1 Senior Circuit Judge of the Eighth Circuit, sitting by

designation.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-1511

_____________________

MYRON BATTS,

Plaintiff-Appellant,

VERSUS

TOW-MOTOR FORKLIFT COMPANY and CATERPILLAR INDUSTRIAL, INC.,

Defendants-Appellees.

____________________________________________________

Appeal from the United States District Court

for the Northern District of Mississippi

_____________________________________________________

(November 25, 1992)

Before BRIGHT,1 JOLLY, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

At issue in this Mississippi diversity action is whether,

under its products liability law, recovery against a product's

manufacturer by an injured non-user of that product (a bystander)

is barred if the product defect or danger is open and obvious to an

ordinary user, regardless of whether the bystander knew, or should

have known, of the danger. Myron Batts was injured when a forklift

operated by a co-employee backed into him. Batts sued the forklift

manufacturer, claiming that the lack of any mirror or back-up

warning device on the forklift rendered the manufacturer liable

under the theories of negligence and strict liability in tort. A
2 A tugger is motorized; and the operator walks behind and

guides it. 

3 Flavorite purchased the forklift from a third party in 1980.

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jury returned a verdict for the manufacturer, after being

instructed that Batts, a bystander, could not recover under either

theory if it found that the danger was open and obvious. For both

theories of liability, this was a correct statement of the law; we

AFFIRM. 

I.

Batts was employed in Mississippi by Flavorite Laboratories,

Inc. His duties included operating a type forklift called a

"tugger"2 in a room which was often noisy. In that room, at least

one forklift operated in addition to Batts' tugger. On the day

Batts was injured in 1984, a co-employee, Charles Johnson, was

operating a forklift manufactured in 1965 by Towmotor Corporation.3

(Towmotor was purchased by Caterpillar.) The forklift was operated

by a seated driver using controls to his front, as are the lift

forks, and is generally operated in reverse as often as forward.

At the time of manufacture, Towmotor produced forklifts with load

capacities ranging from 2,000 to 60,000 pounds. The forklift in

issue had a 2,500-pound capacity and was designed for use in

warehouses and other indoor areas. The forklift collided with

Batts when Batts was backing, and walking beside, the tugger; and

Johnson was operating the forklift in reverse, but without sounding

its manual horn. 
4 Prior to trial, a breach of warranty claim was dismissed as

time-barred and is not in issue on appeal.

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Although neither party contends that a back-up alarm sounded

on the forklift before it hit Batts, whether any such device was

then in place is disputed (as discussed in note 6, infra,

concerning Caterpillar's superseding proximate cause defense).

After the accident, electrical alarms and flashing lights were

installed on the forklifts at Flavorite. These items were

available when the forklift was manufactured in 1965 and could be

installed at customer request. However, they were not standard

options on Towmotor forklifts of the capacity involved in this

case. Indeed, no American manufacturer so offered them.

Caterpillar's witnesses opined that the need for back-up warning

devices depends on the customer's application and that their use is

appropriate when an operator's visibility is restricted. 

At trial in 1991, Batts relied on claims of negligence and

strict liability in tort;4 but the jury, by special

interrogatories, found for Caterpillar on both theories. Following

the denial of his motion for JNOV or new trial, Batts brought this

appeal. 

II.

Batts presented proof that the forklift should have had a

back-up alarm, flashing warning lights, and/or rearview mirrors,

and asserted that this failure entitled him to recover under either

strict liability in tort (defective and unreasonably dangerous) or

negligence (negligent design). On the other hand, Caterpillar
5 Batts contends that several instructions and a special

interrogatory improperly commented on the evidence. (We reject

Caterpillar's contention that Batts did not preserve these

objections.) The items so challenged were consistent with the

evidence and the various claims and theories in issue. Contrary to

Batts' contention, they were not peremptory; and, taken as a whole,

the charge was proper, as discussed infra.

6 Caterpillar contends on two bases that the district court

erred in denying it summary judgment or a directed verdict. First,

it relies on the theory of superseding proximate cause. The jury

was instructed on that defense and given a special interrogatory.

The leadperson in the blending department and a co-employee who

sometimes operated the tugger testified that no back-up alarms were

in place. On the other hand, the plant engineer testified that a

back-up alarm bell was installed on the Towmotor forklift in 1980

or 1981. But, he had no knowledge that the alarm was functional on

the day of the accident, or even six months or a year prior to it.

And, the mechanic in charge of maintaining Flavorite's forklifts

testified that the forklift Johnson was driving had a back-up bell;

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presented evidence that there was no restriction on the forklift

operator's visibility to the rear and that there was a danger in an

operator relying on alarms, lights, or mirrors, as opposed to

looking in the direction of travel. One of its principal defenses

was that the absence of such devices, and the concomitant danger of

the operator not facing in the direction of travel, was open and

obvious to the forklift owner and its employee operator (users) and

that, under Mississippi law, this barred recovery by Batts. 

Several of the jury instructions and a special interrogatory

incorporated this open and obvious bar. (As discussed infra, the

jury was instructed that Batts could not recover under negligence

or strict liability in tort if the danger was open and obvious.)

Batts' challenge to those items is the primary thrust of his

appeal. (In notes 5 and 6, we quickly dispose of the other issues

raised by Batts5 and Caterpillar (which did not cross-appeal)6.)
that it was Flavorite's practice to check the alarm bells every 30

days; that replacement bells were needed for the forklift one or

two times a year, because they would get knocked off or operators

would tamper with them; that he examined the forklift on the day

after the accident; and that the back-up bell was working at that

time. Accordingly, Caterpillar asserts the proof showed that

several years before the accident, it equipped the forklift with a

back-up warning device; it was in place within a month before the

accident; and, if it was not operable at the time of the accident,

that fact -- including its removal or destruction -- cannot be

charged to Caterpillar. 

Second, Caterpillar contends that reasonable minds could not

differ regarding warning devices not being needed on the forklift,

as demonstrated by the proof that the forklift complied with all

industrial standards and consumer expectations. (As discussed

infra, "consumer expectations" is a critical issue in a Mississippi

strict liability in tort action.)

Caterpillar did not cross-appeal from these rulings. Assuming

that we can reach these issues, they were for the jury; the

district court did not err in denying the motions. 

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In reviewing this challenge to jury instructions, "we view the

[jury charge] as a whole in the context of the entire case. The

judge must instruct the jurors fully and correctly on the law

applicable to the case, including defensive theories raised by the

evidence." Crist v. Dickson Welding, Inc., 957 F.2d 1281, 1287

(5th Cir. 1992). However, the district court is given broad

discretion in formulating the charge and special interrogatories,

and our review on appeal is deferential. Bradshaw v. Freightliner

Corp., 937 F.2d 197, 200 (5th Cir. 1991). "`A judgment will be

reversed only when the charge as a whole leaves us with substantial

and ineradicable doubt whether the jury has been properly guided in

its deliberations.'" Hall v. State Farm Fire & Casualty Co., 937

F.2d 210, 214 (5th Cir. 1991) (citation omitted). 
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Needless to say, we apply Mississippi law in deciding whether

the instructions correctly stated the applicable law. Erie R. Co.

v. Tompkins, 304 U.S. 64 (1938); Allison v. ITE Imperial Corp., 928

F.2d 137, 138 (5th Cir. 1991). And, we review de novo the district

court's interpretation of that law. Salve Regina College v.

Russell, __ U.S. __, __, 111 S. Ct. 1217, 1221 (1991). In deciding

an unsettled point of state law, Erie requires that we determine

how the Mississippi Supreme Court would interpret its own law if

presented with the question. American Waste & Pollution Control

Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991).

When we are required to make an Erie guess, it is not our role to

create or modify state law, rather only to predict it. Id.

Under products liability law, recovery by a bystander against

a manufacturer for an injury caused by its product can be an

elusive, complex, and difficult concept, especially because of the

many terms and defenses and other rules established for Mississippi

products liability, and because of resulting inconsistent, if not

conflicting, precedent. Batts asserts that only under the theory

of assumption of risk, with its subjective standard, can an open

and obvious danger associated with the forklift bar his recovery;

that is, the jury would have to find that he knowingly and

voluntarily encountered a known risk -- the forklift backing up.

But, although a subjective standard is used for assumption of risk,

an objective standard, which concerns an ordinary user, not the

person(s) actually using or injured by the product, is applied for

the open and obvious defense to claims under negligence and strict
7 Batts maintained that assumption of risk had no application to

this case. That bar is not in issue. 

8 In issue is only recovery by an injured bystander against a

product manufacturer where the open and obvious bar is raised.

Therefore, we are not concerned with, nor do we discuss, other

defenses or claims that might be raised. For example, contrary to

the position taken by the able dissent, although an open and

obvious danger bars recovery against the product manufacturer by an

injured bystander, he or she still has a claim against the product

user, unless, as here (workers' compensation bar), that avenue of

recovery is foreclosed. (In this case, liability is shifted not to

Batts, but to the user, and hence, workers' compensation.) And, of

course, for such a claim, assumption of risk or contributory

negligence by the injured bystander could be asserted. But, again,

we are not concerned in this appeal with the seemingly limitless

array of claims, defenses, bars, and other theories inherent in

products liability actions. 

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liability in tort. Toney v. Kawasaki Heavy Industries, Ltd., 975

F.2d 162, 168-69 (5th Cir. 1992); Gray v. Manitowoc Co., 771 F.2d

866, 871 (5th Cir. 1985) ("both the Restatement's theory of strict

liability and Mississippi's theories of negligence and implied

warranty require an objective appraisal of the obviousness of a

product's hazard"); Restatement (Second) of Torts § 402A cmt. i

(1965) (the product "must be dangerous to an extent beyond that

which would be contemplated by the ordinary consumer ... with the

ordinary knowledge common to the community"). This objective

standard is all that is in issue here.7

As discussed infra, we hold that an open and obvious danger to

an ordinary user precludes recovery against the product

manufacturer under negligence and strict liability in tort.

Accordingly, an open and obvious defect precludes Batts' recovery

against Caterpillar (the manufacturer), regardless of whether he

knew, or should have known, of that danger.8 Therefore, we reject
9 The Mississippi comparative negligence statute provides in

relevant part:

In all actions hereafter brought for personal

injuries, ... the fact that the person injured ...

may have been guilty of contributory negligence

shall not bar a recovery, but damages shall be

diminished by the jury in proportion to the amount

of negligence attributable to the person injured

....

Miss. Code Ann. § 11-7-15. The jury was instructed on comparative

negligence, as part of the standard charge. See note 8.

10 That section provides in part:

§ 402A. Special Liability of Seller of Product for

 Physical Harm to User or Consumer

(1) One who sells any product in a defective

condition unreasonably dangerous to the user or

consumer or to his property is subject to liability

for physical harm thereby caused to the ultimate

user or consumer, or to his property, if

(a) the seller is engaged in the business of

selling such a product, and

(b) it is expected to and does reach the user

or consumer without substantial change in the

condition in which it is sold.

Restatement (Second) of Torts § 402A (1965).

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Batts' contention that a bystander's awareness of an open and

obvious danger would simply reduce any recovery under Mississippi's

comparative negligence standard.9 We now address the bases in

Mississippi law for this holding.

A.

1.

It is more than well-established that, for strict liability in

tort, Mississippi adheres to the Restatement (Second) of Torts §

402A.10 E.g., Toney, 975 F.2d at 165; Lloyd v. John Deere Co., 922
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F.2d 1192, 1194 (5th Cir. 1991); Coca Cola Bottling Co. v. Reeves,

486 So.2d 374, 377-78 (Miss. 1986) (en banc). Moreover,

Mississippi law interprets § 402A to permit recovery by a

"bystander". Hall v. Mississippi Chem. Express, Inc., 528 So.2d

796, 799 (Miss. 1988) ("Though a bystander, [plaintiff] is ...

eligible under" § 402A.); Reeves, 486 So.2d at 378 ("fact that

[plaintiff] may arguably be classified as a bystander" is not bar

to § 402A action). 

In Reeves, a bottle fell through a carton being removed from

a shelf by someone in the vicinity of the plaintiff, who was

injured when the bottle shattered upon hitting the floor. A

threshold issue was whether the plaintiff, neither a purchaser nor

other form of user, could recover under strict liability in tort.

The Mississippi Supreme Court held that he could, noting:

... the duty imposed by Restatement § 402A to the

extent that same has been incorporated into the

positive law of this state exists in favor of

anyone who may reasonably be expected to be in the

vicinity of the product's probable use and to be

endangered by it if it is defective. Therefore,

the fact that [plaintiff] may arguably be

classified as a bystander avails [defendant

bottler] nothing inasmuch as children accompanying

their parents, relatives or persons in loco

parentis while shopping or otherwise on the

premises may generally be expected to be in the

vicinity of the handling of soft drink cartons and

to be endangered if those cartons are defective.
11 Likewise, in an "Erie guess" shortly before Reeves, our en

banc court reinstated the panel's vacated holding that, under

Mississippi law, a manufacturer can owe bystanders a strict

liability "duty" that "grows out of the contemplated or normally

intended use of its defective product and extends at least to those

persons within the area of that use who can reasonably be foreseen

to be endangered." Jackson v. Johns-Manville Sales Corp., 727 F.2d

506, 514 (5th Cir. 1984), reinstated in relevant part on reh'g, 750

F.2d 1314, 1317 (5th Cir. 1985) (en banc), cert. denied, 478 U.S.

1022 (1986). 

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486 So.2d at 378 (citations omitted).11 In so holding, the court

noted:

The justness of allowing bystanders to recover on a

strict products liability theory is demonstrably

greater than is the case with almost any other

potential plaintiff, for the bystander is less able

to avoid the accident than almost any other. 

Id. at 378 n.2. The open and obvious bar was not in issue in

Reeves. But, in any event, this footnote is indicative of the

competing interests in products liability law that clouds the issue

in Batts' case.

The forklift was for indoor use. For that and other reasons,

Batts could arguably "reasonably be expected to be in the vicinity

of the [forklift's] probable use and to be endangered by it if it

is defective." Id. at 378. Several of the instructions included

"bystanders" among those to be considered; and much of the language

used was similar to that in Reeves. The jury was instructed that

Batts was a bystander (Caterpillar does not contest that here) and

could "recover for injuries[,] consistent with all of the

instructions". The court instructed the jury:

Manufacturers of products have a legal duty to

design products that are not in a defective

condition unreasonably dangerous to users,

consumers, or bystanders. This duty includes the
12 In fact, one of the instructions given for Batts, over

Caterpillar's objection, erroneously conflated "ordinary consumer"

and "ordinary bystander":

If you find ... that the forklift was in a

defective condition, unreasonably dangerous when

sold by [Caterpillar] ... because it failed to have

mirrors, audible back-up alarms, and/or flashing

warning lights, and that the danger from the

forklift in its defective condition, unreasonably

dangerous, was not reasonably foreseeable by the

ordinary consumer or bystander with the ordinary

knowledge common to the community as to the

characteristics in common usage of forklift

products ... and that Myron Batts was injured while

the forklift was being used in a manner which was

reasonably foreseeable by [Caterpillar], and that

the lack of mirrors, audible back-up alarms, and/or

flashing warning lights was the sole proximate

cause or a proximate contributing cause of Myron

Batts's injuries, then in that event your verdict

should be for [Myron Batts].

In any event, taken as a whole, the charge does not constitute

reversible error.

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obligation to install safety and warning devices

which will prevent accidents or injuries which are

reasonably foreseeable from occurring.

(Emphasis added.)12 

For the strict liability in tort claim, the district judge, as

requested by Caterpillar, charged that an open and obvious danger

cannot render the product unreasonably dangerous. Over Batts'

objections, the district judge instructed, in part, that

the plaintiff has alleged that the absence of a

back-up alarm, flashing warning lights, and/or

rearview mirrors on the forklift ... entitles him

to recover against the defendant on the theory of

strict products liability. ... [I]n order for the

plaintiff to prevail on this theory he must prove

by a preponderance of the evidence that the

forklift ... was in a defective condition when it

was sold in 1965 and unreasonably dangerous to the

user of the forklift and that the defective
13 This was the third interrogatory; the first two, which the

jury answered in the negative, asked whether "Caterpillar was

negligent in its design of the forklift" and whether "the forklift

as manufactured and sold by Caterpillar was defective and

unreasonably dangerous at the time of the sale and delivery". The

jury was instructed to stop if it answered "no" to these two.

Accordingly, it did not reach the open and obvious danger

interrogatory. 

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condition, if any, was a proximate cause of the ...

accident ....

... [T]o find the forklift ... to be in a

defective condition means that you find that there

was something wrong with the [forklift]. To find

that the forklift was unreasonably dangerous means

that the forklift posed some danger beyond the

contemplation of the ordinary user of the forklift.

... [A]ny alleged danger which is open and

obvious cannot be considered to be unreasonably

dangerous.

(Emphasis added.) After giving the strict liability instruction,

the district judge later reemphasized -- without specifying under

which theory of recovery -- the preclusion to recovery if the

following danger was open and obvious:

If you find ... that the operation of the forklift

... without the driver facing in the direction of

travel and without sounding the manual horn to warn

a pedestrian presents an open and obvious danger,

regardless of whether the forklift was equipped

with [a mirror or warning device], then ... it is

your sworn duty to return a verdict for the

defendant.

Finally, a special interrogatory asked correctly whether, on the

date of the accident, "the defect, if any, was open and obvious to

a reasonable and prudent user...." (Emphasis added.)13 The jury

was instructed properly that if it so found, it was to find for

Caterpillar. Concerning the challenged instructions that

incorporated open and obvious danger elements, as well as the
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corresponding special interrogatory, the charge, as a whole, was

correct; we are not left "with substantial and ineradicable doubt

whether the jury [was] properly guided in its deliberations."

Hall, 937 F.2d at 214.

2.

Batts admits that "the patent danger doctrine ... has been

embraced by Mississippi jurisprudence in the past", but contends

that the Mississippi Supreme Court has now "laid to rest" the

notion that an open and obvious danger exonerates the product

manufacturer from strict liability in tort. Along that line, the

Mississippi Supreme Court has adhered to a "consumer expectation"

test. In Ford Motor Co. v. Matthews, 291 So.2d 169, 172 (Miss.

1974), it stated that liability lies under § 402A "`only when the

product is, at the time it leaves the seller's hands, in a

condition not contemplated by the ultimate consumer, which will be

unreasonably dangerous to him.'" (Quoting Restatement (Second) of

Torts § 402A cmt. g (1965)). As a gloss on the terms "unreasonably

dangerous", it quoted comment i, stating: "`The article sold must

be dangerous to an extent beyond that which would be contemplated

by the ordinary consumer who purchases it, with the ordinary

knowledge common to the community as to its characteristics.'" Id.

(quoting Restatement (Second) of Torts § 402A cmt. i (1965)). As

discussed infra, the Mississippi Supreme Court has continued to use

this approach. E.g, Toliver v. General Motors Corp., 482 So.2d

213, 218 (Miss. 1985) (citing § 402A cmt. g and Ford Motor, 291

So.2d at 169).
14 For example, the Supreme Courts of New Jersey and Texas have

applied the latter. See, e.g., Ryan v. KDI Sylvan Pools, Inc., 121

N.J. 276, 290, 579 A.2d 1241, 1248 (1990); Turner v. General Motors

Corp., 584 S.W.2d 844, 851 (Tex. 1979). Under the risk-utility

approach, "a product can be said to be defective in the kind of way

that makes it `unreasonably dangerous' if a reasonable person would

conclude that the danger-in-fact, whether foreseeable or not,

outweighs the utility of the product." W. Page Keeton et al.,

Prosser and Keeton on the Law of Torts § 99, at 699 (5th ed. 1984).

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Accordingly, based on Mississippi's choice to define

"unreasonably dangerous" by reference to a reasonable, or ordinary,

consumer's expectations of product performance, our court has held,

as discussed infra, that there is no strict liability in tort under

Mississippi law for a patent -- open and obvious -- danger. "[A]

product that has an open and obvious danger is not more dangerous

than contemplated by the consumer, and hence cannot, under the

consumer expectations test applied in Mississippi, be unreasonably

dangerous." Melton v. Deere & Co., 887 F.2d 1241, 1243 (5th Cir.

1989). (As quoted above, Batts' jury was so instructed.) See also

Gray, 771 F.2d at 869 ("the consumer expectation test of section

402A ... requires that harm and liability flow from a product

characteristic that frustrates consumer expectations"; "the patent

danger bar adopted by the Restatement was incorporated into

Mississippi's doctrine of strict liability"). This rule is

discussed fully in this court's recent decision in Toney, 975 F.2d

at 165-66 (motorcycle owner injured in collision; claimed

motorcycle should have had leg guards).

Batts concedes that decisions by our court support

Caterpillar's contention that the consumer expectation test

applies, as opposed to a risk utility analysis.14 He asserts,
15 "`In this circuit one "panel may not overrule the decision,

right or wrong, of a prior panel" in the absence of en banc

reconsideration or superseding decision of the Supreme Court.'"

Burlington N. R.R. v. Brotherhood of Maintenance of Way Employees,

961 F.2d 86, 89 (5th Cir. 1992) (citations omitted). 

16 Batts also requests, in the alternative, that we certify this

question to the Mississippi Supreme Court. Our law is clear; the

Mississippi law upon which our precedent is based is unchanged. We

thus decline to do so. 

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however, that our interpretation is at odds with the position taken

by the Mississippi Supreme Court in two decisions in 1988, Whittley

v. City of Meridian, 530 So.2d 1341 (Miss. 1988) and Hall v.

Mississippi Chemical Express, Inc., 528 So.2d 796 (Miss. 1988), as

well as in Toliver, rendered in 1986.

First, these cases do not persuade us that Mississippi has

fundamentally shifted its test from one of consumer expectation to

risk utility. Second, even if we agreed with Batts, we would be

bound by the interpretation given by a prior panel of this court in

Melton (which rejected a similar contention, 887 F.2d at 1243) and

Toney.

15 No Mississippi case has appeared since Melton was rendered

in 1989 to indicate that its analysis of Mississippi law was

incorrect.16

3.

As noted, there is no contention that Batts was a "user". At

trial, Caterpillar repeatedly stated that the owner was the "user";

there is no charge that Batts, in performing his duties with the

tugger, or otherwise, was working in conjunction with the forklift,

so as to make him a "user" of it; and, in fact, the district court

instructed that Batts was a "bystander". As discussed earlier,
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Batts status as a "bystander" does not prevent him from asserting

a § 402A claim that the forklift was defective and unreasonably

dangerous. Among other things, he had to prove that (1) he could

"reasonably be expected to be in the vicinity of the [forklift's]

probable use and to be endangered by it if it is defective",

Reeves, 486 So.2d at 378; and (2) "the [forklift] was defective and

... its defective condition made the [forklift] unreasonably

dangerous to him", Toliver, 482 So.2d at 216 (emphasis in

original). As discussed and quoted supra, in proving that a

product was "defective and unreasonably dangerous", Mississippi

applies the consumer expectation test -- the product is (1)

"defective" when, at the time it leaves the seller's hands, it is

in a condition not contemplated by the ultimate consumer, which

will be unreasonably dangerous to him; and (2) "unreasonably

dangerous" when it is dangerous to an extent beyond that which will

be contemplated by the ordinary consumer, with the ordinary

knowledge common to the community as to its characteristics. 

Simply put, products liability, whether under negligence or

strict liability in tort, does not focus on the status of the

plaintiff; instead, it focuses on the product. The focus is not on

whether the injured party is a consumer, or user, or bystander, or

whether the product is unreasonably dangerous to a particular

person. E.g., Toney, 975 F.2d at 169; Gray, 771 F.2d at 869

(discussed infra); Page v. Barco Hydraulics, 673 F.2d 134, 138 (5th
17 This court stated in Page:

... [I]n strict liability the focus is on the

safety of the product itself. The question is

whether the product meets the reasonable

expectations of the ordinary consumer as to its

safety, irrespective of all the care that the

manufacturer might have put into making it. 

673 F.2d at 138 (citations omitted). 

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Cir. 1982).17 Moreover, as discussed, the inquiry for strict

liability is not whether the product was dangerous; it is whether

it was both defective and unreasonably dangerous. For example, an

ordinary kitchen knife is dangerous, simply because of its blade;

but, it is not unreasonably dangerous, because the ordinary

consumer understands that the blade, due to its sharpness or point,

can cause injury. In products liability cases, by which we impose

liability on a manufacturer, among others, it is the product -- the

item placed in commerce for use or consumption -- on which

liability turns. 

Accordingly, even when the bystander is the injured party, the

test must remain the same -- the product is defective if, when it

leaves the seller's hands, it is in a condition not contemplated by

the ordinary consumer, which will be unreasonably dangerous to him;

and, it is unreasonably dangerous if it is dangerous to an extent

beyond that which will be contemplated by the ordinary consumer,

with the ordinary knowledge common to the community as to its

characteristics. This is essentially how the district court

instructed the jury. 
18 Because Gray was working with, or on, the boom, we consider

him a user, not a bystander.

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Our decision in Gray, followed in Melton and Toney, controls

on an open and obvious danger precluding strict liability in tort

recovery by a bystander against a manufacturer. (All three cases

concerned injured users, not injured bystanders.) While Gray was

changing sections of a crane boom, the crane operator swung the

boom, striking Gray.18 771 F.2d at 867. He sued under strict

liability in tort, implied warranty, and negligence, contending,

inter alia, that there was a design defect in the crane, because

the operator's vision was obscured to the left side, and that the

crane should have provided mirrors or other devices to compensate.

The defendant manufacturer contended that the hazard was "open

and obvious to ordinary users of the crane" and constituted a bar

under any theory of products liability. Id. at 868. (Gray's

holding for negligence is discussed in part II.B.) As for strict

liability in tort, our court felt "bound to apply" the consumer

expectation test, and stated: "the consumer expectation test of

section 402A is rooted in the warranty remedies of contract law,

and requires that harm and liability flow from a product

characteristic that frustrates consumer expectations." Id. at 869

(emphasis added). 

Gray was rendered six months before the Mississippi Supreme

Court expressly held in Reeves what earlier Mississippi cases had

implied -- that a bystander could recover under § 402A. Gray does

not make a distinction between "users" and "bystanders"; the latter
19 The dissent posits that we fail to explain why the consumer

expectation test applies to bystanders. In short, as discussed

above, Mississippi law and our circuit precedent require it. The

same is true for our holding on the negligence claim.

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is not mentioned. It is true, as noted in the dissent, that a

bystander's expectations, if any, about a product would not

necessarily include knowledge of a danger that is open and obvious

to an ordinary consumer; but, again, the test under Mississippi law

for whether a product is defective and unreasonably dangerous does

not focus on the actual user or the actual bystander (the persons

actually using or injured by the product) but, instead, focuses on

the ordinary consumer with ordinary knowledge common to the

community as to its characteristics. For this reason, Gray held

that "the Grays' right to recover under the theory of strict

liability depends upon whether the evidence was sufficient to

permit the jury to find that the ... crane was `dangerous to an

extent not contemplated by the ordinary consumer who purchased it,

with the ordinary knowledge common to the community as to its

characteristics.'" Id. at 870 (emphasis added). Again, this rule

is solidified in Toney.

19

As noted, in the challenged strict liability instructions, the

district court instructed that "any alleged danger which is open

and obvious cannot be considered to be unreasonably dangerous" and

that the jury was to return a verdict for Caterpillar if it found

"that the operation of the forklift ... without the driver [user]

facing in the direction of travel and without sounding the manual

horn to warn a pedestrian presents an open and obvious danger,
- 20 -

regardless of whether the forklift was equipped with [a mirror or

warning device]. ..." In addition, as also noted, in a special

interrogatory, the jury was instructed that if it found "[t]hat the

defect, if any, was open and obvious to a reasonable and prudent

user on" the date of the accident, then it must return a verdict

for Caterpillar. This was a correct statement of the law, even for

a bystander plaintiff. 

 B.

For the negligence claim, as discussed, whether the danger is

open and obvious is also measured by an objective -- reasonable

person -- standard, e.g., Toney, 975 F.2d at 168-69; Gray, 771 F.2d

at 871. In instructing the jury, over Batts' objections, on that

claim, the district judge stated:

... [T]he duty of a manufacturer is to provide a

product which is reasonably fit. There is no duty

to provide a perfectly safe product. [Batts]

alleges negligence in the design of the forklift

... involved in the accident. ... In order for

[him] to recover under this theory, ... the burden

of proof is upon [him] to prove ... that the

absence of [a mirror or warning device] constituted

a concealed or hidden dangerous condition, thereby

making the forklift defective and unreasonably

dangerous. If you find ... that the alleged danger

of the forklift ... was open and obvious, and that

the forklift functioned properly for its intended

use, then ... you must return a verdict for the

defendant as to [Batts'] claim of negligent design.

As quoted earlier, the district court also gave a general

instruction that the jury had to find for Caterpillar if it found

that a driver operating the forklift without facing in the

direction of travel and without sounding his horn presented an open
20 Indeed, at the charge conference, the district judge placed

considerable reliance on Gray. 

21 In Harrist, decided before the adoption of strict liability in

tort in Mississippi, the plaintiff/"employee-user" alleged

negligence in the design of steps aboard an oil rig. 140 So.2d at

559. He requested that the court abolish the privity of contract

rule for products cases grounded in negligence and implied

warranty. Id. at 561. The court found it unnecessary to do so

because, assuming it would, it

would be required to affirm the trial court because

the alleged defects are not considered to be latent

or concealed. If we assume there were defects, we

think they were apparent and obvious to a casual

observer.

Id. (emphasis added). Despite the opportunity presented for the

court to hold that the obviousness of the danger was a comparative

negligence factor, it held instead that the defendant's negligence

vel non in designing the steps was not even a jury question. 

In Jones, the court quoted with approval this court's opinion

in Ward v. Hobart Manufacturing Co., 450 F.2d 1176, 1180 (5th Cir.

1971), stating that Ward

set out the general rule for negligent design cases

followed by this Court; "[W]here the alleged danger

is open and obvious and the manufacturer has done

everything necessary to insure that the machine

will function properly for its designed purpose any

duty owed to a future user has been fulfilled."

- 21 -

and obvious danger. And, it gave the special interrogatory on open

and obvious danger.

1.

The district court's instruction is consistent with Toney and

Gray.

20 And, Gray relied on decisions by the Mississippi Supreme

Court in Harrist v. Spencer-Harris Tool Co., 244 Miss. 84, 140

So.2d 558 (1962) and Jones v. Babst, 323 So.2d 757 (Miss. 1975).

As in Gray, those Mississippi cases concerned injured users, not

injured bystanders.21 Gray held that
323 So.2d at 759 (emphasis added). The court affirmed a directed

verdict for the manufacturer on strict liability and negligence

claims, because there was no evidence supporting those theories; it

found the evidence instead supported a hypothesis that the subject

accident resulted from improperly attaching lug nuts in repairing

an automobile tire. Accordingly, a jury verdict against the

defendants involved in the repair was affirmed.

In applying Mississippi law, we, of course, are controlled by

decisions by the Mississippi Supreme Court; but, it does appear

that Jones overstates the holding in Ward, a pure negligent design

case brought by a plaintiff injured while cleaning a meat grinder.

450 F.2d at 1178, 1180. Gray, however, ruled that the Mississippi

Supreme Court would follow Jones. 771 F.2d at 868 n.1.

22 Toney and Gray are this court's latest pronouncements on the

open and obvious defense in a Mississippi negligent design case.

Melton concerned only strict liability in tort, 887 F.2d at 1242;

and in Lloyd (1991) (open and obvious danger to injured user;

improper design and failure to warn claims; directed verdict

granted), "while we ... applied the standard for a directed verdict

as to all three theories, or bases, for liability [negligence,

warranty, strict liability in tort], and [found] it correctly

granted for each, our analysis [was] couched in the language of §

402A strict liability." 922 F.2d at 1194 n.2.

- 22 -

a manufacturer's liability for product defects

under Mississippi's doctrines of negligence and

implied warranty may not, as a matter of law, be

premised on the existence of an obvious hazard in a

product which functions properly for its intended

purpose.

Gray, 771 F.2d at 868.22 Toney repeats this rule. 975 F.2d at

169. We are not cited to, nor have we found, a Mississippi case

holding that an open and obvious danger, without more, can bar

recovery for a products liability negligence claim by a bystander.

But, as discussed supra, the focus in products liability is on the

product. Moreover, for negligence, and as the Batts' jury was

instructed, the manufacturer's duty is to produce a reasonably safe

product. Therefore, Gray controls.
- 23 -

2.

Batts contends, however, that recent premises liability

decisions by the Mississippi Supreme Court control. Liability for

negligently designed products is, of course, merely one form of

common law negligence, to which the ordinary rules of negligence

apply. E.g., Toliver, 482 So.2d at 219 ("[S]trict liability `does

not preclude liability based upon the alternative ground of

negligence ...' .... Under this theory, the usual defenses to a

charge of negligence would apply." (citations omitted)). And, in

some types of negligence cases in Mississippi involving open and

obvious dangers, the jury may find for the plaintiff, and then

apply comparative negligence. E.g., Goodwin v. Derryberry Co., 553

So.2d 40, 43 (Miss. 1989). In Goodwin, a premises liability case,

the Mississippi Supreme Court cited its earlier premises liability

decision in Bell v. City of Bay St. Louis, 467 So.2d 657, 664

(Miss. 1985), which stated:

In prior cases involving hazards that were

extremely "open and obvious", this Court has not

barred injured parties from recovery, but rather

has left the issue to the jury properly instructed

regarding comparative negligence. ...

We have repeatedly condemned jury instructions

which, if followed by the jury, would completely

deny a negligent plaintiff recovery, even though

the defendant may also be negligent.

See also Caruso v. Picayune Pizza Hut, 598 So.2d 770 (Miss. 1992)

(affirming jury verdict against plaintiff who stumbled on mat

placed over loose stripping; mat was "open and obvious", and

question went to jury properly instructed on comparative

negligence); Biloxi Regional Medical Ctr. v. David, 555 So.2d 53,
23 The Mississippi Supreme Court presumably relied on this

"clearest of cases" exception when, in McGovern v. Scarborough, 566

So.2d 1225 (Miss. 1990), it affirmed a directed verdict against a

plaintiff who stumbled on a raised threshold when entering a

business premises. The court expressed concern at the prospect of

creating a jury question for "any doorway from the street which is

not on the same level as the street." Id. at 1228. 

- 24 -

56 (Miss. 1989) ("`[C]onditions are not either open and obvious or

not open and obvious. Common sense and experience negate[] an

either or categorization of such conditions. Just how open and

obvious a condition may have been is a question for the jury in all

except the clearest of cases.'" (quoting Bell, 467 So.2d at 664)).23

Batts contends that these cases control; but they concern

premises, not products, liability. We do not find them persuasive

in making our Erie guess on this issue. This is aptly demonstrated

by a simple, but conclusive, analogy in Bell. In rejecting the

claim that recovery in a premises liability action was barred if

the danger was open and obvious, the Mississippi Supreme Court

noted: "We might as well exonerate as a matter of law a defendant

who leaves his car parked in the middle of the street on grounds

that the car was open and obvious." 467 So.2d at 664. In this

example, it was not a defect in the product (automobile) that

caused the injury; it was the negligence of its owner, who left it

in the middle of the street. The same is true for this products

liability negligence claim. The forklift was operated in reverse

and struck Batts, a bystander. The jury found that a product

defect did not cause the injury. 
- 25 -

Consistent with our Erie holding for a strict liability in

tort claim, an open and obvious danger in a product bars recovery

on a products liability negligence claim by an injured bystander

against the product's manufacturer. Indeed, as discussed, there is

a whole body of products liability law dating from Harrist that

effectively absolves a manufacturer from liability resulting from

open and obvious product defects. Therefore, the district court

correctly instructed the jury that, if it found "that the alleged

danger of the forklift ... was open and obvious", it must return a

verdict for Caterpillar on the negligent design claim. 

III.

For the foregoing reasons, we

AFFIRM.

E. GRADY JOLLY, Circuit Judge, specially concurring:

I concur in Judge Barksdale's opinion. I write separately

only to set out in one place the principles of Mississippi products

liability law that control this case today: First, I would

emphasize that a manufacturer's duty to exercise due care in

designing a product that is reasonably safe should not be confused

with a manufacturer's strict liability for a defective product that

is unreasonably dangerous. A manufacturer who has not negligently

designed a product may nonetheless, in given cases, be held

strictly liable for producing a defective product that is

unreasonably dangerous. Thus, the distinction between the two

standards may be critical. 
In order to recover on a negligent design claim, the burden is

on the plaintiff to prove that the defendant manufacturer failed to

exercise due care in designing the product. The manufacturer may

then raise, in the nature of an affirmative defense, that the

claimed defect was open and obvious. If the manufacturer

demonstrates, as a matter of law, that the defect in the product

would be open and obvious to a casual observer, the plaintiff will

be barred from recovery under his negligence claims, because "no

duty rests upon a manufacturer or seller to warn a purchaser of a

dangerous design that is obvious." Harrist v. Spencer-Harris Tool

Co., 140 So.2d 558, 562 (Miss. 1962). Moreover, one factor that is

often considered when determining whether a manufacturer breached

its duty to design a reasonably safe product is "the conformity of

[its] design to the practices of other manufacturers in its

industry at the time of manufacture." Ward v. Hobart Manufacturing

Co., 450 F.2d 1176, 1182 (5th Cir. 1971). This factor is often

determinative because in most cases it serves as a reliable indicia

of the standard of care that a reasonably prudent manufacturer

would exercise.

In order to recover on a strict products liability claim based

on a design defect, the plaintiff need only prove that the

manufacturer produced a defective product that is unreasonably

dangerous to the ordinary consumer, and that the product was

defective when it left the control of the manufacturer.

Traditional negligence notions of fault and care are not relevant

in making this determination; the primary focus of the inquiry is

on the character of the product, not on the conduct of the
- 27 - --

manufacturer. A manufacturer may be strictly liable even if it has

exercised all possible care in making the product, if that product

is dangerous to an extent beyond that which would be contemplated

by an ordinary consumer with the ordinary knowledge common to the

community of the product's characteristics. See Restatement

(Second) of Torts, § 402A, comment i. It follows that a product

with an open and obvious defect is not "dangerous to an extent

beyond that which would be contemplated by an ordinary consumer,"

and thus cannot be unreasonably dangerous. In strict products

liability claims, then, the open and obvious nature of the defect

is necessarily tied to the definition of an unreasonably dangerous

product. Under the consumer expectation test, a plaintiff can

never prove that an alleged defect renders a product unreasonably

dangerous if that defect is open and obvious to the ordinary

consumer or user.

We thus make clear that, concerning strict products liability

claims, Mississippi follows the consumer expectations test, that

this test is an objective one, that whether the product is

unreasonably dangerous is judged from the point of view of the

ordinary consumer or user, and that if the alleged defect or danger

is open and obvious to an ordinary consumer or user, the product is

not unreasonably dangerous as a matter of law. Thus, although a

bystander can recover against a manufacturer, he stands in the

shoes of the ordinary consumer, because the test's primary focus is

on the characteristics of the product and not the individual status
24 The dissent states that "denying Batts recovery under strict

liability because the danger of the forklift is open and obvious to

an ordinary consumer, shifts the liability costs from the

manufacturer, in this case, Caterpillar, to Batts." In our view,

this statement is inaccurate. To the extent that the holding of

the majority opinion "shifts" liability, it does so to the

purchaser, user, employer, and/or operator; it does not shift the

liability to Batts himself. Indeed, Batts' employer has already

accepted statutorily imposed liability and has remitted payment to

Batts under Mississippi's workers' compensation program. The

removal of one "deep pocket" defendant is just not tantamount to

the shifting of liability to the tort victim himself. 

- 28 - --

and viewpoint of the individual plaintiff. With respect to

negligent design claims, a traditional negligence analysis is

employed, with its focus on whether the product has been designed

with due care by the defendant manufacturer. The open and obvious

nature of the alleged defect can be raised, and if proved as a

matter of law, the defense will operate to bar the plaintiff's

recovery; material factual disputes with respect to the open and

obvious defense, both with respect to strict liability claims and

negligent claims, are to be resolved by the jury.

Thus, applying these principles to the case before us, we have

concluded that Batts' strict products liability claims fail because

the evidence fully supports that the alleged defects in the

forklift were open and obvious to an ordinary consumer or user and

thus the forklift was not an unreasonably dangerous product. With

respect to Batts' negligence claims, we have concluded that, under

Mississippi law, Batts' claim is barred because the evidence

supports the finding that the alleged defects in the forklift were

open and obvious to a casual observer.24
The dissent argues that "this court's willingness here to

extend user injury analysis to a bystander case, in my opinion, is

not what the Supreme Court of Mississippi would do, were it ruling

on this issue." The dissent ignores the principle that we are not

permitted to guess what the Mississippi Supreme Court might do when

the present law is perfectly clear. Mississippi has expressly

stated on numerous occasions that it follows the Restatement and

that it follows the consumer expectation test. This test evaluates

the product's defect from the point of view of the ordinary

consumer. The rule explicitly states that if the product meets

consumer expectations, it is not defective. In other words,

consumer expectations define what is and what is not an

unreasonably dangerous product. The Mississippi rule--at present

clearly enunciated--leaves no room for a "bystander expectation"

test to define an unreasonably dangerous product. Thus, to address

the dissent's suggestion that we are only engaging in an

"analytically convenient argument": The reason the consumer

expectation test applies to bystanders is because the test

specifically and expressly defines a manufacturers liability for

injury alleged to have been caused by its products. Moreover, as

we have said in the body of the opinion, the test of whether a

product is unreasonably dangerous, places the primary focus on the

characteristics of the product and not the individual status and

personal viewpoint of the particular plaintiff. 

With respect to the negligent design claim, the dissent

states:

However, if he is viewed as a "bystander," then I agree

with Batts that the open and obvious test requires two

significant modifications. First, the person to whom the

danger must objectively be open and obvious is Batts, not

the user of the forklift. Second, the defense is not an

absolute bar, but, like in ordinary negligence actions,

is subject to comparative negligence.

We think this quote misstates the applicable law. The test

employed for negligent design claims is whether the alleged defect

or danger is open and obvious to a casual observer--a category that

surely applies to Batts. The consumer expectation test is not

applicable to negligent design claims. Thus, the first

"modification" is no modification of Mississippi law; it is simply

a restatement of current Mississippi law on negligent design. With

regard to the second "modification," we have no authority to make

this type of change in the law; the Mississippi Supreme Court has

said that the defense is an absolute bar, and thus we are bound to

follow its dictate. Of course, the Mississippi Supreme Court can

BRIGHT, Senior Circuit Judge, dissenting: 
change this rule if it wishes, and, indeed, it might; the point is

that it has not and its present law is clear.

Similarly, the dissent argues that "[t]he crucial distinction

between these cases and the instant case is that a bystander is

generally not aware of the dangers that are, or should be, open and

obvious to an owner, consumer or user." As stated above, the test

used in negligent design claims is whether the defect is open and

obvious to a casual observer; Batts, as a "bystander," and as a

casual observer who worked in the plant where the forklift was

used, would clearly fall within this category of persons to whom

the defect of the forklift would have been open and obvious.

- 30 - --

I respectfully dissent here because I believe the Supreme

Court of Mississippi would consider the status of the person

injured by a product in determining whether the open and obvious

danger rule bars that person from recovering in a products

liability suit. Specifically, I believe the court, at a minimum,

would apply a premises liability approach to application of the

rule in a negligence case, in which a bystander, injured by a

product, brings suit against the manufacturer.

I agree with this court that, for purposes of users and

consumers, strict liability focuses on whether a particular product

is dangerous, and not on the status of the person injured. Ante at

16. I also agree with this court's reading of Ford Motor Co. v.

Matthews, 291 So. 2d 169 (Miss. 1974), its progeny, Toliver v.

General Motors Corp., 482 So. 2d 213 (Miss. 1985) and Hall v.

Mississippi Chem. Express, Inc., 528 So. 2d 796 (Miss. 1988), and

this court's prior decisions in Gray v. Manitowoc Co., Inc., 771
25In Ford, an employee was injured when a truck he was attempting

to repair moved forward, pinning him against another truck. In

Toliver, an owner of a vehicle suffered injuries resulting from a

defective gas tank in the car. In Gray, an ironworker foreman was

injured when the butt end of a crane's boom struck him while he

supervised his crew in changing sections on the boom. In Melton,

a user of a combine was injured in attempting to clean it. In

Toney, a driver of a motorcycle was injured when he was struck by

a car.

26This court concedes that Batts was a bystander, and not a user.

Ante at 15-16. "Bystanders" are expressly permitted recovery under

Mississippi strict liability law. Hall v. Mississippi Chem.

Express, Inc., 528 So. 2d 796, 799 (Miss. 1988). See also Jackson

v. Johns-Manville Sales Corp., 727 F.2d 506, 514 (5th Cir. 1984).

- 31 - --

F.2d 866 (5th Cir. 1985); Melton v. Deere & Co., 887 F.2d 1241 (5th

Cir. 1989); and now Toney v. Kawasaki Heavy Indus., Ltd., No. 91-

1577 (5th Cir. Oct. 7, 1992) that the Mississippi Supreme Court has

adopted the "consumer expectation" test in determining strict

liability under section 402A of the Restatement (Second) of Torts.

Ante at 13. Moreover, I acknowledge this court has ruled that, for

purposes of "users," there is no recovery for a patent, open and

obvious danger. Melton, 887 F.2d at 1243. Finally, I do not

disagree that the Mississippi Supreme Court employs an objective

standard in applying the consumer expectation test. Gray, 771 F.2d

at 871.

However, I do disagree with this court's application of these

cases to the instant case. Each of the above cases relates to a

user injury.25 Collectively, these cases represent a significant

body of case law derived from, and specifically tailored to, user

injuries. But Batts was a bystander, not a user.26 There was
The distinction I draw here between a user and bystander is a

narrow one. It applies only for purposes of applying the open and

obvious danger rule in a case in which a bystander injured by a

product seeks to recover against the manufacturer.

- 32 - --

nothing he could have done to avoid the accident because he neither

had control over the danger, nor was aware of its presence. 

In my opinion, this court's failure to address Batts'

bystander status is at odds with the fundamental purpose of strict

liability as developed in Mississippi. The Supreme Court of

Mississippi has long recognized that the purpose of product

liability "is to insure that the costs of injuries resulting from

defective products are borne by the manufacturers . . . rather than

by the injured persons who are powerless to protect themselves."

State Stove Mfg. Co. v. Hodges, 189 So. 2d 113, 120 (Miss. 1966),

cert. denied, Yates v. Hodges, 386 U.S. 912 (1967) (quoting

Greenman v. Yuba Power Products, Inc., 377 P.2d 897, 900-01 (Cal.

1963)). The court has noted that the purpose and subsequent effect

of forcing manufacturers to internalize these costs is to create

incentives for manufacturers to produce safer products. See

generally id. at 119.

But denying Batts recovery under strict liability because the

danger of the forklift is open and obvious to an ordinary consumer,

shifts the liability costs from the manufacturer, in this case,

Caterpillar, to Batts. Consequently, Caterpillar has less

incentive to make its equipment safer. Application of the open and

obvious rule here encourages manufacturers to produce goods that
27It might very well adopt the rationale of looking to the nature

of the accident and the obviousness of the danger to the person

injured, as this court did in Page v. Barko Hydraulics, 673 F.2d

134 (5th Cir. 1982).

- 33 - --

are increasingly more dangerous because, in effect, the greater the

"open and obvious" danger, the greater the protection from

liability the manufacturer enjoys.

This court's willingness here to extend user injury analysis

to a bystander case, in my opinion, is not what the Supreme Court

of Mississippi would do, were it ruling on this issue.27 Although

analytically convenient, this court's application of a consumer

expectation test fails to explain the reason why the test should

apply to bystanders.

To the extent Mississippi would apply a different rule for

bystanders, Batts should be entitled to recovery. However, I

recognize this issue remains a question of first impression in

Mississippi and, thus, do not rest my decision on these grounds

alone.

In my opinion, an even more persuasive case is made on Batts'

negligent design claim. As a general rule, manufacturers have a

duty to design reasonably safe products. Ward v. Hobart Mfg. Co.,

450 F.2d 1176, 1182 (5th Cir. 1971). However, if the danger of a

particular product is "open and obvious," and the product functions

properly for its intended use, parties are barred from recovery.

See Harrist v. Spencer-Harris Tool Co., 140 So. 2d 558, 562 (Miss.

1962).
28As we have observed, in Harrist, an employee working on an oil rig

was injured when he slipped and fell on stairs on the rig's

platform. Harrist, 140 So. 2d at 559. In Ward, a woman lost

several fingers cleaning a meat grinder manufactured by Hobart and

- 34 - --

In Harrist, an employee of the purchaser of an oil rig slipped

and fell on the steps of the rig due to "external and visible

defects which . . . [were] plain and obvious to the purchaser . . .

." Id. at 561. Faced with a possible no privity defense, the

court treated the employee as a purchaser and denied him recovery

because the defect in the rig was open and obvious.

The bar in Harrist, however, does not apply in every case.

Whether it applies here should turn on whether Batts is considered

a product "user" or a "bystander." If he is a "user" and, as such,

should recognize a forklift operating in reverse to be an open and

obvious danger, he would be barred from recovering on a negligent

design claim. Id.; Ward v. Hobart Mfg. Co., 450 F.2d 1176 (5th

Cir. 1971); Gray v. Manitowoc Co., 771 F.2d 866 (5th Cir. 1985).

However, if he is viewed as a "bystander," then I agree with

Batts that the open and obvious test requires two significant

modifications. First, the person to whom the danger must

objectively be open and obvious is Batts, not the user of the

forklift. Second, the defense is not an absolute bar, but, like in

ordinary negligence actions, is subject to comparative negligence.

Again, the cases on which Caterpillar relies deal exclusively

with employees who, unlike Batts, were injured while using the

source of the danger which caused their injury.28 The crucial
used by the woman and her husband in a small restaurant they owned

and operated. Ward, 450 F.2d at 1182. In Gray, as discussed

above, an ironworker foreman suffered injury when the butt end of

a crane's boom struck him while he supervised his crew in changing

sections on the boom. Gray, 771 F.2d at 871.

- 35 - --

distinction between these cases and the instant case is that a

bystander is generally not aware of the dangers that are, or should

be, open and obvious to an owner, consumer or user.

Support for Batts' right to recover comes from premises

liability cases in Mississippi. These cases generally hold that

recovery for injuries resulting from open and obvious hazards is

not automatically barred, but rather goes to the jury on the

question of comparative negligence. Biloxi Regional Medical Center

v. David, 555 So. 2d 53, 56 (Miss. 1989); Goodwin v. Derryberry

Co., 553 So. 2d 40, 43 (Miss. 1989); Bell v. Bay St. Louis, 467 So.

2d 657, 664 (Miss. 1985).

In my opinion, the jury "charge as a whole leaves . . .

substantial and ineradicable doubt" that the jury was properly

guided in its deliberations. Hall v. State Farm Fire & Casualty

Co., 937 F.2d 210, 214 (5th Cir. 1991). The trial court neither

fully nor correctly instructed the jury as to the negligent design

or strict liability claims. See Crist v. Dickson Welding, Inc.,

957 F.2d 1281, 1287 (5th Cir. 1992). In my opinion, the jury

should have been instructed that if Batts' injuries resulted from

open and obvious hazards, his claims were not automatically barred,

but were to be weighed against his comparative negligence.
29The concurrence suggests that, for the purposes of defining strict

liability in Mississippi, no real distinction exists between a

"consumer" and a "bystander." Similarly, for purposes of negligent

design, that opinion suggests "bystander" denotes "casual observer"

in determining to whom the danger should be open and obvious.

Regardless of the terminology, it seems to me that one in Batts'

posture lacks knowledge of the danger as open and obvious, as a

matter of law, by merely watching the general operation of the

forklift. The open and obvious danger comes about only when Batts,

or one similarly situated, might actually see the forklift while it

travelled backwards bearing down upon the person, inasmuch as this

machine carried no automatic warning sounds or signals.

- 36 - --

Moreover, as I read the record, there exists little evidence

of actual lack of due care on the part of Batts. He neither saw

nor apprehended the danger as it bore down upon him. In these

circumstances, I do not believe the federal courts should, nor the

Mississippi courts would, necessarily bar Batts' recovery on the

basis of an open and obvious defect to a user. Accordingly, I

would reverse and remand this case for a new trial under corrected

instructions.29