. 1991). "’A judgment will be
reversed only when the charge as a whole
leaves us with substantial and
ineradicable doubt whether the jury has
been properly guided in its
deliberations.’" Hall v. State Farm Fire
& Casualty Co., 937 F.2d 210, 214 (5th
Cir. 1991) (citation omitted).

Needless to say, we apply
Mississippi law in deciding whether the
instructions correctly stated the
applicable law. a! Bie FA:
Tompkins, 304 U.S. 64 (1938); Allison v.
ITH Imperial Cozp., 928 F.2d 137, 138
(Sth Cir. 1991). And, we review de novo
the district court’s interpretation of
that law. Salve Regina College v.
Waeeass - Ule.,, Bad ©, Ge; Aah7,
1221 (1991). In deciding an unsettled
point of state law, Erie requires that
we determine how the Mississippi Supreme
Court would interpret its own law if
presented with the question. American
Waste & Pollution Control Co. ov.
Browning-Ferris, Inc., 949 F.2d 1384,
1386 (5th Cir. 1991). When we are
required to make an Erie guess, it is
not our role to create or modify state
law, rather only to predict it. Id.

Under products liability law,
recovery by a bystander against a
manufacturer for an injury caused by its
product can be an elusive, complex, and
difficult concept, especially because of
the many terms and defenses and other
rules established for Mississippi
products liability, and because of
resulting inconsistent, if not
conflicting, precedent. Batts asserts
that only under the theory of assumption
of risk, with its subjective standard,

41

can an open and obvious’ danger
associated with the forklift bar his
recovery; that is, the jury would have
to find that he knowingly'== and
voluntarily encountered a known risk --
the forklift backing up. But, although
a subjective standard is used for
assumption of _ risk, an objective
standard, which concerns an ordinary
user, not the person(s) actually using
or injured by the product, is applied
for the open and obvious defense to
claims under negligence and strict
liability in tort. Toney v. Kawasaki
Heavy Industries, Ltd., 975 F.2d 162,
168-69 (Sth Cir. 1992); Gray v.
Manitowoc Co., 771 F.2d 866, 871 (5th
Cir. 1985) ("both the Restatement’s
theory of strict liability and
Mississippi’s theories of negligence and
implied warranty require an objective
appraisal of the obviousness of a
product’s hazard"); Restatement (Second)
of Torts §402A cmt. i (1965) (the
product "must be dangerous to an extent
beyond that which would be contemplated
by the ordinary consumer ... with the
ordinary knowledge common to the
community"). This objective standard is
all that is in issue here.

As discussed infra, we hold that an
open and obvious danger to an ordinary
user precludes recovery against the
product manufacturer under negligence
and strict liability in tort.
Accordingly, an open and obvious defect
precludes Batts’ recovery against
Caterpillar {the manufacturer),

Batts maintained that assumption
of risk had no application to this case.
That bar is not in issue.

42

regardless of whether he knew, or should
have known, of that danger .®
Therefore, we reject Batts, contention
that a bystander’s awareness of an open
and obvious danger would simply reduce
any recovery under Mississippi’s
comparative negligence standard. 9 Wwe

®In issue is only recovery by an
injured bystander against a product
manufacturer where the open and obvious
bar is raised. Therefore, we are not
concerned with, nor do we discuss, other
defenses or claims that might be raised.
For example, contrary to the position
taken by the able dissent, although an
open and obvious danger bars recovery
against the product manufacturer by an
injured bystander, he or she still has a
Claim against the product user, unless,
as here (workers’ compensation bar),
that avenue of recovery is foreclosed.
(In this case liability is shifted not
to Batts, but to the user, and hence,
workers’ compensation. ) And, of course,
for such a claim, assumption of risk or
contributory negligence by the injured
bystander could be asserted. But,
again, we are not concerned in this
appeal wit the seemingly limitless
array of claims, defenses, bars, and
other theories inherent in products
liability actions.

*The Mississippi comparative
negligence statute provides in
relevant part:

In all actions hereafter
brought for personal injuries,
--. the fact that the person
injured ... may have been

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now address the bases in Mississippi
law for this holding.

A.

l.
It is more than well-established
that, for strict liability in tort,

Mississippi adheres to the Restatement
(Second) of Torts §402A.!° e.g., Toney,

guilty of contributory
negligence shall not bar a
recovery, but damages shall be
diminished by the jury in
proportion to the amount of
negligence attributable to the
person injured

Miss. Code Ann. §11-7-15. The jury was
instructed on comparative negligence, as
part of the standard charge. See note
8.

10rmhat section provides in part:

§402A. Special Liability of Seller of
Product for Physical Harm to User or
Consumer

(1) One who sells any product
in a defective condition
unreasonably dangerous to the
user or consumer or to his
property is subject to
liability for physical harm
thereby caused to the ultimate
user or consumer, or to his
property, if

(a) the seller is engaged
in the business of selling

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975 F.2d at 165; Lloyd v. John Deere
Co., 922 F.2d 1192, 1194 (5th Cir.
1991); Coca Cola Bottling Co. v. Reeves,
486 So.2d 374, 377-78 (Miss. 1986) (en
banc). Moreover, Mississippi law
interprets §402A to permit recovery by a
"bystander". Hall v. Mississippi Chen.
Express, Inc., 528 So.2d 796,, 799
(Miss. 1988) ("Though a _ bystander,,
(plaintiff) is... eligible under"
$402A.); Reeves, 486 So.2d at 378 ("fact
that (plaintiff) may arguably be
Classified as a bystander" is not bar to
§402A action).

In Reeves, a bottle fell through a
carton being removed from a shelf by
someone in the vicinity of the
plaintiff, who was injured when the
bottle shattered upon hitting the floor.
A threshold issue was whether the
plaintiff, neither a purchaser nor other
form of user, could recover under strict

liability in tort. The Mississippi
Supreme Court held that he could,
noting:

; the duty imposed . by
Restatement §402A to the
extent that same has. been
incorporated into the positive

such a product, and

(b) it is expected to and
does reach the user or
consumer without substantial
change in the condition in
which it is sold.

Restatement (Second) of Torts §402A
(1965).

45

law of this state exists -in
favor of anyone who may
reasonably be expected to be
in the vicinity of the
product’s probable use and to
be endangered by it if it is
defective. Therefore, the
fact that [plaintiff] may
arguably be classified as a
bystander avails [defendant
bottler] nothing inasmuch as
children accompanying their
parents, relatives or persons
in loco parentis while
shopping or otherwise on the
premises may generally be
expected to be in the vicinity
of the handling of soft drink
cartons and to be endangered
if those cartons are
defective.

486 So.2d at 378 (citations omitted) .}?
In so holding, the court noted:

llnikewise, in an “Erie guess"
shortly before Reeves, our en banc court
reinstated the panel’s vacated holding
that, under Mississippi law, a
manufacturer can owe bystanders a strict
liability "duty" that "grows out of the
contemplated or normally intended use of
its defective product and extends at
least to those persons within the area
of that use who can reasonably be
foreseen to be endangered." Jackson v.
Johns-Manville Sales Corp., 727 F. 2d
506, 514 (5th Cir. 1984), reinstated in
relevant part on reh’g, 750 F.2d
1314,-1317 (5th Cir. 1985) (en banc),
cert. denied, 478 U.S. 1022 (1986).

46

ies

The justness of allowing
bystanders to recover on a
strict products liability
theory is demonstrably greater
than is the case with almost
any other potential plaintiff,
for the bystander is less able
to avoid the accident than
almost any other.

Id. at 378 n.2. The open and obvious bar
was not in issue in Reeves. But, in any
event, this footnote is indicative of
the competing interests in products
liability law that clouds the issue in
Batts’ case.

The forklift was for indoor use.
For that and other reasons, Batts could
arguably “reasonably be expected to be
in the vicinity of the [forklift’s)
probable use and to be endangered by it
if it is defective." Id. at 378.
Several of the instructions included
"bystanders" among those to be
considered; and much of the language
used was similar to that in Reeves. The
jury was instructed that Batts was a
bystander (Caterpillar does not contest
that here) and could "recover for
injuries[{,]} consistent with all of the
instructions". The court instructed the
jury:

Manufacturers of products have
a legal duty to design
products that are not in a

defective condition
| unreasonably dangerous to
users, consumers, or
bystanders. This duty

includes the obligation to
install safety and warning

47

devices which will prevent
accidents or injuries which
are reasonably foreseeable
from occurring.

(Emphasis added.) }?

12tn fact, one of the instructions
given for Batts, over Caterpillar’s
objection, erroneously conflated
“ordinary consumer" and “ordinary
bystander":

If you find ... that the
forklift was in a defective
condition, unreasonably dangerous
when sold by ([Caterpillar)
because it failed to have mirrors,
audible back-up alarms, and/or
flashing warning lights, and that
the danger from the forklift in its
defective condition, unreasonably
dangerous, was not’ reasonably
foreseeable by the ordinary
consumer or bystander with the
ordinary knowledge common to the
community as to the characteristics
in common usage of forklift
products ... and that Myron Batts
was injured while the forklift was
being used in a manner which was
reasonably foreseeable by
[Caterpillar], and that the lack of
mirrors, audible back-up alarms,
and/or flashing warning lights was
the sole proximate cause or a
proximate contributing cause of
Myron Batts’s injuries, then in
that event your verdict should be
for (Myron Batts].

In any event, taken as a whole, the
charge does not constitute

48

ee

For the strict liability in tort
Claim, the district judge, as requested
by Caterpillar, charged that an open and
obvious danger cannot render the product
unreasonably dangerous. Over Batts
objections, the district judge
instructed, in part, that

the plaintiff has alleged that

| the absence of a back-up
alarn, flashing warning
lights, and/or rearview
mirrors on the forklift ...
entitles him to recover
against the defendant on the
theory of strict products
liability. ... {I])n order for
the plaintiff to prevail on
this theory he must prove by a
preponderance of the evidence
that the forklift ... was ina
defective condition when it
was sold in 1965 and
unreasonably dangerous to the
user of the forklift and that
the defective condition, if
any, was a proximate cause of
the ... accident ....

eee [T]o find the
forkiift ... to be in a
defective condition means that
you find that there’ was
something wrong with the
(forklift). To find that the
forklift was unreasonably
dangerous means that_ the
forklift posed some danger
beyond the contemplation of
, the ordinary user of _ the
forklift.

reversible error.

49

... [A])ny alleged danger
which is open and obvious
cannot be considered to be
unreasonably dangerous.

(Emphasis added.) After giving the
strict liability instruction, the
district judge later reemphasized --
without specifying under which theory of
recovery -- the preclusion to recovery
if the following danger was open and
obvious:

If you find ... that the
operation of the forklift ...
without the driver facing in
the direction of travel and
without sounding the manual
horn to warn a_ pedestrian
presents an open and obvious
danger, regardless of whether
the forklift was equipped with
(a mirror or warning device],

then ... it is your sworn duty
to return a verdict for the
defendant.

Finally, a special interrogatory asked
correctly whether, on the date of the
accident, "the defect, if any,, was open
and obvious to a reasonable and prudent
user.... ™ (Emphasis added. )33 The

13phis was the third interrogatory;
the first two, which the jury answered
in the negative, asked whether
"Caterpillar was negligent in its design
of the forklift" and whether "the
forklift as manufactured and sold by
Caterpillar was defective and
unreasonably dangerous at the time of
the sale and delivery". The jury was
instructed to stop if it answered "no"
to these two. Accordingly, it did not

50

_—

searaospeimemaauhdcaasana aaa

jury was instructed properly that if it
so found, it was to find for
Caterpillar. Concerning the challenged
instructions that incorporated open and
obvious danger elements, as well as the
corresponding special interrogatory, the
charge, as a whole, was correct; we are
not left "with substantial and
| ineradicable doubt whether the jury
} {was} properly guided in its
deliberations. Hall, 937 F.2d at 214.

2.

Batts admits that "the patent
danger doctrine ... has been embraced by
Mississippi jurisprudence in the past",
but contends that the Mississippi
Supreme Court has now "laid to rest" the
notion that an open and obvious danger
exonerates the product manufacturer from
strict liability in tort. Along that
line, the Mississippi Supreme Court has
adhered to a "consumer expectation"
test. In Ford Motor Co. v. Matthews,
291 So.2d 169, 172 (Miss. 1974), it
stated that liability lies under §402A
"only when the product is, at the time
it leaves the seller’s hands, in a
condition not contemplated by the
ultimate consumer, which will be
unreasonably dangerous to hin. eas
(Quoting Restatement (Second) of Torts 5
402A cmt. g (1965)). As a gloss on the
terms “unreasonably dangerous", it
quoted comment i, stating: "The article
sold must be dangerous to an extent
beyond that which would be contemplated
by the ordinary consumer who purchases

reach the open and obvious danger
interrogatory.

51

it, with the ordinary knowledge common
to the community as to its
characteristics." Id. (quoting
Restatement (Second) of Torts §402A cmt.
i (1965)). As discussed infra, the
Mississippi Supreme Court has continued
to use this approach. £.g, Toliver v.
General Motors Corp., 482 So.2d 213, 218
(Miss. 1985) (citing §402A cmt. g and
Ford Motor, 291 So.2d at 169).

Accordingly, based on Mississippi’s
choice to define "unreasonably
dangerous" by reference to a reasonable,
or ordinary, consumer’s expectations of
product performance, our court has held,
as discussed infra, that there is no
strict liability in tort under
Mississippi law for a patent -- open and
obvious -- danger. "(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 v. Deere & Co., 887 F.2d 1241,
1243 (5th Cir. 1989). (As quoted above,
Batts’ jury was so instructed.) See also
Gray, 771 F.2d at 869 ("the consumer
expectation test of section 402A
requires that harm and liability flow
from a product characteristic that
frustrates consumer expectations"; "the
patent danger bar adopted by the
Restatement was incorporated into
Mississippi’s doctrine of strict
liability"). This rule is discussed
fully in this court’s recent decision in
Toney, 975 F.2d at 165-66 (motorcycle
owner injured in collision; claimed
motorcycle should have had leg guards).

Batts concedes that decisions by
our court support Caterpillar’s

52

ait ate

contention that the consumer expectation
test applies, as opposed to a risk
utility analysis.}4 He asserts,
however, that our interpretation is at
odds with the position taken by the
Mississippi Supreme Court in two
decisions in 1988, Whittley v. City of
Meridian, 530 So.2d 1341 (miss. 1988)
and Hall v. Mississippi Chemical
Express, Inc., 528 So.2d 796 (Miss.
1988), as well as in Toliver, rendered
in 1986.

First, these cases do not persuade
us that Mississippi has fundamentally
shifted its test from one of consumer
expectation to risk utility. Second,
even if we agreed with Batts, we would
be bound by the interpretation given by
a prior panel of this court in Melton
(which rejected a similar contention,

4For example, the Supreme Courts
of New Jersey and Texas have applied the
latter. See, e.g., Ryan v. KDI Sylvan
Pools, Inc., 121 N.J. 276, 290, 579 A.2d
1241, 1248 (1990); Turner v. General
Motors Corp., 584 S.W.2d 844, 851 (Tex.
1979). Under the risk-utility approach,
"a product can be said to be defective
in the kind of way that makes it
unreasonably dangerous, if a reasonable
person would conclude that the
danger-in-fact, whether foreseeable or
not, outweighs the utility of the
product. " W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts
§99, at 699 (5th ed. 1984).

53

887 F.2d at 1243) and Toney.!5 No
Mississippi case has appeared since
Melton was rendered in 1989 to indicate
that its analysis of Mississippi law was
incorrect. ?®

Be

As noted, there is no contention
that Batts was a "user". At trial,
Caterpillar repeatedly stated that the
owner was the "user"; there is no charge
that Batts, in performing his duties
with the tugger, or otherwise, was
working in conjunction with the
forklift, so as to make him a "user" of
it; and, in fact, the district court
instructed that Batts was a "bystander".
As discussed earlier, Batts status as a
"bystander" does not prevent him from
asserting a §402A claim that’ the
forklift was defective and unreasonably
dangerous. Among other things, he had

1S"’Tn this circuit one "panel may
not overrule the decision, right or
wrong, Of a prior panel, in the absence

of en banc reconsideration or
Ssuperseding decision of the Supreme
Court. °’* Burlington M. R.R. Vv.

Brotherhood of Maintenance of Way
Employees, 961 F.2d 86, 89 (5th Cir.
1992) (citations omitted).

16Batts also requests, in the
alternative, that we certify this
question to the Mississippi Supreme
Court. Our law is clear; the
Mississippi law upon which our precedent
is based is unchanged. We thus decline
to do so.

54

to prove that (1) he could "reasonably
be expected to be in the vicinity of the
(forklift’s]) probable use and to be
endangered by it if it is defective",
Reeves, 486 So.2d at 378; and (2) "the
(forklift) was defective and ... its
defective condition made the [forklift]
unreasonably dangerous to him", Toliver,
482 So.2d at 216 (emphasis in original).
As discussed and quoted supra, in
proving that a product was "defective
and unreasonably dangerous", Mississippi
applies the consumer expectation test --
the product is (1) "defective" when, at
the time it leaves the seller’s hands,
it is in a condition not contemplated by
the ultimate consumer, which will be
unreasonably dangerous to him; and (2)
"unreasonably dangerous" when it is
dangerous to an extent beyond that which
will be contemplated by the ordinary
consumer, with the ordinary knowledge
common to the community as to its
characteristics.

Simply put, products liability,
whether under negligence or _ strict
liability in tort, does not focus on the
status of the plaintiff; instead, it
focuses on the product. The focus is
not on whether the injured party is a
consumer, or user, or bystander, or
whether the product is unreasonably
dangerous to a particular person. £.g.,
Toney, 975 F.2d at 169; Gray, 771 F.2d
at 869 (discussed infra); Page v. Barco
Hydraulics, 673 F-2d 134, 138 (5th Cir.
1982) .2?? Moreover, as discussed, the

17This court stated in Page:

-++ [I]n strict liability the focus
is on the safety of the product

35

Eee

inquiry for strict liability is not
whether the product was dangerous; it is
whether it was both defective «end
unreasonably dangerous. For example, an
ordinary kitchen knife is dangerous,
simply because of its blade; but, it is
not unreasonably dangerous, because the
ordinary consumer understands that the
blade, due to its sharpness or point,
can cause injury. In products liability
cases, by which we impose liability on a
manufacturer, among others, it is the
product -- the item placed in commerce
for use or consumption -- on which
liability turns.

Accordingly, even when the
bystander is the injured party, the test
must remain the same -- the product is
defective if, when it leaves’ the
seller’s hands, it is in a condition not
contemplated by the ordinary consumer,
which will be unreasonably dangerous to
him; and, it is unreasonably dangerous
if it is dangerous to an extent beyond
that which will be contemplated by the
ordinary consumer, with the ordinary
knowledge common to the community as to
its characteristics. This is
essentially how the district court
instructed the jury.

itself. The question is whether
the product meets the reasonable
expectations of the ordinary
consumer as to its safety,
irrespective of all... the care
that the manufacturer might have
put into making it.

673 F.2d at 138 (citations omitted).

56

Our decision in Gray, followed in
Melton and Toney, controls an open and
obvious danger precluding strict
liability in tort recovery by a
bystander against a manufacturer. (All
three cases concerned injured users, not
injured bystanders.) While Gray was
changing sections of a crane boom, the
crane operator swung the boom, striking
Gray.1/8 771 ‘F.2d at 867. He sued
under strict liability in tort, implied
warranty, and negligence, contending,
inter alia, that there was a design
defect in the crane, because the
operator’s vision was obscured to the
left side, and that the crane should
have provided mirrors or other devices
to compensate.

The defendant manufacturer
contended that the hazard was “open and
obvious to ordinary users of the crane"
and constituted a bar under any theory
of products liability. Id. at 868.
(Gray’s holding for negligence is
discussed in part II.B.) As for strict
liability in tort, our court felt "bound
to apply" the consumer expectation test,
and stated: “the consumer expectation
test of section 402A is rooted in the
warranty remedies of contract law, and
requires that harm and liability flow
from a product characteristic that
frustrates consumer expectations." Id.
at 869 (emphasis added).

Gray was rendered six months before
the Mississippi Supreme Court expressly

18Recause Gray was working with, or
on, the boom, we consider him a user,
not a bystander.

57

ee

held in Reeves what earlier Mississippi
cases had implied -- that a bystander
could recover under §402A. Gray does
not make a distinction between “users"
and “bystanders"; the latter is not
mentioned. It is true, as noted in the
dissent, that a bystander’s
expectations, if any, about a product
would not necessarily include knowledge
of a danger that is open and obvious to
an ordinary consumer; but, again, the
test under Mississippi law for whether a
product is defective and unreasonably
dangerous do not focus on the actual
user or the actual bystander (the person
actually using or injured by the
product) but, instead, focuses on the
ordinary consumer with ordinary
knowledge common to the community as to
its characteristics. For this reason,
Gray held that “the Grays’ right to
recover under the theory of strict
liability depends upon whether the
evidence was sufficient to permit the
jury to find that the ... crane was
dangerous to an extent not contemplated
by the ordinary consumer who purchased
it, with the ordinary knowledge common
to the community as to its
characteristics.’ Id. at 870 (emphasis
added). Again, this rule is solidified
in Toney.?

As noted, in the challenged strict
liability instructions, the district

19~he dissent posits that we fail
to explain why the consumer expectation
test applies to bystanders. In short,
as discussed above, Mississippi law and
our circuit precedent require it. The
same is true for our holding on the
negligence clain.

58

court instructed that “any alleged
danger which is open and obvious cannot
be considered to be unreasonably
dangerous" and that the jury was to
return a verdict for Caterpillar if it
found “that the operation of the
forklift ... without the driver [user]
facing in the direction of travel and
without sounding the manual horn to warn
a pedestrian presents an open and
obvious danger, regardless of whether
the forklift was equipped with [a mirror
or warning device]. ..." In addition, as
also noted, in a special interrogatory,
the jury was instructed that if it found
"(t)hat the defect, if any, was open and
obvious to a reasonable and prudent user
on" the date of the accident, then it
must return a verdict for Caterpillar.
This was a correct statement of the law,
even for a bystander plaintiff.

For the negligence claim, as
discussed, whether the danger is open
and obvious is also measured by an
objective -- reasonable person --
standard, e.g., Toney, 975 F. 2d at
168-69; Gray, 771 F. 2d at 871. In
instructing the jury, over Batts’
objections, on that claim, the district
judge stated:

(T)he duty of a manufacturer is
to provide a product which is
reasonably fit. There is no duty
to provide ae perfectly’ safe
product. (Batts) alleges negligence
in the design of the forklift
involved in the accident.... In
order for [him] to recover under
this theory, ... the burden of
proof is upon [him) to prove...

59

that the absence of [a mirror or
warning device) constituted a
concealed or hidden dangerous
condition, thereby making’ the
forklift defective and unreasonably
dangerous. If you find ... that
the alleged danger of the forklift
... was open and obvious, and that
the forklift functioned properly
for its intended use, then ... you
must return a verdict for the
defendant as to [Batts’) claim of
negligent design.

As quoted earlier, the district court
also gave a general instruction that the
jury had to find for Caterpillar 1f:-2%
found that a driver operating the
forklift without facing in the direction
of travel and without sounding his horn
presented an open and obvious danger.
And, it gave the special interrogatory
on open and obvious danger.

The district court’s instruction is
consistent with Toney and Gray.?° And,
Gray relied on decisions by the
Mississippi Supreme Court in Harrist v.
Spencer-Harris Tool Co., 244 Miss. 84,
140 So.2d 558 (1962) and Jones v. Babst,
323 So.2d 757 (Miss. 1975). As in Gray,
those Mississippi cases concerned
injured users, not injured
bystanders. ?+

20rndeed, at the charge conference,
the district judge placed
considerable reliance on Gray.

2ltn Harrist, decided before the
adoption of strict liability in tort in
Mississippi, the plaintiff

¥ 60

"employee-user" alleged negligence in
the design of steps aboard an oil rig.
140 So.2d at 559. He requested that the
court abolish the privity of contract
rule for products cases grounded in
negligence and implied warranty. Id. at
561. The court found it unnecessary to
do so because, assuming it would, it
{sic}

would be required to affirm
the trial court because the
alleged defects are not
considered to be latent or
concealed. If we assume there
were defects, we think they
were apparent and obvious to a
casual observer.

Id. (emphasis added). Despite the
opportunity presented for the court to
hold that the obviousness of the danger
was a comparative negligence factor, it
held instead that the defendant’s
negligence vel non in designing the
steps was not even a jury question.

In Jones, the court quoted with
approval this court’s opinion in Ward v.
Hobart Manufacturing Co., 450 F.2d 1176,
1180 (5th Cir. 1971), stating that Ward

set out the general rule for
negligent design cases followed by
this Court; "(Wjhere the alleged
danger is open and obvious and the
manufacturer has done everything
necessary to insure that’ the
machine will function properly for
its designed purpose any duty owed
co .62C(lU«@S future user has been
fulfilled."

61

Gray held 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.

323 So.2d at 759 (emphasis added). The
court affirmed a directed verdict for
the manufacturer on strict liability and
negligence claims, because there was no
evidence supporting those theories; it
found the evidence instead supported a
hypothesis that the subject accident
resulted from improperly attaching lug
nuts in repairing an automobile tire.
Accordingly, a jury verdict against the
defendants involved in the repair was
affirmed.

In applying Mississippi law, we, of
course, are controlled by decisions by
the Mississippi Supreme Court; but, it
does appear that Jones overstates the
holding in Ward, a pure negligent design
case brought by a plaintiff injured
while cleaning a meat grinder. 450 F.2d
at 1178, 1180. Gray, however, ruled
that the Mississippi Supreme Court would
follow Jones. 771 F.2d at 868 n.1l.

62

Gray, 771 F.2d at 868.7% Toney repeats
this rule. 975 F.2d at 169. We are not
cited to, nor have we found, a
Mississippi case holding that an open
and obvious danger, without more, can
bar recovery for a products liability
negligence claim by a bystander. But,
as- discussed supra, the focus. in
products liability is on the product.
Moreover, for negligence, and as the
Batts’ jury was instructed, the
manufacturer’s duty is to produce a
reasonably safe product. Therefore,
Gray controls.

2

Batts contends, however, that
recent premises liability decisions by
the Mississippi Supreme Court control.
Liability for negligently designed
products is, of course, merely one form
of common law negligence, to which the
ordinary rules of negligence apply.

22Toney and Gray are this court’s
latest pronouncements on the open and
obvious defense in a Mississippi
negligent design case. Melton concerned
only strict liability in tort, 887 F.2d
at 1242; and in Lloyd (1991) (open and
obvious danger to injured user; improper
design and failure to warn claims;
directed verdict granted), "while we ...
applied the standard for a directed
verdict as to all three theories, or
bases, for liability {[negligence,
warranty, strict liability in tort], and
[found] it correctly granted for each,
our analysis [was] couched in the
language of §402A strict liability." 922
F.2d at 1194 n.2.

E.g., Toliver, 482 So.2d at 219
("(S)trict liability "does not preclude
liability based upon the alternative
ground of negligence ..." .... Under
this theory, the usual defenses to a
charge of negligence would apply."
(citations omitted)). And, in some
types of negligence cases in Mississippi
involving open and obvious dangers, the
jury may find for the plaintiff, and
then apply comparative negligence.
E.g-, Goodwin v. Derryberry Co., 553
So.2d 40, 43 (Miss. 1989). In Goodwin,
a premises liability case, the
Mississippi Supreme Court cited its
earlier premises liability decision in
Bell v. City of Bay St. Louis, 467 So.2d
657, 664 (Miss. 1985), which stated:

In prior cases involving hazards
that were extremely “open and
obvious", this Court has not barred
injured parties from recovery, but
rather has left the issue to the
jury properly instructed regarding
comparative negligence.

We have repeatedly condemned
jury instructions which, if
followed by the jury, would
completely deny a negligent
plaintiff recovery, even though the
defendant may also be negligent.

See also Caruso v. Picayune Pizza Hut,
998 So.2d 770 (Miss. 1992) (affirming
jury verdict against plaintiff who
stumbled on mat placed over loose
stripping; mat was “open and obvious",
and question went to jury properly
instructed on comparative negligence) ;
Biloxi Regional Medical Ctr. v. David,
555 So.2d 33, 56 (Miss. 1989)
(Conditions are not either open and

64

obvious or not open and obvious. Common
sense and experience negates an either
or categorization of such conditions.
Just how open and obvious a condition
may have been is a question for the jury
in all except the clearest of cases.’"
(quoting Bell, 467 So.2d at 664)).??

Batts contends that these cases
control; but they concern premises, not
products, liability. We do not find
them persuasive in making our Erie guess

on this issue. This is aptly
demonstrated by a simple, but
conclusive, analogy in Bell. In

rejecting the claim that recovery in a
premises liability action was barred if
the danger was open and obvious, the
Mississippi Supreme Court noted: "We
might as well exonerate as a matter of
law a defendant who leaves his car
parked in the middle of the street on
grounds that the car was open and
obvious." 467 So.2d at 664. In this
example, it was not a defect in the
product (automobile) that caused the
injury; it was the negligence of its
owner, who left it in the middle of the
street. The same is true for this

23~fhe Mississippi Supreme Court
presumably relied on this "clearest of
cases" exception when, in McGovern v.
Scarborough, 566 So.2d 1225 (Miss.
1990), it affirmed a directed verdict
against a plaintiff who stumbled on a
raised threshold when’ entering a
business premises. The court expressed
concern at the prospect of creating a
jury question for "any doorway from the
street which is not on the same level as
the street." Id. at 1228.

65

products liability negligence clain.
The forklift was operated in reverse and
struck Batts, a bystander. The jury
found that a product defect did not
cause the injury.

Consistent with our Erie holding
for a strict liability in tort claim, an
open and obvious danger in a product
bars recovery on a products liability
negligence claim by an injured bystander
against the product’s manufacturer.
Indeed, as discussed, there is a whole
body of products liability law dating
from Harrist that effectively absolves a
manufacturer from liability resulting
from open and obvious product defects.
Therefore, the district court correctly
instructed the jury that, if it found
"that the alleged danger of the forklift

was open and obvious", it must
return a verdict for Caterpillar on the
negligent design clain.

Itt.
For the foregoing reasons, we

AFFIRM.

66

E. GRADY JOLLY, Circuit Judge,
specially concurring:

I concur in Judge Barksdale’s
opinion. I write separately only to set
out in one place the principles of
Mississippi products liability law that
control this case today: First, I would
emphasize that a manufacturer’s duty to
exercise due care in designing a product
that is reasonably safe should not be
confused with a manufacturer’s strict
liability for a defective product that
is unreasonably dangerous. A
manufacturer who has not negligently
designed a product may nonetheless, in
given cases, be held strictly liable for
producing a defective product that is
unreasonably dangerous. Thus, the
distinction between the two standards
may be critical.

In order to recover on a negligent
design claim, the burden is on the
plaintiff to prove that the defendant
manufacturer failed to exercise due care
in designing the _ product. The
manufacturer may then raise, in the
nature of an affirmative defense, that
the claimed defect was open and obvious.
If the manufacturer demonstrates, as a
matter of law, that the defect in the
product would be open and obvious to a
casual observer, the plaintiff will be
barred from recovery under his
negligence claims, because "no duty
rests upon a manufacturer or seller to
warn a purchaser of a dangerous design
that is obvious." Harrist Vv.
Spencer-Harris Tool Co., 140 So.2d 558,
562 (Miss. 1962). Moreover, one factor
that is often considered when
determining whether a manufacturer
breached its duty to design a reasonably

67

safe product is "the conformity of [its]
design to the practices of other
manufacturers in its industry at the
time of manufacture." Ward v. Hobart

Manufactoring Co., 450 F.2d 1176, 1182
(5th Cir. 1971). This factor is often
determinative because in most cases it
serves as a reliable indicia of the
standard of care that a reasonably
prudent manufacturer would exercise.

In order to recover on a strict
products liability claim based on a
design defect, the plaintiff need only
prove that the manufacturer produced a
defective product that is unreasonably
dangerous to the ordinary consumer, and
that the product was defective when it
left the control of the manufacturer.
Traditional negligence notions of fault
and care are not relevant in making this
determination; the primary focus of the
inquiry is on the character of the
product, not on the conduct of the
manufacturer. A manufacturer may be
strictly liable even if it has exercised
all possible care in making the product,
if that product is dangerous to an
extent beyond that which would be
contemplated by an ordinary consumer
with the ordinary knowledge common to
the community of the product ’s
characteristics. See Restatement
(Second) of Torts, § 402A, comment i.
It follows that a product with an open
and obvious defect is not "dangerous to
an extent beyond that which would be
contemplated by an ordinary consumer,"
and thus cannot be unreasonably
dangerous. In strict products liability
claims, then, the open and obvious
nature of the defect is necessarily tied
to the definition of an unreasonably
dangerous product. Under the consumer

68

expectation test, a plaintiff can never
prove that an alleged defect renders a
product unreasonably dangerous if that
defect is open and obvious to the
ordinary consumer or user.

We thus make clear that, concerning
strict products’ liability claims,
Mississippi follows the consumer
expectations test, that this test is an
objective one, that whether the product
is unreasonably dangerous is judged from
the point of view of the ordinary
consumer or user, and that if the
alleged defect or danger is open and
obvious to an ordinary consumer or user,
the product is not unreasonably
dangerous as a matter of law. Thus,
although a bystander can recover against
a manufacturer, he stands in the shoes
of the ordinary consumer, because the
test’s primary focus is on the
characteristics of the product and not
the individual status and viewpoint of
the individual plaintiff. With respect
to negligent design Claims, a
traditional negligence analysis. is
employed, with its focus on whether the
product has been designed with due care
by the defendant manufacturer. The open
and obvious nature of the alleged defect
can be raised, and if proved as a matter
of law, the defense will operate to bar
the plaintiff’s recovery; material
factual disputes with respect to the
open and obvious defense, both with
respect to strict liability claims and
negligent claims, are to be resolved by
the jury.

Thus, applying these principles to
the case before us, we have concluded
that Batts’ strict products liability
Claims fail because the evidence fully

69

a ae

supports that the alleged defects in the
forklift were open and obvious to an
ordinary consumer or user and thus the
forklift was not an_ unreasonably
dangerous product. With respect to
Batts’ negligence claims, we have
concluded that, under Mississippi law,
Batts’ claim is barred because the
evidence supports the finding that the
alleged defects in the forklift were
open and obvious to a casual observer.?}

Ifhe dissent states that "denying
Batts recovery under strict liability
because the danger of the forklift is
open and obvious to an
consumer, shifts the liability costs
from the manufacturer, in this case,
Caterpillar, to Batts." In our view,
this statement is inaccurate. To the
extent that the holding of the majority
opinion ‘shifts" liability, it does so
to the purchaser, user, employer, and/or
operator; it does not shift the
liability to Batts himself. Indeed,
Batts, employer has already accepted
statutorily imposed liability and has
remitted payment to Batts under
Mississippi’s workers’ compensation
progran. The removal of one ‘deep
pocket" defendant is just not tantamount
to the shifting of liability to the tort
victim himself.

The dissent argues that "this
court’s willingness here to extend user
injury analysis to a bystander case, in
my opinion, is not what the Supreme
Court of Mississippi would do, were it
ruling on this issue." The dissent
ignores the principle that we are not
permitted to guess what the Mississippi
Supreme Court might do when the present

70

ee

law is perfectly clear. Mississippi has
expressly stated on numerous occasions
that it follows the Restatement and that
it follows the consumer expectation
test. This test evaluates the product’s
defect from the point of view of the
ordinary consumer. The rule explicitly
states that if the product. meets
consumer expectations, it is not
defective. In other words,
expectations define what is and whet is
not an unreasonably dangerous product.
The Mississippi rule--at present clearly
enunciated--leaves no room for a
"bystander expectation" test to define
an unreasonably dangerous. product.
Thus, to address the dissent’s
suggestion that we are only engaging in
an “analytically convenient argument":
The reason the consumer expectation test
applies to bystanders is because the
test specifically and expressly defines
a manufacturers liability for injury
alleged to have been caused by its
products. Moreover, as we have said in
the body of the opinion, the test of
whether a product is unreasonably
dangerous, places the primary focus on
the characteristics of the product and
not the individual status and personal
viewpoint of the particular plaintiff.

With respect to the negligent
design claim, the dissent states:

However, if he is viewed as a
"bystander," then I agree with
Batts that the open and
obvious test requires two
significant modifications.
First, the person to whom the
danger must objectively be

71

open and obvious is Batts, not
the user of the forklift.
Second, the defense is not an
absolute bar, but, like in
ordinary negligence actions,
is subject to comparative
negligence.

We think this quote misstates the
applicable law. The test employed for
negligent design claims is whether the
alleged defect or danger is open and
obvious to a casual observer--a category
that surely applies to Batts. The
consumer expectation test is not
applicable to negligent design claims.
Thus, the first "modification" is no
modification of Mississippi law; it is
simply a restatement of current
Mississippi law on negligent design.
With regard to the second
‘modification," we have no authority to
make this type of change in the law; the
Mississippi Supreme Court has said that
the defense is an absolute bar, and thus
we are bound to follow its dictate. Of
course, the Mississippi Supreme Court
can-change this rule if it wishes, and,
indeed, it might; the point is that it
has not and its present law is clear.

Similarly, the dissent argues that
"(tjhe crucial distinction between these
cases and the instant case is that a
bystander is generally not aware of the
dangers that are, or should be, open and
obvious to an owner, consumer or user."
As stated above, the test used in
negligent design claims is whether the
defect is open and obvious to a casual
observer; Batts, as a “bystander,” and
as a casual observer who worked in the

72

plant where the forklift was used, would
Clearly fall within this category of
persons to whom the defect of the
forklift would have been open and
obvious.

73

BRIGHT, Senior Circuit Judge,
dissenting:

I respectfully dissent here because
I believe the Supreme Court of
Mississippi would consider the status of
the person injured by a product in
determining whether the open and obvious
danger rule bars that person from
recovering in a products liability suit.
Specifically, I believe the court, at a
minimun, would apply a_ premises
liability approach to application of the
rule in a negligence case, in which a
bystander, injured by a product, brings
suit against the manufacturer.

I agree with this court that, for
purposes of users and consumers, strict
liability focuses on whether a
particular product is dangerous, and not
on the status of the person injured.
Ante at 16. I also agree with this
court’s reading of Ford Motor Co. v.
Matthews, 291 So. 2d 169 (Miss. 1974),
its progeny, Tolliver v. General Motors
Corp., 482 So. 2d 213 (Miss. 1985) and
Hall v. Mississippi Chemical Express,
Inc., 528 So. 2d 796 (Miss. 1988), and

this court’s prior decisions in Gray v. ~

Manitowoc Co., Inc, 771 F-2d 866 (5th
Cir. 1985); Melton v. Deere & Co., 887
F.2d 1241 (5th Cir. 1989); and now Toney
v. Kawasaki Heavy Indus., Ltd., No. 91-
1577 (5th Cir. Oct. 7, 1992) that the
Mississippi Supreme Court has adopted
the "consumer expectation" test in
determining strict liability under
section 402A of the Restatement (Second)
of Torts. Ante at 13. Moreover, I
acknowledge this court has ruled that,
for purposes of “users," there is no
recovery for a patent, open and obvious
danger. Melton, 887 F.2d at 1243.

74

Finally, I do not disagree that the
Mississippi Supreme Court employs an
objective standard in applying the
consumer expectation test. Gray, 771
F.2d at 871.

However, I do disagree with this
court’s application of these cases to
the instant case. Each of the above
cases relates to a user injury.’
Collectively, these cases represent a
significant body of case law derived
from, and specifically tailored to, user
injuries. But Batts was a bystander,
not a user.* There was nothing he

1tn Ford, an employee was injured
when a truck he was attempting to repair
moved forward, pinning him against
another truck. In Toliver, an owner of
a vehicle suffered injuries resulting
from a defective gas tank in the car.
In Gray, an ironworker foreman was
injured when the butt end of a crane’s
boom struck him while he supervised his
crew in changing sections on the boon.
In Melton, a user of a combine wes
injured in attempting to clean it. In
Toney, a driver of a motorcycle was
injured when he was struck by a car.

2this court concedes that Batts was
a bystander, and not a user. Ante at
15-16. "Bystanders" are expressly
permitted recovery under Mississippi
strict liability law. Hall Vv.
Mississippi Chem. Express, Inc., 528 So.
2d 796, 799 (Miss. 1988). See also
Jackson v. Johns-Manville Sales Corp,
727 F.2d 506, 514 (5th Cir. 1984).

The distinction I draw here between

75

could have done to avoid the accident
because he neither had control over the
danger, nor was aware of its presence.

In my opinion, this court’s failure
to address Batts’ bystander status is at
odds with the fundamental purpose of
strict liability as developed § in
Mississippi. The Supreme Court of
Mississippi has long recognized that the
purpose of product liability "is to
insure that the costs of injuries
resulting from defective products are
borne by the manufacturers .. . rather
than by the injured persons who are
powerless to protect themselves." State
Stove Mfg. Co. v. Hodges, 189 So. 2d
113, 120 (Miss. 1966), cert. denied,
Yates v. Hodges, 386 U.S. 912 (1967)
{quoting Greenman Vv. Yuba power
Products, Inc., 377 P.2d 897, 900-01
(Cal. 1963)). The court has noted ‘:aat
the purpose and subsequent effect of
forcing manufacturers to internalize
these costs is to create incentives for
manufacturers to produce safer products.
See generally id. at 119.

But denying Batts recovery under
strict liability because the danger of
the forklift is open and obvious to an
ordinary consumer, shifts the liability
costs from the manufacturer, in this
case, Caterpillar, to Batts.
Consequently, Caterpillar has _ less

a user and bystander is a narrow one.
It applies only for purposes of applying
the open and obvious danger rule in a
case in which a bystander injured by a
product seeks to recover against the
manufacturer.

76

incentive to make its equipment safer.
Application of the open and obvious rule
here encourages manufacturers to produce
goods that are increasingly more
dangerous because, in effect, the
greater the "open and obvious" danger,
the greater the protection from
liability the manufacturer enjoys.

This court’s willingness here to
extend user injury analysis to a
bystander case, in my opinion, is not
what the Supreme Court of Mississippi
would do, were it ruling on this
issue.? Although analytically
convenient, this court’s application of
a consumer expectation test fails to
explain the reason why the test should
apply to bystanders.

To the extent Mississippi would
apply a different rule for bystanders,
Batts should be entitled to recovery.
However, I recognize this issue remains
a question of first impression in
Mississippi and, thus, do not rest my
decision on these grounds alone.

In my opinion, an even more
persuasive case is made on Batts’
negligent design claim. As a general
rule, manufacturers have a duty to
design reasonably safe products. Ward
v. Hobart Mfg., Co, 450 F.2d 1176, 1182

31t might very well adopt the
rationale of looking to the nature
of the accident and the obviousness of
the danger to the person injured, as
this court did in

Page __v. _Barko
Hydraulics, 673 F.2d 134 (5th Cir.
1982).

77

(Sth Cir. 1971). However, if the danger
of a particular product is “open and
obvious, " and the product functions
properly for its intended use, parties
are barred from recovery. See Harrist v.
Spencer-Harris Tool Co., 140 So. 2d 558,
562 (Miss. 1962).

In Harrist, an employee of the
purchaser of an oil rig slipped and fell
on the steps of the rig due to “external
and visible defects which ... [were]
plain and obvious to the purchaser ...
Id. at 561. Faced with a possible no
privity defense, the court treated the
employee as a purchaser and denied him
recovery because the defect in the rig
was open and obvious.

The bar in Harrist, however, does
not apply in every case. Whether it
applies here should turn on whether
Batts is considered a product "user" or
a "bystander." If he is a "user" and, as
such, should recognize a forklift
operating in reverse to be an open and
obvious danger, he would be barred from
recovering on a negligent design claim.
Id. Ward v. Hobart Mfg. Co., 450 F.2d
1176 (5th Cir. 1971), Gray v. Manitowoc
Co., 771 F.2d 866 (5th Cir. 1985).

However, if he is viewed as a
"bystander," then I agree with Batts
that the open and obvious test requires
two significant modifications. First,
the person to whom the danger must
objectively be open and obvious is
Batts,, not the user of the forklift.
Second, the defense is not an absolute
bar, but, like in ordinary negligence
actions, is subject to comparative
negligence.

78

Again, the cases on which
Caterpillar relies deal exclusively with
employees who, unlike Batts, were
injured while using the source of the
danger which caused their injury.* The
crucial distinction between these cases
and the instant case is that a bystander
is generally not aware of the dangers
that are, or should be, open and obvious
to an owner, consumer or user.

Support for Batts, right to recover
comes from premises liability cases in
Mississippi. These cases generally hold
that recovery for injuries resulting
from open and obvious hazards is not
automatically barred, but rather goes to
the jury on the question of comparative
negligence. Biloxi Regional Medical
Center v. David, 555 So. 2d 53, 56
(Miss. 1989); Goodwin v. Derryberry Co.,
553 So. 2d 40, 43 (Miss. 1989); Bell v.
Bay St. Louis, 467 So. 2d 657, 664
(Miss. 1985).

4as we have observed, in Harrist,
an employee working on an oil rig was
injured when he slipped and fell on
stairs on the rig’s platform. Harrist,
140 So. 2d at 559. In Ward, a woman
lost several fingers cleaning a meat
grinder manufactured by Hobart and used
by the woman and her husband in a small
restaurant they owned and operated.
Ward, 450 F.2d at 1182. In Gray, as
discussed above, an ironworker foreman
suffered injury when the butt end of a
crane’s boom struck him while he
supervised his crew in changing sections
on the boom. Gray, 771 F.2d at 871.

79

In my opinion, the jury “charge as
a whole leaves...... substantial and
ineradicable doubt, that the jury was
properly guided in its deliberations.
Hall v. State Farm Fire & Casualty Co.,
937 F.2d 210, 214 (5th Cir. 1991). The
trial court neither fully nor correctly
instructed the jury as to the negligent
design or strict liability claims. See
Crist v. Dickson Welding, Inc., 957 F.2d
1281,, 12867 (Sth Cir. i992). In my
opinion, the jury should have been
instructed that if Batts’ injuries
resulted from open and obvious hazards,
his claims were not automatically
barred, but were to be weighed against
his comparative negligence.

Moreover, as I read the record,
there exists little evidence of actual
lack of due care on the part of Batts.
He neither saw nor apprehended the
danger as it bore down upon hin. In
these circumstances, I do not believe
the federal courts should, nor the
Mississippi courts would, necessarily
bar Batts’ recovery on the basis of an
open and obvious defect to a user.
Accordingly, I would reverse and remand
this case for a new trial under
corrected instructions.

‘The concurrence suggests that, for
the purposes of defining strict
liability in Mississippi, no real
distinction exists between a "consumer"
and a "bystander". Similarly, for
purposes of negligent design, that
opinion suggests "bystander" denotes
"casual observer" in determining to whom
the danger should be open and obvious.
Regardless of the terminology, it seems
to be that one in Batts’ posture lacks

80

knowledge of the danger as open and
obvious, as a matter of law, by merely
watching the general operation of the
forklift. The open and obvious danger
comes about only when Batts, or one
similarly situated, might actually see
the forklift while it travelled
backwards bearing down upon the person,
inasmuch as this machine carried no
automatic warning sounds or signals.

81

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT
OF MISSISSIPPI

DELTA DIVISION

MYRON BATTS
Plaintiff

Vs. No. DC88-71-D-D

TOW-MOTOR FORKLIFT COMPANY and
CATERPILLAR INDUSTRIAL, INC.
Defendants

MEMORANDUM OPINION

This is a six-year old products
liability case which has come before the
district court for a second trip. In
March of 1991, this case was tried
before the undersigned, and the jury
returned a verdict in favor of
defendants. Post trial motions for
judgment notwithstanding the verdict, or
alternatively for a new trial, were.
denied by the undersigned on April 30,
1991. Plaintiff appealed to the United
States Court of Appeals for the Fifth
Circuit, which affirmed this district
court in all respects. The opinion is
reported by the Fifth Circuit at Batts

978 F.2d 1386 (Sth Cir. 1992). The
opinion was released on November 25,
1993, and the mandate issued on January
4, 1993. Now, plaintiff has returned to
United States District Court under the
auspices of Federal Rule of Civil
Procedure 60(b) (6), Relief from

82

2
i
}

Judgment, for "any other reason
justifying relief from the operation of
the judgment." The sum and substance of
plaintiff’s motion travels on the
coattails of the Mississippi Supreme
Court’s decision in =
Vv. _Prestage, 617 So. 2d 248 (Miss.
1993). With Prestage as his sword,
plaintiff asserts that this court
incorrectly applied Mississippi products
liability law, an error compounded by
the Fifth Circuit’s affirmance, when it
instructed the jury on the open and
obvious defense and the "consumer
expectation test" consistent with the
law of strict liability, Restatement
(2d) 402A of the Law of Torts. As
explained in this memorandum opinion,
the court has now concluded that the
jury was improperly instructed on
Mississippi products liability law when
this case went to trial in March of
1991. Faithful to our Erie? duty to
apply state law as expressed by the
highest court of this state, this court
recognizes the "retroactive rule of
-" As such, the motion for
relief from judgment will be granted.
Prior entry of judgment on April 3,
1991, will- be vacated, ‘and the- case
returned to this court’s active docket.
Before discussing the merits of the
motion as advanced by the plaintiff, the
court presents some additional
background facts which help complete the
picture for the issues that the court
addresses today.

1

’
304 U.S. 64, 58 S. Ct. 817, 82 L.Ed.
1188 (1938); 28 U.S.C. S 1652.

83

Background

In August of 1984, Myron Batts was
employed by Flavorite Laboratories,
Inc., where he operated a type of
forklift referred to as a "tugger".
- The room where Batts worked was often
noisy, and at least one other motorized
forklift operated in the same room. The
second motorized lift was operated by a
seated driver using controls to his
front where the forks were located. On
the day in question, Charles Johnson was
driving the motorized lift in reverse
when he backed into Myron Batts,
resulting in injury. At the time of the
collision, Batts was working with his
lift and was either walking beside or
backwards with the tugger. Batts
brought suit alleging that the forklift
should have had a back-up alarn,
flashing warning lights, and/or rearview
mirrors. According to Batts, the
absence of such warning devices entitled
him to recover under either strict
liability in tort (defective condition
unreasonably dangerous), failure to
warn, negligent manufacture for breach
of implied and express. warranties.
Caterpillar’s principal defense was that
_ the danger of operating a forklift (the
tugger) while not facing in the
direction of travel of the operator
driven lift was an open and obvious
danger. To this end, such open and
obvious danger was a complete bar to
recovery under Mississippi law.

2A "tugger" is a motorized lift,
but it is not driven by an
Operator. The operator walks behind the
lift and guides it.

84

~~.

The trial of this case was
conducted before the undersigned on
March 25-29, 1991. The jury was
instructee on the “open and obvious"
defense, sometimes referred to as the
“patent danger" rule. In his brief
supporting his Rule 60(b) (6) motion,
plaintiff asserts that he argued for a
"risk utility" instruction in lieu of
the consumer expectation test and the
inherent "open and obvious" rule. While
the court is not disputing this
assertion in the absence of a complete
transcript of the jury instruction
conference, the undersigned merely notes
that the record which plaintiff has
furnished does not reflect a request for
the "risk utility" test. In any event,
the point is academic. For the record
does indicate that Batts entered several]
objections to the court’s instruction on
the "open and obvious" defense. In the
case sub judice, the jury returned a
verdict for defendant finding the "open
and obvious" defense to be a complete
bar to recovery. Post trial motions for
j.n.o.v. and new trial predicated upon
the court’s charge to the jury were
denied by the undersigned. Appeal was
taken to the United States Court of
Appeals for the Fifth Circuit. On
appeal, Batts argued that this court
committed reversible error when it
instructed the jury on the "open and
obvious" defense. The Fifth Circuit
rejected the argument and affirmed the
judgment of this court holding that the
undersigned had correctly instructed the
jury on Mississippi products liability

law. See

85

Co., 978 F.2d 1386 (Sth Cir. 1386).?
The discussion which follows completes
the procedural history of this case
which has new life following the
Mississippi Supreme Court’s decis

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1648%3A1. Public record. Not legal advice.