Virginia Lawyers Weekly VA Lawyers Weekly
Although the 59-year-old plaintiff made some changes to his riding lawnmower, he had been using it without incident to mow his yard, including a slope adjacent to a road, and expert evidence supports his claim that a design defect was a factor in the mower rolling over on top of plaintiff; an Abingdon U.S. District Court says the case goes to the jury.
As plaintiff, a 59-year-old college-education retiree, was moving his grass with the mower, he proceeded up a slope that he had mowed many times before, without incident. The mower turned over and pinned him underneath, causing injuries. He does not know why the accident happened. The operator’s manual for the mower warned operators not to operate on a slope greater than 15 degrees. The record is unclear as to the degree of the slope where the accident occurred, although there is evidence it was at or less than 15 degrees.
Plaintiff’s first expert E. Smith Reed, a licensed engineer and former design engineer for another mower manufacturer, opines the mower in question was capable of unexpectedly overturning when operated on slopes within the range permitted by the manual when the operator weighed as much as plaintiff – 265 pounds. He contends the mower should have been designed with control lever dampers, preventing a rapid acceleration of the mower leading to the raising of the front wheels and upending of the mower. Reed also opines the manufacturer should have warned of the effect of the weight of the operator on the safety of operation on slopes.
Based on these opinions and the other facts of record, I find that whether the product had a defective design and whether defendant MTD failed to warn of this dangerous condition are jury issues. Misuse of the product also is a jury question. After purchase, plaintiff installed a switch that allowed the machine to mow in reverse, replaced the seat with a more comfortable one and changed the discharge deflector by securing it in the up position.
Defendant contends the claim of breach of warranty is barred by a limitation in the MTD warranty.
Even assuming the proffered warranty is enforceable, it is clearly not a reduction of the statute of limitations applicable to plaintiff’s cause of action for personal injury, which under Virginia law is two years from the date of the accident, regardless of the theory of recovery.
Plaintiff’s expert Reed, and his other expert, Thomas A. Berry, also a professional engineer, both have opined that the mower in question was defective because it did not have a rollover protective system (ROPS), such as a roll bar. MTD argues Virginia law does not permit recovery in a products liability suit for lack of “crashworthiness.”
While I must, of course, accept Virginia law as announced by the Virginia Supreme Court, its definition of a crashworthy cause of action does not encompass the present case, where plaintiff claims the accident itself was caused by a design defect in the mower. If, as plaintiff claims, the machine was unreasonably dangerous for operation on slopes to begin with, the failure to protect the operator from such dangerousness falls within the traditional principles governing product liability, as reiterated by the Virginia Supreme Court. Defendant also contends plaintiff has testified that he knew other similar mowers were available with ROPS and chose the MTD mower even though it did not have such a feature, he was aware of the defect and is barred from recovery. Viewing the evidence in the light most favorable to plaintiff, it is clear defendant was not aware of the characteristics of the mower, which – at least according to expert Reed – increased the chances of overturning while accelerating up a slope.
Defendant’s motion for summary judgment is denied.
Ruling on the parties’ motions in limine, the court grants plaintiff’s motion in limine to exclude evidence of negligence by physicians who treated him immediately after the accident. Plaintiff’s medical negligence action against the hospital and physicians who treated him on the day of the accident is pending in state court. The present record unquestionably demonstrates the physicians’ negligence aggravated plaintiff’s injuries and constituted an incident that could be reasonably anticipated.
Subsequent negligent acts will only interrupt the causal chain of events if they “entirely supersede” defendants’ negligence so that the second act alone, without any contributing negligence by the defendant in the slightest degree, causes the injury. That is not the case here. The conclusions offered by MTD’s experts demonstrate that the initial medical treatment of plaintiff was a reasonably foreseeable result of the initial accident. Any third-party negligence is thus irrelevant to plaintiff’s claim against MTD and must be excluded from the jury.
The court also grants defendant’s motion to exclude evidence about future costs by the expert, Sharon Reavis, who authored plaintiff’s life care plan. Plaintiff concedes Reavis’s projects are not calculated at present value, but contends Virginia law does not demand such proof. I conclude Virginia law does require an award for future medical expenses in this case to be based on present value In the absence of a proper qualification of Reavis, I will not allow her to testify or present evidence as to the total expected future expenses to be incurred by the plaintiff as a result of the accident.
Mavity v. MTD Products Inc. (Jones, J.) (Published) No. 1:09cv00027, June 1, 2010; USDC at Abingdon, Va. VLW 010-3-284, 20 pp.
