Present: All the Justices 

MORGEN INDUSTRIES, INC. 

v. Record No. 951619 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 June 7, 1996 

DELORES VAUGHAN 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Dennis F. McMurran, Judge 

 In this appeal of a judgment entered in a products liability 

action, we consider whether there is sufficient evidence to 

support the jury's verdict. 

 We review the evidence in the light most favorable to the 

plaintiff, the prevailing party below. Besser Co. v. Hansen, 243 

Va. 267, 269, 415 S.E.2d 138, 139 (1992). Delores Marie Vaughan 

was injured on the job when her leg was trapped by the 

undercarriage wheel of a concrete conveyor unit manufactured by 

Morgen Industries, Inc. (Morgen). Adams-Dewind Machinery Company 

(Adams), a dealer of various construction machinery products, 

sold the conveyor unit to Vaughan's employer, Misener Marine 

Construction (Misener). 

 Misener had contracted to build a portion of the Monitor 

Merrimac Bridge Tunnel on Interstate Route 664 between Newport 

News and Suffolk. Misener purchased from Adams eleven Morgen 

conveyor units to transport wet concrete to the bridge spans from 

the site where the concrete was mixed. Four conveyor units were 

85 feet long; the other seven conveyor units were 40 feet in 

length. Each conveyor unit included a rectangular-shaped bin 

mounted on a wheeled undercarriage. Each undercarriage was 

comprised of four wheels with steel flanges designed to keep the 
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undercarriage on a tubular steel track. 

 Misener attached the 85-foot conveyor units together, 

placing them in line with the 40-foot conveyor units. The 

conveyor unit closest to the pour site was attached to a Morgen 

side discharge unit, from which the concrete was poured. Morgen 

equipped the side discharge unit with a four-cylinder, 30 

horsepower engine, which enabled the unit to move back and forth 

as the concrete was being poured. Misener removed that engine 

and replaced it with a more powerful, six-cylinder Ford engine, 

which was capable of operating all the conveyor units at one 

time. 

 In addition to altering the power source of the side 

discharge unit, Misener used a truck, which was attached to the 

other end of the conveyor system with cables, to retract the 

conveyor units away from the pour site. The truck was needed to 

move the 85-foot conveyor units, which were too heavy to be moved 

manually. 

 A Morgen sales brochure stated that the conveyor units could 

be used in a "train" configuration to transport concrete over 

long distances. The brochure noted that such conveyor "trains" 

had been successfully used on several construction sites across 

the country. 

 Misener's employees regularly cleaned the conveyor system. 

The employees sprayed the system with water and then "chipped 

off" cement that had dried and become affixed to the conveyor 
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components. Misener's employees regularly stood on the rails in 

order to clean certain parts of the conveyor system. Misener did 

not warn its employees not to stand on the rails while cleaning 

the conveyor units. 

 On the day Vaughan was injured, the machines were scheduled 

to remain stationary for cleaning. In a departure from the 

established routine, another employee activated the side 

discharge unit without warning, setting the undercarriage wheels 

of the conveyor units in motion. Vaughan's foot was pinned 

between a moving wheel and the undercarriage rail. Her foot was 

trapped in the "nip point" where the wheel and the rail met. 

Vaughan was unable to move her foot and the wheel rolled over her 

foot, ankle, and leg. While her foot was still pinned by the 

wheel, she fell off the rail, sustaining multiple fractures of 

both her tibia and her fibula. 

 Vaughan filed a motion for judgment against Morgen and Adams 

alleging, among other things, that the conveyor unit was 

unreasonably dangerous and unsafe for its intended use. Vaughan 

later nonsuited her claims against Adams and the case proceeded 

to trial. 

 At trial, George W. Pearsall, a professor of mechanical 

engineering at Duke University, testified that the design of the 

conveyor unit was unreasonably dangerous and defective. Among 

the defects he observed was the absence of wheel guards which 

would have prevented Vaughan's foot from being pinned between the 
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wheel and the rail. 

 Pearsall stated that, for approximately one hundred years, 

mechanical engineers have been aware that "nip points" create a 

hazard. The use of wheel guards eliminates this hazard, because 

the guards are designed to sweep all objects from the path of the 

wheels. Pearsall stated that such wheel guards were feasible for 

use in the Morgen conveyor undercarriages, and that Morgen's 

failure to install wheel guards on these undercarriages was the 

single most significant design defect that caused Vaughan's 

injury. 

 Pearsall testified that industry standards promulgated by 

the American National Standards Institute recommend the use of 

wheel guards to prevent injuries from occurring at "nip points." 

 Pearsall also testified that "nip points" are not dangers that 

are obvious to most people. He stated that Morgen should have 

foreseen the need for wheel guards, since it is foreseeable that 

a worker would stand on the undercarriage rails to clean certain 

areas of the conveyor units. 

 Hal I. Dunham, a mechanical engineer specializing in design 

consulting, product testing, and accident investigation, also 

testified that the conveyor undercarriages were defectively 

designed. He based his opinion on Morgen's failure to include 

wheel guards to sweep objects away from the "nip points." 

 The trial court denied Morgen's motion to strike made at the 

conclusion of Vaughan's evidence. Morgen then presented evidence 
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that the conveyor units were not defective in design. William W. 

Stone, an engineer experienced in the design and building of 

conveyors and bucket elevators, testified that the Morgen 

conveyor units were not defective in design. He stated that 

guards were not required on the undercarriage wheels because the 

individual conveyor units were not motorized. Stone also stated 

that the "nip points" were an open and obvious hazard. 

 James N. Clark, an engineer with experience in industrial 

equipment safety and design, agreed that the "nip points" were an 

open and obvious hazard. Clark also testified that the conveyor 

units were not designed defectively, and that Vaughan's injury 

was caused by her act of standing on the rails, combined with the 

absence of adequate safety measures at the work site. Clark 

stated that the unexpected movement of the conveyor unit was 

caused by Misener's failure to adhere to standard work practices. 

 James M. Hart, Jr., a consultant who had served as a project 

manager in highway and bridge construction operations, 

acknowledged that it was foreseeable by Morgen that a purchaser 

would assemble a large number of conveyor units together in a 

"train" configuration. Hart stated that it was also foreseeable 

that this conveyor system would be joined with a motorized side 

discharge unit. 

 At the close of all the evidence, Morgen moved the trial 

court to strike the evidence, arguing, among other things, that 

there was no evidence of any defect in the design of the conveyor 
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units. The trial court denied Morgen's motion. 

 The trial court also refused Morgen's request for certain 

jury instructions, and the case was submitted to the jury on both 

negligence and breach of implied warranty theories. The jury 

returned a verdict for Vaughan in the amount of $850,000. 

 On appeal, Morgen first argues that the evidence 

established, as a matter of law, that its conveyor units were not 

unreasonably dangerous when manufactured and sold to Misener. 

Morgen asserts that its conveyor units were unpowered and were 

separate pieces of equipment designed to be moved manually and 

individually. Alternatively, Morgen contends that any alleged 

danger in the design of the conveyor units was open and obvious, 

thus relieving it of liability for Vaughan's injury. 

 In response, Vaughan argues that the evidence is sufficient 

to present a jury question on the issue whether the conveyor 

units were unreasonably dangerous for their intended or 

reasonably foreseeable use. Vaughan further notes that there is 

evidence that the "nip points" were not an open and obvious 

hazard, and that the jury resolved this issue in her favor. She 

also asserts that the evidence supports the jury's implicit 

finding that Misener's modifications to the conveyor system 

constituted a foreseeable use of the product, and that these 

modifications were not a proximate cause of her injury. We agree 

with Vaughan. 

 In order to recover under either a negligence or a breach of 
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implied warranty theory for the manufacture of an unreasonably 

dangerous product, a plaintiff must show (1) that the goods were 

unreasonably dangerous either for the use to which they would 

ordinarily be put or for some other reasonably foreseeable 

purpose, and (2) that the unreasonably dangerous condition 

existed when the goods left the manufacturer's hands. Logan v. 

Montgomery Ward & Co., 216 Va. 425, 428, 219 S.E.2d 685, 687 

(1975). A product is unreasonably dangerous if it is defective 

in assembly or manufacture, unreasonably dangerous in design, or 

unaccompanied by adequate warnings concerning its hazardous 

properties. See Austin v. Clark Equip. Co., 48 F.3d 833, 836 

(4th Cir. 1995); Bly v. Otis Elevator Co., 713 F.2d 1040, 1043 

(4th Cir. 1983). The issue whether a product is unreasonably 

dangerous is a question of fact. See Singleton v. International 

Harvester Co., 685 F.2d 112, 115 (4th Cir. 1981). 

 Here, there is sufficient evidence from which the jury could 

have found that Misener's use of the conveyor units was 

reasonably foreseeable. For example, Morgen's own advertising 

brochure stated that the conveyor units could be used 

successfully in a "train" configuration, and James Hart testified 

that it was foreseeable by Morgen that the conveyor units would 

be attached to a motorized side discharge unit. 

 The side discharge unit motor moved the undercarriage wheels 

on the day Vaughan was injured. Although there is evidence that 

the Ford motor used on the side discharge unit was a 
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"considerably larger power source" than the four-cylinder, 30 

horsepower engine it replaced, Morgen did not present evidence 

that this additional engine power was causally related to 

Vaughan's injuries. 

 The unreasonably dangerous condition of the conveyor units 

was established by the testimony of Pearsall and Dunham. Both 

experts stated that the absence of wheel guards created an 

unreasonably dangerous product which existed when the conveyor 

units left Morgen's hands. Pearsall stated that this defective 

condition was the primary cause of Vaughan's injury. Further, 

since the evidence was in conflict on the issue whether the "nip 

points" were an open and obvious hazard, the jury was entitled to 

accept Pearsall's testimony that the hazard was not open and 

obvious and to consider the fact that the injury occurred when 

the machines were not scheduled for movement. See Whitting v. 

Doxey, 217 Va. 482, 484, 230 S.E.2d 251, 253 (1976); Batts v. 

Tow-Motor Forklift Co., 978 F.2d 1386, 1391 (5th Cir. 1992); 

Gracyalny v. Westinghouse Elec. Corp., 723 F.2d 1311, 1321-22 

(7th Cir. 1983). 

 We find no merit in Morgen's argument that Misener's 

modifications to the system relieved Morgen of any liability for 

the defective design of the conveyor units. Morgen presented no 

testimony that any of Misener's modifications to the system, 

namely, using the Ford engine to provide power to the side 

discharge unit and to the other conveyor units, latching the 85-
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foot conveyor units together, or using a truck to retract the 

conveyor units after the concrete was poured, were causally 

related to Vaughan's injury. 

 Morgen argues, nevertheless, that it is not liable for 

Vaughan's injuries, because Misener was a "sophisticated user" of 

construction equipment, which had knowledge of the unreasonably 

dangerous condition caused by the absence of wheel guards, as 

well as knowledge of the other design defects identified by 

Pearsall. Morgen's argument, however, is inapposite, because the 

issue of Misener's sophistication and knowledge as an industrial 

user of this equipment is relevant to the claim of failure to 

warn, not to the claim of manufacture of an unreasonably 

dangerous product. See Featherall v. Firestone Tire & Rubber 

Co., 219 Va. 949, 962, 252 S.E.2d 358, 366 (1979); Oman v. JohnsManville Corp., 764 F.2d 224, 233 (4th Cir.), cert. denied, 474 

U.S. 970 (1985). Thus, we do not consider Misener's so-called 

status as a "sophisticated user" in reviewing the sufficiency of 

the evidence of Vaughan's claims that Morgen manufactured an 

unreasonably dangerous product. 

 Morgen also argues that it is not liable for the injury 

arising from use of its product because Misener was aware of, but 

did not use, procedures which would have improved the product's 

safety, such as setting the brakes on the individual conveyor 

units to prevent movement during maintenance. Morgen also 

contends that Misener could have added wheel guards, provided 
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ladders for cleaning the machinery, and implemented various other 

safety measures. However, the issues whether Misener misused the 

product and whether Misener's conduct constituted superseding 

negligence were matters submitted to the jury under the trial 

court's instructions. Since there is evidence to support the 

jury's verdict, we conclude that the jury resolved these 

questions in Vaughan's favor.1

 Morgen next argues that the trial court erred in refusing to 

grant certain jury instructions concerning its so-called 

"sophisticated user" defense, Misener's modification of the 

equipment as an allegedly knowledgeable purchaser, the absence of 

a duty to install warning devices, and a definition of the term 

"reason to know." Vaughan replies that Morgen is procedurally 

barred from raising this issue, because the record does not show 

that Morgen presented to the trial court the same arguments it 

raises here. We agree with Vaughan. 

 The purpose of Rule 5:25 is to give the trial court an 

opportunity to rule on a matter with knowledge of the substance 

of a party's objection, in order to avoid needless mistrials, 

reversals, and appeals. See Marshall v. Goughnour, 221 Va. 265, 

 

 1Because we have determined that the evidence of Morgen's 

manufacture of an unreasonably dangerous product is sufficient to 

support the jury's verdict, we need not review the sufficiency of 

the evidence of Vaughan's separate claim of failure to warn. 
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269, 269 S.E.2d 801, 804 (1980). Generally, the reasons for 

objecting to the grant or refusal of a jury instruction must be 

presented to the trial court before such objection will be 

considered on appeal. See Ames & Webb, Inc. v. Commercial 

Laundry Co., 204 Va. 616, 623, 133 S.E.2d 547, 552 (1963). The 

objection must be made in the trial court when the instruction is 

tendered. Smith v. Commonwealth, 165 Va. 776, 781, 182 S.E. 124, 

127 (1935).2

 The record here shows that the trial court considered the 

jury instructions outside the court reporter's presence. Since 

these proceedings are not part of the record before us, we are 

presented only with the instructions marked "refused" by the 

trial court, along with citations to various cases at the bottom 

of the refused instructions. 

 Morgen's citation to cases at the bottom of each instruction 

page does not satisfy the requirement that an objection be stated 

"with reasonable certainty at the time of the ruling." Rule 

5:25. A case can often be cited for numerous propositions, and 

 

 2In the absence of a transcript or written statement, timely 

objection to a granted instruction may be shown and preserved 

when, in a refused instruction, the objecting party advances the 

contrary theory to one set forth in the granted instruction. 

Pilot Life Ins. Co. v. Karcher, 217 Va. 497, 498, 229 S.E.2d 884, 

885 (1976). This exception is inapplicable here, however, 

because the instructions at issue were refused by the trial court 

and the present record contains no statement providing the 

reasons for Morgen's objection to the trial court's refusal of 

the proposed jury instructions. 
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the trial court is not required to determine sua sponte what 

argument a party may be entitled to make under a given case. 

Since Morgen did not preserve the reasons for its objections on 

the record, we do not consider its arguments raised on appeal 

concerning the trial court's refusal of the proposed jury 

instructions. Rule 5:25. 

 For these reasons, we will affirm the trial court's 

judgment. 

Affirmed.

JUSTICE STEPHENSON, concurring in part, dissenting in part. 

 I agree with that portion of the majority opinion which 

holds that the evidence is sufficient to present a jury issue on 

liability. I do not agree, however, that Morgen is procedurally 

barred from challenging on appeal the trial court's failure to 

grant a certain jury instruction tendered by Morgen. With 

respect to that issue, I agree with Justice Compton's dissent. 

Consequently, I would reverse the judgment and remand the case 

for a new trial. 

JUSTICE COMPTON, dissenting. 

 In my opinion, the danger resulting from the alleged defect 

in the design of the conveyor units, that is, failure to include 

wheel guards to sweep objects away from the "nip points," was a 

danger that was open and obvious to a lay person. Indeed, the 

plaintiff testified, "When the machine was on or being moved, it 

was quite obvious it's very dangerous not to be -- well, you 
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would not want to be on the rail." Examination of the exhibits, 

including the photographs, reveals there is nothing so mysterious 

about the patent condition that an expert's testimony can be used 

to create a question of fact; there is simply a wheel on a rail. 

 And, the fact that the unit may have been moved without warning 

is irrelevant to the question whether the condition was obviously 

dangerous. 

 Under these circumstances, when the dangerous condition "is 

obvious and patent to all," Brown v. General Motors Corp., 355 

F.2d 814, 819 (4th Cir. 1966), cert. denied, 386 U.S. 1036 

(1967), the manufacturer of the product is not liable for injury 

to the user. Spangler v. Kranco, Inc., 481 F.2d 373, 375 (4th 

Cir. 1973). I would so hold in this case. 

 Furthermore, I believe the defendant properly preserved for 

appeal its objection to the failure of the trial court to grant 

the proffered instruction dealing with Misener's modification of 

the equipment and its utilization in a configuration that it 

devised. 

 The record is clear that this instruction was tendered to 

the trial court and marked "refused." Code § 8.01-384(A) 

provides that an objection is sufficient to preserve the issue 

for appeal if "a party, at the time the ruling . . . of the court 

is made or sought, makes known to the court the action which he 

desires the court to take . . . and his grounds therefor." Here, 

tender of the instruction certainly informed the trial court that 
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the instruction was a correct statement of the law and applied to 

the facts of this case. Nothing more is required after the 

instruction was refused to save the point for appeal. And, the 

majority's attempt to distinguish this Court's holding on the 

issue in Pilot Life Insurance Co. v. Karcher, 217 Va. 497, 498, 

229 S.E.2d 884, 885 (1976), is a distinction that makes no 

difference. 

 The evidence clearly established that Misener designed, 

assembled, and motorized this conveyor system of inordinate 

length, using parts from different manufacturers and its own 

inventory, and modified the conveyors received from the 

defendant. The jury should have been permitted to consider this 

aspect of defendant's case, and I would hold the trial court 

erred in refusing the instruction. 

 Consequently, I cannot join an opinion affirming the 

judgment below.