UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DOUGLAS STUTTS,
Plaintiff-Appellant,

v.
                                                                        No. 96-2525
FLUOR DANIEL, INCORPORATED; VIOLA
INDUSTRIES,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CA-93-1979-3-0)

Argued: June 5, 1997

Decided: September 22, 1997

Before HALL and MURNAGHAN, Circuit Judges, and
GARBIS, United States District Judge for the
District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by unpublished opin-
ion. Judge Garbis wrote the opinion, in which Judge Murnaghan and
Judge Hall joined.

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COUNSEL

ARGUED: John Daniel Kassell, SUGGS & KELLY, Columbia,
South Carolina, for Appellant. Heyward Elliott McDonald, MCDON-
ALD, MCKENZIE, FULLER, RUBIN & MILLER, Columbia, South
Carolina, for Appellee Fluor Daniel; Manton McCutchen Grier,
SINKLER & BOYD, P.A., Columbia, South Carolina, for Appellee
Viola. ON BRIEF: Gary H. Johnson, II, MCDONALD, MCKEN-
ZIE, FULLER, RUBIN & MILLER, Columbia, South Carolina, for
Appellee Fluor Daniel; Clarke W. DuBose, SINKLER & BOYD,
P.A., Columbia, South Carolina, for Appellee Viola.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

GARBIS, District Judge:

On July 10, 1991, Douglas Stutts was severely injured when he fell
from a manlift at his employer's paper mill. He brought the instant
action against the manlift installer, Fluor Daniel, Inc. ("Fluor Dan-
iel"), and against the manlift manufacturer, Viola Industries ("Viola").

At trial, the district court excluded the testimony of two of Plain-
tiff's co-workers regarding malfunctions they had witnessed on the
same manlift as well as the testimony of Plaintiff's proffered expert
witness on manlift manufacturing. At the conclusions of all of the evi-
dence, the district court granted judgment as a matter of law to both
Defendants on the ground that there was no evidence of a manufactur-
ing defect and that Plaintiff had failed to prove that any manufactur-
ing defect or negligent installation of the manlift was a proximate
cause of the accident.

For the reasons stated herein, we affirm as to the manufacturer but
reverse as to the installer and remand for a new trial with instructions
to the district court to admit the proffered testimony of Plaintiff's co-
employees.

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I.

A manlift is a large vertical conveyor belt used to transport workers
between the floors of a building. The belt is draped over a top drive
pulley and wound around a bottom pulley. The bottom pulley can
travel several inches up or down in its bearing to maintain tension on
the belt. The pulleys are supported by four channel rails,1 one in each
corner, that run the length of the manlift. Handholds and steps are
bolted to the belt. Riders mount a step and hold on to a handhold to
travel up one side or down the other side. Each step is guided along
the channel rails by four rubber rollers. Each floor opening through
which the manlift passes is surrounded by guardrails to reduce the
likelihood of someone accidentally falling through. The manlift
involved in this case was manufactured by Viola and installed by
Fluor Daniel. It was placed into operation at the Union company
paper mill where Stutts was employed on June 26, 1991.

On July 10, 1991, Stutts was on the fourth floor retrieving a flash-
light. He intended to take the manlift to return to the second floor.
Ronald Crall, who was working on the second floor, testified that he
was looking at a warning tag approximately five to seven feet from
the manlift when he felt a vibration or shaking. He looked up and saw
Stutts falling head first through the manlift shaft. Wall observed that
at no time did the manlift stop moving. No witnesses saw Stutts
mount or ride the manlift, and because of the closed head injuries he
sustained, Stutts was unable to remember any details about the fall.

Steven Carter, a maintenance employee, testified that he rode the
manlift the day before Stutts' fall. He testified that the channel rails
were not "plumb" and had numerous friction points which caused the
rollers attached to the steps to jam. According to Carter, if a jam
occurred on the descending side of the belt, the step would come to
a stop while the top drive would continue to rotate and place tension
on the belt on the ascending side of the manlift. As a result, the bot-
tom pulley would move upward in its bearing, causing slack to
develop in the belt on the descending side. Because the handholds are
attached to the belt, slack in the belt would cause a rider to lean back-
wards. Carter stated that when the bottom pulley reached the physical
_________________________________________________________________
1 Channel rails are vertical stationary sections. (J.A. 85).

                    3
limit of its movement up, tension would develop on the descending
side of the belt that ultimately caused the stuck roller to suddenly
break free, accompanied by a shaking or a big jolt.

Stutts presented Gerald Cole as an expert witness. Cole had forty
years of experience installing manlifts. For twenty-two years he has
been president of a company that specializes in manlift installation
and manufacturing of materials handling equipment. Cole testified
that when he inspected the manlift after the accident, he found several
defects. He stated that a combination of these defects would likely
cause a step roller to jam. If the jam occurred on the descending side,
it could produce a malfunction like that described by Steven Carter.
According to Cole, the belt would bow outward, causing the rider to
lean backward. The tension would finally force the step loose with a
loud banging noise. This motion, Cole explained, is likely to throw
a rider from the manlift.

The court excluded the testimony of two of the Plaintiff's co-
employees. The testimony of Michael Lambert (presented outside the
presence of the jury) would have been that two or three days before
Stutts' fall, Lambert almost fell off the same manlift. Lambert said
that he was traveling on the descending side just below the third level
floor opening when the step on which he was standing stopped. The
belt above continued to move, creating a slack in the belt that was
between one and one and a half feet. Lambert was thrown backward,
and experienced a violent jerking motion when the step began moving
again.

Also outside the presence of the jury, Plaintiff's counsel proffered
the testimony of Charles Presson. Presson would have testified that
a day or two before Stutts' fall, he was traveling on the manlift in a
downward direction just below the third level floor opening. The step
on which Presson was standing stopped abruptly, and slack developed
in the belt, forcing the handhold to bow outward.

II.

The question of whether the evidence presented is sufficient to
create a jury issue is a question of law to be decided by the court, and
thus is reviewed de novo. See Anheuser-Busch, Inc. v. L & L Wings,

                    4
Inc., 962 F.2d 316, 318 (4th Cir. 1992). In diversity cases, the federal
rule governs this issue. See Charleston Area Med. Ctr., Inc. v. Blue
Cross and Blue Shield Mut., 6 F.3d 243, 247 (4th Cir. 1993). Under
the federal rule, the court must ask whether "there is evidence on
which a jury properly can base a verdict." Id. The court must view the
evidence in the light most favorable to the party against whom the
motion was made, and may not weigh the evidence or assess the cred-
ibility of witnesses. See id. at 247-48.

A.

The district court found that Stutts did not present enough evidence
to reach the jury on the issue of the manufacturer's liability. Plaintiff
contends that this ruling was in error.

At trial, Stutts' expert witness, Cole, testified that the manufac-
turer, Viola, made its channel rails with splice angles2 mounted in a
crooked fashion. He stated that Viola had welded the splice angles on
incorrectly, and that these deformed splice angles, coupled with faulty
installation, caused uneven splices where the lengths of channel were
joined. The step roller then jammed in one of these rough splices,
resulting in the malfunction Cole believed was the cause of Stutts'
fall. He also testified that after Stutts' fall, the splice angles had to be
remounted on the channel rails.3

On cross-examination, however, Cole recognized that the manufac-
turer's manual directed the installer to align the machine properly and
grind the joints smooth, and acknowledged that grinding the splice
joints smooth is a standard operating procedure when installing a belt
manlift. Moreover, Cole admitted that he could not tell whether
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2 Splice angles are flanges that are welded on to the channel ends so
that the manufacturer can bolt various pieces of channel together to form
the manlift tracks. (Appellees' Brief at 22).

3 Appellees argue that the court properly could have rejected Cole's
testimony on this point based on the deposition of Larry Barnes and the
pictures of the splice angles presented by Viola. (Appellees' Brief at 28-
32). Because we draw all reasonable inferences in favor of the Plaintiff,
we include this testimony in our consideration of the evidence.

                     5
proper installation of the manlift may have cured the problem of the
rough joints.

Cole's testimony does not amount to substantial evidence of a man-
ufacturing or design defect. Simply put, a manufacturer of a product
that is safe when it leaves the manufacturer's control cannot be held
liable for injuries caused by negligent installation or improper mainte-
nance by other parties. See, e.g., Ford Motor Co. v. McDavid, 259
F.2d 261 (4th Cir. 1958); Brannon v. Southern Ill. Hosp. Corp., 386
N.E.2d 1126 (Ill. App. Ct. 1979) (holding that a manufacturer could
be held not liable for death caused by a spreader bar left on a dumb-
waiter for shipping purposes when the manufacturer had instructed
the installer to remove the bar). Here, Stutts produced no testimony
that the manlift could not have been safely installed. Accordingly, we
affirm the district court's grant of a directed verdict in favor of Viola.4

B.

Plaintiff challenges the district court's ruling that Stutts did not
produce enough evidence to reach the jury on the issue of proximate
cause.

A jury may consider the issue of proximate cause only if the plain-
tiff "produces evidence demonstrating that [cause] to be at least a rea-
sonable probability rather than merely one of several equally
surmisable possibilities." Charleston Area Med. Ctr., Inc. v. Blue
Cross and Blue Shield, 6 F.3d at 247. Because of his amnesia and the
lack of eyewitnesses, Stutts needed to rely on circumstantial evidence
to meet this burden.

At trial, Plaintiff presented his theory that a step-jamming malfunc-
tion of the type described by Cole was the cause of his fall and his
injury. Ron Crall testified that the manlift vibrated, shook, and jerked
just before Stutts fell. According to Steve Carter and Gerald Cole (and
Michael Lambert, whose testimony was excluded), this vibration is a
hallmark of the malfunction Plaintiff believes occurred. Cole also tes-
_________________________________________________________________
4 The question of Cole's qualification as an expert in manlift manufac-
turing is, therefore, rendered moot.

                     6
tified that the manlift's lack of straight, smooth joints made it suscep-
tible to this type of malfunction.

Defendants propose other possible explanations for the fall. Defen-
dants argue that it was equally likely that Stutts misstepped, had a
fainting spell, or caught a piece of his clothing or equipment on the
manlift. There is no evidence that would require a reasonable jury to
accept these theories. In fact, the evidence suggests that these events
were unlikely to have occurred. Stutts testified that on the day of the
fall, he felt physically fine and showed no signs of fatigue or illness.
He had no medical condition or history that would make him likely
to faint. Although at the time of the fall Stutts was wearing several
items on his person in violation of safety regulations pertaining to
manlifts, Stutts testified that he was experienced in wearing such
items while riding the manlift. Moreover, none of this equipment was
stretched or pulled, or otherwise indicated that it had been a cause of
the accident.

Stutts' burden of proof does not require him to eliminate every pos-
sible cause of his fall. He is merely required to demonstrate that it is
reasonably probable that the installation defects caused his injury.
Given that the number of possible explanations of the accident is lim-
ited, the malfunction theory, as explained by Cole and corroborated
by Carter, meets that standard. We conclude that Stutts has presented
enough evidence to render it reasonably probable that negligence in
installation was a proximate cause of the accident. The question of
proximate cause should have been submitted to the jury. We reverse
and remand for this purpose.

III.

Plaintiff appeals the district court's exclusion of the testimony of
Charles Presson and Michael Lambert. These two witnesses would
have testified that they had recently experienced manlift malfunctions
on the same manlift Stutts had been riding on the day of the accident.
The district court's evidentiary rulings are reviewed under an abuse
of discretion standard. See, e.g., Supermarket of Marlinton, Inc. v.
Meadow Gold Dairies, Inc., 71 F.3d 119, 126 (4th Cir. 1995).

Because evidence of prior accidents can be prejudicial, "it is well
settled that, before evidence of other accidents can be admitted into

                     7
evidence, plaintiff must present a factual foundation for the court to
determine that the other accidents were `substantially similar' to the
accident at issue." Buckman v. Bombardier Corp., 893 F. Supp. 547,
552 (E.D.N.C. 1995); see also Renfro Hosiery Mills Co. v. National
Cash Register Co., 552 F.2d 1061, 1068-69 (4th Cir. 1977). If the
events are sufficiently similar in time, place, or circumstances, how-
ever, such evidence is relevant and admissible to show causation. See,
e.g., Anderson v. Whittaker Corp., 894 F.2d 804, 813 (6th Cir. 1990);
Ramos v. Liberty Mut. Ins. Co., 615 F.2d 334, 338-40 (5th Cir. 1980).
As the Eastern District of Kentucky succinctly explained in Rhodes
v. Michelin Tire Corp., 542 F. Supp. 60, 62 (E.D. Ky. 1982):

          [w]ith regard to the problem of similar accidents or product
          failures, few things could be more relevant in a products
          action than the occurrence or the non-occurrence of other
          accidents or failures under similar circumstances. Clearly,
          evidence of the existence or non-existence of such failures
          would tend to make the presence of a design defect more or
          less probable than it would be without the evidence. This is
          all that is required by Rule 401. Those courts which have
          passed on the issue have uniformly admitted such evidence
          where there was a sufficient similarity of conditions and the
          evidence was not so technical as to cause undue confusion
          or waste of time.

In the case at bar, the two incidents described by Lambert and Pres-
son were similar to Stutts' fall in several respects. Both malfunctions
involved the same manlift Stutts had been riding, and both occurred
within three days of Stutts' fall. Both riders experienced difficulty on
the descending side of the belt just below the third floor opening.
Stutts fell from the descending side of the belt somewhere between
the fourth and second floors. In addition, Lambert described a violent
jerking motion that corresponded to the shaking or vibration observed
by Ronald Crall at the time of Stutts' fall.

Of course, there are potential distinctions between the events
described by the proffered witnesses and the accident at issue. How-
ever, the testimony of Lambert and Presson is both relevant and
admissible. In the context of the instant case, it was an abuse of dis-

                     8
cretion to have excluded the testimony. On retrial it should be admit-
ted for jury consideration.

In summary, we hold that:

1. The district court is AFFIRMED as to its grant of judgment as
          a matter of law to Defendant Viola Industries.

2. The district court is REVERSED as to its grant of judgment as
          a matter of law to Defendant Fluor Daniel, Inc.

3. This case shall be REMANDED for a new trial of Plaintiff's
          claims against Defendant Fluor Daniel, Inc.

4. The proffered testimony of Charles Presson and Michael Lam-
          bert shall be admitted in evidence.

AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED

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