UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LARRY S. DUDLEY,
Plaintiff-Appellee,

v.

BUNGEE INTERNATIONAL
MANUFACTURING CORPORATION,
                                                                        No. 95-1204
Defendant-Appellant,

and

THE PRICE COMPANY, d/b/a Price
Club,
Defendant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
B. Waugh Crigler, Magistrate Judge.
(CA-93-21-C)

Argued: December 7, 1995

Decided: January 31, 1996

Before HALL and HAMILTON, Circuit Judges, and
THORNBURG, United States District Judge for the Western
District of North Carolina, sitting by designation.

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Affirmed in part and reversed in part by unpublished per curiam opin-
ion.

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COUNSEL

ARGUED: Donald R. Morin, MORIN & BARKLEY, Charlottes-
ville, Virginia, for Appellant. Bruce David Rasmussen, MICHIE,
HAMLETT, LOWRY, RASMUSSEN & TWEEL, P.C., Charlottes-
ville, Virginia, for Appellee. ON BRIEF: Leon F. Szeptycki, Patricia
C. Karppi, MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P.,
Charlottesville, Virginia, for Appellant. Edmund R. Michie, MICHIE,
HAMLETT, LOWRY, RASMUSSEN & TWEEL, P.C., Charlottes-
ville, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Appellant, Bungee International Manufacturing Corporation
(Bungee), appeals the magistrate judge's entry of judgment in favor
of the appellee, Larry S. Dudley (Dudley), following a jury trial in a
products liability action. For the reasons discussed below, we affirm
in part and reverse in part.

I.

This action arises out of an injury Dudley sustained to his left eye
on September 17, 1992, while using one of Bungee's cords to secure
the flaps of a tarp covering a load of plywood on his trailer. To secure
the tarp, Dudley first placed the cradle of one hook (the curved part
of the hook) into one of the tarp's grommets. Dudley then stretched
the cord and fastened the hook on the other end of the cord to a metal
cup along the side of the trailer. After Dudley fastened the second
hook in the metal cup, the first hook that had been in the grommet of
the tarp bent and released from the grommet as Dudley was in the
process of letting go of the stretched portion of the cord. The cord
then snapped back towards Dudley, and the hook that had been in the
grommet of the tarp struck him in the left eye causing permanent eye
damage.

                    2
Dudley, a Virginia citizen, commenced this diversity action against
Bungee and the retailer of the cords, Price Club. 1 Dudley's complaint
alleged claims against both defendants for negligence, breach of
express and implied warranties, violation of the Virginia Consumer
Protection Act, actual fraud, and constructive fraud. In particular,
Dudley's complaint alleged that Bungee was negligent in designing
the cord and negligent in failing to adequately warn Dudley of the
cord's potential danger. The parties consented to the jurisdiction of,
and all the proceedings were heard by, a magistrate judge. See 28
U.S.C.A. § 636(c) (West 1993).

The jury returned a verdict against Bungee on Dudley's claims for
breach of express warranty2 and negligence, but failed to distinguish
between Dudley's negligent design and negligent warning claims.3
The jury, however, returned a verdict for Bungee on Dudley's claim
for breach of implied warranty and his claim for Bungee's alleged
violation of the Virginia Consumer Protection Act. The jury also
returned a verdict for Price Club on all of Dudley's claims. The jury
awarded Dudley $350,000 in compensatory damages on his claims for
breach of express warranty and negligence and $350,000 in punitive
damages.

After the magistrate judge entered judgment on the verdict, Bungee
filed a motion for judgment as a matter of law and for a new trial. The
magistrate judge denied those motions, and Bungee timely filed its
notice of appeal.
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1 It is undisputed that Virginia law applies.

2 Dudley contends that Bungee created an express warranty with the
following three statements: (1) that the cords were"MADE IN USA"; (2)
that the cords were "PREMIUM QUALITY"; and (3) that "When prop-
erly used, BUNGEE cords are safe and dependable for industrial, truck-
ing, marine, automotive, and recreational vehicle use where tough, high-
tensile strength is required." (J.A. 1325).
3 Although the verdict form submitted to the jury was a special verdict
as to the majority of Dudley's claims, it was a general verdict as to Dud-
ley's negligence claim because it did not distinguish between Dudley's
design defect and failure to warn claims.

                    3
II.

Bungee raises numerous assignments of error, only a few of which
merit discussion. We shall address each of these assignments of error
in turn.

A.

Bungee first contends that the magistrate judge erred in failing to
grant it judgment as a matter of law on Dudley's negligence claim.
Bungee does not attack the jury's finding that it was negligent in
either designing the cord or in failing to warn of the cord's dangers.4
Instead, as Bungee's argument goes, Dudley presented insufficient
evidence to allow a jury to find the cause of the accident, leaving the
jury to speculate whether Bungee's negligence was the proximate
cause of Dudley's injuries. See Edwards v. Hobson, 54 S.E.2d 857,
859 (Va. 1949) (plaintiff cannot recover under a negligence theory if
the evidence leaves the cause of the accident "wholly within the realm
of surmise and speculation"). We disagree.

Dudley produced sufficient evidence demonstrating the cause of
the accident. He presented evidence that the hook bent, released, and
struck him in the eye because the cord's hook was not strong enough
to withstand the force he applied to it as he stretched the cord. Even
though Dudley initially fastened the cradle of the cord's hook in the
tarp's grommet, Dudley's expert witness (Hendrickson) testified that
the hook could have become caught at its tip (tip loaded) on an object
adjacent to it. Hendrickson specifically noted that the cord's hook
could have shifted positions and become tip loaded as Dudley pulled
and stretched the cord while attaching the second hook to the metal
cup. Significantly, Hendrickson stated that the cord's hook would be
easier to bend when it was tip loaded because the steel in the cord's
hook was not strong enough to withstand the force Dudley applied to
it as he stretched the cord. Finally, Hendrickson testified that the
cord's hook could release from the tarp's grommet if the pressure on
the cord's hook was lessened. Hendrickson stated that the pressure on
the hook would be reduced as Dudley let go of the stretched portion
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4 Nor does Bungee attack the size of the jury's compensatory damage
award.

                    4
of the cord, a matter on which Dudley testified. Clearly, this evidence
would allow the jury to conclude that the accident occurred as Hen-
drickson described.5 Accordingly, the magistrate judge did not err in
denying Bungee's motion for judgment as a matter of law. Therefore,
we affirm the award of compensatory damages.6

B.

We now turn to the issue of punitive damages. Bungee contends
that, even assuming it was liable to Dudley under his design defect
and failure to warn theories, the magistrate judge erred in refusing to
grant it judgment as a matter of law on the issue of punitive damages.
For Bungee to be entitled to a judgment as a matter of law on the
issue of punitive damages, Bungee must show that Dudley is not enti-
tled to punitive damages under both negligence claims. See Richards
v. Michelin Tire Corp., 21 F.3d 1048, 1054-55 (11th Cir. 1994), cert.
denied, 115 S. Ct. 902 (1995).
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5 Bungee also argues that Dudley presented inconsistent testimony as
to whether the cord's hook was tip loaded before the accident. Specifi-
cally, Bungee contends that Dudley testified the accident happened as the
hook was attached to the tarp's grommet at its cradle (cradle loaded) and
that Hendrickson testified the accident occurred when the hook was tip
loaded. We believe Dudley's testimony was not inconsistent with Hen-
drickson's testimony. Although Dudley testified that the hook was ini-
tially cradle loaded, Dudley specifically stated that he did not know if the
cord's hook changed positions after he placed it in the tarp's grommet.
Further, Hendrickson testified that Dudley would not have noticed that
the cord's hook shifted positions and became tip loaded because the con-
ditions allowing the hook to become tip loaded are usually hidden from
the user. Thus, Dudley's testimony did not contradict Hendrickson's tes-
timony since it did not rule out the possibility that the cord's hook shifted
from a cradle loaded position to a tip loaded position prior to the acci-
dent.

6 Since we have affirmed Dudley's claim for compensatory damages on
the negligence count, we find it unnecessary to address the question of
whether the labelling on the cord's bag created any express warranties.
See Compton v. Wyle Lab., 674 F.2d 206, 208 n.1 (4th Cir. 1982), the
second claim on which the jury found Bungee liable.

                     5
Virginia law permits the recovery of punitive damages when the
plaintiff proves the defendant's negligence was"so willful or wanton
as to evince a conscious disregard of the rights of others." Booth v.
Robertson, 374 S.E.2d 1, 3 (Va. 1988). "Willful and wanton negli-
gence is acting consciously in disregard of another person's rights or
acting with reckless indifference to the consequences, with the defen-
dant aware, from his knowledge of existing circumstances and condi-
tions, that his conduct probably would cause injury to another."
Griffin v. Shively, 315 S.E.2d 210, 213 (Va. 1984). See also Clohessy
v. Weiler, 462 S.E.2d 94, 96 (Va. 1995) (quoting Griffin). Virginia
law, however, precludes a finding of willful and wanton negligence
when a defendant has shown some care for the safety of others. Philip
Morris, Inc. v. Emerson, 368 S.E.2d 268, 283 (Va. 1988). We further
note that Virginia law does not favor the awarding of punitive dam-
ages, reserving such awards only for the most egregious circumstances.7
Id.

1.

Bungee claims that, assuming it was liable to Dudley under his fail-
ure to warn theory, its actions did not rise to the level of willful and
wanton negligence because it exercised some care for the safety of
others by placing a warning on the cord's bag. We agree.

The warning that Bungee placed on the bag shows that it exercised
some care for the safety of others. Bungee's warning was as follows:

           1. CORD IS STRETCHED TOO FAR. Do not use
           BUNGEE when stretch will be greater than Seventy Five
           (75%) Percent of its stretchable length. Stress on anchor
           points is increased many times as the cord approaches its
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7 For examples of conduct creating a jury issue as to willful and wanton
negligence, see Owens-Corning Fiberglas Corp. v. Watson, 413 S.E.2d
630, 642 (Va. 1992) (where for several decades the defendant actively
concealed the danger that inhalation of dust from one of its products
could cause lung disease); Griffin, 315 S.E.2d at 213 (where the defen-
dant fired a gun in close proximity to a number of people in a relatively
small room); Friedman v. Jordan, 184 S.E. 186, 187 (Va. 1936) (where
the defendant chased and ran over a bicyclist with his car).

                     6
          maximum stretch limit, possibly resulting in failure of either
          fastener and dangerous rebound.

(J.A. 1325). This warning, at least in general terms, warned others of
the dangers of stretching the cord too far. It is undisputed that Dudley
had to stretch the cord over seventy-five percent of its stretchable
length before the cord's hook would bend. Thus, since Bungee
warned of the potential danger that injured Dudley, it exhibited some
care for his safety. Because Bungee exercised some care for the safety
of others, an award of punitive damages was not warranted under a
failure to warn theory.8 See Richards, 21 F.3d at 1059 (applying Ala-
bama law) ("We have repeatedly held that the issue of punitive dam-
ages should not go to the jury when a manufacturer takes steps to
warn the plaintiff of the potential danger that injured him; such acts
bar a finding of wantonness."); Bhagvandoss v. Beiersdorf, Inc., 723
S.W.2d 392, 398 (Mo. 1987) (en banc) ("[I]nadequate communication
cannot be equated to conscious disregard.").

2.

Bungee also claims that, assuming it was liable to Dudley under his
negligent design theory, its actions did not rise to the level of willful
or wanton negligence because there was insufficient evidence pres-
ented at trial to demonstrate that it knew the cord's design would
cause injury to another. We agree.

The evidence presented shows that any negligence on the part of
Bungee in designing its cords does not rise to the level of willful and
wanton negligence because Bungee could not have been aware from
its "knowledge of existing circumstances and conditions, that [the
cord's design] probably would cause injury to another." Griffin, 315
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8 Dudley's reliance on our recent decision in Benedi v. McNeil-P.P.C.,
Inc., 66 F.3d 1378, 1383 (4th Cir. 1995), is misplaced. In Benedi, the
plaintiff's liver was injured by acetaminophen toxicity, which is caused
by combining acetaminophen with alcohol. Although the defendant had
placed a warning on its product (Tylenol), the warning failed to warn,
even in general terms, of the danger of combining alcohol and
acetaminophen. Thus, unlike this case, the defendant showed no concern
for the safety of those in the plaintiff's position.

                     7
S.E.2d at 213. In attempting to prove Bungee was aware that the
design of its cords probably would cause injury to another, Dudley
introduced evidence of two lawsuits filed against Bungee before Dud-
ley's injury which contained allegations similar to the allegations in
Dudley's complaint. Although prior lawsuits are relevant to prove
wantonness, see Skil Corp. v. Lugsdin, 309 S.E.2d 921, 922-23 (Ga.
Ct. App. 1983); 2A LOUIS R. FRUMER & MELVIN I. FRIEDMAN,
PRODUCTS LIABILITY § 18.02[1], 18-29 (1995), one's "notice of prior
injuries does not automatically create a jury question on wantonness."
Richards, 21 F.3d at 1058.

In Richards, Michelin knew of four incidents involving an injury
from the alleged defect (mismatches) in its tires out of some thirteen
to fifteen million tires it sold. Since the evidence showed the inci-
dence of mismatches was one in millions, the court found that a jury
could not conclude that Michelin knew the mismatches were likely.
Thus, it granted Michelin's motion for judgment as a matter of law
on the plaintiff's punitive damages claim. Id. The court, however,
noted that it may have reached a different result if Michelin had
known of more mismatches. Id.

Bungee is in a position analogous to Michelin. Bungee offered evi-
dence to show that it sold seven million cords9 through Price Club for
purposes of establishing that two lawsuits would not make it aware
that any defect in its cords probably would cause injury to another.
The magistrate judge, however, excluded this evidence as being irrel-
evant and, even if relevant, as being unduly prejudicial. This ruling
was error because the evidence of the number of cords sold was rele-
vant and probative as to whether Bungee should have known that its
cords probably would cause injury to another. See 1 JOHN W. STRONG
ET AL., MCCORMICK ON EVIDENCE § 200, 850-51 (4thed. 1992) ("A
large number of cases recognize that lack of other accidents may be
admissible to show . . . (3) the nonexistence of an unduly dangerous
situation, or (4) want of knowledge (or of grounds to realize) the dan-
ger.") (footnotes omitted).
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9 Although Bungee had actually sold over thirty million of these cords,
it only proffered the fact it had sold seven million cords through Price
Club.

                    8
We further note that Dudley did not introduce any other evidence
showing that Bungee knew that the design of its cords probably
would cause injury to another.10 Since the evidence in this case shows
the incidence of hook failure was literally one in millions, we find
that Bungee could not have known from claims in two lawsuits that
the design of its cords probably would cause injury to another.
Because, under the circumstances, Bungee could not have known that
its cord design probably would cause injury to another, an award of
punitive damages was not warranted under a negligent design theory.

3.

Bungee has demonstrated that Dudley was not entitled to punitive
damages under either a negligent design or negligent failure to warn
theory.11 Therefore, we must reverse the magistrate judge's denial of
Bungee's motion for judgment as a matter of law on the issue of puni-
tive damages.

III.

Bungee also challenges several of the magistrate judge's evidenti-
ary rulings. We have reviewed these contentions and find none of the
evidentiary rulings affected Bungee's substantial rights. See FED. R.
CIV. P. 61. Accordingly, for all the foregoing reasons, the judgment
entered by the magistrate judge is affirmed as to Dudley's claim for
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10 Although Dudley introduced other evidence allegedly showing
Bungee acted with willful and wanton negligence, none of the evidence
was relevant to show that Bungee knew the design of its cords probably
would cause injury to another.

11 For Dudley to sustain an award of punitive damages on his breach
of express warranty claim, he must show Bungee's alleged breach of the
express warranty amounts to an independent, willful tort. See Kamlar
Corp. v. Haley, 299 S.E.2d 514, 518 (Va. 1983). Although Dudley has
argued that Bungee's statements, see supra note 2, created an express
warranty, he has not argued that these statements constituted an indepen-
dent, willful tort. Thus, an award of punitive damages is not warranted
under a breach of express warranty theory.

                    9
compensatory damages and reversed as to Dudley's claim for punitive
damages.

AFFIRMED IN PART AND REVERSED IN PART

                   10
