Wilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

Wilson v. Bicycle South, Inc., 915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

Lois Elaine Wilson, Plaintiff-Appellant, v. Bicycle South, Inc., a Georgia Corporation, et al., Defendants-Appellees

No. 89-8522

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

915 F.2d 1503; 1990 U.S. App. LEXIS 18903; 31 Fed. R. Evid. Serv. (Callaghan) 682

October 30, 1990

SUBSEQUENT HISTORY: As Amended.

PRIOR HISTORY: [**1] Appeal from the United States District Court for the Northern District of Georgia. No.1: 85-cv-2658-CAM; Moye, Jr., Judge.

DISPOSITION: AFFIRMED.

COUNSEL: Robert H. Benfield, Jr., Middleton & Anderson, Atlanta, Georgia, for Appellant.

For Trek Bicycle: Stephen F. Dermer, Smith Gambrell & Russell, Atlanta, Georgia.

For Bicycle South: Jonathan Mark Engram, Swift Currie McGhee & Hiers, Thomas E. McCarter, Atlanta, Georgia.

For Opportunities, Inc.: Tommy T. Holland, Carter & Ansley, Christopher N. Shuman, Atlanta, Georgia.

For Skid Lid: Palmer H. Ansley, Long Weinberg Ansley & Wheeler, David A. Sapp, Atlanta, Georgia.

JUDGES: Clark, Circuit Judge, Morgan and Hill, * Senior Circuit Judges.

* See, Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit.

OPINION BY: HILL

OPINION

[*1504] HILL, Senior Circuit Judge

I. INTRODUCTION

This appeal concerns a products liability action based upon alleged breach of warranty, strict liability, and negligence resulting in injuries to Lois Elaine Wilson (“Wilson”), appellant. Wilson incurred head injuries during an accident in Georgia while on a cross-country bicycle trip. The jury returned a verdict in favor of Wilson and against one defendant on a bicycle helmet defect claim, and against Wilson and in favor of three defendants on a bicycle wheel defect claim. The district court granted a judgment notwithstanding the verdict on the helmet claim. Plaintiff appeals [*1505] this grant and also alleges several other errors by the district court concerning the bicycle wheel claim.

A. Issues Presented

Appellant raises four distinct categories of issues on appeal. First, appellant claims that the district court erred in granting appellee Skid Lid Manufacturing Company’s (“Skid Lid”) motion for a judgment notwithstanding [**2] the verdict. Second, appellant contends that the district court improperly commented on the evidence. Third, she asserts that the district court committed reversible error by refusing to admit “similar accident” evidence. Finally, appellant maintains that the district court erred in charging the jury on the defense of “legal accident.”

We hold that the trial court did not err in granting the JNOV. Nor do the trial judge’s comments on the evidence provide cause for reversal. Similarly, we find appellant’s third and fourth contentions to be meritless.

B. Factual and Procedural History

On January 6, 1983, appellant purchased a Trek 614 touring bicycle. Trek Bicycle Corporation (“Trek”) manufactured the bicycle, Opportunities, Incorporated (“Opportunities”) assembled the bike’s rear wheel according to Trek’s specifications, and Bicycle South, Inc. (“Bicycle South”) sold the bike to appellant. The latter three parties will be referred to collectively as “the bicycle defendants.” On February 9, 1983, appellant also purchased, from a company not a party to this lawsuit, a bicycle helmet manufactured by Skid Lid. Rather than purchase a helmet covering her entire head, appellant chose [**3] one that only covered the top half of her head, coming down to about the top of her ears.

Wilson purchased the bike and helmet for a cross-country bicycling trip from Florida to California. Eight days into her trip, on April 23, 1983, Wilson sustained head injuries in a fall from the bicycle while she was riding downhill on a two-lane Georgia highway between Plains and Americus, Georgia. Between January 6 and April 23, Wilson had ridden approximately 1200 to 1600 miles on the bicycle.

The cause of appellant’s fall is disputed by the parties. Appellant maintains that the rear wheel collapsed into a saddle-like shape as a result of an improper manufacturing process and a failure to retrue the spokes of the wheel after the rim was assembled. Under this theory, the tension in the wheel, which was not released after the rim was formed and the wheel assembled, caused the spokes to loosen after use and led to the collapse. The bicycle defendants, on the other hand, maintain that the fall did not result from the wheel collapse, but that the wheel collapsed as a result of appellant’s fall from the bike. 1

1 The actual cause of the fall does not affect the issues currently before this Court.

[**4] The point of initial impact between Ms. Wilson’s head and the pavement was behind her left ear and below the edge of the helmet. As a result of the impact, she claims that she sustained three injuries. The first two, a basilar skull fracture and occipital scalp laceration, were not particularly serious and do not comprise the more serious damage. The more serious injury was a “contre-coup” (an injury to the opposite side of the head from the point of initial impact) brain contusion.

Alleging defects in the bicycle wheel and helmet, Ms. Wilson filed a complaint in this products liability action based upon breach of warranty, strict liability, and negligence. During the trial, appellant attempted to introduce evidence of a prior bicycle wheel defect claim brought by another party against Trek, Opportunities, and another bicycle store, alleging that the incidents were substantially similar. The trial court excluded the earlier incident.

At the beginning of his charge, the trial judge explained to the jury:

As a federal judge, I have the right, power, and duty to comment on the facts, to express my opinion with respect thereto . . . but remember, in the last analysis, every factual issue [**5] in this case must be decided by you, by you alone, and anything that anybody else in this room says [*1506] about the facts is a mere opinion, not binding upon you.

Subsequently, referring to witness testimony, the judge again emphasized that “as sole judges of the facts, you, the jury, and you only, must determine which of the witnesses you believe and what portion of their testimony you accept and what weight you attach to it.” Prior to analyzing and giving his opinion of the evidence that Ms. Wilson presented, 2 the judge again cautioned the jury that “you, as jurors, are at liberty to disregard each, every, and all comments of the court in arriving at your own findings of the facts.” At the conclusion of his remarks, the trial judge further emphasized:

Let me stress as strongly as I can that you, the jury, are the sole and only judges of the facts. The past several minutes I have been giving you [**6] my opinion with respect to matters committed solely to your decision, not mine. My comments are and can only be expressions of a personal opinion and are not binding on you in any way, shape, or form. Remember that in considering every issue in this case, including those to which I have just alluded, you must resort to your own recollection of the evidence, not that which I have just stated. . . . You must, in the diligent performance of your duty, rely on your recollection of all the evidence and not merely that which I may have called to your attention and emphasized.

2 The trial judge focused especially on items of derogatory information with respect to appellant’s expert, Mr. James Green.

On April 13, 1989, the jury returned a verdict in favor of appellant against appellee Skid Lid in the amount of $ 265,000 on the helmet claim. On the bicycle wheel claim, the jury returned a verdict against appellant and in favor of the bicycle defendants.

On April 21, 1989, appellee Skid Lid moved for a judgment notwithstanding the verdict, and on May 24 the trial court entered an Order granting the motion. The court did so because it found that Ms. Wilson had “assumed the risk of injury as to parts of her body patently not covered by the helmet.”

II. DISCUSSION

A. The Helmet & the Judgment Notwithstanding the [**7] Verdict

[HN1] We review the district court’s grant of a JNOV under the same standard as the district court used in determining whether to grant a JNOV. As we stated in Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1558 (11th Cir.1988):

All of the evidence presented at trial must be considered “in the light and with all reasonable inferences most favorable to the party opposed to the motion.” A motion for judgment n.o.v. should be granted only where “reasonable [people] could not arrive at a contrary verdict. . . .” Where substantial conflicting evidence is presented such that reasonable people “in the exercise of impartial judgment might reach different conclusion, [sic]” the motion should be denied. (citations omitted)

In applying this standard for the sufficiency of evidence, we also look to Georgia substantive law to determine whether Skid Lid deserved judgment as a matter of law. See Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Salter v. Westra, 904 F.2d 1517, 1524 (11th Cir.1990).

Defendants in products liability actions have asserted two similar defenses in attempting to steer clear of liability, assumption of the risk and the “open and obvious [**8] rule.” 3 While the trial judge in this case based the JNOV on assumption of the risk, we also address the open and obvious rule because affirmance of the JNOV is proper even if based on a different rationale. See Paisey v. Vitale, 807 F.2d 889, 890 (11th Cir.1986).

3 This rule is also known as the “patent danger rule” and has its roots in a New York decision involving negligence law, Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802 (1950). New York later abandoned the rule in Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976).

[*1507] We need not reach the assumption of the risk issue if the helmet was not defective because Skid Lid would have breached no duty to Ms. Wilson. We thus initially address the open and obvious rule. [HN2] The open and obvious rule states that a product is not defective if the peril from which injury could result is patent or obvious to the user. Stodghill v. Fiat-Allis Construction Machinery, Inc., 163 Ga. App. 811, 295 S.E.2d 183, 185 (1982). This determination [**9] regarding the peril is made on the basis of an objective view of the product. Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169, 393 S.E.2d 64, 66 (1990) (certiorari denied June 21, 1990). In assessing what is obvious, it must be remembered that, contrary to the belief of some, the American public is not child-like. Stodghill is instructive in this respect. In Stodghill, the plaintiff was using a bulldozer manufactured by the defendants to clear felled trees from a construction site when a tree jumped over the bulldozer blade and struck him in the chest. The plaintiff claimed that the machine was defective because it had no protective metal cage surrounding the driver’s seat. The Georgia Court of Appeals recognized that the plaintiff “was obviously aware that the bulldozer he was operating had no protective cage and that the absence of this safety device exposed him to the danger of being injured by anything which might strike the driver’s compartment.” Id. 295 S.E.2d at 184. The court concluded that

“because the failure of the appellees in this case to install a protective cage over the driver’s seat of the bulldozer was an obvious characteristic of the machine [**10] which created no hidden peril and did not prevent the machine from functioning properly for the purpose for which it was designed, it cannot reasonably be considered a design or manufacturing defect under Georgia law.”

Id. at 185.

Similar to the absence of the protective cage on the bulldozer, it is or should be apparent to one who purchases an article of clothing or protective gear that the article can only protect that portion of the body which is covered. A person purchasing a bullet proof vest cannot realistically claim that he expected it to protect him from a bullet in the leg. Likewise, one purchasing a sleeveless t-shirt cannot protest that it should have protected him from a scrape on the arm. In the case at bar, rather than selecting a helmet covering her entire head, appellant elected to purchase a helmet that she knew covered only the top half of her head. She did know, or certainly should have known, that the helmet with less extensive coverage would not protect her from an impact to an area not covered by the helmet. Unlike a full helmet, the half-helmet was not designed to protect against impacts anywhere on the head. The extent of coverage was “an obvious characteristic [**11] of the [helmet] that created no hidden peril and did not prevent the [helmet] from functioning properly for the purpose for which it was designed.” Stodghill, 295 S.E.2d at 185. We thus find, as a matter of law, that the helmet was not defective under Georgia law. 4

4 We note that Georgia courts have been careful to avoid treating the American public as children where a peril is obvious or patent and the product thus not defective. In Weatherby, the five-year old plaintiff had been a passenger on an off-road motorcycle that did not have its gas cap in place. During the ride over uneven terrain, gasoline splashed from the open tank and ignited, causing burns to the plaintiff. The court found that an open fuel tank “surely suggests the possibility of spillage,” that because the fuel tank is located above the engine “gravity can be anticipated to bring the spilled fuel in contact with the engine and spark plug,” and that the dangers of spilled gasoline coming into contact with an engine are generally known. 393 S.E.2d at 67. The court consequently concluded as a matter of law that the peril of an open fuel tank resting over the engine and its spark plug was “an obvious or patent peril,” and that the product was thus not defective. Id. at 68.

[**12] Even if the failure to cover the full head were a defect, it is still beyond peradventure that appellant assumed the risk of injury to the parts of her body patently not covered by the helmet. [HN3] Under Georgia law, “‘if the user or consumer discovers the defect and is aware of the danger, but nevertheless proceeds unreasonably to make use of the product, he is [*1508] barred from recovery.'” 5 Center Chemical Co. v. Parzini, 234 Ga. 868, 870, 218 S.E.2d 580 (1975) (citation omitted). The first part of the test, actual knowledge of the defect and danger, is fulfilled because appellant had subjective knowledge that the helmet she purchased only covered a portion of her head. Had appellant, somehow, been unaware that the helmet only partially covered her head, the result might be different. As counsel for appellant admitted at oral argument, however, there is no evidence that she thought the helmet covered more of her head than it did cover, or that she believed it would protect her from injury to parts of her body not covered. Nor do we find, after our careful review of the transcript, any testimony to that effect. As for the second portion of the test, unreasonable use, it seems axiomatic [**13] to say that it is unreasonable to use a helmet to protect a portion of the body that the helmet clearly does not cover.

5 This test, in contrast to the open and obvious rule, looks to the subjective perceptions of the user or injured party. Another difference between assumption of the risk and the open and obvious rule is that while the latter places the burden of proof on the plaintiff, the former places it on the defendant. Weatherby, 393 S.E.2d at 66. See also Annotation, Products Liability: modern status of rule that there is no liability for patent or obvious dangers, 35 A.L.R. 4th 861, 865 (1985) (discussing open and obvious rule and the differences from assumption of the risk).

In sum, the district judge properly granted appellee Skid Lid’s motion for a JNOV.

B. Comments on the Evidence

At the close of the case, the district judge employed the time-honored, though little used, right and duty of a federal trial judge to comment on the evidence. As the Supreme Court stated in Quercia v. United [**14] States, 289 U.S. 466, 469, 53 S. Ct. 698, 698-99, 77 L. Ed. 1321 (1932):

[HN4] In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct and of determining questions of law. (citation omitted) In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important; and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. (citations omitted) Sir Matthew Hale thus described the function of the trial judge at common law: “Herein he is able, in matters of law emerging upon the evidence, to direct them; and also, in matters of fact to give them a great light and assistance by his weighing the evidence before them, and observing where the question and knot of the business lies, and by showing them his opinion even in matters of fact; which is a great advantage and [**15] light to laymen. (citation omitted)

[HN5]

The trial judge will not be reversed unless his comments “excite a prejudice which would preclude a fair and dispassionate consideration of the evidence.” Id. at 472, 53 S. Ct. at 700. See also United States v. Hope, 714 F.2d 1084, 1088 (11th Cir.1983) (“[a] trial judge may comment upon the evidence as long as he instructs the jury that it is the sole judge of the facts and that it is not bound by his comments and as long as the comments are not so highly prejudicial that an instruction to that effect cannot cure the error”). 6 It is only where [*1509] this prejudice exists that the substantial rights of the parties are affected and Fed.R.Civ.P. 61 permits disturbing a judgment. 7 In assessing whether this prejudice exists and has affected the parties’ substantial rights, we consider the record as a whole and not merely isolated remarks. See Newman v. A.E. Staley Mfg. Co., 648 F.2d 330, 334-335 (5th Cir. Unit B June 1981). “The test is not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues.” Bass v. International [**16] Bhd. of Boilermakers, 630 F.2d 1058, 1065 (5th Cir.1980) (citations omitted).

6 Other circuits have adopted similar language regarding a trial judge’s right to comment on the evidence. See, e.g., White v. City of Norwalk, 900 F.2d 1421 (9th Cir.1990); Johnson v. Helmerich & Payne, Inc., 892 F.2d 422 (5th Cir.1990); Vaughn v. Willis, 853 F.2d 1372 (7th Cir.1988); United States v. Munz, 542 F.2d 1382 (10th Cir.1976), cert. denied, 429 U.S. 1104, 97 S. Ct. 1133, 51 L. Ed. 2d 555 (1977); Mihalic v. Texaco, Inc., 377 F.2d 978 (3d Cir.1967); Meadows v. United States, 144 F.2d 751 (4th Cir.1944); A number of practitioners and commentators have also assessed the role of the judge in a jury trial. See, e.g., Bancroft, Jury Instructions, Communications, Juror Substitutions and Special/Partial Verdicts: Selected Topics — The Principal Law, 340 Prac.L.Inst. 611 (1987); Loeffler, Project — Seventeenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1986-1987 (III. Trial: Authority of the Trial Judge), 76 Geo.L.J. 986 (1988); Murphy, Errors in the Charge, 14 Litig. 39 (1988).

[**17]

7 [HN6] Fed.R.Civ.P. 61 provides in part:

“No error . . . is ground for granting a new trial . . . unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”

Appellants allege that the district judge went too far in commenting on the evidence and on the testimony of their expert, Mr. Green. We do not doubt that a trial judge could misuse his authority. 8 After careful review of the record, however, while we are not prepared in this case to suggest the outside limits on a trial judge’s comments, we are satisfied that the district judge here did not overstep his bounds. As recounted in Part I.B. of this opinion, he went to great lengths to assure that the jury understood that it was the sole fact-finder in the case. 9 When his remarks are considered in their entirety, on the facts of this case we find no prejudice affecting the substantial rights of the parties.

8 Perhaps one of the best examples of a jury charge that would constitute an abuse of authority today, but was permitted prior to Quercia, is Judge Emory Speer’s eight and one-half hour, 92 page charge in United States v. Greene, 146 F. 803 (S.D.Ga.1906), cert. denied, 207 U.S. 596, 28 S. Ct. 261, 52 L. Ed. 357 (1907). In testimony before a congressional committee looking into the possibility of impeaching Judge Speer, Alexander Lawrence (one of Greene’s defense attorneys) characterized the judge and his charge as follows:

He knows the jury, knows how to play on their passions, on their prejudices, as no living man that I have seen could do it; he has a faculty for marshalling evidence that I have never seen another living man able to marshal; and in that Greene & Gaynor case he charged that jury for eight hours and I will challenge any six prosecuting attorneys in the United States, from the Attorney General down, all of them together, to take that mass of testimony taking three months’ time that Judge Speer heard, and then put it down in as ingenious an argument against the defense as Judge Speer put it in that thing. It was a masterpiece of oratory, but a very poor thing when you come down to look at it from a judicial standpoint.

H. Res. 234, 63rd Cong., 2d Sess. (1914) (Minority Report of Representative Volstead).

Since, Quercia, many appeals courts have overturned cases where the trial judge has gone too far. See, e.g., Bentley v. Stromberg-Carlson Corp., 638 F.2d 9, 11 (2d Cir.1981) (trial judge’s comments to the jury gave all the arguments for the defendant, being “tantamount to directing a verdict” for defendant); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 761 (5th Cir.1979) (trial judge’s mistaken assertions virtually destroyed appellant’s circumstantial case, requiring reversal); Maheu v. Hughes Tool Co., 569 F.2d 459, 471-472 (9th Cir.1978) (trial judge’s comments amounted to “personal character reference” for witness and thus “went too far”).

[**18]

9 It seems that the jurors responded to the trial judge’s direction that they were the sole fact-finders. The judge brought to their attention that appellant’s expert had been prepared to testify that the helmet was defective because of one set of facts and then shifted his reasoning when that set of facts was disproven; nevertheless, the jury still awarded appellant $ 265,000 against the helmet manufacturer.

In the course of his remarks, appellant also contends that the trial judge improperly restricted her case to the testimony of her one expert, Mr. Green. In stressing the importance of Mr. Green’s testimony to appellant’s case, the judge stated as follows:

In this case, as in every case, there are the two big main issues: one, liability, and, two, the amount of any damages proximately flowing therefrom. The plaintiff has the burden of proving each and every element of the plaintiff’s case. The plaintiff’s entire case here, and in meeting the elements which must be proved, rests upon the expert testimony, [*1510] that is, the expert opinion, of Mr. Green. Except for Mr. Green’s testimony, the plaintiff [**19] has not made out a case of liability. With Mr. Green’s testimony, the plaintiff has made out a legal case on liability; therefore, the court suggests that the first, immediate, and crucial issue in the case for you to determine is the credibility or the believability of Mr. Green.

After studying the record, we find no merit in appellant’s contention. We are inclined to agree with the trial judge that, without Mr. Green, the case would not have been one for the jury.

In sum, we find that on the facts of this case the trial judge’s comments to the jury, when taken as a whole, neither excited a prejudice affecting the substantial rights of the parties nor incorrectly instructed the jury.

C. The Allegedly Similar Accident

Appellant argues that the trial court erred by refusing to admit evidence of the collapse of another wheel manufactured by appellees Trek and Opportunity. Appellant sought to show appellees’ notice of a defect in the wheel, the magnitude of the danger, appellees’ ability to correct a known defect, the lack of safety for intended purposes, the strength of the product, the standard of care, and causation.

The trial judge denied the proffer on the grounds that the evidence [**20] was not probative because of the necessity for a considerable amount of extrinsic evidence to determine whether the incidents were sufficiently similar to meet the standards of Fed.R.Evid. 403. 10 [HN7] A trial judge has broad discretion over the admission of evidence, Borden, Inc. v. Florida East Coast Ry. Co., 772 F.2d 750, 754 (11th Cir.1985), and we find that the district judge did not abuse his discretion. 11

10 The cause of the alleged similar incident had never been established because that case settled out of court. The parties in the instant case vigorously dispute the actual cause, demonstrating that even had the trial court reached the issue of whether the two incidents were similar this issue would have required a trial within a trial.

11 Because of our disposition of this issue, we need not reach the question of whether the two incidents were actually similar, and if so, whether the prior incident would have been properly excluded under Fed.R.Evid. 403.

D. The Charge on “Legal Accident”

In his [**21] instructions to the jury, the judge included a charge on “legal accident.” 12 To determine whether such a charge is appropriate, we first look to Georgia substantive law. See Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); McCullough v. Beech Aircraft Corp., 587 F.2d 754, 759 (5th Cir.1979). [HN8] Georgia law permits a charge on “legal accident” where there is evidence in the record authorizing a finding that the occurrence was an “accident.” 13 Chadwick v. Miller, 169 Ga. App. 338, 344, 312 [*1511] S.E.2d 835, 840 (1983). 14 Where appropriate, the charge is valid in a products liability case. Kemp v. Bell-View, Inc., 179 Ga. App. 577, 579, 346 S.E.2d 923, 926 (1986).

12 This portion of the charge reads as follows:

Now, let me tell you that the mere fact that an accident happened or an occurrence happened from which injury stemmed standing alone does not permit a jury to draw any inference that the occurrence was caused by anyone’s negligence or by any defect.

Now, I have used the word “accident” loosely, as I think is commonly the practice, is interchangeable with the word occurrence producing injury, but in Georgia law accidental injury means, in connection with personal injury actions such as this, any injury which occurs without being caused by the negligence either of the plaintiff or of the defendants. The idea of accident removes responsibility for the cause of the injury if found to have occurred by reason of a legal accident as defined under Georgia law, that is, one which is caused by the negligence neither of the plaintiff or the defendants.

It is necessary that you find from a preponderance of the evidence in this case, in order to find for the plaintiff, that the occurrence and/or resulting injuries were the result of defect and/or negligence and/or breach of warranty to the exclusion of legal accident, as I have defined that term to you, because the plaintiff has the burden of proof, as I will charge you later, to demonstrate by a preponderance of the evidence that the occurrence did, in fact, result from defect and/or negligence and/or breach of warranty, to the exclusion of legal accident.

[**22]

13 [HN9] “Accident” is defined as “an occurrence which takes place in the absence of negligence and for which no one would be liable.” Chadwick, 169 Ga. App. at 344, 312 S.E.2d 835.

14 Appellant cites Seaboard Coastline R.R. Co. v. Delahunt, 179 Ga. App. 647, 347 S.E.2d 627 (1986), for the proposition that a charge on “legal accident” can be given only where there is no evidence of negligence on the part of either party. The Georgia Court of Appeals recognized in Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778, 386 S.E.2d 696, 697 (1989), however, that Delahunt had misstated the law in Georgia.

Because the manner of giving jury instructions is procedural rather than substantive, it is governed by federal rather than state law. McCullough, 587 F.2d at 759. In reviewing alleged errors in jury instructions, we must determine whether the trial court’s charge, considered as a whole, “sufficiently instructs the jury so that the jurors understand the issues involved and are not misled.” Mark Seitman & Assocs., Inc. v. R.J. Reynolds Tobacco Co., 837 F.2d 1527, 1531 (11th [**23] Cir.1988) (citation omitted). We will only reverse if we are left with “a substantial and ineradicable doubt as to whether the jury was properly guided in its deliberations.” Id. (citation omitted).

After careful review, we find evidence in the record that supports a charge on legal accident as defined by Georgia law. We are therefore satisfied that the district judge properly guided the jury with respect to this issue.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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About these ads

If you want a safer bicycle helmet get one with MIPS

MIPS_Headline_w595px.gif
Some people like doing crazy things. And that’s the way we want to keep it. By absorbing the damaging rotational violence from a n angled fall, MIPS Protection System makes great helmets even more protecting.
Spacer MIPS AB, the patented Multi-directional Impact Protection System, will be launched in more than 20 new helmet models this year alone. MIPS will be available in helmets across all categories including road, mountain, commuter, youth and women’s bike helmets from 661, Fox, Lazer, POC, Scott Sports, Smith Optics, Sweet Protection, Triple 8, and more.

“Much like how airbags became a safety standard in cars, we see MIPS as an equally important safety component in helmets,” says MIPS CEO Johan Thiel. “For 2015, we are pleased to add several new brand partners and to expand the product offering with some of our long-standing customers.”

The MIPS brain protection system reduces rotational forces on the brain caused by angled impacts to the head. In a MIPS helmet, the shell and liner are separated by a low friction layer that lets the helmet slide relative to the head during impact. The MIPS design was inspired by the cerebral spinal fluid surrounding the human brain, which allows it to slide inside the head on impact. MIPS mimics this protective mechanism by giving the helmet its own low-friction layer which also slides to absorb much of the energy created by an angled blow to the head.

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For more information contact: Johan Thiel, CEO of MIPS AB,
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Enjoy Bicycle Racing? Enjoy photos of races from the 20’s & 30’s? Want to see new bicycle racing photographs from 100 years ago?

Goggles & Dust: Images from Cycling’s Glory Days, Velo Press

Velo Press will publish early this fall a new book for photographs of cycle racing from the early 1900’s that you have not seen before. Goggles & Dust: Images from Cycling’s Glory Days, has 101 photographs from the turn of the century of bicycle racing in France.

We’ve seen the suffering photos before; these cover all aspects of the race from the start to the finish, crashes and repairs to victories. The photographs bring back those great days in ways you’ve never seen before.

The greatest kick I got was seeing what has not changed in 100 years of racing the Tour de France. Cars still follow the riders, and based on the 2014 tour; riding conditions still suck, spectators still run alongside races as they struggle up hill.

At the same time, the photographs show you bicycle racing has come a long way. No longer do riders carry spare tires; water bottles are plastic and on the seat and down tubes and bikes are more than a single speed.

If you enjoy old cycling or new racing, you’ll love this book.

Goggles & Dust: Images from Cycling’s Glory Days, Velo Press, Hardcover September 2014, ISBN 978-1-937715-29-8

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2014 Recreation Law (720) 334-8529

 

Call or Email me if you need legal services around these issues.

Email: Rec-law@recreation-law.com

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New Oral Re-Hydration Mix from Skratch Labs: Rescue Hydration Mix

A new hydration formula designed to treat extreme dehydration in kids and adults!

Skratch Labs: 1-800-735-8904
Rescue Hydration Mix

Rescue Hydration Mix

Rescue Hydration Mix is an all-natural oral rehydration solution, formulated to treat extreme dehydration associated with vomiting and diarrhea in kids and adults. We created it when we couldn’t find anything similar at our local market or pharmacy that wasn’t chock full of artificial sweeteners, flavoring agents, and chemicals.

While Rescue Hydration was developed to rehydrate us when we aren’t feeling our best, at 750 mg of sodium per 16 oz serving, the benefit for treating dehydration after pushing a little too hard on hot summer days makes it a great complement to our Exercise Hydration Mix, especially for those who find themselves saltier than others. And while we don’t encourage anyone to get sick on purpose, a number of our first test batches, were used with great success to help recover from a few late nights of revelry fueled by a few too many. So keep on playing hard these hot summer days and nights. Rescue Hydration Mix has got you covered. Like all of our drinks, it’s made from real fruit and contains nothing artificial to keep you hydrated when you need it the most.

Copyright © 2014 Skratch Labs, All rights reserved.
You wanted to keep up with Skratch Labs; we will try to keep these entertaining and make sure they contain something for you!Our mailing address is:

Skratch Labs

5395 Pearl Parkway

Boulder, CO 80301

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Great photo essay of a Ropes course showing everyone with helmets designed to protect only from above.

Climbing helmets only protect from drops. What falls from the sky?

Ropes Course 2010

A photographer did a great job of showing a group of people having a great time on a rope’s course in Granville, Ohio. The course and setting are beautiful. Everyone is wearing helmets. All the helmets in the photographs are climbing helmets.

Climbing helmets were designed for rock climbing. They were designed to protect you from a rock falling on your head. They are also tested to make sure if you fall and wedge your head in a crack because of your helmet the helmet will come off.

The only things I can see in the photographs that might fall on the people’s heads are trees. If a whole tree falls on you, there is not much you can do. Dependent upon the size of the tree limb, the helmet may or may not help you much.

But why? Why do you wear a helmet on a rope’s course?

Based on this, shouldn’t all groups hiking in the woods wear helmets?

See Common Ground Canopy Tours take you into the treetops near Oberlin, with zip-lines, sky bridges and more (photo gallery)

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

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Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law    Rec-law@recreation-law.com         James H. Moss         #Authorrank

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#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Ropes Course, Challenge Course, Climbing Helmet, Helmet, Granville, Ohio,

 

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Kickstarter campaign for Bluetooth lost luggage device that also has a motion sensor. It can record your big jumps on the slope, Terrain Park or bike park. It can also find your lost keys.

This small round and thin device can be placed on any mobile item with a hook, key ring, stick or the PebbleBee’s adhesive back!  The PebbleBee can assist in locating lost items (with attached Bee), monitor tracking, movement, temperature, navigation and numerous other features that assist in everyday management of personal items!

Whether you are traveling to the park or internationally, you don’t want to loose your personal items!  Your worries are over…..Meet the PebbleBee! 

The PebbleBee’s revolutionary “Range Finder” will assist in alerting you when any mobile item (including children or pets) has crossed over the configured range.  By setting up the range alert paired with your location, your mobile device will alert you when the item has crossed over the configured range of up to 150 feet.  The PebbleBee will alert you with a “Buzz” or “ring” or even “spark with a LED internal flash to aid in finding your item-it’s your choice.  The PebbleBee App (free) will indicate how close you are to the item of interest based on a signal bar and Bee rings.  Think, pet collars, children’s backpacks or necklaces, laptops, bikes, cars the items are endless.

Another feature is the PebbleBee Hornet’s motion detection ability that assists in monitoring home security, location of children or pets, health/fitness, numerous sports applications, navigation and commercial/industrial monitoring for safety applications.  It has a 9 Axis Motion Tracker and thermometer sensors that when paired with your phone it can provide data on movement, direction, speed, navigation and tracking the user.  In combination with your phone’s GPS the possibilities are endless.  You can configure defined alerts that let you know if the temperature is dropping outside to bring your plants in, where your cat has traveled at night, if your jogging speed drops below your threshold and more!!!  The data can be viewed live and/or saved to a file for replay.  Track your awesome moments on the ski slopes, or put the PebbleBee on a door to know when it is being opened.  The applications are unlimited!

Should you lose your item at the airport?  No problem, with the PebbleBee network an alert will sent to all PebbleBee users who can assist in locating the item for you.  You can also integrate your swarm of PebbleBees and Bluetooth devices.  Registered in the hive you can securely access your phone or PC anywhere in the world.  The Hive software will be compatible with other Smart Router hubs.

For more information-https://www.kickstarter.com/projects/192833321/pebblebee-the-most-versatile-ios-android-bluetooth

Scheduled to be available in May!

Features:

·         -5 mm thick and 40 mm diameter.

·         -The PebbleBee battery lasts 3 years depending on usage – and can be replaced.

·         -PebbleBee works on Android 4.3 Bluetooth 4 equipped phones/tablets and Apple Bluetooth 4

·         compatible iPhones and iPads. Coming soon for Windows 8 Computers and Phones.

·         -PebbleBee can be commanded by the app to buzz or light up.

·         -PebbleBee button can be used to command numerous triggers on your phone, such as ring, or call your favorite contact.

·         -PebbleBee devices provide a range finder so you can view how far you are from your belongings.

·         -PebbleBee devices can be put in alert mode, so when your assigned PebbleBee leaves a configurable

·         range the user is alerted. The alert can also be paired to a location.

·         -PebbleBees can be located based on last known position detected by the entire PebbleBee network.

Location can be displayed on Google Maps for user to navigate.

·         -PebbleBees can be designated as lost. Owner will be alerted when it becomes actively detected on the

PebbleBee network by PebbleBee users and designated Friends.

·         -PebbleBees can be shared by owners to multiple other PebbleBee users who get select abilities.

·         -PebbleBee Friends can be designated to easily discover which of your friends is closest to your lost

·         device.

·         -A PebbleBee application user can easily view status and manage dozens of owned and shared PebbleBee

·         devices.

·         -From an application on any platform, a PebbleBee user can logon to cloud sync their account PebbleBee

·         devices for use on multiple handheld devices. Once a PebbleBee is configured, the App doesn’t require

·         the PebbleBee cloud.

·         -PebbleBee devices can be designated by name and picture.

·         -Ability to operate in private mode to preserve battery life, and increase wireless performance

·         -The PebbleBee communicates with Bluetooth 4.0 enabling a range of 50-150ft and low power usage

·         -The PebbleBee devices are water resistant.

·         -Connect a key ring or Stick the adhesive backed PebbleBee to anything and everything! It’s the perfect accessory and utility to find or avoid any keys, bag, remote, car, dog, cat, child anything!

Hornet Version: Includes a 9-axis (3-axis gyro, 3-axis accelerometer and 3-axis magnometer or compass) chip and a temperature sensor with developer API to interface/control the PebbleBee’s 9-Axis data stream. Includes functions to enable/disable 9-axis chip and enable callbacks for motion data. Provide real time motion data over Bluetooth. Ability to control when and how (at different sampling rates) you receive data and users can follow easy to use, drag and drop action and trigger commands on the PebbleBee app to create PebbleBee scenarios. I.e. if user pins a PebbleBee on their front door, and door moves, even very slight movement will trigger a compass direction change, which will send a stream of data to your paired phone which will then trigger your defined actions such as sound phone alarm, or email your security company, etc. You get lost hiking in the woods and your cell phone no longer works? No problem because your PebbleBee on your keychain recorded your whole path back, and can actually help you navigate back. The 9-axis gyro can be used to collect endless high resolution motion data on your skateboarding/biking/skiing/motorsports….really any sporting activity and seamlessly stream the data on your phone for live viewing or storage and post analysis/replay. You can even keep an eye on your wine cooler and be notified when the temperature goes below or above an assigned number.

Bumble Version: The PebbleBee can be wirelessly charged by placing it on a wireless charger for battery life longevity. This version includes an induction coil and a lithium ion battery at 150mAH and increase the thickness to 6 mm.

PebbleBee Hive (hub): For home security or for networking PebbleBees across the world, use the PebbleBee Hive. It’s a hub that wirelessly connects all your PebbleBees at home, in the office or out in the field outdoors. The Hive seamlessly coordinates with the cloud over WIFI to notify the PebbleBee application user of notable events. You no longer need your phone to be in range of your PebbleBees for complete control! You can apply all your PebbleBees around your home and be notified of every movement in your home with emails, and notifications on your phone wherever you are. Actions, triggers and motion control can be monitored for multiple PebbleBee contributors across the world. PebbleBees can be shared and controlled anywhere the internet is available. You can play drinking games with your buddies across the globe with the PebbleBee attached to their beer mugs and know exactly when, and how far ahead you are by streaming live data through the PebbleBee hive.

For more information:

https://www.kickstarter.com/projects/192833321/pebblebee-the-most-versatile-ios-android-bluetooth

The kickstarter campaign is pretty well written and the video explains a lot.

Although the Kickstarter pedge description is confusing as heck. I still haven’t figured out what what you get for how much money.

 

 

 

 

 

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

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An attempt to divert criminal prosecution or is there something to gluing cameras on helmets weakening the helmet.

An attempt to divert criminal prosecution or is there something to gluing cameras on helmets weakening the helmet.

Remember Europe has a different system of enforcement of laws to keep people safe than the US. Where we would sue, Europe regulates and if you violate the regulation you are criminally charged.

The article states that the head injuries to Michael Schumacher the famous race car driver might have been caused by his camera changing the effectiveness of his helmet.

Investigators are exploring the theory that Michael Schumacher’s helmet camera could have caused the helmet to shatter, leading to serious head injuries

Schumacher, an experienced skier, was travelling at a moderate speed when he fell and hit a rock. His skis were new; his bindings have been subsequently tested and were not at fault; he was fully in control of his movements as he left the marked pistes and traversed the patch of snow in-between two groomed runs in Meribel.

But now investigators believe that they may have found a reason for the seriousness of the crash. They think that his helmet camera could have actually worsened the blown, and caused the helmet to shatter into pieces.

Experts from ENSA, the world-renowned ski and climbing academy in the French ski resort of Chamonix, have conducted tests to determine whether the presence of a solid object between a helmet colliding with a rock would weaken the structure.

The helmet smashed – but the camera he had attached to it, in order to record him and his son skiing, was undamaged. The footage, audio and visual, has provided police with crucial information about the crash.

“The helmet completely broke. It was in at least two parts. ENSA analysed the piece of the helmet to check the material, and all was OK,” said a source close to the investigation.

“But why did it explode on impact? Here the camera comes into question. The laboratory has been testing to see if the camera weakened the structure.”

The following, however, maybe the real reason for the statements.

Lawyers had argued that managers of the ski resort might face up to three years in prison because the dangers lurking within the off-piste section were not properly marked.

Off-piste, usually meaning out of bounds or off trail here sections of the ski area where Mr. Schumacher fell might not have met the necessary requirements.

Do Something

Think. Although it is not outside the realm of possibility, it is hard to determine why a camera mounted on a helmet would affect the helmet’s performance. On top of that, ski helmets are designed to break. In fact most helmets only are effective once they break.

Believe me, as you know helmets are a real issue in my opinion. But to blame the injury on the helmet or the camera I think is just a way to dodge a criminal charge or change public opinion about the incident.

SeeMichael Schumacher skiing crash: did helmet camera cause head injuries?

To further understand the difference between the US and Europe see:

Another Litigation versus Criminal example

Criminal Charges brought against Everest Guide in the UK

Death of young climber leads to criminal charges in Italy

Forgetting your beacon is manslaughter in Europe….if you wife dies in an Avalanche

Litigation v. Jail Time

The legal relationship created between manufactures and US consumers

 

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law    Rec-law@recreation-law.com      James H. Moss         #Authorrank

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