French v. Grove Mfg. Co.

• Decision Date: 05 August 1981
• Docket Number: No. 80-1775,80-1775
• Citation: 656 F.2d 295
• Parties: Bobby D. FRENCH, Appellant, v. GROVE MANUFACTURING COMPANY, and Glidewell Construction Company, Inc., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 295

656 F.2d 295

Bobby D. FRENCH, Appellant, v. GROVE MANUFACTURING COMPANY, and Glidewell Construction

Company, Inc., Appellees.

No. 80-1775.

United States Court of Appeals,

Eighth Circuit.

Submitted May 21, 1981.

Decided Aug. 5, 1981.

E. C. Gilbreath, Mark A. Moll, Jones, Gilbreath & Jones, Thomas B. Pryor, Pryor, Robinson, Taylor & Barry, Attys. at Law, Fort Smith, Ark., for appellee Grove.

Walker Dale Garrett, Davis, Bassett, Cox & Wright, Fayetteville, Ark., for appellee, Glidewell Construction Company, Inc.

Before HEANEY and BRIGHT, Circuit Judges, and HARRIS, ^* Senior District Judge.

HEANEY, Circuit Judge.

Bobby D. French appeals from an adverse jury decision in his action to recover damages for personal injuries resulting from a crane accident. French alleged that the manufacturer of the crane, Grove Manufacturing, Inc., was liable under theories of strict liability, breach of warranty and negligence. He also maintained that Glidewell Construction Company, Inc., was liable for the negligence of its alleged borrowed servant who operated the crane. Because we determine that the trial court submitted the case to the jury under erroneous instructions, we reverse and remand.

I

French was an ironworker under the general employment of Holmes Erection, Inc., a company engaged in the business of leasing heavy construction equipment. On August 2, 1977, Holmes leased a crane to Glidewell for the purpose of removing concrete slabs from one of Glidewell's construction sites. As part of the agreement, three of Holmes' employees, a crane operator and two ironworkers, accompanied the crane. French was one of the ironworkers responsible for "rigging" or securing the loads lifted by the crane.

Shortly after French and his coworkers arrived at the construction site on the day of the accident, the crane operator extended the telescoping boom of the crane without removing the "jib pins" that attached the jib or extension boom to the end of the main crane boom. Because the jib pins were left in place, the jib swung down from the crane like a pendulum, striking French in the head, shoulder and arm. He suffered a fractured skull and a crushed right arm; he was rendered unconscious for nearly a week.

French sued Glidewell under the theory that the crane operator, although in the general employ of Holmes Erection, was the borrowed servant of Glidewell and, therefore, his liability should be imputed to Glidewell. French's complaint against Grove Manufacturing was essentially based on the proposition that the crane it manufactured was defective because it was not equipped with a warning or fail-safe device designed to prevent the extension of the main boom with the jib pins in place.

On appeal, French argues that the trial court's jury instructions improperly required him to prove elements in addition to those essential under the Arkansas law of strict liability. He also maintains that the court erred in instructing the jury that French had to prove that he was not an employee of Glidewell but that the crane operator was. Finally, French contends that the district court asked questions of the witnesses and instructed the jury in such a manner as to mislead the jury and cause him prejudice.

II

French argues that the district court erred in instructing the jury that French had the burden of proving (1) that an alternative safer design was available and feasible from the standpoint of cost, practicality and technological possibility, and (2) that the crane contained some danger other than the danger posed by all cranes and that such danger was not and would not reasonably be appreciated by an ordinarily prudent person. ¹

We agree with French that, under the law of Arkansas, he is not required to bear the burden of showing that an alternative safer design was available and feasible in terms of cost, practicality and technological possibility. A cause of action based on strict liability in tort became available in Arkansas in 1973 when the legislature enacted Ark.Stat.Ann. § 85-2-318.2. That statute, in large part a codification of the Restatement (Second) of Torts § 402A, provides:

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.

As originally enacted, this legislation contained no definitions or other explanations of the terms used in the statute. In 1979, however, the Arkansas legislature passed the Arkansas Product Liability Act of 1979, Ark.Stat.Ann. §§ 34-2801 to 34-2807, which establishes definitions and other standards applicable to product liability actions, including "all actions brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging or labeling of any product." Ark.Stat.Ann. § 34-2802(e).

A threshold question is whether the Product Liability Act of 1979, enacted two years after the accident occurred, should govern the proceedings in this case. We have no difficulty concluding that it should. Although the general rule is that statutes are not to be given retroactive effect unless the legislature has clearly expressed a contrary intention, an exception is recognized for procedural or remedial legislation that creates no new substantive rights or duties. See Forrest City Machine Works, Inc. v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981); Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704, 705 (1962); State ex rel. Moose v. Kansas City & Memphis Ry. & Bridge Co., 117 Ark. 606, 174 S.W. 248, 251 (1914). The Product Liability Act of 1979 falls within this exception. The Act merely sets forth definitions of terms to be used, establishes a limitations period and enumerates defenses and indemnification remedies available in product liability actions. No new causes of action or substantive rights or liabilities were created by passage of this Act. We find, therefore, that its provisions may be applied retrospectively to this cause of action brought under the Arkansas strict liability statute.

As noted, the Arkansas strict liability statute requires the plaintiff to prove that the product was supplied in a "defective condition which rendered it unreasonably dangerous." Ark.Stat.Ann. § 85-2-318.2(b). Those terms are defined in the Arkansas Product Liability Act as follows:

(d) "Defective condition" means a condition of a product that renders it unsafe for reasonably foreseeable use and consumption.

(g) "Unreasonably dangerous" 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.

Ark.Stat.Ann. § 34-2802(d) & (g).

It is apparent that these definitions of the key terms in the strict liability statute contain no requirement that a feasible and safer alternative be proven by the plaintiff and we see no reason to impose that requirement. ² Indeed, another section of the Product Liability Act expressly provides that such "state of the art" factors are "considerations" that may be weighed by the trier of fact:

Considerations for trier of fact. In determining the liability of the manufacturer the state of scientific and technological knowledge available to the manufacturer or supplier at the time the product was placed on the market, rather than at the time of the injury, may be considered as evidence. Consideration may also be given to the customary designs, methods, standards, and techniques of manufacturing, inspecting and testing by other manufacturers or sellers of similar products.

Ark.Stat.Ann. § 34-2805.

Thus, it is clear that under Arkansas law the existence, practicality, and technological feasibility of an alternative safe design are not necessary elements of the plaintiff's cause of action, but rather are merely factors that may be considered by the jury in determining whether a product was supplied in a defective condition that rendered it unreasonably dangerous. The district...