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holding that the burden is on the consumer, not the manufacturer, to show that the benefits of a proposed design alternative outweigh the risks, and remanding for a new trial
Summary of this case from Kokins v. Teleflex Inc.Opinion
No. 91SC312
Decided November 23, 1992. Opinion Modified, and as Modified Rehearing Denied December 14, 1992.
Certiorari to the Colorado Court of Appeals
Carolyn L. Sampson, Stewart B. Grant, Sampson Associates, P.C., for Petitioners.
Hugh Q. Gottschalk, Kristen L. Mix, Terence M. Ridley, Elizabeth Savage, Otten, Johnson, Robinson, Neff Ragonetti, P.C., for Respondent.
Laura D. Stith, Walter L. Cofer, W. Edward Reeves, Shook, Hardy Bacon; Alfred T. McDonnell, Arnold Porter, for Amicus Curiae The Product Liability Advisory Council, Inc.
James L. Gilbert, Stuart A. Ollanik, James L. Gilbert Associates, P.C.; Susanna Meissner-Cutler, for Amicus Curiae Colorado Trial Lawyers Association.
This case arises from an accident in which Lynn Armentrout was crushed between a stationary truck base and the rotating superstructure of a crane manufactured by FMC Corporation (FMC). Armentrout incurred severe injuries as a result of the accident and, with his wife, Tina Armentrout, filed an action against FMC seeking damages on theories of strict liability for failure to warn, strict liability for defective design, negligence in warning, and negligence in design. The jury returned a verdict in favor of FMC, and the trial court entered judgment accordingly.
The court of appeals reversed the judgment and remanded for retrial on two separate grounds not discussed in this opinion. Armentrout v. FMC Corporation, 819 P.2d 522 (Colo.App. 1991). In addition, the court of appeals addressed four other issues which will occur on retrial. We denied FMC's petition for certiorari and left standing the court of appeals' judgment ordering a new trial. We granted certiorari to consider the four issues challenged by the Armentrouts in their cross-petition. We reverse in part, affirm in part and remand for further proceedings consistent with this opinion.
I.
Armentrout was injured when he was struck by the rotating upper of a crane manufactured by FMC. The accident occurred while he was working as a crane oiler for Derr-Gruenewald Construction Company, which owned and operated the crane. Armentrout's job was to monitor and maintain the fluid levels of the crane and to keep the surfaces of the crane clean. When Armentrout was struck by the rotating upper, he was cleaning the deck of the crane's stationary base. The facts indicate that he was standing either in the area known as the "forward luggage carrier" or on the deck of the stationary base. When the superstructure of the crane moved, Armentrout was trapped in the area known as the "pinch point," where the space between the superstructure and the base of the crane is closed off during the rotation of the superstructure. He was not aware that the superstructure of the crane was moving until it struck him.
The forward luggage carrier is a storage compartment located to the side of the deck behind the front wheels of the stationary base.
Thereafter, Lynn Armentrout and his wife Tina Armentrout filed an action against FMC asserting claims of strict liability for failure to warn, strict liability for design defect, negligent failure to warn and negligent design defect. The Armentrouts requested relief under the theory that the existence of the crane's "pinch point" was a hazard which FMC should have warned against or removed by altering the design of the crane.
There was no bell or other audible warning to give notice that the superstructure was moving. No warnings were posted on the crane itself which would advise persons working on the crane to stay out of the crane area while it was moving. However, an FMC manual supplied with the crane at the time of sale provided the following warning: "Keep clear of rotating upper or moving parts. Pinch points which result from relative motion between moving parts can cause injury."
Oilers who worked within the swing radius of the superstructure stated that they are aware of the movement of the crane through a change in the sound of the engine, but that it is possible for the crane to move without the oiler's knowledge when the oiler's ability to hear the engine is affected by wind or gravitational pulling caused by an unevenly positioned crane.
Prior to Armentrout's accident, but after the crane involved in the accident was purchased, FMC began installing a decal on new cranes warning of the danger of the crane in movement.
Although the cleaning and maintenance of the crane may be done while the superstructure was not in motion, testimony at trial established that it was routine practice among the oilers to work on the crane while it was being operated. The trial court allowed the Armentrouts to introduce evidence, for the limited purpose of showing notice to FMC of the crane's hazard, that FMC possessed numerous accident reports involving incidents in which workers were injured in the "pinch point" of the crane.
However, at least one oiler testified that the safety checking which an oiler performs as part of his job must be done while the crane is in operation.
FMC's defense was based on the argument that Armentrout's injuries were caused by his own misuse and the negligence of the crane operator, rather than by a defect in the crane. FMC presented evidence showing that the accident was a result of the continuing unsafe work habits of the crane operator and Armentrout. The jury returned a verdict in favor of FMC.
The Armentrouts appealed to the court of appeals. The court of appeals reversed the judgment and remanded the case for retrial. FMC filed a petition for writ of certiorari with this court and the Armentrouts cross-petitioned for writ of certiorari. We granted certiorari to consider the issues presented in the Armentrouts' cross-petition.
II.
The first issue involves the Armentrouts' claim of strict liability for failure to warn. We granted certiorari to consider whether the open and obvious nature of a risk is a defense to a strict liability failure-to-warn claim. Although the obviousness of the risk is not necessarily a complete defense to such a claim, we affirm the court of appeals' ruling on the facts.
The Armentrouts argued that FMC's crane was defective for lack of adequate warning because there was no warning decal on the machine to remind the user of the possibility of injury if the superstructure were in motion. The oilers testified that the presence of a warning label on the crane would have reminded them of the danger. Furthermore, the evidence indicates that prior to Armentrout's accident, FMC had begun installing a warning decal on new cranes depicting a human figure being crushed in the same manner as Armentrout, and stating "!DANGER — Keep clear of swinging upper to prevent serious bodily injury."
We will review only the lack of a warning decal in a failure-to-warn context, although the Armentrouts have variously characterized the lack of a warning bell as either a failure-to-warn claim or a design-defect claim or both. Beginning with the pretrial hearing on FMC's motion in limine to exclude evidence regarding swing alarms on crawler cranes, the trial court treated the lack of a warning bell only as a design defect. The plaintiffs acquiesced in this characterization, since no objections were made at the time and their own treatment of the warning bell issue was inconsistent.
There was also evidence that FMC gave warnings of the crane's pinch points in the manuals provided with the crane. In addition, testimony at trial indicated that, although the crane operators and oilers were aware of the danger of working on the crane while it was operating, they routinely did so despite the known danger. Furthermore, Lynn Armentrout himself testified that a warning label would not have affected the way he did his job.
The trial court instructed the jury to consider this evidence in the following context:
"A product is defective and unreasonably dangerous if it is not accompanied by sufficient warnings or instructions for use. To be sufficient, such warnings or instructions for use must adequately inform the ordinary user of any specific risk of harm which may be involved in any intended or reasonably expected use.
"However, if a specific risk of harm would be apparent to an ordinary user from the product itself, a warning of or instructions concerning that specific risk of harm is not required."
Jury Instruction No. 27. The Armentrouts assert that the second paragraph of this instruction should have been deleted from the jury instruction.
Instruction No. 27 was taken from CJI-Civ.3d 14:20 (1989) and was offered by the defendant. The trial court rejected the Armentrouts' proposed instruction.
The court of appeals rejected the Armentrouts' argument on alternate grounds. First, it distinguished Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240 (1987), and held that Camacho did not require that the pattern jury instruction be modified as the Armentrouts requested. Armentrout, 819 P.2d at 525. Second, it found that the second paragraph of the instruction was consistent with the Armentrouts' theory of the case:
"Moreover, the second paragraph of this instruction is consistent with plaintiffs' position that the specific risk of harm (that of standing in the well of the `luggage carrier' where plaintiff was injured) was not apparent and allowed the jury to conclude that a warning was required, if the evidence so warranted."
Id. We will consider the court of appeals' holdings in reverse order.
Initially, we agree with the court of appeals that the instruction given was consistent with the Armentrouts' theory at trial and, for that reason, the second paragraph of the pattern instruction was properly included in Instruction No. 27. Whether the danger was "open and obvious" was hotly disputed at trial. The Armentrouts claimed that Lynn Armentrout was standing in or near the forward luggage carrier when he was crushed and that the danger of being trapped in the forward luggage carrier was not apparent. The court of appeals' conclusion that Instruction No. 27 was consistent with the Armentrouts' trial presentation is buttressed by the Armentrouts' treatment of their negligence claim for failure to warn. The Armentrouts stipulated to Instruction No. 20 which required the jury to find that the danger was not obvious to the final user in order to hold FMC liable. Instruction No. 20 stated:
"If a seller of a crane knows or in the exercise of reasonable care should know that the use of the crane may be harmful or injurious and such danger would not be obvious to the final user, then the seller is obligated to use reasonable care to warn the user of the danger, and he is negligent if he fails to do so. This duty to give warning is discharged if he labels his crane in a manner which would reasonably inform the user of the danger."
Based on the facts of this case, Instruction No. 27 was not improper. However, we do not agree that the court of appeals correctly interpreted Camacho.
In this regard, FMC argues that the court of appeals' decision in affirming the trial court's application of the open and obvious doctrine is properly based on the well-recognized distinction between failure-to-warn claims and design-defect claims in product liability cases and that the same reasons for rejecting the doctrine in design-defect cases do not apply in failure-to-warn cases. Specifically, FMC concedes that the obvious nature of the hazard is irrelevant in design-defect cases because if the product could have been designed to be safer, it should have been so designed. On the other hand, FMC argues, the obvious nature of the danger in failure-to-warn cases is relevant to the manufacturer's duty to provide a written warning because such a warning does not improve the safety of the product.
FMC's argument is not persuasive. As the present case illustrates, failure-to-warn and design-defect claims often arise in the same context and are not sharply differentiated. The distinction which FMC suggests has not been followed in our cases. In Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978), and Camacho, we held that the open and obvious nature of the risk is not a complete bar to a strict liability failure-to-warn claim. See also Anderson v. M.W. Kellogg, Co., 766 P.2d 637 (Colo. 1988). These holdings were premised on our conclusion, contrary to FMC's assertion, that a warning may make a product safer even if the danger is open and obvious. As we stated in Camacho, "[t]he purpose of a warning is to ensure that an otherwise dangerous product is used in a reasonably safe manner." Camacho, 741 P.2d at 1248.
The Notes on Use following CJI-Civ.2d 14:20 (1989), from which Instruction No. 27 was taken, contain the following direction:
"Even though a risk may be `open and obvious,' a product may nonetheless be defective for lack of an adequate warning, e.g. that an option is available for use with, or a part of, the product which would make it safer. Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240 n. 9 (Colo. 1987), citing Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978). In such cases, appropriate modifications may be required in the second paragraph of this instruction."
The example contained in the comment is based on the facts of Camacho where the plaintiff claimed that Honda's failure to warn him that optional crash bars were available rendered a motorcycle in a defective condition unreasonable dangerous. Camacho, 741 P.2d at 1248. We stated that "a duty to warn may exist where the danger is patent if such warning might reduce the risk of harm attendant upon use of the product." Id. at n. 9. We directed the trial court to consider on remand "the efficacy of providing a warning." Id. at 1248.
The remand order in Camacho refers to the trial court's well-established obligation to determine, as a matter of law, whether the defendant had a duty to warn the plaintiff. Taco Bell v. Lannon, 744 P.2d 43, 46 (Colo. 1987); University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo. 1987); Smith v. City County of Denver, 726 P.2d 1125, 1127 (Colo. 1980); Restatement (Second) of Torts § 328B (1965).
The open and obvious nature of a risk is not necessarily a complete defense to a strict liability failure-to-warn claim. Rather, the obviousness of the danger and the efficacy of the proposed warning are factors which the trial court should consider in determining whether the defendant had a duty to warn an ordinary user in the plaintiff's position. If the danger is open and obvious, there is no duty to warn unless there is a substantial likelihood that the proposed warning would have prevented injury to the ordinary user. If the trial court finds the existence of a duty to warn under such circumstances, then a Camacho-based modification of the pattern instruction is appropriate.
On the facts developed at the first trial, it is apparent that the warning decal does not meet the Camacho efficacy test. At most, the Armentrouts produced some evidence that the warning decal might have reminded some oilers of the dangers posed by the moving crane. There is no evidence that it would have prevented an injury such as that suffered by Lynn Armentrout. The trial court properly refused to modify Instruction No. 27 and we affirm the court of appeals.
III.
The second issue involves the court of appeals' allocation of the burden of proof with respect to the plaintiffs' design-defect claim in this case. In order to sustain a claim for defective design, the plaintiffs must first establish a prima facie case. Two essential elements of that prima facie case, of course, are injury and causation, and there is no dispute that the Armentrouts have proven both. Rather, the parties dispute whether the plaintiffs are also required to prove the unreasonable dangerousness of the product. We hold that the plaintiffs, using the risk-benefit analysis, must carry that burden.
In Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978), we declined to follow the approach of those jurisdictions which have eliminated the "unreasonably dangerous" portion of the definition of strict liability. Id. at 171 n. 5, 583 P.2d at 282 n. 5. The California Supreme Court, for example, rejected the "unreasonably dangerous" element on the ground that it would improperly "require an injured plaintiff to prove not only that the product contained a defect but also that such defect made the product unreasonably dangerous to the user or consumer." Cronin v. J.B.E. Olson Corp., 501 P.2d 1153, 1163 (Cal. 1972). Taking the contrary position, we concluded that to require the plaintiff to prove that additional element "serves the useful function of placing some limits on the liability of a manufacturer or seller." Union Supply, 196 Colo. at 171 n. 5, 583 P.2d at 282 n. 5.
In the present case, the jury was instructed that:
"A product is unreasonably dangerous because of a defect in its design if it creates a risk of harm to persons which is not outweighed by the benefits to be achieved from such design."
Instruction No. 24. The Armentrouts argued before the court of appeals that the trial court erred in failing to instruct the jury that FMC bore the burden of showing the benefit of the design once the Armentrouts had shown the risk of harm contained in the design. The court of appeals concluded that, because the plaintiffs bear the burden of proving that a product is unreasonably dangerous, which "necessarily encompasses the requirement that the risk outweighs the benefit," the trial court did not err in submitting Instruction No. 24 and in refusing to instruct the jury that the defendant carried the burden of showing the benefits of the product. Armentrout, 819 P.2d at 526. We agree.
Instruction No. 24 was taken from CJI-Civ. 14:19 (1989). The Armentrouts requested that this instruction be given to the jury. In addition, the Armentrouts submitted the following two instructions, placing the burden of proof upon the defendant, which were rejected by the trial court: "Instruction Y: A product is unreasonably dangerous because of a defect in design if it creates a risk of harm to persons, unless the Defendant can prove that the benefits to be achieved from such defective design outweigh such risks. " Instruction O: The [crane] is presumed to be defectively designed. If you, the jury, determine that the forward luggage carrier area or forward deck area is a cause of the accident, you must then find for the Plaintiff, Lynn Armentrout, unless the Defendant, FMC Corporation, produces evidence from which you can determine that the specific benefit of the design of the forward luggage carrier area or deck area and warnings outweigh the inherent risk of serious and debilitating injury."
The instruction given by the trial court incorporates the rule that whether a product is "unreasonably dangerous" is to be determined under a risk-benefit analysis. In Ortho Pharmaceutical Corp. v. Heath, 722 P.2d 410 (Colo. 1986), we adopted the risk-benefit test set forth in the California case of Barker v. Lull Eng'g Co., Inc., 573 P.2d 443 (Cal. 1978). We stated:
"[I]n design defect cases, the court may properly instruct the jury that a product is defective in design if . . . the plaintiff proves that the product's design proximately caused injury and the defendant fails to prove, in light of the relevant factors, that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design."
Ortho, 722 P.2d at 413 ( quoting Barker, 573 P.2d at 452).
The Armentrouts rely on Ortho in making their argument. As discussed above, under Ortho, the burden of proof that the benefits outweigh the risks lies with the defendant, once the plaintiff has established causation and injury. Ortho, 722 P.2d at 413. This is the same allocation of the burden of proof as set forth in Barker, and followed in California.
Here, the court of appeals relied on Union Supply Co. v. Pust, 196 Colo. 162, 583 P.2d 276 (1978), to conclude that the Barker distribution of the burden of proof does not apply in Colorado on the grounds that Union Supply requires the plaintiff in a design-defect case to prove that the product is unreasonably dangerous and that such proof necessarily encompasses the requirement that the risk outweigh the harm. Armentrout, 819 P.2d at 526. The Armentrouts argue that such a distinction is unpersuasive because there is no difference between what must be found by the jury to hold the defendant liable in this state, i.e., unreasonable dangerousness, and what must be found in California, i.e., defectiveness. They argue that the fact that a showing of "unreasonable dangerousness" is required is irrelevant to the issue of which party should bear the burden of showing the benefit of a product's design. This argument is without merit.
Although both states employ a risk-benefit test in determining whether a design is defective for purposes of liability, see Barker, 573 P.2d at 454, and Camacho v. Honda Motor Co., Ltd., 741 P.2d 1240, 1246-47 (Colo. 1987) (in both cases, the respective courts held exclusive reliance upon the consumer expectations test is inappropriate for determining liability for defective design), the California Supreme Court specifically has held that the plaintiff in a design-defect case is not required to prove all the elements of liability. See Barker, 573 P.2d at 455 (concluding that once a plaintiff makes a prima facie showing that the injury was proximately caused by the product's design, the burden shifts to the defendant to prove that the benefits outweigh the risks, i.e., "that the product is not defective").
In contrast, this court has chosen to follow the Restatement (Second) of Torts § 402A in requiring a plaintiff to prove that a product is in a "defective condition unreasonably dangerous." Union Supply, 196 Colo. at 171, 583 P.2d at 282 n. 5. Because the determination of whether a product is "unreasonably dangerous" is made through a risk-benefit analysis, we find that the plaintiffs also bear the burden of proving that the risks outweigh the benefits of the design.
In Wilson v. Piper Aircraft Corp., 579 P.2d 1287 (Or. 1978), the Supreme Court of Oregon rejected the allocation of the burden of proof set forth by the Supreme Court of California in Barker, 573 P.2d 443. The Oregon court reasoned: "In recent years California's law of products liability and our own have developed along different lines. We regard the Barker decision as additional evidence of those differences. Under that decision it appears that a design defect case will always go to the jury if only the plaintiff can show that the product caused the injury. In this jurisdiction, however, it is part of a plaintiff's case to show that a product which caused an injury was dangerously defective." Wilson, 579 P.2d at 1287-88. The following test sheds some light on the meaning of "dangerously defective" in Oregon: "To impose liability there has to be something about the article which makes it dangerously defective without regard to whether the manufacturer was or was not at fault for such condition. A test for unreasonable danger is therefore vital. A dangerously defective article would be one which a reasonable person would not put into the stream of commerce if he had knowledge of its harmful character." Phillips v. Kimwood Machine Co., 525 P.2d 1033, 1036 (Or. 1974) (emphasis in original). Although Oregon's meaning of "dangerously defective" differs from the definition of "unreasonably dangerous" in this state, we find Oregon's approach persuasive. Accordingly, we conclude that the court of appeals properly distinguished Barker on the ground that a prima facie showing in Colorado is one of "unreasonable dangerousness."
To the extent that Ortho holds that the burden of proving that "the product's benefits outweigh its inherent risks" rests with the manufacturer, we overrule the case. See Ortho, 722 P.2d at 413. We merely intended, in that case, to adopt the risk-benefit analysis set out in Barker for determining the defectiveness of a design. In light of our previous decision rejecting California's attempt to relieve the plaintiff of proving more than the existence of a "defect" in a product, we conclude that the burden of proof allocation set out in Barker is inapplicable in Colorado.
In order to determine whether the risks outweigh the benefits of the product design, the jury must consider different interests, represented by certain factors. In Ortho, we listed the following factors which could be considered in determining whether the risks outweigh the benefits:
"(1) The usefulness and desirability of the product — its utility to the user and to the public as a whole.
"(2) The safety aspects of the product — the likelihood that it will cause injury and the probable seriousness of the injury.
"(3) The availability of the substitute product which would meet the same need and not be as unsafe.
"(4) The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility.
"(5) The user's ability to avoid danger by the exercise of care in the use of the product.
"(6) The user's anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions.
"(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance."
Ortho, 722 P.2d at 414 (relying on John W. Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 837-38 (1973)). Without addressing Ortho's allocation of the burden of proof to the defendant to prove that the design's benefits prevail, we held in Camacho that it is reasonable to require a plaintiff to establish unreasonable dangerousness and we employed the factors set out in Ortho for performing the risk-benefit analysis. Camacho, 741 P.2d at 1245, 1247. Neither Ortho nor Camacho suggest that these factors are to be strictly applied in every case. This list is not exclusive, but merely illustrative of factors which may assist in determining whether or not a design is unreasonably dangerous. Depending on the circumstances of each case, flexibility is necessary to decide which factors are to be applied, and the list of factors mentioned in Ortho and Camacho may be expanded or contracted as needed.
The authorities indicate that the relevant factors cannot be confined to a single list which always must be applied regardless of circumstances. Different commentators have suggested different sets of factors to apply in design defect cases. For example, in his article setting forth the factors we adopted in Ortho, Professor Wade states that the list is a revision of another list. Wade, On the Nature of Strict Tort Liability for Products, at 837. In addition, Professor Twerski expands upon the seven factors offered by Professor Wade, offering a list of relatively different factors to be considered: "(1) Polycentricity: Aspects of the product design may be related in such a way that any design change would substantially affect the cost, utility, safety, or esthetics of the product. "(2) Close risk-utility proof: The task of weighing and balancing the product's potential for harm against its utility may be difficult or impossible. "(3) State of the art: The alternative design may not be practically feasible in light of the state of the art. "(4) Tenuous causation: The case for causation-in-fact may be tenuous. "(5) Shifting duty: Independent and responsible decisionmakers may have played a significant role in assessing and utilizing the allegedly hazardous product. "(6) Consumer choice: Consumers may have the option to purchase a similar product without the alleged safety hazard. "(7) Obviousness of danger: The hazard may be open and obvious to the ordinary consumer. "(8) Cost: An alternative design could substantially raise the cost of the product to the consumer. "(9) Design safety review process: The safety review process that led to the formulation of the product's design may have been extensive. "(10) Legislation: The government may have played a role in regulating the product's design." Aaron D. Twerski, Seizing the Middle Ground Between Rules and Standards in Design Defect Litigation, 57 N.Y.U. L. Rev. 521, 527 (1982). The Texas Supreme Court, moreover, rejected the enumerated factors risk-utility test altogether because of the "difficulty of formulating a series of specific factors which fact finders will be instructed to balance." Turner v. General Motors Corp., 584 S.W.2d 844, 849 (Tex. 1979).
We note here that there may be some confusion as to the elements of a prima facie case for the plaintiff in other jurisdictions. Several jurisdictions apparently focus on the requirement that the plaintiff establish the existence of a practicable design alternative. For example, the Supreme Court of Oregon has held that "a prima facie case of design defect must include evidence which would permit a finding that a safer design would have been practicable." Wilson v. Piper Aircraft Corp., 579 P.2d 1287 (Or. 1978); see also Huddell v. Levin, 537 F.2d 726 (3d Cir. 1976) (New Jersey law); Lolie v. Ohio Brass Co., 502 F.2d 741 (7th Cir. 1974) (Illinois law). We agree that the existence of a feasible alternative is a factor in the risk-benefit analysis of the unreasonable dangerousness of the product design. In the present case, the Armentrouts did present evidence of a practicable design alternative — the addition of a warning bell to the crane. On retrial, such evidence would be considered in support of the claimed unreasonable dangerousness of the product design.
We also note, however, that evidence of a feasible design alternative is not always necessary. As the Supreme Court of Oregon stated: "[T]he court's task is to weigh the factors bearing on the utility and the magnitude of the risk and to determine whether, on balance, the case is a proper one for submission to the jury. In this case we focus on the practicability of a safer alternative design and hold that the evidence was insufficient to permit the trial judge to consider that factor. Our holding should not be interpreted as a requirement that this factor must in all cases weigh in plaintiff's favor before the case can be submitted to the jury. There might be cases in which the jury would be permitted to hold the defendant liable on account of a dangerous design feature even though no safer design was feasible (or there was no evidence of a safer practicable alternative)." Wilson, 577 P.2d at 1328 n. 5.
We conclude that the court of appeals properly placed the burden on the plaintiffs of proving that the risks outweigh the benefits of a design. The trial court's instructions on design defect were sufficient, and we affirm the court of appeals' decision as to this issue.
IV.
Next, we consider whether the trial court erred in failing to specifically instruct the jury as to the meaning of "defective" for purposes of considering the Armentrouts' claim of defective design. The relevant portion of the instruction setting forth the elements of strict liability for defective product stated:
"In order for the plaintiff, Lynn Armentrout, to recover from the defendant, FMC Corporation, on his claim of sale of a defective product, you must find all of the following have been proved by a preponderance of the evidence:
"1. The [crane] was defective and, because of the defect, the crane was unreasonably dangerous to a person who might reasonably be expected to be affected by the crane."
Instruction No. 23. Instruction No. 24, also submitted to the jury, defined the term "unreasonably dangerous." The Armentrouts argue that neither of these instructions adequately informed the jury of the meaning of the term "defect" or "defective."
This instruction is modeled after CJI-Civ.3d 14:18.
Instruction No. 24 stated: "A product is unreasonably dangerous because of a defect in its design if it creates a risk of harm to persons which is not outweighed by the benefits to be achieved from such design." Plaintiffs' Instruction A, offered by the Armentrouts, differed from Instruction No. 24 only in that it added the word "specific" before "design."
The Armentrouts argue that under the directions given to the jury, the jury was required first to determine that the crane was "defective" before it could conclude that the crane was unreasonably dangerous. They argue that the jury could not arrive at a finding of "unreasonable dangerousness" in this case, as it should have, because the jury was inadequately instructed as to the meaning of "defective." Without a specific definition of "defective," the Armentrouts argue that the jury presumably interpreted the word to mean "broken," its common meaning. Plaintiffs' Instruction BBB, offered by the Armentrouts, states:
"A product is defective and unreasonably dangerous because of its design if it creates a risk of harm to persons which is not outweighed by the benefits to be achieved from such design."
FMC does not oppose giving this instruction when the case is retried on remand.
In addition, the Armentrouts argue that under the law, "defective" is equivalent to the term "unreasonably dangerous" and that the jury should have been so instructed.
The court of appeals determined that, although it is necessary for the jury to understand the specific concept of "defective" as it applies in the context of a product liability action and the jury was not specifically instructed as to the meaning of "defective," its meaning was "amply clear" because the terms "defect" and "defective" were used often during the three-week trial. Therefore, the court of appeals concluded that the absence of a separate definition of the term "defective" in this case would not have required a retrial, but that because a retrial has been determined necessary on other issues, the jury should receive a specific instruction at retrial on the definition of the term "defective."
The form of the instructions given at trial is within the discretion of the trial court. Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1103, 1110 (Colo. 1982); Montgomery Ward Co. v. Kerns, 172 Colo. 59, 63, 470 P.2d 34, 37 (1970). "All of the court's instructions to the jury are to be read and considered as a whole in determining whether all the necessary law has been correctly stated to the jury." Montgomery Ward Co., 172 Colo. at 63, 470 P.2d at 36-37. A judgment will not be reversed for refusal of the trial court to give requested instructions where there was not resulting substantial, prejudicial error. Clark v. Giacomini, 85 Colo. 530, 531, 277 P. 306, 307 (1929); see also Stephens v. Koch, 192 Colo. 531, 533, 561 P.2d 333, 334 (1977) ("the power to review does not encompass the power to reverse a jury verdict based on a legally correct instruction, although the appellate court might prefer other language").
Confusion as to the meaning of "defective" apparently stems from the fact that the word is used in two different ways in a design-defect claim. The word "defective" often is used to express a legal conclusion upon which liability may be based. See John W. Wade, On Product "Design Defects" and their Actionability, 33 Vand. L. Rev. 551-52 (1980). When so used, "defective" is not a test for reaching the legal conclusion but is merely an abbreviation of the term "defective condition unreasonably dangerous" as used in Restatement (Second) of Torts § 402A. In addition, however, "defective" also is used in design-defect cases to refer to an aspect of the product which, according to the plaintiffs, causes the product to be "unreasonably dangerous." "A `defect' does not mean a mere mechanical or functional defect but is anything that makes the product `unreasonably dangerous.'" Anderson v. M.W. Kellogg Co., 766 P.2d 637, 643 (Colo. 1988) (emphasis added).
The jury in this case was not given any instruction on the meanings of "defect" or "defective," although those words were present in both of the instructions given on the claim for defective design. Under Instruction No. 23, the jury was required to determine 1) that the crane was "defective," and 2) that the "defect" caused the crane to be "unreasonably dangerous." The word "defective," or "defect," as used in Instruction No. 23 refers to the word's second definition, which we articulated above, i.e., an aspect of the crane's design. Therefore, we will focus on whether the jury was adequately informed as to the meaning of "defective," as used in this context.
We find it unnecessary for the trial court to instruct the jury as to the meaning of "defective" as a legal conclusion upon which liability may be based. That concept is adequately expressed in Instruction No. 23, which sets out the elements of liability for "sale of a defective product." However, to avoid confusion which may result from the word's two meanings, "defective," when used as a legal conclusion, should be referred to as "defective condition unreasonably dangerous."
We must assume that the jury followed the court's instructions. Lexton-Ancira Real Estate Fund v. Heller, 826 P.2d 819, 824 (Colo. 1992); Schmutz v. Bolles, 800 P.2d 1307, 1315 (Colo. 1990). In light of the absence of any definition, we presume that the jury applied the common meaning of "defect." "Defect" means "1) an irregularity in a surface or a structure that spoils the appearance or causes weakness or failure, or 2) want or absence of something necessary for completeness." Webster's Third New International Dictionary 591 (1986). This common definition does not conform to the notion of "defect" set forth by this court in Anderson, 766 P.2d 637, and discussed above. The term "defect," in the context of a design-defect claim, means any aspect of the design, not just an irregularity or absence of completeness.
Because the crane was manufactured and performed exactly as intended, it cannot be considered to be irregular or lacking in something essential to completeness. Application of the common meaning of the word by the jury would have resulted in a finding of non-defectiveness and, thus, a failure to perform the risk-benefit analysis. However, under the Anderson definition of "defect," the jury in this case should have determined if any aspect of the design caused the product to be "unreasonably dangerous," i.e., caused the risks of the design to outweigh the benefits. Therefore, we conclude that the instructions as a whole inadequately apprised the jury of the need to consider the risk-benefit test in its determination of whether the product was "defective."
We affirm that portion of the court of appeals' decision which holds that the jury should have been specifically instructed as to the definition of "defective." We reject that portion of the court of appeals' opinion which takes into consideration the use of the terms "defective" and "defect" throughout the trial. The test is whether the instructions, as a whole, correctly and adequately set forth the applicable law, not whether the jury could glean the term's meaning from its use during the course of the trial. Cf. Pueblo Bank and Trust Co. v. McMartin, 31 Colo. App. 546, 549, 506 P.2d 759, 761 (1972), appeal after remand 528 P.2d 953 (1974); Murrow v. Whiteley, 125 Colo. 392, 401, 244 P.2d 657, 662 (1952).
Although the law set forth in the instructions was correct, the jury was not adequately informed of the correct standard with which to determine the existence of "defectiveness," which resulted in substantial and prejudicial error. See Lee v. Great Empire Broadcasting, Inc., 794 P.2d 1032 (Colo.App. 1989) (trial court's rejection of instruction requiring jury to determine nature of employment relationship constituted prejudicial error as it left jury without any standards against which to judge employer's defense). Therefore, on remand the trial court should instruct the jury that a "defect" refers to any aspect, not necessarily a flaw, in the product's design which causes the product to be unreasonably dangerous.
V.
Finally, we consider whether the trial court erred in giving the jury the following instruction on the defense of misuse:
"A manufacturer of a product is not legally responsible for injuries caused by a product if: (1) the product is used in a manner or for a purpose other than that which was intended and which could not reasonably have been expected by the manufacturer; and (2) such use rather than a defect, if any, in the product caused the plaintiffs' claimed injuries."
Instruction No. 29 was based on CJI-Civ.3d 14:22 (1989).
The court of appeals cited Schmutz, 800 P.2d 1307, concluding that "[b]ecause the record contains evidence that such misuse may have been unforeseeable by the defendant, the court did not err in submitting the instruction to the jury." The court of appeals added, "[h]owever, on retrial, the jurors must be instructed that unless they determine that the misuse was unforeseeable, that misuse may not be considered as a defense."
The misuse in this case was identified by the trial court as Armentrout's presence within the swing radius of the superstructure during the operation of the crane.
The Armentrouts argue that Instruction No. 29 was improperly given in light of Schmutz. They argue that our decision in Schmutz bars a misuse instruction in this case because, as in Schmutz, FMC was aware that oilers worked within the swing radius of the superstructure while the crane was in operation and that numerous similar incidents had occurred prior to Armentrout's accident.
This court has recognized that, regardless of the defective condition of a product, misuse by an injured party which cannot be reasonably anticipated by the manufacturer is a defense where that conduct actually caused the injury. Schmutz, 800 P.2d at 1316; Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1324-25 (Colo. 1986) (noting that the Restatement (Second) of Torts § 402A cmt. h provides for the recognition of such a defense); Jackson v. Harsco Corp., 673 P.2d 363, 367 (Colo. 1983). "A defendant who could reasonably foresee the possibility of misuse is not entitled to an instruction on the misuse defense." Schmutz, 800 P.2d at 1316 ( citing Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1297 (10th Cir. 1989)). Before an instruction on the misuse defense can be given, there must be sufficient competent evidence that a defendant could not foresee the possibility of misuse. Schmutz, 800 P.2d at 1316; Farrell, 866 F.2d at 1297; see also Converse v. Zinke, 635 P.2d 882, 889 (Colo. 1981).
In Schmutz, we concluded that "there was no competent evidence that the hospital's failure to clean the drill properly was unforeseeable. . . . Because a single instance of improper cleaning could cause the drill to malfunction and numerous instances of improper cleaning in various hospitals were known to [the defendant], the uncontroverted evidence was that the product misuse was foreseeable. There was no evidence to support the product misuse instruction." Id., 800 P.2d at 1316-17. We considered evidence of prior incident reports, involving the same type of misuse involved in the accident in question, as support for the conclusion that the misuse was foreseeable.
FMC argues that Schmutz can be interpreted to mean that any time a manufacturer is aware of the misuse of its product, it is not entitled to a misuse instruction, and that such an interpretation is inconsistent with our decision in Uptain. We held, in Uptain, that the plaintiff's failure to read and heed the warnings printed on the product's label and her act of using her bare hands to wring out a swab soaked in a caustic cleaning solution called Sani-Tate were unforeseeable uses of Sani-Tate. In so holding, we quoted the following language from the Restatement (Second) of Torts § 402A cmt. j:
"Where warning is given, the seller may reasonably assume that it will be read and heeded . . . ."
Our holding in Schmutz is consistent with the law set forth in Uptain. We merely found in Schmutz that there was no competent evidence to support a conclusion that the misuse was unforeseeable. A defendant's actual awareness of a particular type of misuse involved with its product, including knowledge acquired from prior incident reports, may be considered in determining that the misuse was reasonably foreseeable. If there is also substantial evidence demonstrating that the misuse was not foreseeable, or the existence of adequate warnings as in the case of Uptain, then an instruction on misuse would be proper. Schmutz involved no such warnings or evidence. Thus, the defendant was not entitled to the instruction.
FMC attempts to distinguish Schmutz, arguing that its provision of a warning in the manual entitles it to the presumption of unforeseeability articulated in Uptain. There is evidence showing that Armentrout did not receive the warnings in the manual. Such evidence places in question the adequacy of warnings provided to the users of the crane. In Uptain, adequate warning reached the users of the product through a label affixed to the container. Therefore, Schmutz is not inapplicable to this case on that ground.
On the contrary, the evidence in this case, similar to that in the Schmutz case, supports a conclusion that it was reasonably foreseeable that the oilers would be present in the radius of the rotating upper of the crane when it was moving. The record indicates that the crane's upper/lower design made it more efficient to clean and oil the machine while the crane was operating. Testimony established that FMC was aware that oilers worked within the swing radius of the rotating upper when the crane was in operation. In addition, the evidence shows that FMC possessed numerous incident reports involving "pinch point" accidents. There is no competent evidence which would support a conclusion that the product misuse was unforeseeable. Accordingly, we hold that the court of appeals erroneously affirmed the trial court's submission of the misuse instruction to the jury.
In addition, the Armentrouts object to Instruction No. 29 on the grounds that the words "intended" and "expected" incorrectly suggest a subjective, rather than objective, standard for determining whether the misuse was foreseeable. Because we hold that FMC is not entitled to an instruction on the defense of misuse, we will not address this argument.
VI.
In summary, we reach the following conclusions. First, the open and obvious nature of risk does not necessarily bar a strict liability claim for failure to warn. On the facts, the trial court properly declined to modify the pattern instruction at issue. Second, the plaintiffs, in asserting a design-defect claim, must show injury, causation, and the unreasonable dangerousness of the product according to the risk-benefit analysis. Third, the trial court inadequately informed the jury of the correct standard with which to determine the existence of "defectiveness" by failing to specifically instruct the jury as to the meaning of "defective," thereby resulting in substantial, prejudicial error due to the misleading guidance in this case provided by the common meaning of "defective." Finally, there is no substantial, competent evidence indicating that the misuse of the crane here was not reasonably foreseeable. Therefore, the court of appeals incorrectly affirmed the trial court's submission to the jury of an instruction on the defense of misuse. In accordance with the above conclusions, we reverse in part and affirm in part the court of appeals' decision. We remand the case with directions to return it to the district court for a new trial consistent with the views expressed in this opinion.
JUSTICE ERICKSON concurs in part and dissents in part; CHIEF JUSTICE ROVIRA joins in the concurrence and dissent; and JUSTICE VOLLACK joins in Part II of the concurrence and dissent.
JUSTICE VOLLACK specially concurs in part and dissents in part.