Allen v. Minnstar, Inc.

• Decision Date: 11 October 1996
• Docket Number: No. 95-4060,95-4060
• Citation: 97 F.3d 1365
• Parties: , Prod.Liab.Rep. (CCH) P 14,758 Scott ALLEN, Plaintiff-Appellant, v. MINNSTAR, INC., dba Wellcraft Marine, dba Genmar Industries, Inc., Defendant-Appellee. OUTBOARD MARINE CORPORATION, Defendant-Cross-Claimant, v. Mitchell HUFFMAN and Melvin Huffman, Cross-Claim-Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1365

97 F.3d 1365

1997 A.M.C. 2111, Prod.Liab.Rep. (CCH) P 14,758

Scott ALLEN, Plaintiff-Appellant, v.MINNSTAR, INC., dba Wellcraft Marine, dba Genmar Industries,Inc., Defendant-Appellee.

OUTBOARD MARINE CORPORATION, Defendant-Cross-Claimant, v.Mitchell HUFFMAN and Melvin Huffman, Cross-Claim-Defendants.

No. 95-4060.

United States Court of Appeals Tenth Circuit.

Oct. 11, 1996.

Jackson Howard(D. David Lambert and Phillip E. Lowry with him on the brief), of Howard, Lewis & Petersen, Provo, UT, for appellant.

Stephen B. Nebeker(Rick L. Rose with him on the brief), of Ray, Quinney & Nebeker, Salt Lake City, UT, for appellee.

Before BRORBY, BRISCOE, and LUCERO, Circuit Judges.

BRISCOE, Circuit Judge.

PlaintiffScott Allen appeals a jury verdict in favor of defendantMinnstar, Inc., dba Genmar Industries, Inc., dba Wellcraft Marine (Wellcraft) on plaintiff's strict product liability claims.Plaintiff also appeals the district court's denial of his motion for judgment notwithstanding the verdict or, in the alternative, for new trial.The claims arise out of a boating accident in which plaintiff was struck and severely injured by the propeller on a boat manufactured by defendant.We affirm.

The underlying facts of this case are straightforward.On August 30, 1985, plaintiff and some friends went for a midnight ride on Lake Powell in a boat manufactured by defendant.The boat, a 1978 Wellcraft Marine, Model 165 Airslot I/O, was approximately 16.5 feet in length and contained seating for passengers in the bow area.Plaintiff alleged he was sitting in the bow area of the boat when, in order to avoid an apparent obstacle in the water, the driver accelerated and made a sharp turn, causing plaintiff to fall overboard into the water.Plaintiff was struck by the boat's unguarded propeller and received severe lacerations to his left leg, resulting in the eventual amputation of the leg above the knee, and injuries to his right leg, and he was forced to undergo a colostomy due to abdominal injuries.

Plaintiff filed suit against Wellcraft and Outboard Marine Corporation(OMC), the maker of the boat's engine, asserting a variety of strict product liability claims.With respect to Wellcraft, plaintiff alleged the boat was defectively designed and unreasonably dangerous in several respects, including the following: (1) it was not equipped with a propeller guard; and (2) the bow seating arrangement allowed passengers to be easily ejected during sharp turns.Plaintiff's propeller guard allegations, as well as his claims against OMC, were dismissed on summary judgment.SeeAllen v. Minnstar, 8 F.3d 1470(10th Cir.1993).

Plaintiff's remaining claims against Wellcraft were tried to a jury in January 1995.After eight days of trial and two days of deliberation, the jury concluded the boat was not unreasonably dangerous and returned a verdict in favor of Wellcraft.Plaintiff filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial, which was denied by the district court.

A.Product misuse

Plaintiff argues the district court erred in allowing defendant to present evidence of misuse, and in instructing the jury on the defense of misuse.¹Although the trial transcript was not included in the record on appeal, plaintiff asserts the court allowed defendant to introduce evidence suggesting that, at the time of the accident, plaintiff was sitting on the gunwale of the boat rather than in the bow seat as alleged by plaintiff.Plaintiff claims such evidence, even if believed by the jury, constitutes foreseeable misuse, which is not a defense to his strict liability claim.Accordingly, plaintiff claims, such evidence should not have been introduced, and the jury should not have been instructed on the misuse defense.

It is well established that the admission or exclusion of evidence lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.Wheeler v. John Deere Co., 935 F.2d 1090, 1099(10th Cir.1991).With respect to a district court's jury instruction decisions, i.e., whether or not to give a particular instruction, we likewise review for abuse of discretion.Lyon Development Co. v. Business Men's Assur. Co. of America, 76 F.3d 1118, 1124(10th Cir.1996).As for the instructions themselves, we conduct a de novo review to determine whether, as a whole, the instructions correctly stated the governing law and provided the jury with an ample understanding of the issues and applicable standards.Rios v. Bigler, 67 F.3d 1543, 1549(10th Cir.1995).

Misuse of a product by a consumer has been recognized by the Utah Supreme Court as an affirmative defense to a strict product liability claim.Ernest W. Hahn v. Armco Steel Co., 601 P.2d 152, 158(Utah1979).When a defendant asserts this defense and introduces evidence of misuse on the part of a plaintiff, comparative fault principles are applied and the jury is asked to consider "the relative burden each [party] should bear for the injury they have caused."Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301, 1303(Utah1981)(comparative fault principles apply in strict liability case where there is misuse of product by consumer).

Notwithstanding the availability of this defense, however, most states that allow the defense have held it is not applicable if the particular type or manner of misuse at issue was foreseeable by the defendant.To date, the Utah courts have not decided this question.SeeMulherin, 628 P.2d at 1304 n. 11("[T]here is no occasion on the facts of this case to determine whether some kinds of 'misuse' are so foreseeable that the manufacturer or seller is bound to anticipate and protect against them, so they are not available as a defense to strict liability.").Nevertheless, the district court in the present case adopted this foreseeability test and instructed the jury it was to decide whether plaintiff's alleged misuse, if proven by defendant, was foreseeable to defendant.

Although plaintiff does not question the district court's adoption of the foreseeability test, he contends the court should have decided, as a matter of law prior to trial, that a passenger sitting on the gunwale of a boat constitutes foreseeable misuse.We disagree.Most states that recognize the misuse defense generally treat foreseeability of misuse as a jury question.See, e.g., Leon v. Caterpillar Indus., 69 F.3d 1326, 1342(7th Cir.1995)(under Indiana law, foreseeability of an intervening misuse is usually a question for the jury);Perlmutter v. U.S. Gypsum Co., 4 F.3d 864, 873(10th Cir.1993)(notingColorado courts have held that whether a use or a manner of use is reasonably foreseeable is a jury question, and a defendant raising such an issue is entitled to an instruction on misuse);Gootee v. Colt Industries, 712 F.2d 1057, 1066 n. 9(6th Cir.1983)(noting under Michigan law, "it is for the jury to determine to what extent a risk [of misuse] is foreseeable and must be guarded against" by manufacturer);Moran v. Faberge, 273 Md. 538, 332 A.2d 11, 16(1975)(noting"there is a vast middle ground of product uses about which reasonable minds could disagree as to whether they are or should be foreseeable to the manufacturer, thus requiring resolution by the trier of fact.");see generallyJohn F. Vargo, The Emperor's New Clothes: The American Law Institute Adorns a "New Cloth" for Section 402A Products Liability Design Defects--A Survey of the States Reveals a Different Weave, 26 Mem. St. U.L.Rev. 493(1996)(noting issue of foreseeability of product misuse is usually a jury question).Although the Utah Supreme Court has not directly addressed the issue, the court recently noted, in the context of a legal malpractice action, that " 'evaluative applications of legal standards (such as the legal concept of "foreseeability") to the facts,' " are normally " 'always to be decided by the jury if reasonable persons could differ about them on the evidence received at trial.' "Harline v. Barker, 912 P.2d 433, 439(Utah1996)(quotingW. Page Keeton et al., Prosser and Keeton on the Law of Torts§ 45, at 320 (5th ed.1984)).Based upon Harline, we believe the Utah Supreme Court would follow the majority of other states and conclude that foreseeability of product misuse is generally a jury question.

There is an additional basis for affirming the district court's decision to admit evidence of product misuse.Had defendant been able to prove plaintiff was sitting on the gunwale rather than in the bow seat at the time of the accident, then any alleged defect in the design of the boat's bow seating could not have been the proximate cause of plaintiff's injuries.Thus, even if the jury was not instructed on the misuse defense, evidence of misuse was highly relevant to whether plaintiff could establish all of the essential elements of his strict liability claim.

Finally, we emphasize the fact that the jury responded "NO" to the first question on the verdict form, which asked whether the boat was unreasonably dangerous.This negative response to the first question ended the deliberations, and the jury never reached the issue of whether plaintiff had misused the boat by riding on the gunwale.Plaintiff attempts to surmount this problem by arguing introduction of misuse evidence and the court's instruction concerning misuse were "material to any assessment of unreasonable danger, of which the prudence of the user is an essential element."Appellant's br.at 19.In addition, plaintiff argues that "[t]he instruction was especially prejudicial because it gave an aura of court acceptance of the premise that Allen was using the boat improperly."Id.

We find no merit to these arguments.First, plaintiff has failed to demonstrate how introduction of the misuse evidence, or the court's instruction concerning misuse, could have affected the jury's deliberations on the question of whether the product was unreasonably...