Stephen Bilenky v. Ryobi Technologies, Inc.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:13-cv-00345-RAJ-DEM Copies to all parties and the district court/agency. [999974468].. [15-1753]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1753

STEPHEN E. BILENKY, Administrator of the Estate of Frank S.
Wright, deceased,
Plaintiff – Appellee,
v.
RYOBI TECHNOLOGIES, INCORPORATED,
Defendant – Appellant,
and
HOME DEPOT USA, INCORPORATED; ONE WORLD TECHNOLOGIES,
INCORPORATED;
TECHTRONIC
INDUSTRIES
NORTH
AMERICA,
INCORPORATED; TECHTRONIC INDUSTRIES COMPANY, LIMITED; RYOBI
NORTH AMERICA, INCORPORATED; RYOBI LTD.; THE HOME DEPOT,
INCORPORATED,
Defendants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:13-cv-00345-RAJ-DEM)

Argued:

October 25, 2016

Decided:

November 23, 2016

Before WILKINSON, KING, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

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ARGUED: Robert Latane Wise, BOWMAN AND BROOKE LLP, Richmond,
Virginia, for Appellant.
Lawrence Steven Emmert, SYKES,
BOURDON, AHERN & LEVY, P.C., Virginia Beach, Virginia, for
Appellee. ON BRIEF: Davin M. Rosborough, BOWMAN AND BROOKE LLP,
Richmond, Virginia, for Appellant. Richard N. Shapiro, SHAPIRO,
APPLETON & DUFFAN, PC, Virginia Beach, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Frank S. Wright died after the Ryobi-branded lawn tractor
he was riding caught fire.

The administrator of Mr. Wright’s

estate, Stephen E. Bilenky, brought a products liability lawsuit
against

several

defendants,

Incorporated (“Ryobi”).

including

Ryobi

Technologies,

After a four-day trial in the Eastern

District of Virginia, the jury found Ryobi liable for negligence
and awarded $2,500,000 in damages.

Ryobi has appealed from the

district court’s judgment, and as explained below, we affirm.

I.
A.
On

September

travelled

to

a

15,
Home

2005,

Mr.

Depot

store

purchase a new lawn tractor. 1

Wright
in

and

his

Norfolk,

wife

Audrey

Virginia,

to

The Wrights paid $1,058 for a

Ryobi lawn tractor, Model HDK19H42 (the “Ryobi tractor”).

The

next day, Home Depot delivered the Ryobi tractor to the Wrights’
home in Chesapeake, Virginia.
accompanying

operator’s

Although the Ryobi tractor, the

manual,

1

and

the

Home

Depot

receipt

Because we are assessing a denial of Ryobi’s motion for
judgment as a matter of law, we recount the facts in the light
most favorable to Bilenky. See Adkins v. Crown Auto, Inc., 488
F.3d 225, 231 (4th Cir. 2007).

3

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prominently displayed the trade name Ryobi®, it was actually
Husqvarna that manufactured the Ryobi tractor.
In the years preceding his death, Mr. Wright’s health began
to decline.
suffered

Mr. Wright had survived a few heart attacks, and he

from

neuropathy.

diabetes,

coronary

disease,

and

peripheral

Mr. Wright often used a wheelchair and was unable

to walk for a period of time.

He also suffered from dementia,

although his condition had improved as of October 2010 due to a
medication change.
On December 23, 2010, Mr. Wright decided to use the Ryobi
tractor to either cut grass or bag leaves.

Approximately one

hour after Mr. Wright went outside, Mrs. Wright heard a loud
noise.

She saw the Ryobi tractor — with her husband still in

the operator’s seat — engulfed in smoke and fire.
then

dismounted

the

intensifying flames.

Ryobi

tractor

and

attempted

Mr. Wright
to

flee

the

While Mrs. Wright fumbled with the garden

hose and called 911, Mr. Wright burned to death in his backyard.
He was eighty-eight years old.
B.
Bilenky,

the

Wrights’

son-in-law,

was

appointed

administrator of Mr. Wright’s estate on December 18, 2012.

Two

days later, on December 20, Bilenky filed this action in the
Circuit Court for the City of Norfolk.

4

Among the defendants

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were Ryobi and

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Home Depot USA,

Incorporated (“Home Depot”). 2

Bilenky’s claims included negligence, gross negligence, breach
of express warranty, and breach of implied warranty.

Home Depot

removed the matter to the Eastern District of Virginia on June
19, 2013, invoking the district court’s diversity jurisdiction.
See 28 U.S.C. § 1332.
On August 27, 2014, Home Depot and Ryobi filed motions for
summary judgment.

In support of its motion, Ryobi contended

that it could not be held liable on any of Bilenky’s claims
because it had no involvement in the design, manufacture, or
distribution of the Ryobi tractor (the “nonliability theory”).
The

district

court

declined

to

rule

on

the

summary

judgment

motions before trial.
The trial began on January 14, 2015.

Bilenky’s theory was

that the Ryobi tractor’s fuel hose detached from the fuel tank,
causing gasoline to stream out of the fuel hose and ignite.
Bilenky presented models of the fuel tank, photographs, and the
Ryobi tractor operator’s manual, as well as the testimony of a
fire

investigation

and

origin

expert,

2

a

design

engineering

The other defendants were Ryobi Limited; Ryobi North
America, Incorporated; Techtronic Industries Company, Limited;
Techtronic
Industries
North
America,
Incorporated;
Ryobi
Technologies,
Incorporated;
One
World
Technologies,
Incorporated; and Home Depot, Incorporated.
Those defendants
were dismissed prior to the trial.

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expert, Mrs. Wright, two paramedics, a deputy fire marshal, a
Home

Depot

corporate

representative,

one

of

the

Wrights’

neighbors, the Wrights’ two daughters, and Bilenky.
On

January

15,

at

the

conclusion

of

Bilenky’s

case-in-

chief, Home Depot and Ryobi jointly moved for judgment as a
matter of law pursuant to Rule 50(a) of the Federal Rules of
Civil Procedure.
had

failed

Notably,

to

They argued, in pertinent part, that Bilenky
establish

however,

nonliability

either
motion

the

theory.

For

design
did

other

defect
not

reasons,

or

causation.

mention
the

Ryobi’s

district

court

granted the motion as to Bilenky’s gross negligence claim only.
When the trial resumed on January 20, the district court
granted

Home

verdict

as

negligence

Depot

to
and

and

Ryobi’s

Bilenky’s
implied

express

warranty

joint

motion

warranty
claims.

for

claim,
On

a

directed

leaving

January

21,

his
the

defense rested, a charge conference was conducted, and the case
was

submitted

to

the

jury.

Ryobi

did

not

request

instruction pertinent to its nonliability theory.

a

jury

Furthermore,

Ryobi explicitly stated that it had no objection to the district
court’s jury charge, which did not include such an instruction.
The next day, January 22, the jury found in favor of Bilenky on
the negligence claim against Ryobi — but not Home Depot — and
against Bilenky on the implied warranty claim.
$2,500,000 in damages.
6

The jury awarded

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On

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February

19,

2015,

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Ryobi

filed

a

renewed

motion

judgment as a matter of law pursuant to Rule 50(b).

for

For the

first time since its pretrial summary judgment motion, Ryobi
raised

its

nonliability

contention,
causation

made
was

at

theory.

trial,

insufficient

Ryobi

that
to

the

also

reiterated
of

evidence

support

its
and

defect

Bilenky’s

negligence

claim.
By its Memorandum Opinion and Order of June 26, 2015, the
district court denied Ryobi’s renewed motion.

See Bilenky v.

Ryobi Techs., Inc., No. 2:13-cv-00345 (E.D. Va. June 26, 2015),
ECF

No.

206

(the

“Opinion”).

In

rejecting

the

nonliability

theory, the Opinion concluded that Ryobi was a proper defendant
pursuant to the apparent manufacturer doctrine, under which an
entity “subjects itself to the same liability as a manufacturer”
by

“put[ting]

out

a

product

as

its

own.”

See

Opinion

15.

According to the court, there was “sufficient evidence in the
record to support the jury’s finding that Ryobi Technologies,
Inc., put the Ryobi tractor out as its own,” in that the “jury
was presented with evidence that Mr. Wright purchased a tractor
with the word ‘Ryobi’ printed on its side, that he possessed an
owner’s manual with the name ‘Ryobi’ printed on the top, and
that his receipt was indeed for a Ryobi lawn tractor.”
16.

The

sufficient

Opinion
evidence

also
of

concluded
defect

and
7

that

Bilenky

causation

had

to

Id. at

presented

support

the

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negligence finding against Ryobi.

Id. at 16-20.

Ryobi timely

noted this appeal, and we possess jurisdiction pursuant to 28
U.S.C. § 1291.

II.
We review de novo a district court’s denial of a motion for
judgment as a matter of law.
488

F.3d

reasonable

225,

231

jury,

(4th

viewing

See Adkins v. Crown Auto, Inc.,

Cir.

2007).

the

We

evidence

assess

in

the

whether
light

a

most

favorable to the prevailing party, had a sufficient evidentiary
basis to find in favor of that party.

Id.

III.
On

appeal,

Ryobi

first

contends

that

it

is

entitled

to

judgment as a matter of law because it cannot be held liable as
the apparent manufacturer of the Ryobi tractor.

Then, Ryobi

asserts that it deserves judgment as a matter of law premised on
insufficient trial evidence of both defect and causation. 3

3

Ryobi also contends that it is entitled to a new trial
because the district court improperly struck two of Ryobi’s
contributory negligence defenses, applied an incorrect standard
for discovery sanctions, and wrongly allowed Bilenky to
introduce prejudicial evidence. We discern no reversible error,
however, with respect to those matters.

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A.
We first address Ryobi’s contention that it cannot be held
liable as the apparent manufacturer of the Ryobi tractor.

In

Virginia, a plaintiff can impose liability on a manufacturer or
seller of a defective product if the product is unreasonably
dangerous for its ordinary or reasonably foreseeable use and the
unreasonably dangerous condition existed when the product “left
the defendant’s hands.”

See Austin v. Clark Equip. Co., 48 F.3d

833, 836 (4th Cir. 1995) (quoting Logan v. Montgomery Ward &
Co., Inc., 219 S.E.2d 685, 687 (Va. 1975)).

Pursuant to the

apparent manufacturer doctrine, an entity holding itself out as
the manufacturer may be subject to the same liability as the
actual manufacturer.
132

(4th

Cir.

See Swift & Co. v. Blackwell, 84 F.2d 130,

1936).

In

Swift,

we

explained

the

apparent

manufacturer doctrine as follows:
One who puts out as his own product chattels made by
others is under a duty to exercise care, proportionate
to the danger involved in the use of the chattels if
improperly made, to secure the adoption of a proper
formula or plan and the use of safe materials and to
inspect the chattel when made. But he does not escape
liability by so doing.
By putting a chattel out as
his own product, he causes it to be used in reliance
upon his care in making it.
Therefore, he is liable
if, because of some negligence in its fabrication or
through lack of proper inspection during the process
of manufacture, the article is in a dangerous
defective
condition which
the
vendor
could
not
discover after it was delivered to him.

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Id. (quoting Restatement of Torts § 400).

We later recognized

that Virginia has adopted the rule enunciated in Swift.

See

Carney v. Sears, Roebuck & Co., 309 F.2d 300, 304 (4th Cir.
1962) (citing Highland Pharmacy v. White, 131 S.E. 198, 200 (Va.
1926)).
Here, it is undisputed that Husqvarna manufactured and Home
Depot

sold

the

Ryobi

tractor.

Ryobi

contends

that

Bilenky

cannot use the apparent manufacturer doctrine to hold it liable
—

because

unlike

the

entities

deemed

to

be

apparent

manufacturers in Swift, Carney, and Highland Pharmacy — Ryobi
was not involved in the distribution of the defective product.
Bilenky

counters

trademark
Depot

on

that

the

receipt

the

Ryobi

gave

prominent

tractor,

the

jury

labeling

operator’s

sufficient

of

the

manual,

evidence

Ryobi®

and
to

Home

impose

liability on Ryobi.
As the parties agree, Virginia has not addressed whether
the

apparent

manufacturer

doctrine

may

apply

to

an

entity

outside the chain of distribution of a product that nonetheless
bears the entity’s name.
issue.

Compare, e.g., Yoder v. Honeywell Inc., 104 F.3d 1215,

1222-24
liability

(10th

527

Cir.

under

distribution),
Co.,

Furthermore, courts have split on the

A.2d

1997)

Colorado

(limiting

law

with,

e.g.,

134,

139-40

to

entities

Brandimart
(Pa.
10

apparent

v.

Super.

manufacturer

within

chain

Caterpillar
Ct.

1987)

of

Tractor

(imposing

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liability on entity that simply authorized use of its name on
product).

We need not consider what position Virginia would

adopt, however, because Ryobi has waived the issue by failing to
request a jury instruction conforming to its nonliability theory
and its correlating view of the apparent manufacturer doctrine.
See Jiminez v. DaimlerChrysler Corp., 269 F.3d 439, 448 (4th
Cir. 2001) (citing, inter alia, Abel v. Miller, 824 F.2d 1522,
1535 (7th Cir. 1987)).

That is, “[t]o avoid waiver of the

[nonliability] theory, [Ryobi] must have presented the theory at
trial

and

attempted

instructed on it.”

to

insure

that

the

jury

See Abel, 824 F.2d at 1535.

was

properly

Because it did

not do so, Ryobi cannot now rely on the nonliability theory to
obtain judgment as a matter of law. 4

4

Significantly, Ryobi did not otherwise preserve its
nonliability theory by unsuccessfully presenting it to the
district court prior to submitting proposed jury instructions.
Cf. College Loan Corp. v. SLM Corp., 396 F.3d 588, 599 n.10 (4th
Cir. 2005) (recognizing that “College Loan’s failure to
specifically object to [instructions did not] waive the position
it had already unsuccessfully presented to the district court”).
Although Ryobi raised the nonliability theory in its summary
judgment motion, the court declined to rule on that motion prior
to trial.
At the next opportunity, in its motion at trial for
judgment as a matter of law pursuant to Federal Rule of Civil
Procedure 50(a), Ryobi failed to reassert the nonliability
theory.
Indeed,
Ryobi
only
belatedly
reiterated
the
nonliability theory — post-trial — in its Rule 50(b) renewed
motion for judgment as a matter of law.
Of course, “a Rule
50(a) motion is a prerequisite to a Rule 50(b) motion because
the [moving party] must apprise the district court of the
alleged insufficiency of [the] suit before the case is submitted
to the jury.”
See Price v. City of Charlotte, N.C., 93 F.3d
(Continued)
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B.
We

turn

to

Ryobi’s

contention

that

Bilenky

insufficient evidence of defect and causation.

presented

To prevail on a

products liability claim in Virginia, a plaintiff “must prove
that

the

product

contained

a

defect

which

rendered

unreasonably dangerous for ordinary or foreseeable use.”
Alevromagiros

v.

1993).

plaintiff

The

Hechinger

Co.,

also

993

must

F.2d

417,

establish

420

that

(4th

the

it
See
Cir.

alleged

defect existed when the product left the defendant’s hands and
that

the

defect

caused

the

plaintiff’s

injury.

Id.

When

determining what constitutes an unreasonably dangerous defect,
courts consider industry and government safety standards as well
as the reasonable expectations of consumers.
Having
Opinion

of

carefully
the

examined

district

the

court,

record

together

Id. at 420-21.
and
with

the
the

thoughtful
parties’

written submissions and the arguments of counsel, we discern no
inadequacy of the evidence.

We are therefore content to affirm

the judgment on the cogent reasoning spelled out by the district
court in its Opinion.

1241, 1249 (4th Cir. 1996).
Therefore, even if Ryobi had not
waived its nonliability theory by failing to request a
conforming instruction, we would be constrained to review for
plain error the court’s denial of Ryobi’s renewed motion for
judgment as a matter of law. See id.

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IV.
Pursuant to the foregoing, we affirm the judgment of the
district court.
AFFIRMED

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