Beacham v. Lee-Norse

• Decision Date: 14 July 1983
• Docket Number: No. 81-1920,LEE-NORSE and I,81-1920
• Parties: 13 Fed. R. Evid. Serv. 1792 John BEACHAM, Plaintiff-Appellee, v.ngersoll-Rand; and Does I through V, Inclusive, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1010

714 F.2d 1010

13 Fed. R. Evid. Serv. 1792

John BEACHAM, Plaintiff-Appellee, v. LEE-NORSE and Ingersoll-Rand; and Does I through V, Inclusive, Defendants-Appellants.

No. 81-1920.

United States Court of Appeals,

Tenth Circuit.

July 14, 1983.

Rehearing Denied Aug. 26, 1983.

Jackson Howard, Provo, Utah (Richard B. Johnson, Provo, Utah, with him on the brief) of Howard, Lewis & Petersen, Provo, Utah, for plaintiff-appellee.

Peter Stirba, Salt Lake City, Utah (William T. Thurman, Salt Lake City, Utah, with him on the brief) of McKay, Burton, Thurman & Condie, Salt Lake City, Utah, for defendants-appellants.

Before McWILLIAMS and BARRETT, Circuit Judges, and BRATTON, District Judge. ^*

BARRETT, Circuit Judge.

In this diversity case Lee-Norse and Ingersoll-Rand appeal from a jury verdict finding them strictly liable for injuries suffered by John Beacham.

Lee-Norse is a wholly owned subsidiary of Ingersoll-Rand which manufactures and sells coal mining machinery. The machine involved in this case was a roof bolter designed and manufactured by Lee-Norse and sold to the Braztah Mining Company. The roof bolter was used in Braztah's underground coal mine in Helper, Utah. The function of the roof bolter was to drill holes into the ceiling of the mine, and then to install six-foot long bolts through steel mats which prevent cave-ins during mining operations. The roof bolter had two sets of arms which moved independently of each other during the operation of the machine. The support arm assembly held a canopy against the ceiling to protect the machine operator from falling debris. Another set of arms supported the drill boom. As the machine was operated, the drill boom and the canopy would be elevated and lowered numerous times. This independent motion created a "pinch point" between the canopy support arm and the drill boom arm. There was no form of guard shielding the pinch point on the roof bolter in question when it was sold or at the time of the accident, although Braztah at one time apparently added a guard which the miners removed.

John Beacham was an employee at the mine in Helper. On November 9, 1979, he was working with the roof bolter with a fellow employee, Joseph Silva. Silva was the operator of the machine and Beacham was his helper. Silva would run the drill and insert the bolts, while Beacham would place and steady the steel mats. Silva and Beacham were using the bolter in an area where the ceiling of the mine was approximately ten feet high. The bolter in question was capable of extending only about eight and one-half feet high. Thus, the bolter was elevated in front by wooden crib blocks. In order to perform his job, Beacham also stood on a 10" X 10" X 36" crib block. The floor of the mine was uneven and covered by approximately one foot of water with oil mixed in it.

At the time of the accident, Beacham had been either steadying or repositioning a steel mat. To do so, he had to stand on the crib block about two feet away from the roof bolter on the opposite side of the machine from Silva. Somehow, Beacham slipped or lost his balance and fell from the block toward the bolter. In order to break his fall, he instinctively reached out and grabbed the canopy support arm. At the same time, Silva was lowering the drill boom and the canopy. Beacham's right hand became caught in the pinch point and four fingers were severed.

Beacham brought this action in the United States District Court for the District of Utah. The case was tried before a jury solely on the theory of strict products liability. At trial Lee-Norse attempted to present evidence supporting its affirmative defenses of assumption of risk and misuse and the statutory defense of alteration. The trial court ruled that the evidence was irrelevant and therefore inadmissible. The court then ruled that as a matter of law the defenses were insufficient to go to the jury and refused to instruct on them. The sole issue before the jury, therefore, was whether the bolter was unreasonably dangerous. The jury concluded that it was and awarded Beacham $407,820.83 in damages. On appeal, Lee-Norse contends that the trial court erred in its evidentiary rulings, in its ruling that Lee-Norse's defenses were insufficient to go to the jury, and in its refusal to instruct on the defenses.

Utah first definitively adopted strict products liability in 1979 in the case of Ernest W. Hahn, Inc. v. Armco Steel Co., 601 P.2d 152 (Utah 1979). In that case, the Utah Supreme Court adopted the doctrine of strict products liability as described in § 402A of the Restatement (Second) of Torts. ¹ Hahn, supra, 601 P.2d at 158. The court also held that there are two affirmative defenses to strict products liability: (1) misuse of the product by the user or consumer; and (2) "knowledge of the defect by the user or consumer, who is aware of the danger and yet unreasonably proceeds to make use of the product, i.e., assumption of risk." Id. at 158. The court referred to comments g ² and n ³ of section 402A to illustrate the two defenses. Since the defendant in Hahn could not claim either defense, the court refused to reach the issue of whether comparative principles would apply, or whether the defenses would bar recovery completely. It is clear, therefore, that the Utah Supreme Court intended to limit severely the defenses to strict products liability; common contributory negligence by the user which does not rise to the level of misuse or assumption of risk is no defense and in no way affects his or her recovery. Contra Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 889 n. 59 (Alaska 1979).

The Utah Supreme Court further defined the doctrine of strict products liability in Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301 (Utah 1981). The court reaffirmed that misuse and "unreasonable use of the product despite knowledge of the defect and awareness of the danger" ⁴ are affirmative defenses. Id. at 1302-03. The court also answered the question reserved in Hahn by holding that principles of comparative fault would apply to the affirmative defenses of misuse and unreasonable use. Id. at 1303-04. Finally, since the defect in the product was one of design rather than manufacture, the court implicitly approved of the application of strict products liability to design defects. Id. at 1302.

In this case, Beacham argued that the roof bolter was unreasonably dangerous by reason of a defect in design: the lack of a guard shielding the pinch point. Lee-Norse contended that the bolter was not unreasonably dangerous, and also raised the affirmative defenses of misuse and unreasonable use. Beacham objected to the testimony of several of Lee-Norse's witnesses on the grounds of relevancy. The trial court concluded that the evidence was irrelevant and refused to allow the testimony. In considering Lee-Norse's contention that such exclusion was erroneous, we must remember that the determination of whether proffered evidence is relevant is a matter committed to the discretion of the trial court. Beck v. Quik-Trip Corp., 708 F.2d 532 at 535 (10th Cir.1983). We will not disturb the trial court's decision on appeal absent a showing of clear abuse of discretion. Id. We will accord similar deference to a trial court's determination that the evidence's probative value is outweighed by its potential for prejudicing or confusing a jury. Texas Eastern Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561, 567 (10th Cir.1978). Moreover, if there is error in the admission or exclusion of evidence, we will set aside a jury verdict only if the error prejudicially affects a substantial right of a party. Fed.R.Civ.P. 61; Fed.R.Evid. 103(a); Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear Corp., 571 F.2d 1144, 1149 (10th Cir.), cert. denied, 439 U.S. 862, 99 S.Ct. 183, 58 L.Ed.2d 171 (1978).

With respect to the defense of unreasonable use, Lee-Norse claims that the excluded evidence was relevant to Beacham's knowledge of the defect, his awareness of the danger it posed, and his unreasonable conduct in proceeding to use the product anyway. Experts would have testified that Beacham acted unreasonably in standing on the crib block by the machine despite his awareness of the pinch point.

To establish the defense of unreasonable use in Utah, the defendant must show that with knowledge of the defect and awareness of the danger it posed, the user unreasonably proceeded to use the product. Mulherin, supra, 628 P.2d at 1303; Hahn, supra, 601 P.2d at 158. Implicit in the element of unreasonable conduct is the requirement that the conduct be voluntary. See note 3, supra. That is, the user must consciously decide to use the product despite his awareness of the defect. The evidence indicated that Beacham and other helpers at times had no choice but to stand close to the bolter and its pinch points in the performance of their duties. According to Lee-Norse, by this conduct Beacham voluntarily exposed himself to a known risk. We cannot agree.

In cases where the alleged defect is one of design, particularly the lack of a safety device, a defendant must show voluntary conduct by the user beyond simply using the product for its intended function. See Green v. Edmands Co., 639 F.2d 286, 290 (5th Cir.1981) ("[a]n individual who has no choice but to encounter the risk cannot be found to have voluntarily encountered the risk"). Irrespective of whether Beacham was aware of the pinch points, he did not voluntarily encounter them simply by performing his duties. Similarily, he did not unreasonably encounter them by negligently standing on a crib block. For his conduct to be voluntary and unreasonable, Beacham would have to decide to place himself in a position where the pinch points could cause him harm. For example, if Beacham had reached between the canopy support arm and the drill boom arm to retrieve a tool or to repair the bolter, there would be a jury question whether his conduct was voluntary and...