Petition for Writ of Certiorari — Drott Manufacturing Corp. v. Davidson
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96-43 Se
Supreme Court, U.S,
FILED
No. JUL 11 1986
’ NIOL, JR.
IN THE , CLERK
Supreme Court of the Gnited States
OCTOBER TERM, 1985
DRoTT MANUFACTURING CORPORATION,
Petitioner,
DAN and PEecGcy J. DAVIDSON,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
Davip H. THORSNESS
HUGHES, THORSNESS, GANTZ
POWELL & BRUNDIN
509 West Third Avenue
Anchorage, Alaska 99501
(907) 274-7522
Attorneys for Petitioner
Drott Manufacturing Corp.
oe Rant ee A A at I ESC SDE 8 Ae TS
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
QUESTIONS PRESENTED
1. Whether Drott Manufacturing Corporation’s right
to a jury trial, established by the seventh amendment
to the United States Constitution, was violated when
the Ninth Circuit Court of Appeals took from the jury
the issue of comparative negligence.
2. Whether the Ninth Circuit Court of Appeals’
holding that some evidence of industry practice is
conclusive on the issue of comparative negligence con-
flicts with Sturm, Ruger & Co., Inc. v. Day, 594 P.2d
38 (Alaska 1979), where the Alaska Supreme Court
recognized that evidence of industry practice is not
conclusive on the issue of negligence.
3. Whether the Ninth Circuit Court of Appeals
failed to comply with the requirements of Fed. R.
Civ. P. 51 and Fed. R. Civ. P. 61 when it reviewed
jury instructions regarding causation.
il
PARTIES TO THE PROCEEDINGS
The Petitioner is Drott Manufacturing Corporation.
The Respondents are Dan and Peggy Davidson.
ill
TABLE OF CONTENTS
Page
SERGE TT A et EE l
Ne. ccssmadchonsuesdeseucneceveces l
CONSTITUTIONAL PROVISION INVOLVED. ............:c000000- 2
ro eikabdneneesvecnvsesscseccossces 2
REASONS FOR GRANTING THE PETITION ..............006+ 12
I. DROTT’S SEVENTH AMENDMENT RIGHT
TO A JURY TRIAL ON THE ISSUE OF
COMPARATIVE NEGLIGENCE WAS VIO-
ee icislatiicistnandeconnsnasroierssesseseooes 12
Il. THE NINTH CIRCUIT COURT OF
APPEALS FAILED TO COMPLY WITH
THE REQUIREMENTS OF FED. R. CIV. P.
YE te OS ee) ene 16
ES Bs EE sescossvccvesconsenscssescoscees 16
EE, Bs TOR bensesescencsncoscscasasecssneen 20
ee sc cuisnidneepeceaenedens 26
verted seine mci eae al
iv
TABLE OF AUTHORITIES
CASES Page
Alloy International Co. v. Hoover-NSK Bearing Co.,
"635 Fe TEE CP Ci. TO) avcceccvensssenscnseess 16
Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines,
ee TI IED. eihedacabiid iced ene adsislasiocnsends 12
Batesole v. Stratford, 505 F.2d 804 (6th Cir.
FOUN - xacihicheelinieiacehamieanmenaiabnahebantitlandMeabnlsiets 23
Brown v Avemco Inv. Corp., 603 F.2d 1367 (9th Cir.
ROTOR -scrcvstssessiniinsnicnasseemeiannabaaembntbidMgakaens 21
Butaud v. Suburban Marine & Sporting Goods, Inc.,
556 P.2d 42 (AIMED TUTE) nc ccscscesccscncsvsccsceceee. 14
Clary Insurance Agency v. Doyle, 620 P.2d 194
AL TUE ihn cra lena sdiecspectdaeitsasnicpesierrraleorseninrs zi, 2
DeLand v. Old Republic Life Insurance Co., 758 F.2d
SR PE ee ED winkadinccidcaticvatnnssncesidicennedes 23
Dura Corp. v Harned, 703 P.2d 396 (Alaska
INU: Lisbascanecaicasiovacsniassucpuapiohimaiuacongnnbeciiniadeds 17
Hageman v. Signal L. P. Gas, Inc., 486 F.2d 479
ee Ns RUE cited a areas 21
Jiffy Markets, Inc. v. Vegel, 340 F.2d 495 (8th Cir.
NN ee a laa eae ue gegen 16
Kabatoff v. Safeco Insurance Co. of America, 627
fe Ce et Ae Bee eee Pelee ate 14
Lavender v. Kurn, 327 U.S. 645 (1946) oo... 13
Love v. State, 457 P.2d 622 (Alaska 1969) .......... 18, 19
Moe v. Avions Marcel Dassault-Brequet Aviation, 727
Be EE CHORD CAR, TUBE) wicsctesitssssecsessvrssces 16, 22, 24
Murphy v. Owens-Illinois, Inc., 779 F.2d 340 (6th
Rk: UII. Sehuslcacuiedoslnittastac ta nhastiisaipeisnnbaneuabaananecedios 22, 2
Ollice v. Alyeska Pipeline Service Co., 659 P.2d 1182
SID MIEN cincsdiiec aii cesasnectnesaunvasineuaacaccspaacarocers zi, 2
Pierce Packing Co. v. John Morrell & Co., 633 F.2d
IE GPU SO BD ritiininscassssenicncscricenatacnccecren 21, 24
Ghee bendinle eta winrrne
a
Table of Authorities Continued
Page
Ramada Dev. Co. v. Rauch,, 644 F.2d 1097 (5th Cir.
BUD“ sicdcspsansisccsnnisnaciiansecatsnnnueicdebianrnamawesesein 24
Rasmussen Drilling, Inc. v. Kerr-McGee Nuclear
Corp., 571 F.2d 1144 (10th Cir. 1978) _.......... 13
Robinson v. Heilman, 563 F.2d 1304 wacul Cir.
SETA. - ouscadiakesiauabansiseacnthincnndcnasabuennsscaenmiaieniniieein 21
Sentilles v. Inter-Caribbean Shipping Corp., 361 US
ge ____. RRR RSI Renee iste ean niee eens Orne serum Pr 13
Shearson Hayden Stone, Inc. v. Leach, 583 F.2d 367
PUR SEE, IE. | ceeknanicaGeecibdamabenbudesptuinednensiiaatee 25
State v. Abbott, 498 P.2d 712 (Alaska 1972) _......... 17
State v. Dutton, 83 Ariz. 193, 318 P.2d 667 (Ariz.
BOER sisteinisananiassuavdnsictcuciptuiahiatasteliuileuedaiamsateilaen 19
Sturm, Ruger & Co., Inc. v. Day, 594 P.2d 38 (Ala-
OR PSE 7; Sexgucsiannannapnknicacdnciuemnboedauaeansteide 15
Tennant v. Peoria & Pekin Union Railway Co., 321
Ue. BPTI. Sesscaciciccdcisarincstincansarennananins 12, 13
Yukon Equipment, Inc. v. Gordon, 660 P.2d 428
CR NE cxvacaniscdinsasnvissiastieinadeniennmennidasbabe 17
CONSTITUTIONAL PROVISIONS:
seventh amendment to the United States Con-
SER RCR Hee) PN he Ey Oe epee tae? om Seem 12
MISCELLANEOUS:
5A J. Moore, Moore’s Federal Practice, § 51.04
COR GR. TNE decent ee 2. 2
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1985
No.
DroTtTt MANUFACTURING CORPORATION,
Petitioner,
Vi
DAN and Preaccy J. DAVIDSON,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
Drott Manufacturing Corporation, a Division of J.
I. Case (‘‘Drott’”’), by and through its attorneys,
Hughes, Thorsness, Gantz, Powell & Brundin, hereby
petitions for a Writ of Certiorari to review the judg-
ment of the United States Court of Appeals for the
Ninth Circuit in this case.
OPINIONS BELOW
The opinion of the Ninth Circuit Court of Appeals
(App. la-5a) is unpublished.
JURISDICTION
The judgment of the Ninth Circuit Court of Appeals
(App. 6a) was filed and entered on January 28, 1986.
The decision of the Ninth Circuit Court of Appeals
denying Drott’s Petition for Rehearing (App. 7a) was
filed on April 18, 1986. The jurisdiction of the District
Court was invoked under 28 U.S.C. \§ 1332. The ju-
risdiction of this court is invoked under 28 U.S.C.
§ 1254(1). 3
CONSTITUTIONAL PROVISION INVOLVED
The seventh amendment to the Constitution of the
United States of America is set forth in the Appendix
to this petition at 35a.
STATEMENT
This is a products liability case. It was tried under
a theory of strict liability on allegations of design
defect. Mr. Dan Davidson, an operating engineer, was
injured on August 6, 1979, at Adak, Alaska. Mr. Dav-
idson was standing and working underneath the boom
and blocks of a Drott 2500 Hydraulic Rough Terrain
Crane. The operator of the crane two-blocked the
crane, breaking the auxiliary whip line cable. Two-
blocking occurs when the operator allows the trav-
elling block or headache ball to pull tight against the
crane boom head. If the tension on the whip line is
great enough, the line can break, allowing the block
or headache ball to fall. In the present case, the
standard auxiliary line headache ball had been re-
placed with a large piece of anchor chain, which was
in place at the time of the accident. The anchor chain
fell and struck Mr. Davidson. Mr. Davidson’s wife,
Peggy J. Davidson, joined the action as co-plaintiff
seeking damages for loss of consortium.
SAN ODT Let TW
The case was tried before the Honorable Robert C.
Belloni, sitting by assignment, and a jury in the
United States District Court for the District of Alaska
in September and October of 1984. The plaintiffs’ case
was tried solely on the theory of design defect under
Alaska law on strict products liability. Plaintiffs al-
leged that the failure to incorporate an anti-two-block
safety device into the design of the crane rendered
the crane defective at the time it left the hands of
the manufacturer.
Drott Manufacturing Corporation defended the mer-
its of the case on a number of grounds. Drott denied
that the crane was defective in design. Drott pre-
sented evidence that the crane was not defective at
the time it left the hands of the manufacturer. Drott
presented evidence that proposed anti-two blocking
devices were not workable and reliable items. In ad-
dition, Drott raised affirmative defenses, including the
defense of comparative negligence on the part of Mr.
Davidson for negligently being under the anchor chain
while the crane was being set up to do its job.
Drott presented specific evidence on the issue of
Mr. Davidson’s negligence. First was the testimony
of Ole Rohrbaugh. Mr. Rohrbaugh was employed with
ACI, Davidson’s employer, as a pile driver and a rig-
ger. (App. 8a). On cross-examination, the following
testimony was elicited from Mr. Rohrbaugh:
Q Sir, I’d like to refer you, please, to page
50 of your deposition, regarding a genera!
discussion about standing underneath the
hook and the load. I’d like to put to you the
question, and I’d like for you to read to the
jury your answer that you gave at the time
of the deposition.
“Question: Let me clarify the situation.
I’m talking about if you’re preparing the
sling, and are lowering the hooks to hook
up’, and what was your answer?
ee ee ee a
A “You don’t get under it, no.”
“Question: And that is a fact of common
safety?” i
A “Yes.”
(App. 9a).
Harold Radtke, plaintiff's operating engineer crane
expert, testified as follows:
Q In fact, it’s a matter of pride among the
operators, isn’t it, not to two-block a crane?
ie ee)
A Well, it’s awfully embarassing, for one
thing.
aA) eT sem Ae te ee eee
Q And it’s a matter of concern to the people
down on the ground working around the
crane, isn’t it?
A Definitely.
(App. 14a). The testimony of Mr. Rohrbaugh and Mr.
Radtke reveal that, as a matter of industry practice
relating to safety, construction workers on the ground
do not stand beneath the hook of a crane when pre-
paring the sling for a load.
AO mn alten en Sella, i
Significantly, the very crane involved in Davidson’s
accident had been two-blocked several days before his
accident. The operator testified, ‘‘I two-biocked the
whip line, which is the light load line, I two-blocked
5
that with the boom, and the ball came off the line
and fell into the ocean.” (App. 15a). Further, at the
job in which Mr. Davidson was working, at Adak,
Alaska, there was a safety meeting once every week.
(App. 10a). The minutes of the safety meeting were
received in evidence as Exhibit ‘11.”’ (App. 12a). Mr.
Rohrbaugh testified that the second page of Exhibit
11,” which was dated 7-30-79, six days before Dav-
idson’s accident, included reference to safety while
working around cranes:
Q Sir, I’d like you to please refer to the
second page of the safety meeting—first of
all, what is the date reflected within that
document?
A 7-30-79.
Q Was it the practice to discuss the items
which appeared on the agenda?
A Yes.
*~* *
A “Make all men aware when pouring con-
crete and moving crane over the heads of
”
men.
Q That was actually discussed as a safety
item just in the week prior to Mr. Davidson’s
accident, was it not?
A Yes.
(App. 1la-12a).
Davidson’s own testimony showed both his knowl-
edge of two-blocking and the need to be safe around
cranes:
Q Mr. Davidson, you have been a crane op-
erator for the operating engineers?
A Yes.
Q And you’ve operated hydraulic cranes, hav-
en’t you?
A Yes, sir.
Q You’re aware of the potential for two-
blocking, aren’t you?
A Yes, sir.
(App. 17a-18a).
Davidson recognized his own signature on the safety
minutes, Exhibit ‘11.’ (App. 19a). He was present
at the meeting where booming cranes over the heads
of men was discussed. (App. 19a-20a). Further ques-
tioning went as follows:
Q That was something that was discussed at
that meeting, was it not?
A Correct.
(App. 21a).
On the morning of the accident, the plan was to
move Davidson’s concrete pump to another spot for
repairs. There was no immediate rush to get the pump
moved out of the way. (App. 21a). The crane had to
travei to Davidson’s pump:
Q You were aware when the crane came up
and then stopped next to the pump?
A I saw the crane come up and stop.
Q And you were about six feet high off the
ground at that time?
ee
A I wouldn’t swear I was six feet, five feet.
It was up off the ground over five feet.
Q And does the operator in that crane sit
up about the same level?
A I would say yes, he would be approxi-
mately the same level as me.
Q And so the boom is at that level or some-
what higher than that, isn’t it?
A Yes, sir, um-hmm.
Q You were aware that the boom swung over
towards the pump, weren’t you?
A No, sir, I never saw the boom swing over
to the pump.
Q That wasn’t my question, sir, you were
aware of it swinging over.
A Oh, I was aware of it, that he was even-
tually going to swing over and pick it up,
yes, sir.
(App. 22a-23a).
The testimony in Davidson’s deposition taken prior
to trial then became relevant to the trial ieee
Q All right. I’m going to show you the—I’m
just going to read my questions and your
answers at the time of the deposition, start-
ing at page 95, line—well, let’s start at line
18 for a little background.
“Question: Were you actually all the way
on top of the concrete pump the moment
the crane stopped?
“‘Answer: Yes.
“Question: Did the boom of the crane
move at any time after the crane came
to a stop by the concrete pump?
“‘Answer: Yes.”’
“Question: Okay. Which direction did it
move?
Your answer was: “‘He swung it to his
left.
My question: ‘‘To his left, towards the
concrete pump?
““Answer: Yes.
(App. 24a).
“Question: Okay, what did you think was in
your own mind what—
Your Answer: “He was swinging over to pick
it up.
“Question: Okay. And did you know that,
even though you weren’t actually looking?
et tet ante
‘“Answer: Yes.”
(App. 25a-26a).
In summary, there was evidence that Davidson and
the workers in general were aware of the potential
hazards presented by two-blocking, and that two-
blocking was “‘definitely’”’ a concern to men on the
ground. Further, Mr. Davidson was aware of the fact
that the boom was swinging above his head moments
before the anchor chain fell.
The jury was instructed on October 3, 1984. Plaintiff
did not object to the court’s instruction on causation.
The first question on the special verdict form asked:
“Did the plaintiff, Dan Davidson, prove that the
crane’s design caused his injury.’”’ (App. 31a). The jury
answered the interrogatory ‘“‘No.” (App. 31a). Con-
sequently, no other questions were, or needed to be
answered by the jury, including a later one on com-
parative negligence. Judgment was entered in favor
of defendant. (App. 33a).
Plaintiffs brought an appeal of the judgment before
the Ninth Circuit Court of Appeals. One issue on
appeal was whether the district court had erred in
denying plaintiffs’ motion for a directed verdict on
the issue of comparative negligence. By memorandum
opinion, the Ninth Circuit Court of Appeals held that
Drott was not entitled to present the comparative
negligence issue to the jury. (App. la-5a). Further, in
Footnote One of its opinion, the Ninth Circuit Court
of Appeals recognized that “[aJny error committed by
the district court in this regard was harmless because
the jury did not reach the issue of comparative neg-
ligence.”” (App. 3a). Since the issue of comparative
negligence was never reached, the court’s ruling could
not be used to reverse the jury verdict. Therefore,
the Ninth Circuit Court of Appeals ruled that the
mere presence of the theory of comparative negli-
gence somehow tainted the jury’s consideration of de-
fect and causation, thus requiring a new trial.
Mr. Davidson assigned as error the district court’s
jury instructions on causation. Specifically at issue
was whether the first special verdict question con-
cerned product defect or causation, and whether the
jury had considered comparative negligence when it
answered ‘“‘No”’ to that question. The Ninth Circuit
Court of Appeals recognized that, under Fed. R. Civ.
P. 51, it would ordinarily review a jury instruction
only if there had been a “specific objection in the
district court to the instruction given.” (App. 2a-3a).
However, the court chose to review the instructions,
even though Davidson never objected in the district
court. The Ninth Circuit Court of Appeals believed
that the district court had sua sponte added compar-
ative negligence language in the context of the caus-
ation instruction, thereby denying Mr. Davidson the
opportunity to object.
A careful review of the record, however, reveals
that the district court had not modified the causation
instruction sua sponte. The matter of jury instructions
in general had been a subject of continuing discus-
sions between the district court and the parties at
various times throughout the proceeding. On October
2, 1984, one full day before the jury was instructed,
the district court discussed the first special verdict
interrogatory with counsel for the Davidsons and
counsel for Drott. At that time, the court said:
Therefore, the following instruction should
solve the problem and express the law as it
currently is in Alaska.
If the accident was caused solely because of
the substitution of the chain for the ball, that
is the same as to say that the design did not
cause the accident and your answer to ques-
tion number one would be no.
The same would be true if the operator’s
negligence was the sole cause, or the
plaintiff's own negligence was the sole cause.
1]
A different rule applies if the defective de-
sign was a part of the cause and one of those
other events was also a part of the cause.
(App. 27a). The district court’s statement on October
2, 1984, regarding the first interrogatory and com-
parative negligence was identical to the instruction
that the district court gave to the jury on October 3,
1984. (App. 30a). However, Mr. Davidson failed to
object at any time to the instruction.
On February 14, 1986, Drott petitioned the Ninth
Circuit Court of Appeals for a rehearing. (App. 36a-
49a). Drott argued that the Ninth Circuit Court of
Appeals had erroneously believed that the causation
instruction was given sua sponte by the trial court.
Second, Drott argued that, without an objection to
the instruction by the plaintiffs, the instruction would
have to constitute plain error before the Ninth Circuit
Court of Appeals could review it. Third, Drott argued
that any error in the causation instruction was harm-
less. Finally, Drott argued that there was substantial
evidence of comparative negligence. On April 18, 1986,
the Ninth Circuit Court of Appeals denied Drott’s
Petition for Rehearing. (App. 7a).
Drott now petitions the Court for a Writ of
Certiorari to review the decision of the Ninth Circuit
Court of Appeals. In this petition, it is asserted that
there was substantial evidence in support of the the-
ory of comparative negligence. Therefore, that issue
was properly submitted to the jury. The reversal by
the Court of Appeals for the Ninth Circuit abridges
Drott’s constitutional right to a jury trial. However,
even if a directed verdict on comparative negligence
were upheld, the comparative negligence theory did
not taint the jury’s consideration of causation. The
12
instructions as a whole properly informed the jury on
causation. Further, error in the instruction could not
be assigned where plaintiff failed to object. Finally,
the Ninth Circuit Court of Appeals ignored the Fed-
eral Rules of Civil Procedure in examining this issue.
For these reasons, the ruling on appeal to the Ninth
Circuit Court of Appeals must be reversed and the
original judgment reinstated.
REASONS FOR GRANTING THE PETITION
I. DROTT’S SEVENTH AMENDMENT RIGHT TO A
JURY TRIAL ON THE ISSUE OF COMPARATIVE
NEGLIGENCE WAS VIOLATED.
The Ninth Circuit Court of Appeals’ decision to take
the question of comparative negligence from the jury
denied Drott the right to a jury trial on that issue.
Federal subject matter jurisdiction in this case was
based on diversity of citizenship, 28 U.S.C. § 1332.
“This suit being in the federal courts by reason of
diversity of citizenship carried with it, of course, the
right to trial by jury.” Atlantic & Gulf Stevedores,
Inc. v. Ellerman Lines, 369 U.S. 355, 360 (1962).
The seventh amendment to the United States Con-
stitution provides that “‘no fact tried by a jury shall
be otherwise re-examined in any court of the United
States, than according to the rules of the common
law.” (App. 35a). It is the seventh amendment “that
fashions ‘the federal policy favoring jury decisions of
disputed fact questions.’”’ (Citations omitted). Atlantic
& Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S.
at 360.
“It is the jury, not the court, which is the fact-
finding body.” Tennant v. Peoria & Pekin Union Rail-
way Co., 321 U.S. 29, 35 (1943). The jury “weighs
SRA NB neal Wil vi Sa hee A iat Rake Diliol soa Lal vib edt! A
13
the contradictory evidence and inferences, judges the
credibility of witnesses, receives expert instructions,
and draws the ultimate conclusions as to the facts.
The very essence of its function is to select from
among conflicting inferences and conclusions that
which it considers most reasonable.’’ (Citations omit-
ted). 321 U.S. at 35.
“Courts are not free to reweigh the evidence and
set aside the jury verdict merely because the jury
could have drawn different inferences or conclusions
or because judges feel that other results are more
reasonable.’”’ 321 U.S. at 35; Sentilles v. Inter-Car-
ibbean Shipping Corp., 361 U.S. 107, 110 (1959). On
appeal, the reviewing court must view -the evidence
in the light most favorable to the prevailing party.
Rasmussen Driiling v. Kerr-McGee Nuclear Corp., 571
F.2d 1144 (10th Cir. 1978), cert. denied, 489 U.S. 862
(1978).
Only when there is a complete absence of
probative facts to support the conclusion
reached does reversible error appear. But
where, as here, there is an evidentiary basis
for the jury’s verdict, the jury is free to dis-
card or disbelieve whatever facts are incon-
sistent with its conclusion. And the appellate
court’s function is exhausted when that ev-
identiary basis becomes apparent, it being
immaterial that the court might draw a con-
trary inference or feel that another conclu-
sion is more reasonable.
Lavender v. Kurn, 327 U.S. 645, 653 (1946).
The Ninth Circuit Court of Appeals erred in holding
that sufficient evidence did not exist to require the
14
issue of Mr. Davidson’s comparative negligence to go
to the jury. Mr. Harold Radtke, an experienced crane
operator who was called by plaintiffs, testified that
two-biocking was a matter of concern to persons who
work on the ground around cranes. (App. 14a). Mr.
Ole Rohrbaugh, a co-worker of Mr. Davidson, testified
that persons on the ground do not get under crane
hooks when preparing loads for lifting, and when the
hooks are being lowered. (App. 9a). Mr. Davidson
himself was aware that two-blocking could occur with
hydraulic cranes. (App. 17a-18a). Six days before the
subject accident occurred, Mr. Davidson had attended
a job safety meeting where the topic of booming
cranes over workers’ heads was discussed. (App. 19a-
21a). Despite his knowledge of the danger presented
by two-blocking, Mr. Davidson stood directly beneath
the crane boom and was injured.
Further, the Ninth Circuit Court of Appeals erred
in hoiding that evidence of industry practice is con-
clusive on the issue of comparative negligence. The
court was required to apply Alaska substantive law
in this diversity action. Kabatoff v. Safeco Insurance
Co. of America, 627 F.2d 207, 209 (9th Cir. 1980). In
Alaska, comparative negligence is a defense in prod-
ucts liability cases when plaintiff uses the product
with knowledge of the defective condition. Butaud v.
Suburban Marine & Sporting Goods, Inc., 555 P.2d
42 (Alaska 1976). The evidence on record at trial of
this case amply supports Drott’s position that Mr.
Davidson knew of the potential dangers associated
with two-blocking, and was negligent in working di-
rectly beneath the crane boom.
Under Alaska law, evidence of compliance with in-
dustry-wide standards is not conclusive on the issue
15
of negligence. Sturm, Ruger & Co., Inc. v. Day, 594
P.2d 38, 45 (Alaska 1979). However, in reversing the
judgment below on the issue of comparative negli-
gence, the Ninth Circuit Court of Appeals relied heav-
ily on evidence which showed that “it is acceptable
industry practice to work under an unloaded hook.”’
(App. 2a). In effect, the Ninth Circuit Court of
Appeals held that industry practice was conclusive on
the issue of Davidson’s comparative negligence, and
that any evidence supporting the judgment against
plaintiffs on that issue was irrelevant. The Ninth Cir-
cuit Court of Appeals’ holding is directly contrary to
the substantive rule of Sturm, Ruger & Co. v. Day,
594 P.2d 38 (Alaska 1979).
Further, the Ninth Circuit Court of Appeals’ opin-
ion as to industry practice is contradicted by the tes-
timony of Mr. Rohrbaugh and Mr. Radtke that, as a
matter of industry practice relating to safety, con-
struction workers do not stand beneath the hook of
a crane when preparing a sling for a load. Indeed,
there is no reason whatsoever for a worker to stand
beneath the crane boom, except when attaching the
hook to the sling. Mr. Davidson could have performed
his job duties safely if he had merely stood aside while
the crane operator positioned the boom and lowered
the hook. The Ninth Circuit Court of Appeals failed
to view the evidence in the light most favorable to
Drott.
The Ninth Circuit Court of Appeals incorrectly re-
weighed the evidence presented at trial, and invaded
the exclusive fact-finding province of the jury. In
doing so, the court violated Drott’s right to a jury
trial on the issue of comparative negligence.
16
II. THE NINTH CIRCUIT COURT OF APPEALS
FAILED TO COMPLY WITH THE REQUIRE-
MENTS OF FED. R. CIV. P. 61 AND FED. R. CIV.
P. 51.
A. FED. R. CIV. P. 61.
At no point did the Ninth Circuit Court of Appeals
adequately consider the effect of Davidson’s failure
to object to the causation instruction. Further, any
error in the causation instruction was harmless under
Fed. R. Civ. P. 61.
The harmless error rule of Fed. R. Civ. P. 61 ap-
plies to jury instructions. Jiffy Markets, Inc. v. Vogel,
340 F.2d 495 (8th Cir. 1965). Fed. R. Civ. P. 61 pro-
vides that “[t]he court at every stage of the pro-
ceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights
of the parties.” Error is harmless if the jury was
sufficiently informed. Alloy International Co. v. Hoo-
ver-NSK Bearing Co., 685 F.2d 1222, 1226 (7th Cir.
1980). To determine whether the jury was sufficiently
informed, the court of appeals must analyze the jury
instructions as a whole. Moe v. Avions Marcel Das-
sault-Breguet Aviation, 727 F.2d 917, 926 (10th Cir.
1984); Alloy International Co. v. Hoover-NSK Bearing
Co., 6385 F.2d at 1226.
In the present case, the Ninth Circuit Court of
Appeals failed to review the jury instructions as a
whole. Rather, the court narrowly considered only the
first special verdict interrogatory. (App. 4a). When
the causation instructions are considered as a whole,
it becomes clear that the district court fully informed
the jury of all of the elements of proximate cause
under Alaska law.
ot
\
17
In Dura Corp. v. Harned, 703 P.2d 396, 406 (Alaska
1985), the Alaska Supreme Court applied the negli-
gence standard of proximate causation, and held that
“Ta] defendant’s design defect will be the legal or
proximate cause of the plaintiff's injury if the defec-
tive product was more likely than not a substantial
factor in bringing about the plaintiff's injury.” (Ci-
tation omitted). The Alaska Supreme Court had pre-
viously applied the substantial factor test in another
case involving strict liability in tort, Yukon Equip-
ment, Inc. v. Gordon, 660 P.2d 428, 483 (Alaska 1983)
(cited in Dura Corp. v. Harned, 703 P.2d at 406).
Further, in State v. Abbott, 498 P.2d 712, 727 (Alaska
1972), the court held that:
Normally, in order to satisfy the substantial
factor test it must be shown both that the
accident would not have happened ‘but for’
the defendant’s negligence and that the neg-
ligent act was so important in bringing about
the injury that reasonable men would regard
it as a cause and attach responsibility to it.
(Footnote omitted).
In this case, the district court instructed the jury
that:
A legal cause of damage is a cause which is
more likely than not a substantial factor in
bringing about plaintiff's inyuries. A defect
in a product is a substantial factor when it
is shown both that the accident would not have
happened but for the defect, and the defect was
so important in bringing about the injury
that reasonable men would regard it as a
cause and attach responsibility to the defect.
18
This does not mean that the law recognizes
only one legal cause of an injury or a dam-
age, consisting of only one factor, or thing,
or conduct of only one person. On the con-
trary, many factors or things, or the conduct
of two or more persons may operate at the
same time, either independently, or together
to cause injury or damage, and in such a
case, each may be a legal cause.
Manufacturers are not absolute insurers of
their products. The law will not impose legal
responsibility simply because a product causes
harm. If the accident was caused solely be-
cause of the substitution of the chain for the
ball, that is the same as to say that the de-
sign did not cause the accident, and your
answer to question number one would be no.
The same would be true if the operator’s
negligence was the sole cause, or if the
plaintiff's own negligence was the sole cause.
A different rule applies if the defective de-
sign was a part of the cause, and one of these
other events were also a part of the cause.
In that case, each would be a legal cause.
(Emphasis added).
(App. 30a). Clearly, considering the instructions as a
whole, there was no reversible error. The district
court’s instructions correctly stated the substantial
factor test for causation under Alaska law. The in-
structions were not incomplete or misleading.
A detailed discussion of the harmless error rule
under Alaska law is found in the case of Love v. State,
457 P.2d 622 (Alaska 1969). Although the discussion
19
arises in the context of a criminal case, the reasoning
is sound and is applicable to the present case. The
Love court said that:
The pivotal question is what the error might
have meant to the jury. Our function is to
consider not how the error would have af-
fected us if we had tried the case, but how
it may have affected a jury of reasonable
laymen. It is the impact on their minds which
is critical in determining whether an error
impaired or affected the substantial interest
of the defendant in having a fair trial.
457 P.2d at 630. The court’s analysis further indicated
what the reviewing court must itself do in weighing
the issue of harmless error:
‘(H]ad the error pointed out not been com-
mitted is there reasonable probability that the
verdict might have been different? In an-
swering this question, the members of this
court must necessarily put themselves, as
nearly as possible, in the position of the jury
in order to determine whether, as reasonable
men, the error committed probably affected
their verdict.’
457 P.2d at 631 n. 15, quoting State v. Dutton, 83
Ariz. 198, 318 P.2d 667, 671 (Ariz. 1957).
The Ninth Circuit Court of Appeals’ own analysis
shows that the jury could not have considered the
issue of comparative negligence when it answered
“No” to the subject causation interrogatory. The court
held that any error committed by the district court
in failing to grant a directed verdict in Davidson’s
favor on the issue of comparative negligence ‘‘was
20
harmless because the jury did not reach the issue of
comparative negligence.” (App. 3a). Further, the
Ninth Circuit Court of Appeals said that “[t]here is
no evidence in the record from which a reasonable
juror could find that Davidson was [comparatively]
negligent.” (App. 2a). Assuming for purposes of ar-
gument that the court was correct, the issue of com-
parative negligence simply could not have affected the
jury’s determination of whether the crane was defec-
tive, or whether the alleged defect caused the acci-
dent. Accordingly, the Ninth Circuit Court of Appeals
erred in holding that the causation instructions did
not constitute harmless error.
B. FED. R. CIV. P. 51.
The Ninth Circuit Court of Appeals failed to comply
with the requirements of Fed. R. Civ. P. 51 when it
reviewed the jury instructions regarding causation.
This permitted the court to erroneously hold that the
causation instruction constituted reversible error.
Fed. R. Civ. P. 51 states the requirements for ob-
jections to jury instructions. Rule 51 p» ovides:
At the close of the evidence or at such earlier
time during the trial as the court reasonably
directs, any party may file written requests
that the court instruct the jury on the law
as set forth in the requests. The court shall
inform counsel of its proposed action upon
the requests prior to their arguments to the
jury, but the court shall instruct the jury
after the arguments are completed. No party
may assign as error the giving or the failure
to give an instruction «nless he objects thereto
before the jury retires to consider its verdict,
21
stating distinctly the matter to which he ob-
jects and the grounds of his objection. Op-
portunity shall be given to make the objection
out of the hearing of the jury. (Emphasis
added).
Federal Courts have analyzed Rule 51 with Fed. R.
Civ. P. 46. Appellant still must make an objection in
some form at trial before he may urge as error on
appeal the giving of an instruction. Pierce Packing
Co. v. John Morrell & Co., 633 F.2d 1362 (9th Cir.
1980); 5A J. Moore, Moore’s Federal Practice, ¢ 51.04
(2d ed. 1976). Appellant must still state ‘distinctly the
matter to which he objects and the grounds of his
objection.” Fed. R. Civ. P. 51; Hageman v. Signal
L.P. Gas, Inc., 486 F.2d 479, 485 (6th Cir. 1973). The
purpose of Rule 51 is to “prevent unnecessary new
trials caused by errors in instructions that the district
court could have corrected if they had been brought to
its attention at the proper time. ...” (Emphasis
added). Brown v. Avemco Investment Corp., 603 F.2d
1367, 1371 (9th Cir. 1979) (quoting Robinson v. Heil-
man, 563 F.2d 1304 (9th Cir. 1977)). In addition, a
Rule 51 objection permits the court to reconsider its
earlier decision, and perhaps correct that decision.
Clary Insurance Agency v. Doyle, 620 P.2d 194
(Alaska 1980). The mere fact that the court is gen-
erally aware of plaintiff's position on an issue does
not excuse the failure to object. Ollice v. Alyeska
Pipeline Service Co., 659 P.2d 1182 (Alaska 1983).
In the present case, “Davidson did not object in
the district court to the [causation] instruction” that
he assigned as error on appeal. (App. 3a). The Ninth
Circuit Court of Appeals noted that, ordinarily, it
would not review the district court’s jury instructions
22
unless appellant had raised a specific objection to the
instructions at trial. (App. 2a-3a). However, the court
chose to review the causation interrogatory because
(1) at the close of evidence, Davidson moved for a
directed verdict on the issue of comparative negli-
gence; (2) Davidson ‘objected to Drott’s proposed jury
instruction regarding comparative negligence;”’ and
(3) the district court ‘‘sua sponte amplified on that
instruction orally, and in doing so introduced the issue
of Davidson’s negligence.” (App. 3a-4a). The court’s
belief that the instruction was given sua sponte was
erroneous, as discussed below. More importantly, the
Ninth Circuit Court of Appeals ignored Fed. R. Civ.
P. 51. The exception to that rule, relied upon by the
Ninth Circuit Court of Appeals, is “narrow” and only
“rarely applied.’”’ Murphy v. Owens-Illinois, Inc., 779
F.2d 340, 346 (6th Cir. 1985). The exception is trig-
gered only where objection would have been a mere
formality and where the error was “‘obvious and prej-
udicial.’”’ 779 F.2d at 346. Here, the exception does
not apply.
The requirement for an objection is not a mere
procedural technicality. Clary Insurance Agency v.
Doyle, 620 P.2d 194 (Alaska 1980); Ollice v. Alyeska
Pipeline Service Co., 659 P.2d 1182 (Alaska 1983). The
court must be adequately informed of the objecting
party’s position. Moe v. Avions Marcel Dassault-Bre-
guet Aviation, 727 F.2d 917, 924 (10th Cir. 1984); 5A
J. Moore, Moore’s Federal Practice, 451.04 (2d ed.
1976). ‘Properly objecting, far from being a formality,
‘would have fulfilled the basic purpose of Rule 51 by
alerting the trial judge to a potential problem area,
and would have aided him in his effort to clearly and
correctly instruct the jury’.”” Murphy v. Owens-Illi-
23
nois, Inc., 779 F.2d at 346 (quoting Batesole v. Strat-
ford, 505 F.2d 804, 810 (6th Cir. 1974)). In the present
case, Davidson never objected to the form of the sub-
ject interrogatory. There is nothing in the record to
show that the district court was put on notice of a
structural flaw in the instruction. The confusion that
the Ninth Circuit Court of Appeals noted could have
been cured if Davidson had made such an objection.
Therefore, Davidson invited the error in the causation
instruction. Accord DeLand v. Old Republic Life In-
surance Co., 758 F.2d 1331 (9th Cir. 1985).
The Ninth Circuit Court of Appeals also apparently
believed that Davidson was not afforded sufficient
time in which to object to the causation instruction
because ‘‘[t]he court sua sponte amplified on that in-
struction orally and in doing so introduced the issue
of Davidson’s negligence.” (App. 4a). A careful review
of the record, however, shows that the district court
did not in fact modify the causation instruction sua
sponte. On October 2, 1984, the district court discussed
the identical causation question with counsel for Mr.
Davidson and counsel for Drott. (App. 27a). At that
time, the court stated verbatim the jury instruction
that was eventually given on October 3, 1984, in which
comparative negligence was discussed in the context
of the first interrogatory. (App. 30a). However, Mr.
Davidson failed to object on October 2, 1984 to the
inclusion of comparative negligence language in the
causation instruction. He again failed to object on
October 3, 1984. Davidson was afforded more than
sufficient time to object. His failure to do so precluded
an appeal regarding the district court’s causation in-
structions.
24
Further, it is by no means certain that the district
court would have rejected out of hand an objection
by Davidson. This is true since (1) the court had de-
clined to instruct on Drott’s requested instructions on
superseding and intervening cause, and (2) even in
the context of the directed verdict motion on com-
parative negligence, the court considered it to be a
close question. (App. 27a-28a). However, the judge
was never given the chance to consider the question.
The alleged defect in the instruction which the Dav-
idsons claim is error was not brought to the attention
of the district court either on October 2, 1984 when
it was discussed, or on October 3, 1984. Objection is
required before the Ninth Circuit Court of Appeais
may review the issue. Fed. R. Civ. P. 51.
As a final matter, the Ninth Circuit Court of
Appeals did not determine whether there was plain
error in the jury instructions as a whole before it
reviewed those instructions and rendered its decision.
Indeed, the Ninth Circuit Court of Appeals has in the
past stated that it does not apply the plain error
analysis in civil cases when appellant fails to present
his objection before the district court. Pierce Packing
Co. v. John Morrell & Co., 633 F.2d 1362 (9th Cir.
1980).
The Ninth Circuit Court of Appeals’ position on this
issue directly conflicts with the decisions of numerous
other federal courts. The Fifth Circuit Court of
Appeals has held that Fed. R. Civ. P. 51 requires
application of the plain error standard where appel-
lant fails to object to the subject jury instruction at
the trial level. Ramada Dev. Co. v. Rauch, 644 F.2d
1097, 1102 (5th Cir. 1981). Similarly, in Moe v. Avions
Marcel Dassault-Breqguet Aviation, 727 F.2d 917, 924
25
(10th Cir. 1984), the court held that it would ‘“‘not
review instructions given to which no objections were
lodged before the jury retired for deliberation unless
they are patently plainly erroneous and prejudicial.”
In this regard, the Seventh Circuit Court of Appeals
_ noted, in Shearson Hayden Stone, Inc. v. Leach, 583
F.2d 367, 370 (7th Cir. 1978) that ‘‘although this court
has the power to reverse for plain error in an in-
struction to which no party specifically objected, this
power is exercised only in very rare circumstances
where necessary to prevent a miscarriage of justice.”
(Citations omitted).
In the case at bar, the causation instructions did
not cause a miscarriage of justice. The Ninth Circuit
Court of Appeals specifically held that ‘‘there is no
evidence in the record from which a reasonable juror
could find that Davidson was negligent.’’ (App. 2a).
Assuming that the Ninth Circuit Court of Appeals is
correct, the jury could not have considered compar-
ative negligence in deciding the issue of causation.
Any error was therefore harmless. The Ninth Circuit
Court of Appeals erred in failing to conduct a thor-
ough “plain error’ analysis.
26
CONCLUSION
The Petition for a Writ of Certiorari should be
granted.
July, 1986
Respectfully submitted.
DAVID H. THORSNESS
HUGHES, THORSNESS, GANTZ,
POWELL & BRUNDIN
Attorneys for Petitioner
Drott Manufacturing Corp.
APPENDIX
TABLE OF CONTENTS
Page
Appendix A (court of appeals’ memorandum opinion,
filed on January 28, 1986) ...........cssessssssrreeeees la
Appendix B (court of appeals’ judgment, filed and
entered on January 28, 1986) ou... eee 6a
Appendix C (court of appeals’ order denying Appel-
lee Drott Manufacturing Corporation’s Petition
Pe IEEE | <eadcsunngstepicniantindiemnasaasibaiennes 7a
Appendix D (trial testimony of Ole Rohrbaugh, pages
2-135, 2-142, 2-143, 2-144, 2-145, 2-147) ........ 8a
Appendix E (trial testimony of Harold Radtke, page
PUEIEET © Sitobinahiciandndeauiecai Neadesianmuscatbinnadchadibioisassnniatce l4a
Appendix F (trial testimony of James Lassiter, pages
PN UP UEE Sicknisatenbsliceeniisanceetaorinanlaon 15a
Appendix G (trial testimony of Dan Davidson, pages
4-152, 4-158, 4-155, 4-156, 4-157, 4-160, 4-161,
SAGE, STEER, G1G6, S1GG ccsccsccsnsscccsesnecscsssssese 17a
Appendix H (trial transcript, pages 6-133, 6-141, 6-
BE PR Foy WR UR EOE hase cidnesnnnsancersessnacanss 27a
Appendix I (district court clerk’s certificate of re-
GS, De neces cect tat bacendaninctitccnnesicinis 33a
Appendix J (seventh amendment to the Constitution
of the United States of America) _.................. 35a
Appendix K (Petition for Rehearing of Drott Man-
AERC COPROTUEION) — <....ccsscssosseneccsssaresersseren 36a
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 85-3537
DC No. CV 81-399 RCB
DAN Davipson and PEeccy DAVIDSON,
Plaintiffs-Appellants,
Vv.
Drott MANUFACTURING CORPORATION,
Defendant-A ppellee.
FILED
JAN 28 1986
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Honorable Robert C. Belloni, District Judge, Presiding
Argued and Submitted January 6, 1986
Scattle, Washington
Before: WRIGHT, CANBY and WIGGINS, Circuit Judges
Dan and Peggy Davidson (Davidson) appeal from a judg-
ment following a jury verdict in favor of Drott Manufac-
turing Corporation (Drott) in their diversity action against
Drott. Dan was injured when a cable on a crane manu-
factured by Drott broke, causing a chain to fall on him
at a construction site where he was working.
* This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by 9th Cir.
R. 21.
2a
Davidson assigns error to a jury instruction given by
the district court. The challenged instruction was given
concerning the first question on the verdict form: “Did
the plaintiff, Dan Davidson, prove that the crane’s design
legally caused his injury?” The court instructed the jury
that it should answer ‘‘no”’ to this question if, among other
possibilities, it found that Davidson’s own negligence was
the sole cause of the accident.
In assessing jury instructions, we consider the charge
as a whole to determine whether it is misleading or mis-
states the law to the prejudice of the objecting party.
Smiddy v Varney, 665 F.2d 261, 265 (9th Cir. 1981), cert.
denied, 459 U.S. 829 (1982). We do not reverse a district
court’s decision in a civil trial because of erroneous jury
instructions if the instructions as given are more probably
harmless than not. Haddad v. Lockheed California Corp.,
720 F.2d 1454, 1459 (9th Cir. 1983).
This appeal presents two issues for our consideration.
First, was it error for the district court to instruct the
jury that it might find Davidson’s negligence to be the
sole cause of his injuries? Second, if the instruction was
error, may we reverse based on that error?
Our review of the record indicates that it clearly was
error for the district court to instruct the jury that Dav-
idson’s negligence might be the sole cause of his injuries.
Davidson is correct in his contention that he was entitled
to a directed verdict on that issue. There is no evidence
in the record from which a reasonable juror could find
that Davidson was negligent. All of the testimony indicates
that it is acceptable industry practice to work under an
unloaded hook. Indeed, it would be impractical for a rigger
to perform his job in any way other than as Davidson was
performing it at the time he was injured.
Having established that it was error to give this in-
struction, we must now determine whether we may reverse
based on that error. We will ordinarily review a district
3a
court’s jury instructions only if there is a specific objection
in the district court to the instruction as given. Fed. R.
Civ. P. 51; see Pierce Packing Co. v. John Morrell & Co.,
633 F.2d 1362, 1365 (9th Cir. 1980). However, we will
review an instruction that was not objected to if the trial
court was aware of the party’s position and if it is obvious
that an objection would have been useless. Brown v. Av-
emco Investment Corp., 603 F.2d 1367, 1370 (9th Cir. 1979).
Davidson did not object in the district court to the in-
struction that he now assigns as error. Therefore, we may
review that instruction only if the district court was aware
of Davidson’s position on this issue and if an objection
would have been useless.
The district court was clearly aware of Davidson’s po-
sition on the question of his negligence. At the close of
the evidence Davidson moved for a directed verdict on the
issue of comparative negligence. The court denied that
motion. Davidson made his position clear again when he
objected to Drott’s proposed jury instruction regarding
comparative negligence. He specifically argued that no in-
struction should be given on comparative negligence be-
cause there was no evidence to support a jury finding that
he had been negligent. The court rejected this objection.’
Later, in its instruction on causation, the court in-
structed the jury that it could find that Davidson’s neg-
ligence was the sole cause of the accident. That instruction
permitted the jury to conclude that Drott’s design defect
was not a cause of the injury because Davidson’s negli-
gence was the sole cause. There was no support in the
record for such a finding.
' Davidson claims that it was error for the district court to deny his
motion for a directed verdict on the issue of comparative negligence
and for it to give a jury instruction on comparative negligence. Any
error committed by the district court in this regard was harmless be-
cause the jury did not reach the issue of comparative negligence.
4a
At the time it gave this instruction, the court was fully
aware of Davidson’s position on the issue of his own neg-
ligence. It would have been useless for Davidson to object
to this jury instruction at the time it was given. The court
had already rejected a motion and an objection based on
the same reasoning. It had made clear that it did not agree
that there was no evidence that Davidson had been neg-
ligent. Moreover, Davidson’s failure to object under the
circumstances here can be traced in part to the fact that
the objectionable language regarding his negligence was
not part of the printed instructions that had previously
been approved. The approved instruction was on causation.
The court sua sponte amplified on that instruction orally
and in doing so introduced the issue of Davidson’s negli-
gence. All of these circumstances argue that appellate re-
view is appropriate.
We next consider whether the jury instruction as given
was more probably harmless than not. See Haddad, 720
F.2d at 1459. We conclude that it was not.
Given the manner in which the first question on the
special verdict form was phrased, it is impossible for us
to determine what the jury based its decision on. The first
question on the form asked the jury to decide essentially
two questions. First, was there a design defect? Second,
if there was a defect, did that defect cause the injury?
We have no way of knowing which of these questions the
jury answered when it answered “‘no” to question number
one. Further, if the jury intended to answer the second
question, we have no way of knowing whether it answered
“no” because it found, in reliance on the oral explanation
of the causation instruction, that Davidson’s negligence,
rather than the defect, was the sole cause of the injury.
This confusion would have been avoided if the district court
had clearly separated the issues of a design defect and of
causation on the special verdict form.
5a
The issue of Davidson’s negligence was clearly presented
to the jury in the district court. At oral argument in this
court, Drott indicated that it had two defenses at trial:
(1) that there was no design defect and (2) that Davidson
was comparatively negligent. We are satisfied that Dav-
idson’s negligence was made an issue at trial and was
emphasised by Drott.
For the forgoing reasons we find that the instruction
as given by the district court was not harmless. We there-
fore REVERSE and REMAND for a new trial not incon-
sistent with this opinion.
In light of our disposition of this case, Davidson’s appeal
was clearly not frivolous. Drott’s request for attorney’s
fees is DENIED.
6a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 85-3537
CV-81-399-RCB
DAN DAVIDSON and PEGGY DAVIDSON,
Plaintiffs-A ppellants,
vs.
DROTT MANUFACTURING CORPORATION,
Defendant-A ppellee.
FILED
Jan. 28, 1986
APPEAL from the United States District Court for the
ANCHORAGE District of ALASKA
THIS CAUSE came on to be heard on the Transcript
of the Record from the United States District Court for
the ANCHORAGE District of ALASKA and was duly sub-
mitted.
ON CONSIDERATION WHEREOF, It is now here or-
dered and adjudged by this Court, that the judgment of
the said District Court in this Cause be, and hereby is
REVERSED and REMANDED. Drott’s request for
attorney’s fees is DENIED.
cy, L. Ames Luce
William D. Artus
David Thorsness
Judge Belloni
ia ee te
7a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 85-3537
DC No. CV 81-399 RCB
DAN DAVIDSON and PEGGY DAVIDSON,
Plaintiffs-Appellants,
We
DrotT MANUFACTURING CORPORATION,
Defendant-A ppellee.
FILED
APR 18 1986
ORDER
Before: WRIGHT, CANBY and WIGGINS, Circuit Judges
Appellee’s petition for rehearing is denied.
8a
APPENDIX D
Rohrbraugh— Direct
August of 1979?
A Yes.
Q And sir, could you tell us what you were doing there?
A I was employed for ACI as a pile driver, rigger.
Q Some of the jury may not know what a pile driver
rigger is, sir, could you tell us?
A Well, we build docks, bridges, wharfs, we drive piling
which can consist of concrete, metal, wood, jobs as a rig-
ger.
Q Are you frequently around, and have materials moved
by cranes?
A Yes.
Q And are you required to rig cranes?
A Yes.
Q Now, you’ve got another trade, you indicated, what’s
that?
A Sheet metal.
Q All right. Tell us what you do with that trade?
A Well, it’s ventilation, heating, air conditioning.
Q In that trade, sir, are you required to be around various
types of cranes?
A Yes.
Q And do you do rigging as a—
A Yes, I do.
Q Sir, in your experience, is it normal practice in your
trade to work under an unloaded hook—
9a
*_* *
MR. PETERSON: I’d like permission to approach the
witness with a copy of his deposition at this time.
THE COURT: All right.
(Peterson approaches witness.)
BY MR. PETERSON:
Q Sir, I’d like to refer you, please, to page 50 of your
deposition, regarding a general discussion about standing
underneath the hook and the load. I’d like to put to you
the question, and I’d like for you to read to the jury your
answer that you gave at the time of the deposition.
A You want me to read this?
Q I'll ask you the question that was asked in the depo-
sition, and I would like you to read to the jury the answer
that you gave at that time. Let me start here:
“Question: Let me clarify the situation. I’m talking
about if you’re preparing the sling, and are lowering
the hooks to hook up,”’ and what was your answer?
A “You don’t get under it, no.”’
“Question: And that is a fact of common safety?”
A “Ves.”’
Q Thank you.
MR. PETERSON: At this time, Your Honor, I’d like to
inquire regarding the safety meeting notes.
THE COURT: Go ahead.
BY MR. PETERSON:
Q Sir, can you tell us what the practice was with ACI on
Adak Island regarding safety meetings?
MR. LUCE: Objection, it’s not relevant.
10a
MR. PETERSON: I would argue that it is relevant,
Your Honor, specifically with respect to the comparative
negligence claim. The matter of standing underneath the
cranes and hooks was, in fact, the subject of the safety
meetings, and this witness was in attendance along with
Mr. Davidson.
MR. LUCE: Your Honor, that’s a representation that
I believe is inaccurate, but if he can éstablish that testi-
mony—
THE COURT: The objection is overruled.
BY MR. PETERSON:
Q It’s correct, is it not, sir, that there was a safety meet-
ing every Monday, out on Adak?
~
A Monday, yes, say Monday, once a week, whatever the
day.
Q And what was the general procedure of that meeting?
A Just safety, be safety conscious on a job, if you've seen
something that was not safe, you would either report it
to your foreman, or take care of it yourself, and then
report it.
Q And was there an agenda of items, safety items, that
was written out at each meeting?
A Usually.
Q And were you required to sign a sign-up sheet if you
were attending that meeting?
A Yes.
Q I would like to have the witness examine please, Exhibit
11. Sir, can you examine that document and tell us whether
you find your signature anywhere within that document?
A (Witness examines document.) Yes.
Q And where does your signature appear?
lla
A On the first page of—the signature is on line—on the
12th line.
Q And you were required to sign up on that sheet at the
time of the safety meeting, is that correct?
A As much as I can recollect, yes.
MR. PETERSON: I’d like to offer this in evidence at
this time, Your Honor.
MR. LUCE: Your Honor, unless Mr. Peterson can es-
tablish that what he said is correct, there’s nothing in this
safety meeting that I can find, do you find anything Mr.
Peterson, that shows anything about not working under
a hook?
BY MR. PETERSON:
Q Sir, I'd like you to please refer to the second page of
the safety meeting—first of all, what is the date reflected
within that document?
A 7-30-79.
Q Was it the practice to discuss the items which appeared
on the agenda?
A Yes.
Q Would you please look at page 2 of that document, the
fourth item which appears there.
A Which item, sir?
Q The fourth item down on the second page.
A It says, “keep work area clear.”
Q The next one beyond that please.
A What page are you on?
Q The second page of the document, down, the fourth
item on there, after it says the heading, ‘‘safety meeting.”
A Let me see, I’m going—the first one is—
12a
Q Where it says ‘make al! men. ..,’’ do you see that, sir?
A Make all men aware? All right, now which one do you
want me to read?
Q That one that you just referred to.
A “Make all men aware when pouring concrete and mov-
ing crane over the heads of men.”
Q That was actually discussed as a safety item just in the
week prior to Mr. Davidson’s accident, was it not?
A Yes.
question.
MR. PETERSON: That’s all the questions I have, thank
you.
THE COURT: So, call the next.
MR. LUCE: Your Honor, was that exhibit admitted into
evidence?
THE COURT: It was.
(Defendant Exhibit No. 11 was thereupon
admitted in evidence.)
MR. LUCE: At this time, Your Honor, we are going
to call Peter Esser. He will be by television deposition.
Mr. Esser is the president—or American representative
and president of Krueger Crane Systems. His deposition
was taken at the Watch Tower Inn (sic) in Illinois.
THE COURT: All right.
VIDEOTAPE DEPOSITION OF PETER ESSER
rae ee ee a a eee eee
13a
“MR. LUCE: This is the time that has been scheduled
for the deposition of Peter Esser in the case of Davidson
VY. Drott. My name is L. Ames Luce. I am plaintiffs’
attorney representing the Davidsons.
“Matt Peterson is here on behalf of Drott. Mr. Peter
Esser is here pursuant to federal subpoena which has a
duces tecum requiring him to bring certain materials and
objects to the deposition. This deposition is being
** *
l4a
APPENDIX E
Radtke—Cross
Q But nevertheless, they are experienced operators on
these large construction cranes?
A Yes.
Q And those operators understand that you should not
two-block a crane?
A Yes.
Q In fact, it’s a matter of pride among the operators, isn’t
it, not to two-block a crane?
A Well, it’s awfully embarrassing, for one thing.
Q And it’s a matter of concern to the people down on the
ground working around the crane, isn’t it?
A Definitely.
Q Sir, regarding knowledge of two-blocking, have you seen
warnings in cabs regarding lowering the line while ex-
tending the boom?
A Most of them will have a warning up there that you
have to—when you extend the boom, you've got to let
your load down at the same time.
Q Ali right. But in your case, and with the other expe-
rienced operators, you already know that you should not
two-block.
A Yes.
Q And do you recall in your depositien you testified that
the warning would not make any difference since you al-
ready
A Yes, I have.
Q Could you tell us approximately how many hours, ap-
proximately, of hydraulic crane operation you have?
A Oh, somewhere between 5 and 10,000 hours.
Q Sir, were you at Adak, Alaska during August of 1979?
A Yes.
Q Would you tell the members of the jury why you were
there?
A We were rebuilding a dock, and building a new dock.
Q And you were there as a member of the Operating
F ngineers?
A Yes.
Q And what specific job did you have, sir?
A I was operating a crane.
Q And could you tell us what type?
A Well, there were two types there, one was a 20 ton
Lorain, and one was a 25 ton Drott.
Q And sir, during the time that you were there, did—
were you involved in an incident with the Drott crane?
A Yes, I was.
Q And could you, to the best of your recollection, I realize
it’s been a while, could you go back for us, and in your
mind’s eye, could you relate for us what occurred?
A I two-blocked the whip line, which is the light load line,
I two-blocked that with the boom, and the ball came off
the line and fell into the ocean.
l6a
Q What were you doing just before that time with the
crane?
A I was working over the edge of the dock, picking up
a work platform that men worked on, and that I couldn’t
see, and picking it up so that it would come over and rest
on the dock.
Q Now, at the time you indicated you two-blocked the
crane what, if any activity, were you doing at the time?
A I was extending the boom.
Q Now, as you were extending the boom, what occurred?
A Well, the boom was going out, and the line came in
with the headache ball, and the ball came off the line and
fell into the ocean.
Q Now, did you have a chance to examine the whip line
after that incident occurred?
A Yes.
Q And could you tell us, sir, had it broken, or had it pulled
out of a defective clamp?
A Pulled out of a defective clamp.
Q Was that crane re-rigged and used—
A Yes, it was.
Q —after that?
A Yes, it was.
Q Sir, have you, during your experience, ever used a
’-* +
17a
APPENDIX G
Davidson—Cross
A I’ve been called out as a welder to weld up the rollers
on a crusher.
Q So you have welding skills, don’t you?
A I have welding skills I picked up on my own, yes, I do.
Q All right. What else have you been called out to do?
A As a mechanic, welder, as a concrete pump operator.
Q Anything else?
A Yes, as a dozer operator.
Q Anything else?
A As a crane—not as a crane operator, but I have operated
a crane.
Q You have operated a crane, haven’t you.
A Yes, sir, oh, yes.
Q And you've operated hydraulic cranes?
A Oh, yes.
THE COURT: There will be a recess now for 10 min-
utes.
(Court recessed at 2:58 p.m. until 3:12 p.m.)
THE COURT: Continue.
BY MR. PETERSON:
Q Mr. Davidson, you have been a crane operator for the
operating engineers?
A Yes.
Q And you’ve operated hydraulic cranes, haven’t you?
A Yes, sir.
18a
Q You’re aware of the potential for two-blocking, aren’t
you?
A Yes, sir.
Q And you’re also aware as an operator that you have
the responsibility to avoid that condition, don’t you?
A Yes, sir.
Q Now, on this particular job with ACI out on Adak, what
exactly was your job out there?
A My job was concrete pump operator, which they only
ran about two to three days a week.
Q And so did you only work two to three days a week?
A No, I was running cranes the rest of the time.
Q Oh, you were running cranes out there.
“ Yes, sir.
Q All right. Let’s talk about the concrete pump just for
a moment. Can you describe for the jury what it looks
like?
A A concrete pump is approximately five or six feet high,
it’s about—approximately 10, 12 feet long. It has a—what
you call a hopper on it with a mixer inside that hopper.
The guy batches the cement over here, the concrete pump
is set up next to the batch plant where when this guy
gets through mixing the cement, he pushes another large
button, and this bug drum, just like the ones you see on
the cement trucks running around town, and then the
+++
Q What’s the date at the top of that page?
A July the 30th, ‘79.
Q And what appears on that page, generally?
A Names of workers.
19a
Q Do you see your signature on that page?
A I see mine—not on the first page, I don’t.
Q Take a look, about the fifth one up from the bottom.
A On the third page?
Q Right, the first page of signatures, third page of the
document.
A Okay, I see it now, boy there’s 2 lot of chicken scratch-
ing there.
Q That’s your signature, isn’t it, there?
A Yes, sir.
Q And there’s other signatures such as George Barnett,
Ole Rohrbraugh, and other people that you worked with?
A Yes, sir, they are.
Q Is that a sign-up sheet for a safety meeting that was
held?
A Yes, sir.
Q And July 30, of ‘79, that was just within the same week
before your accident, wasn’t it?
A I believe that was the morning of my accident.
Q Okay. Your accident was August 6th, 1979?
A I’m sorry. It wasn’t the morning of the accident. It was
August the 6th, my accident was.
Q All right. You were present at that meeting, weren't
you?
A Yes, sir.
Q And do the first two pages represent kind of a list or
agenda of items to talk about?
A The first two pages?
20a
Q Right.
A Yes, sir.
Q Now, taking a look at the first page where it says 7-
30-79, safety notes, do you see the second item there where
it says watch out for concrete hoses while pumping?
A Yes, sir.
Q Is that something that you raised as a concern at the
meeting?
A Watch out for concrete hoses while pumping?
Q Right.
A That would have been the people on the dock to watch
out, because they used the crane on the dock to swing
the hose around to dump the concrete in the forms.
Q All right. So that was discussed at that meeting about
watching out when there was moving machinery around
the concrete?
A No, sir, the hose was buried under the road.
Q But there was a discussion about watching out when
the crane was moving.
A Oh, yes, sir, there was a discussion, talking about out
on the dock.
Q Now, you were running the concrete pump at that time?
A Yes, sir.
Q And concrete hose really is a part of your equipment,
is it not?
A No, sir, that is a laborer’s department.
Q All right. Would you refer please to the second page
where it says safety meeting, 7-30-79.
A Yes, sir.
2la
Q Do you see where it says, ‘‘make all men aware when
pumping concrete and booming crane over the heads of
men.”
A That’s correct.
Q That was something that was discussed at that meeting,
was it not?
A Correct.
Q How was the concrete pump set up? I guess maybe I
would like you to describe how it was sitting, and what
equipment was around it at the time of your accident.
A If I remember correctly, the batch plant was setting
there. You had equipment moving around all over the place.
About 200 foot, possibly, or farther, they had a crane set
up with a—that would pick up the hose and guide it around
for the guys.
** *
A Yes, sir, I got there 7:00 o’clock, approximately. Well,
when the bus got up there, it was probably about five
minutes to 7:00.
Q And you figured this might probably take a while, or
a day or so to fix this thing?
A We figured—I got the—we sort of figured it would take
a day, a day and a half, if we had to order parts, it would
be a week.
Q So there was really no immediate rush to get that thing
moved out of the way.
A Oh, no, sir.
Q Mr. Branin was operating the Drott 2500 on the day
of the accident?
A I didn’t know Mr. Branin’s name at the time, I do now.
Q Where had the Drott 2500 been stored?
22a
A The first time that morning when I saw the Drott 2500,
it was—would have been on my left if I were facing the
road out in front. Say this is the pump facing the road
here, I would have been standing here, and if I had turned
around, he would have been directly on my left.
Q The crane was typically stored in some specific area
after each shift, wasn’t it?
A It was parked, when the night shift left it, as far as I
know.
Q And the operator had to bring the crane from where
it was parked, over to where the pump was.
A Well, if I remember correctly, they were a ditch—they
had dug a ditch across the road for some reason, I think
it was electrical, or something, they had to bury electrical
cables, or something. The ditch was left open and hadn’t
been filled in. The crane pulled up, come in from my left
at the time. George Barnett talked to the crane operator
that we—where we was going to set the pump. The crane
would not have been able to reach the position, or where
we were going to set it.
So the crane couldn’t corne across the ditch, it was too
deep and wide, so George was not watching him point,
pointed to the crane to go around that building, and come
on this side of the ditch.
Q Was the crane going to lift the concrete pump, then
move it, and set it over while the crane stayed stationary
in the same position?
A He was going to set up back here alongside the batch
plant, the best I can remember, and put out his outriggers,
swing over and pick up the pump, swing the pump from
here approximately to the right rear of the equipment, the
crane.
Q You were aware when the crane came up and then
stopped next to the pump?
23a
A I saw the crane come up and stop.
Q And you were about six feet high off the ground at
that time?
A I wouldn’t swear I was six feet, five feet. It was up
off the ground over five feet.
Q And does the operator in that crane sit up about the
same level?
A I would say yes, he would be approximately the same
level as me.
Q And so the boom is at that level or somewhat higher
than that, isn’t it?
A Yes, sir, um-hmm.
Q You were aware that the boom swung over towards the
pump, weren’t you?
A No, sir, I never saw the boom swing over to the pump.
Q That wasn’t my question, sir, you were aware of it
swinging over.
A Oh, I was aware of it, that he was eventually going to
wing over and pick it up, yes, sir.
MR. PETERSON: Counsel, I’d like to have the witness
shown a copy of his deposition, number one, if we could.
MR. LUCE: Are you talking to me?
MR. PETERSON: Yes, do you have a copy of that?
MR. LUCE: I’m going to be using ours. If the court
has a copy, maybe you could show him yours.
MR. PETERSON: I can just show him mine, if that’s—
if I might approach the witness, Your Honor.
THE COURT: Yes.
BY MR. PETERSON:
24a
Q All right, Mr. Davidson, you recall I took your deposition
about a year and a half ago in this case?
A It’s been quite a while.
Q And you were under oath at that time, weren’t you?
A And we discussed in detail the day of the accident, and
a number of other things, didn’t we?
A I’m sure we did.
Q All right. I’m going to show you the—I’m just going
to read my questions and your answers at the time of the
deposition, starting at page 95, line—well, let’s start at
line 18 for a little background.
“Question: Were you actually all the way on top of the
concrete pump at the moment the crane stopped?
““Answer: Yes.
“Question: Did the boom of the crane move at any time
after the crane came to a stop by the concrete pump?
“Answer: Yes.
“Question: Okay. Which direction did it move?
Your answer was: ‘‘He had swung it to his left.
My question: ‘‘To his left, towards the concrete pump?
“Answer: Yes.”’
Referring now to page—
MR. LUCE: Your Honor, I don’t want to interject, but
the next question is, did you actually see him swing to
the left, and the answer is no, and that is deceitful as far
as him relating the information to the jury.
MR. PETERSON: Well, I resent that comment, Your
Honor, and I think we can clear it up with this next series
of questions, and certainly, counsel has the perfect right
to ask any ciarification questions that he would like.
25a
THE COURT: Well, what are you reading the deposition
for?
MR PETERSON: This gentleman just testified that he
was not aware that the boom swung over, and the tes-
timony is different from that in the deposition.
THE COURT: Well, I haven’t heard any difference yet,
have you.
MR. PETERSON: I have it right here, Your Honor, if
I would have been permitted to continue, I have about
one more question, one or two more questions.
THE COURT: All right, go ahead.
MR. PETERSON: All right.
MR. LUCE: Your Honor, I was wondering if we might
have the witness to have an opportunity to look at that,
and then have the question asked, is his testimony differ-
ent so that the witness has an opportunity to not have
selective editing by counsel, so that he can have a fair
chance to answer the question.
THE COURT: No, that’s not the procedure we’ll follow.
The procedure is okay, except that you’re supposed to be
showing something that is inconsistent to what he’s al-
ready testified to, and I haven’t heard anything.
MR. PETERSON: If I may continue, Your Honor?
THE COURT: Well, providing you can find something
inconsistent in there. If you can’t, well then there’s no
point in it.
BY MR. PETERSON:
Q Page 101:
“Question: Okay, what did you think was in your own
mind what—
Your Answer: ‘‘He was swinging over to pick it up.
26a
“Question: Okay. And did you know that, even though
you weren't actually looking?
‘““Answer: Yes.”
Mr. Davidson, now referring to the period of time after
your accident. You saw Dr. Smith?
A Yes, sir, I did.
Q You also saw Dr. Lindahl, is that correct?
* * *
27a
APPENDIX H
rather, or it could even find that one of those things was
the sole cause. It could not find that it was a superceding
or intervening cause. Therefore, the following instruction
should solve the problem and express the law as it is
currently in Alaska.
If the accident was caused solely because of the sub-
stitution of the chain for the ball, that is the same as to
say that the design did not cause the accident and your
answer to question number one would be no.
The same would be true if the operator’s negligence
was the sole cause, or the plaintiff's own negligence was
the sole cause.
A different rule applies if the defective design was a
part of the cause and one of those other events were also
a part of the cause.
And I’ll explain those factors in more detail later in the
instructions.
The one motion that’s been made, I have no leanings
either way. I have a great deal of doubt both ways. That’s
the comparative negligence issue. So, because I’m going
to ask Mr. Luce to speak first doesn’t mean that I am
leaning one way or another, it’s just simply his motion
and I want to hear from both sides on this one.
MR. LUCE: Your Honor, in this motion, we must realize
that the defendant would have the burden of proof,
* * *
THE COURT: Go ahead.
MR. LUCE: And very briefly.
If you suppose that what Mr. Peterson says is correct,
that anybody who has ever done this, then Mr. Davidson
would have got up on this pump, and irrespective of
whether he saw the man swing the crane boom over, which
28a
he says he did not, he would be negligent in staying there.
So, he had to keep his eye on the boom at all] times to
see if it was going to swing over. If it did, he had to leap
off the pump. Then he would have to have the operator
move the boom back away from the pump. Then he would
have to have the rigging attached. Then he would get off
the pump. The person would swing the boom over, drop
the line or the block down. Now, he would get back up
on the pump and he would start to attach the chokers. If
the person hadn’t lowered the block far enough or lowered
it too far, then he’d get back off the pump. The operator
again would move the block until he got it just right. Then
the person would put the chokers on. Then he would move
off the pump and the person would start to make the pick.
And all of this time, Your Honor, you’ve got to realize
Mr. Davidson is required to work underneath that boom.
He has got to work underneath that boom of that crane
to do his job.
THE COURT: Okay. I think of the five motions, this is
the only difficult one, and comparative negligence is almost
always a jury question and it is here.
This is one I might take another look at if comparative
negligence is actually found, because of my strong feeling
that—well, I sure wouldn’t have stood under that thing.
I mean, I feel so strongly about that, I wonder why an-
ybody else does stand under one of those descending loads
from a crane. But—well, I can think of a dozen things
that could happen to get that thing on his head and a
broken boom isn’t one of them either.
All right. So you know what the verdict form is going
to be like and you now have the copy of the instructions
before you. You can spend a few minutes with them and
be ready to start your arguments in about 20 or 30 min-
utes, and this will let you know what the Court is going
to tell the jury.
29a
I'll be in recess while you’re studying that.
MR. LUCE: Your Honor, we’d be ready to go in about
three minutes, if you’re—
THE COURT: Okay, you argue first.
MR. THORSNESS: If the Court please, are you going
to limit argument at all or just?
THE COURT: Oh,—
MR. THORSNESS: It’s now 2:30, or 2:20 rather.
THE COURT: Without committing yourself exactly,
*-s
plaintiff seeks to recover.
In order for the defendant to avoid paying plaintiffs
damages, it must prove that on balance, the benefits of
the challenged design outweigh the dangers inherent in
the design.
If, and only if you find the injury was caused by a
defective design, we will then award the plaintiff, Dan
Davidson, a sum which will compensate him for his loss.
If you find Dan Davidson is entitled to damages, you will
decide whether the plaintiff, Peggy Davidson, is entitled
to an award of damages for loss of consortium, and fix
that figure, if any.
You will then go to the question of whether the plaintiff,
Dan Davidson, was himself negligent in a manner which
caused or contributed to his own injuries, and arrive at
_the percentage of his negligence, if any. If you find that
he was negligent, then the award to Dan Davidson and
Peggy Davidson will each be reduced by the amount of
that negligence.
You will be given this special verdict form that I have
been talking to you about, this three page document. |
will now go through it with you and explain the law that
you are to apply to each question.
30a
The first question asks, “‘Did the plaintiff, Dan David-
son, prove that the crane’s design caused his injury?”’ You'll
answer yes or no. A legal cause of damage is a cause
which is more likely than not a substantial factor in bring-
ing about plaintiff's injuries. A defect in a product is a
substantial factor when it is shown both that the accident
would not have happened but for the defect, and the defect
was so important in bringing about the injury that rea-
sonable men would regard it as a cause and attach re-
sponsibility to the defect. |
This does not mean that the law recognizes only one
legal cause of an injury or a damage, consisting of only
one factor, or thing, or conduct of only one person. On
the contrary, many factors or things, or the conduct of
two or more persons may operate at the same time, either
independently, or together to cause injury or damage, and
in such a case, each may be a legal cause.
Manufacturers are not absolute insurers of their prod-
ucts, the law will not impose legal responsibility simply
because a product causes harm. If the accident was caused
solely because of the substitution of the chain for the ball,
that is the same as to say that the design did not cause
the accident, and your answer to question number one
would be no.
The same would be true if the operator’s negligence
was the sole cause, or if the plaintiffs own negligence
was the sole cause. A different rule applies if the defective
design was a part of the cause, and one of these other
events were also a part of the cause. In that case, each
would be a legal cause.
The plaintiff alleges that the crane involved in the ac-
cident was defectively designed because it was not equipped
with a two-blocking protective system. That is the only
kind of defect that is under consideration when you answer
question number one.
3la
I will repeat that question, “Did the plaintiff, Dan Dav-
idson, prove that the crane’s design legally caused his
injury?”” Yes or no. In other words, was it a legal cause.
If you answer question number one no, then you are fin-
ished, and your presiding juror will sign the verdict form.
If you answer question number one yes, then proceed
to question number two, which asks, and these directions
are right on the verdict form itself, “Did the defendant
prove on balance the benefits of the challenged design
outweigh the dangers inherent in such design?’’ Answer,
yes or no.
Even if the plaintiffs have met their burden of proof
on the first question, defendant Drott may avoid liability
if by a preponderance of the evidence it can establish that
the benefits of the challenged design feature of the hy-
draulic crane, as existed at the time of the
AFTERNOON SESSION
(Call to Order of the the Court, Jury In at 2:00 p.m.)
THE COURT: Has the jury reached its verdict?
THE JURY: We have, Your Honor.
THE COURT: May I have it please? The Clerk will read
the two verdicts that I’ve handed her.
THE CLERK: We the jury find as follows: Question
one: Did the plaintiff, Dan Davidson, prove that the crane’s
design legally caused his injury? Answer: No. Dated Oc-
tober 3rd, 1984, Clifford Hughes, Juror.
In Case No. A-81-399, Peggy J. Davidson versus Drott
Manufacturing, we the jury find for the Defendant. Dated
October 3rd, 1984, Clifford Hughes, Presiding Juror.
THE COURT: Ladies and gentlemen, we follow the
process in this court of verifying the jury, verifying that
it is a unanimous verdict. We call this polling the jury.
32a
Each person is asked whether this is your verdict, and
your answer should be yes or no. Poll the jury please?
THE CLERK: Arnold Garganta, is this your verdict?
MR. GARGANTA: Yes.
THE CLERK: Margarita Green, is this your verdict?
MS. GREEN: Yes.
THE CLERK: Ms. Nelson, is this your verdict?
MS. NELSON: Yes.
THE CLERK: Ms. Collins, is this your verdict?
1984
Sep 25
117
118
119
120
121
122
123
124
125
126
127
128
129
130
33a
APPENDIX I
Fld CRT MINS re lst day jury trial.
Fld CRT MINS re 2nd day jury trial.
Fld CRT MINS re 3rd day jury trial.
Fid CRT MINS re 4th day jury trial (9/
28/84); deft mot for directed verdict
DENIED. Case cont to 10/1/84, 9:00am.
Fld CRT MINS re 5th day jury trial.
Case cont to 10/2/84, 9:00am.
Fld pitf objec to testimony of W. Berger
(filed in ert).
Fld pltf obj to deft proposed instruc-
tions to jury (fld in ert).
Fld deft list of testimony to be offered
(fld in ert).
Fld deft objec to pltf jury instructions
(fld in ert).
Fld CRT MINS re 6th day jury trial;
deft mot for directed verdict or alt mot
for dsms] denied; deft mot to dsms pu-
nitive dmgs granted; pitf mot for dir
verdict & mot to dsms comp negligence
denied; case cont to 10/3/84, 9:00am.
Fld CRT MINS re 7th day jury trial;
jury instructed—verdict in favor of ‘deft
& against pitf.
Fld jury verdict for the defts.
Fld special verdict.
Fid JUDGMENT in favor of defts &
against pltf. cy cnsl, O&J 2301.
131
132
133
134
135
136
34a
Fld pltf mot for judgment notwithstand-
ing verdict as to issue of causation or
for new trial on all remning issues or
all issues w/memo.
Fld pltf notice of intent to file objec to
jury instructions gvn by crt.
Fld deft oppo to pltf mot for jdgmnt
nov or in alter for a new trial
Fld deft oppo to pltf notice of intent to
fle spec objec to jry instructs as were
gvn by ert. ©
Fid deft mot for atty fees w/memo, aff
& exhbs. (cy to Judge B)
Fid Bill of Costs re hring 10/22/84,
9:00am, w/memo & exhbs.
35a
APPENDIX J
Seventh Amendment to the Constitution of the United
States of America:
Trial by jury in civil cases. In suits at common
law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be
otherwise re-examined in any court of the United
States, than according to the rules of the com-
mon law.
36a
APPENDIX K
MATTHEW K. PETERSON, Esq.
HUGHES, THORSNESS, GANTZ, POWELL & BRUNDIN
509 West Third Avenue
Anchorage, Alaska 99501
(907) 274-7522
Attorneys for Defendant-A ppellee
Drott Manufacturing Company
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 85-3537
DC No. CV 81-399 RCB
DAN DAVIDSON and PEeGGy DAVIDSON,
Plaintiffs-A ppellants,
VS.
DroTtT MANUFACTURING CORPORATION,
Defendant-A ppellee.
PETITION FOR REHEARING
Drott Manufacturing Corporation, by and through its
attorneys, Hughes, Thorsness, Gantz, Powell & Brundin,
pursuant to Federal Rule of Appellate Procedure 40, her-
eby files its Petition for Rehearing of the appeal from the
United States District Court for the District of Alaska of
the above case by plaintiffs. Drott petitions for rehearing
of the court’s order filed January 28, 1986.
In reversing the jury verdict in favor of Drott, the Ap-
pellate court has overlooked or misapprehended several
factual and legal issues. The court’s finding should be va-
cated and reheard for the following reasons.
37a
I. The court erroneously believed the the jury instruction
in which comparative negligence was mentioned in the
context of causation was given sua sponte by the trial
court judge, thus allowing plaintiffs’ attorney no time to
object properly. In fact, the instruction was not given sua
sponte. Therefore, plaintiffs’ failure to object is fatal to
his appeal on the issue.
II. Without an objection to the instruction by the
plaintiffs, the instruction would have to constitute ‘“‘plain
error’ in order for the court to review it. The matter did
not constitute plain error.
III. Any error was harmless in viewing the case and
the instructions as a whole.
IV. There was substantial evidence of negligence, which
ene court has mistakenly overlooked or misapprehended
sufficient to permit the question of comparative negligence
to go to the jury in the litigation.
Federal Rule of Appellate Procedure 40 provides:
(a) Time for Filing; Contents; Answer; Action by
Court if Granted. A Petition for Rehearing may
be filed within fourteen (14) days after entry of
judgment unless the time is shortened or en-
larged by order or by local rule. The petition shall
state with particularity the points of law or fact
which is in the opinion of the petitioner the court
has overlooked or misapprehended and shall con-
tain such argument in support of the position of
the petitioner or as the petitioner desires to pres-
ent. Oral argument in support of the petition will
not be permitted. No answer to a Petition for
Rehearing will be received unless requested by
the court, but a Petition for Rehearing will or-
dinarily not be granted in the absence of such a
request. If the Petition for Rehearing is granted
the court may make a final disposition of the
38a
cause without reargument or may restore it to
the calendar for reargument or resubmission or
may make such other orders as are deemed ap-
propriate under the circumstances of the partic-
ular case.
This Petition for Rehearing is timely under Appellate
Rules 26(c) and 40.
I.
The court notes at Page 3 of its Opinion of January 28,
1986 that ‘Davidson did not object in the District Court
to the instruction that he now assigns as error.” In ad-
dition, the court indicates that it would ordinarily review
a District Court’s jury instruction only if there is specific
objection in the District Court to the instruction as given.
The court mistakenly, however, believed that Davidson’s
failure to object was due to the District Court judge spon-
taneously adding the instruction orally at the time of in-
structing the jury. Indeed, this court stated as Page 4 of
its Opinion:
Moreover, Davidson’s failure to object under the
circumstances here can be traced in part to the
fact that the objectionable language regarding his
negligence was not part of the printed instruc-
tions that had previously been approved. The ap-
proved instruction was on causation. The court
sua sponte amplified on that instruction orally
and in doing so introduced the issue of David-
son's negligence. All of these circumstances ar-
gue that appellate review is appropriate.
(Memorandum Opinion, Page 4).
The court’s understanding of the facts is incorrect. The
record indicates, rather, that such an instruction was not
simply adlibbed by the trial court judge during final in-
structions. The jury was instructed on October 3, 1984.
39a
The matter of instructions in general had been a subject
of continuing discussions between the court and the parties
throughout the proceeding. There was a lengthy discussion
of instruction on October 2, 1984, the day before final
instructions in court to the jury. In discussing the caus-
ation instruction of which plaintiffs now complain, the trial
court stated:
Therefore, the following instruction should solve
the problem and express the law as it currently
is in Alaska.
If the accident was caused solely because of the
substitution of the chain for the ball, that is the
same as to say that the design caused the acci-
dent, and your answer to Question No. 1 would
be No.
The same would be true if the operator’s negli-
gence was the sole cause, or the plaintiff's own
negligence was the sole cause.
A different rule applies if the defective design
was a part of the cause and one of those other
events was also a part of the cause.
Transcript, 6-132, Line 20 through 6-133, Line 15.
The instruction stated by the court on October 2, 1984
at TR 6-132 is verbatim of the instruction which was ac-
tually given on October 3, 1984 in TR 7-10, Lines 18-25
through 7-11, Lines 1 and 2. No objection was made by
plaintiff.
The Appellate Court apparently believed, in its review
of the matter, that the plaintiff was somehow surprised
by a sua sponte oral amplification of the jury instruction
which occurred during the giving of the instructions to
the jury. This is incorrect. Accordingly, the court should
not even reach the question because of plaintiffs’ clear
failure to object.
40a
The requirement that a part object is not a mere tech-
nicality or a formality. Rather, the purpose is to allow the
trial court to reconsider its decision at the time, and per-
haps to correct that decision. Clary Insurance Agency v.
Doyle, 620 P.2d 194 (Alaska 1980). The mere fact that the
court is generally aware of plaintiffs’ position on the issue
does not excuse the failure to object. Ollice v. Alyeska
Pipeline Service Co., 659 P.2d 1182 (Alaska 1983).
In this case, it is by no means certain that the court
would have rejected out of hand plaintiff’s objection. This
is true since (1) the court had declined to instruct on
Drott’s requested instructions on superseding and inter-
vening cause and (2) even in the context of the directed
verdict motion on comparative negligence, the court con-
sidered it to be a close question. However, the judge was
never given the chance to consider the question. The al-
leged defect in the instruction of which plaintiff now
claimed was not raised or brought to the attention of the
court either on October 2, 1984 when it was discussed,
nor on October 3, 1984. Objection is required before the
Appellate Court may review the issue. Federal Rule of
Civil Procedure 51. Further, to the extent that plaintiff
now complains of the instruction, plaintiff may actually
have invited the error of which he now complains. See
Deland v. Old Republic, 758 F.2d 1331 (9th Cir. 1985).
Il.
Absent an objection to the instruction, the court still
may not review the trial court’s instruction. unless there
was plain error. The plain error doctrine is not discussed
in the court’s Opinion. This is required and is a substantive
requirement under Alaska law in the case such as Haskins
v. Sheldon, 558 P.2d 47 (Alaska 1976); Vest v. First Na-
tional Bank of Fairbanks, 659 P.2d 133 (Rehearing 670
P.2d 707) (Alaska 1983). In order to have plain error, there
must be a “high likelihood”’ of the jury following the wrong
theory, resulting in a miscarriage of justice before the
4la
court will apply the plain error rule. City of Nome v. Ailak,
570 P.2d 162 (Alaska 1977); Brown v. Jonz Estate, 591
P.2d 532 (Alaska 1979); Ollice v. Alyeska Pipeline Service
Co., 659 P.2d 1182 (Alaska 1983). Here, the court has
found that a reasonable jury would not have found com-
parative negligence. Thus, under the court’s own reason-
ing, there is not a high likelihood that the jury followed
the wrong theory.
Ill.
To the extent that there may have been any error, the
error obviously was harmless. The objecting party must
show not only error, but substantial prejudice. McCracken
v. Davis, 560 P.2d 771 (Alaska 1977). This cannot be de-
cided by mechanistic formula, but the court must consider
all of the circumstances surrounding the case and the al-
leged error. Poulin v. Zartman, 542 P.2d 251, Rehearing
denied 548 P.2d 125 (Alaska 1975). Error is harmless if
there was no reasonable possibility for juror confusion.
Wilson v. State, 669 P.2d 1292 (Alaska 1983). A detailed
discussion of the harmless error rule under Alaska law is
found in the case of Love v. State, 457 P.2d 622 (Alaska
1969). Although the decision arises in the context of a
criminal case, the reasoning is sound.
The court indicated that:
The pivotal question is what the error might have
meant to the jury. Our function is to consider
not how the error would have affected us if we
had tried the case, but how it may have affected
a jury of reasonable laymen. It is the impact on
their minds which is critical in determining
whether an error impaired or affected the sub-
stantial interests of the defendant in having a
fair trial.
42a
457 P.2d at 630. The court’s analysis further indicated
what the review in court must itself do in weighing the
issue of harmless error.
Had the error pointed out not been committed
is the reasonable probability that the verdict
might have been different? In answering this
question, the members of this court must nec-
essarily put themselves, as nearly as possible, in
the position of the jury in order to determine
whether, as a reasonable man, the error com-
mitted probably affected their verdict.
Love v. State, 457 P.2d at 631, n. 15, citing State v. Dutton,
318 P.2d 667, 671 (Ariz. 1957).
Clearly, in this case, the Appellate Court has, in effect,
already made such a determination. The court has held
that there is no evidence in the record from which a rea-
sonable jury could find that Davidson was negligent. The
court has stated that it was impractical for him to perform
his job in any other way. The court, in effect, has put
itself in the position of the jury. It has concluded that
there was no comparative negligence. Thus, the issue could
not operate to the detriment of Davidson.
Clearly, the Court has itself indicated that either a com-
parative negligence question was not reached (Page 3,
Footnote 1) or that if it was, the reasonable minds would
not hold Davidson to be comparatively negligent in any
event. Thus, as a logical and legal matter, the issue of
comparative negligence, using the court’s analysis, simply
could not have had any impact on the determination of
whether the crane. was defective. Any error which the
court perceives is thus harmless. This is particularly true
when one considers the jury instruction on defect as a
whole. (TR 7-9, Line 24 through 7-11, Line 14). The court
clearly instructed the jury that:
43a
A legal cause of damage is a cause which is more
likely than not a substantial factor in bringing
about plaintiff's injuries. A defect in a product is
a substantial factor when it is shown both that
the accident would not have happened but for the
defect, and the defect was so important in bring-
ing about the injury that reasonable men would
regard it as a cause and attach responsibility to
it.
... Many factors, or things, or the conduct of
two or more persons may operate at the same
time, either independently or together to cause
injury or damage, and in such case, each may be
a legal cause.
(TR 7-10-) (emphasis added).
The court went on to state that:
...If the defective design was a part of the
cause, and one of these other events were also
a part of the cause. In that case, each would be
a legal cause.
(TR7-10, 7-11) (emphasis added).
Clearly, under the instructions read as a whole, there
was no error.
IV.
There is substantial evidence in the record which the
court overlooked which created a jury question on the issue
of comparative negligence.
First was the testimony of Ole Rohrbaugh. Mr. Rohr-
baugh was employed for ACI, Davidson’s employer, as a
pile driver and a rigger. (Transcript 2-135).
On cross-examination, the following testimony was elic-
ited from Mr. Rohrbaugh:
44a
Q. Sir, I’d like to refer you, please, to Page 50
of your deposition, regarding a general discussion
about standing underneath the hook and the load.
I’d like to put to you the question, and I'd like
for you to read to the jury your answer that you
gave at the time of the deposition.
Q. Let me clarify the situation. I’m talking
about if you’re preparing the sling, and are
lowering the hooks to hook up, “and what
was your answer?”
A. “You don’t get under it, no.”
Q. And that is a fact of common safety?
A. “Yes.”
Transcript 2-142.
Harold Radtke, plaintiff's operating engineer crane ex-
pert, testified as follows:
Q. In fact, it’s a matter of pride among the op-
erators, isn’t it, not to two-block a cr7ne?
A. Well, it’s awfully embarassing, for one thing.
Q. And it’s a matter of concern to the people
down on the ground working around the crane,
isn’t it?
A. Definitely.
Radtke Testimony, TR 3-35.
Significantly, the very crane involved in Davidson's ac-
cident had been two-blocked several days before his ac-
cident. The operator testified, ‘I two-blocked the whip line,
which is the light load line, I two-blocked that with the
boom, and the ball came off the line and fell into the
ocean.”’ (Lasseter Testimony, TR 2-131, 132). Further, at
the job in which Mr. Davidson was working, at Adak,
45a
Alaska, there was a safety meeting once every week.
(Rohrbaugh Testimony, TR 2-143). The minutes of the
safety meeting were received in evidence as Exhibit “11.
(TR 2-147). Mr. Rohrbaugh testified that the second page
of the document, which was dated 7-30-79, six days before
Davidson’s accident, included reference to safety while
working around cranes:
Q. Sir, I’d like you to please refer to the second
page of the safety meeting-first of all, what is
the date reflected within that document?
A. 7-30-79.
Q. Was it the practice to discuss the items which
appeared on the agenda?
A. Yes.
7-*s*
A. Make all men aware when pouring comcrete
and moving crane over the heads of men.
Q. That was actually discussed as a safety item
just in the week prior to Mr. Davidson’s accident,
was it no?
A. Yes.
Rohrbaugh Testimony, TR 2-144, 145.
Davidson’s own testimony showed both his knowledge of
two-blocking and the need to be safe around cranes:
A. Mr. Davidson, you have been a crane operator
for the operating engineers?
A. Yes.
Q. And you’ve operated hydraulic cranes, havn't
you?
A. Yes, sir.
Q. You’re aware of the potential for two-blocking,
aren’t you?
A. Yes, sir.
(Davidson Testimony, TR 4-152, 153).
Davidson recognized his own signature on the safety
minutes, Exhibit “11. (TR 4-155). He was present at the
meeting where booming cranes over the heads of men was
discussed. (TR 4-156, 157). (/d.). Further questioning went
as follows:
Q. That was something that was discussed at that
meeting, was it not?
A. Correct.
(TR 4-157).
On the morning of the accident, the plan was to move
Davidson’s concrete pump to another spot for repairs.
There was no immediate rush to get the thing moved out
of the way. (TR 4-160). The crane had to travel to Dav-
idson’s pump:
Q. You were aware when the crane came up and
then stopped next to the pump?
A. I saw the crane come up and stop.
Q. And you were about six feet high off the
ground at that time.
A. I wouldn’t swear I was six, five feet. It was
up off the ground over five feet.
Q. And does the operator in that crane sit up
about the same level?
A. I would say yes, he would be approximately
the same level as me.
Q. And so the boom is at that level or somewhat
higher than that, isn’t it?
A. Yes, sir, um hmm.
—
47a
Q. You were aware that the boom swung over
towards the pump, weren’t you?
A. No, sir, I never saw the boom swing over to
the pump.
Q. That wasn’t my question, sir, you were aware
of it swinging over.
A. Oh, I was aware of it, that he was eventually
going to swing over and pick it up, yes, sir.
Davidson Testimony, TR 4-161, 162.
The testimony in Davidson’s deposition taken prior to
trial then became relevant to the trial proceedings:
Q. All right. I’m going to show you the-I’m just
going to read my questions and your answers at
the time of the deposition, starting at Page 95,
Line-weil, let’s start at Line 18 for a little back-
ground.
Q. Were you actually all the way on top of
the concrete pump the moment the crane
stopped?
A. “Yes.”
Q. Did the boom of the crane move at any
time after the crane came to a stop by the
concrete pump?
A. Yes.
Q. Ok. Which direction did it move? Your
answer was: ‘‘He swung to his left. My ques-
tion: “To his left, towards the concrete
pump? Answer: Yes.
(TR 4-163, 164).
Q. Ok, what did you think was in your own mind
what-your answer: ‘‘He was swinging over to pick
it up.
48a
Q. Ok. And did you know that, even though you
weren't actually looking?
A. Yes.
(TR 4-165).
In brief summary, there was evidence that Davidson and
the workers in general were aware of the potential for
two-blocking, and it was “definitely” a concern to men on
the ground. Drott will not restate the arguments made at
Pages 18 through 22 regarding the legal standards under
which comparative negligence is a jury question. The above
testimony is specifically provided for reference to the court
under the belief that the court simply overlooked or mis-
apprehended the substance of the testimony which bore in
the comparative negligence question. The court has erro-
neously substituted its judgment for that of both the trial
court and the jury, which were both in a position to see
the demeanor of the witnesses.
CONCLUSION
The court, in reviewing the jury verdict in favor of Drott
Manufacturing in the above case has overlooked or mis-
apprehended both legal and factual matters. The court
should thus rehear the case based on a full consideration
of all factors. The court, indeed, may not examine the
error raised by plaintiff because it was not a sua sponte
instruction given by the court. It was specifically discussed
the day before jury instructions were given. No exception
was made.
There was no plain error. Because of the court’s own
perception of the evidence, it is logically impossible that
there was a high likelihood that the jury would have come
to a different conclusion or would have followed the er-
roneous theory. Therefore, the was not plain error.
For the same reasons, any error was obviously harmless.
49a
Finally, and perhaps most importantly, there was sub-
stantial evidence in the record on which there could be
rational disagreement as to the comparative negligence or
fault of Mr. Davidson.
For these reasons, and in viewing the record as a whole,
the court’s memorandum decision dated January 28, 1986,
is mistaken. A new trial should not be required. Drott
respectfully requests rehearing, that the order of January
28, 1986 be vacated, and that the result below be affirmed.
Dated this 14th day of February, 1986, at Anchorage,
Alaska.
HUGHES, THORSNESS, GANTZ,
POWELL & BRUNDIN
Attorneys for Defendant/
Appellee
Drotrt MANUFACTURING CORP.
By:/s/sMatthew K. Peterson
Matthew K. Peterson
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.