593 P.2d 871 (Alaska 1979)
On June 24, 1973, Derald Allen Beck was killed when the Caterpillar 944 front-end loader he was operating rolled over an embankment.1
Beck was a partner in the family excavation business Nenana Excavators.2 He was roading the ten-ton loader in reverse at approximately 10 to 15 miles per hour on a dirt and gravel road with soft shoulders when the machine sank into the shoulder, rolled onto its side, flipped 180 degrees, and fell down a seven-foot embankment.3 Beck was crushed beneath the loader, pinned between the steering wheel and part of the seat.4
The loader, manufactured by Caterpillar in 1964 and purchased used by the business in 1967, was equipped with a fiberglass weather canopy but no rollover protective structure.5
Paula Beck, the decedent's widow and personal representative, sued Caterpillar Tractor Company in strict products liability, alleging that the failure to equip the 944 loader with a ROPS constituted a design defect.6 The family business was also sued but was dismissed after a directed verdict because Beck was a partner.7
At trial, experts disputed the availability of ROPS technology in 1964, with evidence that some auxiliary manufacturers offered roll-over capable canopies by the early 1960s, that Caterpillar began testing ROPS in 1966, and that it began installing them as standard equipment on later models in 1969.8 The jury found by special verdict that the absence of a ROPS was a design defect that proximately caused Beck's death, awarded $817,189 in damages, and found that Beck had known of the defect and voluntarily and unreasonably proceeded to use the product, reducing the award by 50 percent.9
Caterpillar appealed, challenging the jury instructions on the definition of design defect, the application of comparative negligence, and certain evidentiary rulings regarding marketing methods and the decedent's knowledge.10 Beck cross-appealed the submission of comparative negligence to the jury.11 The Supreme Court of Alaska reversed the judgment and remanded for a new trial.12
Whether the trial court erred in instructing the jury that a design defect exists whenever injury is proximately caused by a design feature or the lack of one?13
In strict products liability a manufacturer is liable when an article placed on the market proves to have a defect that causes injury to a human being.14 For design defects the term defect must be defined for the jury using the Barker two-prong test.15 Under this test the product is defective if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.16 Alternatively the product is defective if the design proximately caused injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in the design.17
Yes. The instruction given to the jury stated that a design defect exists when the product incorporates or fails to incorporate a design feature with the result that injury is proximately caused thereby.18 This is a circular definition tantamount to absolute liability.19 It equates any injury-causing design feature with defect without requiring the jury to apply consumer expectations or risk-utility balancing.20
The established facts show that the jury was given only this circular guidance on whether the absence of a ROPS on the 1964 Caterpillar 944 loader constituted a defect.21 Experts disputed ROPS availability in 1964.22 The jury ultimately found a defect that proximately caused Derald Beck's death.23 The trial court therefore erred by failing to provide the jury with the proper framework for evaluating design defectiveness under the facts of this loader's manufacture and marketing.24
The trial court erred in its instruction on the definition of design defect and the judgment must be reversed.25
Whether the trial court properly instructed the jury on comparative negligence in a strict products liability action where the alleged design defect is the absence of a safety device?26
Comparative negligence applies in strict products liability actions.27 When the design defect consists of the absence of a safety device the plaintiff may be comparatively negligent only if the plaintiff voluntarily and unreasonably encounters a known risk.28 Mere knowledge of the missing safety feature or general negligence in operating the product does not reduce recovery.29 This is because the manufacturer bears the primary responsibility for installing feasible safety devices.30
Yes. The trial court instructed the jury that comparative negligence applies only when the decedent knew of the design defect consisting of the absence of a ROPS, knew of the risk, and voluntarily and unreasonably proceeded to use the loader.31 This correctly limits the defense to the assumption of a known risk standard.32 It prevents reduction of recovery based solely on the user's knowledge that the loader lacked rollover protection.33
The established facts show that Derald Beck operated the used 944 loader without a ROPS on a soft-shouldered road.34 The jury found he had known of the defect and unreasonably encountered the risk.35 Damages were reduced by fifty percent.36 Yet the instructions properly channeled the jury away from considering general negligence or failure to install a ROPS after purchase.37
The instructions therefore correctly applied comparative negligence principles to the facts of this safety-device defect case.38
The trial court properly instructed the jury on comparative negligence.39
Related opinions on this issue
Justice Burke agrees with and joins in the separate opinion of Senior Justice Dimond to the extent that it is not inconsistent with the view expressed in his own dissenting opinion in Butaud v. Suburban Marine & Sporting Goods, Inc.40 He therefore dissents from the majority's approval of the trial court's instructions on the issue of comparative negligence.41 In all other respects, Justice Burke concurs with the majority opinion.42
Justice Dimond dissents from the approval of the comparative negligence instructions.43 He believes the ordinary reasonably prudent person standard used to define unreasonable conduct is too lenient in a strict liability case.44 The proper test requires highly unreasonable conduct or a substantial departure from ordinary care.45
Under that standard reasonable minds could reach only the conclusion that Beck was not at fault for operating the loader.46 The issue should not have been submitted to the jury at all.47 This approach better serves the policies of strict liability by not shifting responsibility to the consumer who lacks the ability to assess risks or install safety devices.48
Whether the trial court erred in refusing Caterpillar's proposed instructions on the state of the art at the time of manufacture and on the manufacturer's duty to make the product accident-proof?49
A manufacturer is not an insurer of its product.50 It has no duty to make the product accident-proof.51 It must consider reasonably foreseeable uses.52 The state of the art at the time of manufacture is relevant to the feasibility of an alternative design.53 However conformity with industry practice or technological limits at the time does not constitute a defense to strict liability.54
No. The trial court properly refused Caterpillar's proposed instructions.55 Those instructions stated that a manufacturer has no duty to design the product to make it accident proof.56 They also allowed the jury to consider the state of the art.57 Those instructions improperly focused the jury's attention on the manufacturer's conduct rather than the condition of the product.58
The state of the art instruction failed to clarify that industry practice is relevant only to feasibility and not as a complete defense.59 The established facts show that Caterpillar made a deliberate decision not to install any protective canopy on the 944 model in 1964.60 ROPS testing began only in 1966.61 The refused instructions would have directed the jury to consider the manufacturer's 1964 knowledge and marketing choices instead of evaluating the product's design under the risk-utility factors.62
The trial court therefore did not err in rejecting the proposed instructions.63
The trial court did not err in refusing Caterpillar's proposed instructions.64