Hardin v. Manitowoc-Forsythe Corp., MANITOWOC-FORSYTHE

• Decision Date: 05 October 1982
• Docket Number: Nos. 80-1522,80-1562,MANITOWOC-FORSYTHE,s. 80-1522
• Citation: 691 F.2d 449
• Parties: Darel K. HARDIN, Plaintiff-Appellant/Cross-Appellee, v.CORPORATION, Defendant-Appellee/Cross-Appellant, and Columbus McKinnon Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 449

691 F.2d 449

Darel K. HARDIN, Plaintiff-Appellant/Cross-Appellee, v. MANITOWOC-FORSYTHE CORPORATION, Defendant-Appellee/Cross-Appellant and Columbus McKinnon Corporation, Defendant-Appellee.

Nos. 80-1522, 80-1562.

United States Court of Appeals, Tenth Circuit.

Oct. 5, 1982.

Rehearing Denied Nov. 3, 1982.

Dan L. Wulz, Topeka, Kan. (with Gene E. Schroer, Topeka, Kan., on brief) of Jones, Schroer, Rice, Bryan & Lykins, Topeka, Kan., for plaintiff-appellant/cross-appellee.

William Hergenreter of Shaw, Hergenreter, Quarnstrom & Wright, Topeka, Kan., for defendant-appellee/cross-appellant.

J. Franklin Hummer, Topeka, Kan. (with Charles L. Davis, Jr., Topeka, Kan., on brief) of Davis, Unrein, Hummer & McCallister of Topeka, Kan., for defendant-appellee.

Before BARRETT and McKAY, Circuit Judges, and BRIMMER, District Judge. ^*

McKAY, Circuit Judge.

Plaintiff, Darel Hardin, appeals from a judgment entered by the United States District Court for the District of Kansas in a diversity case. Plaintiff brought this products liability suit, naming Manitowoc-Forsythe Corp. and Columbus-McKinnon Corp. as defendants, to recover for injuries he sustained in an on-the-job accident allegedly caused by a defectively designed push-pull jack. Plaintiff's employer, Combustion Engineering, was of course immune from suit under the Kansas workmen's compensation law.

Combustion Engineering leased a Manitowoc crane from a wholly-owned subsidiary corporation, Lummus Company. Defendant Manitowoc-Forsythe ordered the crane from its parent corporation, Manitowoc Company, Inc., and allegedly sold it to Lummus. The crane was manufactured by Manitowoc Engineering, a division of Manitowoc Company, Inc. Attached to the crane was a push-pull jack manufactured by defendant Columbus-McKinnon. Of these potential defendants, plaintiff chose to sue only Manitowoc-Forsythe and Columbus-McKinnon.

In the pretrial order, one of defendants' contentions was that the fault of other parties contributed to the accident and should be compared with the fault of defendants in assessing liability. Record, vol. 1, at 36. ¹ Specifically, defendants alleged that plaintiff, his employer, and his union were all at fault. Id. at 31, 33-35. After entry of the pretrial order but prior to trial, Manitowoc- Forsythe filed a motion to compare the fault of all parties whom the evidence would show to be causally responsible for the accident. Id. at 40. Plaintiff opposed the motion only on substantive grounds, arguing that Kansas law did not permit a comparison of fault in strict liability cases. Id. at 42-43. The district court granted the motion. Id. at 48-49.

Just before the trial began, eight months later, the court entered an order clarifying the circumstances under which it would permit a comparison of fault. The court said:

Before we will allow comparison of any party's causal contribution, ... there must be an established theory of legal liability which would allow recovery against that party had it been sued or were it not immune from suit ....

Once there is a valid theory of liability against a given party, there must be evidence sufficient to warrant the inclusion of that party in the calculations. As to any "phantom party" whose involvement is suggested, the court will evaluate the evidence by a directed verdict standard, and will in effect make a directed verdict on behalf of any claimed "phantom party." If the evidence would be insufficient to hold them in the case if they were actually sued, then the jury will not be allowed to consider their contribution to the injuries.

Record, vol. 1, at 60. At the conclusion of the trial, the court submitted a special verdict form to the jury and instructed them to allocate a percentage of fault among defendants (Manitowoc-Forsythe and Columbus-McKinnon), three phantom parties (Combustion Engineering, Manitowoc Engineering and Lummus Company), and plaintiff. The result was as follows:

                Columbus-McKinnon        13.5%
                Manitowoc-Forsythe         0
                Plaintiff                20.0
                Combustion Engineering   45.0
                Manitowoc Engineering     9.0
                Lummus Company           12.5
                                        ------
                                        100.0%
                

Id. at 109. The jury assessed damages of $150,000 and the court awarded plaintiff judgment against Columbus-McKinnon for 13.5% of $150,000, or $20,250. Judgment was not entered against Manitowoc-Forsythe because no fault was assessed to it.

When at the close of trial the court issued its proposed jury instructions, plaintiff objected to Instruction 18 which referred to comparing the fault of Manitowoc Engineering and Lummus Company. See Record, vol. 7, at 1595-96. Plaintiff objected to comparing the fault of any party not specifically put into issue by the pretrial order. The court overruled the objection on the ground that the issue of the fault of Manitowoc Engineering and Lummus had been tried by consent and would thus be treated as if it had been raised by the pleadings under Fed.R.Civ.P. 15(b). Id. at 1376. ²

This appeal concerns the substantive and procedural propriety of comparing the fault of phantom parties under the Kansas Comparative Negligence Act, Kan.Stat.Ann. § 60-258a (1976). In ruling on the substantive issues, we must of course follow Kansas law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The procedural issues in this case are, however, governed by the Federal Rules of Civil Procedure. Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965).

I. Substantive Propriety of Comparing Fault of Phantoms

Plaintiff claims that it is improper under Kansas law to compare the fault of nonparties (phantoms) with that of defendants in a products liability case. The Kansas Comparative Negligence Act, ³ Kan.Stat.Ann § 60-258a, was the basis for the apportionment of fault in this case, and although the Act speaks only of negligence, the Kansas courts have held that the "doctrine of comparative fault" applies to claims based on strict liability and breach of implied warranty. Kennedy v. City of Sawyer, 228 Kan. 439, 452, 618 P.2d 788, 798 (1980). "Under the doctrine of comparative fault all parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible." Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 374, 634 P.2d 1127, 1132 (1981). The legislative intent behind § 258a is to ensure that all claims arising out of a tortious act are fully litigated in a single action. Eurich v. Alkire, 224 Kan. 236, 238, 579 P.2d 1207, 1208 (1978). The joinder provision of § 258a(c) allows a defendant to force a comparison of fault with third parties, but formal joinder is not a necessary prerequisite to comparing the fault of another. Kennedy v. City of Sawyer, 228 Kan. 439, 460, 618 P.2d 788, 803 (1980); Brown v. Keill, 224 Kan. 195, 206-07, 580 P.2d 867, 875-76 (1978). Thus, the Kansas courts have allowed comparison of the fault of phantom parties in products liability cases, Forsythe v. Coats Co., Inc., 230 Kan. 553, 639 P.2d 43 (1982); Lester v. Magic Chef, Inc., 230 Kan. 643, 641 P.2d 353 (1982), as well as in negligence cases. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). We therefore reject plaintiff's contention that the fault of phantom parties cannot be compared under Kansas law.

Plaintiff argues that it was error to compare his own fault with that of defendants because he was guilty at most of ordinary negligence whereas defendants' liability is strict. The Kansas courts have recognized that since the Kansas version of strict liability is rooted in some notion of fault, it can be compared with other concepts of fault such as negligence, however imprecise the theoretical match of those concepts may be. Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 373, 634 P.2d 1127, 1131 (1981). As we understand Kansas law, all types of fault, regardless of degree, are to be compared in order to apportion the causal responsibility for the accident. See Kennedy v. City of Sawyer, 228 Kan. 439, 450, 618 P.2d 788, 796-97 (1980). ⁴ This is true whether the party at fault is the plaintiff, the defendant, or a nonparty. Id. at 460, 618 P.2d at 803; Forsythe v. Coats Co., Inc., 230 Kan. 553, 639 P.2d 43 (1982). ⁵

As we interpret the collective thrust of the Kansas cases, it appears that Kansas in effect treats each kind of traditional tort liability as a departure from a defined duty whether that departure is in the nature of breach of warranty, routine neglect, failure to warn, or placing a defective and unreasonably dangerous product in the stream of commerce even though reasonable care was taken in its manufacture. The latter type of departure is the most difficult to conceptualize in relation to ordinary negligence. The only way to harmonize the Kansas cases is to assume that manufacturers (and others in the stream of commerce) have an absolute duty not to put defective products in the stream of commerce if they reasonably can foresee use which might result in injury. When they breach that duty, Kansas leaves to the good judgment of the jury the task of deciding the degree to which the breach of that duty contributed to the injury as compared, for instance, with the negligent inattention or misuse of a plaintiff. While this process of comparing theoretically unlike conduct may baffle scholars and become the source of endless critical commentary, we think Kansas has opted for broad jury latitude and good sense in the interest of what it considers the higher value of settling injury disputes in one action.

II. Procedural Propriety of Comparing Fault of Phantoms

The more difficult question in this case is whether the court's handling of the comparison of fault was procedurally proper. Plaintiff claims he had no idea who the phantom parties would be until the end of trial when the judge circulated proposed jury instructions naming...