UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHANNON LEA BOWERS, a minor, by
and through her parent and next
friend, Gary M. Bowers; GARY M.
BOWERS; MARTHA C. BOWERS, his
wife, individually,
Plaintiffs-Appellants,
                                                                     No. 96-1374
v.

ROBERT D. MARTIN; POWERMATIC, a
division of DeVlieg-Bullard,
Incorporated; HTC PRODUCTS,
INCORPORATED,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CA-94-671-R)

Argued: April 9, 1997

Decided: June 23, 1997

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,
and DUFFY, United States District Judge for the
District of South Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Duffy wrote the opinion, in
which Chief Judge Wilkinson and Judge Widener joined.

_________________________________________________________________
COUNSEL

ARGUED: Sean Calvin Workowski, COLLINS & WORKOWSKI,
Covington, Virginia, for Appellants. William Norman Watkins,
SANDS, ANDERSON, MARKS & MILLER, Richmond, Virginia,
for Appellee Martin; D. Stan Barnhill, WOODS, ROGERS &
HAZLEGROVE, P.L.C., Roanoke, Virginia for Appellee Powerma-
tic; Peter Duane Vieth, WOOTEN & HART, P.C., Roanoke, Virginia,
for Appellee HTC. ON BRIEF: Michael M. Collins, COLLINS &
WORKOWSKI, Covington, Virginia, for Appellants. Jonathan P.
Jester, SANDS, ANDERSON, MARKS & MILLER, Richmond, Vir-
ginia, for Appellee Martin; David B. Hart, WOOTEN & HART, P.C.,
Roanoke, Virginia, for Appellee HTC.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

DUFFY, District Judge:

Shannon Lee Bowers ("Bowers") appeals the orders of the district
court granting summary judgment in favor of defendants Robert Mar-
tin ("Martin"), Powermatic, Inc. ("Powermatic"), and HTC Products,
Inc. ("HTC"), on her claims of negligence. For the reasons stated
below, the orders of the district court are affirmed.

I.

During the later part of the 1993 school year, Bowers, age sixteen
(16), was enrolled in an agricultural science class taught by Martin at
Alleghany High School ("Alleghany"). The class consisted of approx-
imately twenty (20) students and involved instruction on general
woodworking techniques and the use of certain stationary power
tools. This litigation arises from injuries Bowers sustained to her hand
while working with a table saw in the class on April 1, 1993.

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Powermatic manufactured the table saw that Bowers was operating
at the time of her injury. The table saw had been sold to Nelson-
Roanoke Corporation ("Nelson-Roanoke") in late 1985 and shipped
to Alleghany. J.A. at 356-59. Nelson-Roanoke ordered table saw
model 1660010 from Powermatic which came with a combination
blade guard, splitter, and anti-kickback pawls ("combination guard").
The Powermatic manual which came with the table saw advised the
user who wished to perform dado, rabbet, and similar cuts on the table
saw with the combination guard to use other safety devices to insure
safe operation.1 J.A. at 358. At the time of purchase, as it does today,
Powermatic also offered another guard, known as an overarm guard,
which was better suited for dado and rabbet cuts. 2 Martin had the
Powermatic manual in his possession prior to Bowers's injury. J.A.
at 225.

In 1992, Alleghany replaced the combination guard with a "Brett-
Guard" made by HTC. Unlike the combination guard, the Brett-Guard
was designed to accommodate dado and rabbet cuts. However, Martin
installed the Brett-Guard on the right side of the table instead of the
left as mandated by the operations manual.3 After the installation of
the Brett-Guard, Martin began instructing students on how to use the
table saw to perform dado and rabbet cuts. Martin stressed the neces-
sity of having the Brett-Guard over the saw blade during operation
and warned of "kickback," whereby the wood is thrust back toward
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1 Dado, rabbet, and similar cuts involve cutting grooves into a piece of
wood rather than through the wood completely. At the time of the acci-
dent, Bowers was attempting to make a rabbet cut into wood on which
she was working by passing the wood back and forth across the saw
blade. J. A. at 54-55.
2 The trade name of Powermatic's overarm guard is the "Safety Flex."
3 The operations manual included a bold-print warning:

          THE ANTI-KICKBACK DEVICE IS PRIMARILY FOR RIPPING
          OPERATIONS AND IS EFFECTIVE ONLY WHEN THE
          BRETT-GUARD IS MOUNTED ON THE LEFT SIDE OF THE
          TABLE SAW AND ONLY WHEN THE ANTI-KICKBACK
          DEVICE IS PROPERLY ENGAGED ON THE WOOD BEING
          CUT. The anti-kickback device is inoperative when the Brett-
          Guard is used in the rear or right positions.

J.A. at 269.

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the operator possibly resulting in the operator's hand coming into
contact with the saw blade. J.A. at 177, 179, 211.

After her first use of the saw under Martin's instruction, and
despite being instructed by Martin to the contrary, 4 Bowers operated
the table saw without the Brett-Guard over the blade. J.A. at 130-131.
On April 1, 1993, Bowers proceeded to use the table saw to perform
a rabbet cut without placing the Brett-Guard over the blade and with-
out using any other safety device to protect her from the exposed
blade. J.A. at 72-73. Subsequently, Bowers suffered injuries to her
hand when a kickback occurred.

On August 25, 1994, Bowers and her parents filed a complaint
against Martin, Powermatic, and HTC alleging negligence and breach
of warranty claims. Bowers withdrew her breach of warranty claims
during a hearing before the district court on the summary judgment
motions of Powermatic and HTC on January 24, 1996. The Bowers
are presently before this court appealing the district court's rulings
granting defendants' motions for summary judgment as to the negli-
gence claims.

II.

The granting of a motion for summary judgment is reviewed de
novo. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167
(4th Cir. 1988). To grant a motion for summary judgment, this court
must find that "there is no genuine issue as to any material fact." Fed.
R. Civ. P. 56(c). The judge is not to weigh the evidence, but rather
to determine if there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). If no material factual disputes
remain, then summary judgment should be granted against a party
who fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which the party bears
the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317
_________________________________________________________________
4 Bowers had used the table saw on numerous other occasions and had
been instructed on the importance of having the Brett-Guard over the
saw blade during any woodcutting activity. J.A. at 72. Bowers had also
read the warnings on the Brett-Guard itself instructing the user to operate
the saw only with the guard in place. J.A. at 133, 141-145.

                    4
(1986). All evidence should be viewed in the light most favorable to
the nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d
121, 123-24 (4th Cir. 1990). "[W]here the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party,
disposition by summary judgment is appropriate." Teamsters Joint
Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991).
"[T]he plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against
a party who fails to make a showing sufficient to establish the exis-
tence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
The "obligation of the nonmoving party is `particularly strong when
the nonmoving party bears the burden of proof.'" Hughes v. Bedsole,
48 F.3d 1376, 1381 (4th Cir. 1995) (quoting Pachaly v. City of
Lynchburg, 897 F.2d 723, 725 (4th Cir. 1990)), cert. denied, 116 S.
Ct. 190 (1995). Summary judgment is not "a disfavored procedural
shortcut," but an important mechanism for weeding out "claims and
defenses [that] have no factual bases." Celotex, 477 U.S. at 327.

III.

It is well settled that the substantive law to be applied in a diversity
case is that of the state legislature and the state's highest court. Erie
R.R. Co. v. Thompkins, 304 U.S. 64, 78 (1938). Thus, this court must
apply the law as set forth by the Virginia legislature and the Virginia
Supreme Court.

A.

Under Virginia law, the doctrine of sovereign immunity protects
public school teachers from liability for injuries sustained by a student
where the allegations amount to simple negligence or an improvident
exercise of teacher discretion. Lentz v. Morris , 372 S.E.2d 608, 610
(Va. 1988). Accordingly, the teacher's actions must constitute gross
negligence to become actionable at law.

Bowers alleges the following as evidence of Martin's gross negli-
gence: (1) his improper installation of the Brett-Guard; (2) his failure
to heed the warnings contained in the Brett-Guard operations manual
and placed on the Brett-Guard itself; (3) his inadequate instructions

                     5
to the students on the proper manner in which to make cuts, specifi-
cally the rabbet cut; (4) allowing students to use the saw to cut curved
wood which Martin knew could increase the danger of kickback; and
(5) his careless procedure for checking the students' set up and opera-
tion of the table saw.

The Virginia Supreme Court has defined gross negligence as "that
degree of negligence which shows utter disregard of prudence
amounting to complete neglect of safety of another." Frazier v. City
of Norfolk, 362 S.E.2d 688, 691 (Va. 1987) (citations omitted) (action
brought against the City of Norfolk for injuries sustained by a thirteen
(13) year-old child who fell from a platform in a municipal audito-
rium). The court went on to say that "[g]ross negligence amounts to
the absence of slight diligence, or want of even scant care." Id. The
conduct must constitute "such a degree of negligence as would shock
fair minded [people] although something less than wilful reckless-
ness." Meagher v. Johnson, 389 S.E.2d 310, 311 (Va. 1990) (citation
omitted).

Bowers' allegations in regard to Martin's installation of the Brett-
Guard and his alleged inattention to the warnings in the operations
manual and on the guard are irrelevant to her negligence claim
because at the time of Bowers' injury, she was not using the Brett-
Guard nor had she asked Martin for assistance in placing the Brett-
Guard over the saw blade. J.A. at 72-73. There is no evidence in the
record that the manner in which Martin installed the Brett-Guard pre-
vented Bowers from using it as other students had.

With respect to Martin's classroom instruction and observation of
his students, it is clear that he required all students to read the manu-
facturer's warnings in the manual and on the saw itself. It is also clear
that he instructed his students, including Bowers, to always place the
Brett-Guard over the saw blade when making a rabbet cut. J.A. at 71-
73. Also, concerning curved wood, Martin encouraged students to cut
the wood before the curve. J.A. at 241. During the early part of the
school year, Martin demonstrated to the students the proper way to
use the saw. J.A. at 81. Martin's actions clearly do not constitute an
"utter disregard of prudence amounting to complete neglect of the
safety of [Bowers]." Frazier, 362 S.E.2d at 691. At worst, Martin's
conduct was simple negligence.

                     6
B.

Bowers alleges that Powermatic's failure to include the Safety Flex
guard as part of the saw constitutes negligence. While this guard was
available for sale in 1985, it was not ordered by the original pur-
chaser, Nelson-Roanoke. Also, the Safety Flex was available when
Alleghany decided to replace the original Powermatic guard with the
Brett-Guard. Under Virginia law, "`when a customer exercises an
option to purchase a product without a safety feature, it is axiomatic
that the manufacturer should not be held liable for damages which
that safety feature may have prevented.'" Austin v. Clark Equip. Co.,
48 F.3d 833, 837 (4th Cir. 1995) (quoting Butler v. Navistar Int'l
Transp. Corp., 809 F. Supp. 1202, 1209 (W.D. Va. 1991)). Bowers
cannot hold Powermatic liable for the decisions of Nelson-Roanoke
and Alleghany regarding safety options available with the table saw.
Furthermore, the Powermatic combination guard had been removed
from the saw before Bowers was a student in Martin's class. Thus,
Bowers has no negligence claim against Powermatic.

C.

Bowers' claim against HTC is based on Martin's allegedly
improper installation of the Brett-Guard. Bowers admits that Martin
instructed the students, including her, to always place the Brett-Guard
over the top of the saw blade when making a cut. Nonetheless, Bow-
ers chose to operate the table saw without using the Brett-Guard on
the day her injury occurred. Where the nature and the extent of the
risk of an action are fully appreciated and that risk is voluntarily
incurred, the act constitutes a voluntary assumption of risk. Landes v.
Arehart, 183 S.E.2d 127, 129 (Va. 1971) (citation omitted). Bowers
voluntarily assumed the risk of using the table saw without the Brett-
Guard. Therefore, whether HTC may have been negligent in manu-
facturing the Brett-Guard is irrelevant because Bowers failed to use
the guard at all.

IV.

For the foregoing reasons, the orders of the district court granting
summary judgment in favor of all defendants are

AFFIRMED.

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