Falk v. Keene Corp., 21302-4-I
| Decision Date | 17 January 1989 |
| Docket Number | No. 21302-4-I,21302-4-I |
| Citation | 767 P.2d 576,53 Wn.App. 238 |
| Court | Washington Court of Appeals |
| Parties | , Prod.Liab.Rep. (CCH) P 12,056 John J. FALK and Marjorie E. Falk, husband and wife, Appellants, and Merle A. Arnold and Maureen Arnold, husband and wife; Clarence S. Bogert and Eleanor E. Bogert, husband and wife; Raymond E. Coit and Mignonette H. Coit, husband and wife; Gaylord Jerome Hewitt and Helen E. Hewitt, husband and wife; Albin Douglas Larson and Jeanette Larson, husband and wife; Frank M. Millard and Lori J. Millard, husband and wife; Philip R. Nicholson and Lovetta Nicholson, husband and wife; Billy Ray Philley, Jr. and Kay Philley, husband and wife; Lawrence Frehlyn Phipps and Shirley Phipps, husband and wife; Robert Berdell Pounds; Jacob David Teichgrab and Betty Teichgrab, husband and wife; and Robert C. Wright and Elizabeth Wright, husband and wife, Plaintiffs, v. KEENE CORPORATION, successor by merger with Baldwin-Ehert-Hill, Inc., a/k/a Asten Hill; Respondent, AC & S, Inc.; Armstrong World Industries, Inc., formerly known as Armstrong Cork Company, Defendants, The Celotex Corporation, successor in interest to Philip Carey Manufacturing Co., Philip Carey Corp., Briggs Manufacturing Co., and Panacon Corp.; Respondents, Certainteed Corporation, Defendant, Combustion Engineering; Eagle-Picher Industries, Inc.; Fibreboard Corporation; GAF Corporation, successor by merger with the Ruberoid Company, f/k/a General Analine and Film Corporation; Garlock, Inc.; Respondents, National Gypsum Company, Defendant, Nicolet Industries, Inc., Respondent, Owens-Corning Fiberglas Corporation; Defendant, Owens-Illinois Corporation, a/k/a Owens Illinois Glass Co., Respondent, Pittsburgh-Corning Corporation, Defendant, H.K. Porter Co., Inc.; Raymark Industries, Inc., Respondents, J.W. Roberts, Ltd. and Turner and Newall, Ltd.; United States Gypsum Company, Defendants, U.S. Mineral Products Company; W.R. Grace & Company; Charter Consolidated Limited, individually and as successor to Cape Asbestos and North American Asbestos Company; Anchor Packing Company, Respondents. |
William S. Bailey, Scraeter, Goldmark & Bender, Seattle, for appellants John and Marjorie Falk.
Steven T. Johnson, Seattle, Gibson, Dunn & Cruthen, for respondents Keene Corp., Celotex Corp., Fibreboard Corp., Owens-Illinois Fiberglas Corp.
Daniel W. Ferm, Williams, Kastner & Gibbs, Mark S. Clark, Gregory E. Keller, Laurie Chyz, Seattle, for EaglePicher Industries, Inc.
Marjorie Falk appeals from the judgment for defendants entered in the personal injury action she and her husband, John, now deceased, filed against various manufacturers of asbestos products. Falk alleges error in the jury instructions, in the limits placed on cross examination of several witnesses, and in the court's decision to preclude certain witnesses from testifying. We reverse and remand this cause for a new trial.
The Falks filed this action after Mr. Falk was diagnosed as having malignant mesothelioma, a disease often related to asbestos exposure. Mr. Falk claimed to have been exposed to asbestos insulation products while serving in the U.S. Navy between 1947 and 1953.
The court granted defendants' pretrial motion to strike from the witness list two pathologists the Falks had hoped to call regarding Mr. Falk's diagnosis. The trial then began on June 3, 1987. The defendants were aligned in two defense teams--the "Wellington" group (a pool of asbestos manufacturers) and Raymark Industries, Inc.
At trial the court limited the Falks' cross examination of one defense witness, Dr. Demopoulos, to Wellington only, refusing to allow appellants to use certain Raymark documents to conduct the cross examination. The court also prohibited the Falks from cross-examining another defense expert, Dr. Hammar, regarding his diagnosis of Mr. Falk's disease. The trial court refused to give the Falks' requested instruction on product liability.
The jury returned a defense verdict on liability on July 20, 1987. The Falks then pursued this timely appeal.
We first address whether the trial court erred by refusing to give appellants' requested instruction on product liability and giving instead the instruction respondents requested.
The test for sufficiency of instructions is whether the instructions, read as a whole, allow counsel to argue their theory of the case, are not misleading, and properly inform the trier of fact of the applicable law. State v. Mark, 94 Wn.2d 520, 618 P.2d 73 (1980); Braxton v. Rotec Indus., Inc., 30 Wn.App. 221, 633 P.2d 897 (1981).
Gammon v. Clark Equipment Co., 104 Wash.2d 613, 617, 707 P.2d 685 (1985). The appellant argues that the challenged instruction misstated the law and allowed respondents to take advantage of this misstatement during closing argument. If instructions taken as a whole misstate the law and that misstatement is prejudicial, reversible error has occurred. Gates v. Standard Brands, Inc., 43 Wash.App. 520, 530, 719 P.2d 130 (1986).
In the instant case, appellants requested an instruction on design defect based on a product liability instruction approved in Couch v. Mine Safety Appliances 107 Wash.2d 232, 728 P.2d 585 (1986). 1 The instruction given by the court was based on WPI 2d 110.02 (1984). 2 Appellants properly objected to the instruction, in particular to its use of the word "negligence." The court gave additional standard instructions explaining the legal definition of negligence. 3
The word "negligence" appeared in the WPI products liability instruction as a result of the tort and product liability reform act of 1981, Laws of 1981, ch. 27. The act itself contains a reference to negligence:
A product manufacturer is subject to liability to a claimant if the claimant's harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided.
RCW 7.72.030(1). The Couch court noted that the act's drafters referred to a negligence standard for design defect only because
"[t]he Washington court, while terming the liability in such cases as one of strict liability, has articulated a test which upon closer analysis involves the balancing of factors more akin to negligence." Senate Journal, 47th Legislature (1981), at 624 (citing Seattle-First Nat'l Bank v. Tabert, 86 Wn.2d 145, 542 P.2d 774 (1975))....
... We find that the Act adopted the Tabert tests for defective design cases against manufacturers, notwithstanding its reference to negligence.
Couch, 107 Wash.2d at 240 n. 5, 728 P.2d 585. The Tabert analysis for products liability is generally referred to as "strict liability." Tabert, 86 Wash.2d at 154, 542 P.2d 774.
Appellant argues that the jury would be confused by the court's instruction since it uses the term "negligence" to refer to a products liability test traditionally called "strict liability." Appellant also argues that the submission of the additional negligence instructions along with the WPI design defect instruction, which includes the word "negligence," was error because it invited the jury to apply a negligence standard, whereas the appropriate legal standard for design defect is strict liability as enunciated in Seattle First Nat'l Bank v. Tabert, 86 Wash.2d 145, 154, 542 P.2d 774 (1975).
Conversely, respondents have seized upon the footnote in Couch, 107 Wash.2d at 240 n. 5, 728 P.2d 585 that notes this State's products liability test is "more akin to" the traditional negligence test, to argue that Couch holds that because the Tabert consumer expectations test involves balancing, products liability actions for design defect in this state are decided by a negligence standard. 4
It is apparent from respondents' closing argument that they believed and argued to the jury, as the given design defect instruction permitted them to, that negligence is the standard for liability in this kind of products liability action.
Both of these instructions [failure to warn and design defect] require you to find negligence, and negligence is defined as, "the failure to exercise ordinary care," which is the care that a reasonably careful person would not do under the same or similar circumstances.
* * *
Now I don't want to get ahead of myself. We will look at instruction 11 A [design defect]. Same thing. They have to prove that the defendants were negligent, and that involves showing that their negligence related to not making a change in their product, and their claim is having asbestos as a component in their product.
Appellant insists that strict liability remains the standard for design defect products liability actions in this state. We agree. Our Supreme Court in Couch clearly held that the Tabert test is to apply to design defect claims. Couch, at 240 n. 5, 728 P.2d 585. The Tabert test, while it involves balancing and in that regard may be considered "akin" to negligence, is nonetheless a strict liability analysis. It focuses on a manufacturer's defective product, the burden of an alternative design, and consumer expectations. As such, it is a fundamentally and irreconcilably different analysis from negligence, which focuses on a manufacturer's conduct. Thus, we disagree with respondent's argument that the Tabert analysis is merely a specialized negligence instruction and that its presence alongside the standard negligence definition would not be misleading.
When jurors encounter the word "negligence" in this design defect instruction, they are likely to consider the term, no matter how it is characterized within the instruction, in light of the negligence definition contained in the standard negligence instructions. In doing so, they will incorporate elements of the ordinary care definition of negligence into an instruction that should set forth a strict liability standard.
The jury in this case, relying on these instructions, could have found...
To continue reading
Request your trial
-
Alston v. Blythe
... ... 4 See Falk v. Keene Corp., 53 Wash.App. 238, 246, 767 P.2d 576, aff'd, 113 Wash.2d ... ...
- City of Seattle v. Huff
-
State v. Stanley
... ... , 151 Wn.2d at 50 (internal quotation marks omitted) (quoting Bose Corp. v. Consumers Union of U.S., Inc. , 466 U.S. 485, 508, 104 S. Ct. 1949, 80 ... Nava , 177 Wn. App. 272, 289, 311 P.3d 83 (2013). 106. See Falk v. Keene Corp. , 53 Wn. App. 238, 247, 767 P.2d 576 (1989). 107. State ... ...
- Falk v. Keene Corp.
-
Renewed look at the duty to warn and affirmative defenses.
...(23.) See, e.g., Glover v. BIC Corp., 6 F.3d 1318, 1323 (9th Cir. 1993) (discussing comment j). (24.) See, e.g., Falk v. Keene Corp., 767 P.2d 576, 580 (Wash.App.), aff'd, 782 P.2d 974 (Wash. 1989) (strict liability focuses on defective product, whereas negligence focuses on manufacturer's ......
-
§26.6 Analysis
...of a court order or local rule requiring disclosure of witnesses are likely no longer valid precedent. See, e.g., Folk v. Keene Corp., 53 Wn.App. 238, 767 P.2d 576 (1989) (plaintiffs precluded from calling two expert witnesses disclosed after the pretrial order cut-off date); Dempere v. Nel......