Released for Publication June 10, 2015.
As Corrected October 16, 2014.
[Copyrighted Material Omitted]
Appeal from Marion Circuit Court. (CV-09-900054). John H. Bentley, Trial Judge.
For Appellant: James B. Carlson, Deborah Alley Smith, and Abbott Marie Jones of Christian & Small LLP, Birmingham.
For Appellee: Jeffrey C. Rickard, Roger L. Lucas, and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham.
BOLIN, Justice. Stuart, Wise, and Bryan, JJ., concur. Parker, J., concurs specially. Murdock and Main, JJ., concur in the result. Moore, C.J., recuses himself.
Yanmar America Corporation (" Yanmar America" ) appeals from a judgment entered in favor of Randy Nichols following a trial by a jury of his claims alleging a negligent failure to warn. We reverse and remand.
Facts and Procedural History
I. The Accident
In May 2005, Autrey Nichols purchased a Yanmar model 2210BD tractor from Northside Motors, LLC (" Northside" ), in Hamilton. The Yanmar tractor came equipped with a front-end loader and a " bush hog" attachment. The Yanmar tractor did not have a rollover-protection structure (" ROPS" ). On May 1, 2008, Randy Nichols, the plaintiff and Autrey's brother, used the Yanmar tractor to bush hog a neighbor's property. The particular area of the property Randy was to bush hog was a field that contained a hill, the slope of which increased as he moved toward the center of the field. Randy did not " walk" the field to inspect the terrain before bush hogging the field. Randy testified that he was operating the tractor in tall grass at " walking speed" when he glanced back at the bush hog to make sure it was operating properly. Randy stated that when he looked forward it appeared that the right front tire suddenly " took a dip," causing the tractor to roll over. The right front tire of the tractor encountered a slight " drop off" on the side of the hill, which caused the tractor to roll over 360 degrees and come to a rest upright on its tires. Randy was thrown from the tractor. He stated that he remembered the bush hog " coming over on me" and that he tried to roll out of the way but was unable to do so. Randy testified that he threw his arm up to protect his head and felt excruciating pain. Randy suffered severe injuries, including an amputated right arm, a crushed hip and leg, and various other injuries. Before the accident, Randy had more than 30 years' experience operating tractors and other heavy equipment. Randy had operated the subject Yanmar tractor approximately 15 to 20 times without incident before the accident. Randy testified that he had experience operating tractors with implements such as front-end loaders, backhoes, bush hogs, " graderplates," " breaking plows," and " planters." Randy testified that he had operated tractors both with and without the ROPS and that he was comfortable operating a tractor that was not equipped with the ROPS. Randy stated that he knew that any tractor had the potential to roll over and that, if a tractor that was not equipped with a ROPS rolled over, the driver could be seriously injured or killed. He further testified that he knew how to operate a
tractor, that he was a " safe" tractor operator, and that he had never rolled a tractor over before the accident in this case.
II. The Gray-Market Tractor and Factors Contributing to the Rollover
The subject Yanmar tractor was manufactured on March 5, 1979, by Yanmar Diesel Engine Co., Ltd. (" Yanmar Japan" ), at its Kinomoto plant in Japan. At the time of its manufacture, the tractor was equipped with a rotary tiller. The tractor was sold on March 29, 1979, to Kounomiya Yanmar, an authorized Yanmar dealer in Japan. The Yanmar tractor was " purpose built" for primary use in the rice paddies of Japan. The tractor was designed and manufactured in accordance with Japanese industry and governmental standards in existence at the time. The original operator's manual for the tractor printed by Yanmar Japan and the warning labels affixed to the tractor were all written in Japanese.
Before 1991, Yanmar Japan had manufactured Yanmar brand tractors specifically for distribution in the United States. Subsequent to its entry into the United States market in the late 1970s, Yanmar Japan established Yanmar America in 1981. Yanmar America is a wholly owned subsidiary of Yanmar Japan; one of its functions is to distribute parts for Yanmar tractors authorized for sale in the United States. In 1991, Yanmar Japan ceased manufacturing and distributing Yanmar tractors for sale in the United States market.
Significant design differences existed between those Yanmar brand tractors manufactured for use in the Japanese market and those Yanmar brand tractors manufactured for use in the United States market. The tractors manufactured for the Japanese market: (1) had relatively slow travel speed, which was conducive to rice-paddy tilling; (2) had much higher " lugs" on the tractor tires, which were specially suited for use in muddy rice paddies; (3) had a standard rotary-tiller attachment suitable for tilling rice paddies rather than a front-end loader or a bush hog; and (4) had a four-speed " power take-off" to accommodate the varying tiller speeds required in rice-paddy tilling. The operator's manuals and warning decals for those tractors were printed in Japanese. Because of the significant differences in the design and performance of the tractors, the tractors intended for the Japanese market were never intended to be sold or used in the United States market.
Dennis Skogen, Yanmar America's engineering and accident-reconstruction expert witness, testified that the factors contributing to the rollover here included operating the tractor on the side slope; encountering the " drop off" on the side slope; and the configuration of the tractor, which included operating the tractor with the front-end loader in the raised position, a lack of ballast in the tires, and the bush hog on the back. Skogen testified that ballast in the tires would have decreased the likelihood of a rollover because it would have lowered the center of gravity
of the tractor. Skogen also stated that operating the tractor with the front-end loader in the lowered position would also lower the center of gravity. Skogen also testified that a properly attached ROPS would have " more likely as not" prevented the tractor from rolling past 90 degrees, but, given the slope of the hill on which the rollover occurred, it was possible that the ROPS would not have prevented the tractor from rolling past 90 degrees. However, Skogen also stated that the tractor was not unreasonably dangerous because it was not equipped with a ROPS. Rather, Skogen testified that the tractor should not have been imported and sold in the United States in the first place because it was designed and manufactured for use in the rice paddies of Japan, and not for use in the United States equipped with a front-end loader and a bush hog. Skogen testified as follows:
" Q. Well, what ... made a difference, in your opinion, about this tractor rolling over and this injury to Randy ... occurring?
" A. Well, we talked about that before. It's the slope. It's the drop-off itself. We're talking about what the tractor is, what the tractor -- its configuration. It has tires on it, as an example, for use in rice paddies. It's not the type of tire that would we would normally see for use on other tractors in a similar situation .... [T]his tractor shouldn't have been imported in the first place, so there wouldn't have been a rollover with this tractor in the second place with or without a ROPS.
" Q. Okay. What differences that existed in this tractor that you have listed, as you say it was designed for use in Japan, made a difference in causing this rollover or the injuries to Randy?
" A. Well, start off with a tiller on the back. Now, if you're going to bring the tractor into this country, it would have a tiller on the back. It wouldn't have a mower on the back. You wouldn't be using it for ... mowing. It's used for tilling rice paddies. You wouldn't have a front-end loader because, again, the purpose is to have a tiller on the back. The tiller would be lower in its configuration. It wouldn't have been used in this field in the first place because this is not a rice paddy.
" Q. All right. What else?
" A. Again, I talked about before about the configuration with the tires. They have higher tread on them, which can in a sense raise the center of gravity versus a tractor that has turf tires or tires that don't have the rice paddy type tires.
" Q. And other than the fact that the tractor wouldn't be here, you know, if they hadn't imported it for use in the United States, I want to know specifically anything besides the tiller and the fact it wouldn't have a front-end loader, in your opinion, that are the features you say were made for Japan that you think were specifically causative in contributing to this rollover?
" A. It's the configuration of the entire piece of equipment. It's the fact that it had a mower on the back and not the tiller. Again, it's a tiller. The tractor used in Japan didn't have a front-end loader. Now we come to the configuration of the tractor, the size of the tractor, the width of the tractor, the length of the tractor, the weight of the tractor. It's the tractor that rolls over. You can't say that there's one part of the tractor that caused it to roll over in the absence of another part. It's the configuration of the tractor given this slope, which, again, I talked about before is steep, and then given the drop-off or ledge as I described it before."
Dr. Thomas Carpenter, an agricultural engineer and safety expert, testified that the primary cause of the rollover was the lack of stability of the tractor, caused by its narrow wheel spacing, and the front-end loader being attached to the tractor. Dr. Carpenter stated that the Yanmar tractor in question had a tipping angle of 37.4 degrees and a tread width of 40 inches, whereas similarly sized American-made tractors manufactured in the same year as the Yanmar tractor at issue had tipping angles in excess of 45 degrees and tread widths that varied between 51 inches and 75 inches. Dr. Carpenter opined that the relative instability of the Yanmar tractor based on tread width and tipping angle, when compared to the similarly sized American-made tractors, " resulted in it overturning" under the conditions in which it was being used on the day of Randy's accident. Dr. Carpenter further testified that the addition of the front-end loader " definitely increased the instability" of the tractor by moving the center of gravity of the tractor higher and forward. Dr. Carpenter stated that, based on what he knew of this tractor's stability characteristics, he would not have used it to bush hog the property Randy was bush hogging. Dr. Carpenter testified that a ROPS would likely have prevented the tractor from rolling more than 90 degrees but that, even if the tractor had been equipped with a ROPS, he would not have used it to bush hog the property.
III. The Purchase of the Gray-Market Tractor
Arnold Trimm owned Artec Tractor and Equipment, Inc. (" Artec" ), from 1994 until 2006. In the late 1990s Trimm saw an advertisement in a magazine for used Japanese farm tractors. Trimm contacted the suppliers of the tractors and eventually traveled to Japan to meet with the suppliers. Trimm testified that he was told by the suppliers that the tractors were " good used farm tractors." Trimm stated that he was not told that the tractors had been specifically designed and manufactured for use in Japan and not for use in the United States. Trimm testified that Artec imported and sold the used Japanese farm tractors from 1998 until 2005. ...