UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1753

STEPHEN E. BILENKY, Administrator of the Estate of Frank S. 

Wright, deceased,

Plaintiff – Appellee,

v.

RYOBI TECHNOLOGIES, INCORPORATED,

Defendant – Appellant,

and

HOME DEPOT USA, INCORPORATED; ONE WORLD TECHNOLOGIES, 

INCORPORATED; TECHTRONIC INDUSTRIES NORTH AMERICA, 

INCORPORATED; TECHTRONIC INDUSTRIES COMPANY, LIMITED; RYOBI 

NORTH AMERICA, INCORPORATED; RYOBI LTD.; THE HOME DEPOT, 

INCORPORATED,

Defendants.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Raymond A. Jackson, District 

Judge. (2:13-cv-00345-RAJ-DEM)

Argued: October 25, 2016 Decided: November 23, 2016

Before WILKINSON, KING, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.
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ARGUED: Robert Latane Wise, BOWMAN AND BROOKE LLP, Richmond, 

Virginia, for Appellant. Lawrence Steven Emmert, SYKES, 

BOURDON, AHERN & LEVY, P.C., Virginia Beach, Virginia, for 

Appellee. ON BRIEF: Davin M. Rosborough, BOWMAN AND BROOKE LLP, 

Richmond, Virginia, for Appellant. Richard N. Shapiro, SHAPIRO, 

APPLETON & DUFFAN, PC, Virginia Beach, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Frank S. Wright died after the Ryobi-branded lawn tractor 

he was riding caught fire. The administrator of Mr. Wright’s 

estate, Stephen E. Bilenky, brought a products liability lawsuit 

against several defendants, including Ryobi Technologies, 

Incorporated (“Ryobi”). After a four-day trial in the Eastern 

District of Virginia, the jury found Ryobi liable for negligence 

and awarded $2,500,000 in damages. Ryobi has appealed from the 

district court’s judgment, and as explained below, we affirm.

I.

A.

On September 15, 2005, Mr. Wright and his wife Audrey 

travelled to a Home Depot store in Norfolk, Virginia, to 

purchase a new lawn tractor.1 The Wrights paid $1,058 for a 

Ryobi lawn tractor, Model HDK19H42 (the “Ryobi tractor”). The 

next day, Home Depot delivered the Ryobi tractor to the Wrights’ 

home in Chesapeake, Virginia. Although the Ryobi tractor, the 

accompanying operator’s manual, and the Home Depot receipt

 1 Because we are assessing a denial of Ryobi’s motion for 

judgment as a matter of law, we recount the facts in the light 

most favorable to Bilenky. See Adkins v. Crown Auto, Inc., 488

F.3d 225, 231 (4th Cir. 2007).
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prominently displayed the trade name Ryobi®, it was actually 

Husqvarna that manufactured the Ryobi tractor.

In the years preceding his death, Mr. Wright’s health began 

to decline. Mr. Wright had survived a few heart attacks, and he 

suffered from diabetes, coronary disease, and peripheral 

neuropathy. Mr. Wright often used a wheelchair and was unable 

to walk for a period of time. He also suffered from dementia, 

although his condition had improved as of October 2010 due to a 

medication change.

On December 23, 2010, Mr. Wright decided to use the Ryobi 

tractor to either cut grass or bag leaves. Approximately one 

hour after Mr. Wright went outside, Mrs. Wright heard a loud 

noise. She saw the Ryobi tractor — with her husband still in 

the operator’s seat — engulfed in smoke and fire. Mr. Wright

then dismounted the Ryobi tractor and attempted to flee the 

intensifying flames. While Mrs. Wright fumbled with the garden 

hose and called 911, Mr. Wright burned to death in his backyard. 

He was eighty-eight years old.

B.

Bilenky, the Wrights’ son-in-law, was appointed 

administrator of Mr. Wright’s estate on December 18, 2012. Two 

days later, on December 20, Bilenky filed this action in the 

Circuit Court for the City of Norfolk. Among the defendants 
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were Ryobi and Home Depot USA, Incorporated (“Home Depot”).2 

Bilenky’s claims included negligence, gross negligence, breach 

of express warranty, and breach of implied warranty. Home Depot 

removed the matter to the Eastern District of Virginia on June 

19, 2013, invoking the district court’s diversity jurisdiction. 

See 28 U.S.C. § 1332.

On August 27, 2014, Home Depot and Ryobi filed motions for 

summary judgment. In support of its motion, Ryobi contended 

that it could not be held liable on any of Bilenky’s claims

because it had no involvement in the design, manufacture, or 

distribution of the Ryobi tractor (the “nonliability theory”).

The district court declined to rule on the summary judgment

motions before trial.

The trial began on January 14, 2015. Bilenky’s theory was 

that the Ryobi tractor’s fuel hose detached from the fuel tank, 

causing gasoline to stream out of the fuel hose and ignite. 

Bilenky presented models of the fuel tank, photographs, and the 

Ryobi tractor operator’s manual, as well as the testimony of a 

fire investigation and origin expert, a design engineering 

 2 The other defendants were Ryobi Limited; Ryobi North 

America, Incorporated; Techtronic Industries Company, Limited;

Techtronic Industries North America, Incorporated; Ryobi 

Technologies, Incorporated; One World Technologies, 

Incorporated; and Home Depot, Incorporated. Those defendants 

were dismissed prior to the trial.
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expert, Mrs. Wright, two paramedics, a deputy fire marshal, a 

Home Depot corporate representative, one of the Wrights’ 

neighbors, the Wrights’ two daughters, and Bilenky.

On January 15, at the conclusion of Bilenky’s case-inchief, Home Depot and Ryobi jointly moved for judgment as a 

matter of law pursuant to Rule 50(a) of the Federal Rules of 

Civil Procedure. They argued, in pertinent part, that Bilenky 

had failed to establish either design defect or causation. 

Notably, however, the motion did not mention Ryobi’s 

nonliability theory. For other reasons, the district court 

granted the motion as to Bilenky’s gross negligence claim only.

When the trial resumed on January 20, the district court 

granted Home Depot and Ryobi’s joint motion for a directed 

verdict as to Bilenky’s express warranty claim, leaving his 

negligence and implied warranty claims. On January 21, the 

defense rested, a charge conference was conducted, and the case 

was submitted to the jury. Ryobi did not request a jury 

instruction pertinent to its nonliability theory. Furthermore, 

Ryobi explicitly stated that it had no objection to the district 

court’s jury charge, which did not include such an instruction. 

The next day, January 22, the jury found in favor of Bilenky on 

the negligence claim against Ryobi — but not Home Depot — and 

against Bilenky on the implied warranty claim. The jury awarded 

$2,500,000 in damages.
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On February 19, 2015, Ryobi filed a renewed motion for 

judgment as a matter of law pursuant to Rule 50(b). For the 

first time since its pretrial summary judgment motion, Ryobi 

raised its nonliability theory. Ryobi also reiterated its 

contention, made at trial, that the evidence of defect and 

causation was insufficient to support Bilenky’s negligence 

claim.

By its Memorandum Opinion and Order of June 26, 2015, the 

district court denied Ryobi’s renewed motion. See Bilenky v. 

Ryobi Techs., Inc., No. 2:13-cv-00345 (E.D. Va. June 26, 2015), 

ECF No. 206 (the “Opinion”). In rejecting the nonliability 

theory, the Opinion concluded that Ryobi was a proper defendant 

pursuant to the apparent manufacturer doctrine, under which an 

entity “subjects itself to the same liability as a manufacturer” 

by “put[ting] out a product as its own.” See Opinion 15. 

According to the court, there was “sufficient evidence in the 

record to support the jury’s finding that Ryobi Technologies, 

Inc., put the Ryobi tractor out as its own,” in that the “jury 

was presented with evidence that Mr. Wright purchased a tractor 

with the word ‘Ryobi’ printed on its side, that he possessed an 

owner’s manual with the name ‘Ryobi’ printed on the top, and 

that his receipt was indeed for a Ryobi lawn tractor.” Id. at 

16. The Opinion also concluded that Bilenky had presented

sufficient evidence of defect and causation to support the
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negligence finding against Ryobi. Id. at 16-20. Ryobi timely 

noted this appeal, and we possess jurisdiction pursuant to 28 

U.S.C. § 1291.

II.

We review de novo a district court’s denial of a motion for 

judgment as a matter of law. See Adkins v. Crown Auto, Inc., 

488 F.3d 225, 231 (4th Cir. 2007). We assess whether a 

reasonable jury, viewing the evidence in the light most 

favorable to the prevailing party, had a sufficient evidentiary 

basis to find in favor of that party. Id.

III.

On appeal, Ryobi first contends that it is entitled to 

judgment as a matter of law because it cannot be held liable as

the apparent manufacturer of the Ryobi tractor. Then, Ryobi 

asserts that it deserves judgment as a matter of law premised on 

insufficient trial evidence of both defect and causation.3

 3 Ryobi also contends that it is entitled to a new trial 

because the district court improperly struck two of Ryobi’s 

contributory negligence defenses, applied an incorrect standard 

for discovery sanctions, and wrongly allowed Bilenky to 

introduce prejudicial evidence. We discern no reversible error, 

however, with respect to those matters.
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A.

We first address Ryobi’s contention that it cannot be held 

liable as the apparent manufacturer of the Ryobi tractor. In 

Virginia, a plaintiff can impose liability on a manufacturer or 

seller of a defective product if the product is unreasonably 

dangerous for its ordinary or reasonably foreseeable use and the 

unreasonably dangerous condition existed when the product “left 

the defendant’s hands.” See Austin v. Clark Equip. Co., 48 F.3d 

833, 836 (4th Cir. 1995) (quoting Logan v. Montgomery Ward & 

Co., Inc., 219 S.E.2d 685, 687 (Va. 1975)). Pursuant to the 

apparent manufacturer doctrine, an entity holding itself out as 

the manufacturer may be subject to the same liability as the 

actual manufacturer. See Swift & Co. v. Blackwell, 84 F.2d 130, 

132 (4th Cir. 1936). In Swift, we explained the apparent 

manufacturer doctrine as follows:

One who puts out as his own product chattels made by 

others is under a duty to exercise care, proportionate 

to the danger involved in the use of the chattels if 

improperly made, to secure the adoption of a proper 

formula or plan and the use of safe materials and to 

inspect the chattel when made. But he does not escape 

liability by so doing. By putting a chattel out as 

his own product, he causes it to be used in reliance 

upon his care in making it. Therefore, he is liable 

if, because of some negligence in its fabrication or 

through lack of proper inspection during the process 

of manufacture, the article is in a dangerous 

defective condition which the vendor could not 

discover after it was delivered to him.
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Id. (quoting Restatement of Torts § 400). We later recognized 

that Virginia has adopted the rule enunciated in Swift. See

Carney v. Sears, Roebuck & Co., 309 F.2d 300, 304 (4th Cir. 

1962) (citing Highland Pharmacy v. White, 131 S.E. 198, 200 (Va. 

1926)).

Here, it is undisputed that Husqvarna manufactured and Home 

Depot sold the Ryobi tractor. Ryobi contends that Bilenky 

cannot use the apparent manufacturer doctrine to hold it liable 

because — unlike the entities deemed to be apparent 

manufacturers in Swift, Carney, and Highland Pharmacy — Ryobi 

was not involved in the distribution of the defective product. 

Bilenky counters that the prominent labeling of the Ryobi®

trademark on the Ryobi tractor, operator’s manual, and Home 

Depot receipt gave the jury sufficient evidence to impose 

liability on Ryobi.

As the parties agree, Virginia has not addressed whether 

the apparent manufacturer doctrine may apply to an entity

outside the chain of distribution of a product that nonetheless 

bears the entity’s name. Furthermore, courts have split on the 

issue. Compare, e.g., Yoder v. Honeywell Inc., 104 F.3d 1215, 

1222-24 (10th Cir. 1997) (limiting apparent manufacturer 

liability under Colorado law to entities within chain of 

distribution), with, e.g., Brandimart v. Caterpillar Tractor 

Co., 527 A.2d 134, 139-40 (Pa. Super. Ct. 1987) (imposing 
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liability on entity that simply authorized use of its name on 

product). We need not consider what position Virginia would 

adopt, however, because Ryobi has waived the issue by failing to 

request a jury instruction conforming to its nonliability theory 

and its correlating view of the apparent manufacturer doctrine. 

See Jiminez v. DaimlerChrysler Corp., 269 F.3d 439, 448 (4th 

Cir. 2001) (citing, inter alia, Abel v. Miller, 824 F.2d 1522, 

1535 (7th Cir. 1987)). That is, “[t]o avoid waiver of the 

[nonliability] theory, [Ryobi] must have presented the theory at 

trial and attempted to insure that the jury was properly 

instructed on it.” See Abel, 824 F.2d at 1535. Because it did 

not do so, Ryobi cannot now rely on the nonliability theory to 

obtain judgment as a matter of law.4

 4 Significantly, Ryobi did not otherwise preserve its 

nonliability theory by unsuccessfully presenting it to the 

district court prior to submitting proposed jury instructions. 

Cf. College Loan Corp. v. SLM Corp., 396 F.3d 588, 599 n.10 (4th 

Cir. 2005) (recognizing that “College Loan’s failure to 

specifically object to [instructions did not] waive the position 

it had already unsuccessfully presented to the district court”). 

Although Ryobi raised the nonliability theory in its summary 

judgment motion, the court declined to rule on that motion prior 

to trial. At the next opportunity, in its motion at trial for 

judgment as a matter of law pursuant to Federal Rule of Civil 

Procedure 50(a), Ryobi failed to reassert the nonliability 

theory. Indeed, Ryobi only belatedly reiterated the 

nonliability theory — post-trial — in its Rule 50(b) renewed 

motion for judgment as a matter of law. Of course, “a Rule 

50(a) motion is a prerequisite to a Rule 50(b) motion because 

the [moving party] must apprise the district court of the 

alleged insufficiency of [the] suit before the case is submitted 

to the jury.” See Price v. City of Charlotte, N.C., 93 F.3d 

(Continued)
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B.

We turn to Ryobi’s contention that Bilenky presented

insufficient evidence of defect and causation. To prevail on a 

products liability claim in Virginia, a plaintiff “must prove 

that the product contained a defect which rendered it 

unreasonably dangerous for ordinary or foreseeable use.” See

Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir. 

1993). The plaintiff also must establish that the alleged 

defect existed when the product left the defendant’s hands and 

that the defect caused the plaintiff’s injury. Id. When 

determining what constitutes an unreasonably dangerous defect, 

courts consider industry and government safety standards as well 

as the reasonable expectations of consumers. Id. at 420-21.

Having carefully examined the record and the thoughtful 

Opinion of the district court, together with the parties’ 

written submissions and the arguments of counsel, we discern no 

inadequacy of the evidence. We are therefore content to affirm 

the judgment on the cogent reasoning spelled out by the district 

court in its Opinion.

 

1241, 1249 (4th Cir. 1996). Therefore, even if Ryobi had not 

waived its nonliability theory by failing to request a 

conforming instruction, we would be constrained to review for 

plain error the court’s denial of Ryobi’s renewed motion for 

judgment as a matter of law. See id.
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IV.

Pursuant to the foregoing, we affirm the judgment of the 

district court.

AFFIRMED