798 F.3d 1343 (10th Cir. 2015)
In 1980 Terex’s predecessor manufactured and sold the portable rock-crushing plant at issue.1 The plant consisted of a set of wheels, chassis, feeder system, crusher with one stationary and one movable jaw, diesel engine, conveyor, and a toggle plate connected to the bottom of the movable jaw by tension rods.2 Terex’s operation and maintenance manual stated that the toggle plate serves as a safety device that will break when uncrushable material is encountered.3 Its safety manual warned to use extreme caution when removing tramp iron from the crusher because stored energy in the jaw could cause serious bodily injury.4 The warning was accompanied by an illustration of a worker being struck by an ejected object.5
Harper Sand and Gravel acquired the plant in 1999 and later removed the crossmember and replaced the original diesel engine with an electric motor.6 In June 2008 Harper ordered and installed a new toggle plate from Terex.7 On August 2, 2008, a boulder became stuck in the crushing chamber; workers then lowered a 19-inch metal ripper tooth on a chain into the jaws, where it broke off and jammed.8 The toggle plate did not break. Kirkbride climbed into the crusher with an acetylene torch to cut the tooth, which then shot out and struck him in the neck and jaw.9
A few days after the accident the plant resumed operation without replacing the toggle plate. Harper sold the plant in 2010. In July 2011 the parties inspected it and found the toggle plate was 2 inches thick.10 Kirkbride sued Terex in Utah state court on theories including negligent manufacturing and design, strict products liability for manufacturing and design defects and failure to warn, and breach of express and implied warranty. Terex removed the case to the United States District Court for the District of Utah on diversity grounds.11
Before trial Kirkbride narrowed his claims to negligence, strict products liability based on the alleged manufacturing defect in the toggle plate and inadequate warnings, breach of express warranty, and breach of the implied warranty of merchantability. At trial he withdrew the express-warranty and negligence claims.12 The jury found Terex liable on the three remaining theories and awarded Kirkbride damages of over $3.5 million.13 Terex renewed its motion for judgment as a matter of law, which the district court denied, and Terex appealed to the United States Court of Appeals for the Tenth Circuit.14
Whether Kirkbride presented sufficient evidence that Terex’s failure to provide adequate warnings caused his injury?15
Under Utah law, a manufacturer who sells a product in a defective condition unreasonably dangerous to the user is strictly liable for any physical harm caused by the defect.16 An inadequate warning may render the product unreasonably dangerous.17 But the failure to warn must be both the cause-in-fact and the proximate cause of the user’s injury.18 A rebuttable heeding presumption applies when it cannot be demonstrated what the plaintiff would have done if adequately warned.19
No. Terex’s safety manual warned workers to use extreme caution when removing tramp iron from the crusher because stored energy in the jaw could cause serious bodily injury.20 It included an illustration of a worker being struck by an ejected object.21 Kirkbride read neither the safety manual nor the operation and maintenance manual.22 He stated that he saw no reason to read a manual.23
None of the four workers present at the accident had read the manuals or received training on clearing jams from anyone who had read them.24 No evidence showed that any worker instructed Kirkbride to keep his head clear of the chamber.25 The heeding presumption was rebutted by Kirkbride’s own testimony and failure to read existing warnings.26 Any claim that additional instructions would have prevented the injury was pure speculation unsupported by the record.27
The failure-to-warn claim fails for lack of evidence on causation, requiring vacation of the jury verdict on that theory.28
Whether Kirkbride presented sufficient evidence that a manufacturing defect in the toggle plate caused his injury?29
To succeed on a manufacturing-defect claim under Utah law, a plaintiff must prove that the manufacturing defect made the product unreasonably dangerous, that the defect was present at the time of the product’s sale, and that the defect caused the plaintiff’s injury.30
No. The toggle plate installed in June 2008 and inspected in July 2011 was 2 inches thick.31 Kirkbride’s expert witness testified only that a thicker plate is more difficult to break.32 He admitted he performed no testing or calculations to determine whether a properly manufactured two-inch plate would have broken when the nineteen-inch ripper tooth jammed the jaws on August 2, 2008.33 The expert further stated he had no opinion on whether a nondefective plate would have broken under the accident conditions.34
The district court struck his speculative remark that the design itself might have been too thick.35 Without evidence that a nondefective plate would have broken and allowed the tooth to fall through safely, the jury could only speculate that the extra thickness caused the plate’s failure to break and therefore caused Kirkbride’s injury.36
The manufacturing-defect claim fails for lack of evidence on causation, requiring reversal of the jury verdict on that theory.37
Whether Kirkbride’s tort claim for breach of the implied warranty of merchantability could succeed independently of his strict-products-liability claims?38
Under Utah law the elements of a tort claim for breach of the implied warranty of merchantability are essentially the same as those for strict products liability, so that a warranty claim adds nothing once the strict-products-liability claims for manufacturing defect, design defect, or failure to warn have been rejected.39
No. Kirkbride’s implied-warranty claim rested on the same alleged manufacturing defect in the toggle plate that formed the basis of his strict-products-liability claims.40 Under Utah law the elements of the warranty claim are essentially the same as those for strict products liability. Because the evidence was insufficient to establish causation for the manufacturing defect under the strict-liability theory, the implied-warranty claim likewise fails for the same reason. It supplies no independent ground on which the judgment can be affirmed.
The implied-warranty claim cannot succeed independently and provides no basis for affirming the judgment.41