Johnson v. Colt Industries Operating Corp.

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: TIMBERS; McKAY
• Citation: Johnson v. Colt Industries Operating Corp., 797 F.2d 1530 (10th Cir. 1986)
• Decision Date: 28 July 1986
• Docket Number: 85-2006,Nos. 85-1922,s. 85-1922
• Parties: , 21 Fed. R. Evid. Serv. 123, Prod.Liab.Rep.(CCH)P 11,066 Francis Paul JOHNSON, Plaintiff-Appellee-Cross-Appellant, v. COLT INDUSTRIES OPERATING CORPORATION, a Delaware corporation, Defendant- Appellant-Cross-Appellee.

Page 1530

797 F.2d 1530

55 USLW 2085, 21 Fed. R. Evid. Serv. 123,

Prod.Liab.Rep.(CCH)P 11,066

Francis Paul JOHNSON, Plaintiff-Appellee-Cross-Appellant, v. COLT INDUSTRIES OPERATING CORPORATION, a Delaware corporation, Defendant- Appellant-Cross-Appellee.

Nos. 85-1922, 85-2006.

United States Court of Appeals Tenth Circuit.

July 28, 1986.

Rehearing Denied Oct. 2, 1986 in No. 85-1922.

A.B. Conant, Jr. (John T. Helm and Mark J. Zimmerman of Shank, Irwin & Conant, Dallas, Tex., George A. Lowe and Christopher Bacon of Lowe, Terry & Roberts Olathe, Kan., with him on briefs), for defendant-appellant-cross-appellee.

Victor A. Bergman (John E. Shamberg and Cathy A. Sayles of Shamberg, Johnson, Bergman & Goldman, Shawnee Mission, Kan., with him on briefs), for plaintiff-appellee-cross-appellant.

Before McKAY, SETH and TIMBERS, ^* Circuit Judges.

TIMBERS, Circuit Judge.

Colt Industries Operating Corporation ("appellant") appeals from a judgment entered January 18, 1985 upon a jury verdict in favor of Francis Paul Johnson ("appellee") in the District of Kansas, Dale E. Saffels, District Judge. The jury found appellant liable for the injuries sustained by appellee and his wife when his handgun manufactured by appellant accidently discharged after being dropped. The jury awarded appellee $850,000 in compensatory damages and $1,250,000 in punitive damages. We find that the principal questions appellant raises on appeal are: (1) whether the district court erred in admitting in evidence a judicial opinion as proof of a similar accident; (2) whether the district court properly instructed the jury on the parties' respective duties of care; and (3) whether the evidence presented a jury question on punitive damages. ¹

For the reasons stated below, we affirm the judgment of the district court. ²

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

In May 1974 appellee purchased a .22 caliber Colt single action revolver from a gun store near his home town of Junction City, Kansas. The gun had been manufactured by appellant in 1969 and sold to the gun store in that year. The gun model was the famous Colt "six-shooter", first produced by appellant in 1873. The gun model has achieved a certain notoriety as a result of its association with the Old West and the United States Army. Appellant has not altered the design of the gun model significantly since its inception. The gun has a revolving cylinder with six chambers that accept six bullets. The gun has an exposed hammer that must be cocked manually before each shot is fired. Appellee, an experienced handler of guns, testified that he purchased the gun for personal protection.

On July 31, 1981 appellee took the gun with him on a fishing trip to a nearby creek. While appellee was seated on a rock in the creek the gun fell from its holster and struck the rock. The impact caused the gun to discharge. The bullet entered appellee's right buttock and lodged in his bladder. Although surgery was successful in removing the bullet, appellee's doctor testified that the bullet had traumatized certain nerves and rendered appellee permanently impotent. Appellee and his wife testified to the detrimental effect this injury had on their marriage and appellee's life in general.

Why the gun fired upon impact was not in question. Both parties' expert witnesses testified that exposed hammer single action revolvers expose the user to a hazard known as "drop-fire". Drop-fire occurs when the gun is carried with a bullet in the chamber over which the hammer rests. In this situation, regardless of the cock position of the hammer, a sharp blow to the hammer, such as when the gun is dropped and lands hammer first, will cause the gun to discharge. When appellee's gun discharged, all six chambers were loaded but the hammer was uncocked.

On May 12, 1982 appellee commenced the instant diversity action in the district court. Appellee alleged that appellant was liable for his injuries because of the defective design of the gun. The complaint sounded in negligence, strict products liability and breach of warranty. Appellee's theory of the case was that the gun was unreasonably dangerous when fully loaded because of the drop-fire hazard.

The case was tried before Judge Saffels and a jury from January 7 to January 18, 1985. Viewing the evidence in the light most favorable to appellee, as we must, appellee established through expert testimony that the design of the gun rendered it unsafe in any hammer position if the gun was carried with a bullet in the chamber under the hammer. The evidence showed that, even if the hammer was in the "safety" position when fully loaded, a sharp blow to the hammer would cause the gun to discharge. Appellee's expert also testified that the gun design was unreasonably dangerous because there were certain inexpensive "positive" safety devices which could have been built into the gun to prevent any drop-fire. Appellee also introduced certain patent records for such safety devices, including one patented by appellant's founder in 1850. These records indicated an industry awareness of the drop-fire hazard and feasible alternatives for curing it. Appellant's own experts testified that gun manufacturers were aware of the drop-fire hazard and "ought" to consider it when designing exposed hammer weapons.

Appellee, aside from testifying to the circumstances of the accident and the profound effect his injuries had on his family, also testified that he had not received any instructions for the gun when he purchased it. Appellant introduced the instructions it includes with the gun model. The instructions do state that "the safest way to carry your [gun] is with five cartridges in the chamber and the hammer on the sixth chamber". Another portion of the instructions, however, states "load each chamber". Appellee also introduced extensive evidence of the gun's image as a "six-shooter". Finally, there was a good deal of conflicting evidence on appellant's knowledge of other drop-fire related accidents. One of appellant's officers admitted under cross-examination to being aware of a "few" drop-fire related accidents over the last five or six years. The officer denied knowledge of any law suits arising from these accidents. Appellee, however, introduced, over objection, the opinion of the Missouri Court of Appeals in Bender v. Colt Industries, Inc., 517 S.W.2d 705 (Mo.Ct.App.1974). In Bender the court upheld a jury verdict of $15,000 for a plaintiff who had been shot in the head when his gun, the same Colt model as appellee's, discharged after being dropped.

The jury in the instant case returned a verdict finding appellant 85% liable for appellee's injuries, the gun store 5% liable, and appellee 10% liable. The jury awarded appellee and his wife each $500,000 in compensatory damages. The jury also awarded appellee $1,250,000 in punitive damages. The district court denied appellant's motion for a new trial, but reduced the compensatory damage award to $850,000 to reflect appellant's 85% liability. The court upheld the punitive damage award. 609 F.Supp. 776 (D.Kan.1985). These appeals followed.

II.

Appellant has raised a number of claims of error in support of its request for a new trial. We shall address the principal claims seriatim.

A. Admission of the Bender Opinion

Appellant argues that the district court erred in admitting as substantive evidence the Missouri Court of Appeals opinion in Bender v. Colt Industries, Inc., 517 S.W.2d 705 (Mo.Ct.App.1974). Appellant contends that judicial opinions are per se inadmissible or at least that admitting Bender was unfairly prejudicial. While we agree that the admission of the opinion was error, we hold that it was harmless error.

The Bender opinion was offered as proof of appellant's knowledge of accidents similar to appellee's and the propensity of the gun model to drop-fire. We have held that evidence of similar accidents involving the same product is admissible under both Kansas strict products liability law and federal law to establish "notice, the existence of a defect, or to refute testimony given by a defense witness that a given product was designed without safety hazards." Rexrode v. American Laundry Press Co., 674 F.2d 826, 829 n. 9 (10th Cir.), cert. denied, 459 U.S. 862, 103 S.Ct. 137, 74 L.Ed.2d 117 (1982). We also have held that evidence of similar accidents is admissible to show primary negligence in an appropriate case. Julander v. Ford Motor Co., 488 F.2d 839, 846-47 (10th Cir.1973). Clearly, the Bender opinion was relevant to both appellee's strict liability and negligence theories. Likewise, the evidence was highly relevant to impeach the credibility of appellant's officer who testified to not being aware of any drop-fire related law suits involving this very same model Colt revolver. Moreover, evidence of similar prior accidents was relevant in showing the indifference toward a known risk essential to appellee's punitive damage claim.

A foundational requirement for the admission of similar accident evidence is that the proffered accidents be substantially similar to the accident at bar. Julander, supra, 488 F.2d at 845-47. In the instant case, there is little doubt that the Bender accident was substantially similar to appellee's accident. In Bender the plaintiff accidentally dropped the same model Colt single action revolver ³ from his pocket onto a concrete apron. The hammer of the gun struck the concrete and the gun, being fully loaded, discharged, even though the hammer was in the "safety" position. This is exactly what happened in the instant case. While it is true that there was the additional evidence in the Bender case of a part of the trigger breaking off on impact, that distinction does not detract from the case's relevance in showing appellant's awareness of the drop-fire hazard and its consequences.

To hold that the Bender opinion's similar accident...