McBride v. Ford Motor Co.

BISTLINE, Justice,

dissenting in part and concurring in part.

The plaintiffs-appellants were denied a fair trial in this case because of errors in crucial evidentiary rulings and errors in instructions. Upon the record before us, this case should be remanded for a new trial because of those errors.

The majority today holds in Part I-A that “the court’s instructions, taken as a whole, correctly instructed the jury on the law applicable to the issues.” Supra at 62. However, the trial court failed in its duty to instruct the jury on the law of strict liability, which comprised the hub of plaintiffs’ case. Therefore, reversible error was committed and a new trial must be ordered. See Everton v. Blair, 99 Idaho 14, 16 , 576 P.2d 585, 587 (1978).

The plaintiffs requested that the trial court provide complete instructions to the jury concerning the law of strict liability. Specifically, the plaintiffs requested that the court instruct the jury as to when a product is legally defective and define the troublesome phrase “unreasonably dangerous” as it has come to be interpreted under Idaho law. The following instructions form the core of plaintiffs’ requested legal instruction to the jury:

Requested Instruction # 18 provided:

“One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm *766 thereby caused to the ultimate user or consumer, or to his property, if . 1

Requested Instruction # 24 provided:

“A product may be defective, within the meaning of that term as used in the rule of strict liability, not only when it contains unsafe or defective materials or parts, but also if any part of its fundamental design exposes users or bystanders to an unreasonable risk of physical injury.”

Requested Instruction A provided:

“A product may be defective in its design if it lacks safety devices necessary to its reasonable safety.”

Requested Instruction # 28 provided:

“Ordinarily, evidence indicating the presence of a defect in the product or permitting its inference under all the circumstances will prove or permit the inference to be drawn that the defective condition of the product made it unreasonably dangerous.”

Requested Instruction # 29 provided:

“A product is unreasonably dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who uses it, with the ordinary knowledge common to those who use the product as to its characteristics.”

In this way, then, the plaintiff laid out and defined the various elements of his case in a way that the jury could clearly have understood and applied.

However, the majority today has ruled that much less than this is required. The majority relies principally on two instructions given by the trial court for its finding that “the substance of the plaintiffs’ proposed instructions [are] covered elsewhere.” Supra at 62. First the majority points to given instruction 11, which provides:

“To recover under the theory of strict liability, plaintiff has the burden of proving each of the following as more probably true than not:

“(1) That the defendant is engaged in the business of selling, manufacturing or assembling a product ...;

“(2) That the product was in a defective condition unreasonably dangerous to the user or consumer when it left the control of the defendant;

“(3) That the defect was the proximate cause of injuries;

“(4) The nature and extent of the injuries and damages, if any, sustained by plaintiff.”

Second, the majority relies upon given instruction A, which provides:

“A product is in a defective condition if, at the time it leaves the seller’s hands, it is in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.

“The plaintiffs need not prove a specific defect to meet their burden of proving that a product is defective.

“A defect may be proven by either direct or circumstantial evidence. Proof of a malfunction of the product is circumstantial evidence of a defect in that product.”

It is clear that plaintiffs’ requested instruction 18 is fully covered by the court’s given instruction 11. However, the instructions given by the court are woefully inadequate in explaining when a product is defective — especially with regard to design defects resulting from lack of safety devices, a central element of the plaintiffs’ case — and what is meant by the term “unreasonably dangerous.” With regard to the plaintiffs’ claim that the jury was not instructed as to what exactly comprises a design defect, the majority contents itself with noting the following: (1) that the trial court advised the jury at the beginning of the trial that the plaintiffs’ claim was based both upon a defect in design and manufacture; (2) that the trial court advised the jury that the defendants denied that their designs were defective; (3) that the jury heard extensive testimony directed.at this *767 very issue of whether there existed a design defect; and (4) that instruction 11 included among its elements of a strict liability cause of action the requirement “that the product was in a defective condition unreasonably dangerous to a user or consumer when it left the control of the defendant.” With regard to the failure of the trial court to provide any specific instruction as to the significance of the defendant’s failure to include safety devices, the majority says simply that the “jury was clearly aware of the plaintiffs’ various factual theories of why an alleged design defect occurred,” supra at 62, and that the trial court did not err “in not singling out one particular evidentiary claim as to why the particular design was defective, i.e., failure to include safety devices.” Supra at 62.

The majority attempts to avalanche the reader with justifications for the trial court’s instructions while missing the essential problem: the jury was left without any guidance as to what exactly comprised a design defect. All the jury had was language to the extent that something called a design defect was at issue here and that if such a design defect existed and was unreasonably dangerous, then the plaintiff was entitled to their judgment. But what is a design defect, what relationship does it bear to safety devices, and what must exist before the defect is “unreasonably dangerous”? The trial court provides no guidance to the jury on these pivotal issues and thus leaves the jury essentially to speculate as to what these terms of art ultimately mean.

The issue would, of course, be substantially different if these questions were of the kind meant to be left to juror discretion. However, this is not the case. First, it is clear that under Farmer v. International Harvester, supra, the failure to provide safety devices may, without more, comprise a design defect. This requirement derives from the following statement in Farmer:

“The intended use of the truck includes within its scope the reasonably foreseeable likelihood that in the normal course of operation a truck may be involved in a collision or other accident; it is thus the manufacturer’s duty to design and manufacture its products so as to eliminate unreasonable risks of foreseeable injury in the event of collision or other impact”

Id. 553 P.2d at 1315 (emphasis added).

This failure to provide safety devices was a central element of the plaintiffs’ demonstration that the product was defectively designed. The plaintiffs are entitled to have their theory of the case presented to the jury by proper instructions. See Everton v. Blair, supra. The jury should not be forced to guess at the significance of a circumstance which is settled in Idaho law.

Similarly, it is clear that “within the context of products liability ..., the concept of ‘unreasonably dangerous’ is neither generally understood by jurors nor within their common experience.” Becker v. Aquaslide ‘N’ Dive Corp., 35 Ill.App.3d 479 , 341 N.E.2d 369, 377 (1976). The phrase “unreasonably dangerous” has itself spawned an entire line of cases, see, e.g., Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121 , 104 Cal.Rptr. 433 , 501 P.2d 1153 (1972), as well as an entire comment by the very authors of the Restatement who penned it. See Restatement (Second) of Torts, § 402A, Comment i. Under such circumstances, it is patently unreasonable to merely toss such a difficult issue into the lap of an untutored jury for resolution. Contrary to the statement by the majority that “the term ‘unreasonably dangerous’ is itself a definitional term which does not need additional defining,” supra at 63, that language is a distinct element of a plaintiffs’ case in strict liability actions which this Court has defined as a matter of law. Farmer, 97 Idaho at 749, 553 P.2d 1306 . In Farmer , the Court addressed this aspect of a strict liability cause of action, and offered guidance as to how the “unreasonably dangerous” requirement could be properly applied. As the Court stated:

“One further aspect of a plaintiff’s case is the requirement that he must prove that the defect in the product rendered it ‘unreasonably dangerous.’ Restatement (Second) of Torts § 402A, Comment i (1965). Ordinarily, the evidence indicating the presence of the defect in the *768 product or permitting its inference under all the circumstances will also prove or permit the inference to be drawn that the defective condition of the product made it unreasonably dangerous.’’

Farmer, supra at 1313 (emphasis added). The plaintiffs’ requested jury instruction No. 28 incorporates this holding verbatim. However, the majority contents itself with concurring in an observation by the Minnesota Supreme Court that “the drawing of inferences is a matter of common sense logic and reasoning which the jurors will normally use without express direction or guidance of the court.” Supra, at 63. This, of course, flies in the face of this Court’s own holding in Farmer , and once again deprives the plaintiff of the right to have his case presented to the jury, under Idaho law, with proper instructions. The trial court erred in not giving plaintiffs’ requested instructions 24, A, 28, and 29, and should be reversed.

In addition to the jury instructions, the majority also erred in Part I-B. There it ruled that the trial court did not commit' error by abandoning the limitation it originally placed on the use of certain photographs of the chipper admitted to evidence (defendants’ Exhibits 124 A-J), and allowing their subsequent use for the purpose of illustrating the chipper’s configuration. The majority justifies its conclusion by noting that “the use sought to be made of the photographs by defendant KPS to characterize the general configuration of the Chipmore chipper, was not inconsistent with the court’s previous direction that the photographs were not to be considered as evidence of the condition of the B-702 chipper at the time of appellants’ injury.” Supra at 61. In addition, the majority depends on the circumstance that some of the photographs relied upon by the defendants were not unlike other photographs already offered into evidence by both plaintiffs and defendants. Thus, the majority concludes that because “Defendants’ Exhibits 124 A through J had already been ‘admitted in evidence and [would] eventually go to the jury in any event,’ it was not error for the trial court to permit Defendants’ Exhibits 124 A through J to be shown to the jury during Mr. Schoeppner’s testimony.” Supra at 61,

The conclusion reached by the majority is patently incorrect on at least two grounds. First, it is widely recognized that:

“While evidence admitted generally is in the case for any legitimate purpose, evidence cannot be used for another and totally different purpose by the party offering it which is offered and admitted for a limited purpose. Where, by express ruling, it is limited to one purpose, without exception, it cannot be used for another purpose. It is manifest that any other rule would result in surprise and injustice.”

American Produce Co. v. Marion Creamery & Poultry Co., 214 Or. 103 , 327 P.2d 1104, 1108 (1958); See also 88 C.J.S. Trial § 87, p. 194, and cases cited therein.

In this case the trial court expressly limited the use of the photographs, warning the jury that these photographs “[did] not in any way purport to represent the condition of B-702, that particular chipper, at the time of Mr. McBride’s injury.” Supra at 60. Later, however, when the defendants again sought to display the photographs for the very purpose of generally characterizing the configuration of the chipper at issue and was met by objection of the plaintiffs’ counsel that the photographs had been admitted only “for a limited purpose,” the trial court stated: “I don’t recall any limitation, and I have nothing in my notes indicating such.” This is clear error by the trial court and must be reversed.

Second, the trial court’s ultimate pronouncement on the matter clearly denied any limitation on the use of the photographs as evidence. This contradicted the earlier instruction. A jury which was first instructed by the court that the photographs were only admitted for a limited purpose and later instructed that there was no such limitation is, at best, a confused jury, and, at worst, a jury which is most apt to go with the latest pronouncement. Al *769 though this confusion and resultant error might have been corrected by an instruction at the time the case was given to the jury, the trial court refused to give the necessary instruction, though it was requested by the plaintiff. 2 As recently as this term we noted that contradictory instructions on material matters constitute prejudicial error and require reversal. Umphrey v. Sprinkel, Idaho, P.2d (1983) (Supreme Court No. 13600, Released October 12, 1983); Yacht Club Sales & Service, Inc. v. First National Bank of North Idaho, 101 Idaho 852, 863 , 623 P.2d 464, 475 (1980). Absent a showing by defendants that the jury did not consider the photographs in their evaluation of the chipper’s condition at the time of the accident — and thus was not material to the jury’s verdict — the contradictory instruction would require reversal as a matter of Idaho law.

In this case, it is clear that such a showing could not be made by the defendant. The statement by the trial court disclaiming any limitation on the use of the photographs as evidence was made in front of the jury. The jury could have and quite probably did consider the photographs — taken nearly four years after the accident — as evidence of the chipper’s condition at the time of the accident. The photographs were, after all, of the same chipper — a fact which came out in an exchange before the jury. Such a patently improper use of the photographs would clearly have been prejudicial 3 to the plaintiffs and, because we cannot say that such a prejudicial use of the photographs by the jury did not in fact occur, a new trial must be ordered.

Although I join the majority opinion as to parts IA, D, E and II, I dissent from parts IB and C and dissent from the result.

. The instructions thereafter recited the familiar elements from § 402A of the Restatement, Torts 2d.

. Appellant requested that Instruction C be given as follows:

“You have heard evidence relating to the condition of the KPS Chipper in question as it exists today. The time of the accident alleged by plaintiffs was June 24, 1974. In considering the condition of the chipper and the engine, it is to that time, and not another, to which you should direct your attention. You may not utilize or consider evidence of its condition or the condition of any other chipper today in determining its condition in June, 1974, almost five years ago. You may consider the evidence and testimony relating to the chipper’s condition slightly before the accident, or slightly after, or at the time of the accident only.”

. Charles Stocks testified as to the following maintenance problems demonstrated by the photographs: (1) the governor belt was inside out and extremely worn so that it could have flipped out and left the machine ungovemed at any time; (2) an engine mounting bolt was missing from the right-hand side of the engine; (3) there were small branches inside the engine compartment; (4) a clevis pin attaching the throttle cable to the governor was backed out almost completely; (5) only four of the normal five drive belts on the chipper were present; (6) all the fan blades showed evidence of being hit by foreign material and one fan blade was bent; (7) the battery was dead; (8) the inside diameter of the shroud was damaged and dented; and (9) the shroud and radiator were loose.