                         UNITED STATES COURT OF APPEALS
Filed 6/26/96
                               FOR THE TENTH CIRCUIT



    WILLIAM C. ALLEMAN,

                Plaintiff-Appellant,

    v.                                                         No. 95-6299
                                                          (D.C. No. CV-94-1725)
    DELTA INTERNATIONAL                                        (W.D. Okla.)
    MACHINERY CORPORATION,

                Defendant-Appellee.




                               ORDER AND JUDGMENT*



Before EBEL, BARRETT, and HENRY, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral argument.

See Fed. R. App. P. 34 (f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.


*
       This order and judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. The court generally disfavors the citation
of orders and judgments; nevertheless, an order and judgment may be cited under the terms
and conditions of 10th Cir. R. 36.3.
       Plaintiff William C. Alleman appeals from a jury verdict in favor of defendant Delta

International Machinery Corporation in a product liability suit. Plaintiff’s claims arose from

an accident in which he was injured when the blade of a motorized miter saw, manufactured

by defendant, fell, amputating the thumb and three fingers of his hand. In his complaint,

plaintiff alleged liability based on defendant’s failure to incorporate a guard, failure to warn,

and because a return spring which kept the arm of the saw and the blade raised out of the

work area until the operator lowered it, was metallurgically defective. Plaintiff’s first two

claims were abandoned at trial, and thus, only his claim regarding the defect in the spring was

sent to the jury.

       The facts surrounding the accident were not in dispute. When the accident occurred,

plaintiff was attempting to remove a piece of scrap which was blocking the movement of the

blade of the miter saw he was using in his workplace. He had his hand on the trigger, and

the saw was running when he reached to clear the blockage. When he let go of the handle,

the arm of the saw fell causing the blade to cut his hand. There was some dispute, however,

as to the visible condition of the saw when plaintiff began using it. Both plaintiff and his

father, who worked with him, noticed that the saw “was sagging an inch or so.” Appellant’s

Br. at 6. Plaintiff’s employer testified that the saw “was sagging almost to the work table.”

Id.

       At trial, plaintiff presented evidence from an expert metallurgist that the spring which

held the arm of the saw up was broken due to a defect which existed when the saw was


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manufactured. Although defendant agreed that the spring had a “flaw,” it denied that the

flaw rendered the saw unsafe or dangerous beyond the contemplation of the ordinary user.

       Defendant asserted the affirmative defense of assumption of the risk, alleging that

plaintiff, knowing the saw was in a defective condition, purposely placed his hand beneath

the moving blade and failed to use the blade brake. Plaintiff moved for a directed verdict on

the assumption of the risk defense, alleging that defendant failed to prove that the saw was

defective. The district court denied the motion, finding that there was sufficient proof from

plaintiff that the saw was defective to meet that element of the defense. On appeal, plaintiff

contends that the district court erred in (1) denying his motion for a directed verdict, and (2)

instructing the jury on the assumption of the risk defense.

       We review the denial of a motion for a directed verdict de novo. FDIC v. United Pac.

Ins. Co., 20 F.3d 1070, 1079 (10th Cir. 1994). “Under this standard, ‘we may find error in

the denial of such a motion only if the evidence points but one way and is susceptible to no

reasonable inferences supporting the party opposing the motion; we must construe the

evidence and inferences most favorably to the nonmoving party.’” Id. (quoting Ralston Dev.

Corp. v. United States, 937 F.2d 510, 512 (10th Cir 1991)(citation omitted)).

       In a diversity case, we apply the law of the forum state. See Holt v. Deere & Co., 24

F.3d 1289, 1291 (10th Cir. 1994). Under Oklahoma law, in order to establish an assumption

of the risk defense, the defendant must prove that plaintiff had “‘[s]ubjective awareness of

the defect and consequent risk of injury.’” Id. at 1292 (quoting McMurray v. Deere & Co.,


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858 F.2d 1436, 1440 (10th Cir. 1988)). We conclude that the district court’s denial of a

directed verdict was correct, and the jury was properly instructed on assumption of the risk

under Oklahoma law.

       First, plaintiff argues that defendant cannot assert that the saw was not defective, and

also assert, in the alternative, that if the saw was defective, plaintiff knew of the defect and

voluntarily assumed the risk. We do not agree. We have previously held that Oklahoma law

allows alternative assertions in product liability cases. See id. at 1296 n.5.

       Next, plaintiff asserts that defendant presented no evidence to prove that plaintiff

knew of the defect and appreciated the danger. In Barber v. General Electric Co., 648 F.2d

1272, 1277 (10th Cir. 1981), this court interpreted Oklahoma law as stated in Kirkland v.

General Motors Corp., 521 P.2d 1353 (Okla. 1974) and Hogue v. A.B. Chance Co., 592 P.2d

973 (Okla. 1978) to mean that in order to successfully assert an assumption of the risk

defense in a products liability case, the defendant must present sufficient evidence from

which a jury could find that the plaintiff knew of a defect and assumed a known risk. See

also Bingham v. Hollingsworth Mfg. Co., 695 F.2d 445, 450 (10th Cir. 1982).

       In Holt, this court, applying Oklahoma law, discussed how specifically a plaintiff must

understand a defect in order to assume the risk. 24 F.3d at 1292-94. We held that “a plaintiff

can ‘assume the risk of a known defect’ without specific, technical knowledge of the cause

of the product’s dangerous, defective condition.” Id. at 1293. We limited the holding by

reiterating that general knowledge of the danger does not establish an assumption of the risk,


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and stating that the holding does not relieve the defendant of the burden of proving “that the

plaintiff was subjectively aware of and appreciated the specific dangers in using the specific

product in the specific manner he was using it when the accident occurred.” Id.

       Here, we believe that defendant met its burden of proof under Holt. It is clear that

plaintiff was aware that the saw was sagging, regardless of the degree of sagging observed.

It also is clear that, being aware that the saw was sagging, plaintiff proceeded to place his

hand beneath the moving blade and release the handle. Although common sense would

dictate that plaintiff’s actions were careless, mere carelessness does not bar a plaintiff’s

recovery under the assumption of the risk doctrine. Id. (citing Fields v. Volkswagen of Am.,

Inc., 555 P.2d 48, 56-57 (Okla. 1976)). Joining plaintiff’s careless use of the saw with his

admitted awareness of the defective condition of the saw, however, provides sufficient

evidence from which a jury could determine that he voluntarily assumed the risk of a known

defect. See id. at 1294.

       When deciding a motion for a directed verdict, the trial court must give credence to

all evidence and inferences favorable to the party against whom the verdict would be directed

and must disregard conflicting evidence favorable to the moving party. Bingham, 695 F.2d

at 450. Our review of the record indicates that evidence of assumption of the risk in this case

was not so patently in favor of plaintiff that a directed verdict on the issue would have been

proper.




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       Finally, plaintiff, relying on McMurray, argues that there was insufficient evidence

that plaintiff had knowledge of the specific defect to justify submitting the instruction on

assumption of the risk to the jury. “The question of whether a jury was properly instructed

is a question of law, and thus, our review is de novo.” United States v. Lee, 54 F.3d 1534,

1536 (10th Cir.), cert. denied, 116 S. Ct. 247 (1995). The court’s grant or denial of a jury

instruction is a procedural matter governed by federal law. Holt, 24 F.3d at 1292. Pursuant

to federal law, it is error to submit an instruction when there is no evidence to support it.

Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1297 (10th Cir. 1989).

       In McMurray, a tractor bypass started in gear, running over and killing the plaintiff.

The defendant asserted an assumption of the risk defense which the court submitted to the

jury. The jury found in favor of the defendant. On appeal, we reversed and remanded for

a new trial, holding that the defendant failed to present sufficient proof on its assumption of

the risk defense to submit the defense instruction to the jury. 858 F.2d at 1441.

       Defendant argues that McMurray is factually distinguishable in that the plaintiff in

McMurray was killed, and therefore the jury heard no testimony from him regarding his

knowledge of the defect. Defendant asserts that this court’s interpretation of state law in

Holt is more applicable here. We agree.

       In Holt, a case factually similar to McMurray, the plaintiff was severely injured when

a road grader started in gear. The jury found in favor of the defendant. On appeal, we

determined that although a defendant must prove that the plaintiff had “[s]ubjective


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awareness of the defect and consequent risk of injury,” McMurray, 858 F.2d at 1440, it need

not prove that the plaintiff had “specific, technical knowledge of the cause of the product’s

dangerous, defective condition.” Holt, 24 F.3d at 1293. Therefore, the defendant did not

need to prove that the plaintiff knew that the starting circuitry designed to prevent the grader

from starting in gear was defective. We concluded that the plaintiff’s careless operation of

the grader, knowing that the grader started in gear, was sufficient proof to bar his recovery

under an assumption of the risk doctrine, and the question should be submitted to the jury.

Id. at 1293-94.

       Applying Holt here, defendant did not need to prove that plaintiff had knowledge of

the specific mechanical defect, the flawed spring, which caused the saw to sag. There was

evidence that plaintiff was aware of the defective condition of the saw, and that he not only

continued to use the saw, but used it in what could best be described as a careless manner.

Consequently, under the circumstances, we determine that there was sufficient evidence to

support the instruction to the jury on assumption of the risk.

       In conclusion, we find no error in the trial court’s refusal to direct a verdict on the




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defense of assumption of the risk or in the court’s instructions to the jury on the defense. The

judgment of the United States District Court for the Western District of Oklahoma is

AFFIRMED.



                                                           Entered for the Court



                                                           David M. Ebel
                                                           Circuit Judge




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