Sturm, Ruger & Co., Inc. v. Day

OPINION

This is a products liability case.

Appellee Michael James Day bought a .41 magnum single action revolver on June 1, 1972. The gun had been manufactured two years before by appellant Sturm, Ruger and Company, in August of 1970, but was purchased new by Day.

On July 30, 1972, Day was sitting in the cab of his small pickup truck with two *41young friends when he decided to unload his gun. As he was unloading the revolver, the gun slipped out of his hands. When he grabbed for the gun it fired, the bullet striking his leg and causing serious injuries.

The Sturm, Ruger .41 magnum single action revolver had four hammer positions which were described as follows in the instruction booklet provided by the manufacturer:

The third page of the instruction booklet accompanying the revolver warned that the gun could be fired from the loading notch position by exerting “excessive pull on the trigger.” This warning was set off from the rest of the instructions in a separate box:

WARNING: This revolver can be fired by excessive pull on the trigger from either the safety notch position, indicated by No. 2 in Figure 1, or the loading notch position indicated by No. 3 in Figure 1.

The loading notch and the safety notch provide only partial security. If these notches are damaged, as they may be by “fanning”, they offer no security. Never depend on this or any other mechanical safety device to justify pointing the firearm at any person.

Fanning is unsafe for you and abusive to your revolver.

Day filed suit against Sturm, Ruger and Company. His second amended complaint was based on a theory of strict tort liability, and included a claim for punitive damages. It was Day’s contention that the hammer had been on the loading notch and that the gun fired after he accidentally pulled the hammer off that notch, presumably by pulling the trigger as he caught the falling gun.

The jury returned a verdict for the plaintiff, finding specifically that the revolver was designed defectively and that it had a manufacturing defect as well. The jury awarded $137,750.00 in compensatory damages and $2,895,000.00 in punitive damages to the plaintiff.

Sturm, Ruger filed a timely motion for new trial and for judgment notwithstanding the verdict. This motion included a request that the trial judge consider reducing the punitive damages award. The trial judge declined to order any remittitur.1 This appeal followed.

*42The questions raised by Sturm, Ruger’s appeal may be divided into three basic subject areas: comparative negligence, the propriety of certain jury instructions, and punitive damages.

Michael Day, in his cross-appeal, claims that the trial court’s refusal to consider the amount of the punitive damage award in calculating attorney’s fees was manifestly unreasonable.

I

COMPARATIVE NEGLIGENCE

In Butaud v. Suburban Marine & Sporting Goods, Inc. (Butaud II), 555 P.2d 42 (Alaska 1976), we held that the doctrine of comparative negligence is applicable in products liability suits. Since the instant case was pending on appeal at the time the second Butaud decision was announced, Sturm, Ruger argues that the trial court’s refusal to consider any form of comparative fault requires reversal.

Sturm, Ruger’s principal contentions are that Michael Day was negligent in unloading his gun in the confined spaces of the cab of his pickup truck; in failing to read or to remember the instructions which came with the gun; and, inferentially, in accidentally dropping the gun. On these facts, the trial judge ruled, as a matter of law, that the plaintiff was not negligent.

If the trial court was correct in ruling that the plaintiff’s conduct did not amount to negligence as a matter of law, we need not decide whether our holding in Butaud II applies to this case. The standard by which we will test the trial court’s ruling was stated by Mr. Justice Dimond in Cummins v. King & Sons, 453 P.2d 465, 466-67 (Alaska 1969):

“[I]n order to justify submitting to the jury the question of whether the plaintiff himself was negligent, there must be evidence of such negligence. There must be facts from which one could reasonably infer that such negligence existed. As to the quantity of evidence needed, the test is whether the facts and resulting inferences are such that reasonable minds could justifiably have different views on the question of whether the plaintiff had been negligent. If they could, then it would be proper to submit that issue to the jury for its determination under appropriate instructions. If they could not — if reasonable minds could reach only the conclusion that the plaintiff was not negligent — then submitting the issue to the jury would not be justified.” [footnote omitted]

In our opinion a jury question was presented. Whether, in unloading a revolver, one who lets it drop out of his hand is negligent is a typical question of fact. It cannot be resolved as a matter of law. It is only in clear instances that negligence questions should be taken from the jury. The manner in which guns should be handled in particular circumstances is not a question of law; the only relevant rule of law is the general duty to act reasonably under any given set of circumstances. We believe that reasonable minds could differ in determining whether the plaintiff was negligent here. Therefore, a jury question was presented. We must reverse and remand for a new trial in which the jury is permitted to consider plaintiff’s possible comparative negligence.

II

JURY INSTRUCTIONS

Sturm, Ruger’s next points on appeal concern the propriety of certain jury instructions. Some of appellant’s objections require little discussion.2 Others, however, merit a closer examination.

*43Sturm, Ruger’s principal objections are to the instruction which stated that the manufacturer’s warnings were not to be considered in determining whether the product was defectively designed or manufactured 3 and to the instruction which told the jury that it was no defense for a manufacturer to show that his product was within the state of the art at the time it was manufactured.4 The jury was told, however, that these matters could be considered with regard to the punitive damage claim.

Sturm, Ruger objects to the instruction which removed the subject of product warnings from the jury’s consideration.5 The trial judge recognized that the instruction which he gave would not generally be a correct statement of the law. However, he felt justified in removing consideration of the warnings from the jury in this particular case.

The warnings in question told the consumer the hammer could not be released from the safety or loading notches “by normally pulling the trigger.” They also stated that the revolver “can be fired by excessive pull on the trigger from either the safety notch position ... or the loading notch position. . . . The loading notch and the safety notch provide only partial security. If these notches are damaged . . . they offer no security. . [A] light accidental blow on the hammer can readily cause the gun to discharge.” The trial judge reasoned that even if these warnings had been read and followed, they could not have prevented the accident in which Day was injured from happening. He also was of the opinion that a warning which merely informs the consumer that the product contains a dangerous defect cannot absolve the manufacturer from liability for injuries caused by such defects.

A number of courts have held that the manufacturer’s liability is not precluded merely because the danger from his product is obvious. E. g., Barker v. Lull Engineering Co. Inc., 20 Cal.3d 413, 143 Cal.Rptr. *44225, 232, 573 P.2d 443, 451 (1978); Luque v. McLean, 8 Cal.3d 136, 104 Cal.Rptr. 443, 448-449, 501 P.2d 1163, 1168-69 (1972); Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115, 348 N.E.2d 571 (1976); Palmer v. Massey-Ferguson, 3 Wash.App. 508, 476 P.2d 713, 719 (1970). We believe that this reasoning applies equally to products whose printed warnings alert the public to hidden dangers as well as to products whose dangers are patently obvious. In a New York case preceding Micallef v. Miehle, supra, in which the majority upheld the since-discarded patent/latent distinction, the dissent noted that safety features

“are rarely there to protect those who are aware of a risk and voluntarily seek to encounter it. Safety features, be they guards, shields or fences, are of primary importance to protect the inadvertent plaintiff — the one who is not paying attention at the moment of the accident. In fact, the duty to provide safeguards is intended largely to protect against just such expected eventualities. Thus, for example, if a plaintiff were to have tripped and, being unable to steady himself, would have fallen towards the unguarded gears, of what value is it to him that the danger is obvious or patent?”

Meyer v. Gehl Company, 36 N.Y.2d 760, 368 N.Y.S.2d 834, 835, 329 N.E.2d 666, 667 (1975) (dissenting opinion of Mr. Justice Fuchsberg).

The same might be said of a product whose dangers have been pointed out to the user by way of a printed warning. The warnings provided by Sturm, Ruger would not protect the “inadvertent plaintiff” who accidently dropped the gun. Where the most stringent warning does not protect the public, the defect itself must be eliminated if the - manufacturer is to avoid liability. See, Wilk v. Georges, 267 Or. 19, 514 P.2d 877, 880 (1973); Prosser, Torts, at 394-95 (4th ed. 1971); Phillips, The Standard for Determining Defectiveness in Products Liability, 45 U.Cincinnati L.Rev. 101, 106 (1977); see generally Twerski, Weinstein, Donaher, and Piehler, The Use and Abuse of Warnings in Products Liability — Design Defect Litigation Comes of Age, 61 Cornell L.Rev. 495 (1976).

Although in certain cases an adequate warning may prevent a product from being deemed defective,6 the instant case was not of that type. The trial judge did not err in refusing to submit the warnings issue to the jury.

We note that the jury returned special verdicts, finding that the gun was defectively designed and that it was defectively manufactured.7 Warnings or state of the art evidence could have no bearing on the issue of whether a product had a manufacturing defect, i. e., that it deviated from the manufacturer’s intended result.8 A finding that the product was defectively manufactured and that the manufacturing defect was the proximate cause of plaintiff’s injury are together sufficient to establish the manufacturer’s liability and to support an award of compensatory damages in this case.9 But, as set forth above, we must reverse the entire award because the question of comparative negligence was not submitted to the jury.

Generally speaking, “state of the art” refers to customary practice in the industry. See Olson v. A. W. Chesterton *45Company, 256 N.W.2d 530, 540 (N.D.1977); Phillips, The Standard for Determining Defectiveness in Products Liability, 46 U.Cincinnati L.Rev., 101, 115 n. 71 (1977). It is settled that evidence of conformity to industry-wide standards is not always conclusive in negligence actions. As Judge Learned Hand observed in The T. J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932),

“a whole calling may have unduly lagged in the adoption of new and available devices. [The industry] never may set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission.”

In cases predicated upon strict liability, evidence of industry standards has even less probative value. In strict liability actions, the focus is on the condition of the product, not on the conduct of the defendant. Bachner v. Pearson, 479 P.2d 319, 325 (Alaska 1970). The trial court was thus stating a generally accepted principle when it instructed the jury that conformity to the state of the art does not constitute a defense to strict liability claims. See also, Gelsumino v. E. W. Bliss Company, 10 Ill. App.3d 604, 295 N.E.2d 110 (1973); Olson v. A. W. Chesterton Company, supra; Karazck, State of the Art or Science, Is it a Defense in Products Liability?, 60 Ill.B.J. 348 (1972).

While not, strictly speaking, a defense in a products liability action, state of the art may be considered in determining whether a product is defective. See, e. g., Collins v. Ridge Tool Co., 520 F.2d 591 (7th Cir. 1975); Traynor, The Ways and Meanings of Defective Products and Strict Liability, 32 Tenn.L.Rev. 363, 367, 370 (1965). Thus appellant complains that the state of the art instruction was erroneous and prejudicial, as the jury ought to have been instructed to consider state of the art evidence before deciding whether the product was in fact defective.

It is true that the instruction given did not define “state of the art,”10 and its applicability as one factor to be considered in determining whether the product was defective was not made clear to the jury. However, this is not the problem which troubles us the most with the instruction. As we will develop below, the state, of the art instruction alone would not require reversal of the entire judgment. But the point raised as to this instruction gives rise to a broader problem: whether the notion of design defect was properly defined for the jury.

In Caterpillar Tractor Co. v. Beck, 593 P.2d 871 (Alaska 1979), we adopted the test for design defect liability found in Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413, 143, Cal.Rptr. 225, 573 P.2d 443 (1978). Barker contains two alternative tests for design defect, the second of which is a two prong test. Under that test,

[A] trial judge may properly instruct the jury that a product is defective in design (1) if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if the plaintiff proves that the product’s design proximately caused his injury and the defendant fails to prove . . . that on balance the benefits of the challenged design outweighed the risk of danger inherent in such design.

The instructions in the case before us did apprise the jury of the first part of the Barker test, but the rest of the instructions contained only the first prong of the second part of the Barker test, eliminating the second prong which allows the jury to weigh, in light of the relevant factors, the benefits of the design against the risk of danger inherent in the design. A majority of this court is of the opinion that no jury question was presented on this issue, and that the risk of danger inherent in the design of the product so outweighed the benefits of that design that the superior *46court, if it had considered this question, would have had to enter a directed verdict for the plaintiff.11 Therefore, the failure to give an instruction on this issue was not error.

Ill

PUNITIVE DAMAGES

Sturm, Ruger urges us to repudiate the doctrin