Brewer v. Jeep Corp.

• Decision Date: 30 December 1983
• Docket Number: No. 82-2149,82-2149
• Citation: 724 F.2d 653
• Parties: Daniel BREWER, Appellant, v. JEEP CORPORATION, American Motors Sales Corporation; and American Motors Corporation, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 653

724 F.2d 653

75 A.L.R.Fed. 883

Daniel BREWER, Appellant, v. JEEP CORPORATION, American Motors Sales Corporation; and American Motors Corporation, Appellees.

No. 82-2149.

United States Court of Appeals,

Eighth Circuit.

Submitted June 14, 1983.

Decided Dec. 30, 1983.

Phillip Carroll, Jerry C. Jones, Rose Law Firm, P.A., Little Rock, Ark., for appellant.

Davis, Cox & Wright, Fayetteville, Ark., for appellees, Jeep Corp., American Motors Corp. and American Motors Sales Corp.

Before ROSS and McMILLIAN, Circuit Judges, and COLLINSON, District Judge. ^*

ROSS, Circuit Judge.

The facts of this appeal are as follows. The appellant Danny Brewer was seriously injured when his American Motors jeep rolled over. The accident occurred after Brewer, who had allowed the jeep's right side tires to drop onto the shoulder of the highway, attempted to turn back onto the main roadway. The vehicle was traveling at approximately forty-five miles an hour when the accident occurred. Brewer was not wearing a seat belt and, although not proved to be intoxicated, he had consumed several beers prior to driving.

The case was tried to a jury in federal district court ¹ on breach of warranty, strict liability in tort and negligence causes of action. Jurisdiction was based upon diversity of citizenship. 28 U.S.C. Sec. 1332 (1976). The case, submitted to the jury on a special verdict, was resolved in favor of the defendants with findings that the jeep was not defective and unreasonably dangerous and that Danny Brewer was 89% negligent. The latter verdict precluded any recovery for negligence under Arkansas law. ARK.STAT.ANN. Sec. 27-1765 (1979).

Danny Brewer appeals to this court alleging error in the rulings and conduct of the trial. We affirm.

I. The district court did not instruct the jury on the breach of warranty cause of action and the appellant argues that this constitutes reversible error.

It is well established that a refusal to give a particular instruction is not error if its substance is covered by those actually given. Wright v. Farmers Co-op, 620 F.2d 694, 697 (8th Cir.1980). In this diversity action the substantive law must of course be drawn from Arkansas, but the granting or denial of an instruction, as well as its form, is a matter of procedure controlled by federal law. Barger v. Charles Mach. Works, Inc., 658 F.2d 582, 586 (8th Cir.1981).

The trial court, instructing the jury on strict liability, read the following:

# 19. "unreasonably dangerous", as used in these instructions means that a product is dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable buyer, consumer or user who acquires or uses such product, assuming the ordinary knowledge of the community, or of similar buyers, users or consumers, as to its characteristics, propensities, risks, dangers and proper and improper uses, as well as any special knowledge, training or experience possessed by the particular buyer, user or consumer or which he or she was required to possess.

T., v. 3, p. 292.

Arkansas defines the implied warranty of merchantability as

(2) Goods to be merchantable must be at least such as

(a) pass without objection in the trade under the contract description; and

* * *

* * *

(c) are fit for the ordinary purposes for which such goods are used;

ARK.STAT.ANN. Sec. 85-2-314 (1979).

In the last twenty years a debate has developed over the theoretical relationship of strict liability in tort and breach of warranty; in particular the implied warranty of merchantability. The authorities have taken one of two basic positions. On the one hand, there are those jurisdictions which hold that the degree of defectiveness necessary for a case in strict tort is equal to that required in a breach of warranty action. The court in Foster v. Ford Motor Co., 621 F.2d 715 (5th Cir.1980) when construing the law of Texas adopted this position. "The negative implication of the warranty requirement that goods be 'fit for the ordinary purposes for which such goods are used' is that the goods not be unreasonably dangerous." Id. at 719. Other courts have agreed with the Foster court. Gumbs v. International Harvester, Inc., 718 F.2d 88 (3rd Cir.1983); Fisher v. Gate City Steel Corp., 190 Neb. 699, 211 N.W.2d 914, 917 (1973). Other courts however have determined that the burden of proof in a strict liability action based, as is Arkansas's, on Restatement (Second) of Torts Sec. 402A (1965) involves more than the simple proof of defect. See Greenman v. Yuba Power Co., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962).

In Arkansas the doctrine of strict liability in tort was adopted through legislative action.

Liability of supplier--Conditions.--A supplier of a product is subject to liability in damages for harm to a person or to property if:

(a) the supplier is engaged in the business of manufacturing, assembling, selling, leasing or otherwise distributing such product;

(b) the product was supplied by him in a defective condition which rendered it unreasonably dangerous; and

(c) the defective condition was a proximate cause of the harm to person or to property.

ARK.STAT.ANN. Sec. 85-2-318.2 (Cum.Supp.1981). The Arkansas Supreme Court construed this statute in the case of Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983).

In Berkeley Pump Co., the court addressed the question of whether strict liability in tort could be the basis for a recovery of economic losses from a crop failure caused by drought and the purchase of irrigation pumps with insufficient capacity. In finding that such a recovery was not possible the court noted:

Here, we can find no evidence that the defectiveness of Berkeley's pumps rendered them dangerous--inadequate and dysfunctional, to be sure, but not dangerous. The pumps may have failed to produce the volume of water Reed-Joseph had a right to expect, but those are issues of warranty, negligence, or misrepresentation and do not render them unreasonably dangerous within the meaning of our act.

Id. at 132.

It appears clear then that Arkansas requires an additional element, over and above the defect necessary for a warranty action, to be demonstrated if a cause of action in strict liability is to lie. The additional element is, of course, that the defect be of such a nature as to cause the product to become unreasonably dangerous.

Moreover, the comments to 402A and our Act 511 define unreasonably dangerous as requiring something beyond that contemplated by the ordinary and reasonable buyer, taking into account any special knowledge of the buyer concerning the characteristics, propensities, risks, dangers, and proper and improper uses of the product.

Id. at 133. Since under Arkansas law the burden of proof in strict liability is quantitatively greater than it is in a breach of warranty action, as a general rule a failure to instruct the jury on the warranty issue cannot be rendered harmless by the granting of instructions on strict liability. We must emphasize that the above rule is only general in nature and may, as in this case, be subject to exceptions.

The court in Hallberg v. Brasher, 679 F.2d 751 (8th Cir.1982) set out the following guidelines:

However, despite our conviction that the plaintiffs' instruction was erroneously refused, such error is not reversible per se but must be judged by the standard of "harmless error" established under rule 61 of the Federal Rules of Civil Procedure. Specifically, errors in jury instructions are reversible only if they adversely affect the substantial rights of the complaining party. E.g., Flanigan v. Burlington Northern Inc., 632 F.2d 880, 889 (8th Cir.1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1370, 67 L.Ed.2d 349 (1981). In ascertaining whether substantial rights have been affected, we look to the record as a whole, considering the allegations of the complaint, opening statements, the evidence, closing argument and the instructions. Alloy International Co. v. Hoover-NSK Bearing Co., 635 F.2d 1222, 1226 (7th Cir.1980)....