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Repola v. Morbark Industries

filed: May 30, 1991; As Corrected June 6, 1991. Second Correction August 6, 1991.


On Appeal from the United States District Court for the District of New Jersey; D.C. Civil No. 88-00757.

Sloviter, Becker and Rosenn, Circuit Judges. Rosenn, Circuit Judge, concurring in part and dissenting in part.

Author: Becker


BECKER, Circuit Judge

This is an appeal by defendant Morbark Pennsylvania, Inc. from a large judgment entered on a jury verdict in favor of plaintiff Daniel M. Repola, who was injured when his left leg was drawn into a woodchipping machine sold by Morbark Pennsylvania to a company owned by Repola. We are called upon to predict how New Jersey would decide a number of issues arising under the 1987 New Jersey Product Liability Act (NJPLA), N.J. Stat. Ann. ยง 2A:58C-1 et seq. (West 1987), the most important of which is whether the NJPLA subsumes claims for common law negligence based upon the breach of a duty to provide oral warning undertaken by the distributor of an allegedly defective machine.

The jury based its award on a finding that Morbark Pennsylvania was negligent at common law in failing to live up to its dealership agreement with Morbark Industries, Inc., the manufacturer, which required it to instruct Repola on the safe and proper operation of the powerful woodchipping machine and, in particular, in failing to warn Repola of the danger of leaving the cab of the machine without disengaging the infeed rollers. The jury also found that Morbark Pennsylvania's negligence was the proximate cause of Repola's injuries. With respect to a parallel failure to warn claim under the NJPLA, however, the jury found that although the woodchipper was defective for lacking adequate warnings, this defect was not the proximate cause of the accident.

We conclude that the NJPLA does subsume common law negligence claims and, hence, that the district court erred in submitting the negligence claim to the jury. Because this error made possible, and indeed resulted in, inconsistent and utterly irreconcilable verdicts, we will reverse and remand for a new trial.


Prior to his injury, Repola was the sole proprietor of a land clearing business, D.R. Firewood. The business utilized, and Repola himself operated, various relatively small, hand-fed woodchipping machines. Believing that his growing business required a larger woodchipper, Repola contacted Walter Deacon, a sales representative for Morbark Industries, Inc., a Michigan manufacturer, to discuss the purchase of a Super Beever Total Chipharvestor ("Super Beever") -- a machine designed to reduce whole trees to woodchips. Unlike the smaller woodchippers that Repola had operated, the Super Beever is not designed to be hand-fed. Instead, an operator sitting in a cab controls a hydraulic grapple arm that picks up trees, placing them within a configuration of three rotating cylinders. These three "infeed rollers," which can be started and stopped from a lever within the cab, compress the branches and draw the wood toward a large, spinning chipper disk. Blades on the chipper disk cut the wood.

Several weeks after their initial conversation, Repola placed a verbal purchase order with Deacon, who arranged the sale to D.R. Firewood through Morbark Pennsylvania, Inc., a separately incorporated dealer of Morbark Industries products. Because Repola had never operated a woodchipper as large and as powerful as the Super Beever, Deacon orally represented, and the written purchase order confirmed, that a service representative would be sent to provide oral start-up instructions when the machine was delivered.

Repola received the Super Beever on December 31, 1986. However, no Morbark representative appeared to conduct a start-up demonstration. Repola was left to unload and begin operating the Super Beever guided only by the warning decals attached to the machine and the written instructions provided in the operator's manual. It is undisputed that neither the decals nor the manual explicitly warned operators never to leave the cab when the infeed rollers were engaged.

A few days after Repola began operating the Super Beever, the machine developed hydraulic leaks. Repola contacted Deacon, who by this time had become President of Morbark Pennsylvania. Deacon promised to send someone to make repairs and to conduct the delayed start-up demonstration. On January 9, Victor Howell, an experienced service representative and employee of Morbark Industries, arrived at Repola's worksite. The parties agree that Howell examined the machine, talked with Repola and his crew, left to secure replacement parts, and then returned and repaired the leaks. The parties disagree, however, over whether, in addition, Howell provided Repola with oral start-up instructions for the machine. Howell claims that he provided a complete start-up demonstration, including specific warnings not to leave the cab prior to disengaging the infeed rollers and not to hand-feed the machine. Repola denies all such communications. Howell does admit that he neglected to fill-out a "Start-up and Procedure Checklist," contrary to Morbark Industries' customary practice.

Repola used the Super Beever without incident until January 31, 1987. On that day, according to Repola's version of the events, he exited the cab while the infeed rollers were operating in order to provide instructions to his employees. As he turned to reenter the cab, Repola's left foot was grabbed by the rotating infeed rollers which dragged him towards the machine. The blades on the chipper disk cut away Repola's left knee and much of the surrounding bone and muscle before one of his employees reached the cab and disengaged the infeed rollers. The injury has necessitated four operations and extensive therapy and rehabilitation.

In November of 1987, Repola, his wife Irene, and D.R. Firewood filed the present action claiming that the Super Beever was defective in its design and in its failure to provide adequate warnings and that, under the NJPLA, Morbark Industries and Morbark Pennsylvania were liable for the injuries proximately resulting from these defects.*fn2 Well into discovery, Repola became aware of a Dealership Agreement between Morbark Industries and Morbark Pennsylvania, effective October 1, 1986, obliging the latter to

not deliver any Morbark Product until it has been properly set up and adjusted; until the Dealer has inspected a copy of the operator's manual which is to be furnished to the purchaser; and until the purchaser, or anyone he designates, has been instructed as to the safe and proper operation of the Morbark Product.

Alleging that he was a third party beneficiary of this agreement, Repola amended his complaint to add a common law negligence claim against Morbark Pennsylvania for failing to provide him with oral start-up instructions.*fn3

The case proceeded to a jury trial. On the first day of the trial, in a somewhat confusing exchange between counsel and the court, Morbark Pennsylvania's counsel made a request, which can only be described as a motion in limine, to dismiss the separate negligence cause of action, arguing that the statutory claim available under the NJPLA was the sole basis for relief available under New Jersey law.*fn4 The district court reserved decision on the motion and, on our reading of the record, never decided it in terms. At the close of Repola's case, Morbark Pennsylvania moved for a directed verdict but failed to renew its objection to the negligence claim. Ultimately, the court submitted the case to the jury with a verdict sheet containing special interrogatories tracking the separate statutory product liability and common law negligence claims. Once again, Morbark Pennsylvania failed to object, either to the charge or to the form of the special interrogatories.

The statutory products liability portion of the verdict sheet directed the jury to decide whether the Super Beever contained a design defect; the jury found that it did not. The statutory portion of the sheet also directed the jury to consider whether the Super Beever was defective for failure to contain adequate written warnings or instructions; the jury found that it was, but that this defect was not a proximate cause of Repola's injuries. In response to the verdict sheet's interrogatories on common law negligence, however, the jury found that Morbark Pennsylvania negligently had failed to provide oral start-up instructions and that this failure was a proximate cause of Repola's injuries. The jury awarded Repola $747,279.10 for medical bills, lost wages, and pain and suffering. The district court reduced this award to $523,095.37 to reflect the jury's finding that Repola was 30% contributorily negligent.*fn5

Morbark Pennsylvania filed a post-trial motion for judgment notwithstanding the verdict (j.n.o.v.) pursuant to Fed. R. Civ. P. 50(b) or, in the alternative, for a new trial pursuant to Fed. R. Civ. P. 59. Morbark Pennsylvania asserted that the NJPLA subsumes common law claims of negligent failure to warn, whether written or oral, and that the jury therefore should not have been instructed on the separate negligence claim. The district court denied the motion for j.n.o.v. on grounds that Morbark Pennsylvania had failed to advance this argument when it moved for a directed verdict, see Bonjorno v. Kaiser Aluminum & Chemical Corp., 752 F.2d 802, 814 (3d Cir. 1984), cert. denied, 477 U.S. 908, 91 L. Ed. 2d 572, 106 S. Ct. 3284 (1986). Because Morbark Pennsylvania had failed to object to the jury instructions, as required by Fed. R. Civ. P. 51, the district court also denied the motion for a new trial. Despite its conclusion that Morbark Pennsylvania had waived its right to request a j.n.o.v. or a new trial, the district court went on to consider and reject on the merits Morbark Pennsylvania's subsumption argument. The district court stated that, although the NJPLA subsumes all claims that a product is defective, it does not subsume claims that a service associated with the product, such as providing oral start-up instructions, was negligently performed.

Morbark Pennsylvania appeals from the denial of its motions for j.n.o.v. or a new trial as well as from the final judgment entered on the jury's verdict, again arguing that the negligent failure to instruct claim was subsumed by the NJPLA claim and thus should not have been submitted to the jury. Additionally, pointing out that the jury's responses to the separate statutory and common law interrogatories are inconsistent, Morbark Pennsylvania contends that (1) the verdict should be "modified" to eliminate the improperly submitted negligence claim; and (2) judgment should be entered in its favor based on the jury's finding, with respect to the NJPLA claim, that the failure to provide warning was not the proximate cause of Repola's injuries. Alternatively, Morbark Pennsylvania argues, the verdict simply should be reversed and the case remanded for a new trial.

Repola, needless to say, disagrees, contending that the NJPLA does not subsume oral failure to warn claims. He therefore argues that (1) the district court properly instructed the jury on the two separate claims; (2) the resulting verdict was not inconsistent, and (3) the negligence verdict against Morbark Pennsylvania should be affirmed. Even if the NJPLA does subsume the separate negligence claim, Repola adds, submission of the negligence charge was harmless error because the verdict is still not inconsistent. He stresses that the jury found both that the product was defective and that Morbark Pennsylvania was negligent and it found proximate cause under the negligence theory. The jury's failure to find proximate cause under the NJPLA claim, Repola asserts, reflects, at most, the jury's minor confusion regarding proximate causation. Specifically, he argues, the jury probably believed that there could be only one proximate cause for an injury. According to Repola, this minor confusion does not justify upending the entire verdict, and thus we should assume that the jury would have rendered the same verdict in his favor had it been properly instructed only on the NJPLA claim.


Before proceeding to the merits of the dispute, we must consider briefly whether Morbark Pennsylvania has sufficiently preserved the subsumption argument that it presses on appeal. As noted, Morbark Pennsylvania requests, as it did in its post-trial motion before the district court, either that we grant a j.n.o.v., "modifying" the judgment in its favor by deleting the jury's verdict on the negligence claim, or that we reverse the judgment altogether and remand for a new trial. In denying this post-trial motion, the district court ruled that Morbark Pennsylvania, by failing to raise the subsumption argument when it moved for a directed verdict and by failing to object to the proposed or actual jury charge, had waived its rights to such relief under Fed. R. Civ. P. 50 and 51. If the district court was correct, of course, the subsumption argument also is waived for appellate purposes. Morbark Pennsylvania argues, however, that the district court's waiver determination was erroneous. Morbark Pennsylvania points to its motion in limine, see supra note 4, and submits that, notwithstanding its failure to raise the subsumption argument later on, this motion sufficiently preserved the issue for appeal.

Repola challenges Morbark Pennsylvania's reliance on this motion in limine on two separate grounds. First, Repola contends, consistent with the holding of the district court, that an argument advanced in support of a motion in limine, but not readvanced during a motion for directed verdict or in opposition to the jury charge, is insufficient under Rules 50 and 51 to form the basis of a request for a j.n.o.v. or a new trial. With respect, we believe that the district court's and Repola's analysis does not adequately address the relevant question as applied to the facts of this case. Indisputably, if an argument is raised in support of a motion in limine, the motion is denied, and the argument is not restated at the appropriate time, the argument is not preserved under Rules 50 or 51. We think that it is an altogether different matter, however, when an argument is raised in support of a motion in limine, but the court reserves disposition of the motion and never decides it. In such an unusual circumstance, counsel reasonably may conclude that the court has the motion under continuous advisement and that it need not be restated. The motion is ambulatory, as it were, like a will. Based on our reading of the relevant exchange between counsel and the district court, we are satisfied that Morbark Pennsylvania's counsel acted reasonably in believing that the district court had reserved decision on the issue, rendering further objections unnecessary. Indeed, at oral argument, Repola altered his position on this issue and conceded that Morbark Pennsylvania would not be precluded from seeking a new trial, provided the court is not persuaded by his second attack on Morbark Pennsylvania's motion in limine, to which we now turn.

Repola contends that a close examination of the record reveals that Morbark Pennsylvania's motion in limine never actually raised the subsumption argument in relation to the negligent failure to warn claim upon which the jury ultimately found Morbark Pennsylvania to be liable. According to Repola, to the extent that the motion in limine raised the subsumption argument, it was directed towards several other negligence claims that he dropped before trial -- not the negligent failure to warn claim. Repola contends that the only objection that Morbark Pennsylvania ever lodged against the negligent failure to warn claim was based on a statute of limitations argument, and was rejected by the court somewhat later during the exchange concerning pretrial motions.

We agree with Repola that the record does reflect some concern on the part of Morbark Pennsylvania with the other negligence claims and the statute of limitations issue. We think, however, that Repola's reading of the record is unduly restrictive. A close reading of the relevant in limine exchange supports this conclusion.

Morbark Pennsylvania objected to "the claims for negligence and implied warranty as set forth in the complaint . . . because the only thing the product liability statute gives a claim for is strict liability in tort and express warranty." In our view, this was a reasonably articulate explication of the subsumption argument that Morbark Pennsylvania advances on appeal. The objection appears to have been addressed, moreover, to all of Repola's nonstatutory claims, including the claim based on negligent failure to warn. Indeed, Repola's counsel must have believed as much when he responded that "we took those out of the pretrial order . . . except for an independent claim on behalf of D.R. Firewood/Dan Repola with reference to Morbark Pennsylvania" -- a clear reference to the negligent failure to warn claim. It follows that the court's response, "we have no problems here . . . with the caveat we still ...

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