Unpublished Disposition, 855 F.2d 861 (9th Cir. 1988)

No. 87-3625.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and CANBY, Circuit Judges, and JOHN P. VUKASIN,^**  Jr., District Judge.

MEMORANDUM^* 

In this case for damages arising from injuries sustained by plaintiff while attempting to inflate a tire he had improperly mounted on a wheel manufactured by defendant/appellant Kelsey-Hayes, we heard an appeal from summary judgment in favor of appellees Washington Public Power Supply System and EBASCO and an appeal from judgment on the verdict in favor of plaintiff against appellant for $399,940.50.

I. KELSEY-HAYES' CHALLENGE TO THE DISTRICT COURT'S GRANTING

OF SUMMARY JUDGMENT IN FAVOR OF WPPSS AND EBASCO.

Kelsey-Hayes argues that under Washington law appellees had the duty to supervise the operations of CDC (the general contractor) and were negligent in the exercise of control over CDC, that negligence being the proximate cause of defendant's injuries.

A grant of summary judgment is reviewed de novo. As such, the question is whether there is any genuine issue of material fact disentitling WPPSS and EBASCO from a dismissal as a matter of law.

A. The Liability of WPPSS.

Kelsey-Hayes' argument is straightforward and incorporates theories in both tort and contract. Cases cited by appellant contain fact situations where injuries occurred in a common work area or on a job site; the superior party had coordinating authority over safety standards, as well as over the work itself, and the power to install specific safety precautions. In this case, WPPSS had no apparent contact with the tire shop, did not assume responsibility for the training of operators, the accident location was not in a multi-employer shop site, was not located in a common work area, and was occupied strictly by CDC personnel who repaired vehicles being used by CDC for both the SATSOP project and other unrelated endeavors. The shop was not on WPPSS property but rather was located one to two miles away from the SATSOP project on land leased from an independent private party.

There is no evidence indicating that WPPSS, either through its actions or its contractual obligations, was in charge of plaintiff's safety. Hence, the trial court's granting of summary judgment was correct and should be affirmed.

B. The Liability of EBASCO.

Kelsey-Hayes argues that EBASCO's liability arises from its position as the engineer retained by WPPSS to supervise CDC's compliance with the WPPSS/CDC contract. Having assumed this responsibility, EBASCO is allegedly liable to both Duncan and Kelsey-Hayes for the negligent performance of its obligations. However, WPPSS had no responsibility for worker safety at the tire repair shop. This being so, it would not have been possible for it to delegate any such authority to EBASCO. Therefore, the trial court's granting of summary judgment was appropriate and should be affirmed.

II. KELSEY-HAYES' APPEAL FROM THE TRIAL COURT'S REFUSAL TO

GIVE PROPOSED INSTRUCTION NOS. 37 AND 38.

A. Applicable Laws.

As a diversity action, the claims and defenses of parties to this suit are governed by Washington product liability statutes and case law, in particular the Washington Product Liability Tort Act of 1981 (hereinafter "Washington Products Act"). Wash.Rev.Code Ann. (hereinafter "RCW") chapters 7.72 and 4.22. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938). The standard of review for jury instructions is abuse of discretion, and reversal is not warranted where a trial court's error was "more probably than not" harmless. Del Madera Properties v. Rhodes and Gardner, Inc., 820 F.2d 973, 979 (9th Cir. 1987).

A trial court's failure to give a proposed instruction is an abuse of discretion if the instruction: (1) is a correct statement of the law; (2) is supported by at least "some foundation in the evidence"; and (3) is necessary to advise the jury of the proposition of law relied upon by the party. Id. at 978.

B. Are Kelsey-Hayes' Proposed Instruction Nos. 37 and 38 Correct Statements of Washington Law?

1. Instruction No. 37.

Kelsey-Hayes' proposed Instruction No. 37 embodies the Washington common law rule that there is no duty to warn where a product's danger is obvious or known to its user (hereinafter the " 'obvious or known' exception"). The instruction reads as follows:

A product manufacturer does not have a duty to warn or instruct of risks or dangers which are known to the product user or are obvious. (CR 398).

The issue here is whether this "obvious or known" exception is embodied in or superseded by the Washington Products Act.

Washington common law has acknowledged the "obvious or known" exception in negligence actions. Mele v. Turner, 106 Wash. 2d 73, 720 P.2d 787, 790 (1986); Fleming v. Stoddard Motor Co., 423 P.2d 926, 928 (Wash.1967). The Washington Products Act expressly states that, " [t]he previous existing applicable law of this state on product liability is modified only to the extent set forth in this chapter." RCW 7.72.020(1). Nowhere in the Act is there mention of the "obvious or known" exception, nor is there any Washington case law which discusses the Act's impact upon it.

Appellees Duncans suggest that the language of Kelsey-Hayes' proposed Instruction No. 37 (and No. 38, as well) constitutes a defense of assumption of risk. This argument does not ring true. The issue here is whether or not there was a duty, not whether plaintiff's fault was a superseding and intervening cause of his injuries. The latter is a defense to a breach of duty, not a challenge to the existence of duty to begin with. If a trier of fact finds that no duty to warn ever arose, recovery is barred and issues of contributory fault or assumption of risk are never reached. See, e.g., Larner v. Torgerson Corp., 93 Wash. 2d 801, 613 P.2d 780, 783 (1980).

Thus it appears that the "obvious or known" exception is still in force after passage of the Products Act, and proposed Instruction No. 37 is a correct statement of Washington law.

2. Instruction No. 38.

Kelsey-Hayes' proposed Instruction No. 38 seeks to extend the "obvious or known" exception to knowledge unique to tire repairmen such as appellee. The issue, therefore, is whether such an extension is warranted under currently operating Washington law.

The appellees cite cases for the proposition that the term "ordinary consumer" means an "ordinary adult consumer." However, they are distinguishable on the facts.

Somewhat more helpful are cases cited by appellant where Washington courts have upheld jury instructions that there is no duty to warn of dangers that are obvious to "persons of a class expected to be exposed thereto." Cantu v. John Deere Co., 24 Wash. App. 701, 603 P.2d 839, 842 (1979). The Washington Supreme Court has held that liability will not arise if "the warning [was] sufficient to catch the attention of persons who could be expected to use the product...." Little v. PPG Industries, Inc., 92 Wash. 2d 118, 594 P.2d 911, 914 (1979). Such phrasing suggests that the nature of and need for a warning depends on who uses the product. Therefore, in the absence of contrary language found in the Washington Products Act, it seems clear there is no duty to warn where a danger is known to an identifiable class of professional, occupational, or vocational users of which the injured party is a member. Kelsey-Hayes' proposed Instruction No. 38 is a correct statement of Washington law.

C. Were Instruction Nos. 37 and 38 Supported by Some Foundation in the Evidence?

The legal standard to be applied here is whether Kelsey-Hayes' proposed Instruction Nos. 37 and 38 are supported by at least "some foundation in the evidence." Del Madera Properties, supra, 820 F.2d at 978. Testimony and evidence in this case clearly shows that such a foundation does exist.

The issue here is not, of course, whether this evidence establishes that Duncan knew or should have known of the dangers. That would be a question for the jury. However, there is evidence which might support such a conclusion, and so Instruction Nos. 37 and 38 have met the appropriate criteria.

D. Were Instruction Nos. 37 and 38 Necessary to Advise the Jury of the Propositions of Law Relied Upon by Kelsey-Hayes?

The applicable rule here is "whether, viewing the jury instructions as a whole, the trial judge gave adequate instructions on each element of the case to insure that the jury fully understood the issues." Del Madera Properties, supra, 820 F.2d at 978. Generally, the rule has been characterized as entitling a defendant to argue thoroughly each theory of his case before the jury. However, " [a]n error in instructing the jury.... does not require reversal if it more probably than not is harmless." Id. at 979.

The trial court covered the duty to warn issue in Instruction No. 16. A reading of it shows that the jury was never informed of the threshold issue of whether there was or was not an affirmative "duty to warn." Nor was the jury briefed on the fact that it need not find such a duty if it believed the dangers were either known to Duncan or obvious. Therefore, Kelsey-Hayes was deprived of a key element of its defense. The Duncans argue that Instruction Nos. 7, 12, and 13 amply submitted the full range of Kelsey-Hayes' defenses to the jury. However, the falsity of this argument is made clear when one notes that these instructions only pertain to contributory negligence and superseding and intervening cause. Obviously, such issues are not relevant until a duty has been established. Had the jury found that no duty existed by virtue of the "obvious or known" exception, Instruction Nos. 7, 12, and 13 would not have been relevant.

The court's error in not giving Instruction Nos. 37 and 38 was not harmless.

III. KELSEY-HAYES' CHALLENGE TO THE COURT'S INSTRUCTION NOS.

14 AND 16.

Instruction No. 14 covers the design defect claim and describes the legal standard as being "whether the product was unsafe to an extent beyond that which would be contemplated by an ordinary user." Similar language is found in Instruction No. 16, which pertains to the warning issue. Kelsey-Hayes assigns error to the trial court's refusal to define the term "ordinary user" as individuals in the tire repair business or occupation. Since this challenge reaches the Duncan's design claims, it calls the jury entire verdict into question.

As discussed above, the knowledge of a given profession is incorporated into the "obvious or known" exception to the duty to warn. Without an instruction on this rule, it is possible the jury could have found Kelsey-Hayes liable even though it believed Kenneth Duncan, as a tire repairman, knew or should have known the dangerous situation he was involved in. Therefore it is more likely than not that Kelsey-Hayes was prejudiced here.

CONCLUSION

Since there is no issue of material fact as to whether WPPSS or EBASCO assumed control over Kenneth Duncan's safety, the trial court's granting of summary judgment in their favor is affirmed.

Kelsey-Hayes' proposed Instruction Nos. 37 and 38 were correct statements of Washington law, were supported by some foundation in the evidence, and would have conveyed a crucial theory of defense to the jury. For the same reasons, Kelsey-Hayes' request that the trial court define "ordinary user" in Instruction Nos. 14 and 16 as someone in the tire repair vocation was equally valid. Therefore, the trial court's refusal to abide by either of these requests was prejudicial error, thereby entitling Kelsey-Hayes to reversal.

The order granting summary judgment in favor of WPPSS and EBASCO is AFFIRMED.

Judgment on the verdict in favor of plaintiffs and against Kelsey-Hayes is REVERSED. This matter is REMANDED for new trial in compliance herewith.

CANBY, Circuit Judge, dissenting in part:

I would affirm the judgment of the district court in all respects. The Duncans' case against Kelsey-Hayes was submitted to the jury on two independent theories of liability: (1) negligence in producing a product not reasonably safe as designed, and (2) negligence in producing a product not reasonably safe because adequate warnings were not provided. The jury found for the Duncans on both theories. Because I believe that the jury's finding on the first theory was reached on proper instructions, with support in the evidence, I would affirm the judgment without reaching the issue of failure to warn.

The governing Washington statute clearly provides for both types of liability:

Rev. Code of Washington 7.72.030 Liability of manufacturers

(1) A product manufacturer is subject to liability to a claimant if the claimant's harm was proximately caused by the negligence of the manufacturer in that the product was not reasonably safe as designed or not reasonably safe because adequate warnings or instructions were not provided.

(a) A product is not reasonably safe as designed, if, at the time of manufacture, the likelihood that the product would cause the claimant's harm or similar harms, and the seriousness of those harms, outweighed the burden on the manufacturer to design a product that would have prevented those harms and the adverse effect that an alternative design that was practical and feasible would have on the usefulness of the product.

(b) A product is not reasonably safe because adequate warnings or instructions were not provided with the product, if, at the time of manufacture, the likelihood that the product would cause the claimant's harm or similar harms, and the seriousness of those harms, rendered the warnings or instructions of the manufacturer inadequate and the manufacturer could have provided the warnings or instructions which the claimant alleges would have been adequate.

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(3) In determining whether a product was not reasonably safe under this section, the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer.

Wash.Rev.Code Sec. 7.72.030 (1987) (Emphasis added.)

The trial court instructed the jury on both theories of liability in Instruction Number 7. In Instruction 14, it defined "design defect" in the exact words of the statute, including the reference to the "ordinary consumer." The jury was given a special verdict form in which Question 1A was: "Was Kelsey-Hayes negligent in that the wheel was not reasonably safe as designed at the time it left Kelsey-Hayes' control?" The jury answered "Yes." It also answered "Yes" to Question 18, which inquired whether Kelsey-Hayes was negligent because the wheel was unsafe for a failure to warn. It also answered affirmatively questions on causation and damages.

It is apparent that the first theory of liability has nothing to do with the failure to warn. Whether the claimant was an expert in the profession is not an element of negligence in producing a wheel that is unsafe as designed. There was testimony in the record that the design of the 16.5 inch diameter rim was defective, and that is sufficient to sustain the jury's verdict. Most of the arguments of Kelsey-Hayes, dealing with the lack of need to warn one who is experienced in the trade, simply are inapplicable to the first theory of liability.

One contention of Kelsey-Hayes does relate to the design-defect theory of liability, It argues that the district court should not have instructed the jury, in Instruction Number 14, that in determining whether a product was unsafe, the jury should consider whether it was "unsafe to an extent beyond that which would be contemplated by an ordinary user." Kelsey-Hayes contends, and the majority apparently agrees, that the district court should have defined "ordinary user" to mean "individuals in the tire repair business or occupation."

It is true that in Connor v. Skagit Corp., 30 Wash. App. 725, 638 P.2d 115, aff'd, 99 Wash. 2d 709, 664 P.2d 1208 (1983), the Washington Court of Appeals approved an instruction that defined the "ordinary consumer" of logging equipment as "a person working in the logging industry with ordinary knowledge as to the characteristics of the equipment in issue." 638 P.2d at 120. Connor applied the law applicable before the Washington Product Liability Tort Act of 1981, but the majority is probably correct in assuming that the statute did not necessarily intend to change pre-existing law. Connor also stated, however, that " [i]t is discretionary with the trial court as to how many instructions are necessary fairly to present a litigant's theories, and the trial court also has considerable discretion as to how its instructions are to be worded." Id. In the circumstances of this case, I do not believe that the district court abused its discretion in refusing the definition of "ordinary consumer" offered by Kelsey-Hayes.

Connor involved logging equipment. The ordinary consumer was understandably a person in the logging industry; no other types of persons would be using the equipment. The equipment in question in this case, however, was a truck tire rim. Without compelling authority from the appellate courts of Washington, I am reluctant to conclude that the ordinary person using such a rim is necessarily one in the business or profession of changing tires. The legislature of Washington has directed that "the trier of fact shall consider whether the product was unsafe to an extent beyond that which would be contemplated by the ordinary consumer." Wash.Rev. Code Sec. 7.72.030. Under the circumstances of this case, it was not an abuse of discretion for the district court to submit precisely that prescribed issue to the jury, without further, narrowing definition.

Because I conclude that the district court did not abuse its discretion in instructing the jury on Kelsey-Hayes' liability for design defect, and because that special verdict supports the judgment, I would affirm the award to the Duncans.