* Chief Judge of the Eastern District of Texas, sitting by

designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 91-1577

____________________

BILLY H. TONEY,

Plaintiff-Appellant,

versus

KAWASAKI HEAVY INDUSTRIES, LTD.,

ETC., ET AL.,

Defendant-Appellee.

_________________ _________________________________________________

Appeal from the United States District Court for the

Southern District of Mississippi

__________________________________________________________________ (October 7, 1992)

Before JOLLY and DUHÉ, Circuit Judges, and PARKER, District Judge. *

E. GRADY JOLLY, Circuit Judge:

Billy H. Toney was riding a Kawasaki motorcycle when he was

struck by an automobile that crushed his leg, which later had to be

amputated. He sued Kawasaki under various theories of strict

liability and negligence, primarily asserting that the motorcycle

was defective because it lacked leg guards. We hold that under the

applicable Mississippi law, the consumer expectations test applies

in product liability cases, and because the alleged defect and

danger were open and obvious to the ordinary consumer, the-2-

motorcycle was not "unreasonably dangerous." Similarly, because

the danger was open and obvious to a casual observe r, Toney is

barred from recovery on his negligence claim. The district court's

dismissal of Toney's complaint is, consequently, affirmed.

I

On August 16, 1985, Toney purchas ed a used Kawasaki 750

motorcycle from an individual. The motorcycle was designed and

manufactured by Kawasaki Heavy Industries, Ltd. (KHI), a Japanese

corporation; Kawasaki Motor Corporation is a Delaware corporation

that distributes KHI products in the United States (we refer to

both simply as "Kawasaki"). On the very next day, August 17, 1985,

Toney was struck from the side by a truck while rid i ng his

motorcycle on an open highway. He suffered severe injuries in the

collision that later necessitated the amputation of his left leg.

II

On April 11, 1989, Toney filed suit in the Circuit Court of

Smith County, Mississippi. Kawasaki removed the case to federal

di strict court invoking diversity jurisdiction. Toney asserted

negligence, strict liability, and breach of warranty claims against

the appellees. Specifically, he alleged that the Kawasaki

motorcycle was not equi pped with leg protection devices as

reasonable care would require, that the produ ct was unreasonably

dangerous, and that the appellees failed to adequately warn users

of the motorcycle about the potential danger. Kawasaki moved for

summary judgment asserting that the risks associated with the use-3-

of a motorcycle not equipped with leg protection features were open

and obvious, and that the plaintiff's claims were barred as a

matter of law.

The district court held that there was no genuine issue of

material fact and granted Kawasaki summary judgment as a matter of

law. The court first considered whether the defendants were

strictly liable f or a design defect in the motorcycle or for the

failure to warn users of the motorcycle about potential dangers

associated with the use of the product. The court found no merit

in the plaintiff's strict liability claims, because the risks to a

rider's legs were patently obvious to any ordinary consumer. The

court further held that appellant's negligence and br each of

warran ty claims were similarly barred by the "open and obvious"

defense. This appeal followed.

III

In reviewing the trial court's grant of summary judgment, this

court applies the same standard as the trial court, viewing the

facts in the light most favorable to the nonmoving party. F ederal

Deposit Ins. Corp. v. Hamilton

, 939 F.2d 1225, 1228 (5th Cir.

1991). We decide questions of law d e novo

. W alker v. Sears,

Roebuck & Co.

, 853 F.2d 355, 358 (5th Cir. 1988). Summary judgment

is pr oper if the pleadings, depositions, admissions, and other

summary judgment evidence demonstrate that there is no genuine

issue of material fact and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56; C elotex Corp. v.-4-

Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Brown v.

Southwestern Bell Tel. Co. , 901 F.2d 1250, 1255 (5th Cir. 1990).

IV

In order to recover under a theory based on Mississippi

product strict liability law, the injured plaintiff must show that

the product was "in a defective condition unreasonably dangerous."

Melton v. Deere & Co.

, 887 F.2d 1241, 1243 (5th Cir. 1989) (quoting

Restatement (Second) of Torts

, § 402A (1965) as cited in State

Stove Mfg. Co. v. Hodges

, 189 So.2d 113, 118 (Miss. 1966)); Gray v.

Manitowoc Co. , 771 F.2d 866, 868-69 (5th Cir. 1985). Mississippi

has adopted the objective "consumer expectations" test to determine

whether a product is un reasonably dangerous and therefore

defective. M elton

, 887 F.2d at 1243; Toliver v. General Motors

Corp. , 482 So.2d 213, 218 (Miss. 1985). Thus, the plaintiff must

establish that the product was "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." R estatement (Second) of Torts § 402A, Comment i

(1965) (emphasis ours). Furthermore, in a product liability

action, "a product that has an open and obvious danger is not more

dangerous than contemplated b y the consumer, and hence cannot,

under the consumer expec tations test applied in Mississippi, be

unreasonably dangerous." Melton , 887 F.2d at 1243.

In Gray

, we examined the genesis and devel opment of product

liability law in Mississippi and concluded that "the patent danger-5-

bar adopted by the Restatement was incorporated into Mississippi's

doctrine of strict liability." G ray

, 771 F.2d at 868-70. We then

concluded that Gray could not maintain his strict liability action

because the defect he complained of was open and ob vious and no

"reasonable jury [could] have concluded t hat the [product] was

dangerous to a degree not anticipated by the ordinary consumer of

that product." I d. at 871. T hus it is clear that Mississippi law

dictates t hat a manufacturer cannot be held liable for injuries

caused by dangers arising from either a defective design or a sound

but unavoidably dangerous design so long as the hazard is open and

obvious "to a casual observer." Our court follows this rule. I d.

at 870; Melton , 887 F.2d at 1243.

The case of Toliver v. General Motors Corporation illustrates

the application of these principles by the Mississippi court. In

Toliver

, the Mississippi Supreme Court observed t hat "[i]n the

context of fuel tank design, obviously the plaintiff contemplated

that the automobile which he purchased had a fuel tank affixed to

it, which could become dangerous under some circumstances."

Toliver

, 482 So.2d at 218. The Mississippi court then pointed out

that the fact the fuel tank was dangerous was not a s ufficient

basis for Toliver to recover. More was required: Toliver had to

show that the placement of the tank was " defective:

. . . below the

standard of automotive design contemplated by the user, and, thus,

. . . unreasonably dangerous." I d. In other words, the danger

from the fuel tank of an automobile was open and obvious; however,2 In the event the product was shown to be unreasonably

dangerous, Toliver's recovery could nevertheless have been barred

if the jury found that he had assumed the risk, a defense that

would be based on his subjective knowledge, Alexander v.

Conveyors & Dumpers, Inc. , 731 F.2d 1221, 1223-24 (5th Cir.

1984), or reduced if he was comparatively negligent, Braswell v.

Economy Supply Co. , 281 So.2d 669, 676 (Miss. 1973). If the two

defenses overlap, comparative negligence applies. Braswell , 281

So.2d at 677.

-6- the danger presented by the design and placement of the fuel tank

was not. Consequently, if the design and/or placement were

defective and unreasonably dangerous, To l iver would have been

entitled to recover, notwithstanding the obvious danger generally

presented by the gas tank of an automobile. 2

Similarly, under Mississippi negligence law it has also been

long establis hed that if the hazard of an allegedly defective

design is "apparent and obvious to a casual observer," then the

injured plaintiff may not recover on a negligence theory. H arrist

v. Spencer-Harris Tool Co.

, 244 Miss. 84, 140 So.2d 558, 561

(1962). In Harrist , the Mississippi Supreme Court held that

Harrist could not recover for injuries received because of an

allegedly defective design because "[i]f we assume there were

defects, we think they were apparent and obvious to a casual

observer ." Harrist , 140 So.2d at 561 (emphasis ours). The court

then elaborated: "No duty rests upon a manufacturer or seller to

warn a purchaser of a dangerous design which is obvious . If this

were not true, a manufacturer could not design and sell a pocket

knife, axe, planer or gun ." I d. at 562 (emphasis ours). We-7-

explained in Gray that "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.

As to breach of warranty claims, the Mississippi Supreme Court

held in Harrist :

According to the majority view, a general warranty does

not extend to open and visible defects in the quality or condition of goods sold, although they are inconsistent

with the warranty.

. . . It has been stated that neither a general nor an

implied warranty covers external and visible defects

w hich are plain and obvious to the purchaser upon m ere inspection with the eye.

Harrist

, 140 So.2d at 561 (quoting 41 Am. Jur. Sales § 377 (1957)).

The plaintiffs cite no authority to the contrary.

Thus, in Mississippi, an injured plain tiff is barred from

recovering for injuries resulting from a product's open and obvious

dangers, e.g., one attributable to an automobile gas tank; if,

however, the particular hazard is not open and obvious, e.g., one

attributable to the design and placement of the gas tank, the3 As in many areas of the law, there is no bright line rule

delineating products that present an open and obvious danger and

those which are unreasonably dangerous. It is clear, however,

that whether a product presents an open and obvious danger

barring recovery is, in the first instance, a question of law for

the court. See

, e.g.

, Melton v. Deere & Co. , 887 F.2d 1241, 1244

(5th Cir. 1989) (court decided that danger presented by product

was open and obvious and barred plaintiff from recovery); Harrist

v. Spencer-Harris Tool Co. , 244 Miss. 84, 140 So.2d 558, 561

(1962). If, as a matter of law, the danger is open and obvious,

it follows that the product is not "unreasonably dangerous" under

Mississippi's consumer expectations standard. Melton , 887 F.2d

at 1243. Conversely, if the danger is not open and obvious as a

matter of law, whether the product is "unreasonably dangerous" is

for the jury. E.g., Dunson v. S.A. Allen, Inc. , 355 So.2d 77, 79

(Miss. 1978). In the event these issues are submitted to the

jury, there is some authority in our Circuit that indicates that

the jury may consider the extent of the product's open and

obvious danger as a factor in deciding whether the product was

"unreasonably dangerous." Lloyd v. John Deere Co. , 922 F.2d

1192, 1195 (5th Cir. 1991); Ward v. Hobart Mfg. Co. , 450 F.2d

1176, 1187 (5th Cir. 1971).

-8- plaintiff is not barred from recovery. 3 With these standards in

mind, we turn to examine Toney's claims.

V

A

Toney first urges us to apply the holding of Toliver v.

General Motors Corp. , 482 So.2d 213 (Miss. 1985), to the case sub

judice

. The Mississippi Supreme Court held in T oliver that it

would impose strict liability in tort, in accordance with Section

402A, Restatement (Second) of Torts (1965), upon automobile

manufacturers who design vehicles in such a way that they are

unreasonably dangerous, allowing recovery for "second impact" type4 A defect in design or manufacture that does not minimize

injury is viewed as making the automobile "unreasonably

dangerous," and thus as a cause of the injury, and, therefore,

justifies imposition of liability on the manufacturer. See

,

e.g.

, Toliver at 214-15.

-9- injuries. I d. at 215. 4 Given the Mississippi court's application

of Section 402A in Toliver

, it is our Erie guess th at it would

apply the same test to an alleged motorcycle design defect: is the

design of the motorcycle defective--did it fall below the standard

of motorcycle design cont emplated by the ordinary consumer and,

thus, become unreasonably dangerous to him? T oliver

, 482 So.2d at

218. In this case, however, the application of the test set out in

Toliver is of little help to Toney.

As we have earlier noted, in Toliver the fuel tank's placement

and design were not apparent to the owner, to a casual observer or

to the or dinary consumer, all of whom had to rely on the

manufacturer's judgment. The contrary is true of the Kawasaki

motorcycle involved in this case. The ordinary consumer could see

that this motorcycle had no leg protection and, thus, could fully

appreciate the motorcycle's design and its open and obvious

dangers. Therefore, the motorcycle was not in a "defective

condition

. . . `a condition not contemplated by the ultimate

consumer, which will be unreasonably dangerous to him.'" T oliver

,

482 So.2d at 218 (quoting Restatement (Second) of Torts

, § 402A,

cmt. g). Under Mississippi law, he was, therefore, barred from-10-

recovery on both his negligence and his product liability claims.

Melton , 887 F.2d at 1243-44; Harrist , 140 So.2d at 561.

Citing Dunson v. S.A. Allen, Inc.

, 355 So.2d 77 (Miss. 1978),

Toney argues that a jury question exists concerning the design

standard, even if any danger is open and obvious, when the

manufacturer is aware of a method of alleviating a danger presented

by a product, but does not incorporate it into the desi gn. In

Dunson

, the product was a tree shear (made by Allen to be installed

on other manufacturers' t ractors) designed to cut trees and hold

them while the tractor transported the cut tree to the point where

it was to be stacked for further hand ling. The shear had

malfunctioned, on occasion, allowing the cut tree to fall out of

its grasp. One brand of tractor was made with a shield which

protected the operator. The brand of tractor involved in Dunson's

suit, a Case, did not have a shield, and Allen knew this. As the

Mississippi Supreme Court stated,

[the] case involve[d] the qu estion of whether the

manufacturer of a product can be held strictly liable in

tort when such product is intended to be used only in

conjunction with a second product and when so combined,

the combination of the two is unreasonably dangerous and

could only be remedied by changes or adjustments to the

second product.

Id. The court held that "the allegations . . . and the evidence

are sufficient to create a jury issue as to whether the product was

defective or unreasonably dangerous when it was attached to the

Case Uniloader." Id. at 79.-11-

A close reading of Dunson reveals there was a danger known to

Allen, the manufacturer: the shear would sometimes, without any

a ct of the operator, suddenly release a cut tree; Allen knew the

falling tree could possibly strik e the operator; one tractor

manufacturer installed a shield to protect the operator but Allen

knew Case did not. The danger presented by the defective shear was

not "apparent and obvious" to the operator; consequently, the

design was unreasonably dangerous because the operator had no

expectation that the shear would release the cut tree and allow it

to fall on him. If the "ultimate consumer" had considered the

possibility, he would have expected the manufacturer to design the

shear so that the operator would be shielded.

In this case, there is no dispu te that the motorcycle

functioned properly as a motorcycle; nor is there any dispute that

both the lack of leg protection and the hazard it presented were

"apparent and obvious to a casual observer," and were also open and

obvious to the "ordinary consumer

. . . with the ordinary knowledge

common to the community as to its characteristics." M elton

, 887

F.2d at 1243-44; Harrist

, 140 So.2d at 561. In short, an ordinary

consumer would fully appreciate the danger that, if an automobile

struck the side of the motorcycle, the rider's leg would be

ruinously crushed. The danger of the product thus revealed and

appreciated, it was not an unreasonably dangerous product for a

manufacturer to market, nor may Toney complain that the design was-12-

negligent. Recovery is barred under Mississippi law. M elton

, 887

F.2d at 1246; Gray , 771 F.2d at 868, 870.

B

Toney next asserts that the district court erred in failing to

consider his subjective state of mind in determining whether the

danger presented by the design of his motorcycle was patent or

latent. Toney's affidavit and deposition testimony were included

in the evidence considered by the trial court. He testified that

he did not appreciate the danger involved in riding a motorcycle

without any leg protection features. He now contends that the

court should have considered his subjective state of mind, rather

than employing the objective consumer expectations test. He makes

similar arguments equating the "open and obvious" defense with the

defense of as sumption of risk, measured by a subjective standard

under Mississippi law, Alexander

, 731 F.2d at 1223, a nd with

comparative negligence. He also argues that the "open and obvious"

defense should be tested against the plaintiff's s ubjective

kn owledge of available alternative designs, and the plaintiff's

subjective belief that he is using the product in a safe way even

though it presents a clear hazard. He also asserts these arguments

with respect to his negligence and implied warranty claims.

Notwithstanding Toney's arguments, the indisputable fact

remains that the Mississippi Supreme Court has adopted an objective

test of "consumer e xpectations" for claims under Section 402A.

Melton , 887 F.2d at 1243; Gray , 771 F.2d at 870. The test is the-13-

objective measure of the expectations of the generic "consumer" who

has " ordinary knowledge common to the community ." Gray , 771 F.2d

at 870 (citing Ford Motor Co. v. Matthews , 291 So.2d 169 (Miss.

1974)) (emphasis ours). For negligent design and warranty claims,

a similar objective test is us ed: was the defect or danger

"apparent and obvious to a casual observer [?]" G ray

, 771 F.2d at

868 (citing Harrist , 140 So.2d at 561).

To be sure, Toney's personal knowledge and expectations have

little relevance to the issues presented in this litigation. The

question in product strict liability cases is not whether the

product is unreasonably dangerous to a given individual, nor is it

whether a particular individual has bargained for a particu lar

danger. Modern products are sold by the millions in markets

comprising a cross section of the population and therefore are used

by people with varying leve ls of education, experience, and

ordinary common sense . The question is whether the manufacturer

has released to the general public a product that is "unreasonably

dangerous." R estatement (Second) of Torts

, § 402A (1965). The

focus in product liability cases is on the product, not the

individual purchaser. Mississippi measures that product by an

objective standard, from the perspective of the "ordinary consumer

who purchased it, with the ordinary knowledge common to the

community as to its characteristics." Melton , 887 F.2d at 1243;

Gray

, 771 F.2d at 870. We therefore must reject Toney's arguments

that we should use a subjective standard, as well as the idea-14-

implied in his arguments that the "open and obvious" defense, a

defense that is based on objective standards, should be conflated

with the assumption of risk defense and measured by a subjective

standard.

VI

We sum up as follows:

1. In Section 402A product liability actions in Mississippi,

the plaintiff cannot recover unless he shows that the product was

"unreasonably dangerous"--"dangerous to an extent not contemplated

by the ordinary consumer . . . with the ordinary knowledge common

to the community of its characteristics." M elton

, 887 F.2d at

1243; Gray , 771 F.2d at 870.

2. In product liability actions in Mississippi that are

grounded in n egligence or implied warranty, the plaintiff cannot

recover if the danger presented by the defect in the product was

"apparent and obvious to a casual observer." H arrist

, 140 So.2d at

561-62. We stated this rule as: "[A] manufacturer's liability for

pr oduct defects under Mississippi's doctrines of negligence and

i mplied 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.

3. Both standards are objective standards to which the

subjective knowle dge or belief of the individual plaintiff about

the product involved has little relevance.-15-

4. Assumption of risk and comparative negligence are separate

and distinct doctrines that take into account, among other things,

the plaintiff's subjective knowledge or belief.

5. In this case, the lack of leg protection on the Kawasaki

motorcycle was open and obvious to a casual observer, and Toney's

negligence and implied warranty claims, as a matter of law, are

therefore barred. Gray , 771 F.2d at 868.

6. Because its lack of leg protection and concomitant danger

were open and obvious to the ordinary consumer, the motorcycle was

not "unreasonably dangerous" and Toney's strict liability claim, as

a matter of law, is barred. Melton , 887 F.2d at 1243, 1245-46.

We, therefore, AFFIRM the district court's order of summary

judgment.

A F F I R M E D.