Weir v. Federal Ins. Co.

• Decision Date: 19 February 1987
• Docket Number: Nos. 83-2057,s. 83-2057
• Citation: 811 F.2d 1387
• Parties: 3 UCC Rep.Serv.2d 93, 22 Fed. R. Evid. Serv. 912, Prod.Liab.Rep.(CCH)P 11,288 Walter D. WEIR and Janet D. Weir, Plaintiffs, v. FEDERAL INSURANCE COMPANY, Defendant and Third Party Plaintiff-Appellant, Cross-Appellee, v. WHIRLPOOL CORPORATION, Third Party Defendant-Appellee, Cross-Appellant, and Mesa TV and Appliance, Inc., Third Party Defendant. & 83-2080.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1387

811 F.2d 1387

3 UCC Rep.Serv.2d 93, 22 Fed. R. Evid. Serv. 912,

Prod.Liab.Rep.(CCH)P 11,288

Walter D. WEIR and Janet D. Weir, Plaintiffs, v. FEDERAL INSURANCE COMPANY, Defendant and Third Party Plaintiff-Appellant, Cross-Appellee, v. WHIRLPOOL CORPORATION, Third Party Defendant-Appellee, Cross-Appellant, and Mesa TV and Appliance, Inc., Third Party Defendant.

Nos. 83-2057 & 83-2080.

United States Court of Appeals Tenth Circuit.

Feb. 19, 1987.

Thomas H. Barrows (Theresa A. Villanueva, Barrows & Sisun, P.C., Denver, Colo., was also on the briefs) Barrows & Sisun, P.C., Denver, Colo., for appellant and cross-appellee.

Peter C. Forbes (Gregory L. Williams, Rothgerber, Appel, Powers & Johnson, Denver, Colo., was also on the briefs) Rothgerber, Appel, Powers & Johnson, Denver, Colo., for appellee and cross-appellant.

Before McKAY, McWILLIAMS and TACHA, Circuit Judges.

TACHA, Circuit Judge.

This is an appeal from a jury verdict awarding Federal Insurance Company (Federal) $98,207.30 in damages in its subrogation action against the Whirlpool Corporation (Whirlpool). Federal appeals from the denial of prejudgment interest by the district court. Whirlpool alleges error in the instructions to the jury, certain evidentiary rulings, and the denial of a directed verdict or judgment n.o.v. Recent decisions of the Colorado courts show that the jury was improperly instructed regarding the applicable law on misuse of a product and the elements of an implied warranty of fitness for a particular purpose. Accordingly, we reverse and remand for a new trial.

On January 13, 1977, a fire destroyed the home and rare book collection of Walter and Janet Weir. The Weirs had asked their insurance agent on the previous day to double the amount of coverage on their collection, and the agent said he would do so. The Weirs subsequently filed suit against Federal, the insurer of the rare book collection, after Federal refused to pay the Weirs the amount of the doubled insurance policy. Federal then filed a third-party complaint against Whirlpool, alleging that a defective dryer manufactured by Whirlpool had caused the fire in the Weirs' home. Whirlpool responded that the dryer was not defective and that the fire had been caused by the Weirs' negligent use of the dryer. ¹

The Weirs and Federal settled their suit before trial. Federal's subrogation action against Whirlpool proceeded to trial before a jury in the United States District Court for the District of Colorado. Federal argued at trial that Whirlpool had caused the Weirs' loss by the manufacture of a defective product, or, in the alternative, the breach of an implied warranty of fitness for a particular purpose. The jury decided for Federal on both claims.

I.

Whirlpool argues on appeal that the district judge erred in failing to instruct the jury that misuse is a defense to a products liability action. We will not consider this claim, however, if Whirlpool did not properly object to the jury instructions as they were given at trial.

A.

Fed.R.Civ.P. 51 provides that "[n]o party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." This specific objection requirement provides the trial court with an opportunity to make proper changes to the jury instructions. Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917, 924 (10th Cir.), cert. denied, 469 U.S. 853, 105 S.Ct. 176, 83 L.Ed.2d 110 (1984); Corriz v. Naranjo, 667 F.2d 892, 896 (10th Cir.1981), cert. dismissed, 458 U.S. 1123, 103 S.Ct. 5, 73 L.Ed.2d 1394 (1982); Rogers v. Northern Rio Arriba Elec. Coop., Inc., 580 F.2d 1039, 1042 (10th Cir.1978). Accordingly, we have held that "the grounds stated in [an] objection must be obvious, plain, or unmistakable." Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F.2d 1509, 1514 (10th Cir.1984), aff'd, 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed.2d 467 (1985) (citing Corriz, 667 F.2d at 896). The rule requires counsel " 'to make abundantly clear to the trial court the objecting party's position.' " Id. (quoting Rogers, 580 F.2d at 1042). An objection is adequate to preserve the issue on appeal if it "identified the objectionable instruction and denoted the legal grounds for the objection." Taylor v. Denver and Rio Grande W.R.R. Co., 438 F.2d 351, 353 (10th Cir.1971).

The conduct of the Weirs was central to the defense argued by Whirlpool at trial. Whirlpool asserted that the fire was caused by the Weirs' use of the dryer while it was plugged into a floor outlet immediately below a leaking faucet. Whirlpool introduced evidence to support this theory. The jury instructions proposed and ultimately given by the district judge failed to include any suggestion that the conduct of the Weirs could affect their right to recovery. Counsel for Whirlpool objected at the jury instruction conference to the absence of a misuse instruction:

[W]e have stated a defense and tendered an instruction on misuse of the product based upon Mr. Ely's testimony, which went as follows: That he viewed a leak, a water leakage in the Weir home, which water leakage was splashing on the floor and getting the 220-volt plug wet. The 220-volt plug was the same plug into which the dryer which is allegedly defective was powered and plugged. Mr. Ely testified that he told both Doctor Weir and Mrs. Weir that they had better get that leak fixed because the 220-volt plug was getting wet and because there was a danger of a short circuit condition if that plug were allowed to get wet and if they continued to use the machine before fixing the leak.

The evidence is uncontradicted that Mr. and Mrs. Weir did continue to use the machine. They went so far as to wrap a towel around the faucet while using the machine. Ely came back a second day and reiterated his warning and they continued to use the machine with the leaking condition.

....

... I think that a misuse, or assumption of the risk instruction, we tendered one to the Court, Your Honor, is appropriate here. But that's our argument.

R.Vol. VII p. 954-55. The district judge responded to this objection as follows:

Well, since the Tenth Circuit has asked that we state our reasoning, on subjects such as this, first as to your suggestion that this is a case where misuse of product is a defense, your argument having to do with supposedly wet electrical connection is, at best, an argument asserting contributory negligence, not a defense in a Section 402(a) product liability case, nor is it a defense in a breach of implied warranty of fitness. Misuse of product does not apply. This product, a clothes dryer, was being used, if for anything, only for drying clothes, which is its purpose. This is not the case of a Coke bottle being used to pound a nail, nor is it the case of an automobile being used as a boat, or any such misuse of product.

R.Vol. VII p. 955.

This statement of the district judge indicates that he understood that Whirlpool's objection to the proposed instructions specifically challenged the absence of a misuse instruction. Our decisions in prior cases show that when an "objection properly calls the alleged error to the court's attention ..., the requirement of [Rule 51] is met." Taylor, 438 F.2d at 353. Here, Whirlpool's position on misuse was clear to the judge and he had an opportunity to make proper changes. It would be disingenuous for us to say that Whirlpool's objection to the absence of a misuse instruction was not sufficiently specific when the district judge immediately understood the nature of the objection. We therefore hold that Whirlpool's objection to the jury instructions at trial was adequate under Rule 51 to preserve its right to pursue its argument on appeal.

B.

The Colorado Supreme Court recently clarified the definition of misuse in a products liability action in Colorado in Uptain v. Huntington Lab, Inc., 723 P.2d 1322 (Colo.1986) (en banc). Because the district court in the present case did not have the benefit of Uptain at the time of the rulings now challenged, it erroneously concluded that misuse does not apply when the product is being used for its intended purpose.

In Uptain, the plaintiff was burned when her hands came in contact with a chemical cleaning compound. The defendant claimed the plaintiff had misused the product because of her failure to wear rubber gloves despite a warning on the container to avoid contact with the compound. The Colorado Supreme Court held:

Misuse ... is a question of causation. Regardless of the defective condition, if any, of a manufacturer's product, a manufacturer will not be liable if an unforeseeable misuse of the product caused the injuries. The plaintiff argues that [the manufacturer] was not entitled to any instruction on the defense of misuse because [the product] was being used for its intended purpose. However, the concept of misuse includes use of a product in a manner other than that which was intended as well as use for an unintended purpose.

Id. at 1325-26 (citations omitted).

The court further held:

A manufacturer of a product is not legally responsible for injuries caused by a product if: (1) the product is used in a manner or for a purpose other than that which was intended and which could not reasonably have been expected; and (2) such use rather than a defect, if any, in the product caused the plaintiff's claimed injuries.

Id. at 1325.

Whirlpool presented evidence that the Weirs had plugged the dryer into an outlet located directly below a leaking faucet and that the Weirs had been warned of the possible consequences of doing so. The dryer was certainly not intended to be used in this manner and Whirlpool could not have reasonably expected that it would have been used in this way. As the Uptain ruling now makes clear, the district court erred in failing to give an appropriate instruction...