CNH America, LLC v. Tammy Roebuck

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REL: 10/23/2009 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e Reporter o f Decisions, A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ( ( 3 3 4 ) 2 2 9 ¬ 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2009-2010 1080261 CNH A m e r i c a , LLC v. Tammy Roebuck Appeal STUART, from M a r s h a l l C i r c u i t (CV-05-200273) Court Justice. Tammy Roebuck Marshall Circuit of h e r husband, sued Court Chris CNH seeking Roebuck, America, LLC ("CNH"), damages f o r t h e w r o n g f u l who was k i l l e d i n the death i n an a c c i d e n t i n v o l v i n g a b a c k h o e m a n u f a c t u r e d b y CNH. A t t h e c o n c l u s i o n o f 1080261 a jury trial, however, ordered on R o e b u c k ' s a new t r i a l appeals, in arguing returned motion, erred law. denying we i n favor court court i t s motion conclude judgment of the t r i a l as a m a t t e r CNH exceeded i t s d i s c r e t i o n that the t r i a l f o r a judgment that CNH; subsequently of j u r o r misconduct. or, i n the alternative, by denying CNH's the t r i a l that the t r i a l Because a verdict on t h e g r o u n d o r d e r i n g a new t r i a l court of the jury as a m a t t e r court o f l a w , we erred i n reverse and remand. I. On A p r i l 9, 2 0 0 5 , Roebuck, were h e l p i n g Chris their Roebuck and h i s b r o t h e r , f a t h e r , C a r l Roebuck, u s e a 580SK l o a d e r backhoe m a n u f a c t u r e d by Case C o r p o r a t i o n , to CNH, County. feed a t o move a l a r g e 1 Because they b i n to the bucket larger however, chain Carl feed were b i n on C a r l ' s having Chris t o use i n the e f f o r t . used a different a farm difficulty of the backhoe, and Shane Shane predecessor i n Marshall attaching the left While chain to he procure was t o drag gone, the The 580SK i s a m u l t i - u s e p i e c e o f c o n s t r u c t i o n e q u i p m e n t w i t h a l o a d e r on t h e f r o n t e n d a n d a b a c k h o e on t h e r e a r e n d . The o p e r a t o r ' s s e a t s w i v e l s 180 d e g r e e s s o t h a t t h e o p e r a t o r c a n f a c e e i t h e r t h e l o a d e r o r t h e b a c k h o e , d e p e n d i n g on w h i c h i s being used. 1 2 1080261 feed b i n to the desired l o c a t i o n . backhoe to the original When sitting front Chris work returned i n the operator's They t h e n r e t u r n e d w i t h t h e site. with the larger seat of the i d l i n g a n d p r o c e e d e d t o t o s s an a p p r o x i m a t e l y the operator's was 580SK f a c i n g t h e the chain landed pedals causing cab. When 12-pound c h a i n on t o p o f one o f t h e f o o t - s w i n g landed between 580SK. the other t h e boom a n d a s t a b i l i z e r Shane q u i c k l y c l i m b e d foot-swing pedal University Birmingham, where initially he h a d b e e n being on t h e s i d e o f t o f r e e C h r i s ; however, hours the pinning a b o a r d t h e 580SK and p r e s s e d internal injuries, at i t f o r the backhoe, post already s u f f e r e d severe later into i n the cab, t h e boom o n t h e b a c k h o e t o s w i n g t o t h e s i d e , the after Carl l o a d e r e n d . C h r i s a p p r o a c h e d t h e 580SK f r o m t h e b a c k h o e end Chris chain, of C h r i s had a n d he d i e d Alabama several Hospital in transported at Marshall treated v i a a i r ambulance Medical Center i n Boaz. On Marshall warranty, December 20, Circuit Court, defective Manufacturer's 2005, Tammy asserting design Liability Roebuck under Doctrine 3 sued claims the CNH of breach Alabama ("AEMLD"), i n the and of Extended general 1080261 negligence, for i n c l u d i n g f a i l u r e t o w a r n and failing to question. The moved a for warn, recall, case proceeded judgment submitted her evidence, arguing, or a matter of law after and again at the evidence CNH Roebuck had failed the tort to when i t was evidence that and, a r g u e d , t h a t m o d i f i c a t i o n was injuries m i g h t be and had been d e a t h , not a t t r i b u t a b l e t o CNH. CNH's m o t i o n s On backhoe requesting J u n e 20, CNH. On that two jurors the to trial as jury returned court the In failed to 4 580SK foot Chris fact, 580SK had CNH been the hand controls, or e r r o r s of trial, on of law. a verdict in favor disclose of that denied both a matter 2 0 0 8 , R o e b u c k m o v e d f o r a new had that of proximate cause negligence a judgment 2008, the J u l y 21, changed any The breach- because, a f t e r l e a v i n g CNH's c o n t r o l -- on Chris's the the statute failed manufactured. controls CNH the a l l same c o n d i t i o n when established substantially modified claims establish i n s u b s t a n t i a l l y the i t was the of applicable various argued, had by her as Roebuck was that killed CNH t h a t Roebuck's barred in 2008. things, and was 9, among o t h e r limitations o w n e d was June 580SK close as on negligence the trial claim Carl retrofit to of-warranty argued, post-sale their of arguing jury 1080261 questionnaires that they lawsuits seeking answered the q u e s t i o n n a i r e them from motion the to juror money had jury had that, received a information introduced during on evidence motion court Roebuck during the t r i a l . On of juror f o r a judgment as denied that motion she case and jurors have struck her third unknown an a party that had not been 15, 2008, the trial trial based o r d e r e d a new misconduct. in those would from October a matter had deliberations, call the defendants s u b s e q u e n t l y amended jury about been that, truthfully, g r a n t e d Roebuck's motion the and telephone conveying court damages panel. allege previously CNH then renewed i t s of law; however, on N o v e m b e r 2 0 , 2008. the CNH trial appealed. II. On a p p e a l , CNH discretion that the argues in ordering trial court a that new erred j u d g m e n t as a m a t t e r o f l a w . of review applicable Department 787, the trial by for or, denying court exceeded i t s i n the alternative, i t s motion This Court o u t l i n e d as t o e a c h Energy, a i n Alabama L t d . , 886 ( A l a . 2004): "'When r e v i e w i n g a r u l i n g on a m o t i o n a [ j u d g m e n t as a m a t t e r o f l a w ] , t h i s 5 for the standard of these arguments o f T r a n s p o r t a t i o n v. Land 791-92 trial So. 2d 1080261 Court uses t h e same s t a n d a r d t h e trial court used i n i t i a l l y i n g r a n t i n g or denying the motion. P a l m H a r b o r Homes, I n c . v . Crawford, 689 So. 2d 3 (Ala. 1997). Regarding q u e s t i o n s of f a c t , the u l t i m a t e issue is whether the nonmovant has presented s u f f i c i e n t evidence to a l l o w the c a s e o r i s s u e t o be s u b m i t t e d t o t h e j u r y for a factual resolution. Carter v. H e n d e r s o n , 598 So. 2 d 1350 ( A l a . 1 9 9 2 ) . In an a c t i o n f i l e d a f t e r J u n e 1 1 , 1 9 8 7 , the nonmovant must p r e s e n t s u b s t a n t i a l e v i d e n c e to w i t h s t a n d a [judgment as a m a t t e r o f law]. See § 1 2 - 2 1 - 1 2 , A l a . C o d e 1 9 7 5 ; W e s t v . F o u n d e r s L i f e A s s u r a n c e Co. o f F l o r i d a , 547 So. 2d 870, 871 ( A l a . 1989). A r e v i e w i n g c o u r t must d e t e r m i n e w h e t h e r t h e p a r t y who bears the burden of proof has produced s u b s t a n t i a l evidence creating a f a c t u a l d i s p u t e r e q u i r i n g r e s o l u t i o n by t h e jury. C a r t e r , 598 So. 2d a t 1 3 5 3 . In reviewing a ruling on a motion for a [ j u d g m e n t as a m a t t e r o f l a w ] , t h i s C o u r t views the evidence i n the light most f a v o r a b l e t o t h e nonmovant and e n t e r t a i n s such reasonable i n f e r e n c e s as the jury would have been f r e e t o draw. Id. I f the q u e s t i o n i s one o f l a w , t h i s C o u r t i n d u l g e s no p r e s u m p t i o n o f c o r r e c t n e s s as t o t h e t r i a l court's ruling. R i c w i l , I n c . v . S.L. P a p p a s & Co., 599 So. 2 d 1126 ( A l a . 1 9 9 2 ) . ' "Ex p a r t e A l f a M u t . 1240 ( A l a . 1999). Fire I n s . Co., 742 So. 2d " ' [ T ] h e r u l i n g on a m o t i o n f o r new t r i a l i s w i t h i n the d i s c r e t i o n of the t r i a l c o u r t [ , ] a n d ... t h e t r i a l c o u r t ' s d e c i s i o n c a r r i e s a s t r o n g presumption of c o r r e c t n e s s . Gold K i s t , I n c . v . T e d d e r , 580 So. 2d 1 3 2 1 , 1322 (Ala. 1991) . The d e c i s i o n o f t h e trial c o u r t s h o u l d n o t be d i s t u r b e d on appeal 6 1237, 1080261 unless the record plainly and palpably shows t h a t t h e t r i a l c o u r t e r r e d a n d t h a t some l e g a l r i g h t h a s b e e n a b u s e d . ' "McBride v. Sheppard, 19 9 3 ) . " 624 S o . 2 d 1 0 6 9 , 1 0 7 0 - 7 1 ( A l a . III. We a first judgment Roebuck. CNH consider CNH's as a m a t t e r With argues regard that that the f o r sale occurs" that and delivery claim must i s barred that "[a]n action "[a] breach " Section of action based next occurred upon four clearly would have o c c u r r e d that years, outside breach or by that should July 26, period; 7 when after further the breach when tender delivery of of h i s any b r e a c h of w a r r a n t y been 1997. therefore, time-barred. years 7-2-725(2) took on t h a t have four occurs Carl 5 8 0 S K o n J u l y 2 6 , 1 9 9 3 , CNH a r g u e s t h a t that claim, f o r b r e a c h o f any accrues of warranty Because by by § 7-2-725(1), A l a . be commenced w i t h i n "[a] cause i s made asserted t o Roebuck's b r e a c h - o f - w a r r a n t y cause o f a c t i o n has a c c r u e d . " provides i t was e n t i t l e d t o o f l a w on a l l t h e c l a i m s Code 1 9 7 5 , w h i c h p r o v i d e s contract argument t h a t date, and any c l a i m brought within Roebuck's CNH the claim i s argues, i ti s 1080261 However, provides person action falls i n § 7-2-725(2) f o r consumer goods. exception Roebuck That that in April the case of and, 9, 2005, consumer and later on w i t h i n the was are goods" less 20, 2005, her claim was "consumer defined law. The for personal, undisputed evidence to established or in § in his that Carl a p p r o x i m a t e l y 2004 and around his Carl construction that the approximately 8 t i m e he 70-acre whether trial, the purchased I t was also business used the farm or primarily originally construction a f t e r that that family, At business. Ala. "goods determine household purposes." left which 7-9A-102(a)(23), "used or b o u g h t f o r use indicated that use of good." must a c c o r d i n g l y 5 8 0 S K C a r l p u r c h a s e d was filed 580SK by primarily for personal, so we than timeliness o f A l a b a m a ' s U n i f o r m C o m m e r c i a l C o d e as the primarily by h i n g e s on w h e t h e r t h e are family, the injured claim allowed the when her u s e d or b o u g h t f o r use 580SK accrue filed a household purposes," the shall she period i n j u r e d was "Consumer goods an exception December four-year Code 1975, within because Roebuck's c l a i m t h e r e f o r e Chris her R o e b u c k a r g u e s , b e c a u s e C h r i s was months nine that "a c a u s e o f a c t i o n f o r d a m a g e s f o r i n j u r y t o i n j u r y occurs," on argues in in 580SK Marshall 1080261 County. Roebuck therefore argues that e v e n t h o u g h t h e 580SK m i g h t have once been c o n s i d e r e d b u s i n e s s e q u i p m e n t , i t became a consumer g o o d when C a r l the construction the legal is found a p e r s o n a l use f o r i t o u t s i d e business. classification put to a d i f f e r e n t In support o f a good of h e r argument that c a n c h a n g e when t h a t good u s e , Roebuck cites M o t o r s A c c e p t a n c e C o r p . , 425 S o . 2 d 464 Ex parte General ( A l a . 1983), i n which t h i s C o u r t c o n c l u d e d t h a t a n a u t o m o b i l e was a c o n s u m e r g o o d a t the time i t was dealership converted placed purchased f o r h i s personal to business i t f o r sale argument that thereafter a by owner use but t h a t inventory at the when remain a consumer was once good, a this a used-car the automobile t h e owner h i s dealership. car that of In subsequently rejecting consumer Court good stated: "[The p e t i t i o n e r ] a r g u e s t h a t t h e c a r was a c o n s u m e r g o o d when i t was s o l d t o [ t h e r e s p o n d e n t ] and t h a t i t r e m a i n e d a consumer good r e g a r d l e s s o f the a c t i o n s taken by [the respondent]. This i s not the case. W h i t e a n d Summers d e a l d i r e c t l y w i t h t h i s kind of s i t u a t i o n : " ' N o t e w e l l t h a t [§] 9-109 [ o f t h e U n i f o r m C o m m e r c i a l Code] does n o t c l a s s i f y goods according to design or i n t r i n s i c nature but a c c o r d i n g t o t h e u s e t o w h i c h t h e i r owner p u t s them. I t f o l l o w s t h a t as u s e c h a n g e s , e i t h e r b e c a u s e t h e o w n e r f i n d s some new t a s k f o r t h e g o o d s o r b e c a u s e an o w n e r 9 was the must 1080261 s e l l s t h e g o o d s t o a n o t h e r who u s e s i t f o r another purpose, the c l a s s i f i c a t i o n of the goods w i l l a l s o change.' " J . W h i t e & R. S u m m e r s , U n i f o r m C o m m e r c i a l C o d e 23-7 ( 2 d e d . 1 9 8 0 ) . (Emphasis added.)" Ex p a r t e General However, particular Carl's of this although g o o d may use evidence M o t o r s A c c e p t a n c e C o r p . , 425 of his we agree that change w i t h 580SK from business 2d a t the c l a s s i f i c a t i o n t h e use o f t h e good, and may have changed i n the record nevertheless 580SK So. § indicates over time, that Carl's used personal, as of a that the use n e v e r c h a n g e d i n a manner t h a t w o u l d c o n v e r t i t equipment t o a consumer good. In other words, t h e r e i s no s u b s t a n t i a l e v i d e n c e i n d i c a t i n g t h a t t h e 5 8 0 S K ever 466. a family, consumer good, that or household purposes." i s , "primarily was for § 7-9A-102(a)(23). When R o e b u c k ' s a t t o r n e y q u e s t i o n e d C a r l a t t r i a l a b o u t h i s u s e of t h e 580SK, Carl testified as follows: "Q: The f i r s t s e v e r a l y e a r s , o r when y o u g o t b a c k h o e , Mr. R o e b u c k , were you s t i l l in construction business? "A: Yes. "Q: D i d you have "A: Uh-huh. a farm, also? 10 the the 1080261 "Q: What k i n d o f w o r k d i d you do? "A: Well, we put i n septic tans c o n s t r u c t i o n work, d i g f o o t i n g s , thing. "Q: And you used t h a t t h i s case f o r that "A: That's "Q: A f t e r s e v e r a l y e a r s p a s s e d and i n t h e few y e a r s leading before C h r i s ' s d e a t h , had you g o t t e n out o f d o i n g work f o r t h e p u b l i c ? "A: Yes. "Q: What d i d y o u u s e t h e b a c k h o e those "A: "Q: "A: and that -- t h e [ 5 8 0 S K ] purpose? general type of backhoe in f o r mostly during -¬ We w o r k e d o n t h e f a r m w i t h i t most o f t h e t i m e , cows a n d w h a t e v e r . " On c r o s s - e x a m i n a t i o n , gave business correct. burying and i n the construction the following C a r l was a g a i n asked about t h i s subject testimony: Now, l e t ' s get back t o your business f o r a second. Shane t e s t i f i e d t h e o t h e r d a y , and I t h i n k you've t e s t i f i e d here t o d a y , t h a t you o b v i o u s l y bought t h i s backhoe we're here about for your business, right? Yes. "Q: F r o m 1 9 9 3 u n t i l s o m e t i m e i n t h e e a r l y 2 0 0 0 s -¬ 2 0 0 3 , 2 0 0 4 -- t h a t ' s w h a t y o u u s e d y o u r b a c k h o e for? "A: That's correct. 11 1080261 "Q: Your construction "A: Yes. "Q: And then I guess around s t o p p e d d o i n g t h a t work, your farm? t h a t t i m e when y o u you took i t out t o "A: Well, to the "Q: I've got you. "A: Yeah. "Q: And I t h i n k you t o l d us i n y o u r d e p o s i t i o n t h a t y o u w e r e t r y i n g t o r a i s e -- g e t up y o u r h e r d o f c a t t l e on t h e f a r m , r i g h t , a b o u t t h a t t i m e ? "A: Yes. "Q: And t r y to turn i t moneymaker f o r you? "A: I f possible. "Q: But you were "A: Yes." the farm's E v e n when we v i e w to Roebuck, and e x c a v a t i o n connected business? business. Okay. into a small little trying, right? this a s we m u s t , testimony i n the l i g h t see Land Energy, most Ltd., favorable 886 S o . 2 d a t 791-92, i t does n o t i n d i c a t e t h a t C a r l ' s u s e o f t h e 580SK e v e r shifted to a primarily personal, family, or household purpose; rather, i t s h i f t e d from business use i t indicates -- c o n s t r u c t i o n -- f a r m i n g only that and e x c a v a t i n g and r a n c h i n g . Although 12 one -- t o a n o t h e r b u s i n e s s u s e h i s residence was located 1080261 on the farm p r o p e r t y , C a r l operate the primarily farm replied, and w h a t e v e r , " and and other even The the 580SK household is evidence was used brought in July claim farm for farm, 580SK how ... whether depends for we more t h a n f o u r must the on 1993. IV. 13 the to raise been used conclude by directly 5 8 0 S K was a i t s primary assertion consumer-goods family, that that or i t was against CNH exception to Roebuck's b r e a c h - o f - time-barred years a f t e r he u s e d not personal, i n § 7-2-725. accordingly used accident, A breach-of-warranty claim the was have purposes to b u r y i n g cows the support Roebuck's therefore, trying to h i s e f f o r t o c c a s i o n of primarily s u b j e c t to is the 580SK m i g h t members the s t a t u t e of l i m i t a t i o n s warranty the does not a consumer good. not the § 7-9A-102(a)(23) purposes; therefore on the to the b u s i n e s s of the use. not on family that connected Although consumer good under and t h a t he was When a s k e d d i r e c t l y clearly for profit. related profit "work[ing] a use occasionally, Carl a f o r farm work. 580SK, C a r l cattle for acknowledged because the date the c l a i m i t was accrued 1080261 CNH next argues m a t t e r of law tort-based, Chris's i t is entitled on R o e b u c k ' s v a r i o u s because, i t says, injuries misconduct argues, that or the and death negligence evidence substantially other were after proximately and negligence attributable 580SK l e f t controls CNH to any CNH. further operated argues accident revealed controls to from purple the rigid black centering that that spring been a used used the with a by any Rather, CNH 580SK had been control and that errors CNH that argues equipped with backhoe, review failed spring caused CNH. CNH's or whoever foot pedals spring i t was the as which are a l l p r o x i m a t e cause of C h r i s ' s Specifically, i t s factory, that that leaving the not judgment claims, a t t r i b u t a b l e to t h a t m o d i f i c a t i o n was death, a Roebuck f a i l e d to e s t a b l i s h t h a t established modified to not of had foot the switched, the when the dual-lever 580SK 2 pedals. from centering and accident hand after i t controls pedals be that converted hand might foot-swing to change the with injuries to that, would the hand spring the had not more the have C N H s o l d a k i t t h a t c o u l d be u s e d t o c o n v e r t a 580SK backhoe from hand c o n t r o l s to f o o t - p e d a l c o n t r o l s . That k i t i n c l u d e d a b l a c k c e n t e r i n g s p r i n g , a n d t h e u s e r was i n s t r u c t e d to r e p l a c e the e x i s t i n g p u r p l e c e n t e r i n g s p r i n g w i t h t h a t new black spring. 2 14 1080261 occurred b e c a u s e , CNH operator's cab by says, Chris force to the foot-swing centering In spring submitted would not have thrown i n t o the applied sufficient p e d a l t o c o m p r e s s t h e more r i g i d black and a c t i v a t e t h e b a c k h o e . support substantially t h e 12-pound c h a i n of i t s modified argument after factory records that leaving the i n d i c a t i n g that was factory, the 580SK CNH t h e 580SK purchased b y C a r l was b u i l t w i t h d u a l - l e v e r h a n d c o n t r o l s , a n d n o t f o o t swing pedals. after i t s m a n u f a c t u r e was independent and of Rental Those dealer i n Jackson, C o m p a n y -- f o r s a l e equipped with killed centering that CNH Chris spring is still b e c a u s e , she whether controls Roebuck t h e 580SK or foot would Carl t h e 580SK hand not not dispute have sent Tubb and 15 that occurred i n place. However, t o a judgment purchased that, t o an Equipment records the 580SK controls. (1) a q u e s t i o n controls, was t o t h e p u b l i c , and t h e not e n t i t l e d says: indicated M i s s i s s i p p i -- does had been also likewise indicate that dual-lever Importantly, that records complete, Tubb E q u i p m e n t and R e n t a l was law factory was of the accident i f the correct Roebuck as fact argues a matter exists manufactured with (2) CNH should have as of to hand foreseen 1080261 that the purple after i t was first argument, converted approximately pedals backhoe in to foot Roebuck 75% of s p r i n g m i g h t be u s e d i n a 5 8 0 S K e v e n and Rental controls on controls. highlights the as o p p o s e d t o h a n d Equipment dealer centering 580SKs evidence CNH controls; indicate In support that indicating built that had there o f Tubb convert the t r a n s f e r r i n g i t to the that u l t i m a t e l y sold i t to C a r l , Mid-Southern Huntsville; that that foot-swing the records i t d i d not t h e 580SK b e f o r e of her i s no e v i d e n c e Equipment i n d i c a t i n g that Mid- Southern Equipment c o n v e r t e d the backhoe c o n t r o l s from hand t o foot operation; and that when Carl received the 580SK M i d - S o u t h e r n E q u i p m e n t on J u l y 2 6 , 1 9 9 3 , i t h a d f o o t Thus, Roebuck inferences, that the left argues, factory evidence claimant, supports we to foot she controls. two contrary reasonably believe controls t h e 580SK had Accordingly, of law i s However, converted or that the f a c t o r y . matter evidence e i t h e r of which a j u r y could t h e 5 8 0 S K was CNH the from foot -¬ after i t left controls when i t argues, a judgment as a inappropriate. disagree to create that a question Roebuck submitted o f f a c t on t h i s sufficient point. Roebuck bore the burden of e s t a b l i s h i n g t h a t 16 As the Carl's 1080261 580SK had not been accident from substantially the condition i n which S e a r s , R o e b u c k & Co. v . H a r r i s , 1 993). At Equipment 580SK trial, and Carl purchased manufactured Roebuck has instead, and she and had United to Tubb foot controls, Carl 377 So. 2d Ins. Co. of 944, CNH Tubb that the i t and of the was Rental. also affords case the 946 ( A l a . 1979) Ala. 580SKs CNH records are i n built with foot n o t h i n g more than or guess i s w h o l l y 27 9 and when those the America, factory. indicated 75% was to the rebut that evidence; perhaps purchased conjecture, s u b m i s s i o n of both Equipment because of 1026-27 ( A l a . controls However, " e v i d e n c e w h i c h warrant Carroll, hand delivered 580SK mere s p e c u l a t i o n , to from submitted that had the So. 2 d 1 0 1 8 , records speculates that, the controls. 630 i t left submitted n o t h i n g that would manufactured error business R e n t a l were m o d i f i e d at the time insufficient jury." Roberts v. (citing Headrick v. 82, 181 So. 2d 896 (1966)). Moreover, no evidence the 580SK to Mid-Southern a l t h o u g h Roebuck a l s o indicating foot that controls, Equipment i s no emphasizes Mid-Southern that fact that Equipment converted i s m i s l e a d i n g because l o n g e r i n b u s i n e s s and 17 there i s there i s 1080261 no e v i d e n c e w h a t s o e v e r of the the 580SK C a r l p u r c h a s e d . record, however, that the hand controls; hand controls 580SK 5) purchased that was 580SK at a l l times 3) days i n the order: had backhoe later, on Equipment July 4) 1993, Tubb foot- that Tubb ultimately J u l y 23, delivered 26, of a 580SK w i t h t r a n s f e r r e d t h e 5 8 0 S K t h a t was on 1) backhoe possession Equipment; Equipment is in with purchased that C a r l ordered when M i d - S o u t h e r n three Carl Mid-Southern and R e n t a l evidence manufactured while from maintenance indicates, in chronological to C a r l to Mid-Southern that Carl 2) and What u n d i s p u t e d the pedals Equipment sold Carl i t s handling and R e n t a l ; Equipment swing regarding 1993; that i t had 580SK not hand c o n t r o l s . When c o n s i d e r i n g t h i s e v i d e n c e , cannot agree that "fair-minded judgment" could exercise of contrary pedals. 2d the West v. 870, inference modified impartial to a l l the records manufactured So. Roebuck to 871 be 580SK Founders purchased Life ( A l a . 1989). made the Equipment 18 by with Co. anything, 580SK in reasonably Carl Assurance If i s that by M i d - S o u t h e r n persons t h a t have been p r o d u c e d , Carl we the infer, that CNH foot-swing of F l o r i d a , the to foot-swing pedals, with and 547 reasonable purchased t o meet t h e r e q u e s t of was the 1080261 c u s t o m e r who from ordered Mid-Southern conclude that backhoe c o n t r o l s of our is the would f r o m R o e b u c k t o CNH. under It i s unfortunate Equipment there unavailability it. a are that unavailable; question 580SK C a r l essentially of fact Such a burden records however, to the regarding the b a s e d upon purchased shift the that burden shifting of proof i s impermissible law. Roebuck judgment also of is See Harris, 630 2d i f the foreseeable a t 1027 ("A s h o u l d have f o r e s e e n could left hand be conversions 1998 those o r 1999, or s e l l e r . " ) . and, remains reasonably Roebuck argues t h a t the wrong c e n t e r i n g s p r i n g b a c k h o e was foot c o n t r o l s because, occurred or s e l l e r m o d i f i c a t i o n was i n a 5 8 0 S K when t h e c o n t r o l s to accomplish or to the manufacturer t h a t CNH modification. manufacturer alteration even a have that says, to should foreseen she entitled CNH So. because, not 580SK had b e e n s u b s t a n t i a l l y m o d i f i e d b e f o r e t h e a c c i d e n t , reasonably law CNH the ... a matter that i f liable as argues in fact, c o n v e r s i o n s , and, first, CNH p r o d u c e d and s e c o n d , CNH o f an a c c i d e n t t h a t o c c u r r e d 19 converted knew sold had from such a k i t to learned, in in Alaska involving 1080261 a foot-operated spring had CNH of 580SK b a c k h o e not been or 1999 foreseen, at the delivered the c o r r e c t has to C a r l , time that the Alaska no bearing on the 580SK here that the wrong of the approximately Alaska five years was Moreover, although t h a t hand c o n t r o l s on a 5 8 0 S K w o u l d foot controls CNH Carl and that could foreseeable that the conversion that backhoe the the in light correct specifically as t o how At t r though the centering centering 3 wrong performed, centering spring not that k i t so i t argues spring that and would ial, a 580SK spring spring the s p r i n g s . be the conversion the included We be the until 580SK. 3 foreseeable converted that that i n s t r u c t e d the person performing to switch his i t was be and might acquired sometimes a have because such i t was w o u l d be p e r f o r m e d centering of the f a c t spring purchased i t produced conversion and be acknowledges i t could conversion was i t learned manufactured centering accident after accident whether used i n a h a n d - c o n t r o l - t o - f o o t - c o n t r o l knowledge centering installed. a r g u e s , however, i n 1998 i n which to a not incorrectly left in the k i t included instructions the conversion agree. CNH r e p r e s e n t a t i v e a l s o t e s t i f i e d t h a t , e v e n i n v o l v e d i n the A l a s k a a c c i d e n t had the wrong i n the c o n t r o l mechanism of the backhoe, the was n o t t h e c a u s e o f t h e a c c i d e n t . 20 1080261 It i s instructive case w i t h that the facts a modification t o compare i n Harris, the facts i n which to a product that this of the present Court subsequently caused i n j u r y was f o r e s e e a b l e a n d t h a t t h e m a n u f a c t u r e r was subject product. in to l i a b i l i t y concluded therefore notwithstanding the modification 630 S o . 2 d a t 1 0 2 7 . We s u m m a r i z e d Harris an to the as f o l l o w s H o r n v . F a d a l M a c h i n i n g C e n t e r s , L L C , 972 S o . 2 d 6 3 , 7 2 - 7 3 (Ala. 2007): " H a r r i s i n v o l v e d , among o t h e r t h i n g s , an AEMLD a c t i o n a g a i n s t a m a n u f a c t u r e r and a r e t a i l e r a r i s i n g out o f t h e improper i n s t a l l a t i o n o f a water h e a t e r , r e s u l t i n g i n the severe carbon-monoxide p o i s o n i n g of t h e o c c u p a n t s o f a m o b i l e home. The h e a t e r was improperly i n s t a l l e d 'without a pipe to vent carbon monoxide and o t h e r exhaust gases o u t s i d e t h e m o b i l e home.' 630 S o . 2 d a t 1 0 2 3 . The h e a t e r was p r e v i o u s l y o w n e d , a n d no ' d r a f t h o o d ' accompanied t h e h e a t e r when i t l e f t t h e o r i g i n a l p u r c h a s e r ' s possession. "'At t r i a l , [the i n s t a l l e r f o r the occupants] t e s t i f i e d t h a t when he i n s t a l l e d t h e w a t e r h e a t e r he did n o t know that gas water heaters required venting.' 630 S o . 2 d a t 1 0 2 3 . After a jury returned a verdict against t h e m a n u f a c t u r e r and seller, t h e m a n u f a c t u r e r a n d s e l l e r moved f o r a j u d g m e n t n o t w i t h s t a n d i n g t h e v e r d i c t [now c a l l e d a j u d g m e n t a s a m a t t e r o f l a w ] , a r g u i n g , among o t h e r t h i n g s , that the p l a i n t i f f s had f a i l e d t o 'carry t h e i r burden of e s t a b l i s h i n g that the water h e a t e r had not been substantially altered between i t s [ s a l e ] and t h e time o f t h e a c c i d e n t . ' 630 S o . 2 d a t 1027. I n d e e d , t h e ' u n d i s p u t e d e v i d e n c e was t h a t when t h e w a t e r h e a t e r was i n s t a l l e d i n t h e m o b i l e 21 1080261 home i t s d r a f t h o o d a n d v e n t p i p e a n d t h e p l a s t i c pouch containing the instruction manual were m i s s i n g . ' 630 S o . 2 d a t 1 0 2 3 . H o w e v e r , t h e t r i a l c o u r t d e n i e d t h e i r motion, and they r a i s e d that i s s u e on a p p e a l . The p l a i n t i f f s a r g u e d t h a t ' [ i ] t was f o r e s e e a b l e ... t h a t t h e p o u c h c o n t a i n i n g t h e i n s t r u c t i o n manual, as w e l l as t h e d r a f t hood and v e n t p i p e , w o u l d be r e m o v e d f r o m t h e w a t e r h e a t e r . ' 630 S o . 2 d a t 1 0 2 7 . "This Court agreed w i t h t h e p l a i n t i f f s and h e l d that 'the t r i a l court d i d not e r r i n denying the motions f o r a [judgment n o t w i t h s t a n d i n g t h e v e r d i c t ] on the basis of a s u b s t a n t i a l a l t e r a t i o n of the product.' 630 S o . 2 d a t 1 0 2 8 . The C o u r t s t a t e d : "'[W]e h o l d t h a t t h e c h a n g e s i n t h e w a t e r heater either were not substantial a l t e r a t i o n s o r , i f t h e y were substantial a l t e r a t i o n s , were f o r e s e e a b l e . F i r s t , the e v i d e n c e s h o w s t h a t t h e v e n t p i p e was n o t sold with the water heater. The i n s t r u c t i o n manual s t a t e s t h a t t h e customer m u s t p r o v i d e h i s own v e n t p i p e . Therefore, the a b s e n c e o f a v e n t p i p e c a n n o t be a substantial alteration of the product. S e c o n d , s u b s t a n t i a l e v i d e n c e shows t h a t t h e i n s t r u c t i o n m a n u a l [ a n d ] t h e d r a f t h o o d ... were d e t a c h a b l e and e a s i l y removed. When t h e w a t e r h e a t e r was o r i g i n a l l y s o l d , t h e instruction manual was c o n t a i n e d in a p l a s t i c pouch a f f i x e d t o t h e water heater by adhesive tape. The d r a f t h o o d was a t t a c h e d b y s l i p p i n g t a b s l o c a t e d on t h e l e g s o f t h e d r a f t hood i n t o h o l e s p l a c e d i n the jacket top covering the top of the w a t e r h e a t e r .... T h u s , t h e r e m o v a l o f t h e manual [and] t h e d r a f t hood ... was a foreseeable alteration of the water heater.' "630 S o . 2 d a t 1028 ( e m p h a s i s 22 added)." 1080261 (Footnote mobile omitted.) home w e r e installed possibility when a water retailer because conversion vent from case, piping the correct the conversion necessary included out 580SK centering heater vent would have piping both: that controls hood there -- that CNH a necessary controls d i d not the could were part -- during unlike include the instruction manual necessary switch n o t have follow that that of the included to reasonably t h e 580SK t o f o o t to 23 the i s evidence be i n s t a l l e d to foot which failed that with and d r a f t should i n the k i t f o r accomplishing to i n s t a l l foreseen the circumstances Harris, springs. (1) carbon that the not included i n the k i t d e t a i l e d the process have causing k i t d i s t r i b u t e d b y CNH and a improperly concluded a r e n o t known, that the person converting included failed in was of heater. although spring from hand the centering foreseen was the water however, of Carl's water We should i n d i c a t i n g that the conversion the heater and t h e i n s t r u c t i o n manual separable In t h i s the occupants a d r a f t hood o r vent p i p i n g , and/or heater easily i n Harris, t o b u i l d up i n s i d e t h e home. manufacturer water injured without monoxide Thus, the instructions conversion was controls included a n d (2) i n the 1080261 conversion (Ala. kit. 2003) medical See (holding equipment and that was w h e r e , among o t h e r assembled M o r g u s o n v. not Co., the to a l s o Mendez v. Fla. 1990) assembler failed "[p]laintiff shock any H o n d a M o t o r Co., (holding To without source succeed of on required to c a u s e d by some a c t to to C a r l ' s indicates Chris's any that introduce that not to foot of of been i n c o r r e c t l y follow hospital no m o t o r c y c l e by the (S.D. defect design 484 where installing owner's upside tort-based claims, the manual or down"). Chris's death Roebuck was or Because to nevertheless that wantonness, led but converted Roebuck s u b s t a n t i a l e v i d e n c e i n d i c a t i n g t h a t CNH 24 able wantonness accident 5 8 0 S K when i t was controls. was or undisputed evidence negligence was proximately H o w e v e r , e v e n i f she the 801 manufacturer g u i l t y o f some n e g l i g e n c e that 796, modification F.Supp. 481, the p r o x i m a t e cause of the d e a t h was controls her 580SK, t h e improper m o d i f i c a t i o n hand of o f CNH's. was 738 was 2d c o r r e c t l y assembled). r e f e r r i n g to information, establish e s t a b l i s h t h a t CNH related there c l e a r l y misused the absorbers, other that So. the e q u i p m e n t had i n s t r u c t i o n s f o r v e r i f y i n g e q u i p m e n t was See 857 substantial foreseeable things, the the 3M failed to the from to proximately 1080261 caused the accident to a judgment asserted Inc., as a matter by Roebuck. policy of responsibility of law See K i n g 607 S o . 2 d 1 2 4 1 , 1247 settled that l e a d i n g to C h r i s ' s death, our ( A l a . 1992) system of causes the i s entitled a l lthe tort v. N a t i o n a l f o r compensation proximately on CNH tort Spa & P o o l ("[W]e n o t e law f o r an claims Inst., that the i s to place injury on the the party injury."). V. Roebuck sued CNH accident a a backhoe involving returned after verdict ordered misconduct. On appeal, i t sdiscretion alternative, that of agree law. enter a We a judgment CNH new the i n ordering the t r i a l statute of l i m i t a t i o n s , proximate causation. to a that a new the trial jury court of juror trial court or, i n the t o a judgment as a m a t t e r court erred was in failing o f CNH barred and, i n r e g a r d substantial Our r e s o l u t i o n 25 A trial claim present i n an CNH. result of law i n favor applicable failed but as argues breach-of-warranty she CNH, trial Roebuck's claims, killed of CNH as a m a t t e r was by was e n t i t l e d that husband manufactured i n favor subsequently exceeded her of t h i s to because by the to her tort evidence issue of makes i t 1080261 unnecessary exceeded f o r us t o c o n s i d e r i t s discretion trial. The reversed and t h e cause with this judgment the t r i a l court i n g r a n t i n g Roebuck's motion of the remanded trial court is f o r proceedings also f o r a new accordingly consistent opinion. R E V E R S E D AND Cobb, Murdock, whether REMANDED. C . J . , and Lyons, Woodall, a n d Shaw, J J . , c o n c u r . 26 Smith, Bolin, Parker,

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