Unpublished Dispositionterry H. Hensley, Plaintiff-appellant, v. Jlg Industries, Inc.; American Equipment Company; Hertzequipment Company, Defendants-appellees, v. United States Fidelity and Guaranty Company, Intervenor, 823 F.2d 553 (6th Cir. 1987)

Plaintiff, Terry H. Hensley, appeals from judgment rendered for defendants JLG Industries, Inc. and Hertz Equipment Company, following a jury trial. Defendant American Equipment Company had been dismissed from the case earlier. Plaintiff had been injured at a construction site while riding in the basket of an aerial lift manufactured by JLG, and leased by Hertz. He proceeded against JLG on a products liability theory, and against Hertz for breach of warranties.

Plaintiff is correct in his assertion that he was entitled to a jury instruction, on his products liability claim, which did not require him to prove what specific defect caused the product to be in a defective condition and to malfunction. Browder v. Pettigrew, 541 S.W.2d 402, 404-05 (Tenn. 1976); see Motley v. Fluid Power of Memphis, Inc., 640 S.W.2d 222, 225 (Tenn. App. 1982). However, while it is the duty of the trial judge to instruct the jury fully and correctly on the applicable law of the case [Katch v. Speidel, Div. of Textron, Inc., 746 F.2d 1136, 1139 (6th Cir. 1984)], the judge is not required to utilize the exact language counsel requests. Blackwell v. Sun Elec. Corp., 696 F.2d 1176, 1183 (6th Cir. 1983). Language lifted from a reported opinion and submitted by counsel as a proposed instruction may accurately state a proposition of law in the context of the reported case, and yet be misleading under the circumstances of the case about to be submitted to the jury. A trial judge would risk shirking his duty of guiding and assisting the jury in its understanding of legal and factual issues in a case, if he were not to tailor language of jury instructions to the circumstances of the case actually being tried before him.

Here the trial court's instructions dealing with the subject raised by plaintiff on appeal run to over four pages in the transcript. Although, when lifted out of this context the particular language pointed to by plaintiff might be subject to a narrow interpretation that he was being required to prove a specific flaw, when read in context with the other four and one-half pages, it is clear that plaintiff was being required only to establish that the lift was flawed, that it was defective. In taking issue with the language of the instruction, plaintiff seems to argue that he was entitled to an instruction that he could recover if he proved that something went wrong with the lift, rather than that something was wrong with it.

Because the jury instructions, when taken as a whole adequately informed the jury of the proof required of plaintiff, we are unable to say the trial court erred in this regard.

Plaintiff next contends that the trial court erred in submitting to the jury the question of whether the disclaimer of warranty found in the Hertz lease was effective to negate the express warranty found in the rental order. He points to Tennessee law requiring that apparently inconsistent language of this nature be construed wherever reasonable as consistent, provided that language of warranty negation is inoperative to the extent that such a construction is unreasonable. Tenn. Code Ann. Sec. 47-2-316(1).

The trial court did instruct the jury that it was to determine whether the express warranty or the disclaimer was controlling, advising it of the rule of construction cited above. The jury was then told to find for Hertz if it determined that the disclaimer applied, but that if it concluded that Hertz had not effectively disclaimed the warranty, then it should proceed to determine whether the warranty had been breached.

There was evidence from which the jury could conclude that the warranty was not breached. Had the trial judge ruled, as a matter of law, that the language of the two provisions was so inconsistent that the disclaimer must be regarded as ineffective, the jury would have been in a position to find for Hertz. Because no interrogatory was proposed by plaintiff to test the jury's verdict, plaintiff is unable to demonstrate that the verdict was based on the disclaimer. Accordingly, since the case against Hertz was submitted to the jury on two alternative theories, in the absence of testing by interrogatory, we must assume that the jury decided for Hertz based upon its finding that Hertz had not breached the express warranty.

The judgment of the district court is affirmed.