Stephen Bilenky v. Ryobi Technologies, Incorporated , 666 F. App'x 271 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1753
STEPHEN E. BILENKY, Administrator of the Estate of Frank S.
Wright, deceased,
Plaintiff – Appellee,
v.
RYOBI TECHNOLOGIES, INCORPORATED,
Defendant – Appellant,
and
HOME DEPOT USA, INCORPORATED; ONE WORLD TECHNOLOGIES,
INCORPORATED; TECHTRONIC INDUSTRIES NORTH AMERICA,
INCORPORATED; TECHTRONIC INDUSTRIES COMPANY, LIMITED; RYOBI
NORTH AMERICA, INCORPORATED; RYOBI LTD.; THE HOME DEPOT,
INCORPORATED,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:13-cv-00345-RAJ-DEM)
Argued: October 25, 2016 Decided: November 23, 2016
Before WILKINSON, KING, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert Latane Wise, BOWMAN AND BROOKE LLP, Richmond,
Virginia, for Appellant. Lawrence Steven Emmert, SYKES,
BOURDON, AHERN & LEVY, P.C., Virginia Beach, Virginia, for
Appellee. ON BRIEF: Davin M. Rosborough, BOWMAN AND BROOKE LLP,
Richmond, Virginia, for Appellant. Richard N. Shapiro, SHAPIRO,
APPLETON & DUFFAN, PC, Virginia Beach, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Frank S. Wright died after the Ryobi-branded lawn tractor
he was riding caught fire. The administrator of Mr. Wright’s
estate, Stephen E. Bilenky, brought a products liability lawsuit
against several defendants, including Ryobi Technologies,
Incorporated (“Ryobi”). After a four-day trial in the Eastern
District of Virginia, the jury found Ryobi liable for negligence
and awarded $2,500,000 in damages. Ryobi has appealed from the
district court’s judgment, and as explained below, we affirm.
I.
A.
On September 15, 2005, Mr. Wright and his wife Audrey
travelled to a Home Depot store in Norfolk, Virginia, to
purchase a new lawn tractor. 1 The Wrights paid $1,058 for a
Ryobi lawn tractor, Model HDK19H42 (the “Ryobi tractor”). The
next day, Home Depot delivered the Ryobi tractor to the Wrights’
home in Chesapeake, Virginia. Although the Ryobi tractor, the
accompanying operator’s manual, and the Home Depot receipt
1 Because we are assessing a denial of Ryobi’s motion for
judgment as a matter of law, we recount the facts in the light
most favorable to Bilenky. See Adkins v. Crown Auto, Inc., 488
F.3d 225, 231 (4th Cir. 2007).
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prominently displayed the trade name Ryobi®, it was actually
Husqvarna that manufactured the Ryobi tractor.
In the years preceding his death, Mr. Wright’s health began
to decline. Mr. Wright had survived a few heart attacks, and he
suffered from diabetes, coronary disease, and peripheral
neuropathy. Mr. Wright often used a wheelchair and was unable
to walk for a period of time. He also suffered from dementia,
although his condition had improved as of October 2010 due to a
medication change.
On December 23, 2010, Mr. Wright decided to use the Ryobi
tractor to either cut grass or bag leaves. Approximately one
hour after Mr. Wright went outside, Mrs. Wright heard a loud
noise. She saw the Ryobi tractor — with her husband still in
the operator’s seat — engulfed in smoke and fire. Mr. Wright
then dismounted the Ryobi tractor and attempted to flee the
intensifying flames. While Mrs. Wright fumbled with the garden
hose and called 911, Mr. Wright burned to death in his backyard.
He was eighty-eight years old.
B.
Bilenky, the Wrights’ son-in-law, was appointed
administrator of Mr. Wright’s estate on December 18, 2012. Two
days later, on December 20, Bilenky filed this action in the
Circuit Court for the City of Norfolk. Among the defendants
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were Ryobi and Home Depot USA, Incorporated (“Home Depot”). 2
Bilenky’s claims included negligence, gross negligence, breach
of express warranty, and breach of implied warranty. Home Depot
removed the matter to the Eastern District of Virginia on June
19, 2013, invoking the district court’s diversity jurisdiction.
See 28 U.S.C. § 1332.
On August 27, 2014, Home Depot and Ryobi filed motions for
summary judgment. In support of its motion, Ryobi contended
that it could not be held liable on any of Bilenky’s claims
because it had no involvement in the design, manufacture, or
distribution of the Ryobi tractor (the “nonliability theory”).
The district court declined to rule on the summary judgment
motions before trial.
The trial began on January 14, 2015. Bilenky’s theory was
that the Ryobi tractor’s fuel hose detached from the fuel tank,
causing gasoline to stream out of the fuel hose and ignite.
Bilenky presented models of the fuel tank, photographs, and the
Ryobi tractor operator’s manual, as well as the testimony of a
fire investigation and origin expert, a design engineering
2
The other defendants were Ryobi Limited; Ryobi North
America, Incorporated; Techtronic Industries Company, Limited;
Techtronic Industries North America, Incorporated; Ryobi
Technologies, Incorporated; One World Technologies,
Incorporated; and Home Depot, Incorporated. Those defendants
were dismissed prior to the trial.
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expert, Mrs. Wright, two paramedics, a deputy fire marshal, a
Home Depot corporate representative, one of the Wrights’
neighbors, the Wrights’ two daughters, and Bilenky.
On January 15, at the conclusion of Bilenky’s case-in-
chief, Home Depot and Ryobi jointly moved for judgment as a
matter of law pursuant to Rule 50(a) of the Federal Rules of
Civil Procedure. They argued, in pertinent part, that Bilenky
had failed to establish either design defect or causation.
Notably, however, the motion did not mention Ryobi’s
nonliability theory. For other reasons, the district court
granted the motion as to Bilenky’s gross negligence claim only.
When the trial resumed on January 20, the district court
granted Home Depot and Ryobi’s joint motion for a directed
verdict as to Bilenky’s express warranty claim, leaving his
negligence and implied warranty claims. On January 21, the
defense rested, a charge conference was conducted, and the case
was submitted to the jury. Ryobi did not request a jury
instruction pertinent to its nonliability theory. Furthermore,
Ryobi explicitly stated that it had no objection to the district
court’s jury charge, which did not include such an instruction.
The next day, January 22, the jury found in favor of Bilenky on
the negligence claim against Ryobi — but not Home Depot — and
against Bilenky on the implied warranty claim. The jury awarded
$2,500,000 in damages.
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On February 19, 2015, Ryobi filed a renewed motion for
judgment as a matter of law pursuant to Rule 50(b). For the
first time since its pretrial summary judgment motion, Ryobi
raised its nonliability theory. Ryobi also reiterated its
contention, made at trial, that the evidence of defect and
causation was insufficient to support Bilenky’s negligence
claim.
By its Memorandum Opinion and Order of June 26, 2015, the
district court denied Ryobi’s renewed motion. See Bilenky v.
Ryobi Techs., Inc., No. 2:13-cv-00345 (E.D. Va. June 26, 2015),
ECF No. 206 (the “Opinion”). In rejecting the nonliability
theory, the Opinion concluded that Ryobi was a proper defendant
pursuant to the apparent manufacturer doctrine, under which an
entity “subjects itself to the same liability as a manufacturer”
by “put[ting] out a product as its own.” See Opinion 15.
According to the court, there was “sufficient evidence in the
record to support the jury’s finding that Ryobi Technologies,
Inc., put the Ryobi tractor out as its own,” in that the “jury
was presented with evidence that Mr. Wright purchased a tractor
with the word ‘Ryobi’ printed on its side, that he possessed an
owner’s manual with the name ‘Ryobi’ printed on the top, and
that his receipt was indeed for a Ryobi lawn tractor.” Id. at
16. The Opinion also concluded that Bilenky had presented
sufficient evidence of defect and causation to support the
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negligence finding against Ryobi. Id. at 16-20. Ryobi timely
noted this appeal, and we possess jurisdiction pursuant to 28
U.S.C. § 1291.
II.
We review de novo a district court’s denial of a motion for
judgment as a matter of law. See Adkins v. Crown Auto, Inc.,
488 F.3d 225, 231 (4th Cir. 2007). We assess whether a
reasonable jury, viewing the evidence in the light most
favorable to the prevailing party, had a sufficient evidentiary
basis to find in favor of that party. Id.
III.
On appeal, Ryobi first contends that it is entitled to
judgment as a matter of law because it cannot be held liable as
the apparent manufacturer of the Ryobi tractor. Then, Ryobi
asserts that it deserves judgment as a matter of law premised on
insufficient trial evidence of both defect and causation. 3
3Ryobi also contends that it is entitled to a new trial
because the district court improperly struck two of Ryobi’s
contributory negligence defenses, applied an incorrect standard
for discovery sanctions, and wrongly allowed Bilenky to
introduce prejudicial evidence. We discern no reversible error,
however, with respect to those matters.
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A.
We first address Ryobi’s contention that it cannot be held
liable as the apparent manufacturer of the Ryobi tractor. In
Virginia, a plaintiff can impose liability on a manufacturer or
seller of a defective product if the product is unreasonably
dangerous for its ordinary or reasonably foreseeable use and the
unreasonably dangerous condition existed when the product “left
the defendant’s hands.” See Austin v. Clark Equip. Co., 48 F.3d
833, 836 (4th Cir. 1995) (quoting Logan v. Montgomery Ward &
Co., Inc., 219 S.E.2d 685, 687 (Va. 1975)). Pursuant to the
apparent manufacturer doctrine, an entity holding itself out as
the manufacturer may be subject to the same liability as the
actual manufacturer. See Swift & Co. v. Blackwell, 84 F.2d 130,
132 (4th Cir. 1936). In Swift, we explained the apparent
manufacturer doctrine as follows:
One who puts out as his own product chattels made by
others is under a duty to exercise care, proportionate
to the danger involved in the use of the chattels if
improperly made, to secure the adoption of a proper
formula or plan and the use of safe materials and to
inspect the chattel when made. But he does not escape
liability by so doing. By putting a chattel out as
his own product, he causes it to be used in reliance
upon his care in making it. Therefore, he is liable
if, because of some negligence in its fabrication or
through lack of proper inspection during the process
of manufacture, the article is in a dangerous
defective condition which the vendor could not
discover after it was delivered to him.
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Id. (quoting Restatement of Torts § 400). We later recognized
that Virginia has adopted the rule enunciated in Swift. See
Carney v. Sears, Roebuck & Co., 309 F.2d 300, 304 (4th Cir.
1962) (citing Highland Pharmacy v. White, 131 S.E. 198, 200 (Va.
1926)).
Here, it is undisputed that Husqvarna manufactured and Home
Depot sold the Ryobi tractor. Ryobi contends that Bilenky
cannot use the apparent manufacturer doctrine to hold it liable
because — unlike the entities deemed to be apparent
manufacturers in Swift, Carney, and Highland Pharmacy — Ryobi
was not involved in the distribution of the defective product.
Bilenky counters that the prominent labeling of the Ryobi®
trademark on the Ryobi tractor, operator’s manual, and Home
Depot receipt gave the jury sufficient evidence to impose
liability on Ryobi.
As the parties agree, Virginia has not addressed whether
the apparent manufacturer doctrine may apply to an entity
outside the chain of distribution of a product that nonetheless
bears the entity’s name. Furthermore, courts have split on the
issue. Compare, e.g., Yoder v. Honeywell Inc., 104 F.3d 1215,
1222-24 (10th Cir. 1997) (limiting apparent manufacturer
liability under Colorado law to entities within chain of
distribution), with, e.g., Brandimart v. Caterpillar Tractor
Co., 527 A.2d 134, 139-40 (Pa. Super. Ct. 1987) (imposing
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liability on entity that simply authorized use of its name on
product). We need not consider what position Virginia would
adopt, however, because Ryobi has waived the issue by failing to
request a jury instruction conforming to its nonliability theory
and its correlating view of the apparent manufacturer doctrine.
See Jiminez v. DaimlerChrysler Corp., 269 F.3d 439, 448 (4th
Cir. 2001) (citing, inter alia, Abel v. Miller, 824 F.2d 1522,
1535 (7th Cir. 1987)). That is, “[t]o avoid waiver of the
[nonliability] theory, [Ryobi] must have presented the theory at
trial and attempted to insure that the jury was properly
instructed on it.” See Abel, 824 F.2d at 1535. Because it did
not do so, Ryobi cannot now rely on the nonliability theory to
obtain judgment as a matter of law. 4
4 Significantly, Ryobi did not otherwise preserve its
nonliability theory by unsuccessfully presenting it to the
district court prior to submitting proposed jury instructions.
Cf. College Loan Corp. v. SLM Corp., 396 F.3d 588, 599 n.10 (4th
Cir. 2005) (recognizing that “College Loan’s failure to
specifically object to [instructions did not] waive the position
it had already unsuccessfully presented to the district court”).
Although Ryobi raised the nonliability theory in its summary
judgment motion, the court declined to rule on that motion prior
to trial. At the next opportunity, in its motion at trial for
judgment as a matter of law pursuant to Federal Rule of Civil
Procedure 50(a), Ryobi failed to reassert the nonliability
theory. Indeed, Ryobi only belatedly reiterated the
nonliability theory — post-trial — in its Rule 50(b) renewed
motion for judgment as a matter of law. Of course, “a Rule
50(a) motion is a prerequisite to a Rule 50(b) motion because
the [moving party] must apprise the district court of the
alleged insufficiency of [the] suit before the case is submitted
to the jury.” See Price v. City of Charlotte, N.C., 93 F.3d
(Continued)
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B.
We turn to Ryobi’s contention that Bilenky presented
insufficient evidence of defect and causation. To prevail on a
products liability claim in Virginia, a plaintiff “must prove
that the product contained a defect which rendered it
unreasonably dangerous for ordinary or foreseeable use.” See
Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir.
1993). The plaintiff also must establish that the alleged
defect existed when the product left the defendant’s hands and
that the defect caused the plaintiff’s injury. Id. When
determining what constitutes an unreasonably dangerous defect,
courts consider industry and government safety standards as well
as the reasonable expectations of consumers. Id. at 420-21.
Having carefully examined the record and the thoughtful
Opinion of the district court, together with the parties’
written submissions and the arguments of counsel, we discern no
inadequacy of the evidence. We are therefore content to affirm
the judgment on the cogent reasoning spelled out by the district
court in its Opinion.
1241, 1249 (4th Cir. 1996). Therefore, even if Ryobi had not
waived its nonliability theory by failing to request a
conforming instruction, we would be constrained to review for
plain error the court’s denial of Ryobi’s renewed motion for
judgment as a matter of law. See id.
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IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED
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