Lead Opinion
Colt Industries Operating Corporation (“appellant”) appeals from a judgment entered January 18, 1985 upon a jury verdict in favor of Francis Paul Johnson (“appellee”) in the District of Kansas, Dale E. Saffels, District Judge. The jury found appellant liable for the injuries sustained by appellee and his wife when his handgun manufactured by appellant accidently discharged after being dropped. The jury awarded appellee $850,000 in compensatory damages and $1,250,000 in punitive damages. We find that the prinсipal questions appellant raises on appeal are: (1) whether the district court erred in admitting in evidence a judicial opinion as proof of a similar accident; (2) whether the district court properly instructed the jury on the parties’ respective duties of care; and (3) whether the evidence presented a jury question on punitive damages.
For the reasons stated below, we affirm the judgment of the district court.
I.
We summarize only those facts believed necessary tо an understanding of the issues raised on appeal.
In May 1974 appellee purchased a .22 caliber Colt single action revolver from a gun store near his home town of Junction City, Kansas. The gun had been manufactured by appellant in 1969 and sold to the gun store in that year. The gun model was the famous Colt “six-shooter”, first produced by appellant in 1873. The gun model has achieved a certain notoriety as a result of its association with the Old West and the United States Army. Appellant has not altеred the design of the gun model significantly since its inception. The gun has a revolving cylinder with six chambers that accept six bullets. The gun has an exposed hammer that must be cocked manually before each shot is fired. Appellee, an experienced handler of guns, testified that he purchased the gun for personal protection.
On July 31, 1981 appellee took the gun with him on a fishing trip to a nearby creek. While appellee was seated on a rock in the creek the gun fell frоm its holster and struck the rock. The impact caused the gun to discharge. The bullet entered appellee’s right buttock and lodged in his bladder. Although surgery was successful in removing the bullet, appellee’s doctor testified that the bullet had traumatized certain nerves and rendered appellee permanently impotent. Appellee and his wife testified to the detrimental effect this injury had on their marriage and appellee’s life in general.
Why the gun fired upon impact was not in questiоn. Both parties’ expert witnesses testified that exposed hammer single action revolvers expose the user to a hazard known as “drop-fire”. Drop-fire occurs when the gun is carried with a bullet in the chamber over which the hammer rests. In this situation, regardless of the cock position of the hammer, a sharp blow to the hammer, such as when the gun is dropped and lands hammer first, will cause the gun to discharge. When appellee’s gun discharged, all six chambers were loaded but the hammer wаs uncocked.
The case was tried before Judge Saffels and a jury from January 7 to January 18, 1985. Viewing the evidence in the light most favorable to appellee, as we must, appellee established through expert testimony that the design of the gun rendered it unsafe in any hammer position if the gun was carried with a bullet in the chamber under the hammer. The evidence showed that, even if the hammer was in the “safety” position when fully loaded, a sharp blow to the hammer would cause the gun to discharge. Appellee’s expert also testified that the gun design was unreasonably dangerous because there were certain inexpensive “positive” safety devices which could have been built into the gun to prevent any drop-fire. Appellee also introduced certain patent records for such safety devices, including one patented by appellant’s founder in 1850. These records indicated an industry awareness of the drop-fire hazard and feasible alternatives for curing it. Appellant’s own experts testified that gun manufacturers were aware of the drop-fire hazard and “ought” to consider it when designing exposed hammer weapons.
Appellee, aside from testifying to the circumstances of the accident and the profound effect his injuries had on his family, also testified that he had not received any instructions for the gun when he purchased it. Appellant introduced the instructions it includes with the gun model. The instructions do state that “the safest way to carry your [gun] is with five cartridges in the chamber and the hammer on the sixth chаmber”. Another portion of the instructions, however, states “load each chamber”. Appellee also introduced extensive evidence of the gun’s image as a “six-
shooter”. Finally, there was a good deal of conflicting evidence on appellant’s knowledge of other drop-fire related accidents. One of appellant’s officers admitted under cross-examination to being aware of a “few” drop-fire related accidents over the last five or six years. The officer denied knowledge of any law suits arising from these accidents. Appellee, however, introduced, over objection, the opinion of the Missouri Court of Appeals in Bender v. Colt Industries, Inc.,
- The jury in the instant case returned a verdict finding appellant 85% liable for appellee’s injuries, the gun store 5% liable, and appellee 10% liable. The jury awarded appellee and his wife each $500,000 in compensatory damages. The jury also awarded appellee $1,250,000 in punitive damages. The district court denied appellant’s motion for a new trial, but reduced the compensatory damage award to $850,000 to reflect appellant’s 85% liability. The court upheld the punitive damage award.
II.
Appellant has raised a number of claims of error in support of its request for a new trial. We shall address the рrincipal claims seriatim.
A. Admission of the Bender Opinion
Appellant argues that the district court erred in admitting as substantive evidence the Missouri Court of Appeals opinion in Bender v. Colt Industries, Inc.,
The Bender opinion was offered as proof of appellant’s knowledge of accidents sim
A foundatiоnal requirement for the admission of similar accident evidence is that the proffered accidents be substantially similar to the accident at bar. Julander, supra,
To hold that the Bender opinion’s similar accident evidence was relevant, however, does not validate the form in which that evidence was admitted. While we can find nо authority squarely in point — one way or the other — we believe that the admission of a judicial opinion as substantive evidence presents obvious dangers. The most significant possible problem posed by the admission of a judicial opinion is that the jury might be confused as to the proper weight to give such evidence. It is possible that a jury might be confused into believing that the opinion’s findings are somehow binding in the case at bar. Put most extremely, the jury might assume that the opinion is entitled to as much weight as the trial court’s instructions since both emanate from courts.
To minimize these dangers and in light of the fact that similar accident evidence can be adduced in numerous other ways,
This holding, however, does not end our inquiry. Fed.R.Civ.P. 61 cautions us not to disturb a judgment because of an error in the admission of evidence unless a refusal to upset the judgment would be
In the last analysis, we agree with the district court that the jury was not overly impressed with the Bender opinion. The jury’s special verdict indicates that it carefully considered and apportioned liability among the three parties involved. Both the disparity in the respective fault percentages and the size of the award indicate that the jury did not consider the case an especially close one. We cannot say that the jury permitted the Bender opinion to control the outcome of the instant case and thereby deny appellant substantial justice.
We hold that the admission of the Bender opinion was harmless error.
B. Duty of Care
Appellant argues that the district court erred in instructing the jury on appellant’s duty of care in designing and manufacturing the gun. The court charged the jury in relevant part:
“A manufacturer of firearms has the duty to exercise the highest degree of care in the design of the product so that it will be reasonably safe for the use for which it was intended or which can reasonably be anticipated. Failure to fulfill this duty constitutes negligence.”
Appellant claims that it should have been held only to a duty of reasonable carе and not to the “highest degree of care”. This claim is without merit.
In Kansas, as in most states, one who engages in dangerous activities is held to a higher standard of care to avoid negligence liability. E.g., Wroth v. McKinney,
We hold that the court properly instructed the jury on appellant’s duty of care.
Appellant also argues that the court erred in instructing the jury on appellee’s duty of care in handling the gun. The court charged the jury in relevant part:
“One who has in his possession, or under his control, an instrumentality exceptionally dangerous in character is bound to take exceptional precautions to prevent an injury being done by the instrumentality. The degree of care must be equal to the degree of danger involved.”
Appellant claims that this instruction did not place a stringent enough duty of care on appellee. This claim also is without merit.
We are at somewhat of a loss to understand appellant’s problem with the instruction. The court obviously placed an “exceptional” duty of care on appellee. We cannot envision a more exacting duty of care short of presumed contributory negligence. Appellant’s semantic argument borders on the frivolous.
We hold that the court properly instructed the jury on appellee’s duty of care.
C. Punitive Damages
Appellant argues that the district court erred in allowing the question of punitive damages to go to the jury. Appellant contends that its use of a “warning” in the gun’s instructions foreclosed the imposition of punitive damages as a matter of law. Appellant has sought to bolster this argument with some authority from other circuits which suggest that the use of a warning precludes a finding of the culpable conduct required to impose punitive damages. We are unpersuaded.
Sitting in diversity, we are bound by Kansas substantive law. Erie Railroad Co. v. Tompkins,
In view of these guidelines, we hold that the evidence in the instant case established a jury question on punitive damages. While there was no evidence to suggest that appellant was malicious in acting or failing to act, there was abundant evidence
Second, the jury could have viewed the steps appellant took to alleviate this deadly risk as trifling at best. Appellant’s only attempt to lessen the risk was the single statement in the gun’s instructions that “the safest way to carry your [gun] is with five cartridges in the chamber and the hammer on the sixth chamber”. While appellant terms this statement a “warning”, it is evident that the statement neither describes the risk involved nor warns of the possible consequences. Moreover, the same instructions also advise the consumer to “load each chamber” and that the gun will not fire unless the hammer is manually cocked. Coupled with these equivocal instructions was the gun’s image as a “sixshooter”, which implies that all six chambers may be loaded safely. From this evidence the jury properly could have found that, not only hаd appellant not adequately warned of the risk of drop-fire, but it had acted indifferently in the face of a known and deadly risk. Likewise, appellant’s justification for not taking more effective steps — that installing a positive safety device would detract from the gun’s image as a throwback to the Old West — could have been viewed by the jury as putting marketing concerns ahead of safety concerns. See Wooderson, supra,
In short, we hold that the evidence raised a jury question of whether appellant acted with reckless indifference to the drop-fire design hazard. The answer to that question, as well as the amount of the punitive damage award, was properly left to the jury.
III.
To summarize:
We affirm the judgment of the district court holding appellant liable for appellee’s injuries and assessing punitive damages against appellant. We hold that, whilе the admission of the Bender opinion was error, it was harmless error in light of the other evidence of an unreasonably dangerous design defect and the precision of the jury’s verdict. We also hold that the court properly instructed the jury on the parties’ respective duties of care under Kansas law, holding each party to the highest standard. Finally, we hold that the evidence established a jury question on the appropriateness of punitive damages, since it is appropriatе to view the evidence as showing that appellant acted with reckless indifference
AFFIRMED.
Notes
. Appellant also аrgues that the district court erred in instructing the jury on the possibility of a product recall. We find, however, that the complained of instruction did no such thing. Appellant’s argument is without merit.
. Appellee has cross-appealed from certain evidentiary rulings made by the district court but has asked that we reach the cross-appeal only if we were to remand the case for a new trial. In view of our decision on the principal appeal, we dismiss the cross-appeal without deciding it.
. The caliber of the two guns was different, but that difference is irrelevant to the drop-fire hazard.
. The typical and preferable method of introducing such evidence is through the testimony of one familiar with the similar accident or the subsequent litigation. See Rexrode, supra,
. Rule 61 also admonishes us to disregard any error “which does not affect the substantial rights of the parties."
. We note and hold that, contrary to appellant’s arguments, the district court correctly instructed the jury on the prerequisites for awarding punitive damages under Kansas law.
. While an award of $1,250,000 may be said to be a large one, we cannot say that the amount “shocks the conscience of the appellate court", in view of the deadly nature of the drop-fire hazard and appellant’s large sales volume of the gun model at issue. See Cantrell v. R.B. Werner Co.,
Concurrence Opinion
concurring:
I agree with the opinion of the court except for its harmless error analysis. Admitting into evidence the full opinion in Bender v. Colt Industries, Inc.,
Nevertheless, I reject Colt’s argument that admission of the Bender opinion was reversible error. Colt declined the opportunity to request a limiting jury instruction regarding the Bender opinion. Instead, it submitted an all-or-nothing objection to the admission of the opinion. Colt also failed to submit specific requests that the most prejudicial portions of the opinion be excised. Colt simply did not give the trial court the option of admitting this key and very probative evidence in a form that would have minimized its prejudicial impact. I believe this failure to propose a limiting instruction or to request deletions from the opinion is damning. Because “[a]n appellant may not complain on appeal of errors which he himself induced or invited,” Neu v. Grant,