671 F.2d 980
John COLEMAN, Plaintiff-Appellant,v.WESTERN ELECTRIC CO., INC., Defendant-Appellee.
No. 80-1283.
United States Court of Appeals,Sixth Circuit.
Argued Dec. 2, 1981.Decided March 3, 1982.

John F. Chambers, Ripple, Chambers & Steiner, Detroit, Mich., C. Douglas Lovett, Cleveland, Ohio, for plaintiff-appellant.
David R. Getto, Robert F. Riley, Dice, Sweeney & Sullivan, Detroit, Mich., for defendant-appellee.
Before KEITH, Circuit Judge, WEICK, Senior Circuit Judge, and ALLEN*, District Judge.
KEITH, Circuit Judge.


1
This appeal challenges the propriety of an order of the United States District Court for the Eastern District of Michigan denying a Motion to Amend Judgment.  On appeal, the plaintiff-appellant, John Coleman, argues that the district court should not have reduced his jury award by the percentage of his contributory negligence.  Specifically, Coleman contends that, as a matter of Michigan law, contributory negligence should not diminish recovery where the absence of an adequate safety device was the proximate cause of injuries sustained.  We agree.  For the reasons below, we reverse the judgment of the district court.


2
This personal injury action arises from the injuries which John Coleman sustained while he was working on the premises of the defendant, Western Electric Co., Inc.  ("Western Electric").  On February 26, 1976, Coleman's arm was crushed as he helped Western Electric employees unload four reels of telephone cable at Western Electric's warehouse.  The following facts are relevant to this appeal.


3
John Coleman was a truck driver who had been employed by Trans-Con Trucking ("Trans-Con"), a Michigan trucking company, for over 40 years.  On February 26, 1976, Trans-Con directed Coleman to deliver some telephone cable to Western Electric.


4
The telephone cable which Coleman delivered was contained on four large reels.  Each reel was approximately 7 feet in diameter, 41/2 feet wide, and weighed between 5,000 and 7,000 pounds.  Coleman transported these reels in an enclosed tractor-trailer truck.  Three of the reels were placed in the trailer so that they could be rolled from the front of the trailer to its rear entrance.  The fourth reel was placed so that it could roll from one side of the trailer to the other.  This fourth reel was placed immediately inside the rear door of the trailer.


5
Coleman arrived at Western Electric's warehouse around 9 a.m.  Norman Kwatis, a supervisor at Western Electric, instructed Coleman to back his truck into a dock for unloading.  Coleman backed the truck into the dock and discovered that the trailer was between 4 and 6 inches lower than the dock.  Coleman pointed out the height differential between the trailer and the dock to Kwatis, and requested the use of another dock, equipped with a levelator.1


6
On February 26, 1976, at least two of the levelators at Western Electric's warehouse were broken.  Coleman was informed that the docks with operational levelators would be occupied for several hours.  Kwatis asked Coleman to assist Mark Javor, another Western Electric employee, in unloading the reels without a levelator.2


7
Kwatis demonstrated a procedure which would enable the reels to be unloaded without using a levelator.  Although Coleman had delivered dozens of shipments of cable to Western Electric's warehouse over the years, he had never assisted in nor witnessed the unloading of cable without using a levelator.  Javor was also unaware of this procedure.


8
A forklift was used to unload the reel nearest the rear door of the trailer.  Because this reel had been loaded so that it could roll from one side of the trailer to the other, the forklift remained on the dock and lifted this reel off the trailer.


9
The remaining three reels, however, could not be unloaded by using the forklift.  These reels had been loaded so that they could roll the length of the trailer.  The weight of the reels and the width of the trailer prevented Coleman, Javor and Kwatis from repositioning the reels in the trailer.  Moreover, the forklift could not negotiate the height differential between the trailer and the dock.  Javor allegedly suggested that the remaining three reels be rolled to the rear of the trailer, and then lifted out by using chains and a forklift.  Kwatis rejected this suggestion.  Instead, he instructed Coleman and Javor to unload the reels manually.


10
Coleman, Kwatis and Javor attempted to remove the first of the three remaining reels.3  The three men employed a manual procedure which combined their strength and the momentum of a rolling reel.  They would roll the reel up to the dock and allow the reel to bounce off the dock.  The momentum created by bouncing the reel off the dock would cause it to bounce off one of the remaining reels.  The momentum created by bouncing the reel against the stationary reel would enable the men to bounce the reel against the dock with greater force.  This bouncing procedure was repeated several times before the three men could unload the first remaining reel.  Kwatis took a coffee break after one reel had been unloaded using this method.  However, he allegedly instructed Javor and Coleman to unload the remaining two reels.


11
Coleman's injury occurred while he and Javor attempted to unload one of the remaining reels.  Coleman and Javor repeated the bouncing procedure discussed previously.  As Coleman stood in the trailer facing the rear door, the stationary reel began to roll toward the door.  Apparently Coleman was unaware that this reel was approaching him from the front of the trailer.  The reel which had been stationary collided with the reel which Javor and Coleman were attempting to unload.  This collision crushed Coleman's arm and injured his back.


12
A jury of the United States District Court returned a verdict for Coleman, and awarded him damages of $400,000.  However, the jury also found that Coleman was 65% contributorily negligent.  The district court, relying on Michigan's comparative negligence rules, entered a judgment for Coleman of $140,000.  This judgment was 35% of the jury's award for damages.


13
Coleman filed a motion to amend the judgment, claiming that the district court's reduction of the jury award was erroneous under Michigan law.  Specifically, Coleman argued that under Michigan law contributory negligence cannot reduce the recovery where the plaintiff's injury was caused by the absence of, or a defect in, safety equipment.  The district court denied Coleman's motion to amend the judgment.  Coleman perfected this appeal.


14
On appeal, Coleman argues that the district court erred as a matter of Michigan law by reducing the jury's award by the amount of contributory negligence attributed to him.  We agree.


15
The district court reasoned that Coleman failed to provide any authority for his claim that, as a matter of Michigan law, comparative negligence should not be considered in the instant case.  The court noted that the Michigan Supreme Court had not addressed this issue.  Thus, the district court refused to amend the judgment and reinstate Coleman's award of $400,000.


16
The district court was correct in applying Michigan law in this diversity action.  Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).  It is well settled under Michigan law that a worker's contributory negligence does not bar recovery where the absence of an adequate safety device is the proximate cause of the worker's injury.  Tulkku v. Mackworth Rees, 406 Mich. 615, 281 N.W.2d 291 (1979); and Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974).


17
In Funk, supra, the Michigan Supreme Court held that contributory negligence does not bar a plaintiff's recovery if the trier of fact finds that the employer's breach of a commonlaw duty to provide safety equipment is the cause in fact of plaintiff's injury.  In holding that contributory negligence would not bar a plaintiff's recovery, the Funk court recognized that workers have little discretion in deciding whether to work in dangerous situations or areas.  Specifically, the court stated:


18
"Workmen such as the present plaintiff, who ply their livelihoods on ladders and scaffolds, are scarcely in a position to protect themselves from accident.  They usually have no choice but to work with the equipment at hand, though danger looms large."  Funk, supra at 113 (220 N.W.2d 641), quoting Koenig v. Patrick Construction Corp., 298 N.Y. 313, 318-319, 83 N.E.2d 133, 135 (1948).


19
In Tulkku v. Mackworth Rees, supra, the Michigan Supreme Court affirmed Funk and extended its rationale to products liability cases.  The court in Tulkku held:


20
"contributory negligence is no bar to recovery where evidence has been presented of defendant's causal negligence in the design or manufacture of a safety device."  Tulkku, supra at 623, 281 N.W.2d 291.


21
The Tulkku court adopted the fundamental policy rationale on which Funk was based.  The court also affirmed another policy consideration articulated in Funk :


22
"The policy behind the law of torts is more than compensation of victims.  It seeks also to encourage implementation of reasonable safeguards against risks of injury."  Funk, supra, 104, 220 N.W.2d 641.  (Emphasis added).  "  Tulkku, supra at 621, 281 N.W.2d 291.


23
There were two important legal developments during the appeal of Tulkku, supra.  First, the Michigan Supreme Court replaced the doctrine of contributory negligence with a form of comparative negligence.  Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979).  Second, the Michigan legislature substituted comparative negligence for contributory negligence in products liability actions.  Mich.Comp.Laws § 600.2945.  In deciding Tulkku, however, the Michigan Supreme Court expressly declined to consider the effect of Placek, supra, or the new legislation.4


24
The district court denied Coleman's motion to amend the judgment because the Michigan Supreme Court had not addressed the effect of Placek on Funk and Tulkku.  The general rule in diversity cases is that a federal court must apply the law as expressed by the highest court of the state.  Clutter v. Johns-Manville Sales Corp., 646 F.2d 1151 (6th Cir. 1981); Ruth v. Bituminous Casualty Corp., 427 F.2d 290 (6th Cir. 1970).  If the highest court of the state has not spoken, however, then the federal court ascertains what the state law is and applies it.  West v. American Telephone and Telegraph Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940); Clutter, supra at 1153.  A principle announced by a state appellate court is an Erie indicator for ascertaining state law and should not be ignored by a federal court unless other Erie indicators suggest that the state's highest court would decide otherwise.  West v. AT&T, supra at 237, 61 S.Ct. at 183; Clutter, supra at 1153; Ruth, supra at 292.


25
The effect of Placek has been considered in three cases by the Michigan Court of Appeals.  See Timmerman v. Universal Corrugated Box Machinery Corp., 93 Mich.App. 680, 287 N.W.2d 316 (1979); Stambaugh v. Chrysler Corp., 96 Mich.App. 166, 292 N.W.2d 510 (1980); and Tulkku v. Mackworth Rees, 101 Mich.App. 709, 301 N.W.2d 46 (1980).  Therefore, we must ascertain the applicable Michigan law from these cases unless we are convinced that the Supreme Court of Michigan would decide otherwise.


26
Timmerman, supra, involved a products liability action against a manufacturer.  The plaintiffs based their suit on the manufacturer's alleged failure to provide safety devices and an alleged breach of an implied warranty of fitness.  The court in Timmerman held:


27
"(i)n view of the policy reasons underlying the Funk and Tulkku decisions, being the fostering of worker protection and encouragement of employers and manufacturers to provide proper and adequate safety equipment, it seems to us that the employee's negligence cannot be raised as a defense, whether it be under a doctrine of contributory negligence or comparative negligence."  Timmerman, supra at 686, 287 N.W.2d 316.


28
In Stambaugh, supra, the Michigan Court of Appeals reached a similar result.  The plaintiff in Stambaugh brought a negligence action against the general contractor and the owner of the premises on which he was injured.  The trial court instructed the jury that they could hold the general contractor liable if they found that its failure to provide necessary safety equipment proximately caused the plaintiff's injuries.  The trial court also instructed the jury that the plaintiff's contributory negligence barred his recovery.  The court of appeals in Stambaugh held that the trial court erred in instructing the jury that a finding of contributory negligence bars recovery.  Stambaugh, supra at 171, 292 N.W.2d 510.  The Stambaugh court reasoned:


29
"Contributory negligence is not an available defense when defendants have failed to provide an adequate safety device.  Tulkku v. Mackworth Rees Division of Avon Industries, Inc., 406 Mich. 615, 281 N.W.2d 291 (1979)."  Stambaugh, supra at 171, 292 N.W.2d 510.


30
The court also noted that comparative negligence would be improper since a finding of causal negligence by the defendant prevents any consideration of the plaintiff's negligence.  Stambaugh, supra at 173 n.3, 292 N.W.2d 510, citing Placek, supra.


31
The Michigan court of appeals also addressed this issue when the Michigan Supreme Court remanded Tulkku for consideration of the applicability of Placek and the newly enacted comparative negligence statutes.  On remand, the court of appeals held that after Placek, a plaintiff's recovery may not be diminished by his own negligence where the defendant's liability arises from the failure to prove adequate safety devices.  Tulkku, supra, 101 Mich.App. at 720, 301 N.W.2d 46.  The court of appeals in Tulkku based its holding on the Michigan Supreme Court's decisions in Funk and Tulkku.


32
The principle announced in Timmerman, Stambaugh and Tulkku is clear.  Even after Placek, a plaintiff's negligence cannot reduce his recovery where the defendant's failure to provide an adequate safety device is the proximate cause of the plaintiff's injuries.  There is nothing which indicates that the Michigan Supreme Court would decide this issue differently.5  Therefore, we conclude that the court of appeals' decisions in Timmerman, Stambaugh, and Tulkku provide the applicable Michigan law in the instant case.


33
At trial, the district court instructed the jury concerning Coleman's contributory negligence:


34
"In determining whether John Coleman may have negligently contributed to his injuries, if you find that one, the plaintiff upon his entry onto the defendant's property in Plymouth, Michigan, came under the direct control of the defendant through one of its employees; two, the defendant was negligent in that it failed to provide adequate devices for persons entering upon the premises for business purposes; and three, the absence of a levelator was a proximate cause of the injuries of which the plaintiff complains, then contributory negligence is not to be considered by the jury as a valid defense to the claim of the plaintiff."  (App. at 62-63)


35
Thus, if the jury found that the absence of an adequate safety device, the levelator, was the proximate cause of Coleman's injuries, then Coleman's contributory negligence was irrelevant.


36
The jury found that Western Electric was negligent, and that its negligence was the proximate cause of Coleman's injury.  The jury also found, however, that Coleman was 65% contributorily negligent.


37
Western Electric argues that the jury's findings indicate that Coleman proffered several theories of Western Electric's negligence, and the jury could have based Western Electric's liability on one of these alternative theories.6  Thus, if the jury had found that Western Electric was liable based on any of the alternative theories, then Coleman's negligence could bar his recovery.  There is a superficial appeal to Western Electric's argument.


38
We conclude, however, that Coleman did not present several theories of negligence.  In our view, Coleman's sole theory of negligence is that Western Electric failed to provide an adequate safety device, an operational levelator.7  If an operational levelator had been provided, then Javor and Coleman would have been able to unload the reels safely.  Moreover, the absence of safety blocks on the reels would have been irrelevant if a levelator had been used.


39
Since the jury found that the absence of a levelator was the proximate cause of Coleman's injuries, his negligence is no bar to recovery.  See Funk, supra, and Tulkku, supra.  Similarly, the district court erred in reducing the jury's award by the percentage the jury found Coleman contributorily negligent.  See Stambaugh, supra; Timmerman, supra; and Tulkku, supra (on remand).  Accordingly, we reverse the judgment of the district court.



*
 Hon. Charles M. Allen, Chief Judge, Western District of Kentucky, sitting by designation


1
 A levelator is a loading device consisting of a metal plate over a hydraulic lift.  The levelator is used while the trailer is parked at the dock.  The rear wheels of the trailer are rolled onto the levelator, and the bed of the trailer can then be raised or lowered during unloading.  Thus, workers unloading a trailer can use the device to keep the trailer bed level with the dock


2
 Coleman claimed that his employment contract and Interstate Commerce Commission regulations required truck drivers to assist in unloading if asked to do so


3
 Javor testified that moving a reel without the use of a forklift was similar to pushing a car


4
 The court reasoned that these issues had not been argued or briefed in Tulkku.  Tulkku, supra at 623, 281 N.W.2d 291


5
 All three cases rely on the Michigan Supreme Court's decisions in Funk, supra, and Tulkku, supra.  Moreover, as the court of appeals explicitly noted in Tulkku, the policy considerations articulated in Funk and Tulkku apply to prevent a bar of plaintiff's recovery and to prevent a diminution of plaintiff's recovery.  Tulkku, supra, 101 Mich.App. at 719-720, 301 N.W.2d 46.  Finally, the Michigan Supreme Court in Tulkku remanded that case to the court of appeals so that the effect of Placek on Funk and Tulkku could be addressed


6
 Western Electric bases its argument that Coleman presented several theories of negligence on the following instruction:
"Plaintiff claims that Western Electric was negligent in one or more of the following ways: one, negligently failing to provide a means for safely unloading the reels; two, requiring John Coleman to take part in an unsafe loading procedure; three, failure to maintain their premises or more specifically, their levelators in such a condition as to allow safe unloading of the reels; and four, failure to warn Mr. Coleman that safety blocks had not been used on or had been removed from the reel."


7
 We note that even this superficial ambiguity would not be present if the district court had issued special interrogatories to the jury.  Special interrogatories would have resolved conclusively the question of whether Coleman indeed presented several theories of negligence.  Moreover, assuming Coleman had presented several theories, then special interrogatories would enable this court to ascertain which theory was the basis for the jury's finding that Western Electric was liable


