Kloepfer v. Honda Motor Co., Ltd.

• Citation: 898 F.2d 1452
• Decision Date: 12 March 1990
• Docket Number: No. 88-1652,88-1652
• Parties: 29 Fed. R. Evid. Serv. 918 Robert Vernon KLOEPFER; Cindy Kloepfer, Plaintiffs-Appellants, v. HONDA MOTOR COMPANY, LTD.; American Honda Motors Co., Inc.; Honda Research and Development; Honda Research of America, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1452

898 F.2d 1452

29 Fed. R. Evid. Serv. 918

Robert Vernon KLOEPFER; Cindy Kloepfer, Plaintiffs-Appellants, v. HONDA MOTOR COMPANY, LTD.; American Honda Motors Co., Inc.;

Honda Research and Development; Honda Research

of America, Defendants-Appellees.

No. 88-1652.

United States Court of Appeals, Tenth Circuit.

March 12, 1990.

Lewis R. Hansen of Hansen & Associates, Salt Lake City, Utah, for plaintiffs-appellants.

Robert D. Maack (Robert D. Maack, Tracy H. Fowler and Debra J. Moore, formerly of Watkiss & Campbell, Salt Lake City, Utah, on the brief), Campbell, Maack & Sessions, Salt Lake City, Utah, for defendants-appellees.

Before SEYMOUR, BARRETT and MOORE, Circuit Judges.

BARRETT, Senior Circuit Judge.

Robert Vernon Kloepfer and Cindy Kloepfer (Kloepfers) appeal from an adverse jury verdict and judgment thereon following a one month trial. The Kloepfers initiated this product liability action after their six-year-old son Brandon was killed while riding as a passenger on a Honda three-wheeled all-terrain vehicle (ATV) owned and operated by his uncle, Kevin Pearson. Brandon was riding without a helmet in front of his uncle on the ATV. As they proceeded up a steep hill, the ATV overturned and Brandon suffered fatal injuries.

The Kloepfers sued American Honda Motor Company, the manufacturer of the ATV, the distributor of the ATV, and the research and design entities that developed the ATV. The Kloepfers based their action on theories of negligence, strict liability, false advertising, negligent failure to warn, strict liability for failure to warn, train and advise how to operate the vehicle, and for violation of the reporting requirements of the Consumer Product Safety Act.

Defendants-appellees (Honda) defended on the basis that the ATV was not defectively designed and that its advertisements were not misleading. Honda also asserted that: the ATV was being operated in total contravention of warnings and instructions affixed to it in that Pearson had placed an unhelmeted passenger on the ATV and climbed an obviously dangerous hill, and the throttle cable of the ATV had been dangerously and improperly altered by Pearson and this drastically undermined his ability to control the vehicle.

The jury returned a verdict in favor of Honda on all counts. Kloepfers' motion for a new trial was denied by the district court.

On appeal, the Kloepfers contend that: (1) the court erred in failing to respond to a question from the jury; (2) the special verdict form was improper; (3) the court erred in excluding certain evidence; (4) the court erred in refusing to allow specific questions of Cindy Kloepfer; (5) the court erred in admitting post-accident riding activities of Pearson; (6) the voir dire was improper; and (7) Honda's defense counsel created reversible error by numerous instances of gross misconduct.

I.

Kloepfers contend that it was reversible error for the trial court to refuse to give additional instructions to the jury. The special verdict form submitted to the jury included Interrogatory 8 which provided:

Did Honda fail to use reasonable care to adequately warn and instruct the user of the 1984 Honda 200X of non-obvious risks or dangers associated with the use of the vehicle?

During deliberations, the jury inquired of the court: "Do the words, the user, refer to all users or to Kevin Pearson specifically?"

After receiving this inquiry, the following colloquy transpired in chambers:

Mr. Maack (counsel for Honda): Your honor, I know that the evidence is in and the arguments have been made, that it probably wouldn't be wise to try and amend the form. I think we could just say that you have received the instructions and the special verdict form and therein lies your instructions and therein lies your task.

Mr. Slobodin (counsel for Kloepfers): I don't agree at all, your honor. I think that it should be made clear.... And I think that the jury should be told 'users' And I think that it is very clear and I feel strongly about that. I have had a lot of objections to this form.

The Court: Well, I know you did, Jack. But let me say this, Mr. Slobodin. I indicated to you that I would like to use the plaintiff's form if possible. If the form was inadequate, that you prepare one overnight and have it here the next morning. When I came the next morning there was no form. Now that is the problem that I was faced with. And it seemed to me that this was as good a verdict form as I had.

Mr. Slobodin: Well, what I think we tried to do was to modify their form and it just didn't work out too well as far as modifications. But that is what I recall I tried to do was to modify the form.

The Court: Well, I think I am going to suggest that we say to them that they have the evidence. They have the instructions and it is for them to draw what conclusions that they wish from that and that goes both ways.

Mr. Slobodin: All right.

* * * * * *

Mr. Slobodin: Well, I feel that it should be "users" but I made my feelings known.

R., Vol. XL at p. 2857.

After discussing the jury's question with counsel, the court responded to the jury as follows:

You have the evidence. You have the instructions. You are free to draw what conclusions you deem appropriate therefrom.

Id. at p. 2858.

Kloepfers contend that the court's statement was erroneous because it is "clear under the law that warnings for instructions for the use of products apply to persons foreseeably endangered by the products use." (Brief of the Appellants at p. 9). As such, Kloepfers contend that the court should have instructed the jury that the term "user" was to be changed to "users" and that the court's failure to so instruct gave rise to reversible error.

Honda responds that the court's response was proper inasmuch as the jury had been properly instructed on Kloepfers' negligent failure to warn claims in Instructions 35 ¹ and 38 ². Honda argues, that if the "instruction given sufficiently covers the case so that a jury can intelligently determine the questions presented, the judgment will not be disturbed because further amplification is refused," quoting Investment Service Co. v. Allied Equities Corp., 519 F.2d 508, 511 (9th Cir.1975). We agree.

When examining a challenge to a jury instructions we review the record as a whole to determine whether the instructions "state the law which governs and provided the jury with an ample understanding of the issues and the standards applicable." Big Horn Coal Company v. Commonwealth Edison Co., 852 F.2d 1259, 1271 (10th Cir.1988), quoting Ramsey v. Culpepper, 738 F.2d 1092, 1098 (10th Cir.1984). We thus consider all that the jury heard and, from the standpoint of the jury, decide "not whether the charge was faultless in every particular but whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine these issues." Big Horn Coal Co., supra, at p. 1271, quoting Durflinger v. Artiles, 727 F.2d 888, 895 (10th Cir.1984), quoting Alloy Int'l Co. v. Hoover-NSK Bearing Co., 635 F.2d 1222 (7th Cir.1980).

Applying these standards to the facts herein, we hold that the district court did not err in refusing to further instruct the jury on Interrogatory 8. Instruction 35 specifically provided that the manufacturer of a product owes a duty to the public generally and to each member thereof who will "become a purchaser or user of the product." Instruction 35 also provided that in order to recover, the plaintiffs had to establish "that the Honda defendants were negligent in designing the 1984 Honda 200X ATC or in failing to warn users of dangers of which they were not aware or of which they should have known."

The court gave the Kloepfers the opportunity to submit their own interrogatory form but the Kloepfers failed to do so. Thereafter, the parties agreed to proceed with the form apparently submitted by Honda. In any event, Interrogatory 8, when considered in light of Instructions 35 and 38, clearly and adequately charged the jury.

II.

Kloepfers contend that the special verdict form utilized was improper and contained numerous errors. The Kloepfers contend that the district court erred in not submitting its proffered special verdict form which has been universally accepted in Utah. The Kloepfers argue "that after the Jurors had received such extensive jury instructions, and they had been instructed as to every possible element of every cause of action by the Plaintiffs, it would have been appropriate to use the (Utah) approved special verdict form," (Brief of Appellants at pp. 15-16), and that the court's failure to use the form gave rise to reversible error. The Kloepfers argue that the special verdict form which was used was incomplete, did not contain the causes of action they had alleged, included prejudicial instructions, and was inconsistent with the general instructions given to the jury.

Honda responds that the jury instructions did not mislead the jury and that the Kloepfers waived any right to attack the special verdict form. Honda cites to Ortega v. City of Kansas City, Kansas, 659 F.Supp. 1201, 1215 (D.Kan.1987) (rev'd on other grounds, 875 F.2d 1497 (10th Cir.1989)), for the proposition Defendants failed to object to the verdict form at trial. Ordinarily, a party waives the right to object to a faulty instruction or verdict form in a motion for a new trial if he failed to raise a timely objection before the jury retired. Lusby v. T.G. & Y Stores, Inc., 796 F.2d 1307, 1311 (10th Cir.), cert. denied, 479 U.S. 884, 107 S.Ct. 275, 93 L.Ed.2d 251 (1986). Federal Rule of Civil Procedure 51. An exception to this rule allows the court to review the erroneous instruction or verdict form only if it amounted to plain error. Fiedler v. McKea Corp., 605 F.2d 542, 548 n. 4 (10th Cir.1979).

We hold that the Kloepfers waived their right to challenge the special verdict form. As set forth in I., supra, the court afforded the Kloepfers the opportunity to submit their own...