Carter v. Unit Rig & Equipment Co.

• Decision Date: 18 April 1990
• Docket Number: Nos. 84-2463,84-2639,s. 84-2463
• Citation: 908 F.2d 1483
• Parties: Jonathan Keith CARTER; Theresa Jean Carter; and Danny Ray Carter, all minors by and through their paternal grandmother and next-of-friend, Gertrude Carter, Plaintiffs-Appellants, Cross-Appellees, v. UNIT RIG & EQUIPMENT COMPANY, a Texas corporation, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1483

908 F.2d 1483

Jonathan Keith CARTER; Theresa Jean Carter; and Danny Ray Carter, all minors by and through their paternal grandmother and next-of-friend, Gertrude Carter, Plaintiffs-Appellants Cross-Appellees, v. UNIT RIG & EQUIPMENT COMPANY, a Texas corporation Defendant-Appellee, Cross-Appellant.

Nos. 84-2463, 84-2639.

United States Court of Appeals Tenth Circuit.

April 18, 1990.

Alan Epstein, Hall & Evans, Denver, Colo. (L. Richard Musat, Hall & Evans, Denver, Colo., David W. Griffith, Williams, Trine, Greenstein & Griffith, Boulder, Colo., were also on the brief), for plaintiffs-appellants, cross-appellees.

Michael T. McConnell, Long & Jaudon, Denver, Colo., for defendant-appellee, cross-appellant.

Before HOLLOWAY, Chief Judge, McWILLIAMS and EBEL, Circuit Judges.

HOLLOWAY, Chief Judge.

I

Seeking damages from the defendant Unit Rig & Equipment Company ("Unit Rig" or the "company") and General Electric for the wrongful death of her son, Terry Carter, plaintiff Gertrude Carter commenced this product liability action as next friend on behalf of her three grandchildren on July 15, 1981. Originally both General Electric and Unit Rig were named as defendants. In March 1984 the district court approved a settlement pursuant to which General Electric paid $20,000 to the plaintiff and received a dismissal with prejudice.

The defendant Unit Rig & Equipment Co. manufactured the truck in which Terry Carter was killed on July 18, 1979, in an accident at the Climax Mine in Colorado. The jury found Unit Rig liable for Terry's death and assessed damages in the amount of $366,667. Applying Colorado's comparative fault statute ("Section 406"), ¹ the jury found the decedent Terry 88 percent responsible for the fatal accident and Unit Rig 12 percent responsible. After subtracting $20,000 from the $366,667 figure to reflect the settlement with General Electric, the district court entered a judgment of $41,600 (12% of $346,667) for the plaintiff. ²

On appeal, plaintiff Gertrude Carter asserts two major claims of error. She argues that the district court (1) misconstrued Colorado's comparative fault statute and improperly instructed the jury to consider Terry's contributory negligence for purposes of apportioning responsibility for the accident; and (2) erroneously refused to submit plaintiff's tendered sudden emergency instruction. Carter asserts, moreover, that this court should certify the issue of the construction of Section 406 to the Supreme Court of Colorado.

In its cross-appeal Unit Rig challenges the district court's decision to make the $20,000 reduction from the $366,637 award to reflect the settlement with General Electric. The company argues that Colorado law mandates the reduction of $20,000 be made from the $44,000 (12% of the entire $366,667) figure for which the jury found Unit Rig liable in its special verdict regarding comparative fault.

We do not agree that the trial judge misconstrued Section 406. However, we are convinced the court erred in refusing to instruct the jury on the sudden emergency doctrine as requested, and must remand for a new trial. We also provide that on remand, consideration be given to whether in the circumstances of this case any setoff should be allowed at all.

II

From June 1970 until his death in July 1979, Terry Carter worked in various capacities for the Climax Molybdenum Company at its open pit mining site in Climax, Colorado. In May 1977, Terry completed the company truck driver training program and was permitted to operate trucks of 100 tons or more thereafter. Although it is not clear from the trial record precisely how much cumulative time Terry spent as a truck driver, it appears that he did not work continuously in that capacity, and that at the time of the accident he had only been driving the truck in which he was killed for one uninterrupted week. See XXI R., defendant's exhibit C5.

The truck Terry was operating in July 1979 was the Lectra Haul M-120, manufactured by Unit Rig. The truck is over 34 feet long and weighs approximately 200 tons when fully loaded. The truck operator is situated 17 feet off of the ground. The vehicle was used to haul ore from the open pit molybdenum mine to a processing point some distance away. The M-120 is equipped with two braking systems. The first is a mechanical disc braking system which is roughly similar to those found in automobiles. The second is a specially-designed dynamic retarding technology that employs electrical energy to retard the movement of the M-120's wheels. ³

Climax drivers are instructed to use the mechanical brakes at speeds of three miles per hour or less and to use the dynamic retarder at higher speeds. The mechanical brakes are only to be used at speeds above three miles per hour in emergency situations because these brakes are ruined at higher speeds and must be replaced if so used, at considerable expense to the Climax Company. In such an emergency the mechanical brakes can theoretically stop the vehicle at speeds up to 30 miles per hour. When operating the M-120 on a downward grade, drivers are instructed never to allow the truck to coast, and never to allow the vehicle to travel at speeds of more than 15 miles per hour. If the truck exceeds 15 miles per hour, the M-120's dynamic retarder brakes are designed to engage automatically, at approximately 18 to 19 miles per hour, without any activation by the driver.

There were no eyewitnesses to Terry's fatal accident on July 18, 1979. However, it is undisputed that on that day, he was driving a fully-loaded M-120 down a ten percent grade when he informed his dispatcher by radio that he was "losing his dynamics," in those words or words to that effect. The radio transmission ceased, and the next contact with Terry occurred shortly thereafter when co-workers discovered the M-120 overturned at the bottom of the grade. Having sustained a basal skull fracture, Terry was pronounced dead on arrival at the Climax infirmary.

The speed at which Terry was traveling at the time of the tragedy is not known. Nor is it known when or if Terry used either or both of the M-120's braking systems; nor when, if, and/or to what extent the vehicle's dynamic retarder system engaged automatically. Plaintiff Carter infers from the available facts that the accident resulted from design defects in the M-120 and failure to warn M-120 drivers of the implications of these design defects. It is argued that Carter had insufficient warning of the dynamic retarder's failure to slow the M-120 adequately. Unable to rely on the dynamic retarder, and dissuaded from using the mechanical brakes under any but the most dire circumstances, it is inferred either that (1) one or both of the braking systems failed or that (2) Terry inadvertently waited too long to engage the mechanical brakes (because the M-120 lacked any type of unambiguous indicator of the status of the dynamic retarder's operation), and the vehicle's momemtum rendered it unstoppable.

Unit Rig infers from the same facts that Carter did have adequate warning of the functioning or failure of the dynamic retarder, because the engagement of the dynamic retarder could be felt and heard by a competent driver of the M-120. Unit Rig says the accident resulted not from any failure of design or warning, but from Terry's having negligently exceeded the 15 mile-per-hour speed limit and then having failed to remedy his negligent error in time by engaging the mechanical brakes.

III

Plaintiff Carter's Appellate Issues

Comparative Fault

As in Huffman v. Caterpillar Tractor Company, 908 F.2d 1470 (10th Cir. Nos. 86-2630 and 2658), decided today, plaintiff Carter's central argument on appeal is that the district court's jury instructions regarding the issue of comparative fault erroneously stated the law of Colorado under its comparative fault statute, C.R.S. Sec. 13-21-406 (1980 & 1988 Supp.). ⁴ Plaintiff says that ordinary contributory negligence does not constitute "fault" in a strict product liability action. The argument made by the plaintiff is that the trial court should not have submitted the issue of Terry's comparative fault to the jury because Terry's conduct, which plaintiff characterizes as "ordinary contributory negligence," does not constitute "fault" as that term is employed in Section 406. For reasons similar to those given in our analysis of Section 406 in the Huffman opinion, we cannot agree.

The relevant passage of C.R.S. Sec. 13-21-406 reads as follows:

Comparative fault as measure of damages. (1) In any product liability action, the fault of the person suffering the harm, as well as the fault of all others who are parties to the action for causing the harm, shall be compared by the trier of fact in accordance with this section. The fault of the person suffering the harm shall not bar such person, or a party bringing an action on behalf of such a person ... from recovering damages, but the award of damages to such person or the party bringing the action shall be diminished in proportion to the amount of causal fault attributed to the person suffering the harm. If any party is claiming damages for a decedent's wrongful death, the fault of the decedent, if any, shall be imputed to such party. * * * *

Sec. 13-21-406 C.R.S. (1980 & 1988 Supp.) (emphasis added).

On consideration of the statute's broad language and the legislative history of C.R.S. Sec. 13-21-406, ⁵ we are not persuaded to adopt the construction urged by the plaintiff Carter. The statute does not define the term "fault." We cannot find any indication that the General Assembly intended to exempt a plaintiff's contributory negligence from consideration as "fault" for purposes of determining damages. As we stated in Huffman, "the term 'fault,' as employed in C.R.S. Sec. 13-21-406, is more plausibly construed as a general term encompassing a broad range of culpable behavior including, but not limited to negligence." Huffman, at 1477 (footnotes...