Hiller v. Kawasaki Motors Corp., U.S.A., 6701

• Decision Date: 12 August 1983
• Docket Number: No. 6701,6701
• Citation: 671 P.2d 369
• Parties: George HILLER, Appellant, v. KAWASAKI MOTORS CORPORATION, U.S.A. and Persinger's Marine, Appellees.
• Court: Alaska Supreme Court

Page 369

671 P.2d 369

George HILLER, Appellant, v. KAWASAKI MOTORS CORPORATION, U.S.A. and Persinger's Marine, Appellees.

No. 6701.

Supreme Court of Alaska.

Aug. 12, 1983.

Gregory J. Grebe, Kelly & Luce, Anchorage, for appellant.

Theodore M. Pease, Jr., James A. Sarafin, Burr, Pease & Kurtz, Anchorage, for appellees.

Before RABINOWITZ, MATTHEWS and COMPTON, Justices, and HODGES and RIPLEY, Judges. ^*

OPINION

COMPTON, Justice.

This is an appeal brought by George Hiller from a judgment, entered in accordance with a jury verdict, denying Hiller any recovery on his claims for negligence and strict products liability against the defendants, Kawasaki Motors Corp. and Persinger's Marine. Hiller contends that the judgment should be reversed because the superior court erred in excluding certain evidence and in giving certain jury instructions. Hiller also objects to the award of attorney's fees made to the defendants by the superior court. For the reasons set forth below, we find no reversible error in the superior court's decisions and we accordingly affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 25, 1979, George Hiller sustained a spinal injury when he attempted to jump his 1979 Kawasaki snowmachine over a three-foot embankment at a speed of approximately thirty-five miles per hour. The seat of the snowmachine became partially detached from the chassis during the accident.

On April 14, 1980, Hiller filed suit against the manufacturer of the snowmachine, Kawasaki Motors Corp. ("Kawasaki"), and its retailer, Persinger's Marine. Hiller alleged that Kawasaki had been negligent in its design and manufacture of the snowmachine. Hiller also alleged that the snowmachine was a defective product because the seat had not been securely fastened to the chassis. Hiller contended that Kawasaki and Persinger's Marine were strictly liable because of their failure to warn of the defect or recall the machine.

Hiller's theory of the accident was that the seat of his snowmachine broke away from the chassis in the course of his normal use of the machine. The seat then moved so that it was not under him when he landed after jumping the embankment. Kawasaki contended that Hiller hit the embankment and was thrown, so that he did not land on the machine at all. Kawasaki also contended that the breakage of the seat from the chassis resulted from the force of the impact when Hiller ran into the embankment, rather than from any negligence or defect in the design or manufacture of the machine. Thus, Kawasaki concluded that Hiller's injuries were the result of his own conduct.

Part of the relief sought by Hiller in his suit was an award of punitive damages. Prior to trial, Kawasaki moved for partial summary judgment on this issue. Although the court denied the motion, it nonetheless ultimately dismissed Hiller's claim for punitive damages because Hiller failed to make a prima facie showing that he was entitled to these damages. The court held that "the prejudicial impact of the presentation at trial of evidence and arguments pertaining to the punitive damage issues would not be counterbalanced by considerations of relevancy and materiality to the true issues in the case." At the conclusion of the trial, the court denied Hiller's motion to reassert his claim for punitive damages.

The jury trying the case found that the snowmachine had not been negligently designed or manufactured and that it was not defective. A judgment was accordingly entered for Kawasaki and Persinger's Marine, who were also awarded partial attorney's fees. From this judgment, Hiller appeals.

II. DISCUSSION

A. Jury Instruction on Burden of Proof

Hiller's first argument is that the superior court erred in instructing the jury that he had the burden of proving that the snowmachine was defective when it left the possession of Kawasaki and Persinger's Marine. Hiller contends that this instruction was inconsistent with our opinion in Caterpillar Tractor Co. v. Beck, 624 P.2d 790 (Alaska 1981) ("Beck II "). According to Hiller, Beck II stands for the proposition that a plaintiff must prove that a defect existed in the product at the time it left the possession of the manufacturer only when the manufacturer introduces evidence at trial tending to establish that the product was substantially altered by someone or something before the accident occurred that caused the plaintiff's injuries. This interpretation of Beck II misses the mark.

In Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979) ("Beck I "), we specifically stated that a "product must be defective as marketed if liability is to attach." Id. at 879. We also stated that "[t]he established rule is that the product must be shown to be defective when it left the defendant's possession or control." Id. at 886 n. 52. This is consistent with the rule of law set forth in the Restatement:

The burden of proof that the product was in a defective condition at the time that it left the hands of the particular seller is upon the injured plaintiff; and unless evidence can be produced which will support the conclusion that it was then defective, the burden is not sustained.

Restatement (Second) of Torts § 402A comment g (1964). See also, e.g., Rocky Mountain Fire & Casualty Co. v. Biddulph Oldsmobile, 131 Ariz. 289, 640 P.2d 851, 854 (1982); Jiminez v. Sears, Roebuck & Co., 4 Cal.3d 379, 93 Cal.Rptr. 769, 482 P.2d 681, 683 (1971); Farmer v. International Harvester Co., 97 Idaho 742, 553 P.2d 1306, 1313 (1976); Curtiss v. Young Men's Christian Ass'n, 82 Wash.2d 455, 511 P.2d 991, 996 (1973). We believe this is the proper rule of law to be applied and we accordingly reaffirm our previous holding that the plaintiff in a strict products liability suit must establish as part of his cause of action that the product was defective at the time it left the possession of the manufacturer.

Hiller contends that we retreated from this holding in Beck II. This is not so. What we stated in Beck II was that "a substantial change in the product after it leaves the manufacturer's hands will ordinarily defeat a claim based on strict tort liability." 624 P.2d at 793. This statement is accurate; to the extent that an injury, caused by a substantially altered product, is the result of the product's alteration and not a result of a product "defect" existing at the time of manufacture, the manufacturer is not liable for the injuries. A manufacturer, therefore, may introduce evidence that its product was substantially altered after leaving its possession, which evidence may rebut or overcome the plaintiff's showing that his injuries were a result of the product's defect. Before, however, the manufacturer is put to the trouble and expense of establishing that its product was altered, the plaintiff must first establish that the product was defective when it left the manufacturer's possession. This is a necessary element to any claim for damages based on strict products liability. Accordingly, the superior court did not err in this case in requiring the jury to determine whether the Kawasaki snowmachine was defective when it left the possession of its retailer, Persinger's Marine.

B. Excluded Evidence of Defect

Hiller next argues that the superior court erred in excluding from evidence a deposition that showed Kawasaki had discovered cracks in the seat bases of approximately two per cent of its snowmachines stored in a Lincoln, Nebraska, plant warehouse. The court excluded the deposition under Evidence Rule 403 ¹ because it concluded that the prejudicial impact of the evidence outweighed its probative value.

Hiller notes that the deposition was the only direct evidence he had that tended to prove that a defect existed in his snowmachine at the time it left Kawasaki's possession. We agree with Hiller that the existence of cracks in some of the snowmachines stored in Kawasaki's warehouse was relevant to his case because the evidence would tend to support an inference that there may have been a crack in Hiller's machine when it left the possession of Kawasaki and Persinger's Marine. The evidence would also be relevant to establishing the quality of inspection procedures employed by Kawasaki, which relates to Hiller's claim of negligence.

The superior court, however, believed that there were valid reasons for excluding the evidence. Its probative value was minimal because the stored snowmachines with cracks in their seat bases were of a different year and model than Hiller's, and were manufactured at a different plant. Furthermore, the reliability of the evidence was dubious because the person testifying had no detailed information in his possession and could not recall very well the facts at issue. Finally, the deposition testimony was duplicative of information contained in an internal corporate memorandum, which was admitted into evidence at trial. The superior court's conclusion that the deposition was unduly prejudicial to Kawasaki and Persinger's Marine was apparently based on its belief that the jury would be unable to ascribe the proper weight to the evidence.

Even if we were to conclude that Kawasaki and Persinger's Marine would not have been unduly prejudiced by the evidence, which would make the superior court's decision an abuse of discretion, any resulting error would have been harmless under Civil Rule 61 because the same information was presented to the jury in the form of the corporate memorandum admitted into evidence at trial. Civil Rule 61 provides in relevant part as follows: "No error in either the admission or the exclusion of evidence ... is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice."

C. Excluded Evidence of Foreseeable Use

Hiller next argues that the superior court erred in excluding from evidence a...