Huffman v. Caterpillar Tractor Co.

• Decision Date: 18 April 1990
• Docket Number: 86-2658,Nos. 86-2630,s. 86-2630
• Citation: 908 F.2d 1470
• Parties: 30 Fed. R. Evid. Serv. 130, 30 Fed. R. Evid. Serv. 135, Prod.Liab.Rep.(CCH)P 12,642 Susan HUFFMAN, Plaintiff-Appellant/Cross-Appellee, v. CATERPILLAR TRACTOR COMPANY, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1470

908 F.2d 1470

30 Fed. R. Evid. Serv. 130, 30 Fed. R. Evid.

Serv. 135,

Prod.Liab.Rep.(CCH)P 12,642

Susan HUFFMAN, Plaintiff-Appellant/Cross-Appellee, v. CATERPILLAR TRACTOR COMPANY, Defendant-Appellee/Cross-Appellant.

Nos. 86-2630, 86-2658.

United States Court of Appeals Tenth Circuit.

April 18, 1990.

Rehearing and Rehearing En Banc

Denied June 12, 1990.

Macon Cowles, Williams, Trine, Greenstein & Griffith, P.C., Boulder, Colo., for plaintiff-appellant/cross-appellee.

Harry L. Hobson, Denver, Colo. (William W. Maywhort and Marcy G. Glenn, Denver, Colo., was also on the brief), for defendant-appellee/cross-appellant.

Before HOLLOWAY, Chief Judge, McWILLIAMS and EBEL, Circuit Judges.

HOLLOWAY, Chief Judge.

Plaintiff Susan Huffman prevailed in the district court in a product liability action against defendant Caterpillar Tractor Co. (Caterpillar) for damages arising from the death of her husband, Garry Huffman. The jury assessed $950,000 in damages. However, pursuant to Colorado's Comparative Fault statute, ¹ this figure was reduced to $475,000 to reflect the jury's determination that the decedent had been 50 percent responsible for his own injuries.

In her appeal, Huffman challenges the district court's interpretation of the term "fault" as it is employed in Colorado's Comparative Fault statute. She argues, inter alia, that the court erred when it instructed the jury that under the Colorado statute, ordinary negligence constitutes "fault." She contends that under the correct interpretation of the term "fault," her damages should be $950,000 instead of the $475,000 awarded. Huffman makes the additional argument that the district court erred in awarding costs of only $3,599.37, rather than the $76,142.82 requested, consisting largely of expert witness fees.

In its cross-appeal defendant Caterpillar raises three additional issues: (1) Did the district court err when it denied Caterpillar's motion for a directed verdict, JNOV, or a new trial on the ground that plaintiff failed to establish a prima facie case of strict product liability? (2) Did the court commit reversible error by excluding relevant testimony regarding the decedent's co-workers' opinions of his lack of competence as an operator of the vehicle on which he was killed? (3) Should this court overrule its previous holding that evidence of subsequent remediation of a product defect is admissible in strict product liability actions, and reverse because of the admission of such evidence by the trial judge?

The district court's rulings on the principal issues are stated in its Opinion and Order. Huffman v. Caterpillar Tractor Co., 645 F.Supp. 909 (D.Colo.1986). We affirm.

I. Facts

There is evidence tending to show these facts when the record is considered favorably to plaintiff. Decedent Garry Huffman was fatally injured at the Steamboat Springs, Colorado, Ski Area on July 29, 1981. At that time Mr. Huffman was employed by The Industrial Corporation (TIC), a contractor retained by the operators of the Steamboat Springs ski slopes to install snowmaking facilities.

Huffman was operating a Caterpillar Model 561D pipelayer, a model manufactured in 1977, Jefferson Tr. 1222, on a ski slope the day of the accident. The parties stipulated that the particular pipelayer Huffman was then using was manufactured in February 1981. III R. 138. The pipelayer--a large, tracked, construction vehicle which combines elements of a bulldozer and a crane--is used in the installation of snowmaking equipment to haul large sections of pipe for placement in trenches running up the side of the ski slope. An important feature of the 561D is its braking system, which combines mechanical brakes with an hydraulic boost. The hydraulic assist substantially enhances braking capacity, but only when the vehicle's engine is running. When the engine is not running, the operator must rely exclusively on the mechanical brakes. ² Beginning in 1981 Caterpillar altered the braking system on successor models of the 561D in order to add a spring-applied emergency braking system to the hydraulically-assisted brakes with which the TIC 561D was equipped (TR 309). Spring-applied brakes automatically and immediately stop the pipelayer whenever the engine is shut off.

To perform the task assigned to the decedent, the operator of a pipelayer must pick up a section of pipe at the bottom of the ski slope, drag it up the incline, and then use the crane-like apparatus of the pipelayer to place the section in the trench running up the side of the slope so that the pipe section can be connected to the rest of the underground piping by weld. Since the sections of pipe are heavy and cumbersome, and the slope quite steep (in this case the slope of the "See Me" trail was 53% (TR 138-39)), it requires some effort and skill to maintain the balance of the load and keep the pipelayer stable on the hill. Although the decedent had worked at Steamboat for several months and had previously operated a bulldozer for the Forest Service, at the time of the accident he had only two weeks' experience on the 561D.

The accident occurred as Huffman was operating the pipelayer to adjust the position of a large length of pipe that had already been placed in the trench on the "See Me" slope by another operator. Huffman had been instructed to close the gap between the pipe just placed in the ditch and the pipe to which it would be welded (TR 104, 978-79, 987). As Huffman tried to move the pipe into place, his co-worker, assistant welder Mike Gardner, shouted words to the effect that he should adjust the counterweight mechanism on the pipelayer in order to improve the machine's stability during this operation (TR at 106). Huffman, apparently unable to hear over the noise of the vehicle (Id. at 106-107), shut off the engine, ³ and the machine began rolling down the hill (Id. at 106-108, 122-23).

As the pipelayer accelerated, Huffman was observed "stomping" on the brake pedals, but to no avail (TR 108-110). Approximately 100 feet down the hill, with the pipelayer gaining speed, Huffman rose from his seat and tried to climb off of the vehicle (Id. at 111). He became tangled in the machine's cable works and then fell on to the tracks of the vehicle. In an instant, he was crushed to death (TR 111-112, 980).

II. Procedural History

Plaintiff initially filed this action in the state District Court for Boulder County, Colorado. Caterpillar removed the case to the United States District Court for the District of Colorado.

There, Caterpillar filed a motion in limine seeking to bar the introduction of evidence of Caterpillar's subsequent remediation in the design of the 561D. This motion was denied. During the trial, Caterpillar moved for a directed verdict at the close of the plaintiff's evidence (TR 908-910) and again at the close of all of the evidence (TR 1305-06), arguing that plaintiff had failed to establish a prima facie case of strict liability. The district court denied the motions with respect to plaintiff's defective design and failure to warn claims (TR 910-11, 1328). After the two-week trial the jury found Caterpillar liable for $475,000 in damages.

After judgment was entered for plaintiff, Caterpillar filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. In support of this motion, Caterpillar (1) renewed its argument that plaintiff had failed to establish a prima facie case of strict liability, (2) argued that the evidence was insufficient to support the verdict, and (3) claimed that the district court had made certain fundamentally erroneous and prejudicial evidentiary rulings. The motion was denied.

Plaintiff's motion to alter or amend the judgment was granted in part and denied in part. The district court increased the pre-judgment interest award to nine percent per annum, but refused to grant plaintiff's claim for the full $950,000 in assessed damages. In its second amended judgment the court awarded $475,000 in damages, interest, and costs of $3,599.37.

III. Discussion

A. Huffman's Appellate Issues

1. Comparative Fault: Doctrinal Development

Plaintiff's central argument on appeal is that the district court's jury instructions regarding the issue of comparative fault erroneously stated the law under Colorado's comparative fault statute, Sec. 13-21-406 C.R.S. (1980 & 1988 Supp.). Jury instruction 31, it is contended, incorrectly defined "fault," as used in the comparative fault statute, to subsume ordinary negligence. In place of the district court's interpretation, plaintiff urges a construction of the statute that would allow a jury to consider only a plaintiff's assumption of risk and/or product misuse in deciding the extent to which a judgment should be reduced after a finding of manufacturer liability. Thus plaintiff should be entitled to the full $950,000 in assessed damages; because the decedent's measure of "fault" for his fatal accident did not rise to the level of assumption of risk or misuse, there was no basis for any reduction in the damage award.

Plaintiff's argument is not without some foundation, especially when we consider the doctrinal origin of comparative fault. Over the years, a multiplicity of meanings have attached to the terms "comparative negligence" and "comparative fault." There is, however, no universally-accepted legal distinction between the two terms. Indeed, the terms "fault," and "negligence" are often used interchangeably in the context of product liability actions. See e.g., Tafoya v. Sears Roebuck and Co., 884 F.2d 1330, 1341 (10th Cir.1989); Kathios v. General Motors Corp., 862 F.2d 944, 947 (1st Cir.1988); Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234, 1240 (1981); Annotation, Applicability of Comparative Negligence Doctrine to Actions Based on Strict Liability in Tort, 9 A.L.R.4th 633, 635 (1982); D. Dobbs, R. Keaton, D. Owen, PROSSER AND KEETON ON THE LAW OF TORTS, Sec. 67, at 479 (5th ed. 1984). When a distinction is...