Patch v. Hillerich & Bradsby Co.

July 21 2011

DA 10-0051

IN THE SUPREME COURT OF THE STATE OF MONTANA

2011 MT 175

DEBBIE PATCH, as Personal Representative
of the Estate of BRANDON PATCH, Deceased,
and DEBBIE AND DUANE PATCH,

Plaintiffs and Appellees,

v.

HILLERICH & BRADSBY CO.,
d/b/a LOUISVILLE SLUGGER,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis & Clark, Cause No. CDV 06-397
Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Kyle Anne Gray (argued), Robert L. Sterup, and W. Scott Mitchell,
Holland & Hart, LLP, Billings, Montana

For Appellees:

Curt Drake (argued) and Michael A. Kauffman, Drake Law Firm, Helena,
Montana

Argued and Submitted: January 26, 2011
Decided: July 21, 2011

Filed:

__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1 A jury in the First Judicial District Court, Lewis and Clark County, found

Hillerich & Bradsby Company (“H&B”) liable in strict products liability for failing to

warn Brandon Patch (Brandon) and his parents of the risks associated with its model CB-

13 aluminum baseball bat. H&B appeals.

¶2 We address the following issues on appeal:

¶3 Issue 1: Did the District Court properly deny H&B’s summary judgment motion

on Patches’ failure to warn claim?

¶4 Issue 2: Did the District Court properly deny H&B’s Rule 50(b) motion for

judgment as a matter of law?

¶5 Issue 3: Did the District Court properly grant Patches’ motion in limine

regarding H&B’s assumption of the risk defense?

¶6 Issue 4: Did the District Court properly instruct the jury?

¶7 Issue 5: Should the verdict be set aside and a new trial granted?

BACKGROUND

¶8 While pitching in an American Legion baseball game on July 25, 2003, eighteen-

year-old Brandon was struck in the head by a batted ball that was hit using H&B’s model

CB-13 aluminum bat. Tragically, Brandon died from his injuries.

2
¶9 In 2006, Brandon’s parents, individually and as representatives of Brandon’s

estate, sued H&B in strict products liability1 for survivorship and wrongful death

damages, asserting manufacturing and design defect and failure to warn claims. Patches

claimed H&B’s model CB-13 aluminum bat was in a defective condition because of the

enhanced risks associated with its use: It increased the velocity speed of a batted ball

when it left the bat, thus decreasing infielders’ reaction times,2 and resulted in a greater

number of high energy batted balls in the infield.

¶10 Before trial, the District Court granted H&B’s motion for summary judgment on

Patches’ manufacturing defect claim, but denied summary judgment on Patches’ design

defect and failure to warn claims. The District Court granted Patches’ motion in limine,

excluding H&B’s assumption of the risk defense. The matter was tried in October 2009,

and Patches’ design defect and failure to warn claims were submitted to the jury. The

jury concluded the model CB-13 aluminum bat was not designed defectively, but

determined the bat was in a defective condition due to H&B’s failure to warn of the

enhanced risks associated with its use and awarded Patches an $850,000 verdict on their

failure to warn claim. Post-trial, the District Court denied H&B’s Rule 50(b) motion for

judgment as a matter of law.

1
Patches initially asserted negligence, products liability, and breach of warranty claims;
however, they amended their complaint to include only products liability.
2
Some studies note that the average time needed for a pitcher to react to a batted ball is .4
seconds. Analysis of the sound recording from the game confirmed that the reaction time
available to Brandon to turn away or defend himself was only .376 of a second.
3
 STANDARDS OF REVIEW

¶11 We review an order granting or denying summary judgment de novo, using the

same Montana Rule of Civil Procedure 56 criteria that the district court used. Summary

judgment is not appropriate where any genuine issue of material fact exists. The party

moving for summary judgment has the burden of demonstrating the absence of genuine

issues of material fact. All reasonable inferences that may be drawn from the evidence

should be drawn in favor of the party opposing summary judgment. Wood v. Old

Trapper Taxi, 286 Mont. 18, 23-24, 952 P.2d 1375, 1378-79 (1997). We review de novo

a district court’s grant or denial of a motion for judgment as a matter of law. Johnson v.

Costco Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727.

¶12 A district court’s grant or denial of a motion in limine is reviewed for an abuse of

discretion. Malcolm v. Evenflo Co., 2009 MT 285, ¶ 29, 352 Mont. 325, 217 P.3d 514.

We also review a district court’s decision regarding jury instructions for an abuse of

discretion. Goles v. Neumann, 2011 MT 11, ¶ 9, 359 Mont. 132, 247 P.3d 1089. A court

abuses its discretion when it acts arbitrarily without conscientious judgment or so exceeds

the bounds of reason as to work a substantial injustice. Malcolm, ¶ 29.

DISCUSSION

¶13 Issue 1: Did the District Court properly deny H&B’s summary judgment motion

on Patches’ failure to warn claim?

4
¶14 The District Court denied H&B’s motion for summary judgment on the basis that

failure to warn claims are available to bystanders, such as Brandon.3 H&B concedes that

users and consumers may bring failure to warn claims, but argues it is entitled to

summary judgment because failure to warn claims are not available to bystanders.4 In

other words, H&B asserts that only the individual batting (actual user) and the individual

who purchased the bat (actual consumer) can assert a failure to warn claim in this case.

H&B’s narrow interpretation of the terms user and consumer is contrary to the definition

of the terms as contained in the Restatement (Second) of Torts § 402A5 and is

incongruent with this Court’s products liability jurisprudence.

¶15 In Brandenburger v. Toyota Motor Sales, 162 Mont. 506, 513 P.2d 268 (1973),

this Court adopted the theory of strict products liability contained in Restatement

(Second) of Torts § 402A, which provides that “[o]ne who sells any product in a defective

condition unreasonably dangerous to the user or consumer or to his property is subject to

liability for physical harm thereby caused to the ultimate user or consumer . . . .”

Restatement (Second) of Torts § 402A(1) (1965). Although the drafters did not determine

whether § 402A applied to bystanders,6 they broadly defined the terms consumer and

user. For example, they defined the term consumer to “include not only those who in fact

3
Both parties and the District Court refer to Brandon as a bystander.
4
H&B relies on Cromer v. Sherwin-Williams Co., 2006 U.S. Dist. LEXIS 46284 at *6 (D.S.C.
July 7, 2006), which held a duty to warn bystanders of dangers associated with paint application
was “unworkable.” The court did not cite to any authority in reaching its conclusion.
5
Section 402A is codified at § 27-1-719, MCA.
6
The drafters referred to “casual bystanders,” such as “a passer-by injured by an exploding
bottle [or] a pedestrian hit by an automobile.” Restatement (Second) of Torts § 402A cmt. o.
5
consume the product, but also those who prepare it for consumption . . . .” Id. at § 402A

cmt. l. They reasoned that a consumer does not necessarily have to purchase the product.

“He may be a member of the family of the final purchaser, or his employee, or a guest at

his table, or a mere donee from the purchaser.” Id. They also stated that the term user

“includes those who are passively enjoying the benefit of the product, as in the case of

passengers in automobiles or airplanes, as well as those who are utilizing it for the

purpose of doing work upon it, as in the case of an employee . . . .” Id.

¶16 This Court’s products liability jurisprudence recognizes that a failure to warn

claim may be brought by persons who are not actual purchasers or users of a product.

For example, in Streich v. Hilton-Davis, defendant Hilton-Davis sold a chemical to

Streich, a potato farmer, who applied the product to his seed potatoes. Streich later sold

some of his seed potatoes to Williamson and Boorman. All three farmers suffered crop

damage and sued Hilton-Davis in products liability for failure to warn. Streich v. Hilton-

Davis, 214 Mont. 44, 47-48, 692 P.2d 440, 442 (1984). Although Williamson and

Boorman had not purchased or used the chemical, they were treated no differently than

Streich, and this Court affirmed the jury’s damage award on their failure to warn claims.

Id. at 57-58, 696 P.2d at 447; see also Hagen v. Dow Chem. Co., 261 Mont. 487, 863

P.2d 413 (1993).

¶17 The realities of the game of baseball support the District Court’s decision to

submit Patches’ failure to warn claim to the jury. The bat is an indispensible part of the

game. The risk of harm accompanying the bat’s use extends beyond the player who
6
holds the bat in his or her hands. A warning of the bat’s risks to only the batter standing

at the plate inadequately communicates the potential risk of harm posed by the bat’s

increased exit speed. In this context, all of the players, including Brandon, were users or

consumers placed at risk by the increased exit speed caused by H&B’s bat. H&B is

subject to liability to all players in the game, including Brandon, for the physical harm

caused by its bat’s increased exit speed. We conclude the District Court did not err in

denying H&B summary judgment and submitting Patches’ failure to warn claim to the

jury.

¶18 In addition, H&B argues that summary judgment is appropriate because (1)

providing a warning to bystanders is “unworkable,” and (2) Patches could not produce

causation evidence establishing that they could have seen, read, and heeded a warning on

the bat in a manner to prevent Brandon’s death.

¶19 H&B’s first argument fails because the “workability” of providing a warning is a

jury question. See Macrie v. SDS Biotech Corp., 630 A.2d 805 (N.J. Super. App. Div.

1993). In Macrie, employees of a produce broker were seriously injured after being

exposed to a toxic fungicide while they unpacked produce that had been treated with the

fungicide by a farmer who had sold the produce to their employer. The employees

brought a failure to warn claim against the manufacturer of the fungicide. Id. at 807-08.

As H&B does here, the manufacturer argued that it was not feasible, i.e., “workable,” to

warn the employees of the risks associated with the fungicide. Id. at 808. The Macrie

7
court rejected the manufacturer’s argument and concluded that the feasibility of

providing warnings is a jury question:

[W]here a jury could find that plaintiff’s foreseeable exposure [to the
fungicide] would threaten them with serious physical harm, the jury could
also determine that minimizing the danger warranted unusually strenuous
efforts to provide them with warnings and instructions.

Id. at 810.

¶20 H&B’s second argument incorrectly limits the scope of the warning by

erroneously assuming that placing a warning directly on the bat is the only method to

provide a warning. While placing a warning directly on a product is one method of

warning, other methods of warning exist, including, but not limited to, issuing oral

warnings and placing warnings in advertisements, posters, and media releases. Davis v.

Wyeth Laboratories, Inc., 399 F.2d 121, 131 (9th Cir. 1968) (“[O]ther means of

communication such as advertisements, posters, releases to be read and signed . . . or oral

warnings . . . could easily have been undertaken . . . .”). Such warnings, if issued by

H&B in this case, would have communicated to all players the potential risk of harm

associated with H&B’s bat’s increased exit speed. H&B’s false assumption fails to

establish the absence of genuine issues of material fact. Wood, 286 Mont. at 23-24, 952

P.3d at 1379.

¶21 Because genuine issues of material fact exist regarding the scope of the warning

and because the “workability” of providing a warning is a jury question, the District

Court properly denied H&B summary judgment on its causation argument.

8
¶22 Issue 2: Did the District Court properly deny H&B’s Rule 50(b) motion for

judgment as a matter of law?

¶23 H&B argues the District Court erred in applying a “read and heed” inference when

it denied H&B’s Rule 50(b) motion for judgment as a matter of law because the adoption

of an inference violates our holding in Riley v. American Honda Motor Company, 259

Mont. 128, 856 P.2d 196 (1993), and § 26-1-502, MCA.

¶24 Judgment as a matter of law is appropriate only when, considering all evidence

and any legitimate inferences that might be drawn from the evidence in a light most

favorable to the non-moving party, there is a complete lack of evidence that would justify

submitting an issue to the jury. Johnson, ¶ 13.

¶25 In a failure to warn case, the plaintiff has the burden of proving (1) the product

was sold in a defective condition due to the lack of or an inadequate warning, (2) the

defect caused the injury, and (3) the defect is traceable to the defendant. Wood, 286

Mont. at 28, 952 P.2d at 1382. The policy underlying products liability—protecting the

consuming public by requiring manufacturers to bear the burden of injuries caused by

defective products—requires courts to apply a flexible standard of proof.

Brandenburger, 162 Mont. at 517, 513 P.2d at 275. The nature and quality of evidence

used in products liability cases to demonstrate causation varies, and the death or inability

of the plaintiff to testify is one of the factors influencing the requisite standard of proof.

Id. at 518, 513 P.2d at 275.

9
¶26 As an initial matter, we decline to address H&B’s § 26-1-502, MCA, inference

upon inference argument because, as we discussed in Issue 1, it is based upon H&B’s

incorrect assumption that the only method to provide a warning is directly on the bat.

¶27 H&B disregards our prior approval of a flexible standard of proof in products

liability cases and argues the “rule” of causation we adopted in Riley is paramount.

There, Riley was injured in a motorcycle accident and sued Honda, asserting claims of

manufacturing and design defect and failure to warn. The district court dismissed Riley’s

failure to warn claim, and he appealed. Riley, 259 Mont. at 130, 856 P.2d at 197. On

appeal, Riley argued that his testimony relating to his respect for machinery and concern

for safety was sufficient evidence from which to infer that he would have operated the

motorcycle differently had he been warned of its propensity to wobble. The majority

concluded that plaintiffs could satisfy the causation element by presenting evidence that a

warning would have altered their conduct, but noted Riley had not done so. Id. at 132-33,

856 P.2d at 198-99. The dissent in Riley advocated for the adoption of a rebuttable

presumption, reasoning that requiring a plaintiff to testify about whether he or she would

have read and heeded a warning was speculative and self-serving and impossible if the

plaintiff died. Id. at 136-37, 856 P.2d at 201 (McDonough, J., dissenting).

¶28 Contrary to H&B’s argument that Riley developed the “rule” of causation in

failure to warn cases, our decision in Riley was not intended to limit the flexible standard

of proof in products liability cases. Subsequent cases citing Riley illustrate that it

provides only one method for proving causation. See Emery v. Federated Foods, Inc.,
10
262 Mont. 83, 92, 863 P.2d 426, 433 (1993); Wood, 286 Mont. at 30, 952 P.2d at 1383.

For example, in Emery, we noted causation “can be satisfied by evidence indicating that a

warning would have altered the plaintiff’s use of the product or prompted the plaintiff to

take precautions to avoid the injury.” Emery, 262 Mont. at 92, 863 P.2d at 433 (emphasis

added).

¶29 Further, Riley is distinguishable from Patches’ situation because Brandon is

deceased. And, as predicted by the dissent in Riley, it would be unfair and unjust to apply

Riley’s self-serving “magic-words” requirement here. The District Court recognized this

and, relying on Schutte v. Celotex Corporation, 492 N.W.2d 773 (Mich. App. 1992),

properly allowed the jury to infer that Patches would have heeded a warning had one

been given. Although Schutte is a negligence case involving failure to warn, we find that

its rationale for permitting an inference is applicable to products liability failure to warn

claims:

In certain situations . . . where the consequences . . . are severe, the lack of
warning is undisputed, and the person . . .is dead, the jury may be permitted
to infer that a warning would have been heeded and that the failure to warn
was a proximate cause of the injury. Not only would it be virtually
impossible to prove what the decedent would have done had he been
warned, but, as a practical matter, nothing more is added in this case by
having a witness merely state that, had the danger been known. . . he would
have acted to avoid the danger.

Schutte, 492 N.W.2d at 777.

¶30 The District Court properly applied a flexible standard of proof and acted in

accordance with our precedent, including Riley. H&B’s Rule 50(b) motion was properly

11
denied because there was not a complete lack of evidence to justify withholding the issue

from the jury. Testimony that Brandon followed guidelines and that his teammates quit

using aluminum bats and switched to wood bats after his death warranted submitting

Patches’ failure to warn claim to the jury.

¶31 Issue 3: Did the District Court properly grant Patches’ motion in limine

regarding H&B’s assumption of the risk defense?

¶32 The District Court concluded Brandon’s voluntary participation in the game did

not make assumption of the risk applicable. H&B argues that because Brandon had been

hit by batted balls before, he knew he could be hit and, therefore, assumed the risk when

he continued playing baseball.

¶33 Section 27-1-719(5)(a), MCA, permits a manufacturer to assert the affirmative

defense of assumption of the risk where “[t]he user or consumer of the product

discovered the defect or the defect was open and obvious and the user or consumer

unreasonably made use of the product and was injured by it.” We clarified the

assumption of the risk defense in Lutz v. National Crane Corporation, where we held the

defense is inapplicable as a matter of law without evidence the victim actually knew he or

she would suffer serious injury or death, and, knowing that, the victim voluntarily

exposed himself or herself to the danger. Lutz v. Natl. Crane Corp., 267 Mont. 368, 379-

80, 884 P.2d 455, 461-62 (1994). What the victim actually knew is evaluated using a

subjective standard. Id.

12
¶34 Assumption of the risk was not applicable here because there is no evidence that

Brandon actually knew he would be seriously injured or killed when pitching to a batter

using one of H&B’s model CB-13 aluminum bats. In other words, H&B failed to show

that Brandon was aware of the enhanced risks associated with the model CB-13

aluminum bat, and, knowing that, he voluntarily proceeded to pitch to a batter using that

bat. The District Court did not abuse its discretion in granting Patches’ motion in limine.

¶35 Issue 4: Did the District Court properly instruct the jury?

¶36 The District Court instructed the jury on failure to warn as follows:

Instruction No. 15

A product may cause injury because of inadequate warning. In order to
recover for such injury, the Plaintiff must prove:

First, that the Defendant manufactured or sold the product in a defective
condition because of a failure to adequately warn of those dangers which
would not be readily recognized by a bystander.

Second, that the failure to provide adequate warning caused injury to the
Plaintiff.

(Emphasis added.) The District Court substituted “bystander” for “ordinary user of the

product” based upon Montana Pattern Jury Instruction (Second) § 7.00, which provides

that “in cases of injuries to bystanders, the court should modify the ‘user’ language

accordingly.”

¶37 H&B argues the substitution of “bystander” is erroneous and, relying on Riley,

asserts the court erred in refusing to adopt H&B’s proposed final sentence to Instruction

No. 15: “Causation for a failure to warn claim requires proof that a warning would have
13
altered the use of a product or prompted precautions to avoid the injury.” H&B also

argues a new trial is required because Instruction No. 15 was inconsistent with the verdict

form, which asked: “Did the Defendant fail to adequately warn of those dangers which

would not be readily recognized by the ordinary user of the product?” (Emphasis added.)

¶38 “Jury instructions must fully and fairly inform the jury of the law applicable to the

case.” Peterson v. St. Paul Fire & Marine Ins. Co., 2010 MT 187, ¶ 33, 357 Mont. 293,

239 P.3d 904. Plain, clear, concise, and brief jury instructions promote verdicts

consistent with the evidence and the law. Id. The party challenging a jury instruction

must demonstrate prejudice. We will not find prejudice where the instructions state the

applicable law of the case. McAlpine v. Rhone-Poulenc Ag Co., 2000 MT 383, ¶ 16, 304

Mont. 31, 16 P.3d 1054.

¶39 As a whole, the instructions correctly instructed the jury on the law applicable to

this case. Although the District Court replaced “user” with “bystander,” Instruction No.

15 included a second requirement that “the failure to provide adequate warning caused

injury to the Plaintiff,” and the verdict form focused on the user of the product, rather

than a bystander. The jury obviously determined Brandon was a user of the product. As

noted in Issue 2, Riley is not the applicable rule of causation here. We find no prejudice

in the court’s refusal of H&B’s Riley-based proposed addition to Instruction No. 15. Any

inconsistency between the verdict form and Instruction No. 15 is harmless because it did

not prejudice H&B’s substantial rights. See State v. Schmidt, 2009 MT 450, ¶ 26, 354

Mont. 280, 224 P.3d 618.
14
¶40 Issue 5: Should the verdict be set aside and a new trial granted?

¶41 Relying on § 25-11-102, MCA, H&B argues it is entitled to a new trial because

there was not sufficient causation evidence presented to justify the verdict and an error in

law occurred at trial when the court rejected H&B’s Riley argument and adopted an

inference. H&B’s current argument re-hashes its arguments raised in Issues 1 and 2. We

decline to discuss these arguments any further.

CONCLUSION

¶42 The District Court properly denied H&B’s motion for summary judgment on

Patches’ failure to warn claim because H&B is subject to liability to all players, including

Brandon, for the physical harm caused by its bat’s increased exit speed, and genuine

issues of material fact existed regarding the causation element of Patches’ claim. Riley is

not applicable here, as Brandon is deceased. The District Court appropriately applied a

flexible standard of proof in denying H&B Rule 50(b) relief. Further, the District Court

correctly prohibited H&B from arguing Brandon assumed the risk and properly instructed

the jury on the applicable Montana law. A new trial is not warranted.

¶43 We affirm.

/S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
15
/S/ BETH BAKER
/S/ BRIAN MORRIS

Justice Jim Rice, concurring.

¶44 I concur with the Court’s determination under Issue 1 that Patches stated a legally

valid claim. H&B argues that § 27-1-719, MCA, limits product liability claims to “users

and consumers” of the product, and does not extend to bystanders. Because, as the Court

reasons, “all of the players, including Brandon, were users or consumers” in the context

of a baseball game, Opinion, ¶ 17, the statute is facially broad enough to encompass

Patches’ claim under strict products liability law.

¶45 While I concur that Patches have stated a legally valid claim, I remain troubled by

the evidentiary basis for the failure to warn claim. Patches did not articulate specifically

what a warning should have contained and what message should have been given.

Statements to the effect that the bat would hit balls at unusually fast speeds or unusually

far distances are the kind of messages accompanying usual product advertising and are

precisely the qualities in a bat which baseball teams and players seek out. Neither did

Patches articulate specifically how a warning would have changed the result here, in

other words, how the failure to warn caused this accident. During oral argument before

16
this Court, when Patches’ counsel was asked to articulate Patches’ theory of causation—

or how a warning would have prevented the accident—he was vague, offering only what

the jury may have concluded.

¶46 The closing argument Patches made to the jury seemed to reflect the stretch which

they asked the jury to make:

They don’t have warnings on these bats. There’s nothing said on these bats
about what these bats can do. And that your child, whether he’s 15, 16, 17,
18, 19 -- if your child is playing and he’s a pitcher, he could be killed, as
what happened here July 25, 2003.

. . .

Now I ask you this -- I ask you-all this: If you had a child 17 or 18
years old and he wanted to be a pitcher and the bat that the kid was bringing
up to the plate warned -- warned -- that this bat could kill -- Mr. [a]nd Mrs.
Patch didn’t have the benefit of any warning.

Patches’ apparent theory, as articulated in closing argument, was that H&B should have

advertised that its bat “could kill,” or that players engaged in the game of baseball “could

be killed” if their bat was used. As alluded to in testimony, the inference which Patches

asked the jury to draw in order to establish causation was that, following the publishing

of a warning “that this bat could kill,” they as parents would have, and could have,

prohibited Brandon from playing baseball that day.

¶47 As the Court notes, “the ‘workability’ of providing a warning is a jury question.”

Opinion, ¶¶ 19, 21. There is no doubt that the jury in this case was given a difficult task.

Because the law gives to the jury the duty of determining whether the plaintiff presented

17
a viable theory of warning and causation in this case involving a baseball bat, I defer to

the jury’s judgment and likewise affirm their verdict.

/S/ JIM RICE

18