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GARRETT v. I.R. WITZER CO., et al.

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I.R. WITZER CO., et al.

September 17, 1999

Record No. 982345







Robert B. Cromwell, Jr., Judge

Present: All the Justices


In this appeal, we consider whether a plaintiff
established a prima facie case of negligence and breach of
warranty against a manufacturer and a seller of a product.

The plaintiff, Michael W. Garrett, filed his
motion for judgment against I. R. Witzer Company, Inc.
("Witzer Company"), Tidewater Mack, Inc.
("Tidewater Mack"), and Hydraulic Service Company, Inc.
The plaintiff settled his claims against Hydraulic Service
Company, which was dismissed with prejudice from the case. The
plaintiff proceeded to trial against the remaining defendants. At
the conclusion of the plaintiff’s case, the defendants made a
motion to strike the plaintiff’s evidence. The circuit court took
the motion under advisement, and the defendants renewed their
motion at the conclusion of their case. The court granted the
defendants’ motion and entered a final judgment. Plaintiff

In reviewing the circuit court’s decision to
strike the plaintiff’s evidence, we must consider the evidence
and all reasonable inferences deducible therefrom in the light
most favorable to the plaintiff. Additionally, any reasonable
doubt as to the sufficiency of the evidence must be resolved in
favor of the plaintiff. Gossett v. Jackson, 249 Va.
549, 550, 457 S.E.2d 97, 98 (1995).

Defendant, Witzer Company, manufactured a
lowboy trailer, which is used to transport heavy construction
equipment. The trailer is capable of transporting a maximum
capacity of 35 tons of equipment. The trailer is equipped with a
hydraulic cylinder unit which is used to raise and lower the
height of the trailer. The hydraulic cylinder is attached to the
trailer with a metal pin, which extends through the clevis of the
hydraulic cylinder to support plates affixed to the trailer.

Tidewater Mack sold the trailer to W. B. Goode
Co., Inc. ("Goode"), a construction company, on October
29, 1990. Goode accepted delivery of the trailer on November 5,
1990. Goode’s employees began to use the trailer to transport
heavy equipment after its delivery.

Garrett began his employment with Goode on
March 4, 1991, about four months after Goode had accepted
delivery of the trailer. Garrett’s duties included the operation
of heavy equipment. Garrett was required to load the equipment
onto the trailer when transporting the equipment to and from job

On March 27, 1992, Garrett finished his work at
a job site, and he "loaded" an excavator on the
trailer. He "backed [his] truck . . . up to the
trailer." After Garrett had elevated the trailer bed, the
pin in the hydraulic unit failed, and the trailer fell on
Garrett’s right foot.

Daniel W. Smith, who testified on behalf of
Garrett, qualified as an expert witness knowledgeable on the
subject of mechanical engineering. Smith testified that the
cylinder on the trailer failed because the pin was too small.
Smith measured the diameter and length of the pin and examined
the pin’s curvature. He also performed tests on the pin to
determine the strength or "hardness" of the metal. He
determined that the pin was constructed of "some sort of
mild steel." He made calculations based upon his
measurements, and he opined that "[t]he pin [was] undersized
for the conditions, the geometric conditions that exist[ed] between the pin and the plates."

Garrett testified that the pin, which was in
the cylinder when the accident occurred, was the same pin that he
saw in the trailer’s hydraulic cylinder within a few days of his
employment in March 1991. Garrett testified that the pin was
secured on one end by a bolt and two nuts and on the other end by
a washer that had been welded to the pin. The pin was chamfered
on one end.

The defendants presented evidence that the pin
which was in the cylinder at the time of Garrett’s accident was
not the same pin that was in the trailer at the time it was
delivered to Goode. John C. Doub, president of Tidewater Mack,
testified that he was the salesman who sold the trailer to Goode.
Doub inspected the trailer before and after he sold it to Goode.
Doub stated that the pin that was in the hydraulic unit at the
time of sale was "shear cut" or "smooth." The
pin that was in the trailer at the time of sale did not have a
washer welded to its end. The hydraulic unit, which was a part of
the trailer that Tidewater Mack sold to Goode, was painted red,
but the hydraulic unit involved in the accident was a different
color. Samuel R. Witzer, an employee of Witzer Company, testified
that Witzer Company’s employees used bolts with single-nyloc nuts
to retain the pin in contrast to a bolt with double nuts that was
used to contain the pin that was in the cylinder when the
accident occurred.

Garrett argues that he presented sufficient
evidence to establish that the defendants had breached certain
duties owed to him and that the issue whether the pin had been
altered or replaced was a question of fact for the jury.
Responding, the defendants assert that the circuit court properly
granted their motion to strike because the plaintiff failed to
prove that a defect existed in the trailer when it left the
defendants’ possession. We agree with the defendants.

In Logan v. Montgomery Ward & Co.,
216 Va. 425, 428, 219 S.E.2d 685, 687 (1975), we stated the
following principles which are equally pertinent here:

"The standard of safety of goods
imposed on the seller or manufacturer of a product is
essentially the same whether the theory of liability is
labeled warranty or negligence. The product must be fit
for the ordinary purposes for which it is to be
used. . . . Under either the warranty
theory or the negligence theory the plaintiff must show,
(1) that the goods were unreasonably dangerous either for
the use to which they would ordinarily be put or for some
other reasonably foreseeable purpose, and (2) that the
unreasonably dangerous condition existed when the goods
left the defendant’s hands."

We restated and applied these principles in Jeld-Wen,
v. Gamble, 256 Va. 144, 148, 501 S.E.2d 393, 396
(1998), Morgen Indus., Inc. v. Vaughan, 252 Va. 60,
65, 471 S.E.2d 489, 492 (1996), Besser Co. v. Hansen,
243 Va. 267, 277, 415 S.E.2d 138, 144 (1992), and Harris-Teeter,
v. Burroughs, 241 Va. 1, 4, 399 S.E.2d 801, 802

Applying these principles, we hold, as a matter
of law, that the plaintiff failed to prove that the unreasonably
dangerous condition existed at the time the trailer left the
defendants’ possession or control. As we have already stated,
Goode, the plaintiff’s employer, accepted delivery of the trailer
on November 5, 1990, and the plaintiff did not use the trailer
until after he began employment with Goode on March 4, 1991, four
months after the date of delivery. The plaintiff failed to
present any evidence about the condition of the pin and the
hydraulic unit when the trailer was delivered.

We find no merit in the plaintiff’s contention
that the "condition of the pin as of March . . .
1991 creates a presumption or, at the least, a permissible
inference that the size, shape, appearance and retaining devises
[sic] were the same as at prior points in time." The
evidence of record indicates that several persons operated the
trailer before the plaintiff began his employment at Goode.
Goode’s employees, who used the trailer, were required to inspect
and maintain the trailer. Additionally, the cylinder was removed
from the trailer, and repairs were performed on it before the
date of the plaintiff’s accident.

In view of our holdings, we need not consider
the plaintiff’s remaining assignments of error.*
Accordingly, we will affirm the judgment of the circuit court.



* Garrett contends that he proved an
unreasonably dangerous condition existed when the trailer left
the defendants’ possession because the size of the pin that was
in the cylinder when the accident occurred was the same size as
the pin that Witzer Company installed in the cylinder.
Continuing, Garrett asserts that it is irrelevant whether the pin
was altered after the trailer left the defendants’ possession
because his expert witness testified that the accident occurred
because the pin was too small. Garrett also argues that he
established that the trailer was defective when it was delivered
to Goode because the hydraulic system contained a design defect.
Garrett says that excessive spacing existed between support
plates and the ends of the clevis which contributed to the
accident. Garrett failed to raise these arguments in the circuit
court, and we will not consider them for the first time on
appeal. Rule 5:25.