Karst v. Shur-Company, s. 27348

• Decision Date: 20 April 2016
• Docket Number: Nos. 27348,27362.,s. 27348
• Citation: 878 N.W.2d 604
• Parties: Richard KARST and Susan Karst, Plaintiffs and Appellants, v. SHUR–COMPANY n/k/a Shorma Company and Wilson Trailer Company, Defendants and Appellees.
• Court: South Dakota Supreme Court

878 N.W.2d 604

Richard KARST and Susan Karst, Plaintiffs and Appellants,

v.SHUR–COMPANY n/k/a Shorma Company and Wilson Trailer Company, Defendants and Appellees.

Nos. 27348

27362.

Supreme Court of South Dakota.

Argued Dec. 1, 2015.

Decided April 20, 2016.

As Modified on Denial of Rehearing June 20, 2016.

G. Bryan Ulmer, IIIof The Spence Firm, LLC, Jackson, Wyoming and Aaron D. Eieslandof Johnson Eiesland Law Offices, PC, Rapid City, South Dakota, Attorneys for plaintiffs and appellants.

James A. Power, J.G. Shultzof Woods, Fuller, Shultz & Smith, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellee Shur–Company n/k/a Shorma Company.

Mitchell Peterson, Melissa C. Hintonof Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee Wilson Trailer Company.

ZINTER, Justice.

[¶ 1.] Richard and Susan Karst sued Shur Company and Wilson Trailer Company on negligence and strict-liability causes of action.¹ Karsts alleged defective design and improper warnings relating to Shur's electric-tarp system that Wilson included on a grain trailer it sold to Richard. The circuit court granted summary judgment against Karsts on their failure-to-warn claims, and a jury found in favor of Defendants on Karsts' remaining claims. On appeal Karsts argue that the circuit court erred in instructing the jury, in granting summary judgment on the improper-warning claims, in permitting an assumption-of-risk defense to go to the jury, and in refusing to admit evidence of the warnings that were provided. We affirm.

Facts and Procedural History

[¶ 2.] Richard Karst was in the business of trucking and buying and selling oats. He used a type of grain trailer that required a tarp to cover the cargo area. From 1980 until 2007, Richard used a manual-tarp system on his trailers.

[¶ 3.] In 2007, Richard purchased two new grain trailers from Wilson. Both were equipped with Shur's model 3500 electric-tarp system. The tarp system featured a "roll tube" that ran the length of the trailer. A tarp, when rolled around the roll tube, retracted to uncover the cargo area. The roll tube was attached to the front and rear of the trailer by a "flex arm" at each end. The tarp system used an electric motor to roll up the tarp, and the tarp was unrolled to cover the trailer with the assistance of torsion springs located where the flex arms attached to the trailer. A spline at the rear end of the roll tube allowed the use of a manual crank to roll and unroll the tarp when necessary. However, a metal sleeve located at the end of the rear flex arm fit over the spline and connected the flex arm to the roll tube. Consequently, to get access to the spline to unroll the tarp manually, the flex arm had to be disconnected from the roll tube by removing the sleeve.

[¶ 4.] On December 15, 2009, Richard loaded two trailers with oats at an elevator in McLaughlin. The lead trailer's tarp closed properly, but the pup trailer's electric-tarp system failed, leaving the roll tube and tarp in the open position. A warning label located on the rear flex arm warned that it was under spring tension and advised reading the manual before disassembling the flex arm. Although the manual similarly warned that the flex arms were under tension, the manual did not offer guidance on how to unroll a tarp stuck in the open position with the electric-tarp system engaged.

[¶ 5.] Because the tarp had to be closed before leaving the elevator, Richard climbed onto a platform on the back of the trailer to attempt to manually unroll the tarp. He attempted to hold the flex arm with one hand while using a hammer to knock the flex arm's metal sleeve off the roll tube to get access to the spline. As soon as the sleeve separated from the roll tube, the torsion springs caused the flex arm to spring toward Richard, knocking him to the ground. Richard suffered a fractured skulland permanent brain damage. As a result of the brain injury, he is unable to recall the accident.

[¶ 6.] Karsts later brought this suit on causes of action alleging strict liability and negligence (both for defectively designing the product and for failing to properly warn of the danger). Wilson moved for summary judgment on all claims, and Shur moved for summary judgment on the failure-to-warn claims. After Karsts responded to the summary judgment motions on the failure-to-warn claims, the circuit court determined that Karsts failed to produce evidence that Richard had read the provided warnings prior to the accident. The court concluded that in the absence of such evidence, Karsts would be unable to prove causation on their failure-to-warn claims. Consequently, the court granted summary judgment to Defendants on all failure-to-warn claims. The court also granted summary judgment to Wilson on Karsts' negligent-defective-design claim.² After a twelve-day trial, a jury returned a verdict in favor of Defendants on Karsts' surviving claims.

[¶ 7.] Karsts appeal, raising four issues³ :

1. Whether Jury Instruction 20 on strict liability misstated South Dakota law and misled and confused the jury.

2. Whether the circuit court erred in granting summary judgment in favor of Defendants on Karsts' failure-to-warn claims.

3. Whether there was sufficient evidence to instruct the jury on assumption of the risk.

4. Whether Karsts should have been allowed to present evidence of the warnings actually given in order to counter testimony on assumption of the risk.

Decision

Jury Instruction 20—Strict Liability

[¶ 8.] "A trial court has discretion in the wording and arrangement of its jury instructions, and therefore we generally review a trial court's decision to grant or deny a particular instruction under the abuse of discretion standard. However, no court has discretion to give incorrect, misleading, conflicting, or confusing instructions...." Vetter v. Cam Wal Elec. Coop., Inc., 2006 S.D. 21, ¶ 10, 711 N.W.2d 612, 615(citations omitted). Therefore, "when the question is whether a jury was properly instructed overall, that issue becomes a question of law reviewable de novo." Id.

[¶ 9.] Karsts argue that Instruction 20 on strict liability misstated the law and confused and misled the jury in describing products that are in a "defective condition unreasonably dangerous" to the user. Because jury instructions "must be considered as a whole in determining if error was committed in giving or refusing to give certain instructions[,]" Degen v. Bayman, 90 S.D. 400, 406, 241 N.W.2d 703, 706 (1976), Karsts' argument requires consideration of Instructions 19 and 20 together. This case was submitted to the jury on a defective-design theory, and the parties agreed that the strict-liability question should be determined under what is commonly referred to as the risk-utility test. Accordingly, the court gave Instruction 19, which stated: "A product is in a defective condition unreasonably dangerous to the user if it could have been designed to prevent a foreseeable harm without significantly hindering its function or increasing its price." Instruction 20 stated:

A product can be dangerous without being unreasonably dangerous. Even if a product is defective in some manner, you must find that the defect renders the product "unreasonably" dangerous. A product is not in a defective or unreasonably dangerous condition merely because it is possible to be injured while using it.

According to Karsts, Instruction 20 was not needed because "Instruction 19 gave the jury all of the law it needed to decide whether defendants were liable on a product-defect theory." Karsts more specifically contend: (1) that under South Dakota law, Instruction 20 incorrectly implied a separate unreasonably-dangerous test, that defectiveness and unreasonable dangerousness are not separate elements, and that the jury was not required to accept any level of danger in this product; (2) Instruction 20 derives from Restatement (Second) of Torts § 402A comment k (Am. Law Inst.1965), which applies only to products that are unavoidably unsafe; (3) Instruction 20 gave no standard for differentiating between a dangerous product and an unreasonably dangerous product; and (4) Instruction 20 unfairly emphasized the Defendants' theory of the case.

[¶ 10.] First, Instruction 20 did not misstate South Dakota-strict-liability law. Karsts incorrectly presume that the phrase "defective condition unreasonably dangerous" is a single element that does not include an unreasonably-dangerous inquiry. This Court adopted the rule of strict liability expressed in the Restatement (Second) of Torts § 402A. Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909, 912 (S.D.1987). Under this rule, a seller is strictly liable for physical harm caused by a product in a defective condition unreasonably dangerous to the user or consumer. Restatement (Second) of Torts § 402A. The rule "applies only where the defective condition of the product makes it unreasonably dangerous

to the user or consumer." Id. § 402A cmt. i (emphasis added). Although we have not formally adopted the Restatement (Third) of Torts: Products Liability (Am. Law Inst.1998),⁴ it similarly imposes strict liability for defective design "when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design ..., and the omission of the alternative design renders the product not reasonably safe [.]" Id. § 2(b) (emphasis added). Thus, both the Restatement (Second) and Restatement (Third) rules contemplate a causal relationship between two elements: a defect must "make" or "render" a product unreasonably dangerous (not reasonably safe). As we have previously said, "[s]trict liability requires that the product be defective and unreasonably dangerous." Peterson, 400 N.W.2d at 912(emphasis added). Numerous courts—in cases involving a variety of products that are not inherently dangerous—agree.⁵

[¶ 11.] Karsts further contend that Instruction 20 was erroneously taken from Re...