REL:09/30/2014

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter . Readers are requested to notify the Reporter of Decisions , Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter . 

# SUPREME COURT O F ALA BAMA

SPECIAL TE RM, 2 014

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_____ _____ _____ _____ Yanma r Ame rica Corpo ratio n

v. RandyNichols Appea l from Mar ion C ircui t Cou rt

(CV-0 9-900 054)

BOLIN , Jus tice. Yanma r Ameri ca Corpo ratio n ("Yan mar Ameri ca") appea ls from a judgm ent enter ed in favor of Randy Nicho ls follo wing a trial by a jury of his claim s alleg ing a negli gent failu re to

warn. We rever se an d rem and.11302 14 Facts and Proce dural Hist ory I. Th e Acc ident In May 2005, Autre y Nicho ls purch ased a Yan m a r model 2210B D tract or f r om North side Motor s, LLC ("Nor thsid e"), in Hamil ton. The Yanma r tra ctor came equip ped w ith afron t-end loade r and a "bush hog" a t t a chmen t. The Yanma r tract or did 1 not h ave aroll over- prote ctionstru cture ("RO PS"). On M ay 1, 2008, Randy Nicho ls, the plain tiff and Autre y's broth er, used the Yanma r tract or to bush hog a neigh bor's prope rty. The p a rticu lar area of the prope rty Randy was to bush h o g w a s a fieldthat cont aineda hi ll, t he sl ope o f whi ch in creas ed as he moved towar d the cente r of the field . Randy did not "walk " the field to inspe ct the terra i n b e f o r e bush hoggi ng the field . Ra ndy t estif ied t hat h e was oper atingthe tract or in tall grass at "walk ing speed " when he glanc ed back at the bush hog to make sure it was opera ting prope rly. Randy state d that when he lo oked forwa rd it appe ared that the r ight front tire sudde nly " took a dip ," ca usingthe tract or to roll over . The

"'Bus h Hog' is the trade name of a large mower gener ally 1 drawn by a tr a c t o r. The term 'bush hog' is often used gener ally for such mower s and as a verb indic ating the use of such mower s." Ammon s v. Masse y-Fer guson , Inc., 663 So. 2d 961, 963 ( Ala. 1995) . 211302 14

right front tire of the tract or encou ntere d a sligh t " d r op off" on the side of the hill, which cause d the tract or to roll

over 360 degre es and come to a r e s t uprig ht on its tires . Randy was throw n f r o m the tract or. He state d that he

remembered the bush hog "comi ng over on me" and that he tried to roll out of the way but was unabl e to do so. Randy t e s t ified that he threw his arm up to prote ct his hea d a n d felt excru ciati ng pain. Randy suffe red sever e injur ies, inclu ding an amputat ed ri ght a rm, acrus hed h ip an d leg , and vario us ot her i njuri es. B e f o r e t h e a c c i d e n t , R a n d y h a d

more than 30 years ' exper ience opera ting tract o rs and other heavy equip ment. Randy had opera ted the subje ct Yanma r tract or appro ximat ely 15 to 20 times wi t h o ut incid ent befor e the accid ent. Randy testi fied that he had exper ience oper a t i ng tract ors with imple ments such as front -end loade rs, backh oes, bush hogs, "gra derpl ates, " "br eakin g plo ws," and " plant ers." Randy testi fied that he had opera ted tract ors both with and witho ut the ROP S a n d t hat he was comfo rtabl e opera ting a tract or that was not equip ped with the ROPS. Randy state d that he kn ew th at an y tra ctor had t he po tenti al to roll over and that, if a tract or that was not equ i p p e d with a ROPS

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rolle d over, the drive r could be serio usly injur ed or kille d. He furth er testi fied tha t h e knew how to opera te a tract or, that he wa s a " safe" trac tor o perat or, a nd th at he had never rolle d a t racto r ove r bef ore t he ac ciden t in this case. II. T he Gr ay-Ma rket Trac tor a nd Fa ctors Cont ribut ing t o the 2 Rollo ver The subje ct Yanma r tract or wa s manuf actur ed on March 5, 1979, by Yanma r Diese l Engin e Co., Ltd. ("Yan mar Japan "), at 3 its K inomo to pl ant i n Jap an. A t the time of i ts ma nufac ture, the tract or was equip ped with a rotar y tille r. The tract or was sold on March 29, 1979, to Kouno miya Yanma r, an autho r i z ed Yanma r deale r in Ja p a n . T he Yanma r tract or was "purp ose built " for prima ry use in the rice paddi es of Japan . The tract or was desig ned and manuf actur ed in accor dance with Japan ese i ndust ry an d gov ernme ntal stand ards in ex isten ce at "Gray marke t" has been defin ed as a "'mar ket in which the 2 selle r use s leg al bu t som etime s une thica l met hods to av oid a man u factu rer's distr ibuti on chain and there by sell (esp. impor ted g oods) at p rices lowe r tha n tho se en visio ned b y the manuf actur er.'" Rif e v. Hitac hi Co nstr. Mach . Co. , 363 S.C. 209, 217, 609 S . E .2d 565, 570 (S.C. Ct. App. 2005) (quot ing Black 's Law Dicti onary 989 (8th ed. 2004) ). "Gra y -mark et" produ cts inclu de produ cts that have been produ ced abroa d with autho rizat ion and payme nt and have been impor ted into unaut horiz ed ma rkets . Id . Yanma r Japan subse quent ly chang ed its name to Yanma r Co., 3 Ltd. 411302 14

the time. The origi nal opera tor's manua l for th e t racto r print ed by Yanma r Japan and the warni ng label s affix ed to the tract or we re al l wri tten in Ja panes e. B e f ore 1991, Yanma r Japan had manuf actur ed Yanma r bran d tract ors s pecif icall y fordist ribut ion i n the Unit ed St ates. Subse quent to i ts en try i nto t he Un ited State s mar ket i n the late 1970s , Yan mar J apan estab lishe d Yan mar Americ a in 1981. Yanma r Ame rica is a wholl y own ed su bsidi ary o f Yan mar J apan;

one of its f u nctio ns is to distr ibute parts for Yanma r tract ors autho rized for sale in the Unite d State s. I n 1991, Yanm a r Japan cease d manuf actur ing and distr ibuti ng Yanma r tract ors f or sa le inthe Unite d Sta tes m arket . Signi fican t desig n diffe rence s exist ed betwe en those Yanma r brand tract ors manuf actur ed for use in the Jap a nese marke t and those Yanma r brand tract ors manuf actur ed for use in the U nitedStat es ma rket. The trac tors manuf actur ed fo r the Japan ese m arket : (1) had relat ivelyslowtrav el sp eed, which

was condu cive t o r ice-p addy tilli ng; (2) had much highe r "lugs " on the t racto r tir es, w hich were speci ally suite d for

use in mudd y rice paddi es; (3) had a stand ard rotar y-til ler attac hment suita ble for tilli ng rice paddi es rathe r t h an a

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front -end loade r or a bush hog; and (4) had a four- speed "powe r take- off" to accomm o d a t e the varyi ng tille r speed s requi red in rice- pad dy tilli ng. The opera tor's manua ls and warni ng decal s f or those tract ors were print ed in Japan ese. Becau se of the signi fic a n t diffe rence s in the desig n and perfo rmanc e of the tract ors, the tract ors inten ded fo r the Japan ese marke t were never inten ded to be sold or used in the Unite d Sta tes m arket . Denni s Skoge n, Yanma r Ameri ca's engin eerin g and accid entr e const ructi on exper t witne ss, testi fied that the facto rs contr ibuti ng to the rollo ver here inclu ded opera ting the tract or on the side slope ; encou nteri ng the "drop off" on the

s i de slope ; and the confi gurat ion of the tract or, wh i c h inclu ded opera ting the tract or with the front -end loade r in the raise d posit ion, a lack of balla st in the tires , and the bush hog on the back. Skoge n testi fied that balla st in the tires would have decre ased the likel ihood of a r o llove r becau se it would have lower ed the cente r of gravi ty of the tract or. Skoge n als o sta ted t hat o perat ing t he tr actorwith the front -end loade r in the lower ed posit ion would also lower the cente r of gravi ty. Skoge n also testi fied that a prope rly

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attac hed ROPS would have "mo r e likel y as not" preve nted the tract or from rolli ng past 90 degre es, but, given the slope of the hill on which the rollo ver occur red, it was possi ble that the ROPS would not have preve nted the tract or from ro l l i ng past 90 degre es. Howev er, Skoge n also state d that the tract or

was not unrea sonab ly dange rous becau se it was not equ i pped with a ROPS. Rathe r, Skoge n testi fied that the tract or shoul d

n o t h a v e been impor ted and sold in the Unite d State s in the first plac e bec ause it wa s des ignedand manuf actur ed fo r use in the rice paddi es of Japan , and not for use in th e U n ited State s equip ped with a front -end loade r and a bush hog. Skoge n tes tifie d as follo ws:

"Q. Well, wh a t ... made a diffe rence , in your o p inion , about this tract or rolli ng over and thi s injur y to Randy... occur ring? "A. Well, we talke d about that befor e. It's the slope . It's the drop- off itsel f. We're talki ng about what the tract or is, what t h e t racto r –- its c o n f igura tion. It has tires on it, as an examp le , for use in rice paddi es. It's not the type of tire t h a t would we would norma lly see for use on o t h e r tract ors in a simil ar situa tion .... [T]hi s tract or shoul dn't have been impor ted in the first place , so there would n't have been a rollo ver wit h t his tract or in the secon d place with or witho ut a ROPS. "Q. Okay. What diffe rence s that exist ed in this trac t or that you have liste d, as you say it was

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desig ned for use i n J apan, made a diffe rence in causi ng th is ro llove r or the i njuri es to Rand y? "A. Well, s tart off with a tille r on the back. Now, if you'r e going to bring the tractor into this count ry, it would have a tille r o n the back. It w o u l dn't have a mower on the back. You would n't b e using it for ... mowing. It's used for tilli ng rice paddi es. You would n't have a fr o n t-end loade r b e cause , again , the purpo se is to have a tille r o n the back. The tille r would be lower in its confi gurat ion. It would n't h a ve been used in this fieldin the first place becau se this is not a rice paddy . "Q. A ll ri ght. What else? "A. Again , I talke d about befor e a bout the confi gurat ion with the tires . They have highe r tread on them, which can in a sense raise the cente r of gravi ty versu s a tra c t o r that has turf tires or tires that don' t hav e the rice padd y typ e tir es. "Q. And other than the fact that th e t racto r would n't be here, you know, if they hadn' t impor ted it f o r use in the Unite d State s, I want to know speci fical ly anyth ing besid es the tille r and the fact it would n't have a front -end l o a der, in your opini on, that are the featu res you say were made for Japan that you think were speci fical ly causa tive in contr ibuti ng to this roll over? "A. It's the conf i g urati on of the entir e piece of equip ment. It's the fact that it had a mower on the back and not the tiller. Again , it's a tille r. The tract or used in Japan didn' t h ave a front -end loade r. Now we come to the confi gurat ion of the tract or, the size of the tract or, the width o f t h e tract or, the lengt h of the tract or, t h e weigh t of the tract or. It's the tract or that rolls over. You can't say that there 's one part of the tract or that cause d it to roll over in the absen ce of anoth er 811302 14

par t . It's the confi gurat ion of the tract or given this slope , which , a gain, I talke d about befor e is steep , and then given the drop- off or ledge as I descr ibed it be fore. " Dr. Thoma s Carpe nter, an agric ultur al engin eer and safet y exper t, te stifi ed th at th e pri mary cause of t he ro llove r was the lack of stabi lity of the tract or, cause d by its narro w wheel spaci ng, and the front -end loade r being attac hed to the tract or. Dr. Carpe nter state d that the Yanm a r tract or in quest ion had a tippi ng angle of 37.4 degre es and a tread width of 40 inch es, w herea s sim ilarl y siz ed Am erica n-mad e tra ctors manuf actur ed inthe same year as th e Yan mar t racto r at issue had tippi ng angle s in exces s of 45 degre es an d t r ead width s that varie d betwe en 51 inche s and 75 inch e s . Dr. Carpe nter opine d that the relat ive insta bilit y of the Yanma r tr a ctor basedon t read widthand tippi ng an gle, when compa red t o the simil arly sized Ameri can-m a de tract ors, "resu lted in it overt urnin g" un der t he co nditi ons i n whi ch it was beingused

on the day of Randy 's accid ent. Dr. Ca r p enter furth er test i f i ed that the addit ion of the front -end loade r "defi nitel y incre ased the i nstab ility " of the tract or by movin g the cente r of gravi ty of t h e tract or highe r and forwa rd. D r. Ca rpent er st ated that, base d on what he kn ew of

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this tract or's stabi lity cha r acter istic s, he would not have used it to bush hog the prope rty Randy was bush hoggi ng. Dr. Carpe nter testi fied that a ROPS would likel y have preve nted the t racto r fro m rol ling more than 90 de grees but that, even i f t he tract or had been equip ped with a ROPS, he woul d n o t have used it to bushhog the p roper ty.

III. The P urcha se ofthe Gray- Marke t Tra ctor Arnol d T r imm owned Artec Tract or and Equip ment, Inc. ("Art ec"), from 1994 until 2006. In the late 1990s Trimm saw

an adver tisem ent in a magaz ine for used J a p a n e se farm tract ors. Trimm con tacte d the supp liers of t he tr actor s and event ually trave led to J a p an to meet with the suppl iers. Trimm testi fied that he was told by the suppl iers that the tract ors were "good used farm tract ors." Trimm state d that he

was not told that the tract ors had been speci fical ly desig ned

a n d m a nufac tured for use in Japan and not for use in th e Unite d Sta tes. Trimm tes tifie d tha t Art ec importe d andsold the u sed J apane se fa rm tr actor s fro m 199 8 unt il 20 05. Artec sold parts for the used " g ray-m arket " Yanma r tract ors it

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impor ted. Artec becam e an autho rized Yanma r Ameri ca deale r in July 2005. 4 In 2005, some 26 years after the subje ct Y a n m a r tract or Randy was opera ting was manuf actur ed and first sold prima rily for use in the rice paddi es of Japan , A r t ec purch ased the tract or fr om a gray- marke t sup plierand impor ted t he tr actor i n t o the Unite d State s. On April 28, 2005, Artec sol d t h e Yanma r tract or to North side, which , in turn, sold the tract or to Au trey Nicho ls. After purch asi ng the tract or, Autre y purch ased an Engl i s h

- l angua ge versi on of the opera tor's manua l for the tract or. T he opera tor's manua l expla ined that the Yanma r

m o del 2210B D tract or was a gray- marke t tract or that w a s origi nally manuf actur ed for sale in J a p a n and that was subse quent ly purch ased used by a deale r or broke r and impor ted i n t o t h e Unite d State s. The manua l expla ined certa in diffe rence s betwe en the gray- marke t tract ors and the Yanma r brand tract ors manuf actur ed for u s e in the Unite d State s,

The 2005 deale r agree ment appoi nted Artec as an 4 autho rized deale r of certa in Yanma r brand excav ato r s, wheel loade rs, crawl e r carri ers, and compa ct back- hoe loade rs. Artec did not b ecome an a uthor ized deale r of Yanma r tra ctors becau se Yanma r had cease d distr ibuti ng Yanma r tract ors to the Unite d Sta tes m arket in 1 991. 1111302 14

inclu ding the fact that Japan does not requi re its tract ors to be equip ped with a ROPS, altho ugh the tract ors manuf actur ed for use in the Unite d State s are requi red to be equip ped with

a ROPS. The manua l also conta ined infor matio n and warni ngs on the risk of r ollov ers, parti cular ly while opera ting the tract or on slope s; stabi lity issue s and the need for balla sts when opera ting the tract or with a f r o n t -end loade r; the impor tance of a ROPS; and the need to inspe ct u n f a m i l i ar terra in befor e opera ting the tract or. Autre y did not provi de Randy with the manua l and did not discu ss with him any infor matio n conta ined in the manua l. Addit ional ly, the front

end loade r and bush hog attac hment that accompanie d the Yanma r tract or when it was purch ased also came with opera tor manua ls, and each was affix ed with warni ng decal s . T h o se warni ng decal s wer e pri nted in En glishand warne d of the p ossib ility of ro llove r andreco mmend ed us ing aROPS at a ll ti mes. When asked wheth er he u suall y read all warni ng label s befor e opera ting a tract or or other equip ment, Randy state d that he "prob ably glanc ed at them, but ... felt like [he] was

a safe opera tor, and [he] j u s t overl ooked them. " Randy testi fi e d t h a t h e did not need a warni ng with regar d to the

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Yanma r tra ctor in th is ca se. He st ated that when he gl anced

a t t he label s on the tract or he was not conce rned tha t t h e label s were in Japan ese. Randy never saw the opera tor's manua l for the tract or, t h e f r o n t-end loade r, or the bush hog. He testi fied that he did not need to read an opera tor's manua l to know how to opera te a tract or a n d t h e attac hed front -end loade r andbus h hog . He stat ed th at re adingthe opera tor's

manua ls for eithe r piece of equip ment did not inter es t h im becau se he h a d b ecome so famil iar with opera ting heavy equip ment that he did not need to read the manua ls in order to know how t o ope rate the t racto r wit h the atta chmen ts. IV. Y anmarAmer ica's Effo rts t o War n Aga inst the G ray-M arket Tract ors Ryan Pott, the di r e c t or of legal affai rs for Yanma r Ameri ca, testi fied that Yanma r Ameri ca first disco ver e d in 1990 that gray- marke t Yanma r tract ors were being impor ted into the Unite d State s. Pott testi fied as to vario us docu m e n ts relat ing t o the gray -mark et tr actor s. InDece mber 1991, Gary Bilek , an emplo yee of Yanma r Ameri ca, notif ied Yanma r Japan by lette r of cer tain "prob lems" Yanma r Ameri ca was havin g with the gray- marke t tract ors, speci fical ly notin g that the purch asers of the gray- marke t tract ors were being told that

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they could purch ase parts for the tract ors fr o m Y a nmar Ameri ca. Bilek state d in his lette r th a t " we've been instr ucted not to help these custo mers procu re spare p arts becau se they come into the Unite d State s witho ut any rollo ver prote ction ." Bilek then asked "can anyth ing be done in Japan to st op th e una uthor ized sale of th ese u nits? " In 1992, Yanma r Ameri ca began dis s e m i n ating in vario us trade publi catio ns safet y notic es conce rning the safet y issue s

assoc iatedwiththe gray- marke t tra ctors . OnJuly24, 1992, Yanma r Tract or Servi ce U.S.A ., Inc., issue d a stat e m ent to 5 all Y anmartrac tor p arts and s ervic e dea lers, info rmingthem that the gray- marke t tract o r s were not desig ned for d i strib ution in the Unite d State s, that they were be i n g impor ted witho ut the appro val of Yanma r J a pan, and that, there fore, a parts - a n d servi ce-su pport netwo rk was not avail able for the gray- marke t tra c t ors. Yanma r Ameri ca

Yanma r Tra ctor Servi ce U.S.A ., Inc. ("Yan mar Tract or 5 Servi ce"), was a forme r distr ibuto r of autho rized Y anmar tract ors in the Unite d State s. Subse quent to Yanma r Japa n's cessa tion of the distr ibuti on of Yanma r tract ors to the Unite d State s marke t in 1991, Yanma r Tract or Servi ce becam e a servi ce and p arts provi der f or Ya nmar tract ors i n the Unit ed St ates. It ap pears fromthe recor d tha t at some point Yanm ar Tr actor Servi ce merge d with Yanma r Ameri ca, and Yanma r Ameri ca becam e the servi ce and parts provi der for Yanma r tr actor s inten ded for t he Un ited State s mar ket. 1411302 14

reque sted that the deale rs infor m those consi derin g purch asing

a gray- marke t tract or as t o the lack of avail able parts and servi ce suppo rt and t o i nform them that most all the safet y decal s were print ed in Japan ese. Yanma r Ameri ca also noted in this state me n t that "the long term respo nse to the probl ems creat ed by Gray Marke t Tract ors will take some time and caref ul co nside ratio n." In Augus t 1992, Yanma r Japan condu cted a "Stud y Meeti ng

on Polic y to Cope with Sales in USA of Used Tract ors that were Manuf actur ed for Domes tic Marke t." The purpo se of the meeti ng

was to discu ss the conce rns of Yanma r Japan m a n a gemen t regar ding poten tial liabi lity arisi ng from the sales in the Unite d State s of the gray- marke t tract ors. It was deter mined at this meeti ng that Yanma r Japan would honor the reque sts for parts for the gray- marke t tract ors while it con t i n ued to

asses s the issue of the gray- marke t tract ors. Pott testi fied that there was an in terna l deb ate w ithinYanm ar Ja pan a t the time as to wheth er it shoul d suppo rt the gray- marke t tract ors with parts and servi ce. In May 1995, John Sonne nta g , a manag er in the parts and servi ce depar tment at Yanma r Ameri ca, repor ted by int e r n al

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memor andum addre ssed t o Koju Saski , a manag er with Yanma r Japan , regar ding a recen t meeti ng he had atten ded in Japan in whichit h ad be en "i ndica ted [ that] all parts are avail able, regar dless of statu s." Sonne ntag also noted in his memor andum that the "abov e infor matio n contr adict s the posit ion taken by Gary Bil ek's lette r." Pott state d that this corre spond ence indic ated that the gray- marke t tract ors would be supp o r t ed with parts and servi ce. On Janua ry 18, 2000, Yanma r Ameri ca poste d on its Web site an "Impo rtant Safet y Notic e" regar ding the gra y -mark et tract ors, which was inten ded for the parts a n d s ervic e deale rs, for poten tial purch asers of gray- marke t tract ors, and for owner s of gray- ma r k e t tract ors. The safet y notic e expla ined what a gray- marke t tract o r was and also expla ined the impor tant desig n and opera ting diffe rence s betwe en a graym a r k e t tract or and those Yanma r tract ors speci fical ly manuf actur ed for use in the Unite d State s. The safet y notic e did n ot co ntainany speci fic r efere nce t o dif feren ces i n the stabi lity o f g ray-m arket tract ors and those tract ors manuf actur ed for use in the Unite d State s, nor did the notic e

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conta in a speci fic wa r n ing regar ding the use of front -end loade rs orbushhogs withthe gray- marke t tra ctors . In 200 2, Yanma r Ameri ca imple mente d a compu ter parts

block ing progr am to comba t the sa l e of Yanma r gray- marke t tract ors in the Unite d State s. The parts -bloc king progr am was desig ned t o sto p the sale of r eplac ement part s forthe graymarke t tract ors. The progr am req u i r e d a parts deale r purch asing parts from Yanma r Ameri ca to speci fy both the model numbe r and the seria l numbe r of the tract or for which the part was b eing purch ased. Yanm ar Am ericawoul d be able to di scern from a compu ter datab ase wheth er the part was being purch ased for a gray- marke t tract or based on the m odel and seria l numbe rs, a nd it coul d the n blo ck th e sal e of that part. On July 2 0 , 2005, Yanma r Ameri ca issue d anoth er "Impo rtant Safet y No t i c e " that was poste d to its Web site regar ding "Gray Marke t Trac t o r s , Excav ators , Wheel Loade rs, and C arrie rs." This safe ty no tice was s ubsta ntial ly si milar to the safet y notic e issue d in Janua ry 2000, excep t that this notic e inclu ded excav ators , wheel loade rs, and carri ers, in addit ion to the gray- marke t tra c t o rs. The safet y notic e expla in ed what a gray- marke t produ ct was and also expla ined

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the i mport ant d esignand opera ting diffe rence s bet ween graymarke t produ cts and those Yanma r produ cts speci fical ly manuf actur ed fo r use in t he Un ited State s. This parti cular safet y notic e also expla ined that , a s the resul t of those safet y issue s, Yanma r Japan would not s u p p ort gray- marke t tract ors, excav ators , wheel loade rs, and carri ers with repla cemen t parts . Again , this safet y notic e did not conta in any speci fic refer ence to diffe rence s in the stab i l ity of gray- marke t tract ors and tract ors manuf actur ed for use in the Unite d Sta tes, nor d id th e not ice c ontai n a s pecif ic wa rning regar ding the u se offron t-endload ers o r bus h hog s wit h the gray- marke t tra ctors . Pot t t e stifi ed that Yanma r Japan and Yanma r Ameri ca becam e conce rned that equip ment dea l e r s selli ng gray- marke t tract ors, owner s of g ray-m arket tract ors, and poten tial purch asers of gray- marke t tract ors may not have been aware of the impor tant diffe rence s betwe en the gray- marke t tract ors and those Yanma r tract ors manuf actur ed and in t e nded for distr ibuti on in the Unite d State s marke t. Pott testi fied that the need for warni ngs arose out of the way the gray marke t had devel oped, as w ell a s Yan mar J apan' s dec isionto s uppor t the

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gray- marke t tract ors with genui ne Yanma r parts durin g a perio d of ti me inthe 1990s , whi ch, h e sta ted, creat ed co nfusi on as to wheth er there were signi fi c a n t diffe rence s betwe en the gray- marke t trac t ors and those Yanma r tract ors inten ded for

use in the Unite d State s marke t. Pott testi fied that he there fore direc ted i n 200 8 tha t the safe ty no tices be m ailed to all autho rized Yanma r deale rs o f p a rts and servi ce, const ructi on, and indus trial equip ment. Artec did not recei ve the safet y notic e until 2010, two years after the acc i d e nt t h a t is the basis of this actio n. Pott expla ined tha t t h e safet y notic es were not all maile d out at the s a m e t i m e but that they were done over time. Yanma r Ameri ca has filed trade mark- infri ngeme nt lawsu its seeki ng t o s t op the impor tatio n and sale of gray- marke t tract ors th r ough the Inter net site "eBay ." In Janua ry 2004, 6 Yanma r Ame rica sent a let ter t o HDI Trac tor, a non autho rized Yanma r tract or deale r, threa tenin g legal actio n if HDI Tract or did not cease impor ting and selli ng gray- marke t Y a n mar tract ors. Yanm ar Ameri ca furth er deman ded that HDI Tract or

The Inter net site eBay is a consu mer-t o-con sumer onlin e 6 aucti on and shopp ing Web site i n w hich indiv idual s and busin esses buy and s ell awide vari ety o f goo ds wo rldwi de. 1911302 14

conta ct its custo mers who had purch ased gray- marke t Y a n m ar tract ors a nd in form them that the t racto rs we re no t int ended for use in the Unite d S t a t e s , that they may not be equip ped with prope r safet y featu res for use in the Unite d State s, and that HDI T racto r wou ld re fund the f ull p urcha se pr ice o f the tract or. Yanma r and HDI Tract or event uall y enter ed into a settl ement agree ment in which HDI Tract o r agree d to send copie s of the "Impo rtant Safet y Notic e" to its custo mers that had p urcha sed agray -mark et tr actor . In Septe mber 2005, Yanma r Ameri ca sent n o t ices to its autho rized parts and servi ce deale rs prohi bitin g those deale rs from selli ng gray- marke t tract ors and from provi ding parts and servi ce for gray- marke t tract ors. The autho rized deale rs were requi red to ackno wledg e in writi ng t hat they would not sell gray- marke t produ cts, or they riske d losin g their statu s as an autho rized Yanma r deale r . In sever al insta nces autho rized parts and servi ce deale rs conti nued to parti cipat e in graymarke t act ivity ; tho se de alers ' aut horiz ed de aler agree ments

were termi nated by Yanma r Ameri ca. It appea rs from the recor d that the no tices prohi bitin g the sale of Yanma r gray- marke t tract or s a n d the suppl y of parts and servi ces for the gray2011302 14

marke t tract ors were sent only to autho rized Yanma r parts and servi ce deale rs and not to aut h o r i zed deale rs of Yanma r equip ment such as Ar tec. As menti oned above , Artec becam e an autho rized deale r of Yanma r equ ipmen t in July 2005. Pri or to Arte c's b ecomi ng an autho rizedequi pment deal er inJuly2005 , Yan mar Americ a did not inqui re wheth er, or confi rm that, Artec was selli ng graymarke t tra ctors and parts . Ar tec d id no t rec eive any n otice from Yanma r Ameri ca regar ding gray- marke t tract ors until 2010. Yanma r event ually disco vered that Artec had conti nued to parti cipat e in gray- marke t activ ity and termi nated its deale r agree ment in April 2013, appro ximat ely three weeks befor e the start of t he tr ial i n thi s cas e. On Octob er 1, 2009, Randy sued Y a n m ar Japan , Yanma r Ameri ca, Artec , and N o r t h side, asser ting claim s under the Alaba ma Ex tende d Man ufact urer' s Lia bilit y Doc trine ("AE MLD") and aclai m all egingbrea ch ofan i mplie d war ranty . Co unt I of the compl aint alleg ed that the tract or was unrea so n ably dange rous becau se it was desig ned, manuf actur ed, distr ibute d, and sold wi t h o u t a ROPS. Count II of the compl aint alleg ed the defen dants ' negli gence in desig ning, manuf actur ing,

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distr ibuti ng, and s e l l ing the tract or witho ut a ROPS as stand ard equip ment. Coun t III of the compl aint alleg ed that the defen dants breac hed the impli ed warra nty of fitne ss for a parti cular purpo se in manuf actur ing, distr ibuti ng, and selli ng the t racto r wit hout a ROP S as stand ard e quipm ent. On November 10, 2011, Yanma r Japan moved the trial court , pursu ant to Rule 12(b) (2), Ala. R. Civ. P., to dismi ss the compl aint again st it for lack of in perso nam juris dicti on. On Febru ary 28, 2012, Randy amend ed his compl aint to alleg e that Yanma r Jap an an d Yan mar Americ a wer e: "a). Reckl ess or n e g ligen t in manuf actur ing and selli ng Yanma r parts whic h [they ] knew were being order ed for use in Yanma r gray marke t tract o r s in the Unite d S t a tes, for which tract ors there would not have been a viabl e marke t in the U n i t ed State s witho ut su ch pa rts; "b). Reckl ess or negli gent in issui ng warni ngs that Yanma r gray marke t tract ors could not be retro fitte d with ROPS; "c). Reckl ess or negli g e n t in perfo rming deale r audit s of Artec befor e an d a f t e r it becam e an autho rized Yanma r deale r, which audit s if done in a reaso nable manne r would have revea led that Artec was and had been for many y e ars a volum e selle r of Y a n mar gray marke t tract ors, and which would have resul ted in gray marke t t r actor warni ngs being issue d to Artec and prohi bitio ns bein g impos ed on Artec again st selli ng Yanma r gray marke t tract ors;

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"d). Reckl ess or negli gent in faili ng to warn their own autho rized deale r Artec that Yanma r gray marke t tract ors were not manuf actur ed in a manne r which met U.S. safet y stand ards, and were not manuf actur ed for sale in the U . S . as well as in Japan , in the same manne r which it under took to warn other autho rized Yanma r deale rs in Alaba ma prior to the sale by Artec of the subje ct tract or and prior t o Randy Nicho ls'[s ] inj uries ; "e). Negli gen t in not instr uctin g their autho rized deale r Artec to provi de to any purch asers and owner s of Yanma r gray marke t tract ors which Artec had sold Y a n mar's 'Impo rtant Safet y Notic e,' and in no t i nstru cting Artec to advis e such purch asers a n d owner s that suita ble RO P S were avail able for retro fit on their Yanma r tract ors and that such tract ors were n o t r eason ably safe for opera tion unles s ROP S wer e ins talle d on the t racto rs. "f). Negli gent in not p r ohibi ting their autho rized deale rs in Alaba ma from selli ng Yanma r gray marke t tract ors, while under takin g to prohi bit Yanma r autho rized d e alers in Alaba ma from selli ng parts for u se inYanm ar gr ay ma rket tract ors." On March 23, 2012, the trial court condu cted a heari ng on Yanma r Japan 's motio n to dismi ss the compl aint again st it for lack of in perso nam juri s d i c tion. On April 10, 2012, the trial court enter ed an order allow ing the parti es to engag e in furth er disco very and suppl ement al brief ing addre ssing Randy 's amend ed compl aint. Follo wing consi derat ion of the par t i e s' brief s and argum ents, the trial court , on Octob er 5, 2 0 1 2,

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enter ed an order grant ing Yanma r Japan 's motio n to dismi ss for lack of inpers onam juris dicti on. On Febru ary 27, 2013, Randy moved to volun taril y dismi ss the claim s again st North side. Randy enter ed into a pro tanto settl ement with Artec to settl e the c l a i m s again st it for $550, 000 . O n Ap r il 8, 2013, Randy moved the trial court to dismi ss Artec becau se of the pro tanto settl ement the parti es had reach ed. On April 10, 2013, the trial court enter ed an order grant ing Randy 's motio n for a pro tanto dismi ssal of the

c l a i ms again st Artec . On April 29, 2013, the trial court enter ed an order grant ing Ra n d y's motio n to volun taril y dismi ss North side, leavi ng only Yanma r Ameri ca as a defen dant. On March 18, 2013, Yanma r Ameri ca moved the trial court for a

summa ry judgm ent a rguin g, among other thing s, that it was entit led to a summa ry judgm ent on the claim that it negli gentl y faile d to warn Artec that Yanma r gray- marke t tract ors did not meet Unite d State s safet y stand ards. On April 24, 2013, the trial court enter e d a n order denyi ng Yanma r Ameri ca's motio n fora su mmaryjudgment. The case proce eded to trial a g ainst Yanma r Ameri ca on April 29, 2013. At the close of Randy 's evi d e n c e, Yanma r

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Ameri ca mo ved t he tr ial c ourt for aprev erdic t jud gment as a matte r of law ( "JML" ), wh ich t he tr ial c ourt denie d. Y anmar Ameri ca re newedits motio n fora pr everd ict JML at the close of all the evide nce, which the trial court also denie d. On May 3 , 2 013, the jury retur ned a verdi ct in favor of Rand y a n d again st Yanma r Ameri ca award ing Randy $900, 000 in dam a g e s. The trial court reduc ed the damag es award by the amoun t of the $ 550,0 00 pro tanto settl ement with Artec and ente r e d a judgm ent o f $35 0,000 in f avor of Ra ndy. On May 31, 2013, Yanma r Ameri ca moved the trial court for

a postv erdic t JML or, in the alter nativ e, for a new trial . On Augus t 14, 2013 , the part ies f iled a joi nt mo tion conse nting to exten d the time for the trial court 's consi derat io n a nd rulin g on Yanma r Ameri ca's postv erd ict motio n. Follo wing a heari ng, the trial c o u r t , on Octob er 15, 2013, enter ed an order denyi ng Yanma r Ame r i ca's postv erdic t motio n. Yanma r Ameri ca ti mely appea ls. Stand ard o f Rev iew The stand ard of revie w for a rulin g on a motio n for a JML is as foll ows: "'Whe n reviewin g a rulin g on a motion

f o r a JML, this Court uses the sam e 2511302 14 stand ard the trial court used initi ally in decid ing wheth er to grant or deny th e motio n for a JML. Palm Harbo r Homes , Inc. v. Crawf ord, 689 So . 2 d 3 (Ala. 1997) . Regar ding quest ions of fact, the ultim ate quest ion is wheth er the nonmo vant has prese nted suffi cient evide nce to allow the case to be submi tted to the j u r y for a factu al resol ution . Carte r v. Hende rson, 598 So. 2d 1350 (Ala. 1992) . The nonmo vant must have prese nted subst antia l evide nce in order to withs tand a motio n for a JML. See § 12–21 –12, Ala. Code 1975; We s t v . Found ers Life Assur ance Co. of Flori da, 547 So. 2d 8 70, 871 (Ala. 1989) . A revie wing court must deter mine wheth er the party who bears t h e burde n of proof has produ ced subst antia l evide nc e creat ing a factu al dispu te requi ring resol ution by the jury. Carte r, 598 So. 2d at 1353. In revie wing a rulin g on a motio n for a JML, this Court views the evide nce in the light most favor able to the nonmo vant and enter tains such reaso nable infer ences as the jury would have been free to draw. Id. Regar ding a quest ion of law, howev e r , this Court indul ges no presu mptio n of corre ctnes s as to the trial court 's rulin g. Ricwi l, Inc. v. S.L. Pappa s & Co., 599 So. 2d 1126 (Ala. 1992) .' "Wadd ell & Reed, Inc. v. Unite d Inves tors Life Ins. Co., 875 S o. 2d1143 , 115 2 (Al a. 20 03)." CSX Trans p., Inc. v. Mille r, 46 So. 3d 434, 450-5 1 (Ala. 2010) . Discu ssion

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Altho ugh Randy asser ted vario us theor ies of rec o v e ry again st Yanma r Ameri ca, t h e case was tried on a theor y that Yanma r Ameri ca volun taril y assum ed a duty to warn Randy of the safet y issue s r elati ve to opera ting a Yanma r gray- marke t tract or byvolu ntari ly un derta king activ ities to w arn Y anmar deale rs, as well as the owner s and poten tial purch ase r s of Yanma r gra y-mar ket t racto rs, o f the safe ty is sues assoc iated with opera ting the Yanma r gray- marke t tract ors and that Yanma r Ameri ca th en ne glige ntly perfo rmed that duty to wa rn.

I. Vo lunta ry As sumpt ion o f the Dutyto W arn Initi ally, we note that Y a n m ar Ameri ca was not the suppl ier or manuf actur er of the Yanma r gray- marke t tr a c t or invol ved in this case; there fore, it initi ally owed no duty to

warn the expec te d u s e rs of the gray- marke t tract or of the safet y issue s relat ive to its use. See Ex parte Chevr on Chem. C o . , 7 20 So. 2d 922 (Ala. 1998) . Howev er, "[i]t is wel l settl ed un der A labam a lawthat one who u ndert akes to pe rform a dut y he is no t oth erwis e req uiredto p erfor m is there after charg ed with t h e d uty of actin g with due care. " King v. N a t i onal Spa & Pool Inst. , Inc., 570 So. 2d 612, 614 ( A l a . 1990) . See also Unite d State s Fid. & Guar. Co. v. Jones , 356

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So. 2 d 596 , 598 (Ala . 197 7)("T he la w, si mply state d, is that

one w ho vo lunte ers t o act , tho ugh u nder no du ty to do s o, is there afterchar ged w ith t he du ty ofacti ng wi th du e car e."), and Firem an's Fu n d Americ an Ins. Co. v. Colem an, 394 So. 2d 334, 349 (Ala. 1980) (Jone s, J., concu rring in the resul t and stati ng th at "[ t]he rule is we ll es tabli shed that commo n law liabi lity to third parti es can aris e f r om the negli gent perfo rmanc e of even a vol untar y und ertak ing") . The trial court concl uded as a matte r of law that Yanma r Am e r i ca volun taril y under took a duty to warn Randy of the safe t y c o ncern s assoc iated with the use of a Yanma r graymarke t tract or. Yanma r Ameri ca ackno wledg ed at trial that it volun taril y u n d e r took a duty to warn; howev er, it did not belie ve that that duty to warn exten ded t o R a n dy. Yanma r Ameri ca ar gues on ap peal that, by i ssuin g the safe ty no tices and under takin g activ ities such as the parts -bloc king progr am in order to imped e the s a l e of gray- marke t tract ors, it did not v olunt arilyassu me a duty to wa rn "e very poten tial user" of the dange rs assoc iated with the use of a gray- marke t tract or.

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The evide nce indic ates that Yanma r Ameri ca becam e

conce rned that Yanma r eq u i p m ent deale rs selli ng gray- marke t tract ors, owner s of gray- marke t tract ors, and poten tial purch asers of g r a y -mark et tract ors were not aware of the impor tant diffe rence s betwe en the gray- marke t tract or s a nd those Yanma r tract ors manuf actur ed and inten ded for distr ibuti on inthe Unite d Sta tes. Pott state d tha t the need f o r warni ngs arose out of the way the gray marke t had d e velop ed in the Unite d State s, as well as Yanma r Jap a n ' s d e c i s ion to suppo rt the gray- marke t tract ors with genui ne Yanma r par ts du ring a per iod i n the 1990 s, wh ich, he st ated, creat e d c onfus ion as to wheth er there were signi fican t diffe rence s betwe en the gray- marke t tract ors and those Yanma r tract ors inten ded for use in the Unite d State s. Thus, Yanma r Ameri ca began disse minat ing safet y notic es for the purpo se of warni ng Yanma r deale rs, own e rs of gray- marke t tract ors, and poten tial purch asers of gray- marke t tract ors of the s a f e ty

co ncern s assoc iated with opera ting a Yanma r gray- marke t tract or. This campa ign to warn Yanma r deale rs, owner s of graymarke t tra ctors , andpote ntial purc haser s cul minat ed in2008 with a mass maili ng to all autho rized deale rs of Yanma r parts

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and servi ce and const ructi on and indus trial equip ment. Artec , the impor ter and party respo nsibl e for putti ng the gray- marke t tract or at issue into the strea m of comme rc e , w a s an autho rized equip ment deale r of Yanma r Ameri ca at the t ime. Pott testi fied that the p urpos e of the s afetynoti ces w as to preve nt injur y and death to the owner s and poten tial purch asers of t he Ya nmar gray- marke t tra ctors . In addi t i on to issui ng safet y warni ngs regar ding the gray- marke t tract ors , Y a nmar Ameri ca engag ed in other activ ities , such as the parts -bloc king progr am, in order to impe d e t he sale of the gray- marke t tract ors. Thus, it is clear from the recor d, as well as from Yanm a r Americ a's own ackno wledgment at trial , that it volun taril y assum ed a duty to

warn of the safet y hazar ds assoc iated with opera ting a Yanma r gray- marke t tra ctor. As for wheth er the duty to warn under taken b y Yanma r Ameri ca exten ds to Randy , we note that "'[t] he ultim ate test 7 of duty to use [due] care is found in the fores eeabi lity that

We reitera te that Yanma r Ameri ca conce ded on the recor d 7 that it indee d had assum ed a duty t o w a r n . Pott testi fied that the warni ngs w e r e inten ded for owner s and poten tial purch asers of the gray- marke t tract ors and that the purpo se of the w arnin gs wa s to preve nt in jury and/o r dea th. 3011302 14

harm may resul t if care is not exerc ised. '" King, 570 So. 2d at 615 (quot ing Bush v. Alaba ma Power Co., 457 So. 2d 350, 353 (Ala. 1984 )). A s dis cusse d abo ve, Y anmarAmer ica u ndert ook a duty to issue safet y warni n g s t o owner s and poten tial purch asers of Yanma r gray- marke t tract ors in order to preve nt injur y and death r e s u l ting from the opera tion of those tract ors. There fore, the duty to warn that Ya n m ar Ameri ca volun taril y under took would apply to fores eeabl e owne r s or opera tors of the gray- marke t tract or Autre y purch ased. Obvio usly, it was fores eeabl e to Yanma r Ameri ca that Autre y,

as a n o w ner of a Yanma r gray- marke t tract or, neede d to be

warne d of the safet y hazar ds assoc iated with the opera tion of

a gray- marke t tract or or risk Autre y's being injur ed or kille d while opera ting the tract or. Moreo ve r , it was just as fores eeabl e that someo ne other than Autre y -- in this c a se Randy-- m ight opera te th e tra ctor and w ould also be inneed of a warni ng via Autre y regar ding the hazar ds assoc iated with opera ting the tract or. Thus, we concl ude that the duty to

warn of poten tial hazar ds assoc iated with opera ting the graymarke t tract or exten ded to Randy and that the trial court did

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not err as a matte r of law in exten ding the duty to warn to him. II. B reachof t he Du ty to Warn Randy claim s that Yanma r Ameri ca breac hed its volun taril y under taken duty to warn becau se: (1) Yanma r Ameri ca's warni ngs

were insuf ficie nt to warnof t he sa fety hazar d tha t act ually

cause d the gray- marke t tract or to overt urn, w h i ch was the prope nsity of the tract or to roll over under certa in condi tions becau se of its relat ive insta bilit y owing to its

narro w wheel spaci ng and weigh t confi gurat ion or distr ibuti on, coupl ed with tires with highe r tread patte rns that raise d the cente r of gravi ty of th e t r a c t or, and (2) becau se Yanma r Ameri ca had faile d to ensur e that the safet y warni ngs w e re disse minat ed insucha ma nner that they wouldactu ally reach the p otent ial p urcha sers and u sers of th e Yan mar g ray-m arket tract ors. As this Court noted in Beasl ey v. MacDo nald Engin eerin g Co., 287 Ala. 189, 249 So. 2d 844 (1971 ), liab i l i ty for the 8 breac h of a d u ty volun taril y under taken is gover ned by Resta temen t (Se cond) of T orts § 324 A (19 65), whichstat es:

W e h ave not been asked to overr ule casel aw adopt in g 8 Resta temen t (Se cond) of T orts § 324 A (19 65). 3211302 14 "'Lia bilit y to third perso n for negli gent

perfo rmanc e of under takin g. One who under takes , gratu itous ly or for consi derat ion, to rende r servi ces to anoth er which he shoul d rec o g n i ze as neces sary for t he prote ction of a third perso n or his thing s, is subje ct to liabi l i t y to the third perso n for physi cal harm resul ting from his failu re to exerc ise reaso nable care to prote ct his under takin g, if

"'(a) his failu re to exe r c ise reaso nable care incre ases the risk of such harm, or "'(b) he has under taken to perfo rm a duty owed by the other to the third perso n, or "'(c) the harm is suffere d because of relia nce of the other or the third perso n u p o n t h e u ndert aking .'" 287 Ala. at 193, 249 So. 2d at 487 (quot i n g Resta temen t (Seco nd) of Torts § 324A) . See also Comme rcial Union Ins. Co.

v. DeSha zo, 845 So. 2d 766 (Ala. 2002) . In accor dance with § 324A( a), the trial court instr ucted the jury th a t Yanma r Ameri ca co uld b e hel d lia ble f or ne glige ntly faili ng to warn Randy based on its volun taril y assum ing a duty to warn only if "Yanm ar Ameri ca's negli gence incre ased the risk of ha r m to Randy ." Yanma r Ameri ca argue s on appea l that it did nothi ng to incre ase the risk of harm to Randy by issui ng the safet y

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notic es in this case and by u ndert aking other activ ities to i mp ede the impor tatio n, sale, and use of the gray- marke t tract ors in the Unite d State s. "Sect ion 324A( a) appli es only to the exten t that the alleg ed negli gence of the defe n d a nt 'expo ses the injur ed perso n to a great er risk of harm than had exist ed previ ously .'" Herri ngton v. Gauld en, 294 Ga. 285, 288, 751 S.E.2 d 813, 816 (2013 ) (quot ing Taylo r v. Ameri ca s Mart Real Estat e, 287 Ga. App. 555, 559, 651 S.E.2 d 7 5 4 , 758 ( 2007) ). Moreo ver, the "test is not wheth er the risk w a s incre ased over what it would have been if the defen d a n t had

n o t been negli gent. Rathe r, a duty is impos ed only i f t h e risk is incre ased over what it would have been had the defen dant not engag ed in the under takin g a t all." Myers v. Unite d State s, 17 F.3d 890, 903 (6t h C i r. 1994) . Liabi lity

can be impos ed on one who volun t a r i ly under took the duty to act only where the actor "affi rmati vely eithe r made, or cause d to be made, a chang e in the condi tions which chang e creat ed or incre ased the r isk o f har m" to the plain tiff. Id. See also Paten tas v. Uni t e d State s, 687 F.2d 707, 717 (3d Cir. 1982) ("[T] he comme nt [c] to secti on 324A makes clear that

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'incr eased risk' means some physi cal chang e to the envir onmen t

or so me ot her m ateri al al terat ion o f the circ umsta nces. "). As menti oned above , Randy claim s in part th a t Yanma r Ameri ca breac hed the duty to warn t h a t it had volun taril y under taken by issui ng insuf ficie nt safet y warni ngs that faile d to warn of the safet y hazar ds that actua lly cause d the tract or he was opera ting to roll over. The evide nce is undis puted that those safet y warni ngs never reach ed Artec o r Randy . Becau se neith er Artec nor Randy ever saw the safet y warni ngs, Yanma r Ameri ca's failu re to inclu de more speci fic infor matio n regar ding the hazar ds of ope r a ting a Yanma r gray- marke t tract or could not possi bly have incre ased t h e risk to Randy

over the risk that alrea dy exist ed in the absen ce of a notic e. See McMel lon v. Unite d State s, 338 F.3d 287, 295 n.5 (4th Cir. 2003) (ob servi ng th at "[ t]he plain tiffs do n ot co ntend , nor could they, that the gover nment , by posti ng signs tha t t he plain tiffs did not s ee, i ncrea sed t he ri sk to the plain tiffs

ov e r t hat which they would have faced had no signs been poste d"), vacat ed and reman ded on other groun ds, 387 F.3d 329 (4th Cir. 2004) .

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Randy also bases his argum ent tha t Yanma r Ameri ca breac hed the duty to warn on his claim that Yanma r Ameri ca had faile d to ensur e that the safet y warni ngs were disse minat ed in

a manne r by which they would actu a l l y reach the poten tial purch asers and users of t he Ya nmar gray- marke t tra ctors . He point s to the testi mony of Trimm and Randy in suppo rt of this conte ntion . Tr imm t estif ied t hat i f he had b een w arnedthat the Y anmargray -mark et tr actorwas not d esign ed fo r, an d not safe to op erate in, the U nitedStat es, h e wou ld ha ve "p assed the infor matio n on" to North side and would have offer e d to purch ase the tract or back from North side. Randy test i fied that had he known of the stabi lity issue s assoc iated with the Yanma r gra y-mar ket t racto r he wouldnot have used it. Randy argue s tha t Yan mar Americ a's n eglig ence in fa ilingto e nsure that the safet y warni ngs were disse minat ed to Randy incre ased his r isk o f har m. W e dis agree . Yanma r Ameri ca conce ded that it under took a duty to warn

owner s and poten tial purch asers of the safet y hazar ds

assoc iated with the opera tion of a Yanma r gray- marke t tract or in th e Uni ted S tates . Ya nmar Ameri ca is sued safet y war nings and also under took other activ ities to imped e the impor tatio n

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and sale of gray- marke t tract ors in the Unite d State s , t he impor tatio ns and gray- marke t sales being circu mstan ces beyon d its contr ol. Altho ugh it is u n d i s puted that those safet y warni ngs never reach ed Randy , the resul t is the same as if Yanma r Ameri ca had elect ed not to under take any such activ ities to w arn t he fo resee able users of t he Ya nmar graymarke t tra ctors . Byissu ing t he sa fety warni ngs a nd fa iling to ensur e that they were disse minat ed to Randy , Yanma r Ameri ca expos ed Randy to no great er a risk of harm than he would have been expos ed to previ ously had Yanma r Ameri ca chose n not to act in order to warn the poten tial users of the g r a y-mar ket tract ors. Herr ingto n, su pra. We concl ude that Randy faile d to estab lish by subst antia l evide nce that Yanma r Ameri ca parti cipat ed in an activ ity that incre ased his risk of harm over a n y r i s k of harm that would have exist ed ha d Yan mar Americ a cho sen n ot to warnpote ntial

users of the gray- marke t tract ors in this case. Accor dingl y, t h e trial court erred as a matte r of law in denyi ng Y a n m a r Ameri ca's motio ns for a JML on Randy 's failu re-to -warn claim . Concl usion

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We rever se the judgm ent of the trial court and reman d the

case for t he tr ial c ourt to en ter ajudgment consi stent with this opini on. REVER SED AND RE MANDE D. Stuar t, Wi se, a nd Br yan, JJ., concu r. Parke r, J. , con curs speci ally. Murdo ck an d Mai n, JJ ., co ncur in th e res ult. Moore , C.J ., re cuses hims elf.

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PARKE R, Ju stice (con curri ng sp ecial ly). I am not yet convi nced that the "incr eases the risk of such harm" stand ard set forth in Resta temen t (Seco nd) of Torts § 324A( a) (1965 ) and appli ed by t h e m ajori ty in this case appli es to any and a ll vo lunta ry-wa rningsitu ation s.

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MURDO CK, J ustic e (co ncurr ing i n the resu lt). I agree that nothi ng in the warni ngs po s ted by Yanma r Ameri ca Corpo ratio n or in the physi cal notic es maile d by it to deale rs incre ase d t h e risk of harm to anyon e who might have

s e e n or recei ved the same, much less someo ne in Autre y Nicho ls's or Randy Nicho ls's posit ion. As a thres hold matte r, howe ver, I quest ion wheth er Yanma r Ameri ca conce ded that it under stood a duty to warn any perso n (incl uding Autre y a nd Rand y ) w ho did not happe n upon its Web site posti ngs or actua lly r eceiv e one of i ts ma iling s, an d I a m not pers uaded that the e viden ce pr esent ed, i nclud ing t he te stimo ny ofRyan Pott, supp orts a con traryconc lusio n. I ther efore conc ur in the r esult .

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