# Petition for Writ of Certiorari — Drott Manufacturing Corp. v. Davidson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2182%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 479 U.S. 849 ## Text ” ; i 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 |