UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KATIE H. MCCOTTER,
Plaintiff-Appellant,

v.
                                                                No. 95-2440
SMITHFIELD PACKING COMPANY,
INCORPORATED, a corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CA-93-953)

Argued: June 3, 1996

Decided: July 24, 1996

Before WILKINSON, Chief Judge, and NIEMEYER and
HAMILTON, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion. Judge
Niemeyer wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Joseph Anthony Gawrys, VANDEVENTER, BLACK,
MEREDITH & MARTIN, L.L.P., Norfolk, Virginia, for Appellant.
William W. Nexsen, STACKHOUSE, SMITH & NEXSEN, Norfolk,
Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiff-Appellant Katie McCotter (McCotter), a United States
Department of Agriculture (USDA) meat inspector for six years, was
seriously injured when a hog carcass fell from an overhead conveyor
system and struck her while she was performing her official duties at
the Defendant-Appellee Smithfield Packing Co., Inc.'s (Smithfield)
meat packing plant in Smithfield, Virginia. As a result of her injuries,
McCotter filed a negligence action against Smithfield. The jury
returned a verdict in favor of Smithfield. On appeal, McCotter seeks
vacation of the adverse verdict and a new trial on the ground that the
district court erroneously put the issue of contributory negligence
before the jury. Because the issue of contributory negligence should
not have been put before the jury, we vacate the jury's verdict and
remand for a new trial.

I.

Federal law requires that federal food inspectors perform antemor-
tem and postmortem inspections on all hogs brought into a meat pro-
cessing facility to check for signs of disease. See 21 U.S.C. §§ 603
and 604. Thirteen federal inspectors were assigned to the packing
plant involved here. Seven of these inspectors, including McCotter,
were assigned to the "kill floor," where hogs were killed, bled, and
inspected for diseases.

On September 24, 1991, McCotter and two co-inspectors, Regina
Peterson and Rufus Miller, were working as "head" inspectors at the
"head" inspection station on the kill floor, where they examined the
heads of hog carcasses (still attached to the hog carcasses by a piece
of skin) for signs of disease or other contamination. The hog car-
casses, weighing approximately 250 pounds each, were suspended
from an overhead conveyor system by a metal bar with a hook at each

                    2
end called a gambrel. One hook went through a hole in one hind foot
of the hog carcass while the other hook went through a similar hole
in the other hind foot. The hole in each foot was created by a Smith-
field employee slicing part of the skin in the hind foot with a knife
in order to free the foot's tendon. If the employee was not careful, he
or she could nick the tendon while slicing the hole, thus weakening
the tendon. A weakened tendon created a fairly substantial risk that
the hog carcass would fall from the conveyor system at some point
during its processing.

Each head inspector was required to inspect the head of every third
hog carcass while they traveled by the inspectors from left to right at
the rate of 1,106 hog carcasses per hour. Two of Smithfield's employ-
ees, Benny Watford and Michael Coleman, worked on the opposite
side of the line of hog carcasses from McCotter, Regina Peterson, and
Rufus Miller. Both were known as "head trimmers."

According to the USDA training manual used to train meat inspec-
tors, "[a]fter inspecting contaminated parts, the inspectors must thor-
oughly clean and sanitize their hands and their equipment before
examining the next part." (J.A. 189). Smithfield provided two sinks
operated by foot pedals at the head inspection station for this purpose.
Each sink had sterilizers attached to each side with hot water so that
the inspectors could sterilize their tools.

Given the position of the two sinks at the head inspection station,
a head inspector, such as McCotter, had, at most, ten inches in which
to stand in front of the sink while cleaning and sanitizing her hands.
The two sinks were attached to a wall behind the inspectors that was
only forty inches from the conveyor system. Each sink projected out
twenty inches from the wall and the suspended hog carcasses pro-
jected out ten to fifteen inches toward the sinks.

On September 24, 1991, while McCotter was performing her duties
as a head inspector, her hands became contaminated with hog blood.
Consequently, she turned and stepped to one of the sinks behind her
in order to clean and sanitize her hands. The record reveals slightly
different versions of what happened at this point. McCotter testified
that while she was washing her hands at one of the sinks, a hog car-
cass suddenly fell from the conveyor system, struck her left shoulder,

                    3
and pushed her into the sink. Co-inspector Regina Peterson and head
trimmer Benny Watford both testified that the hog carcass suddenly
struck McCotter and pushed her into the sink after she had completed
washing her hands and had started to turn around toward Regina
Peterson, who was standing just to McCotter's left while McCotter
was facing the sink. By turning toward Regina Peterson, McCotter
was turning away from the approaching hog carcasses on the con-
veyor system. The record also contains the testimony of Benny Wat-
ford and Michael Coleman that the head of the hog carcass hit the
floor before its body struck McCotter. The record is undisputed that
the hog carcass also struck the hand of Regina Peterson who was fac-
ing the conveyor system.

The falling hog carcass caused injuries to McCotter's head, neck,
back, arms, and left shoulder. The injuries to her left shoulder necessi-
tated several surgeries and continue to prevent McCotter from per-
forming her occupation as a USDA meat inspector. Her medical
expenses at the time of trial totalled $37,425.38.

McCotter sued Smithfield on a negligence theory. Specifically,
McCotter alleged that Smithfield breached its duty to keep its prem-
ises safe, that the kill room had an unreasonably dangerous design
about which Smithfield ought to have known, that Smithfield failed
to train or supervise adequately its employees in the handling of hog
carcasses and their movement while on the conveyor system, and that
Smithfield failed to protect the area around the conveyor system to
prevent injuries from falling hog carcasses.

A jury trial began on November 15, 1994. After Smithfield rested,
McCotter requested that the district court not instruct the jury on con-
tributory negligence or assumption of the risk. The district court
agreed that an assumption of the risk instruction was inappropriate,
but disagreed with respect to an instruction on contributory negli-
gence. At this point, McCotter objected to any instructions referring
to contributory negligence on the ground that no evidence had been
presented during the trial to support such an instruction. The district
court overruled the objection and submitted the case to the jury on the
issues of negligence, contributory negligence, and damages.

On November 22, 1994, the jury returned a general verdict in favor
of Smithfield. At this time, McCotter made an oral motion to set aside

                    4
the verdict and grant a new trial. The district court denied the motion.
The district court then entered judgment on the jury verdict on
November 23, 1994. Subsequently, on December 2, 1994, McCotter
moved to vacate the judgment and grant a new trial. In the motion,
McCotter argued the evidence did not support an instruction on con-
tributory negligence. The district court denied the motion, and
McCotter noted a timely appeal from the judgment.

II.

McCotter attacks the judgment below on the basis that the district
court erroneously submitted the issue of contributory negligence to
the jury. The parties agree that Virginia law controls the substantive
legal issues in this action.

Under Virginia law, contributory negligence exists when "a plain-
tiff fail[s] to act as a reasonable person would have acted for his own
safety under the circumstances." Artrip v. E.E. Berry Equip. Co., 397
S.E.2d 821, 824 (Va. 1990). If the plaintiff was contributorily negli-
gent, then Virginia law bars a plaintiff from recovering in a negli-
gence action if the plaintiff's contributory negligence proximately
caused his injury. See Litchford v. Hancock, 352 S.E.2d 335, 337 (Va.
1988). Federal district courts operate under a federal standard when
determining the sufficiency of the evidence for submission of the
issue of contributory negligence to a jury. See Jones v. Meat Packers
Equip. Co., 723 F.2d 370, 372 (4th Cir. 1983). Under that standard,
in the absence of evidence, or all reasonable inferences that can be
drawn from the evidence, disclosing that a plaintiff was negligent and
contributed to her injuries, the issue of contributory negligence should
not go to the jury. Id.

On appeal, McCotter contends that the record is devoid of any evi-
dence showing that she failed to act as a reasonable person would
have acted under the circumstances. She further contends that no rea-
sonable inferences could be drawn from the evidence at trial to show
that she failed to act as a reasonable person would have acted under
the circumstances. Finally, she contends that the record is devoid of
any evidence that her actions leading up to the accident or at the time
of the accident contributed to her injuries.

                    5
Conversely, Smithfield contends that the record contains evidence
to support the contributory negligence instruction, and thus, the dis-
trict court did not err by giving the instruction. In support of its posi-
tion, Smithfield argues that a reasonable juror could have found that
McCotter, by looking at her hands while washing them in the sink
instead of turning her head toward the oncoming hog carcasses, failed
to act as a reasonable person would have acted for her own safety
under the circumstances. Similarly, Smithfield argues that McCotter
should have been looking toward the oncoming hog carcasses while
starting to return to her post. According to Smithfield, keeping a look-
out for falling hog carcasses would have allowed McCotter to protect
herself by either escaping the falling hog carcass or somehow fending
it off. This was the primary basis upon which the district court gave
the contributory negligence instruction.

McCotter first responds to Smithfield's arguments by arguing that
she had to face the sink while washing her hands in order to be certain
that she had thoroughly cleaned and sanitized them as required by the
USDA's training manual for meat inspectors. She further argues that
given the space constraints of the inspection area, the hog carcass
would have struck her regardless of whether she had been facing the
oncoming hog carcasses while washing her hands or looking down in
the sink to ensure a thorough job. She makes the same argument with
respect to turning away from the oncoming hog carcasses after she
had finished washing her hands. In support, McCotter points to the
fact that the hog's foot hit the hand of Regina Peterson, who was
standing just to McCotter's left as McCotter faced the sink, in spite
of the fact that Regina Peterson was facing the oncoming hog car-
casses.

After reviewing the record, we are convinced that no evidence
exists to support the district court's contributory negligence instruc-
tion. First, no reasonable juror could conclude that McCotter acted
negligently by turning her back to the conveyor system in order to
thoroughly clean and sanitize her hands as required by the training
manual for USDA meat inspectors. According to that manual,
"[t]horough cleaning and sanitizing takes time . . . ." (J.A. 189). Com-
mon sense dictates that McCotter could not keep a lookout for falling
hog carcasses while at the same time paying needed attention to the
task at hand--thoroughly cleaning and sanitizing her hands. Further-

                     6
more, Smithfield, not McCotter, created McCotter's need to turn her
back on the conveyor system by placing the sinks on the wall opposite
the conveyor system.

Second, a reasonable juror could not find that McCotter acted neg-
ligently or contributed to her injuries by not turning toward the
oncoming hog carcasses after she had finished thoroughly cleaning
and sanitizing her hands so that she could keep a lookout for falling
hog carcasses. There was no evidence that had McCotter turned
toward the oncoming hog carcasses after washing her hands, she
would have been able to avoid being hit by the 250 pound falling hog
carcass. The only evidence in the record relative to this issue suggests
otherwise--given that McCotter had only inches in which to maneu-
ver in front of the sink, she had no conceivable means of escaping the
falling hog carcass and the hog carcass struck Regina Peterson while
Regina Peterson, standing just to McCotter's left while McCotter
faced the sink, faced the oncoming hog carcasses.

III.

In conclusion, we hold the district court erred by instructing the
jury on contributory negligence. We also hold the error was not harm-
less. Because contributory negligence is a complete bar to an action
based on negligence in Virginia, "it is impossible to ascertain from
the jury's general verdict what effect the issue of contributory negli-
gence had on their decision." See Jones, 723 F.2d at 373.* Accord-
ingly, we vacate the district court's judgment in favor of Smithfield
and remand the case to the district court for a new trial.

VACATED AND REMANDED FOR A NEW TRIAL

NIEMEYER, Circuit Judge, dissenting:

When a party adopts, as a litigation strategy, the position that the
plaintiff was contributorily negligent and, in furtherance of that strat-
_________________________________________________________________
*McCotter also contends on appeal that the district court abused its
discretion by not permitting her to mention the amount of her com-
plaint's ad damnum clause or a lessor amount during closing argument.
We have reviewed this contention and find it to be without merit.

                    7
egy, offers evidence that the plaintiff failed to act reasonably in pro-
tecting herself in view of known hazards, it is incumbent on the trial
court to instruct the jury on the law of contributory negligence even
if the court would not itself find the plaintiff contributorily negligent.

In this case, Smithfield Packing Company contended that McCotter
was contributorily negligent in failing, when washing her hands, to
keep a lookout for falling hog carcasses. It established that workers
around the conveyor system know that hog carcasses fall off their
hooks for a number of reasons inherent in a meat-packing business
and proffered evidence that if McCotter had kept a better lookout,
turning toward the oncoming carcasses when she finished washing
her hands, she could have avoided injury.

The majority opinion, instead of leaving the contributory negli-
gence issue with the jury, improperly conducted the very fact-finding
analysis that is committed to the jury.

I would affirm.

                     8
