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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. Ingersoll-Rand Company (12/29/00) sp-5353

Smith v. Ingersoll-Rand Company (12/29/00) sp-5353

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


DAN SMITH,                    )
                              )    Supreme Court No. S-8827
             Plaintiff,       )
                              )    U.S. District Court 
     v.                       )    No. A-88-497 CI
                              )
INGERSOLL-RAND COMPANY,       )    O P I N I O N
                              )
             Defendant.       )    [No. 5353 - December 29, 2000]
______________________________)



          Certified Question from the United States
District Court for the District of Alaska, 
                    James K. Singleton, Judge.


          Appearances:  Michael W. Flanigan, Walther &
Flanigan, Anchorage, for Plaintiff.  James C. Nielsen, Wright,
Robinson, Osthimer & Tatum, San Francisco, California, Clay A.
Young, Delaney, Wiles, Hayes, Gerety & Young, Anchorage, for
Defendant.


          Before:   Matthews, Chief Justice, Fabe,
Bryner, and Carpeneti, Justices.  [Eastaugh, Justice, not
participating.]


          MATTHEWS, Chief Justice.      



I.   INTRODUCTION
          Dan Smith suffered permanent injuries after an air
compressor door fell on his head.  He brought a strict products
liability lawsuit in federal district court against Ingersoll-Rand
Company, the manufacturer of the air compressor.  Following three
jury trials and a remand from the Ninth Circuit, the United States
District Court for the District of Alaska, Singleton, J., certified
the following questions to this court: 
     (1) Did the 1986 Tort Reform Act change the existing law on
comparative fault in products liability cases such that a
plaintiff's failure to exercise ordinary care is now sufficient to
raise a jury question on comparative fault?
     (2) If not, can a worker's failure to wear an available hard-
hat, which would have eliminated or greatly reduced the worker's
damages from a head-injury caused by the defective product,
constitute comparative fault such that the worker's damages are
diminished proportionally? 
     (3) If not, can a worker's propping a door open on a defective
product in a manner the worker knows to be unsafe constitute
comparative fault such that the worker's damages are diminished
proportionally?
          Because the 1986 Tort Reform Act modified the definition
of comparative fault in strict liability cases to include ordinary
negligence, we answer the first question in the affirmative.  The
other two questions therefore become moot.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          On August 12, 1987, Dan Smith was injured at Prudhoe Bay
while attempting to start the diesel engine of an Ingersoll-Rand
portable air compressor.  Smith, a light duty mechanic, was not
wearing a hard hat when he was dispatched by his supervisor to
start the air compressor's engine.
          The air compressor was an older model that required the
mechanic to open its door in order to start the engine.  There was
no latch on the door to hold it open.  Instead, the mechanic had to
prop the door open in one of three ways: (1) the fully-open
position; (2) the up-and-folded position; or (3) the wedged
position.  The first two positions safely hold the door in place;
the third position is unsafe.
          The exact details of Smith's accident are unknown.  Smith
does not remember how he propped the door open. [Fn. 1]  All that
he remembers is that he opened the door, started the engine, and
the "next thing [he] knew, [he] was picking the door[] up off the
top of [his] head."  Somehow -- whether from wind, vibration, or
improper placement -- the door had fallen from its open position
and hit Smith's head.  Initially, despite some blood and swelling,
Smith did not think that he was seriously injured. 
          However, eleven days after the accident, Smith suffered
a generalized motor seizure.  He had no history of seizures in his
adult life.  On the medevac plane out of Prudhoe Bay, he suffered
another seizure.  He was later diagnosed with traumatic epilepsy,
presumably caused by the compressor door hitting his head.
          Since the accident, Smith has continued to suffer from
repeated seizures, fatigue, difficulty concentrating, lapses in
memory, and other related medical problems.  He lost his job
because of these medical problems and remains unemployed.
     B.   Proceedings
          In 1988, Smith filed a products liability suit against
Ingersoll-Rand in state court, alleging that the company had
designed a defective product.  Smith claimed that the compressor
was defective because it did not include a latch to hold its doors
open and because there was no warning in the manual or on the
compressor regarding the risk of falling doors.
          Ingersoll-Rand removed the case to federal district court
based on diversity jurisdiction.  The case was then tried three
different times.  A fourth trial is currently pending.
          The first trial ended in a hung jury.  The second trial
was bifurcated into a liability phase and a damages phase.  The
second jury was instructed on Smith's comparative negligence using
an ordinary negligence standard. [Fn. 2]  Smith argued that his own
ordinary comparative negligence was irrelevant in a products
liability suit.  However, Ingersoll-Rand argued to the jury that
Smith's failure to wear a hard hat and his propping the door open
in an unsafe manner constituted ordinary comparative negligence
sufficient to reduce his recovery.
          The second trial resulted in a partially hung jury.  The
jury found that the air compressor was defective but was unable to
reach a decision on legal causation or comparative negligence. [Fn.
3] Because, in the trial court's view, the jury had been unable to
agree on comparative fault by Smith, the court directed a verdict
in Smith's favor on the cause in fact issue, but reserved the legal
causation question for retrial. 
          The third trial focused on damages issues, as well as
comparative negligence.  Once again, the district court instructed
the jury on comparative negligence using an ordinary negligence
standard over Smith's objections.  The jury found Smith forty
percent responsible for the accident and Ingersoll-Rand sixty
percent responsible.  The jury assessed Smith's total damages at
$668,000.
          Both parties appealed to the Ninth Circuit.  Ingersoll-
Rand argued that the issue of legal causation should have gone to
the jury.  Smith argued that Alaska law does not permit ordinary
negligence to constitute comparative negligence in products
liability cases.
          The Ninth Circuit only addressed Ingersoll-Rand's
arguments, holding that the district court erred in granting a
judgment notwithstanding the verdict on legal causation and
remanding the case for a trial on legal causation. [Fn. 4]  The
circuit court did not decide the other issues on appeal. [Fn. 5] 
It noted, however, that the question of whether ordinary negligence
could constitute comparative negligence in a products liability
case presented a "novel issue of Alaska law," particularly in light
of the 1986 Tort Reform Act. [Fn. 6]  The circuit court therefore
recommended that the district court consider certifying this
question to the Alaska Supreme Court. [Fn. 7]
          On remand, the federal district court certified three
questions to this court as described in the introduction.  We
accepted certification pursuant to Alaska Appellate Rule 407. [Fn.
8] 
III. STANDARD OF REVIEW
          A decision by this court upon certification from another
court involves determinative questions of Alaska law for which
there is no controlling precedent. [Fn. 9]  In determining
questions of law, we exercise our independent judgment and adopt
"the rule of law that is most persuasive in light of precedent,
reason, and policy." [Fn. 10]
          In interpreting a statute's effect on prior case law,
this court's "primary guide is the language used, construed in
light of the purpose of the enactment." [Fn. 11]  This court
applies a "sliding scale approach" in statutory interpretation.
[Fn. 12] "Under the sliding scale approach, the plainer the
language of the statute, the more convincing contrary legislative
history must be." [Fn. 13]
IV.  DISCUSSION
     A.   Prior to the 1986 Tort Reform Act, Alaska Allowed
Comparative Negligence as a Defense in Products Liability Actions
Only Under Limited Circumstances.

          In 1975 this court judicially adopted the doctrine of
comparative negligence for fault-based tort actions and abolished
the older, harsher doctrine of contributory negligence, which
completely barred a plaintiff's recovery if he was to some degree
at fault for his injuries. [Fn. 14]  Under the "pure" system of
comparative fault adopted by the court, a plaintiff would still be
able to recover if he was comparatively at fault for his injuries,
but his recovery would be reduced in proportion to his percentage
of fault. [Fn. 15] 
          Less than a year later, in Butaud v. Suburban Marine &
Sporting Goods, Inc., we held that comparative negligence
principles also apply to products liability actions based on strict
liability. [Fn. 16]  But we held that comparative negligence in
strict products liability cases was limited to two specific
situations: (1) when the plaintiff knows that the product is
defective and unreasonably and voluntarily proceeds to use it; and
(2) when the plaintiff misuses the product and the misuse is a
proximate cause of the injuries. [Fn. 17] 
          Later cases have confirmed that comparative negligence in
strict products liability is limited to product misuse and
unreasonable assumption of risk. [Fn. 18]  Ordinary negligence is
generally not sufficient to establish comparative negligence on the
part of a products liability plaintiff. [Fn. 19]  
          Recently, in General Motors Corp. v. Farnsworth we had
the opportunity to further clarify our case law on this issue. [Fn.
20]  We noted that litigants sometimes misread Dura Corp. v. Harned
[Fn. 21] as holding that product misuse is not sufficient to raise
a jury question on comparative negligence in a strict products
liability action. [Fn. 22]  We pointed out that, like our other
case law, Dura recognizes two types of comparative negligence in
strict liability cases:  (1) knowing product misuse where the
misuse is a proximate cause of the injuries and (2) unreasonable
and voluntary assumption of risk with respect to a defective
product. [Fn. 23]  The Dura court limited its discussion to the
latter type of comparative negligence because the defendant in the
case did not allege product misuse. [Fn. 24] 
          Farnsworth clarified our pre-1986 case law but it did not
address the question currently before us, namely, whether the 1986
Tort Reform Act changed the definition of comparative negligence in
strict products liability cases to include ordinary negligence.
Although the events in Farnsworth took place after the passage of
the 1986 Tort Reform Act, the opinion did not discuss the effects
of that Act, nor did it need to. [Fn. 25]  Even if the Act expanded
comparative negligence in products liability to include ordinary
negligence, such an expansion would have been irrelevant in
Farnsworth.  The defendants in Farnsworth never alleged ordinary
comparative negligence on the part of the plaintiff; instead they
alleged product misuse -- the defense was that plaintiff wore a
seatbelt under her arm rather than across her body. [Fn. 26]
     B.   The 1986 Tort Reform Act Modified the Definition of
Comparative Negligence in Products Liability Actions to Include
Ordinary Negligence.
          In 1986 the Alaska Legislature passed the Tort Reform
Act.  Modeled after the Uniform Comparative Fault Act, the Tort
Reform Act was intended to "to create a more equitable distribution
of the cost and risk of injury and increase the availability and
affordability of insurance." [Fn. 27]  The legislature hoped to
reduce the costs of the tort system while still ensuring "that
adequate and appropriate compensation for persons injured through
the fault of others" remained available. [Fn. 28]  
          As part of the Act, the legislature enacted a rule of
comparative fault similar to the doctrine of comparative negligence
which this court had adopted a decade earlier: 
               In an action based on fault seeking to
recover damages for injury or death to a person or harm to
property, contributory fault chargeable to the claimant diminishes
proportionally the amount awarded as compensatory damages for the
injury attributable to the claimant's contributory fault, but does
not bar recovery.[ [Fn. 29]]

The Act defined "fault" as

          acts or omissions that are in any measure
negligent, reckless, or intentional toward the person or property
of the actor or others, or that subject a person to strict tort
liability.  The term also includes breach of warranty, unreasonable
assumption of risk not constituting an enforceable express consent,
misuse of product for which the defendant otherwise would be
liable, and unreasonable failure to avoid injury or to mitigate
damages.  Legal requirements of causal relation apply both to fault
as the basis for liability and to contributory fault.[ [Fn. 30]] 

The question before us is whether these two provisions modified the 
existing case law on comparative negligence in products liability
cases.  We conclude that they did. 
          The Act clearly applies to strict products liability
cases.  The Act applies to tort actions "based on fault." [Fn. 31] 
Fault is defined to include, counter-intuitively, "acts or
omissions . . . that subject a person to strict liability." [Fn.
32]  Products liability cases in Alaska are typically based on a
strict liability theory. [Fn. 33]  Thus the Act applies to strict
products liability actions. 
          The Act's definition of comparative fault is broader than
the comparative fault recognized in pre-1986 strict products
liability cases.  Our pre-1986 products liability cases limit
comparative fault to instances of product misuse and unreasonable
assumption of risk. [Fn. 34]  But, in addition to "misuse of
product" and "unreasonable assumption" of risk, the Act also
defines "fault" as including "acts or omissions that are in any
measure negligent [or] reckless . . . ." [Fn. 35]  Thus, the Act
modifies the pre-1986 products liability case law by expanding the
type of conduct that will trigger a proportional reduction of
damages to include ordinary negligence -- "acts or omissions that
are in any measure negligent." 
          The Act's modification of comparative negligence in
strict products liability cases reflects a general trend occurring
across the nation. [Fn. 36]   The recently published Third
Restatement of Torts, Products Liability, observes that a "strong
majority" of courts now apply comparative negligence principles in
strict products liability cases. [Fn. 37]  Moreover, most of these
courts do not limit comparative negligence to instances of product
misuse or unreasonable and voluntary assumption of risk.  Instead,
they allow a plaintiff's ordinary negligence to constitute
comparative fault. 
          In addition, legislatures in other states have enacted
tort reform statutes similar to the one here, incorporating a
universal definition of "contributory fault" for all tort cases,
including strict products liability cases. [Fn. 38]  Courts in
other jurisdictions have generally interpreted these statutes as
incorporating an ordinary negligence framework into the comparative
fault analysis in strict liability cases. [Fn. 39]     
          Smith argues that the Alaska Legislature did not intend
the Act to modify the existing products liability case law on
comparative negligence.  But Smith's only support for this argument
is the difference between the definition of contributory fault
contained in the Uniform Comparative Fault Act -- the model for
Alaska's tort reform -- and the definition actually adopted by the
Alaska Legislature.
          The Uniform Comparative Fault Act defines contributory
fault as follows: 
               In an action based on fault seeking to
recover damages for injury or death to person or harm to property,
any contributory fault chargeable to the claimant diminishes
proportionately the amount awarded as compensatory damages for an
injury attributable to the claimant's contributory fault, but does
not bar recovery.  This rule applies whether or not under prior law
the claimant's contributory fault constituted a defense or was
disregarded under applicable legal doctrines, such as last clear
chance.[ [Fn. 40]]

The Alaska Legislature adopted this definition verbatim into the
1986 Tort Reform Act with the exception of the last sentence which
it omitted. [Fn. 41]  Smith argues that this omission is
significant because it indicates the legislature's desire not to
change the prior existing law, including the prior existing law on
comparative negligence in products liability cases.
          This argument has some plausibility.  But we think a more
likely explanation of why the legislature omitted this particular
sentence is that it was simply not relevant when the Tort Reform
Act was enacted.  In 1986 an Alaska claimant's contributory fault
was not a "defense" in the sense meant by this sentence, nor was
"last clear chance" a basis for disregarding contributory fault.
[Fn. 42]  The Uniform Comparative Fault Act was written to apply to
all of the states of the United States.  As of 1977, when the
Uniform Act was proposed, only nine states had adopted the pure
form of comparative fault proposed in the model act. [Fn. 43]  But
Alaska was one of the nine.  The sentence in question would serve
no purpose here and it seems likely that this is why the
legislature did not adopt it.
V.   CONCLUSION
          The United States District Court for the District of
Alaska certified three questions to this court regarding the effect
of the 1986 Tort Reform Act on the prior comparative negligence
case law in strict products liability actions. 
          We conclude that the Act changed the law.  Prior to the
Act, comparative negligence in products liability cases was limited
to product misuse and unreasonable assumption of risk.  The Act
expands that definition to include other types of comparative
fault, including a plaintiff's ordinary negligence. 
          We therefore answer the first certified question in the
affirmative.  The other two questions thus become moot. 


                            FOOTNOTES


Footnote 1:

     Smith claims, however, that he is sure that he did not prop
the door open in the wedged position.  At trial, his expert witness
testified that if the door had been in the wedged position, it
would have been resting directly on Smith's head and could not have
fallen on his head or caused him injury.


Footnote 2:

     Final Instruction No. 4 stated as follows: 

               In order to find that plaintiff was
comparatively negligent, you must decide that it is more likely
true than not true:
               1. that the plaintiff was negligent, and 
               2. that the negligence was a legal cause
of plaintiff's harm.
               I will now define negligence for you. 
Negligence is the failure to use reasonable care. . . .  
               In this case, you must decide whether the
plaintiff used reasonable care under the circumstances.


Footnote 3:

     The special verdict form included the following questions and
jury responses:

               1.   Did the door of the Ingersoll-Rand
DR-365 Portable Air Compressor fall and hit Dan Smith on the head
on August 12, 1987?  Answer: Yes
               2.   Was the portable compressor
manufactured by the Defendant defective when it left the possession
of the Defendant?   Answer: Yes.
               3.   Was the defective condition of the
portable compressor manufactured by the Defendant a legal cause of
the Plaintiff's harm . . . ?  Answer: (None given)


Footnote 4:

     See Smith v. Ingersoll-Rand Co., 139 F.3d 908, *2 (9th Cir.
1998).


Footnote 5:

     See id. at *2-*3.


Footnote 6:

     See id. at *3.


Footnote 7:

     See id. at *4.


Footnote 8:

     Appellate Rule 407(a) states: 

               The supreme court may answer questions of
law certified to it by the Supreme Court of the United States, a
court of appeals of the United States, [or] a United States
district court . . . when requested by the certifying court if
there are involved in any proceeding before it questions of law of
this state which may be determinative of the cause then pending in
the certifying court and as to which it appears to the certifying
court there is no controlling precedent in the decisions of the
supreme court of this state.


Footnote 9:

     See supra note 8.


Footnote 10:

     Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).   


Footnote 11:

     Alaska Hous. Fin. Corp. v. Salvucci, 950 P.2d 1116, 1121
(Alaska 1997) (quoting Commercial Fisheries Entry Comm'n v.
Apokedak, 680 P.2d 486, 489-90 (Alaska 1984)).  


Footnote 12:

     See Salvucci, 950 P.2d at 1121 (quoting Peninsula Mktg. Ass'n
v. State, 817 P.2d 917, 922 (Alaska 1991)). 


Footnote 13:

     Marlow v. Municipality of Anchorage, 889 P.2d 599, 602 (Alaska
1995) (citations omitted).


Footnote 14:

     See Kaatz v. State, 540 P.2d 1037, 1049 (Alaska 1975); see
also AS 09.17.080 (adopting comparative negligence legislatively). 


Footnote 15:

     See Kaatz, 540 P.2d at 1049.


Footnote 16:

     555 P.2d 42, 46 (Alaska 1976).


Footnote 17:

     See id. at 46.


Footnote 18:

     See, e.g., Dura Corp. v. Harned, 703 P.2d 396, 403 (Alaska
1985) (recognizing two types of comparative negligence in products
liability cases and discussing product misuse as comparative
negligence); Caterpillar Tractor Co. v. Beck, 593 P.2d 871, 890-92
(Alaska 1979) (recognizing product misuse and unreasonable and
voluntary assumption of risk as the two types of comparative
negligence available in products liability cases).


Footnote 19:

     See Dura, 703 P.2d at 405 n.5 ("Plaintiff's failure to
exercise ordinary care is not sufficient to raise a jury question
on the issue of comparative negligence in a products liability case
based on strict liability in tort.") (disapproving of Sturm, Ruger
& Co. v. Day, 594 P.2d 38 (Alaska 1979), a case that suggested that
ordinary negligence -- such as dropping a gun -- could be
considered comparative fault in products liability actions); see
also General Motors v. Farnsworth, 965 P.2d 1209, 1215 n.6 (Alaska
1998) (recognizing that Dura overruled Sturm).


Footnote 20:

     965 P.2d 1209 (1998).


Footnote 21:

     703 P.2d 396 (Alaska 1985).


Footnote 22:

     See Farnsworth, 965 P.2d at 1215 n.6.


Footnote 23:

     See id. at 1215.


Footnote 24:

     See id. 


Footnote 25:

     See id. at 1211 (events took place in 1989); cf. Ogle v. Craig
Taylor Equip. Co., 761 P.2d 722, 725 (Alaska 1998) (holding that
1986 Tort Reform Act applies only when plaintiff's injury occurred
on or after June 11, 1986). 


Footnote 26:

     See id. at 1213. 


Footnote 27:

     See Senate Findings and Purpose, (C.S.S.B.) 377, 14th Leg.,
2nd Sess. (1986) (available in Conference Committee files).


Footnote 28:

     Id.


Footnote 29:

     AS 09.17.060.


Footnote 30:

     AS 09.17.900.


Footnote 31:

     AS 09.17.060.


Footnote 32:

     AS 09.17.900.


Footnote 33:

     See Clary v. Fifth Ave. Chrysler Center, Inc., 454 P.2d 244,
248 (Alaska 1969).  Products liability cases may also be based on
negligence or breach of warranty.  Id.  These theories are also
encompassed by the definition of fault in AS 09.17.900.


Footnote 34:

     See, e.g., Butaud v. Suburban Marine & Sporting Goods, Inc.,
555 P.2d 42, 46 (Alaska 1976).


Footnote 35:

     AS 09.17.900.


Footnote 36:

     See Daly v. General Motors Corp., 575 P.2d 1162, 1170 (Cal.
1978) (noting that more than 30 states have extended comparative
negligence principles to strict products liability). Most legal
commentators view this trend with favor.  See, e.g., William
Keeton, et al., Prosser and Keeton on the Law of Torts sec. 102, at
712 (5th ed. 1984) (declaring the comparative fault system to be
the fairest way to allocate costs of accidents in products
liability cases).


Footnote 37:

     See Restatement (Third) of Torts: Products Liability sec. 17
cmt.
a; see also Romualdo P. Eclavea, Applicability of Comparative
Negligence Doctrine to Actions Based on Strict Liability in Tort,
9 A.L.R. 4th 633 (1988 & Supp. 1999) (listing jurisdictions that
have adopted comparative negligence in products liability cases).


Footnote 38:

     See, e.g., Huffman v. Caterpillar Tractor Co., 908 F.2d 1470,
1475-77 (10th Cir. 1990) (Colorado tort reform statute); Reed v.
Chrysler Corp., 494 N.W.2d 224, 230 (Iowa 1993) (Iowa tort reform
statute); Mulherin v. Ingersoll-Rand Co., 628 P.2d 1301, 1303 (Utah
1981) (Utah tort reform statute); Webb v. Navistar Int'l Transp.
Corp., 692 A.2d 343, 359 (Vermont 1997) (judicially created); 
Lundberg v. All-Pure Chem. Co., 777 P.2d 15, 17-19 (Wash. App.
1989) (Washington tort reform statute). 


Footnote 39:

     See Huffman, 908 F.2d at 1477 (holding that Colorado's
legislature did not intend to restrict the definition of
"comparative fault" in tort reform statute to assumption or risk
and/or product misuse); Lundberg, 777 P.2d at 19 (interpreting
comparative "fault" as lack of exercise of due care and stating
"there is currently no reason to distinguish between negligence and
strict liability actions for purposes of instructing a jury on the
plaintiff's comparative fault"). 


Footnote 40:

     Unif. Comp. Fault Act sec. 1.


Footnote 41:

     See AS 09.17.060.


Footnote 42:

     See Kaatz, 540 P.2d at 1049 (abolishing traditional
contributory negligence in negligence tort actions and adopting a
pure system of comparative fault); Martin v. Union Prods., Inc.,
543 P.2d 400, 404-06 (Alaska 1975) (abolishing the "last clear
chance" doctrine in Alaska tort law because it is no longer
relevant in the comparative fault system).  


Footnote 43:

     12 ULA Uniform Comparative Fault Act, prefatory note, page 124
(1996).