Allen v. Minnstar, Inc.

97 F.3d 1365, 1996 U.S. App. LEXIS 26662, 1996 WL 583809
CourtCourt of Appeals for the Tenth Circuit
DecidedOctober 11, 1996
Docket95-4060
StatusPublished
Cited by51 cases

This text of 97 F.3d 1365 (Allen v. Minnstar, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Minnstar, Inc., 97 F.3d 1365, 1996 U.S. App. LEXIS 26662, 1996 WL 583809 (10th Cir. 1996).

Opinions

BRISCOE, Circuit Judge.

Plaintiff Scott Allen appeals a jury verdict in favor of defendant Minnstar, Inc., dba Genmar Industries, Inc., dba Wellcraft Marine (Wellcraft) on plaintiffs strict product liability claims. Plaintiff also appeals the district court’s denial of his motion for judgment notwithstanding the verdict or, in the alternative, for new trial. The claims arise out of a boating accident in which plaintiff was struck and severely injured by the propeller on a boat manufactured by defendant. We affirm.

The underlying facts of this ease are straightforward. On August 30, 1985, plaintiff and some friends went for a midnight ride on Lake Powell in a boat manufactured by defendant. The boat, a 1978 Wellcraft Marine, Model 165 Airslot I/O, was approximately 16.5 feet in length and contained seating for passengers in the bow area. Plaintiff alleged he was sitting in the bow area of the boat when, in order to avoid an apparent obstacle in the water, the driver accelerated and made a sharp turn, causing plaintiff to fall overboard into the water. Plaintiff was struck by the boat’s unguarded propeller and received severe lacerations to his left leg, resulting in the eventual amputation of the leg above the knee, and injuries to his right leg, and he was forced to undergo a colostomy due to abdominal injuries.

Plaintiff filed suit against Wellcraft and Outboard Marine Corporation (OMC), the maker of the boat’s engine, asserting a variety of strict product liability claims. With respect to Wellcraft, plaintiff alleged the boat was defectively designed and unreasonably dangerous in several respects, including the following: (1) it was not equipped with a propeller guard; and (2) the bow seating arrangement allowed passengers to be easily ejected during sharp turns. Plaintiffs propeller guard allegations, as well as his claims against OMC, were dismissed on summary judgment. See Allen v. Minnstar, 8 F.3d 1470 (10th Cir.1993).

Plaintiffs remaining claims against Well-craft were tried to a jury in January 1995. After eight days of trial and two days of deliberation, the jury concluded the boat was [1368]*1368not unreasonably dangerous and returned a verdict in favor of Wellcraft. Plaintiff filed a motion for judgment notwithstanding the verdict or, in the alternative, for new trial, which was denied by the district court.

A. Product misuse

Plaintiff argues the district court erred in allowing defendant to present evidence of misuse, and in instructing the jury on the defense of misuse.1 Although the trial transcript was not included in the record on appeal, plaintiff asserts the court allowed defendant to introduce evidence suggesting that, at the time of the accident, plaintiff was sitting on the gunwale of the boat rather than in the bow seat as alleged by plaintiff. Plaintiff claims such evidence, even if believed by the jury, constitutes foreseeable misuse, which is not a defense to his strict liability claim. Accordingly, plaintiff claims, such evidence should not have been introduced, and the jury should not have been instructed on the misuse defense.

It is well established that the admission or exclusion of evidence lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. Wheeler v. John Deere Co., 935 F.2d 1090, 1099 (10th Cir.1991). With respect to a district court’s jury instruction decisions, i.e., whether or not to give a particular instruction, we likewise review for abuse of discretion. Lyon Development Co. v. Business Men’s Assur. Co. of America, 76 F.3d 1118, 1124 (10th Cir.1996). As for the instructions themselves, we conduct a de novo review to determine whether, as a whole, the instructions correctly stated the governing law and provided the jury with an ample understanding of the issues and applicable standards. Rios v. Bigler, 67 F.3d 1543, 1549 (10th Cir.1995).

Misuse of a product by a consumer has been recognized by the Utah Supreme Court as an affirmative defense to a strict product liability claim. Ernest W. Hahn v. Armco Steel Co., 601 P.2d 152, 158 (Utah 1979). When a defendant asserts this defense and introduces evidence of misuse on the part of a plaintiff, comparative fault principles are applied and the jury is asked to consider “the relative burden each [party] should bear for the injury they have caused.” Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301, 1303 (Utah 1981) (comparative fault principles apply in strict liability case where there is misuse of product by consumer).

Notwithstanding the availability of this defense, however, most states that allow the defense have held it is not applicable if the particular type or manner of misuse at issue was foreseeable by the defendant. To date, the Utah courts have not decided this question. See Mulherin, 628 P.2d at 1304 n. 11 (“[TJhere is no occasion on the facts of this case to determine whether some kinds of ‘misuse’ are so foreseeable that the manufacturer or seller is bound to anticipate and protect against them, so they are not available as a defense to strict liability.”). Nevertheless, the district court in the present case adopted this foreseeability test and instructed the jury it was to decide whether plaintiffs alleged misuse, if proven by defendant, was foreseeable to defendant.

Although plaintiff does not question the district court’s adoption of the foreseeability test, he contends the court should have decided, as a matter of law prior to trial, that a passenger sitting on the gunwale of a boat constitutes foreseeable misuse. We disagree. Most states that recognize the misuse defense generally treat foreseeability of misuse as a jury question. See, e.g., Leon v. Caterpillar Indus., 69 F.3d 1326, 1342 (7th Cir.1995) (under Indiana law, foreseeability of an intervening misuse is usually a question for the jury); Perlmutter v. U.S. Gypsum Co., 4 F.3d 864, 873 (10th Cir.1993) (noting Colorado courts have held that whether a use or a manner of use is reasonably foreseeable is a jury question, and a defendant raising such an issue is entitled to an instruction on misuse); Gootee v. Colt Industries, 712 F.2d 1057, 1066 n. 9 (6th Cir.1983) (noting under [1369]*1369Michigan law, “it is for the jury to determine to what extent a risk [of misuse] is foreseeable and must be guarded against” by manufacturer); Moran v. Faberge, 273 Md. 538, 332 A.2d 11, 16 (1975) (noting “there is a vast middle ground of product uses about which reasonable minds could disagree as to whether they are or should be foreseeable to the manufacturer, thus requiring resolution by the trier of fact.”); see generally John F. Vargo, The Emperor’s New Clothes: The American Law Institute Adorns a “New Cloth” for Section 402A Products Liability Design Defects—A Survey of the States Reveals a Different Weave, 26 Mem. St. U.L.Rev. 493 (1996) (noting issue of foreseeability of product misuse is usually a jury question).

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Cite This Page — Counsel Stack

Bluebook (online)
97 F.3d 1365, 1996 U.S. App. LEXIS 26662, 1996 WL 583809, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-minnstar-inc-ca10-1996.