Wankier v. Crown Equipment Corp.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 23 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

PAULA WANKIER,

Plaintiff-Appellee,

v. No. 02-4147

CROWN EQUIPMENT
CORPORATION,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:00-CV-454-K)

Michael L. O’Donnell (Darcy M. Goddard, Wheeler Trigg & Kennedy, P.C.,
Denver, Colorado and Lee Mickus, Snell & Wilmer, LLP, Denver Colorado, with
him on the brief), Wheeler Trigg & Kennedy, P.C., Denver, Colorado, for
Defendant-Appellant.

Michael P. Zaccheo (Christian S. Collins with him on the brief), Richards Brandt
Miller & Nelson, Salt Lake City, Utah, for Plaintiff-Appellee.

Before SEYMOUR, HENRY, and McCONNELL, Circuit Judges,

McCONNELL, Circuit Judge.
 Crown Equipment Corporation (“Crown”) appeals a jury verdict for

Plaintiff Paula Wankier in this products liability action, which is governed by

Utah law. Ms. Wankier was the operator of an electric pallet jack, also known as

a “walkie-rider,” manufactured by Crown. While operating the walkie-rider in a

warehouse, Ms. Wankier drove the machine into a conveyor belt. Her leg was

caught between the conveyor and the walkie-rider, causing severe and permanent

injuries to her leg. Ms. Wankier brought suit against Crown in federal district

court in the District of Utah, pursuant to diversity jurisdiction.

Ms. Wankier claimed that the accident occurred because the walkie-rider

contained a latent defect: that when the control arm, which is used to regulate the

power and direction of the machine, is slipped from the “power on” position to a

neutral zone between the “power on” and the brake application position, the

machine’s power cuts out, the machine coasts, and the operator loses control over

it. Crown concedes this fact regarding the machine’s operational capabilities.

Crown Br. at 3. Ms. Wankier asserted strict liability claims for design defect and

inadequate warnings, as well as negligence claims related to product design and

inadequate warnings. Her case at base rested on the contention that Crown should

have eliminated or changed the location of the neutral – or coast – position of the

control arm, and also that Crown should have equipped the walkie-rider with a

guard rail attached to the back of the machine’s operator platform.

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 The district court granted partial summary judgment in favor of Crown on

the inadequate warning claims. App. 531. After a six-day trial, the jury found in

favor of Crown on Ms. Wankier’s negligent design claim, but found for Ms.

Wankier on the strict liability design defect claim. The jury awarded special

damages in the amount of $210,000 and general damages in the amount of

$90,000. The district court reduced the overall award to $240,000 to reflect the

jury’s finding that Ms. Wankier was 20% at fault for the accident. It also

awarded costs and interest.

Prior to trial, Crown submitted two proposed jury instructions, both of

which informed the jury that the plaintiff bore the burden of showing the

existence of a safer, feasible, alternative design. 1 Crown contended that this

1
First, Crown proposed the following instruction on the elements of a strict
liability design defect claim:
In order to establish her claim for strict liability in tort,
Plaintiff Paula Wankier has the burden of proving each of the
following four elements by a preponderance of the evidence:
First, that the Defendant Crown Equipment manufactured a
product which, at the time it was sold, was in a defective condition
that made the product unreasonably dangerous to the user; and
Second, that the product reached the ultimate user without
substantial change in the condition in which Defendant Crown
Equipment sold it; and
Third, that any defective condition in the product proximately
caused the injury to the Plaintiff Paula Wankier; and
Fourth, at the time the Defendant Crown Equipment sold the
product, a safer alternative design was available and practicable
under the circumstances.
(continued...)

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instruction was required under controlling Tenth Circuit precedent, Allen v.

Minnstar, Inc., 8 F.3d 1470 (10th Cir. 1993). Ms. Wankier argued that, in light of

subsequent decisions by the Utah Supreme Court, there was no requirement under

Utah strict products liability law that the plaintiff show the existence of a safer

alternative design. The district court declined to give Crown’s proposed jury

instructions:

The court declines to give proposed instructions 16 and 16-A from
defendant for the reasons that I have previously explained. I do not
believe that Utah law – and if I’m wrong, I’m sure if you lose you’ll
go up and see what the Circuit says about it. I’ll give my proposed
instruction 20. I am not convinced that Utah law requires, as an
element of plaintiff’s case, a safer alternative design.

App. 1613-14. 2 Noting the fact that the Utah Supreme Court had not had the

1
(...continued)
Def.’s Requested Jury Instruction No. 16, App. 672.
In the alternative, Crown requested this instruction:
To prove the existence of a design defect with respect to
Crown’s Walkie-Rider, Plaintiff Paula Wankier must show, by a
preponderance of the evidence, that a safer, technically feasible,
alternative design that was practicable in terms of cost was available
to Crown at the time the Walkie-Rider was sold.
Def.’s Requested Jury Instruction No. 16A, App. 673.
2
Instruction No. 20, the district court’s instruction covering the elements of
strict liability, reads:
I will now instruct you as to the law of strict products liability. A
manufacturer of a product is liable for damages resulting from
physical harm to the ultimate user or consumer when:
1. At the time the product was sold by the manufacturer, there
was a defect or defective condition in the product, which made the
product unreasonably dangerous for its anticipated or reasonably
(continued...)

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opportunity to rule on the law applicable to a strict liability design defect claim,

the district court noted:

And this tea leaf reading thing on what the Utah Supreme Court will
or will not do is a very interesting question. But they did sort of
survey the waterfront in House[ v. Armour of Am., Inc., 929 P.2d 340
(Utah 1996)]. Now, why they didn’t refer to, what is it, Allen, I
don’t know. But it looks to me like as they surveyed the waterfront,
what they really found was that plaintiff’s burden is that the subject
product failed to perform as safely as an ordinary consumer or user
would expect when used in an intended or reasonably foreseeable
manner, which is language from that House v. Armour [opinion] on
Page 344. And if you look at the Model Utah Jury Instruction 12.4,
definition of defective design, that’s my best reading of the Utah tea
leaf.

Mot. Hr’g Tr. 59-60, App. 877-78 (italics added).

The principal issue on appeal is whether the district court erred, as a matter

of Utah law, in declining to instruct the jury that a plaintiff alleging design defect

2
(...continued)
foreseeable use; and
2. The manufacturer, wholesaler, retailer or distributor is
engaged in the business of selling the product; and
3. Plaintiff’s injuries and damages are proximately caused by
the defective condition.
A manufacturer of a defective and unreasonably dangerous product is
liable for injury and damage to the ultimate user or consumer under
the above circumstances even though:
1. The product manufacturer or seller who placed the product in
the stream of commerce has exercised reasonable, or the utmost, care
in design of the product; and
2. The user or consumer has not bought the product from or
entered into contractual relation with the product manufacturer or
seller.
Jury Instruction No. 20, App. 783.

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in a strict liability action must prove the existence of a safer alternative design,

practicable under the circumstances and available at the time defendant placed the

product in the stream of commerce. We have jurisdiction pursuant to 28 U.S.C. §

1291 and reverse.

Analysis

In cases arising under a federal court’s diversity jurisdiction, the task of the

federal court is not to reach its own judgment regarding the substance of the

common law, but simply to “ascertain and apply the state law.” Huddleston v.

Dwyer, 322 U.S. 232, 236 (1944); see also Erie R.R. v. Tompkins, 304 U.S. 64

(1938). The federal court must defer to the most recent decisions of the state’s

highest court. Blackhawk-Central City Sanitation Dist. v. Am. Guar., 214 F.3d

1183, 1194 n.4 (10th Cir. 2000). Where no controlling state decision exists, the

federal court must attempt to predict what the state’s highest court would do. In

performing this ventriloquial function, however, the federal court is bound by

ordinary principles of stare decisis. Thus, when a panel of this Court has

rendered a decision interpreting state law, that interpretation is binding on district

courts in this circuit, and on subsequent panels of this Court, unless an

intervening decision of the state’s highest court has resolved the issue. Id.; see

Koch v. Koch Indus., Inc., 203 F.3d 1202, 1231 (10th Cir. 2000).

The Utah Supreme Court adopted the doctrine of strict products liability, as

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defined in Section 402A of the Restatement (Second) of Torts, in Ernest W. Hahn,

Inc. v. Armco Steel Co., 601 P.2d 152, 158 (Utah 1979). But it has not addressed

whether the plaintiff bears the burden of showing a safer alternative design in a

strict liability design defect case. In Allen, this Court examined the then-current

state of Utah products liability tort law, and concluded the plaintiff, in a design

defect case, “bear[s] the burden of showing that an alternative, safer design,

practicable under the circumstances, was available at the time the [products] were

sold.” 8 F.3d at 1479; see also Brown v. Sears, Roebuck & Co., 328 F.3d 1274,

1279 (10th Cir. 2003) (noting holding of Allen regarding standards for strict

liability design defect claims under Utah law). 3

Ms. Wankier argues that the Utah cases subsequent to Allen demonstrate

that a Utah court would not require plaintiffs to prove an element of a safer,

feasible alternative design as an element of a strict liability design defect claim.

These cases stand for the following proposition:

To plead a case of strict products liability against a manufacturer, a
plaintiff must allege (1) that the product was unreasonably dangerous
due to a defect or defective condition, (2) that the defect existed at
the time the product was sold, and (3) that the defective condition
was a cause of the plaintiff’s injuries.

Lamb v. B & B Amusements Corp., 869 P.2d 926, 929 (Utah 1993); see also

3
We note that the authors of the Restatement (Third) of Torts have adopted
this requirement of proof of a safer alternative design. See Restatement (Third) of
Torts, Prod. Liab. § 2(b) (1998).

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House v. Armour of Am., Inc., 929 P.2d 340, 343, 344 (Utah 1996) (applying

Restatement (Second) of Torts § 402A standard for strict liability and quoting

comment i, regarding the doctrine of open and obvious danger); Burns v.

Cannondale Bicycle Co., 876 P.2d 415, 418 (Utah App. 1994). None of these

cases are apposite because none involve design defect issues. Nor do any of the

cases discuss or cite Allen. See House, 929 P.2d at 342 (duty to warn claim);

Lamb, 869 P.2d at 929 (manufacturing defect claims); Burns, 876 P.2d at 416-17

(manufacturing defect claim). The very recent case of Schaerrer v. Stewart’s

Plaza Pharmacy, Inc., 79 P.3d 922, 928 (Utah 2003), similarly recites the

elements noted above, but like the earlier decisions does not reach the issue

before us. The Schaerrer court concluded that the defendant in that case, a

pharmacist mixing “fen-phen” capsules, was shielded by the “learned

intermediary rule.” See id.

These distinctions are consequential. In neither duty-to-warn claims nor

manufacturing defect claims does the issue of a safer alternative design logically

arise. A manufacturer or distributor may have a duty to warn of latent dangers

even if there is no feasible way to produce a safer product; the purpose of the

warning is to enable the user to take appropriate steps to avoid the hazard.

Similarly, a manufacturing defect claim, by its nature, involves a deviation from

the product’s design specifications, to the injury or potential injury of a user. The

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gravamen of the tort is not defective design but defective execution of the design.

In a case involving an allegedly defective design, however, the existence of a

safer feasible design may be thought relevant to determining whether the design is

defective or whether the product is simply unavoidably dangerous. See

Grundberg v. Upjohn Co., 813 P.2d 89, 92 (Utah 1991) (distinguishing between

design defect claims and manufacturing defect and inadequate warning claims for

purposes of the exemption from strict liability for unavoidably unsafe products, as

discussed in the Restatement (Second) of Torts, section 402A, comment k).

In the absence of intervening Utah authority indicating that a plaintiff is not

required to prove a safer, feasible alternative design, we are bound to follow the

rule of Allen, as was the district court. “Following the doctrine of stare decisis,

one panel of this court must follow a prior panel’s interpretation of state law,

absent a supervening declaration to the contrary by that state’s courts or an

intervening change in the state’s law.” Koch, 203 F.3d at 1231.

Where an appellate court determines that the district court has given a

legally erroneous jury instruction, the judgment must be reversed “if the jury

might have based its verdict on the erroneously given instruction.” Townsend v.

Lumbermens Mut. Cas. Co., 294 F.3d 1232, 1242 (10th Cir. 2002) (quoting

Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1202 (10th

Cir.1997). Under our precedents, reversal is necessary “[e]ven if that possibility

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is ‘very unlikely[.]’” City of Wichita v. United States Gypsum Co., 72 F.3d 1491,

1495 (10th Cir. 1996) (quoting Adams-Arapahoe Joint Sch. Dist. No. 28-J v.

Cont’l Ins. Co., 891 F.2d 772, 780 (10th Cir. 1989)).

A district court’s failure to inform the jury of all the elements essential to a

plaintiff’s claim necessarily misleads the jury. See Thomas v. Denny’s, Inc., 111

F.3d 1506, 1508 (10th Cir. 1997) (“the court’s definition of the prima facie case

was erroneous . . . . Accordingly, we reverse the jury verdict . . . .”); see also

Powers v. MJB Acquisition Corp., 184 F.3d 1447, 1152-53 (10th Cir. 1999)

(district court’s refusal to instruct on element essential for an award of damages

constituted reversible error). In this case, there is no doubt that the erroneous

instruction regarding Plaintiff’s burden to show a safer alternative design may

have misled the jury. Plaintiff’s counsel even relied on this missing element in

closing argument: “It doesn’t say anywhere in these instructions that plaintiff has

to solve the problem . . . . [I]t’s not required. We don’t have to prove that there’s

a better alternative.” Tr. 989, App.1751.

Crown also challenges the district court’s decision to permit Ms. Wankier’s

expert, Fred Smith, to testify. Among other complaints, Crown contends that

Smith was not qualified to testify regarding the existence of a safer alternative

design. Because the district court’s ruling on this issue may have been affected

by the court’s ruling that Plaintiff did not need to establish the existence of a

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safer alternative design, on remand it will be necessary for the district court to

revisit this issue.

Conclusion

For the foregoing reasons, the verdict of the jury regarding Ms. Wankier’s

strict liability design defect claim against Crown is REVERSED, the judgment of

the district court on that claim is VACATED, and the case is REMANDED to the

district court for proceedings consistent with this opinion.

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