UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES D. HUFF,
Plaintiff-Appellant,

and

BRENDA F. HUFF, his wife,
Plaintiff,

v.
                                                               No. 96-1248
J. H. FLETCHER & COMPANY, a
Delaware corporation,
Defendant-Appellee,

and

COMMERCIAL INTERTECH
CORPORATION,
Party in Interest.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CA-94-0878-3)

Argued: March 6, 1997

Decided: May 14, 1997

Before RUSSELL, HALL, and NIEMEYER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Robert Charles Chambers, BUCCI, CHAMBERS &
WILLIS, L.C., Charleston, West Virginia, for Appellant. Michael
Joseph Farrell, FARRELL, FARRELL & FARRELL, L.C., Hunting-
ton, West Virginia, for Appellee. ON BRIEF: Guy R. Bucci, L. Lee
Javins, II, BUCCI, CHAMBERS & WILLIS, L.C., Charleston, West
Virginia; David B. Rasmussen, MICHIE, HAMLETT, LOWRY,
RASMUSSEN & TWEEL, P.C., Charlottesville, Virginia, for Appel-
lant. Charlotte A. Hoffman, Tamela J. White, FARRELL, FARRELL
& FARRELL, L.C., Huntington, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

James Huff worked for a coal mining company in Virginia. He
operated a piece of equipment called a roof bolter, manufactured by
the appellee, J.H. Fletcher and Company ("Fletcher"). A roof bolter
drills holes in the top of the mine shaft.1 Bolts are then inserted to pre-
vent the roof of the shaft from collapsing while the miners get at the
coal. Huff was injured when the roof bolter he was operating mal-
functioned.

Roof bolters are big, heavy pieces of machinery, controlled by
hydraulic systems. A roof bolter has an arm or "boom" that moves
both up and down, and sideways, so that the worker can maneuver it
into the right position. Because of a malfunction in the internal
hydraulic system of the roof bolter, the boom unexpectedly swung
sideways at about three times its normal speed, and injured Huff.
_________________________________________________________________
1 "Roof bolter" is also used as a job title, to identify the man who oper-
ates the machine.

                     2
Although Huff continued to work for a few weeks following the acci-
dent, he eventually took full disability because of the accident.

The record of evidence revealed that the roof bolter had been acting
erratically for several days before Huff's injury; that Huff and other
workers had complained to mine management that the machine was
malfunctioning; and, that mine repairmen were unsuccessful at diag-
nosing and fixing the problem. Two days before the accident, Huff's
coworkers had warned him to "keep an eye on the drill." On the day
before the accident Huff tested the roof bolter. He summoned a mine
mechanic, who could neither diagnose nor fix the problem. On the
morning of the accident Huff again operated the roof bolter, despite
having been warned by the previous shift that the machine was mal-
functioning. During his shift, the machine malfunctioned and injured
Huff.

Huff sued the manufacturer of the machine in United States District
Court in West Virginia, asserting claims of strict liability, breach of
warranty and negligence. The district court properly applied Virginia
law, because the accident occurred in that state. Fletcher moved for
summary judgment, which the district court granted. This appeal fol-
lowed.

Huff presents three issues in his appeal: (1) the district court misap-
plied the open and obvious danger defense; (2) the district court mis-
understood or took out of context testimony from Huff and other
witnesses; and, (3) factual disputes exist which bar granting summary
judgment.

We have carefully reviewed the record, the parties' briefs, and
heard oral argument in this case. Only one contention requires our
attention. When appealing the district court's application of the open
and obvious danger rule, Huff points out that between the time of the
district court's grant of summary judgment and the filing of the brief
in his appeal, the Virginia Supreme Court issued its opinion in
Morgen Indus., Inc. v. Vaughan.2 Huff claims the court rejected the
open and obvious danger defense in that case, and that the defense no
_________________________________________________________________

2 471 S.E.2d 489 (Va. 1996).

                    3
longer exists under Virginia law. We find no such statement in
Vaughan, nor do we agree that the court's holding abolished the rule.

All other issues raised by Huff are meritless, and have been prop-
erly addressed by the district court without error. Accordingly, we
affirm the order of the district court.

AFFIRMED

                    4
