LANGSTON v. NORTHWEST ALLOYS, 137 Wn. App. 1050 (2007)

Affirmedby unpublished opinion per Schultheis, A.C.J., concurred in by Kulik, J., and Kato, J. Pro Tem.

Robert Langston was working at Northwest Alloys, Inc. (NW Alloys) as an employee of a subcontractor when he attempted to rescue a NW Alloys employee who was pinned by equipment. Mr. Langston claims he was injured inthe rescue effort. The main issue on appeal is whether the affirmative defense of fault of a nonparty was waived by the defendants' failure to identify the manufacturer of the equipment by name. We conclude that the defense was not waived. Finding no other error, we affirm. Mr. Langston was an employee of E.J. Bartells. Bartells subcontracted repair work on a large industrial kiln at the NW Alloys plant in Addy, Washington. NW Alloys owned a heavy equipment BROKK 100D for use on such projects. NW Alloys purchased the BROKK new in 1996.

The BROKK moves on steel caterpillar-type tracks (or treads). An arm protrudes from the top of its body (or turret), which can rotate 360 degrees over its tracks and outriggers. Its arm can be fitted with various attachments such as a jackhammer. Hydraulic front and rear outriggers can be set to provide extra leverage when jackhammering.

The BROKK is operated by a control box tethered to the BROKK by an 8-foot cable. The control console has left and right joysticks, which control the actions of the BROKK. On the top of the right joystick is a toggle that engages the BROKK from idle to an operational mode. The BROKK is designed to return to idle when the BROKK has been engaged for three seconds and the joysticks have not been operated.

On October 6, 1998, Brad Parrish was operating the BROKK on the refractory project, 30 feet above ground on a catwalk outside the mouth of the kiln. He had secured the control box to his body with shoulder and waist straps. A slow bleed in the BROKK's hydraulics required Mr. Parrish to periodically reset the outriggers because the tracks would slowly descend.

Mr. Parrish heard an odd noise. He thought that the jackhammer pierced the steel lining of the kiln. He disengaged the joysticks to allow the machine to reset to idle, and moved toward the kiln to investigate. Mr. Parrish claims he was holding the control box on the side corners. Terry Coble, another NW Alloys employee, was standing behind the BROKK as a spotter. Mr. Langston was standing to the right of the BROKK and Kurt Bueche, a Bartells employee under Mr. Langston's supervision, was standing next to Mr. Langston.

The BROKK suddenly moved backward and to the left, pinning Mr. Parrish against the catwalk railing. Mr. Coble and Mr. Bueche looked for an emergency power switch, but were unable to find one. The emergency switch is located on the control panel, which was pinned against Mr. Parrish's body.

Mr. Coble then grabbed the body of the BROKK by the rear corners and rotated the body to the right. Mr. Langston testified that when he saw how Mr. Coble was manipulating the BROKK, he thought he could help by applying leverage, so he cradled the jackhammer bit in his arms and pushed up while bracing his feet against the bottom faceplate of the kiln. Mr. Coble pulled Mr. Parrish to safety.

Mr. Langston reported an injury to his back and/or aggravation to a previous injury as a result of his rescue efforts. He brought an action against Mr. Parrish for negligent operation of the BROKK and against NW Alloys for failure to maintain the BROKK, to supervise Mr. Parrish, and to maintain a safe work environment. NW Alloys answered, asserting affirmative defenses of fault of a nonparty (later identified as Holmhed of Sweden, the BROKK manufacturer) as well as the contributory negligence of Mr. Langston.

Before trial, Mr. Langston asserted that NW Alloys waived its nonparty fault affirmative defense because it did not specifically identify the manufacturer in its design defect claim. The court disagreed and allowed the affirmative defense to be presented to the jury.

At trial, each party presented expert testimony concerning likely and unlikely causes of the accident. Mr. Langston put on Floyd Denman Lee, a retired physics professor from Montana State University. NW Alloys¹called Fred Smith, an engineer. Mr. Langston presented evidence that the hydraulic bleed was a maintenance issue that NW Alloys knew about for two years, but failed to repair, and that the machine should have been tagged out.

NW Alloys presented evidence that the bleed was the result of a loss of pressure that would occur in any hydraulic equipment subjected to the extreme vibrations from a jackhammer. Further, Mr. Parrish testified that he had reset the outriggers just prior to the accident, so the bleed was not a factor. NW Alloys also presented evidence from a number of sources in an attempt to show that Mr. Langston was a malingerer.

In a CR 50(a) motion, Mr. Langston challenged the sufficiency of the evidence for NW Alloys to present design defect and contributory negligence affirmative defenses. He also moved to strike Mr. Smith's testimony, arguing there were no facts to support it. The trial court denied the motions.

The jury returned a verdict in favor of NW Alloys after a two-week trial. Mr. Langston's motion for a new trial was denied. When the operative facts are not in dispute, the determination of whether a defense has been waived presents a question of law that we review de novo. King v. Snohomish County,146 Wn.2d 420,423-24,47 P.3d 563(2002).

Fault of a nonparty is an affirmative defense under CR 8(c). Such an affirmative defense is generally considered waived and may not be considered a triable issue unless it is (1) affirmatively pleaded, (2) asserted in a motion under CR 12(b), or (3) tried by the express or implied consent of the parties. Farmers Ins. Co. v. Miller,87 Wn.2d 70,76,549 P.2d 9(1976). The rule is intended to prevent unfair surprise and to allow the plaintiff time to prepare the case for trial. Mahoney v. Tingley,85 Wn.2d 95,100,529 P.2d 1068(1975). The rule is not intended to be interpreted in a rigid and technical way. Id. at 101.

As an affirmative defense in the answer to the complaint, NW Alloys pleaded on March 8, 2002:

Plaintiff's alleged injuries, if in fact such injuries were sustained, were solely and proximately caused, or were contributed to by the acts, omissions, or fault of Plaintiff or others over whom Defendants [NW Alloys] and Brad Parrish did not exercise control, and any recovery by Plaintiff against [NW Alloys] and Brad Parrish is therefore barred, or, inthe alternative, must be diminished accordingly based on the relative degree of fault.

Clerk's Papers (CP) at 14.²

In an interrogatory asking the defense to state the facts upon which it based that affirmative defense, NW Alloys responded on January 22, 2004:

Objection to the extent the question seeks attorney work product, without waiving objection and in an attempt to facilitate discovery, it is Defendants' position that the equipment malfunction was unanticipated and unrelated to maintenance, therefore, it was likely a manufacturing problem.

CP at 353. In response to another question regarding its claim of liability by others under RCW4.22.030, NW Alloys similarly objected and further responded that "Defendant's position is that the malfunction of the BROKK was caused by the manufacturer, and Plaintiff was injured by events other than the October 7, 1998 accident." CP at 357.

Mr. Langston first raised the issue of waiver in his pretrial motion in limine, claiming NW Alloys failed to identify the manufacturer under CR 12(i) and RCW4.22.070. NW Alloys argued, and Mr. Langston did not dispute, that the defense was pleaded; the only issue was whether its failure to identify the manufacturer constituted waiver. Mr. Langston asserted that CR 12(i) set forth a jurisdictional requirement to name the nonparty entity. Notably, the record reflects that at the time litigation was commenced, Mr. Langston had in his possession the BROKK owner's manual and other manufacturer materials, which he later provided to NW Alloys in discovery.

CR 12(i) provides:

Whenever a defendant or a third party defendant intends to claim for purposes of RCW4.22.070(1) that a nonparty is at fault, such claim is an affirmative defense which shall be affirmatively pleaded by the party making the claim. The identity of any nonparty claimed to be at fault, if known to the party making the claim, shall also be affirmatively pleaded.

NW Alloys pleaded that a nonparty was at fault and it sought apportionment. See RCW4.22.070. NW Alloys clarified its claims in discovery. CR 12(i) only requires that the nonparty be identified in the answer if known. Because Mr. Langston had the BROKK manual and the manufacturer information in his possession when he filed this action, it is improbable that NW Alloys' answer misled Mr. Langston into thinking that NW Alloys was asserting that some other manufacturer was at fault. Mr. Langston conceded that the nonparty defense was pleaded. He was not unfairly surprised. Mr. Langston contends that the court erred by denying his CR 50(a) motion to strike the affirmative defense of design defect.

"If, during a trial by jury, a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law." CR 50(a). A motion for judgment as a matter of law is reviewed de novo. Davis v. Microsoft Corp.,149 Wn.2d 521,530-31,70 P.3d 126(2003).

We apply the same standard as the trial court; the motion should only be granted when it is clear that the evidence and the reasonable inferences, viewed in the light most favorable to the nonmoving party, are insufficient to sustain a verdict for the nonmoving party. Hizey v. Carpenter,119 Wn.2d 251,271-72,830 P.2d 646(1992). "A motion for judgment as a matter of law must be granted `when, viewing the evidence most favorable to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.'" Davis,149 Wn.2d at 531(quoting Sing v. John L. Scott, Inc.,134 Wn.2d 24,29,948 P.2d 816(1997)). Substantial evidence means evidence "`sufficient . . . to persuade a fair-minded, rational person of the truth of a declared premise.'" Id. (quoting Helman v. Sacred Heart Hosp.,62 Wn.2d 136,147,381 P.2d 605(1963)).

The product liability statute contains the elements of a design defect claim, which requires proof of "(1) a manufacturer's product (2) not reasonably safe as designed (3) causing harm to the plaintiff." Pagnotta v. Beall Trailers of Or., Inc.,99 Wn. App. 28,36,991 P.2d 728(2000) (citing RCW7.72.030(1)). Mr. Langston challenges proof of the second element.

Proof that a product is not reasonably safe can be shown by a consumer expectation test. Soproni v. Polygon Apartment Partners,137 Wn.2d 319,326-27,971 P.2d 500(1999) (citing Falk v. Keene Corp.,113 Wn.2d 645,653-54,782 P.2d 974(1989)). That test requires evidence that "the product was `unsafe to an extent beyond that which would be contemplated by the ordinary consumer.'" Id. at 327 (quoting Falk,113 Wn.2d at 654; RCW7.72.030(3)).

NW Alloys presented evidence through Mr. Smith concerning the absence of a guard to prevent the unintentional operation of the joysticks. Mr. Langston argues that the guard would not have made a difference. NW Alloys also introduced evidence concerning the absence of an accessible kill switch and the false sense of security of the three-second safety feature, as well as evidence that the design of the BROKK caused the hydraulic fluid to bleed down and the outriggers to drop.

There was also ample evidence concerning the unexpected movement of the BROKK. It is clear that no one knows with any degree of certainty how or why the machine suddenly started moving and it cannot be easily explained with the evidence presented. For instance, the only way Mr. Smith could duplicate the movement of the BROKK described by the witnesses to the accident was to quickly bump the joysticks at the same time, each at a specific angle. Mr. Langston argues that, at the time of the accident, the joystick could not have been manipulated in the manner demonstrated by Mr. Smith given the position of Mr. Parrish's body as described by witnesses.

"Washington courts recognize certain situations exist where the type of accident itself may establish a defect using a consumer's expectation test." Pagnotta,99 Wn. App. at 37(quoting Bombardi v. Pochel's Appliance TV Co.,10 Wn. App. 243,247,518 P.2d 202(1973)). The mere fact of an accident does not generally prove a defect, unless common experience dictates that a particular accident would not occur absent a defect in the product's construction or design. Bombardi,10 Wn. App. at 246. If a product fails in an unusual, unexpected fashion, "`the inference is that there was some sort of defect, a precise definition of which is unnecessary.'" Id. at 247 (quoting Heaton v. Ford Motor Co.,248 Or. 467,472,435 P.2d 806(1967)).

Given the parties' mutual uncertainty concerning the cause of the accident and the evidence that Mr. Parrish followed reasonable safety measures for the operation of the machine, the BROKK's sudden movement could be considered outside of the expectations of the user. There was sufficient circumstantial evidence of a design defect to present the issue to a jury. Mr. Langston contends that the trial court erred in its instructions on the design defect affirmative defense in two respects.³First, he asserts that the court instructed the jury on a negligence standard for NW Alloys' design defect claim. Second, Mr. Langston asserts that the trial court improperly stated NW Alloys' burden of proof for the affirmative defense. These issues raise errors of law that require de novo review. Hue v. Farmboy Spray Co.,127 Wn.2d 67,92,896 P.2d 682(1995).

With respect to the legal standard for the design defect claim, the trial court instructed the jury:

Before a percentage of negligence may be attributed to Holmhed of Sweden, the BROKK manufacturer, the defendant has the burden of proving each of the following propositions:

First, that Holmhed of Sweden supplied a product that was not reasonably safe as designed at the time the product left Holmhed's control, and

Second, the unsafe condition of the product was a proximate cause of the plaintiff's injury.

CP at 711 (emphasis added). Mr. Langston asserts that the trial court's use of the term negligence, in and of itself, confused the jury into believing it should apply the negligence standard set forth in the court's instruction numbers 8 and 9, which provide the duty to exercise reasonable care associated with Mr. Langston's claim of negligence against NW Alloys.

Mr. Langston relies on Falk,113 Wn.2d at 657. In Falk, our Supreme Court addressed a similar jury instruction that used the term "negligence of a manufacturer" and held that it was not inherently misleading and did not invite the jury to misapply the law.⁴Id. at 656-57. Instead, the court observed that RCW7.72.030(1), the product liability statute for manufacturers, also used the term negligence and it also states that negligence in the context of a design defect means "`the product was not reasonably safe.'" Id. at 657 (quoting Falk Instruction 11A). "A design defect instruction in this language of the statute is not erroneous, in and of itself." Id. The court also noted that the then version of 6 Washington Practice: Washington Pattern Jury Instructions: Civil 110.02 (3d ed. 1989) (WPI) deleted the word "negligence," which it found preferable. Id. Although the language that Mr. Langston advocates might be preferable, it was not a legal error to provide it.

The court in Falk did find, however, it was error to use the instruction under the facts of that particular case. But there, the defendants argued to the jury in closing that "`negligence is defined as, the failure to exercise ordinary care'" and that the plaintiffs had to "`prove that the defendants were negligent [by] showing that their negligence related to not making a change in their product.'" Id. at 656 (internal quotation marks omitted) (quoting Falk Closing Arguments by Defendant). Here, neither party meaningfully addressed the design defect affirmative defense in closing. None of the instructions associated with it were addressed. The jury was not instructed on an incorrect standard.

The burden of proof instruction Mr. Langston proposed for the design defect affirmative defense, modified from WPI 110.21 read:

"`[T]he defendant has a burden of proving each of the following propositions [as to Holmhed of Sweden, the manufacturer of the BROKK]:

First, that Holmhed of Sweden supplied a product that was not reasonably safe as designed at the time the product left Holmhed's control;

Second, that the plaintiff was injured; and Third, the unsafe condition of the product was a proximate cause of the plaintiff's injury.'"

CP at 298. This proposed instruction reflects the elements of a design defect products liability claim under RCW7.72.030. See Bruns v. Paccar, Inc.,77 Wn. App. 201,208,890 P.2d 469(1995). In its instructions to the jury, the trial court omitted the second requirement, so that NW Alloys was not required to prove that Mr. Langston was injured.

Instructions are inadequate if they mislead the jury or misstate the applicable law. Bell v. State,147 Wn.2d 166,176,52 P.3d 503(2002). A trial court's omission of a proposed statement of the governing law will be "reversible error where it prejudices a party." Hue,127 Wn.2d at 92; see Magana v. Hyundai Motor Am.,123 Wn. App. 306,316,94 P.3d 987(2004) (we will not reverse on instructional error without prejudice). An error is prejudicial if it "substantially affected the outcome of the case." Id. (citing Blaney v. Int'l Ass'n of Machinists Aerospace Workers, Dist. No. 160,151 Wn.2d 203,211,87 P.3d 757(2004)).

The instruction did not include a proof of injury requirement. But NW Alloys, as a defendant asserting an affirmative defense, need not prove that Mr. Langston was injured at all. Mr. Langston essentially argues that in order to assert a design defect affirmative defense, NW Alloys must concede that he was injured. That would be inconsistent with instruction number 6, which informs the jury that NW Alloys denies the injuries that Mr. Langston claims.

Further, the injury element was subsumed in the proximate cause element. See, e.g., White v. Fenner,16 Wn.2d 226,236-38,133 P.2d 270(1943). The instructions allowed counsel to argue their theories of the case, properly informed the jury of the applicable law, and were not misleading. They were therefore sufficient.

Even if we were to presume prejudice as Mr. Langston insists we must because the instruction was a misstatement of the law, Blaney,151 Wn.2d at 211, any error was harmless. The jury did not ultimately find that the third party was at fault. And it did not so find to the exclusion of Mr. Langston's claim for negligence. Mr. Langston contends that Mr. Smith's testimony should have been stricken because the facts upon which Mr. Smith supported his opinion were not proven.

The admissibility of expert testimony is within the discretion of the trial court and should not be disturbed absent an abuse of discretion. Myers v. Harter,76 Wn.2d 772,781,459 P.2d 25(1969). The trial court is given particular deference when presented with fair arguments both for and against admissions. Davidson v. Mun. of Metro. Seattle,43 Wn. App. 569,572,719 P.2d 569(1986). "`[I]f the reasons for admitting or excluding the opinion evidence are both fairly debatable, the trial court's exercise of discretion will not be reversed on appeal.'" Id. (quoting Levea v. G.A. Gray Corp.,17 Wn. App. 214,220-21,562 P.2d 1276(1977)).

If an expert's opinion assumes the existence of facts not of record, the opinion is not valid and the expert's answer must be stricken. Tokarz v. Ford Motor Co.,8 Wn. App. 645,653,508 P.2d 1370(1973). The opinion testimony is proper, however, if the answer is fairly based on material facts supported by substantial evidence under the examiner's theory of the case. Id. Whether expert testimony falls within these rules is a matter for the trial court's wide discretion. Id.

Speculative expert testimony is not admissible. State v. Warness,77 Wn. App. 636,643,893 P.2d 665(1995). "However, inadmissible speculation is not the same as a legitimate opinion regarding what `could be' the truth, so long as that opinion can be stated with the requisite reasonable scientific probability." Id. Such testimony goes to the weight of the testimony, not to its admissibility. Id.

Here, Mr. Smith testified that he read the witnesses' accounts of what occurred and spoke with Mr. Parrish. He performed tests on a similar BROKK and was able to recreate the movement described by the witness in only one manner. And he warned that the results were not duplicated under the conditions that existed at the time of the accident, i.e., the operator's body movements. Mr. Smith testified concerning the tests. With the uncertainty surrounding the cause of the accident, the testimony was supported by substantial evidence under the defense theory of the case and Mr. Smith's opinion was consistent with what could be the truth. The trial court heard the parties' arguments. Mr. Langston's expert agreed that it was possible that the accident happened the way Mr. Smith described. The court did not abuse its discretion in admitting the testimony.

E. CR 50(a) Motion for Judgment Striking the Affirmative Defense of Contributory Negligence Contributory fault of a party is conduct that falls below the standard to which he should have conformed for his own safety and which contributed as a legal cause to his injury. Honegger v. Yoke's Wash. Foods, Inc.,83 Wn. App. 293,296,921 P.2d 1080(1996).

In this case, NW Alloys asserted that Mr. Langston did not act reasonably in the rescue effort or made the pinning situation worse, and that he was contributorially negligent.⁵The jury was clearly instructed to first examine the negligence of NW Alloys, Mr. Parrish, and the BROKK manufacturer. The jury was plainly directed to simply sign the verdict if it found no negligence. That left the seven remaining questions unanswered — including one regarding contributory negligence. We presume the jury obeys the court's lawful instructions. Tincani v. Inland Empire Zoological Soc'y,124 Wn.2d 121,136,875 P.2d 621(1994). Mr. Langston does nothing to rebut this presumption. The jury never reached the issue of contributory negligence. An error in instructing a jury on contributory negligence is harmless if the jury finds that the defendant was not negligent. Bertsch v. Brewer,97 Wn.2d 83,92,640 P.2d 711(1982). Even if there was insufficient evidence for giving the contributory negligence instruction, any error was harmless. Hizey,119 Wn.2d at 270. We find no error. NW Alloys' judgment is affirmed.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW2.06.040.

Kulik, J. and Kato, J. Pro Tem., concur.