Farrell v. Klein Tools, Inc.

• Decision Date: 01 February 1989
• Docket Number: No. 87-1083,87-1083
• Citation: 866 F.2d 1294
• Parties: Benny Earl FARRELL, an Oklahoma citizen, Plaintiff-Appellant, v. KLEIN TOOLS, INC., a Delaware corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1294

866 F.2d 1294

Benny Earl FARRELL, an Oklahoma citizen, Plaintiff-Appellant, v. KLEIN TOOLS, INC., a Delaware corporation, Defendant-Appellee.

No. 87-1083.

United States Court of Appeals Tenth Circuit.

Feb. 1, 1989.

Bob Behlen (Robert Mansell, on the briefs), Lampkin, McCaffrey & Tawwater, Oklahoma City, Okl., for plaintiff-appellant.

Michael R. Chaffin (Robert L. Huckaby, on the brief), Huckaby, Fleming, Frailey, Chaffin & Darrah, Chickasha, Okl., for defendant-appellee.

Before MOORE, ANDERSON and EBEL, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Benny Earl Farrell, an iron worker, sustained injuries in a fall at a construction site where he was working. He sued Klein Tools, Inc. ("Klein") alleging that the safety belt and lanyard he was using for fall protection were manufactured by Klein and were defective in that the hook on the lanyard was too large in relation to the "D" ring on the safety belt, allowing the hook to "roll-out" of the ring. ¹ He contended that his fall was caused by such an occurrence. Klein defended largely on the ground that the safety belt and lanyard, and specifically the hook, in question were not manufactured by it. In its answer to Farrell's complaint Klein also raised the two defenses of abnormal use of the product, and assumption of the risk. Jurisdiction was based on diversity of citizenship. Oklahoma's substantive law governs.

The case was tried to a jury. Over Farrell's objections the district court submitted to the jury Klein's requested instructions on abnormal use of the product, Instruction 17, and assumption of the risk, Instruction 18. The jury returned a verdict in favor of Klein. The district court subsequently denied Farrell's motion for a new trial based on alleged error in giving Instructions 17 and 18. Farrell appeals from the denial of that motion.

The only issues on appeal are whether there was sufficient evidence to support the submission of Instructions 17 and 18 on the defenses of abnormal use and assumption of the risk, whether the instruction on abnormal use misstated the applicable law, and whether any error in those respects is sufficiently prejudicial to require a reversal. For the reasons stated below we conclude that it was reversible error to submit to the jury the instruction on the defense of abnormal use of the product. As a result we remand for a new trial. Because of our disposition with regard to Instruction 17 it is unnecessary to address the other issues raised by Farrell.

I.

Although the determination of the substance of a jury instruction in a diversity case is a matter of state law, the grant or denial thereof is a matter of procedure controlled by federal law. Brownlow v. Aman, 740 F.2d 1476, 1490 (10th Cir.1984); Wright v. Albuquerque Auto-Truck Stop Plaza, Inc., 591 F.2d 585, 587 (10th Cir.1979).

The parties are in agreement in their briefs that the applicable Oklahoma law on the defense of misuse or abnormal use of a product is defined by the Oklahoma Supreme Court in Fields v. Volkswagen of America, Inc., 555 P.2d 48 (Okla.1976). See Brief of the Appellant at 4; Answer Brief of Appellee at 2-3. In Fields the Court stated:

"Generally when we speak of the defense of misuse or abnormal use of a product we are referring to cases where the method of using a product is not that which the maker intended or is a use that could not reasonably be anticipated by a manufacturer. A distinction must be made between use for an abnormal purpose and use for a proper purpose but in a careless manner (contributory negligence).

....

"In order to determine whether the use of a product by a plaintiff is abnormal, we must ask whether it was reasonably foreseeable by the manufacturer. A manufacturer is not liable for injuries resulting from such use if it is not foreseeable."

Id. at 56-57 (footnotes omitted). See McMurray v. Deere and Co. Inc., 858 F.2d 1436, 1442 (10th Cir.1988); Smith v. United States Gypsum Co., 612 P.2d 251, 254-55 (Okla.1980); Stewart v. Scott-Kitz Miller Co., 626 P.2d 329, 331 (Okla.Ct.App.1981); Spencer v. Nelson Sales Co., Inc., 620 P.2d 477, 482-83 (Okla.Ct.App.1980).

Farrell first contends that Instruction 17 did not correctly reflect Oklahoma law. Instruction 17 reads as follows:

"In this regard, you are instructed that the defendant has raised the affirmative defense of abnormal use and has claimed that the plaintiff's use of the equipment was abnormal because such use was not foreseeable by the defendant. You are instructed that a distinction must be made between use for an abnormal purpose and use for a proper purpose but in a careless manner. The first, use for an abnormal purpose, is a defense to the plaintiff's claim and a bar to his recovery. The second, use for a proper purpose but in a careless manner, is not a defense to the plaintiff's claim. In this regard, you are instructed that if the use of the equipment was a use that the defendant could reasonably foresee, then such use does not constitute abnormal use.

"If you find that the defendant has proven by a preponderance of the evidence that the plaintiff was using the equipment in an abnormal manner and that such use was the sole cause of the accident involved herein and thus has proven this affirmative defense, then you must find in favor of the defendant and against the plaintiff."

R.Vol. I at Tab 36.

Specifically, Farrell acknowledges that the first paragraph of Instruction 17 correctly states the legal principle "that if the use of the equipment was a use that the defendant could reasonably foresee, then such use does not constitute abnormal use." Id. However, he contends that it was error not to repeat that phrase, or some similar reference to foreseeability, in the final paragraph of the instruction. He cites virtually no authority, and none directly on point, in support of that position, and we find that it is without merit. It is an established principle that jury instructions are to be read as a whole. See United States v. Grissom, 814 F.2d 577, 580 (10th Cir.1987). See also United States v. Troutman, 814 F.2d 1428, 1451 (10th Cir.1987) (it is enough that the jury instructions, viewed as a whole rather than in isolation, give an accurate statement of the law). The instruction in question may not be ideal since the last paragraph in isolation could conceivably cause some confusion, but read as a whole it sufficiently reflects Oklahoma law regarding the abnormal use defense as applied to the circumstances of this case. ²

Whether or not there was evidence sufficient to support the submission of Instruction 17 to the jury is a different matter. Under federal law it is error to give an instruction when there is no evidence to support it. McMurray v. Deere and Co., Inc., 858 F.2d 1436, 1440-41 (10th Cir.1988); Rolfes v. Int'l Harvester Co., 817 F.2d 471, 474 (8th Cir.1987); Smith v. FMC Corp., 754 F.2d 873, 877 (10th Cir.1985); Brownlow v. Aman, 740 F.2d at 1490; Smith v. Mill Creek Court, Inc., 457 F.2d 589, 592 (10th Cir.1972). There must be more than a mere scintilla of evidence to support an instruction. Sufficient competent evidence is required. See Smith v. FMC, 754 F.2d at 877; Brownlow v. Aman, 740 F.2d at 1490; Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 927-28 (10th Cir.1984); Chavez v. Sears, Roebuck & Co., 525 F.2d 827, 830 (10th Cir.1975); Hartman v. Miller Hydro Co., 499 F.2d 191, 193 (10th Cir.1974); Smith v. Mill Creek Court, Inc., 457 F.2d at 592; General Motors Corp. v. Walden, 406 F.2d 606, 609 (10th Cir.1969); 9 C. Wright & A. Miller, Federal Practice and Procedure 2524 (1971).

Klein's only evidence on the subject of abnormal use consisted of brief statements by two defense witnesses, Paul Steigler and Donald Beck. Mr. Steigler, a representative of Klein, testified on cross-examination that "[t]he big [metal snap hook on the lanyard] has never been advocated for use in a 'D' ring." R.Vol. III at 201. Mr. Beck, an employee of a safety equipment manufacturing company, testified that the type of large hook allegedly utilized by Farrell was "intended to be used on a 2- by-4 or a bar or a rod or a form, or something where it's not a ring." R.Vol. II at 28.

Not only does such testimony appear to fall into the "mere scintilla" category, more importantly it does not contain the slightest reference to or support for the proposition that the manufacturer could not reasonably foresee that a worker would use the lanyard in question to tie-off by inserting the hook into the "D" ring on his safety belt. To the contrary, the evidence shows that it was indeed foreseeable to a manufacturer that the safety equipment would be used in such a way. R.Vol. III at 37-38. The evidence also affirmatively shows that the lanyard and hook in question were specifically manufactured for the purpose of tying-off and were issued by the employer to Farrell for the purpose. Under the circumstances, we hold that there was insufficient evidence to support an instruction to the jury on the defense of abnormal use of the product.

II.

The final issue is whether the erroneous submission of the abnormal use defense to the jury was prejudicial so as to require reversal. McMurray v. Deere and Co., 858 F.2d at 1443; Joyce v. Atlantic Richfield Co., 651 F.2d 676, 682-83 (10th Cir.1981). The issue centers on the fact that the jury returned a general verdict and it cannot be determined with absolute certainty whether the jury relied on the improperly submitted ground.

Klein contends that even if the instructions were not supported by the evidence reversal is not required. It advances two arguments in support of that position. First, it submits that for purposes of describing the limits of a products liability action, it is not reversible error to give an instruction which correctly states the law even though the instruction is inapplicable to the evidence in the case. Murphy v. Owens-Illinois, Inc., 779 F.2d 340, 345 (6th Cir.1...