Appeal from the Superior Court of the District of Columbia; (Hon. Robert A. Shuker, Trial Judge)
Before Schwelb and King, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: Belson
BELSON, Senior Judge: This is an appeal from the trial court's decision to set aside the original jury verdict in favor of defendant Warner Fruehauf Trailer Company, Inc. and from its subsequent decision to grant a directed verdict in favor of plaintiffs William and Elizabeth Boston at a second trial. On appeal, Warner Fruehauf argues that the trial court erred in ruling that the assumption of risk instruction it gave the jury during the first trial was unwarranted and required the court to strike the defense verdict, and that the trial court's decision to grant plaintiffs a directed verdict on liability at the second trial was erroneous because the evidence presented supported an assumption of risk defense and failed to establish that, as a matter of law, the design of appellant's product was defective and unreasonably dangerous. We affirm.
Appellee William Boston, a supervising mechanic for the Potomac Electric Power Company ("PEPCO"), was injured on the job due to the malfunction of an Anthony A-146 single cylinder liftgate attached to the back of a PEPCO truck. Boston had responded early on a Sunday morning to an emergency call to obtain a material truck and a work crew to respond to a power outage. He obtained a truck, one he had never used before, and with the help of one of his crew members began to unload it so that he could load it with equipment needed to remedy the outage. After they had used the liftgate to remove some heavy objects from the truck, and Boston's crew member had returned the liftgate platform to, or at least near, the vertical "closed" position at the back of the truck, Boston approached the liftgate to attach the safety chains. The liftgate suddenly malfunctioned, and the 1050 pound metal platform fell free, striking Boston and injuring his hip.
Boston and his wife filed a complaint against the liftgate manufacturers and the liftgate distributor, appellant Warner Fruehauf. *fn1 Appellees proceeded to trial only against Warner Fruehauf, seeking damages for personal injury and loss of consortium on a theory of strict liability in tort based on the defective design of the liftgate. *fn2
The first trial was held in Superior Court before a jury of six with Judge Robert A. Shuker presiding. Most of the Bostons' evidence was directed toward establishing that the one-cylinder hydraulically-controlled liftgate was defectively designed and unreasonably dangerous in that it had no backup system to prevent a free-fall of the heavy tailgate in the event of a mechanical failure. *fn3 At the close of all the evidence, Warner Fruehauf requested the standard "bluebook" strict liability assumption of risk instruction. Standardized Civil Jury Instructions for the District of Columbia No. 11-16 (Strict Liability -- Assumption of Risk) (1985 Supp.). The court gave the instruction over the Bostons' objection. The jury returned a verdict in favor of Warner Fruehauf. The Bostons filed a motion for a new trial. Judge Shuker concluded that the evidence of record had not warranted instructing the jury on assumption of risk, and entered an order granting the motion.
The second trial was also held before a jury of six, and judge Shuker again presided. At the close of all the evidence, the Judge concluded that, as a matter of law, the liftgate was defectively designed and unreasonably dangerous and that no reasonable juror could find that Boston had assumed the risk of being injured by it. He therefore directed a verdict in favor of the Bostons as to liability.
The case was submitted to the jury on damages only. The jury awarded the Bostons a total of $550,000.00. Warner Fruehauf noted this appeal.
(A) Strict Liability in Tort Under D.C. Law
We begin our analysis with a brief Discussion of the law of strict liability in tort in this jurisdiction and the availability of the defense of assumption of risk in strict liability cases. In Berman v. Watergate West, 391 A.2d 1351 (D.C. 1978), this court recognized a cause of action for strict liability in tort based on principles set forth in the RESTATEMENT (SECOND) OF TORTS § 402A. Id. at 1355-59. *fn4 Under § 402A, the plaintiff must prove by a preponderance of the evidence that: (1) the seller was engaged in the business of selling the product that caused the harm; (2) the product was sold in a defective condition unreasonably dangerous to the consumer or user; (3) the product was one which the seller expected to and did reach the plaintiff consumer or user without any substantial change from the condition in which it was sold; and (4) the defect was a direct and proximate cause of the plaintiffs injuries. AMERICAN LAW OF PRODUCTS LIABILITY 3D ("Am Law Prod Liab 3d") §§ 16:40 - 16:42 (3d ed. 1987) (Clark, Boardman, Callaghan). A product may be found defective for § 402A purposes if it has one of three shortcomings: (1) a manufacturing defect; (2) an absence of sufficient warnings or instructions; or (3) an unsafe design. Id. at § 17:3.
Until now, this court has not had occasion to review a design defect case based on a theory of strict liability in tort. *fn5 We have, however, reviewed claims of strict liability based solely on warning defects. See, e.g., East Penn Mfg. Co. v. Pineda, 578 A.2d 1113 (D.C. 1990) (claim of failure to warn brought against battery manufacturer and seller); Payne v. Soft Sheen Products, Inc., 486 A.2d 712 (D.C. 1985) (claim of failure to warn brought against permanent wave product manufacturer); Russell v. G.A.F. Corp., 422 A.2d 989 (D.C. 1980) (claim of failure to warn brought against corrugated asbestos cement manufacturer and design ...