Romero v. International Harvester Co.

• Decision Date: 18 November 1992
• Docket Number: No. 91-1223,91-1223
• Citation: 979 F.2d 1444
• Parties: Prod.Liab.Rep. (CCH) P 13,364 Doris J. ROMERO, Plaintiff-Appellee, v. INTERNATIONAL HARVESTER COMPANY, a Delaware corporation, Defendant, and Navistar International Transportation Corporation, Defendant-Appellant. Product Liability Advisory Council, Inc., Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1444

979 F.2d 1444

Prod.Liab.Rep. (CCH) P 13,364

Doris J. ROMERO, Plaintiff-Appellee, v. INTERNATIONAL HARVESTER COMPANY, a Delaware corporation, Defendant and Navistar International Transportation Corporation Defendant-Appellant Product Liability Advisory Council, Inc., Amicus Curiae.

No. 91-1223.

United States Court of Appeals Tenth Circuit.

Nov. 18, 1992.

Michael E. Oldham of Johnson, Oldham & Angell, P.C., Denver, Colo. (Karen L. Smith of Johnson, Oldham & Angell, P.C., Denver, Colo., Elliott D. Olson and Ray G. Weatherup of Haight, Brown & Bonesteel, Santa Monica, Cal., with him on the briefs) for defendant-appellant.

John Gehlhausen (J. Gregory McAuliffe, with him on the brief), of John Gehlhausen, P.C., Lamar, Colo., for plaintiff-appellee.

Hildy Bowbeer and John D. Sear of Bowman and Brooke, Minneapolis, Minn., on the brief, for amicus curiae.

Before ANDERSON, GIBSON, ^* and McWILLIAMS, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

Defendant/appellant Navistar International Transportation Corporation ("Navistar"), formerly International Harvester Company, appeals from an order of the United States District Court for the District of Colorado denying its motion for judgment notwithstanding the verdict or, alternatively, for a new trial in this products liability case. We hold that, under Colorado law, a manufacturer has no duty to notify previous purchasers of its products about later-developed safety devices, or to retrofit those products when the products were non-defective under standards existing at the time of manufacture. We further conclude that the jury in this case was misinstructed as to the nature of the manufacturer's duty under Colorado law with respect to later-developed safety devices. We do not, however, remand for a new trial. Because the jury determined that the product in question, a tractor, was non-defective at the time of manufacture, we reverse and remand for entry of judgment for Navistar.

Plaintiff/appellee Doris Romero is the widow of Reidecel Romero, a farm worker who was killed on June 29, 1988, when the 1963 International Harvester 706D tractor on which he was sitting rolled over as Mr. Romero and his foreman attempted to tow the tractor out of a ditch. Ms. Romero brought this action under the Colorado Wrongful Death Statute, arguing that Navistar was negligent and/or strictly liable for failing to design the tractor with a roll bar or Roll Over Protective Structure ("ROPS") which would have prevented her husband's death, and that Navistar was negligent in failing to see that the tractor was retrofitted with a ROPS at some point after it was first sold. She also claimed Navistar was negligent and/or strictly liable for failing to warn users of the tractor of the dangers of use without a roll bar or ROPS.

Navistar argued that the tractor was reasonably safe and met all industry and governmental standards when it was manufactured and sold in 1963, and asserted as affirmative defenses comparative fault and misuse. Navistar's motion for summary judgment was denied, as was its motion for a directed verdict, and the case was tried to a jury on all claims except the failure to warn claim. ¹ By means of special interrogatories, the jury returned a verdict for Navistar on the claims of negligent design and strict liability defective design, but for Ms. Romero on the claim of negligent "failure to exercise reasonable care to see that the tractor was retrofitted with a protective roll guard." It awarded damages of $200,000 and apportioned fault as follows: 5% to Mr. Romero; 35% to Navistar; 18% to Gerald Maestas, Mr. Romero's foreman; and 42% to Reyher Enterprises, Mr. Romero's employer. Judgment was accordingly entered against Navistar for $70,000. The court thereafter denied Navistar's special motion for judgment n.o.v. on the retrofit issue, and then denied its combined motion for judgment n.o.v. or for a new trial. This appeal by Navistar followed.

BACKGROUND

The tractor in question was manufactured and sold to its first owner in 1963. It was subsequently bought by someone else in 1971, and then by Reyher Enterprises, Mr. Romero's employer, in 1983. When it was manufactured, without a roll bar or ROPS, no one disputes that it met all governmental standards applicable to farm tractors. Navistar and the John Deere Company began developing a ROPS system in the early 1960s. Deere introduced an optional ROPS for farm tractors in 1966, and Navistar did in 1967. Specifically, a ROPS was available for the 706D model tractor in 1967 as an optional field attachment. The American Society of Agricultural Engineers ("ASAE") did not make it mandatory to install ROPS on new farm tractors until 1985. The Occupational Safety and Health Administration did not adopt regulations requiring ROPS on new tractors until 1976. There was never a regulation or industry standard requiring that older tractors be retrofitted with a roll bar or ROPS.

Lusty Reyher, the owner of the tractor in question and the vice president of Reyher Enterprises at the time, had hired Mr. Romero as a seasonal employee in March, 1988. Mr. Romero had been working on the tractor on the day before his death, and had gotten it stuck in a ditch. The fatal accident occurred when Mr. Maestas, Mr. Romero's foreman, attempted to tow the tractor out of the ditch with a rope and chain, while Mr. Romero sat atop the tractor. The rope broke, causing the tractor to roll over backward and crush Mr. Romero. No one disputes that a roll bar or ROPS would likely have prevented Mr. Romero's death. No one argues that any defect in the tractor caused the rollover.

The jury was given, inter alia, the following jury instruction:

In order for the Plaintiff, Judy Romero, to recover from the Defendant, Navistar International Transportation Corporation, on her claim of sale of a defective product, you must find all the following have been proved by a preponderance of the evidence:

1. The Defendant was a manufacturer of the 706D tractor;

2. The Defendant was engaged in the business of selling such 706D tractor for resale, use or consumption;

3. The Defendant sold the 706D tractor;

4. The 706D tractor was defective and, because of the defect, the 706D tractor was unreasonably dangerous to a person who might reasonably be expected to use, consume, or be affected by the 706D tractor;

5. The 706D tractor was defective at the time it was sold by the Defendant or left its control;

6. The 706D tractor was expected to reach the user or consumer without substantial change in the condition in which it was sold;

7. The 706D tractor did reach the user or consumer without substantial change in the condition in which it was sold;

8. The Plaintiff's husband was a person who would reasonably be expected to use, consume, or be affected by the 706D tractor;

9. The Plaintiff incurred damages; and

10. The defect in the 706D tractor was a cause of the Plaintiff's damages.

Appellant's Opening Brief, Appendix Vol. IV at 644-45. The jury was also instructed on the elements of Ms. Romero's negligent design claim, as follows:

In order for the Plaintiff, Judy Romero, to recover from the Defendant, Navistar International Transportation Corporation, on her claim of negligence, you must find all of the following have been proved by a preponderance of the evidence:

1. The Defendant manufactured the 706D tractor;

2. The Defendant was negligent in manufacturing the 706D tractor in that the defendant failed to exercise reasonable care to prevent the 706D tractor from creating an unreasonable risk of harm to the person or property of one who might reasonably be expected to use the 706D tractor while it was being used in the manner the Defendant might reasonably have expected 3. The Plaintiff's husband was one of those persons the Defendant should reasonably have expected to use the 706D tractor; and

4. The Plaintiff's husband, Reidecel Romero's, death was caused by the Defendant's negligence while the 706D tractor was being used in a manner the Defendant reasonably should have expected.

Id. at 648. The jury was further instructed, over Navistar's objection, as follows:

A manufacturer has a continuing duty to use reasonable care to protect the users of its products from dangers which it knew or should have known about. The manufacturer is required to keep informed about its products from research, accident reports, scientific literature and other sources, reasonably available to it, and to use reasonable methods to advise the users concerning hazards which the manufacturer learns about during the expected useful life of the product.

Id. at 653. ²

Finally, the jury answered the following special interrogatories:

1. Do you find that the plaintiff, Doris J. Romero, is entitled to recover damages from the defendant, Navistar International Transportation Corporation, on her claim of strict liability because the product was defective and unreasonably dangerous at the time it was manufactured because the defendant failed to install a protective roll guard thereon at the time of manufacture?

2. Do you find that the plaintiff, Doris J. Romero, is entitled to recover damages from the defendant, Navistar International Transportation Corporation, on her claim of negligence from failure to install on the tractor at the time of manufacture a protective roll guard?

3. Do you find that the plaintiff, Doris J. Romero, is entitled to recover damages from the defendant, Navistar International Transportation Corporation, on her claim of negligence for failure to exercise reasonable care to see that the tractor was retrofitted with a protective roll guard?

Id. at 682. The jury answered "no" to interrogatories 1 and 2, and "yes" to interrogatory 3.

Navistar raises a multitude of issues on appeal. The first and critical issue is whether the district court properly instructed the jury with respect to the duty, under Colorado law, to warn previous purchasers...