353 F.3d 862 (10th Cir. 2003), 02-4147, Wankier v. Crown Equipment Corp.

Docket Nº:02-4147
Citation:353 F.3d 862
Party Name:Wankier v. Crown Equipment Corp.
Case Date:December 23, 2003
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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353 F.3d 862 (10th Cir. 2003)

Paula WANKIER, Plaintiff-Appellee,



No. 02-4147.

United States Court of Appeals, Tenth Circuit

December 23, 2003

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[Copyrighted Material Omitted]

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Michael L. O'Donnell (Darcy M. Goddard, Wheeler Trigg & Kennedy, P.C., Denver, CO and Lee Mickus, Snell & Wilmer, LLP, Denver, CO, with him on the brief), Wheeler Trigg & Kennedy, P.C., Denver, CO, for Defendant-Appellant.

Michael P. Zaccheo (Christian S. Collins with him on the brief), Richards Brandt Miller & Nelson, Salt Lake City, UT, for Plaintiff-Appellee.

Before SEYMOUR, HENRY, and McCONNELL, Circuit Judges.


McCONNELL, Circuit Judge.

Crown Equipment Corporation ("Crown") appeals a jury verdict for Plaintiff Paula Wankier in this products liability action, which is governed by Utah law. Ms. Wankier was the operator of an electric pallet jack, also known as a "walkie-rider," manufactured by Crown. While operating the walkie-rider in a warehouse, Ms. Wankier drove the machine into a conveyor belt. Her leg was caught between the conveyor and the walkie-rider, causing severe and permanent injuries to her leg. Ms. Wankier brought suit against Crown in federal district court in the District of Utah, pursuant to diversity jurisdiction.

Ms. Wankier claimed that the accident occurred because the walkie-rider contained a latent defect: that when the control arm, which is used to regulate the power and direction of the machine, is slipped from the "power on" position to a neutral zone between the "power on" and the brake application position, the machine's power cuts out, the machine coasts, and the operator loses control over it. Crown concedes this fact regarding the machine's operational capabilities. Crown Br. at 3. Ms. Wankier asserted strict liability claims for design defect and inadequate warnings, as well as negligence claims related to product design and inadequate warnings. Her case at base rested on the contention that Crown should have eliminated or changed the location of the neutral--or coast--position of the control arm, and also that Crown should have equipped the walkie-rider with a guard rail attached to the back of the machine's operator platform.

The district court granted partial summary judgment in favor of Crown on the inadequate warning claims. App. 531. After a six-day trial, the jury found in favor of Crown on Ms. Wankier's negligent design claim, but found for Ms. Wankier on the strict liability design defect claim. The jury awarded special damages in the amount of $210,000 and general damages in the amount of $90,000. The district court reduced the overall award to $240,000 to reflect the jury's finding that Ms. Wankier was 20% at fault for the accident. It also awarded costs and interest.

Prior to trial, Crown submitted two proposed jury instructions, both of which informed the jury that the plaintiff bore the burden of showing the existence of a safer, feasible, alternative design. 1 Crown contended

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that this instruction was required under controlling Tenth Circuit precedent, Allen v. Minnstar, Inc., 8 F.3d 1470 (10th Cir. 1993). Ms. Wankier argued that, in light of subsequent decisions by the Utah Supreme Court, there was no requirement under Utah strict products liability law that the plaintiff show the existence of a safer alternative design. The district court declined to give Crown's proposed jury instructions:

The court declines to give proposed instructions 16 and 16-A from defendant for the reasons that I have previously explained. I do not believe that Utah law--and if I'm wrong, I'm sure if you lose you'll go up and see what the Circuit says about it. I'll give my proposed instruction 20. I am not convinced that Utah law requires, as an element of plaintiff's case, a safer alternative design.

App. 1613-14. 2 Noting the fact that the Utah Supreme Court had not had the opportunity to rule on the law applicable to a strict liability design defect claim, the district court noted:

And this tea leaf reading thing on what the Utah Supreme Court will or will not do is a very interesting question. But they did sort of survey the waterfront in House [v. Armour of Am., Inc., 929 P.2d 340 (Utah 1996)]. Now, why they didn't

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refer to, what is it, Allen, I don't know. But it looks to me like as they surveyed the waterfront, what they really found was that plaintiff's burden is that the subject product failed to perform as safely as an ordinary consumer or user would expect when used in an intended or reasonably foreseeable manner, which is language from that House v. Armour [opinion] on Page 344. And if you look at the Model Utah Jury Instruction 12.4, definition of defective design, that's my best reading of the Utah tea leaf.

Mot. Hr'g Tr. 59-60, App. 877-78 (italics added).

The principal issue on appeal is whether the district court erred, as a matter of Utah law, in declining to instruct the jury that a plaintiff alleging design defect in a strict liability action must prove the existence of a safer alternative design, practicable under the circumstances and available at the time defendant placed the product in the stream of commerce. We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse.


In cases arising under a federal court's diversity jurisdiction, the task of the federal court is not to reach its own judgment regarding the substance of the common law, but simply to "ascertain and apply the state law." Huddleston v. Dwyer, 322 U.S. 232, 236, 64 S.Ct. 1015, 88 L.Ed. 1246 (1944); see also Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The federal court must defer to the most recent decisions of the state's highest court. Blackhawk-Central City Sanitation Dist. v. Am. Guar., 214 F.3d 1183, 1194 n. 4 (10th Cir. 2000). Where no controlling state decision exists, the federal court must attempt to predict what the state's highest court would do. In performing this ventriloquial function, however, the federal court is bound by ordinary principles of stare decisis. Thus, when a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state's highest court has resolved the issue. Id.; see Koch v. Koch Indus., Inc., 203 F.3d 1202, 1231 (10th Cir. 2000).

The Utah Supreme Court adopted the doctrine of strict products liability, as defined in Section 402A of the Restatement (Second) of Torts, in Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152, 158 (Utah 1979). But it has not addressed whether the plaintiff bears the burden of showing a safer alternative design in a strict liability design defect case. In Allen, this Court examined the then-current state of Utah products liability tort law, and concluded the plaintiff, in a design defect case, ...

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