REL:09/30/2014




Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.




          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1130214
                             ____________________

                         Yanmar America Corporation

                                           v.

                                  Randy Nichols

                    Appeal from Marion Circuit Court
                             (CV-09-900054)



BOLIN, Justice.

      Yanmar America Corporation ("Yanmar America") appeals

from a judgment entered in favor of Randy Nichols following a

trial by a jury of his claims alleging a negligent failure to

warn.     We reverse and remand.
1130214

                  Facts and Procedural History

                        I. The Accident

    In May 2005, Autrey Nichols purchased a Yanmar model

2210BD tractor from Northside Motors, LLC ("Northside"), in

Hamilton.    The Yanmar tractor came equipped with a front-end

loader and a "bush hog" attachment.1      The Yanmar tractor did

not have a rollover-protection structure ("ROPS"). On May 1,

2008, Randy Nichols, the plaintiff and Autrey's brother, used

the Yanmar tractor to bush hog a neighbor's property.        The

particular area of the property Randy was to bush hog was a

field that contained a hill, the slope of which increased as

he moved toward the center of the field. Randy did not "walk"

the field to inspect the terrain before bush hogging the

field.    Randy testified that he was operating the tractor in

tall grass at "walking speed" when he glanced back at the bush

hog to make sure it was operating properly. Randy stated that

when he looked forward it appeared that the right front tire

suddenly "took a dip," causing the tractor to roll over. The


    1
     "'Bush Hog' is the trade name of a large mower generally
drawn by a tractor.      The term 'bush hog' is often used
generally for such mowers and as a verb indicating the use of
such mowers." Ammons v. Massey-Ferguson, Inc., 663 So. 2d 961,
963 (Ala. 1995).
                               2
1130214

right front tire of the tractor encountered a slight "drop

off" on the side of the hill, which caused the tractor to roll

over 360 degrees and come to a rest upright on its tires.

Randy   was   thrown   from   the   tractor.   He   stated   that   he

remembered the bush hog "coming over on me" and that he tried

to roll out of the way but was unable to do so.                Randy

testified that he threw his arm up to protect his head and

felt excruciating pain.        Randy suffered severe injuries,

including an amputated right arm, a crushed hip and leg, and

various other injuries.         Before the accident, Randy had

more than 30 years' experience operating tractors and other

heavy equipment. Randy had operated the subject Yanmar tractor

approximately 15 to 20 times without incident before the

accident. Randy testified that he had experience operating

tractors with implements such as front-end loaders, backhoes,

bush hogs, "graderplates," "breaking plows," and "planters."

Randy testified that he had operated tractors both with and

without the ROPS and that he was comfortable operating a

tractor that was not equipped with the ROPS.           Randy stated

that he knew that any tractor had the potential to roll over

and that, if a tractor that was not equipped with a ROPS


                                    3
1130214

rolled over, the driver could be seriously injured or killed.

He further testified that he knew how to operate a tractor,

that he was a "safe" tractor operator, and that he had never

rolled a tractor over before the accident in this case.

II. The Gray-Market2 Tractor and Factors Contributing to the
                          Rollover

       The subject Yanmar tractor was manufactured on March 5,

1979, by Yanmar Diesel Engine Co., Ltd. ("Yanmar Japan"),3 at

its Kinomoto plant in Japan. At the time of its manufacture,

the tractor was equipped with a rotary tiller. The tractor was

sold on March 29, 1979, to Kounomiya Yanmar, an authorized

Yanmar dealer in Japan.          The Yanmar tractor was "purpose

built" for primary use in the rice paddies of Japan. The

tractor was designed and manufactured in accordance with

Japanese industry and governmental standards in existence at

       2
     "Gray market" has been defined as a "'market in which the
seller uses legal but sometimes unethical methods to avoid a
manufacturer's distribution chain and thereby sell (esp.
imported goods) at prices lower than those envisioned by the
manufacturer.'" Rife v. Hitachi Constr. Mach. Co., 363 S.C.
209, 217, 609 S.E.2d 565, 570 (S.C. Ct. App. 2005) (quoting
Black's Law Dictionary 989 (8th ed. 2004)).     "Gray-market"
products include products that have been produced abroad with
authorization and payment and have been imported into
unauthorized markets. Id.
       3
           Yanmar Japan subsequently changed its name to Yanmar Co.,
Ltd.
                                    4
1130214

the time. The original operator's manual for the tractor

printed by Yanmar Japan and the warning labels affixed to the

tractor were all written in Japanese.

      Before 1991, Yanmar Japan had manufactured Yanmar brand

tractors specifically for distribution in the United States.

Subsequent to its entry into the United States market in the

late 1970s, Yanmar Japan established Yanmar America in 1981.

Yanmar America is a wholly owned subsidiary of Yanmar Japan;

one   of   its   functions    is   to       distribute   parts   for   Yanmar

tractors authorized for sale in the United States. In 1991,

Yanmar Japan ceased manufacturing and distributing Yanmar

tractors for sale in the United States market.

      Significant    design    differences        existed   between     those

Yanmar brand tractors manufactured for use in the Japanese

market and those Yanmar brand tractors manufactured for use in

the United States market.          The tractors manufactured for the

Japanese market: (1) had relatively slow travel speed, which

was conducive to rice-paddy tilling; (2) had much higher

"lugs" on the tractor tires, which were specially suited for

use in muddy rice paddies; (3) had a standard rotary-tiller

attachment suitable for tilling rice paddies rather than a


                                        5
1130214

front-end loader or a bush hog; and (4) had a four-speed

"power take-off" to accommodate the varying tiller speeds

required in rice-paddy tilling.    The operator's manuals and

warning decals for those tractors were printed in Japanese.

Because of the significant differences in the design and

performance of the tractors, the tractors intended for the

Japanese market were never intended to be sold or used in the

United States market.

    Dennis Skogen, Yanmar America's engineering and accident-

reconstruction expert witness, testified that the factors

contributing to the rollover here included operating the

tractor on the side slope; encountering the "drop off" on the

side slope; and the configuration of the tractor, which

included operating the tractor with the front-end loader in

the raised position, a   lack of ballast in the tires, and the

bush hog on the back. Skogen testified that ballast in the

tires would have decreased the likelihood of a rollover

because it would have lowered the center of gravity of the

tractor.   Skogen also stated that operating the tractor with

the front-end loader in the lowered position would also lower

the center of gravity.   Skogen also testified that a properly


                               6
1130214

attached ROPS would have "more likely as not" prevented the

tractor from rolling past 90 degrees, but, given the slope of

the hill on which the rollover occurred, it was possible that

the ROPS would not have prevented the tractor from rolling

past 90 degrees. However, Skogen also stated that the tractor

was not unreasonably dangerous because it was not equipped

with a ROPS. Rather, Skogen testified that the tractor should

not have been imported and sold in the United States in the

first place because it was designed and manufactured for use

in the rice paddies of Japan, and not for use in the United

States equipped with a front-end loader and a bush hog.

Skogen testified as follows:

         "Q. Well, what ... made a difference, in your
    opinion, about this tractor rolling over and this
    injury to Randy ... occurring?

         "A. Well, we talked about that before. It's the
    slope. It's the drop-off itself.      We're talking
    about what the tractor is, what the tractor –- its
    configuration. It has tires on it, as an example,
    for use in rice paddies. It's not the type of tire
    that would we would normally see for use on other
    tractors in a similar situation .... [T]his tractor
    shouldn't have been imported in the first place, so
    there wouldn't have been a rollover with this
    tractor in the second place with or without a ROPS.

         "Q. Okay. What differences that existed in this
    tractor that you have listed, as you say it was


                               7
1130214

    designed for use in Japan, made a difference in
    causing this rollover or the injuries to Randy?

         "A. Well, start off with a tiller on the back.
    Now, if you're going to bring the tractor into this
    country, it would have a tiller on the back. It
    wouldn't have a mower on the back. You wouldn't be
    using it for ... mowing. It's used for tilling rice
    paddies. You wouldn't have a front-end loader
    because, again, the purpose is to have a tiller on
    the back.     The tiller would be lower in its
    configuration. It wouldn't have been used in this
    field in the first place because this is not a rice
    paddy.

          "Q. All right. What else?

         "A. Again, I talked about before about the
    configuration with the tires.      They have higher
    tread on them, which can in a sense raise the center
    of gravity versus a tractor that has turf tires or
    tires that don't have the rice paddy type tires.

         "Q. And other than the fact that the tractor
    wouldn't be here, you know, if they hadn't imported
    it for use in the United States, I want to know
    specifically anything besides the tiller and the
    fact it wouldn't have a front-end loader, in your
    opinion, that are the features you say were made for
    Japan that you think were specifically causative in
    contributing to this rollover?

         "A. It's the configuration of the entire piece
    of equipment. It's the fact that it had a mower on
    the back and not the tiller. Again, it's a tiller.
    The tractor used in Japan didn't have a front-end
    loader.   Now we come to the configuration of the
    tractor, the size of the tractor, the width of the
    tractor, the length of the tractor, the weight of
    the tractor. It's the tractor that rolls over. You
    can't say that there's one part of the tractor that
    caused it to roll over in the absence of another

                              8
1130214

     part. It's the configuration of the tractor given
     this slope, which, again, I talked about before is
     steep, and then given the drop-off or ledge as I
     described it before."

     Dr. Thomas Carpenter, an agricultural engineer and safety

expert, testified that the primary cause of the rollover was

the lack of stability of the tractor, caused by its narrow

wheel spacing, and the front-end loader being attached to the

tractor. Dr. Carpenter stated that the Yanmar tractor in

question had a tipping angle of 37.4 degrees and a tread width

of 40 inches, whereas similarly sized American-made tractors

manufactured in the same year as the Yanmar tractor at issue

had tipping angles in excess of 45 degrees and tread widths

that varied between 51 inches and 75 inches.                Dr. Carpenter

opined that the relative instability of the Yanmar tractor

based on tread width and tipping angle, when compared to the

similarly        sized   American-made    tractors,     "resulted    in    it

overturning" under the conditions in which it was being used

on   the   day     of    Randy's accident.      Dr.    Carpenter    further

testified        that    the   addition   of    the     front-end    loader

"definitely increased the instability" of the tractor by

moving     the    center of    gravity    of   the    tractor   higher    and

forward. Dr. Carpenter stated that, based on what he knew of

                                     9
1130214

this tractor's stability characteristics, he would not have

used it to bush hog the property Randy was bush hogging.           Dr.

Carpenter testified that a ROPS would likely have prevented

the tractor from rolling more than 90 degrees but that, even

if the tractor had been equipped with a ROPS, he would not

have used it to bush hog the property.

          III. The Purchase of the Gray-Market Tractor

     Arnold Trimm owned Artec Tractor and Equipment, Inc.

("Artec"), from 1994 until 2006.         In the late 1990s Trimm saw

an   advertisement   in   a   magazine    for   used   Japanese   farm

tractors.   Trimm contacted the suppliers of the tractors and

eventually traveled to Japan to meet with the suppliers.

Trimm testified that he was told by the suppliers that the

tractors were "good used farm tractors." Trimm stated that he

was not told that the tractors had been specifically designed

and manufactured for use in Japan and not for use in the

United States.   Trimm testified that Artec imported and sold

the used Japanese farm tractors from 1998 until 2005.             Artec

sold parts for the used "gray-market" Yanmar tractors it




                                 10
1130214

imported. Artec became an authorized Yanmar America dealer in

July 2005.4

       In 2005, some 26 years after the subject Yanmar tractor

Randy was operating was manufactured and first sold primarily

for use in the rice paddies of Japan, Artec purchased the

tractor from a gray-market supplier and imported the tractor

into the United States.             On April 28, 2005, Artec sold the

Yanmar tractor to Northside, which, in turn, sold the tractor

to Autrey Nichols.

       After     purchasing     the    tractor,      Autrey   purchased     an

English-language version of the operator's manual for the

tractor. The operator's manual explained that the                     Yanmar

model 2210BD tractor was a gray-market tractor that was

originally       manufactured    for    sale    in   Japan    and   that   was

subsequently purchased used by a dealer or broker and imported

into       the   United   States.      The     manual   explained    certain

differences between the gray-market tractors and the Yanmar

brand tractors manufactured for use in the United States,

       4
     The 2005 dealer agreement appointed Artec as an
authorized dealer of certain Yanmar brand excavators, wheel
loaders, crawler carriers, and compact back-hoe loaders.
Artec did not become an authorized dealer of Yanmar tractors
because Yanmar had ceased distributing Yanmar tractors to the
United States market in 1991.
                                       11
1130214

including the fact that Japan does not require its tractors to

be equipped with a ROPS, although the tractors manufactured

for use in the United States are required to be equipped with

a ROPS. The manual also contained information and warnings on

the   risk   of   rollovers,   particularly    while    operating   the

tractor on slopes; stability issues and the need for ballasts

when operating the tractor with a front-end loader; the

importance of a ROPS; and the need to inspect unfamiliar

terrain before operating the tractor.         Autrey did not provide

Randy with the manual and did not discuss with him any

information contained in the manual. Additionally, the front-

end loader and bush hog attachment that accompanied the Yanmar

tractor when it was purchased also came with operator manuals,

and each was affixed with warning decals.               Those warning

decals were printed in English and warned of the possibility

of rollover and recommended using a ROPS at all times.

      When asked whether he usually read all warning labels

before operating a tractor or other equipment, Randy stated

that he "probably glanced at them, but ... felt like [he] was

a   safe   operator,   and   [he]   just   overlooked   them."   Randy

testified that he did not need a warning with regard to the


                                    12
1130214

Yanmar tractor in this case.        He stated that when he glanced

at the labels on the tractor he was not concerned that the

labels were in Japanese. Randy never saw the operator's manual

for the tractor, the front-end loader, or the bush hog.                He

testified that he did not need to read an operator's manual to

know how to operate a tractor and the attached front-end

loader and     bush hog.   He stated that reading the operator's

manuals for either piece of equipment did not interest him

because   he   had   become   so   familiar   with    operating      heavy

equipment that he did not need to read the manuals in order to

know how to operate the tractor with the attachments.

IV. Yanmar America's Efforts to Warn Against the Gray-Market
                          Tractors

      Ryan Pott, the director of legal affairs for Yanmar

America, testified that Yanmar America first discovered in

1990 that gray-market Yanmar tractors were being imported into

the United States.      Pott testified as to various documents

relating to the gray-market tractors. In December 1991, Gary

Bilek, an employee of Yanmar America, notified Yanmar Japan by

letter of certain "problems" Yanmar America was having with

the   gray-market    tractors,     specifically      noting   that     the

purchasers of the gray-market tractors were being told that

                                   13
1130214

they       could   purchase     parts      for   the   tractors      from    Yanmar

America.           Bilek   stated     in   his    letter     that    "we've       been

instructed not to help these customers procure spare parts

because they come into the United States without any rollover

protection."           Bilek then asked "can anything be done in Japan

to stop the unauthorized sale of these units?"

       In 1992, Yanmar America began disseminating in various

trade publications safety notices concerning the safety issues

associated with the gray-market tractors.                    On July 24, 1992,

Yanmar Tractor Service U.S.A., Inc.,5 issued a statement to

all Yanmar tractor parts and service dealers, informing them

that       the     gray-market      tractors       were    not      designed      for

distribution in the United States, that they were being

imported without the approval of Yanmar Japan, and that,

therefore,         a   parts-   and   service-support         network       was    not

available        for    the   gray-market        tractors.       Yanmar     America

       5
     Yanmar Tractor Service U.S.A., Inc. ("Yanmar Tractor
Service"), was a former distributor of authorized Yanmar
tractors in the United States. Subsequent to Yanmar Japan's
cessation of the distribution of Yanmar tractors to the United
States market in 1991, Yanmar Tractor Service became a service
and parts provider for Yanmar tractors in the United States.
It appears from the record that at some point Yanmar Tractor
Service merged with Yanmar America, and Yanmar America became
the service and parts provider for Yanmar tractors intended
for the United States market.
                                           14
1130214

requested that the dealers inform those considering purchasing

a gray-market tractor as to the lack of available parts and

service support and to inform them that most all the safety

decals were printed in Japanese. Yanmar America also noted in

this statement that "the long term response to the problems

created by Gray Market Tractors will take some time and

careful consideration."

      In August 1992, Yanmar Japan conducted a "Study Meeting

on Policy to Cope with Sales in USA of Used Tractors that were

Manufactured for Domestic Market." The purpose of the meeting

was   to   discuss   the   concerns    of   Yanmar   Japan   management

regarding potential liability arising from the sales in the

United States of the gray-market tractors.           It was determined

at this meeting that Yanmar Japan would honor the requests for

parts for the gray-market tractors while it continued to

assess the issue of the gray-market tractors.          Pott testified

that there was an internal debate within Yanmar Japan at the

time as to whether it should support the gray-market tractors

with parts and service.

      In May 1995, John Sonnentag, a manager in the parts and

service department at Yanmar America, reported by internal


                                  15
1130214

memorandum addressed to Koju Saski, a manager with Yanmar

Japan, regarding a recent meeting he had attended in Japan in

which it had been "indicated [that] all parts are available,

regardless of status." Sonnentag also noted in his memorandum

that the "above information contradicts the position taken by

Gary Bilek's letter."          Pott stated that this correspondence

indicated that the gray-market tractors would be supported

with parts and service.

      On January 18, 2000, Yanmar America posted on its Web

site an "Important Safety Notice" regarding the gray-market

tractors,      which    was   intended     for   the   parts    and    service

dealers, for potential purchasers of gray-market tractors, and

for   owners    of     gray-market    tractors.        The    safety    notice

explained what a gray-market tractor was and also explained

the important design and operating differences between a gray-

market    tractor       and   those   Yanmar      tractors      specifically

manufactured for use in the United States.               The safety notice

did not contain any specific reference to differences in the

stability      of    gray-market      tractors     and       those    tractors

manufactured for use in the United States, nor did the notice




                                      16
1130214

contain a specific warning regarding the use of front-end

loaders or bush hogs with the gray-market tractors.

    In 2002, Yanmar America implemented a computer parts-

blocking program to combat the sale of Yanmar gray-market

tractors in the United States. The parts-blocking program was

designed to stop the sale of replacement parts for the gray-

market    tractors.    The     program   required   a   parts    dealer

purchasing parts from Yanmar America to specify both the model

number and the serial number of the tractor for which the part

was being purchased. Yanmar America would be able to discern

from a computer database whether the part was being purchased

for a gray-market tractor based on the model and serial

numbers, and it could then block the sale of that part.

    On    July   20,   2005,    Yanmar    America   issued      another

"Important Safety Notice" that was posted to its Web site

regarding "Gray Market Tractors, Excavators, Wheel Loaders,

and Carriers."    This safety notice was substantially similar

to the safety notice issued in January 2000, except that this

notice included excavators, wheel loaders, and carriers, in

addition to the gray-market tractors.           The safety notice

explained what a gray-market product was and also explained


                                  17
1130214

the important design and operating differences between gray-

market    products    and   those      Yanmar   products    specifically

manufactured for use in the United States.              This particular

safety notice also explained that, as the result of those

safety issues, Yanmar Japan would not support gray-market

tractors,    excavators,      wheel    loaders,   and   carriers      with

replacement parts.     Again, this safety notice did not contain

any specific reference to differences in the stability of

gray-market tractors and tractors manufactured for use in the

United States, nor did the notice contain a specific warning

regarding the use of front-end loaders or bush hogs with the

gray-market tractors.

    Pott testified that Yanmar Japan and Yanmar America

became concerned that equipment dealers selling gray-market

tractors,    owners   of    gray-market     tractors,      and   potential

purchasers of gray-market tractors may not have been aware of

the important differences between the gray-market tractors and

those     Yanmar   tractors     manufactured      and      intended    for

distribution in the United States market. Pott testified that

the need for warnings arose out of the way the gray market had

developed, as well as Yanmar Japan's decision to support the


                                      18
1130214

gray-market tractors with genuine Yanmar parts during a period

of time in the 1990s, which, he stated, created confusion as

to whether there were significant differences between the

gray-market tractors and those Yanmar tractors intended for

use in the United States market.             Pott testified that he

therefore directed in 2008 that the safety notices be mailed

to    all    authorized   Yanmar   dealers   of    parts   and   service,

construction, and industrial equipment. Artec did not receive

the safety notice until 2010, two years after the accident

that is the basis of this action.            Pott explained that the

safety notices were not all mailed out at the same time but

that they were done over time.

      Yanmar America has filed trademark-infringement lawsuits

seeking to stop the importation and sale of gray-market

tractors through the Internet site "eBay."6 In January 2004,

Yanmar America sent a letter to HDI Tractor, a nonauthorized

Yanmar tractor dealer, threatening legal action if HDI Tractor

did    not    cease   importing    and   selling   gray-market    Yanmar

tractors.      Yanmar America further demanded that HDI Tractor


      6
     The Internet site eBay is a consumer-to-consumer online
auction and shopping Web site in which individuals and
businesses buy and sell a wide variety of goods worldwide.
                                    19
1130214

contact its customers who had purchased gray-market Yanmar

tractors and inform them that the tractors were not intended

for use in the United States, that they may not be equipped

with proper safety features for use in the United States, and

that HDI Tractor would refund the full purchase price of the

tractor. Yanmar and HDI Tractor eventually entered into a

settlement agreement in which HDI Tractor agreed to send

copies of the "Important Safety Notice" to its customers that

had purchased a gray-market tractor.

    In September 2005, Yanmar America sent notices to its

authorized parts and service dealers prohibiting those dealers

from selling gray-market tractors and from providing parts and

service for gray-market tractors. The authorized dealers were

required to acknowledge in writing that they would not sell

gray-market products, or they risked losing their status as an

authorized Yanmar dealer. In several instances authorized

parts and service dealers continued to participate in gray-

market activity; those dealers' authorized dealer agreements

were terminated by Yanmar America. It appears from the record

that the notices prohibiting the sale of Yanmar gray-market

tractors and the supply of parts and services for the gray-


                             20
1130214

market tractors were sent only to authorized Yanmar parts and

service dealers and not to authorized dealers of Yanmar

equipment such as Artec.

      As mentioned above, Artec became an authorized dealer of

Yanmar equipment in July 2005.         Prior to Artec's becoming an

authorized equipment dealer in July 2005, Yanmar America did

not inquire whether, or confirm that, Artec was selling gray-

market tractors and parts.       Artec did not receive any notice

from Yanmar America regarding gray-market tractors until 2010.

Yanmar eventually discovered that Artec had continued to

participate in gray-market activity and terminated its dealer

agreement in April 2013, approximately three weeks before the

start of the trial in this case.

      On October 1, 2009, Randy sued Yanmar Japan, Yanmar

America, Artec, and Northside, asserting claims under the

Alabama Extended Manufacturer's Liability Doctrine ("AEMLD")

and a claim alleging breach of an implied warranty.         Count I

of the complaint alleged that the tractor was unreasonably

dangerous because it was designed, manufactured, distributed,

and sold without a ROPS.     Count II of the complaint alleged

the   defendants'   negligence     in    designing,   manufacturing,


                                  21
1130214

distributing, and selling the tractor without a ROPS as

standard equipment. Count III of the complaint alleged that

the defendants breached the implied warranty of fitness for a

particular purpose in manufacturing, distributing, and selling

the tractor without a ROPS as standard equipment.

    On November 10, 2011, Yanmar Japan moved the trial court,

pursuant to Rule 12(b)(2), Ala. R. Civ. P., to dismiss the

complaint against it for lack of in personam jurisdiction. On

February 28, 2012, Randy amended his complaint to allege that

Yanmar Japan and Yanmar America were:

    "a). Reckless or negligent in manufacturing and
    selling Yanmar parts which [they] knew were being
    ordered for use in Yanmar gray market tractors in
    the United States, for which tractors there would
    not have been a viable market in the United States
    without such parts;

    "b). Reckless or negligent in issuing warnings that
    Yanmar gray market tractors could not be retrofitted
    with ROPS;

    "c). Reckless or negligent in performing dealer
    audits of Artec before and after it became an
    authorized Yanmar dealer, which audits if done in a
    reasonable manner would have revealed that Artec was
    and had been for many years a volume seller of
    Yanmar gray market tractors, and which would have
    resulted in gray market tractor warnings being
    issued to Artec and prohibitions being imposed on
    Artec against selling Yanmar gray market tractors;




                             22
1130214

    "d). Reckless or negligent in failing to warn their
    own authorized dealer Artec that Yanmar gray market
    tractors were not manufactured in a manner which met
    U.S. safety standards, and were not manufactured for
    sale in the U.S. as well as in Japan, in the same
    manner which it undertook to warn other authorized
    Yanmar dealers in Alabama prior to the sale by Artec
    of the subject tractor and prior to Randy
    Nichols'[s] injuries;

    "e). Negligent in not instructing their authorized
    dealer Artec to provide to any purchasers and owners
    of Yanmar gray market tractors which Artec had sold
    Yanmar's 'Important Safety Notice,' and in not
    instructing Artec to advise such purchasers and
    owners that suitable ROPS were available for
    retrofit on their Yanmar tractors and that such
    tractors were not reasonably safe for operation
    unless ROPS were installed on the tractors.

    "f). Negligent in not prohibiting their authorized
    dealers in Alabama from selling Yanmar gray market
    tractors, while undertaking to prohibit Yanmar
    authorized   dealers in Alabama from selling parts
    for use in Yanmar gray market tractors."

    On March 23, 2012, the trial court conducted a hearing on

Yanmar Japan's motion to dismiss the complaint against it for

lack of in personam jurisdiction.     On April 10, 2012, the

trial court entered an order allowing the parties to engage in

further discovery and supplemental briefing addressing Randy's

amended complaint. Following consideration of the parties'

briefs and arguments, the trial court, on October 5, 2012,




                             23
1130214

entered an order granting Yanmar Japan's motion to dismiss for

lack of in personam jurisdiction.

    On February 27, 2013, Randy moved to voluntarily dismiss

the claims against Northside.        Randy entered into a pro tanto

settlement with Artec to settle the claims against it for

$550,000.       On April 8, 2013, Randy moved the trial court to

dismiss Artec because of the pro tanto settlement the parties

had reached. On April 10, 2013, the trial court entered an

order granting Randy's motion for a pro tanto dismissal of the

claims against Artec.           On April 29, 2013, the trial court

entered    an    order   granting   Randy's    motion    to   voluntarily

dismiss Northside, leaving only Yanmar America as a defendant.

On March 18, 2013, Yanmar America moved the trial court for a

summary judgment arguing, among other things, that it was

entitled    to    a   summary    judgment     on   the   claim   that   it

negligently failed to warn Artec that Yanmar gray-market

tractors did not meet United States safety standards. On April

24, 2013, the trial court entered an order denying Yanmar

America's motion for a summary judgment.

    The case proceeded to trial against Yanmar America on

April 29, 2013.          At the close of Randy's evidence, Yanmar


                                    24
1130214

America moved the trial court for a preverdict judgment as a

matter of law ("JML"), which the trial court denied.            Yanmar

America renewed its motion for a preverdict JML at the close

of all the evidence, which the trial court also denied. On May

3, 2013, the jury returned a verdict in favor of Randy and

against Yanmar America awarding Randy $900,000 in damages.

The trial court reduced the damages award by the amount of the

$550,000   pro   tanto   settlement   with   Artec   and    entered   a

judgment of $350,000 in favor of Randy.

    On May 31, 2013, Yanmar America moved the trial court for

a postverdict JML or, in the alternative, for a new trial.            On

August 14, 2013, the parties filed a joint motion consenting

to extend the time for the trial court's consideration and

ruling on Yanmar America's postverdict motion.             Following a

hearing, the trial court, on October 15, 2013, entered an

order denying Yanmar America's postverdict motion. Yanmar

America timely appeals.

                         Standard of Review

    The standard of review for a ruling on a motion for a JML

is as follows:

                 "'When reviewing a ruling on a motion
           for   a JML, this Court uses the same

                                 25
1130214

          standard the trial court used initially in
          deciding whether to grant or deny the
          motion for a JML. Palm Harbor Homes, Inc.
          v. Crawford, 689 So. 2d 3 (Ala. 1997).
          Regarding questions of fact, the ultimate
          question is whether the nonmovant has
          presented sufficient evidence to allow the
          case to be submitted to the jury for a
          factual resolution. Carter v. Henderson,
          598 So. 2d 1350 (Ala. 1992). The nonmovant
          must have presented substantial evidence in
          order to withstand a motion for a JML. See
          § 12–21–12, Ala. Code 1975; West v.
          Founders Life Assurance Co. of Florida, 547
          So. 2d 870, 871 (Ala. 1989). A reviewing
          court must determine whether the party who
          bears the burden of proof has produced
          substantial evidence creating a factual
          dispute requiring resolution by the jury.
          Carter, 598 So. 2d at 1353. In reviewing a
          ruling on a motion for a JML, this Court
          views the evidence in the light most
          favorable to the nonmovant and entertains
          such reasonable inferences as the jury
          would have been free to draw. Id. Regarding
          a question of law, however, this Court
          indulges no presumption of correctness as
          to the trial court's ruling. Ricwil, Inc.
          v. S.L. Pappas & Co., 599 So. 2d 1126 (Ala.
          1992).'

    "Waddell & Reed, Inc. v. United Investors Life Ins.
    Co., 875 So. 2d 1143, 1152 (Ala. 2003)."

CSX Transp., Inc. v. Miller, 46 So. 3d 434, 450-51 (Ala.

2010).

                         Discussion




                              26
1130214

    Although Randy asserted various theories of recovery

against Yanmar America, the case was tried on a theory that

Yanmar America voluntarily assumed a duty to warn Randy of the

safety issues relative to operating a Yanmar gray-market

tractor by voluntarily undertaking activities to warn Yanmar

dealers, as well as the owners and potential purchasers of

Yanmar gray-market tractors, of the safety issues associated

with operating the Yanmar gray-market tractors and that Yanmar

America then negligently performed that duty to warn.

          I. Voluntary Assumption of the Duty to Warn

    Initially,    we note   that    Yanmar   America   was   not   the

supplier or manufacturer of the Yanmar gray-market tractor

involved in this case; therefore, it initially owed no duty to

warn the expected users of the gray-market tractor of the

safety issues relative to its use. See Ex parte Chevron Chem.

Co., 720 So. 2d 922 (Ala. 1998).         However, "[i]t is well

settled under Alabama law that one who undertakes to perform

a duty he is not otherwise required to perform is thereafter

charged with the duty of acting with due care." King v.

National Spa & Pool Inst., Inc., 570 So. 2d 612, 614 (Ala.

1990).    See also United States Fid. & Guar. Co. v. Jones, 356


                               27
1130214

So. 2d 596, 598 (Ala. 1977)("The law, simply stated, is that

one who volunteers to act, though under no duty to do so, is

thereafter charged with the duty of acting with due care."),

and Fireman's Fund American Ins. Co. v. Coleman, 394 So. 2d

334, 349 (Ala. 1980) (Jones, J., concurring in the result and

stating that "[t]he rule is well established that common law

liability to third parties can arise from the negligent

performance of even a voluntary undertaking").

    The trial court concluded as a matter of law that Yanmar

America voluntarily undertook a duty to warn Randy of the

safety concerns associated with the use of a Yanmar gray-

market tractor.   Yanmar America acknowledged at trial that it

voluntarily undertook a duty to warn; however, it did not

believe that that duty to warn extended to Randy. Yanmar

America argues on appeal that, by issuing the safety notices

and undertaking activities such as the parts-blocking program

in order to impede the sale of gray-market tractors, it did

not voluntarily assume a duty to warn "every potential user"

of the dangers associated with the use of a gray-market

tractor.




                              28
1130214

      The   evidence       indicates        that    Yanmar       America    became

concerned that Yanmar equipment dealers selling gray-market

tractors,    owners     of      gray-market        tractors,      and    potential

purchasers of gray-market tractors were not aware of the

important differences between the gray-market tractors and

those     Yanmar    tractors          manufactured         and    intended       for

distribution in the United States. Pott stated that the need

for   warnings     arose     out      of   the   way   the   gray       market   had

developed in the United States, as well as Yanmar Japan's

decision to support the gray-market tractors with genuine

Yanmar parts during a period in the 1990s, which, he stated,

created     confusion      as    to    whether     there     were    significant

differences between the gray-market tractors and those Yanmar

tractors intended for use in the United States.                     Thus, Yanmar

America began disseminating safety notices for the purpose of

warning Yanmar dealers, owners of gray-market tractors, and

potential purchasers of gray-market tractors of the safety

concerns    associated       with      operating       a   Yanmar    gray-market

tractor. This campaign to warn Yanmar dealers, owners of gray-

market tractors, and potential purchasers culminated in 2008

with a mass mailing to all authorized dealers of Yanmar parts


                                           29
1130214

and service and construction and industrial equipment. Artec,

the importer and party responsible for putting the gray-market

tractor   at   issue   into    the    stream    of   commerce,      was   an

authorized equipment dealer of Yanmar America at the time.

Pott testified that the purpose of the safety notices was to

prevent   injury   and   death       to   the   owners   and   potential

purchasers of the Yanmar gray-market tractors.

    In addition to issuing safety warnings regarding the

gray-market    tractors,      Yanmar      America    engaged   in    other

activities, such as the parts-blocking program, in order to

impede the sale of the gray-market tractors.               Thus, it is

clear from the record, as well as from Yanmar America's own

acknowledgment at trial, that it voluntarily assumed a duty to

warn of the safety hazards associated with operating a Yanmar

gray-market tractor.

    As for whether the duty to warn undertaken by Yanmar

America extends to Randy,7 we note that "'[t]he ultimate test

of duty to use [due] care is found in the foreseeability that


    7
     We reiterate that Yanmar America conceded on the record
that it indeed had assumed a duty to warn. Pott testified
that the warnings were intended for owners and potential
purchasers of the gray-market tractors and that the purpose of
the warnings was to prevent injury and/or death.
                                     30
1130214

harm may result if care is not exercised.'"              King, 570 So. 2d

at 615 (quoting Bush v. Alabama Power Co., 457 So. 2d 350, 353

(Ala. 1984)). As discussed above, Yanmar America undertook a

duty    to   issue    safety    warnings       to   owners    and    potential

purchasers of Yanmar gray-market tractors in order to prevent

injury    and    death     resulting    from    the   operation      of   those

tractors. Therefore, the duty to warn that Yanmar America

voluntarily undertook would apply to foreseeable owners or

operators       of   the   gray-market      tractor    Autrey       purchased.

Obviously,      it was foreseeable to Yanmar America that Autrey,

as an owner of a Yanmar gray-market tractor, needed to be

warned of the safety hazards associated with the operation of

a gray-market tractor or risk Autrey's being injured or killed

while    operating     the   tractor.       Moreover,    it    was    just   as

foreseeable that someone other than Autrey -- in this case

Randy -- might operate the tractor and would also be in need

of a warning via Autrey regarding the hazards associated with

operating the tractor.          Thus, we conclude that the duty to

warn of potential hazards associated with operating the gray-

market tractor extended to Randy and that the trial court did




                                       31
1130214

not err as a matter of law in extending the duty to warn to

him.

                     II. Breach of the Duty to Warn

       Randy claims that Yanmar America breached its voluntarily

undertaken duty to warn because: (1) Yanmar America's warnings

were insufficient to warn of the safety hazard that actually

caused the gray-market tractor to overturn, which was the

propensity      of    the   tractor   to    roll   over    under   certain

conditions because of its relative instability owing to its

narrow wheel spacing and weight configuration or distribution,

coupled with tires with higher tread patterns that raised the

center of gravity of the tractor, and (2) because Yanmar

America had failed to ensure that the safety warnings were

disseminated in such a manner that they would actually reach

the potential purchasers and users of the Yanmar gray-market

tractors.

       As this Court noted       in Beasley v. MacDonald Engineering

Co., 287 Ala. 189, 249 So. 2d 844 (1971),8 liability for the

breach     of   a    duty   voluntarily    undertaken     is   governed   by

Restatement (Second) of Torts § 324A (1965), which states:

       8
     We have not been asked to overrule caselaw adopting
Restatement (Second) of Torts § 324A (1965).
                                      32
1130214

         "'Liability to third person for negligent
    performance of undertaking. One who undertakes,
    gratuitously or for consideration, to render
    services to another which he should recognize as
    necessary for the protection of a third person or
    his things, is subject to liability to the third
    person for physical harm resulting from his failure
    to exercise reasonable care to protect his
    undertaking, if

               "'(a)   his   failure   to   exercise
          reasonable care increases the risk of such
          harm, or

               "'(b) he has undertaken to perform a
          duty owed by the other to the third person,
          or

               "'(c) the harm is suffered because of
          reliance of the other or the third person
          upon the undertaking.'"

287 Ala. at 193, 249 So. 2d at 487 (quoting Restatement

(Second) of Torts § 324A). See also Commercial Union Ins. Co.

v. DeShazo, 845 So. 2d 766 (Ala. 2002).   In accordance with §

324A(a), the trial court instructed the jury that Yanmar

America could be held liable for negligently failing to warn

Randy based on its voluntarily assuming a duty to warn only if

"Yanmar America's negligence increased the risk of harm to

Randy."

    Yanmar America argues on appeal that it did nothing to

increase the risk of harm to Randy by issuing the safety


                              33
1130214

notices in this case and by undertaking other activities to

impede the importation, sale, and use of the gray-market

tractors in the United States.          "Section 324A(a) applies only

to the extent that the alleged negligence of the defendant

'exposes the injured person to a greater risk of harm than had

existed previously.'" Herrington v. Gaulden, 294 Ga. 285, 288,

751 S.E.2d 813, 816 (2013) (quoting Taylor v. AmericasMart

Real Estate, 287 Ga. App. 555, 559, 651 S.E.2d 754, 758

(2007)).    Moreover, the "test is not whether the risk was

increased over what it would have been if the defendant had

not been negligent.        Rather, a duty is imposed only if the

risk is increased over what it would have been had the

defendant not engaged in the undertaking at all."                Myers v.

United States, 17 F.3d 890, 903 (6th Cir. 1994).                 Liability

can be imposed on one who voluntarily undertook the duty to

act only where the actor "affirmatively either made, or caused

to be made, a change in the conditions which change created or

increased the risk of harm" to the plaintiff.              Id.    See also

Patentas v. United States, 687 F.2d 707, 717 (3d Cir. 1982)

("[T]he    comment   [c]    to   section    324A   makes     clear    that




                                   34
1130214

'increased risk' means some physical change to the environment

or some other material alteration of the circumstances.").

    As mentioned above, Randy claims in part that Yanmar

America breached the duty to warn that it had voluntarily

undertaken by issuing insufficient safety warnings that failed

to warn of the safety hazards that actually caused the tractor

he was operating to roll over.         The evidence is undisputed

that those safety warnings never reached Artec or Randy.

Because neither Artec nor Randy ever saw the safety warnings,

Yanmar America's failure to include more specific information

regarding   the   hazards   of   operating   a   Yanmar   gray-market

tractor could not possibly have increased the risk to Randy

over the risk that already existed in the absence of a notice.

See McMellon v. United States, 338 F.3d 287, 295 n.5 (4th Cir.

2003)   (observing that "[t]he plaintiffs do not contend, nor

could they, that the government, by posting signs that the

plaintiffs did not see, increased the risk to the plaintiffs

over that which they would have faced had no signs been

posted"), vacated and remanded on other grounds, 387 F.3d 329

(4th Cir. 2004).




                                  35
1130214

    Randy       also   bases    his   argument    that   Yanmar   America

breached the duty to warn on his claim that Yanmar America had

failed to ensure that the safety warnings were disseminated in

a manner by which they would actually reach the potential

purchasers and users of the Yanmar gray-market tractors.               He

points to the testimony of Trimm and Randy in support of this

contention.      Trimm testified that if he had been warned that

the Yanmar gray-market tractor was not designed for, and not

safe to operate in, the United States, he would have "passed

the information on" to Northside and would have offered to

purchase the tractor back from Northside.                Randy testified

that had he known of the stability issues associated with the

Yanmar gray-market tractor he would not have used it.               Randy

argues that Yanmar America's negligence in failing to ensure

that the safety warnings were disseminated to Randy increased

his risk of harm.       We disagree.

    Yanmar America conceded that it undertook a duty to warn

owners    and    potential      purchasers   of   the    safety   hazards

associated with the operation of a Yanmar gray-market tractor

in the United States.          Yanmar America issued safety warnings

and also undertook other activities to impede the importation


                                      36
1130214

and sale of gray-market tractors in the United States, the

importations and gray-market sales being circumstances beyond

its control.    Although it is undisputed that those safety

warnings never reached Randy, the result is the same as if

Yanmar    America   had   elected        not   to   undertake   any   such

activities to warn the foreseeable users of the Yanmar gray-

market tractors.    By issuing the safety warnings and failing

to ensure that they were disseminated to Randy, Yanmar America

exposed Randy to no greater a risk of harm than he would have

been exposed to previously had Yanmar America chosen not to

act in order to warn the potential users of the gray-market

tractors.   Herrington, supra.

    We conclude that Randy failed to establish by substantial

evidence that Yanmar America participated in an activity that

increased his risk of harm over any risk of harm that would

have existed had Yanmar America chosen not to warn potential

users of the gray-market tractors in this case.             Accordingly,

the trial court erred as a matter of law in denying Yanmar

America's motions for a JML on Randy's failure-to-warn claim.

                             Conclusion




                                    37
1130214

    We reverse the judgment of the trial court and remand the

case for the trial court to enter a judgment consistent with

this opinion.

    REVERSED AND REMANDED.

    Stuart, Wise, and Bryan, JJ., concur.

    Parker, J., concurs specially.

    Murdock and Main, JJ., concur in the result.

    Moore, C.J., recuses himself.




                             38
1130214

PARKER, Justice (concurring specially).

    I am not yet convinced that the "increases the risk of

such harm" standard set forth in Restatement (Second) of Torts

§ 324A(a) (1965) and applied by the majority in this case

applies to any and all voluntary-warning situations.




                             39
1130214

MURDOCK, Justice (concurring in the result).

       I agree that nothing in the warnings posted by Yanmar

America Corporation or in the physical notices mailed by it to

dealers increased the risk of harm to anyone who might have

seen    or   received   the   same,    much   less   someone   in   Autrey

Nichols's or Randy Nichols's position. As a threshold matter,

however, I question whether Yanmar America conceded that it

understood a duty to warn any person (including Autrey and

Randy) who did not happen upon its Web site postings or

actually receive one of its mailings, and I am not persuaded

that the evidence presented, including the testimony of Ryan

Pott, supports a contrary conclusion.           I therefore concur in

the result.




                                      40
