February 23, 1995
WARNER FRUEHAUF TRAILER COMPANY, INC., APPELLANT
WILLIAM BOSTON, ET AL, APPELLEES
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 engineers). These cases are relevant here because issues arising in warning defect cases and design defect cases often overlap, as they do in the matter at hand.
(B) Assumption of Risk and Strict Liability
In the District of Columbia, assumption of risk by the injured party, if established, is a complete bar to recovery in a strict liability action. East Penn, supra, 578 A.2d at 1118-19 (citing Payne, supra, 486 A.2d at 721 n.9). Assumption of risk is an affirmative defense that, unlike contributory negligence, focuses on the injured party's actual knowledge. In Sinai v Polinger Co., 498 A.2d 520, 524 (D.C. 1985), we discussed both assumption of risk and contributory negligence in the context of a negligence action, and concluded, regarding assumption of risk, that "the plaintiff must subjectively know of the existence of the risk and appreciate its unreasonable character." Furthermore, in order to establish an assumption of risk defense in a strict liability action, the defendant must show that the plaintiff knew of the specific defect in the product and was aware of the danger arising from it, but nevertheless voluntarily and unreasonably proceeded to use the product. Payne,supra, 486 A.2d at 721-22 n.9 (citing RESTATEMENT, (supra) , § 402A cmt. n). The language of D.C. Civil Jury Instruction No. 11-16 is consistent with this court's Discussion in Payne, and appropriately requires proof of the plaintiffs actual knowledge of the specific defect in question and of the danger created by the defect. Standardized Civil Jury Instructions for the District of Columbia No. 11-16, (supra) . *fn6
Warner Fruehauf failed to present sufficient evidence at either trial to establish an assumption of risk defense. It was not enough to argue that the evidence revealed that Boston had twenty-two years of work experience and training covering "all types of liftgates," and that reasonable jurors could infer that he knew of the general danger associated with standing behind a liftgate. There was no evidence presented at the first or second trial that showed that Boston had actual knowledge of the liftgate's alleged design defect -- the lack of a back-up system (e.g., a second cylinder or other safety device) to prevent the heavy liftgate from free-falling in the event of a mechanical failure.
Boston testified without contradiction that he had received only a ten-minute safety instruction class covering the operation of liftgates in general and that prior to the day of the accident he had never used a single-cylinder liftgate and had never seen a piece of hydraulic equipment fail. Furthermore, it would be unreasonable to infer that while Boston was working at the job site in the few minutes before the accident, he actually saw the single-cylinder mechanism under the truck and realized that if the liftgate should malfunction the 1050-pound metal platform might free fall because of the lack of a second cylinder or other effective safety device. *fn7 Indeed, as a matter of law, Boston's brief opportunity to see the single-cylinder design of the liftgate was insufficient to establish an assumption of risk defense. It did not present him with a condition so "open and obvious" as to create a fact issue as to whether he knew of the existence of the defect -- i.e., the lack of an effective back-up safety system -- and of the danger it presented.
There was evidence from which the presence of warning decals on the liftgate could be inferred, but this too was insufficient to establish an assumption of risk defense. At both trials, Boston acknowledged that on the rear of the liftgate, there was a decal that stated "stand clear while lowering and raising gate." This decal failed to give any warning of the specific defect or of the danger it created. At the first trial, Warner-Fruehauf did not present evidence showing that a second type of decal was, as a matter of routine business practice, placed on every liftgate. At the second trial, there was evidence from which one could infer that a second warning decal was affixed to the liftgate. Only the last few of the 189 words of the second decal, however, contained even a vague indication of a defect and possible danger -- "the lift is not equipped with a backup system to prevent falling in the event of a failure". We agree with the trial Judge's observation that the jury would have had to engage in speculation to conclude that Boston saw this decal and read the warning at the end of it. Mr. Boston and a co-worker testified that they had no recollection of seeing that decal on the liftgate on the day of the accident, and there was no evidence PEPCO had ever told either of them about the defect or the danger created by it.
Thus, the evidence as presented at both trials was insufficient to support a finding that Boston had either actual knowledge of the specific defect in question (the absence of a second cylinder or other effective safety device) or of the danger created by the defect (the possibility of a sudden fall of the liftgate) -- both of which are required to establish an assumption of risk defense in a strict liability action.
Therefore, the trial Judge's decision to set aside the original verdict and order a new trial because he had erred in giving the standard assumption of risk jury instruction was correct and is affirmed. And even though we view the evidence in the light most favorable to Warner Fruehauf and must accord Warner Fruehauf the benefit of all reasonable inferences to be drawn from the evidence, the trial Judge's Conclusion during the second trial that no reasonable juror could find by a preponderance of the evidence that Mr. Boston assumed the risk that caused his injury is supported by the record. *fn8 Thus, the directed verdict on the assumption of risk issue at the second trial must also be affirmed.
(C) Defective and Unreasonably Dangerous Condition
To establish strict liability in tort, a plaintiff must establish that the defendant sold the product in question in a defective and unreasonably dangerous condition. In design defect cases, most jurisdictions decide this issue by applying some form of a risk-utility balancing test. AM LAW PROD LIAB 3D at § 28:11. We follow that approach in this case. *fn9
In general, the plaintiff must "show the risks, costs and benefits of the product in question and alternative designs", and "that the magnitude of the danger from the product outweighed the costs of avoiding the danger". Hull v. Eaton Corp., 263 U.S. App. D.C. 311, 317, 825 F.2d 448, 453 (D.C. Cir. 1987) (design defect case, looking to Maryland law in the absence of D.C. case law "clearly setting out the necessary elements of a D.C. strict liability claim"); *fn10 see also AM LAW PROD LIAB 3D at § 28:12-15 (general Discussion of the risk-utility test). *fn11 There are many different factors that may be considered by the jury in applying a risk-utility analysis. *fn12 In order to weigh properly the interests of manufacturers (or distributors), consumers, and the public, the risk-utility analysis must be applied in a flexible manner that is necessarily case specific. See, e.g., O'Brien v. Muskin Corp., supra, 463 A.2d 298, 305 (N.J. 1983). *fn13
In the context of this case, the risk side of the equation is comprised of the danger of death or serious injury presented by the use of a single-cylinder liftgate with no safety backup, less the extent to which that danger might have been reduced by the warning decals routinely placed on the liftgates. On the other side of the balance is the availability of commercially feasible design alternatives, a factor which indicates the utility or benefit derived from marketing the product with the design at issue in this case.
The risk of bodily injury presented by the design of the single-cylinder liftgate was serious. The evidence presented by the Bostons reveals that: (1) over half of the Anthony single-cylinder liftgates in PEPCO's fleet had reportedly experienced identical free falls; *fn14 (2) tests observed by PEPCO's Safety Committee Chairman comparing Anthony single-cylinder liftgates to similar liftgates with two cylinders showed that single-cylinder liftgates would fall free in the event of a mechanical failure, but that dual-cylinder liftgates would not; (3) tests conducted after Boston's injury by PEPCO's Maintenance Superintendent showed upon a mechanical failure the liftgate involved in Boston's accident fell several times while being operated normally; and (4) the liftgate's warning decal and instructions manual -- both stating that "the lift is not equipped with a back-up system to prevent falling in the event of a failure" -- indicate the serious risks presented by the design of the Anthony single-cylinder liftgate. *fn15
Under a risk-utility analysis, " manufacturer [or distributor] is entitled to defend a strict liability claim based on defective design by showing that a warning accompanied the product that reduced its dangers." Carter v. Johns-Manville, (supra) , 557 F. Supp. at 1320. However, while the adequacy of a warning is relevant and may even tip the balance in the decision whether a product is or is not defectively designed, it is not the sole consideration: "A warning is only one of a product's many design attributes that weigh in the balance of dangers against utility . . . but could be a pivotal design attribute in a particular case." Id. (emphasis added).
There is some inconsistency among the authorities concerning the effectiveness of warnings in various factual scenarios. *fn16 However, we do not have to resolve the issues those authorities raise, because the warning decals in this case were inadequate as a matter of law. As indicated above, one of the warning decals was inadequate because the jury would have had to engage in conjecture to have concluded that it was in a location where Boston could have seen it, and be cause it consisted of 189 words only the last few of which contained the vague warning of possible danger quoted above. *fn17 The other decal -- "stand clear while lowering and raising the gate" -- did not provide any warning of the specific defect alleged or of the danger created by it. *fn18
Turning to the other side of the scale, we must determine, based upon the record before us, whether the utility or benefit realized from marketing the liftgate with the design at issue outweighed any risks presented by that particular design. In order to determine whether a safer design that would have prevented the injury should have been used, the trier of fact ordinarily must consider whether any safer alternative designs were commercially feasible. In determining the feasibility of design alternatives the trier of fact should consider the "financial cost of the alternative" as well as any "adverse consequences" created by the alternative. AM LAW PROD LIAB 3D at § 28:14.
The Bostons presented uncontradicted expert testimony that the liftgate, as designed, was "unreasonably dangerous." Both the Bostons' mechanical engineering expert, James Kita, and Warner Fruehauf's mechanical engineering expert, Roger Link, *fn19 testified that alternative designs that would have prevented the metal platform from a free fall were available when the Anthony A-146 single-cylinder liftgate was manufactured in the mid-1970s. These alternative designs included dual-cylinder and multi-cylinder configurations, as well as the inclusion of a limit switch on the latching mechanism of the liftgate. *fn20
The Chairman of PEPCO's Safety Committee, Fred Lawless, testified that the committee had investigated six incidents in which Anthony single-cylinder liftgates " from a near-vertical folded position to the ground creating a hazard." He explained that he had observed tests demonstrating that, in the event of the failure of the locking or hooking mechanism, a single-cylinder liftgate would fall "in a split second with no warning," In the case of a similar failure, however, a dual-cylinder liftgate would "creep very slowly." According to Mr. Kita's cost-benefit analysis, any one of the above alternatives was available at nominal additional cost to appellant, would have caused no reduction in the liftgate's overall utility, and would have prevented the metal platform from falling free. Principally on the basis of these factors, Mr. Kita ultimately opined within a reasonable degree of engineering certainty that the liftgate as designed was defective and unreasonably dangerous.
By contrast, Warner Fruehauf failed to offer any expert or even lay testimony to substantiate its general assertion that the liftgate as designed was safe for its intended use and was therefore neither defective nor unreasonably dangerous. Moreover, Warner Fruehauf failed to impeach or contradict any of the statements or opinions expressed by either Mr. Link or Mr. Kita. The only question that Warner Fruehauf's counsel asked Mr. Link during cross-examination related to the payment of his expenses. Warner Fruehauf's cross-examination of Mr. Kita focused on PEPCO's maintenance of the liftgate. *fn21 Moreover, Warner Fruehauf failed to offer any evidence showing any benefit gained by marketing a single-cylinder liftgate that outweighed the risk of death or serious bodily harm inherent in this particular design.
Although directed verdicts are granted sparingly in favor of the party who has the burden of proof, we recognize that "to the extent that the party with the burden of proof has established his case by testimony that the jury is not at liberty to disbelieve, a verdict may be directed for him...." See 9 C. Wright & A. Miller, FEDERAL PRACTICE AND PROCEDURE § 2534, at 590-91 (1971). The standard to be applied in considering a motion for directed verdict by a party who has the burden on one issue is similar to the standard applied when considering such a motion made against that party. The court must consider whether reasonable jurors could differ. Id. at 592. *fn22 The application of the standard is different in practice, however:
Yet though a motion for directed verdict in favor of the proponent of an issue is cast in the same form as when made by the defending party, it requires the Judge to test the body of evidence not for its insufficiency to support a finding, but rather for its overwhelming effect. He must be able to say not only that there is sufficient evidence to support the finding, even though other evidence could support as well a contrary finding, but additionally that there is insufficient evidence for permitting any different finding.
Mihalchak v. American Dredging Co., 266 F.2d 875, 877 (3rd Cir. 1939).
In Hurd v. American Hoist & Derrick Co., 734 F.2d 495 (10th Cir. 1984), the court upheld a directed verdict granted in favor of the plaintiff as to liability in a products liability action against a manufacturer. Specifically, the court held that when expert testimony establishing that a product is defectively designed and unreasonably dangerous is "uncontradicted, unimpeached, and not discredited by cross-examination[, it] must be taken as true." Hurd, supra, 734 F.2d at 500. As in this case, the plaintiff offered expert testimony that a design defect caused the injury. The manufacturer in Hurd offered no evidence to refute plaintiffs expert testimony, nor did the manufacturer's attorney weaken the force of plaintiffs experts' testimony by cross-examination. Id. *fn23 In ruling as it did, the court observed that a directed verdict may be granted in favor of the party with the burden of proof "only if the evidence is such that without weighing the credibility of the witnesses the only reasonable Conclusion is in his favor." Id. at 499.
In Dmitrieff v. Campbell, 234 A.2d 808 (D.C. 1967), this court upheld a verdict directed in favor of a plaintiff in a contract action. While noting that a trial court is usually reluctant to direct a verdict in favor of a party bearing the burden of proof, the court pointed out that the appellant did not contradict any of the factual showings supporting the claim of breach, and stated: "Where the evidence of a party to the action is not contradicted by any direct evidence or by any legitimate inferences therefrom and where the evidence is not improbable, impossible, or subject to suspicion, there is no valid basis for denying its conclusiveness." Id. at 810. The court quoted with apparent approval the trial Judge's observation that even granting appellant every reasonable inference, he would have had to set aside any verdict a jury might return for defendant.
In Service Supply Co. v. Harte & Co., Inc., 533 F.2d 23 (1st Cir. 1976), the president of the defendant corporation had testified concerning the transactions that underlay the claim of breach of contract. Though the appellate court reminded the trial court that it is generally preferable to submit to the jury cases with apparently conflicting testimony, it scrutinized the president's testimony and concluded that it did not contradict the plaintiffs evidence on liability and that a jury therefore could not reasonably have found for the defendant on that issue.
In this case, the evidence overwhelmingly supported the Bostons, even on issues as to which they bore the burden of persuasion. Given the danger presented by the design of the liftgate, the ineffectiveness of the warning of that danger, and the uncontradicted expert testimony that safer alternative designs providing the same utility were both economically and technologically feasible, we find no error in the trial Judge's Conclusion that, as a matter of law, the liftgate was defectively designed and unreasonably dangerous. Warner Fruehauf, like the manufacturer in Hurd, failed to refute the Bostons' expert testimony or to neutralize it by cross-examination. Under the circumstances, appellees' expert testimony establishing that the liftgate was defectively designed and unreasonably dangerous "must be taken as true". Therefore, not only did the trial court conclude correctly that, as a matter of law, Warner Fruehauf had failed establish William Boston's assumption of the risk, it also decided correctly that the Bostons were entitled to a directed verdict on the issue of liability. Accordingly, the judgment is