PRIMAL VANTAGE COMPANY, INC. v. KEVIN O‘BRYAN AND SANTE O‘BRYAN AND DENNIS MARTIN AND MARGARET MARTIN
NOS. 2020-SC-0247-DG, 2021-SC-0064-DG & 2021-SC-0065-DG
Supreme Court of Kentucky
AUGUST 18, 2022
CHIEF JUSTICE MINTON
RENDERED: AUGUST 18, 2022; TO BE PUBLISHED;
PRIMAL VANTAGE COMPANY, INC. APPELLANT/CROSS-APPELLEE
V.
KEVIN O‘BRYAN APPELLEE/CROSS-APPELLANT
AND
SANTE O‘BRYAN APPELLEE/CROSS-APPELLANT
AND
DENNIS MARTIN AND MARGARET MARTIN APPELLEES/CROSS-APPELLEES
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
This is a products-liability case in which Primal Vantage Company, Inc. appeals from a decision of the Court of Appeals affirming the trial court‘s judgment that awarded substantial damages to Kevin O‘Bryan and Sante O‘Bryan. The product at issue is a ladderstand manufactured by Primal Vantage that must be affixed to a tree to be used for hunting. While Kevin O‘Bryan was using the ladderstand, the polypropylene straps securing the stand to the tree broke, the stand fell, and Kevin sustained serious injuries.
A jury found Primal Vantage liable for failure to warn and to instruct of the dangers associated with use of the straps. The jury awarded Kevin1 damages for past and future medical and personal expenses, pain and suffering, and lost wages. The jury also awarded damages for loss of consortium to Kevin‘s ex-wife, Sante O‘Bryan. The O‘Bryans’ claims against Dick Sporting Goods, Inc., the retailer of the stand, and Dennis and Margaret Martin, the owners of the property where the accident occurred, were dismissed by the trial court.
We granted discretionary review to examine further the role оf the trial court as evidentiary gatekeeper and clarify the law regarding failure-to-warn claims. Upon review, we conclude that the trial court abandoned its role as evidentiary gatekeeper and abused its discretion by allowing the jury to hear a wealth of other-incidents evidence before ultimately ruling that evidence inadmissible near the end of trial. As a result, we affirm
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2007, Dennis Martin purchased a ladderstand at Dick‘s Sporting Goods and attached it to a tree on his property. The stand was manufactured by Primal Vantage and consisted of a two-person platform and an attached ladder. The ladderstand was not designed to be freestanding. Five polypropylene straps were required to secure the stand to a tree. The stand was sold with instructions and warnings.
In 2012, Kevin O‘Bryan, his son, and a friend were given permission to hunt on the Martins’ property. Kevin, his son, and the friend climbed the ladder to the platform. Shortly after the three reached the platform, the straps broke, and the stand fell to the ground. Kevin suffered serious injuries.
Kevin and his then-wife Sante O‘Bryan sued the Martins, the owners of the property and the stand; Dick‘s Sporting Goods, the retailer of the stand; and Primal Vantage, the manufacturer of the stand. The claims against the Martins were dismissed before trial based on
The only remaining claims for the jury to consider were the failure-to-warn claims asserted against Primal Vantage. The jury found Primal Vantage liable for failure to provide reasonable warning and instruction regarding the risk attendant to the use of polypropylene straps to secure the ladderstand to a tree. The jury awarded damages to Kevin for past medical expenses, past personal-care expenses, future medical and personal-сare expenses, pain and suffering and loss of enjoyment of life, and lost wages. The jury also awarded Sante O‘Bryan damages for loss of consortium. But the jury assigned fifty percent of the fault to Primal Vantage and fifty percent of the fault to Kevin O‘Bryan. As such, the trial court reduced Kevin‘s and Sante‘s damage-award amounts by fifty percent and issued judgment accordingly.
Primal Vantage and the O‘Bryans both filed cross-appeals. The Court of Appeals affirmed the judgment. Primal Vantage and the O‘Bryans then filed cross-motions for discretionary review in this Court, which we granted.
II. ANALYSIS
Primal Vantage asserts several errors: (1) the trial court improperly admitted evidence of other incidents of accidents and injuries involving ladderstands; (2) the trial court gave jury instructions that deviate from Kentucky law and violate the bare-bones doctrine; (3) statutory immunity under
On cross-appeal, Kevin O‘Bryan contends that the trial court made several errors: (1) the trial court erroneously granted Primal Vantage‘s motion for directed verdict on the design-defect claims; (2) the trial court erroneously excluded evidence of other incidents involving ladderstand accidents; (3) Primal Vantage failed to comply with discovery orders regarding other-incidents evidence; and (4) if a new trial is granted based on the apportionment instruction, the trial court‘s decision to grant summary judgment to the landowners based on statutory immunity in
Finally, on cross-appeal, Sante O‘Bryan argues that the trial court erred by reducing her loss-of-consortium award by applying Kevin‘s fifty percent apportionment of fault.
A. The trial court abused its discretion by failing to screen other-incidents evidence, allowing several other instances to be introduced, then deсlaring the evidence inadmissible, and failing to admonish the jury expressly not to consider the inadmissible other-incidents evidence.
The trial court abandoned its evidentiary gatekeeper role and allowed introduction of a wealth of evidence of other injuries or accidents occurring during the use of ladderstands without determining the admissibility of the other-incidents evidence until near the end of trial. This error was magnified by several assurances offered by the trial court that introduction of dissimilar other-acts evidence would likely result in a mistrial and by the trial court‘s failure to admonish the jury clearly that the jury must not consider this inadmissible other-incidents evidence during deliberations.
Generally, “evidence of the occurrence or nonoccurrence of other accidents or injuries under substantially similar circumstances is admissible when relevant to . . . the existence or causative role of a dangerous condition, or a party‘s notice of such a condition.”2 “A requirement of substantial similarity between the earlier accidents and the one at issue is a matter of
relevance to be decided in the discretion of the trial judge and will not be reversed unless there has been an abuse of discretion.”3 Abuse of discretion will be found where the trial court‘s decision “was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”4
In this case, counsel for Primal Vantage objected to introduction of other-incidents evidence through motions in limine. In response, the trial court applied a good-faith standard, generally denied all Primal Vantage‘s motions in limine, allowed discussion in the presence of the jury of 78 other instances of accidents or injuries involving ladderstands, and withheld ruling on admissibility of the other instances evidence until near the end of trial.
The trial court serves an important evidentiary-screening function to ensure that, to the extent possible, only relevant evidence is admitted.5 Moreover, even
Here, the trial court abdicated its gatekeeping role by allowing the jury to hear presentation of a wide range of other-incidents evidence without making any determination until near the end of the trial on whether the other instances were substantially similar to the accident underlying this suit. Failure properly to screen the challenged other-incidents evidence was error because the jury heard about 78 other accidents and injuries involving ladderstands that the trial court ultimately ruled inadmissible.
The trial court amplified its error by cautioning that the admission of dissimilar other-incidents evidence would likely result in a mistrial but then failing to grant the mistrial when it ultimately ruled the evidence inadmissible. The trial court cautioned that evidence of unrelated incidents was “incredibly prejudicial evidence” and signaled at least four times that admission of dissimilar other-incidents evidence would likely result in a mistrial. Even so, after ruling that all other-incidents evidence presented at trial was dissimilar and therefore inadmissible, the trial cоurt refused to grant a mistrial.
Taken together, the trial court‘s failure to screen the other-incidents evidence until near the end of trial, paired with the trial court‘s cautionary statements regarding a likely mistrial, and the ultimate ruling that all the other-incidents evidence that the jury heard was inadmissible, constitutes abuse of discretion. In other words, the introduction of this evidence was unfair, unreasonable, and unsupported by sound legal principles.
issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.“).
Kevin claims that the Court of Appeals properly concluded that the trial court did not abuse its discretion by allowing the jury to hear the inadmissible other-instances evidence. First, Kevin claims that the trial court was not required to make a preliminary or threshold determination on the admissibility of the other-incidents evidence. Of course, the trial court was not required to hold several mini-trials or make preliminary rulings on each of Primal Vantage‘s motions in limine. And we acknowledge that a trial court has broad discretion in admitting evidence.7
However, the trial court‘s discretion is not unfettered and is limited by both the rules of evidence and the trial court‘s general obligation as evidentiary gatekeeper. For instance, when ruling on a motion in limine, the trial court “may rule on such a motion in advance of trial or may defer a decision on admissibility until the
To be clear, we do not hold that a trial court must make a threshold determination about every evidentiary objection or motion in limine. No exact chronological procedure mandates whеn trial courts must make evidentiary determinations, and trial courts enjoy broad discretion in making evidentiary determinations. But, on this record, the trial court abandoned its function as gatekeeper by allowing the jury to hear this wide array of evidence before ruling at the end of trial that this evidence was inadmissible.
Second, Kevin argues that the other-incident proof offered at trial satisfied the substantial-similarity standard. The trial court ultimately disagreed, of course, concluding that all the other-incident evidence introduced at trial was unrelated to the accident underlying this suit. Of the other-incidents evidence introduced at trial, some of the incidents involved ladderstands made by other manufacturers, some of the incidents involved accidents that occurred during installation of a ladderstand, and some incidents involved accidents attributable to a broken ladder, not broken straps. But we need not determine whether any of the 78 instances of other-accidents or injuries introduced at trial satisfied the substantial-similarity test. Again, the primary issue here is that the trial court failed in its gatekeeping function to ensure that inadmissible evidence was not introduced. On remand, the trial court is best positioned to make evidentiary determinations in the first instance, and we take no position on whether any of the other-incidents proof presented at trial is admissible on retrial.
Third, Kevin contends that the trial court‘s directed verdict on the design-defect claims cured any prejudice caused by introduction of the other-incidents evidence. Kevin claims that since the other-incidents evidence related exclusively to the design-defect claims, the other-incidents proof did not relate to the remaining failure-
Fourth, Kevin argues that the trial court‘s admonitions and counsels’ actions cured any prejudice caused by introduction of the other-incidents evidence. The trial court gave the jury several admonitions. For instance, the trial court explained that some evidence may be considered for some claims, but not others:
Sometimes, in fact, a lot of times, there is a reason to allow something in for your consideration, but it is really limited. Like it is limited to a very narrow part of your decision. And the danger is that you all might not be able to understand the purpose for each bit of this evidence, because it doesn‘t come with a big flashing sign that says, “only consider this for this” and “only consider this for that.” So, that‘s a lot of what we‘re talking about.
. . .
And I should have put bоxes up that say[ ], this one goes to the [] claim that there‘s a defect in the construction. This one goes to the claim there‘s a defect in the materials. This one goes to the claim there‘s a defect in the notice. . . . I mean, there‘s a bunch of different stuff and I‘m going to give you a better instruction eventually about that but what I‘m telling you is that not everything you hear can be considered by you for every decision that you make. All right? With that in mind, I‘m going to let them ask this question about this one area that does not get applied universally.
Later that day, the trial court provided guidance to the jury regarding the number of other incidents that had been introduced and the limitations of the other incidents evidence:
These folks know everything about this case. I know something about it. And you all only know what you hear inside the courtroom, and that‘s good. But you might make assumptions about what
you‘ve heard that are absolutely incorrect, and we‘re concerned about that. For example, nobody is suggesting that what happened in this case has happened 78 times before. It hasn‘t. That‘s not what they‘re suggesting. But my fear is that somebody is thinking, wow, this is the 79th time that one of these treestands has collapsed like this under the same circumstances. That is not the proof, and you should not assume that this is the 79th time that an event like this one has happened. It‘s not, and nobody is suggesting that it is, to the extent that anybody is thinking that right now, stop thinking that, because that is not true, and nobody wants you to think that is true.
Finally, during jury instructions, the trial court informed jurors that they were not to consider evidence the court had excluded:
There are-there is testimony in this case which you have been asked to disregard, and it‘s not like I‘m going to say, seriously forget it or I‘m going to cauterize that part of your brain where that information is stored.
What I‘m saying is, that in making your decision, any of the testimony that I‘ve asked you to disregard is not something that you may consider in reaching that decision. You have to keep it separate from that pile of evidence that you are making your decision from.
So there‘s two piles, things that you consider and things that you can‘t, and you can‘t confuse thоse two piles. And as we go through this, counsel will kind of walk you through some of that, but it‘s important that you kind of monitor each other to make sure that your decision is based on the facts that you‘ve heard inside this courtroom and the facts that you‘re allowed to consider in making that decision.
It is well-settled that “[a] jury is presumed to follow an admonition to disregard evidence and the admonition thus cures any error.”11 The issue here is that the trial court never expressly instructed jurors that the other-incidents evidence was inadmissible. The trial court provided generic admonitions to the jury regarding proper and improper use of the other-incidents evidence. And the trial court instructed the jury to disregard evidence that the court instructed them to disregard. The important point here is that the trial court never explicitly told the jurors to disregard the other-incidents evidence.
The trial court‘s first two admonitions included above were given before the trial court discussed the admissibility of the other-incidents evidence. And, even after determining that none оf the other-incidents evidence was substantially similar to the accident at issue in this case, the trial court did not explicitly instruct jurors to disregard the other-incidents evidence. As such, the trial court‘s admonitions did not cure the prejudice related to the other-incidents evidence because the trial court did not properly admonish the jury on other-incidents evidence after finding it inadmissible.
Even so, Kevin argues that his counsel took steps to cure any prejudice, including informing the jury during closing arguments that the inadmissible other-incidents evidence was not to be considered during deliberations. Despite Kevin‘s counsel‘s allegedly meliorative efforts in her closing argument, we remain unconvinced that those efforts cured the prejudice caused by introduction of the other-incidents evidence. Again, the trial court functions as the neutral gatekeeper to ensure,
disregard the other-incidents evidence during its deliberations. As a result, counsel‘s closing argument to the jury cannot cure the prejudice from the introduction of this heft of inadmissible evidence.
Kevin further contends that Primal Vantage‘s own counsel cured any potential error and waived any objection to the other-incidents evidence by introducing additional other-incidents evidence on cross examination and during closing argument. In other words, Kevin argues that Primal Vantage wants “to have its cake and eat it toо” by arguing that the other-incidents evidence was inadmissible while also introducing self-serving other-incidents evidence. But Primal Vantage‘s position at trial is more accurately characterized as being stuck between a proverbial “rock and a hard place.” The Court of Appeals correctly acknowledged that point, suggesting that holding that Primal Vantage waived its objection to admissibility of the other-incidents evidence would penalize effective advocacy. The trial court‘s failure to serve as evidentiary gatekeeper by delaying ruling till near the end of trial placed Primal Vantage‘s counsel in an unenviable strategic position as zealous advocates. Primal Vantage‘s counsel faced a Hobson‘s choice. First, Primal Vantage, believing that the other-incidents evidence was inadmissible, could make no mention of such evidence, allowing Plaintiffs’ counsel to introduce the evidence without any rebuttal or differentiation from Primal Vantage. Second, Primal Vantage, fearing that the trial court may find some of the other-incidents evidence admissible toward the end of trial, could ask questions on cross-examination about other incidents to rebut the evidence offered by Kevin and differentiate the other incidents introduced at trial. Primal Vantage cannot be penalized for choosing the latter course of action considering the trial court‘s initial abandonment of its screening role.
Finally, Kevin asserts that even if introduction of the other-incidents evidence constituted error, any error was harmless, and a reversal for a possible new trial is not warranted. However, error in the admission or exclusion of evidence is not grounds for reversal “unless refusal to take such action appears to the court inconsistent with substantial justice.”14 “The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”15 “When considering a claim of harmless error under
We cannot conclude that the introduction of the other-incidents evidence was harmless error. The jury heard evidence of 78 other incidents of accidents and injuries involving ladderstands. As such, the other-incidents evidence permeated the entire two-week trial. And the trial court‘s decision to withhold ruling on the objections to the other-incidents evidence, allow the jury hear a wealth of other-instances evidence, rule all the other-incidents evidence inadmissible near the close of trial, and fail clearly to admonish or instruct the jury not to consider the other-incidents evidence during deliberations is inconsistent with substantial justice.
Additionally, the other-incidents evidence affected Primal Vantage‘s substantial rights. As previously discussed, knowledge of an unsafe condition is relevant to a failure-to-warn claim. So it is possible that the jury would have reached a different result but for introduction of the other-incidents evidence, which the trial court held inadmissible. As a result, introduction of the other-incidents evidence was not harmless error, and a new trial is required.
In conclusion, the trial court erred by abandoning its role as evidentiary gatekeeper and allowing the jury to hear substantial evidence regarding other accidents and injuries involving ladderstands that were eventually ruled inadmissible at the end of trial. This error affected Primal Vantage‘s substantial rights and was not harmless. As a result, the holding by the Court of Appeals regarding the other-incidents evidence is reversed, the trial court‘s judgment as to Primal Vantage must be vacated, and this action remanded for a new trial.
B. The trial court‘s jury instructions regarding failure to warn were not erroneous.
Our analysis does not end after concluding that a new trial is warranted based on the other-incidents evidence. This Court has consistently reviewed issues that are otherwise rendered moot if they are likely to recur on retrial.17
Primal Vantage argues that the trial court‘s jury instructions misstated Kentucky law on the failure-to-warn claims. Although this issue may be rendered moot in this appeal by our finding that а new trial is warranted based on the other-incidents evidence, we will address Primal Vantage‘s arguments regarding jury instructions on failure to warn
Under Kentucky law, the concepts of negligence and strict liability underlying a failure-to-warn claim are “distinct but overlapping theories.”18 “[A]lthough the concepts of strict liability and negligence may overlap in some areas, an inadequate warning may give rise to separate and distinct cause of action under either theory of liability.”19
Negligence claims focus on the conduct of the actor.20 Under a negligence theory, “the manufacturer must ‘warn the consumer of non-obvious dangers inherent in the probable use of the product,’ even dangers from foreseeable misuse.”21 The manufacturer is not charged with hindsight
only those additional assignments of error that are likely to recur upon retrial.“); Terry v. Commonwealth, 153 S.W.3d 794, 797 (Ky. 2005) (“We will also address other issues that are likely to recur upon retrial.“); Springer v. Commonwealth, 998 S.W.2d 439, 445 (Ky. 1999) (“Because the other issues raised by the appellants are likely to recur upon retrial, those issues will also be addressed in this opinion.“).
regarding the potential risks involved in the design of the product under a negligence theory.22
A strict-liability theory focuses on the condition of the product.23 Ina strict-liability case, “[a] product may be unreasonably dangerous in design, unless accompanied by a warning that it should not be put to a certain use.”24 Put differently, a manufacturer
is presumed to know the qualities and characteristics, and the actual condition, of his product at the time he sells it, and the question is whether the product creates ‘such a risk’ of an accident of the general nature of the one in question ‘that an ordinarily prudent company engaged in the manufacture’ of such a product ‘would not have put it on the market.’25
If warnings are required as part of a safe design, the manufacturer is charged with hindsight regarding the potential risks involved in the design of the product.26
The distinction between the negligence and strict liability theories
is that negligence depends on what a prudent manufacturer, engaged in a business similar to that of the defendant, by the exercise of ordinary care actually should have discovered and foreseen, whereas strict liability depends on whаt he would have anticipated had he been (but regardless of whether he actually was or should have been) aware of the condition of and potentialities inhering in the product when he put it on the market.27
“Where [negligence] is actual, [strict liability] is postulated.”28 Put differently, “negligence turns on actual knowledge of a defective condition [that is] unreasonably dangerous, or a condition which, under the exercise of ordinary care, should have been
Here, the trial court provided four instructions on Kevin‘s failure-to-warn claims. Instruction No. 1 concerned failure to warn based on a defective product. Instruсtion No. 2 dealt with failure to instruct based on a defective product. Instruction No. 3 explained failure to warn based on negligence and is identical to Instruction No. 1 except for the third paragraph, which required the jury to find that Primal Vantage, in the exercise of ordinary care, should have been aware that the ladderstand was unreasonably dangerous. Finally, Instruction No. 4 provided that Primal Vantage could be liable based on failure to instruct under a negligence theory.
Since negligence and strict liability are distinct, yet closely related, legal concepts, it was not error for the trial court to provide separate instructions for recovery under each theory. Here, Instruction No. 1 instructed the jury to find liability under the strict-liability theory of recovery if the jury found that the ladderstand was unreasonably dangerous if unaccompanied by a reasonable warning. Alternatively, Instruction No. 3 instructed the jury to find liability under the negligence theory of recovery if Primal Vantage, in the exercise of ordinary care, should have been aware that the ladderstand was unreasonably dangerous and failed to provide an adequate warning.33 So, we agree with the Court of Appeals’ conclusion that the jury instructions adequately covered both the negligence and strict-liability theories of recovery.
Primal Vantage argues that the trial court should not have given strict-liability instructions because the trial court granted a directed verdict in favor of the Defendants on Kevin‘s design-defect claim.
The use of the term defective has caused considerable confusion in the context of products liability. Both the negligence and strict-liability theories of recovery require the plaintiff to prove that the product was defective and was the legal cause of the injury.34 Admittedly, some authorities suggest that the
distinction between the strict-liability and negligence theories is “of no practical significance.”35 But, under certain circumstances,Primal Vantage‘s contention that the trial court‘s directed verdict on the design and manufacturing claims precludes a strict-liability instruction is misplaced. The “defect” underlying a strict-liability claim need not be a result of a manufacturing error.38 Instead, “a product is ‘defective’ when it is properly made according to an unreasonably dangerous design, or when it is not accompanied by adequate instructions and warning of the dangers attending its use.”39 “The prevailing interpretation of ‘defective’ is that the product does not meet the reasonable expectations of the ordinary consumer as to its safety.”40 In other words, for the purposes of strict liability underlying a the sale of a defective product that is unreasonably dangerous because of an inherent defect or inadequate warning, in every instance, the product must be а legal cause of the harm).
failure-to-warn claim, a product may still be “defective” even if the product does not have a design defect. As a result, the trial court‘s instructions on strict liability for failure to warn or instruct were proper.
Finally, Kevin argues that the four separate jury instructions are duplicative and violate the bare-bones doctrine. “We prefer ‘bare bones’ instructions to make the oft-confusing task of determining liability easier for the layperson to perform.”41 “But while simple instructions are preferred, correct and complete instructions are required.”42 In Montgomery Elevator, this Court explained that “[c]onsiderations such as . . . warnings and instructions, . . . while they have a bearing on the question as to whether the product was manufactured in a defective condition [that is] unreasonably dangerous, are all factors bearing on the principal question rather than separate legal questions.”43 So the trial court could have combined the warning and instruction considerations into the same instruction. But we do not find that the trial court committed reversible error by setting out separate instructions for warnings and instructions where the jury instructions were complete and accurate instructions on Kentucky law.
Accordingly, we affirm the Court of Appeals’ decision that the trial court did not err in providing jury instructions regarding Kevin‘s failure-to-warn and failure-to-instruct claims.
C. The Martins were properly excluded from apportionment of fault under KRS 150.645 .
Primal Vantage argues that the lower courts erred in concluding that fault could not be apportioned to the Martins under
First, Primal Vantage argues that Kentucky‘s comparative-fault statute,
Second, Primal Vantage contends that
Finally, Primal Vantage contends that the jury should have been able to apportion fault to the Martins based on “clear evidence of the Martins’ failure to maintain and inspect the ladderstand.” This argument is unavailing.
In sum, the lower courts correctly concluded that fault could not be apportioned to the Martins under
Kevin claims that the trial court erroneously granted a directed verdict in favor of Defendants on the design-defect claims. When a motion for directed verdict is made, “a trial court ‘must draw all fair and reasonable inferences from the evidence in favor of the party opposing the motion.”51 “As a reviewing court, we ‘must ascribe to the evidence all reasonable inferences and deductions which support the claim of the prevailing party.‘”52 A directed verdict is appropriate “where there is no evidence of probative value to support an opposite result” because “the jury may not be permitted to reach a verdict upon speculation or conjecture.”53
The ruling of the trial court regarding whether to grant a directed verdict will only be disturbed when clearly erroneous.54 A trial court‘s findings are clearly erroneous when not supported by substantial evidence.55 “Substantial evidence is evidence that a reasonаble mind would accept as adequate to support a conclusion and evidence that, when taken alone or in the light of all the evidence, has sufficient probative value to induce conviction in the minds of reasonable men.”56
To prevail on a design-defect claim, a plaintiff must present proof of “an alternative safer design, practicable under the circumstances.”57 “In a design defect case, courts use some form of risk-utility analysis to assess the decisions made by manufacturers with respect to the design of their products.”58 Since a manufacturer chooses the design of a product, the emphasis is on the manufacturer‘s conduct, not the allegedly defective product:
A conscious decision to design a product in a certain manner necessitates that the focus be on conduct rather than the product. Hence, the trier of fact must employ a risk-utility balancing test that considers alternative safer designs and the accompanying risk pared against the risk and utility of the design chosen “to
determine whether . . . the manufacturer exercised reasonable care in making the design choices it made.”59
Admittedly, Kentucky case law is scant on the precise elements a plaintiff must prove to recover on a design-defect claim. Many of the authorities applying Kentucky law cite persuasive federal authority for the elements of a design-defect claim under Kentucky law. And several cases discussing alternative designs concern “crashworthiness” or “enhanced injury” cases, where the plaintiff claims that a defect in a motor vehicle caused injuries over and above those which would have been expected in the collision absent the defect. Regardless, to recover for a design defect under Kentucky law, a plaintiff must establish existence of an alternative, safer design that is practical under the relevant circumstances.
Here, the trial court‘s directed verdict in favor of Defendants on the design-defect claims is supported by substantial evidence and not clearly erroneous. Kevin claims that the Q195 steel used in the Primal Vantage ladderstand was too weak and bent after the polypropylene straps affixing the stand to the tree broke. Dr. Alan Johnson, Kevin‘s expert in materials science, testified that a stronger metal would be less likely to bend. Even so, it is undisputed that the ladderstand at issue here was not designed to be freestanding. Instead, the ladderstand was designed to be affixed to a tree using polypropylene straps. And here, the polypropylene straps failed, causing injuries to Kevin. In fact, Dr. Johnson testified that the Q195 steel used in the ladderstand at issue would not have bent if the polypropylene straps had not broken. As a result, it is not apparent that the use of stronger metal in the ladderstand at issue would be a safer alternative to the Q195 steel where the ladderstand was not designed to be freestanding and the method for affixing the stand to a tree or other object failed.
Kevin also contends that Primal Vantage could have used chains to affix the ladderstand to a tree instead of the polypropylene straps. The evidence at trial established that the use of chains to support ladderstands was widely discontinued in the industry approximately twenty years before the accident that occurred here. Of
Trial testimony indicated that chains may have been discontinued because chains could not be tightened down, allowing the ladderstand to rotate on the tree. Other trial testimony relayed instances in which a chain was used to secure a stand to a tree and the ladder broke because the tree grew, and the chain did not stretch in response to the tree growth. Regardless, Kevin‘s expert testified that he was unaware of chains currently being used by any manufacturer to secure ladderstands to a tree.62 More importantly, the expert failed to provide proof that the use of chains was a safer and practical alternative to the use of polypropylene straps to affix a ladderstand to a tree. For instance, Kevin‘s expert testified that the industry “should have looked at the hazard and designed a better way to tighten that chain down,” instead of using polypropylene straps. But proof that chains had been used in the industry is not proof that chains were a safer or practical alternative to straps, especially where other evidence suggested that the use of chains presented its own safety concerns. As a result, while there was evidence that chains could conceivably be used as an alternative method of affixing a ladderstand to a tree, we cannot conclude that it was clearly erroneous for the trial court to conclude that chains are not a safer, practical alternative to the use of straps.
Finally, Kevin asserted that a Lockjawz dеvice, which is a large clamp that grasps the tree to hold a ladderstand in place, was a feasible alternative design. It is undisputed, however, that the Lockjawz device was not developed until after the ladderstand at issue in this case was produced. Moreover, Kevin‘s expert testified that he had only seen pictures of the Lockjawz device on the internet and could not testify as to whether the device was safer than the use of straps. As a result, it was not clearly erroneous for the trial court to conclude that the Lockjawz device was not a feasible alternative design.63
In conclusion, the trial court‘s directed verdict in favor of Defendants on the design-defect claims was not clearly erroneous. So the trial court‘s directed verdict on the design-defect claims is affirmed.
E. Assignments of Error Regarding Loss of Spousal Consortium Are Not Properly Considered in this Appeal.
Sante O‘Bryan was awarded $80,000 for her loss-of-consortium claims. That award was offset by 50% based on the jury‘s finding that Kevin O‘Bryan was 50% at
As previously discussed, this Court consistently considers moot issues that are likely to recur upon retrial. But consideration of a moot issue may be inappropriate where the recurrence of issues on retrial is dependent upon proof to be presented at trial.64 While a spouse‘s claim for loss of consortium is an independent cause of action,65 it is not a separate injury, but is derivative of the injured spouse‘s personal-injury claim.66 So, on retrial, Sante O‘Bryan will only recover for loss of spousal consortium if two contingent events occur: (1) Kevin O‘Bryan succeeds on the merits of his claims against Primal Vantage; and (2) the jury finds that Sante O‘Bryan is entitled to recover for loss of spousal consortium. Both contingent events are completely dependent upon the proof to be presented on retrial and the jury‘s findings. As a result, because it is neither likely nor unlikely that the issue of loss of spousal consortium will recur on retrial, we deem discussion of that issue premature and decline to consider the issues raised in this appeal regarding loss of spousal consortium.67
F. Alleged Prejudicial References to China are not Properly Considered in this Appeal.
Primal Vantage argues that Plaintiffs’ counsel made improper and irrelevant references to China and Chinese locations and names at trial. Whether the issue of references to China will recur on retrial is dependent upon proof to be presented at trial. And the trial court is best positioned as evidentiary gatekeeper to consider the relevance and admissibility of any evidence on retrial, including potentially prejudicial references to China or Chinese locations. So we decline to render an advisory opinion on an issue that may or may not occur in the future on retrial.68
G. We Need Not Rule on Enforcement of Discovery Orders in this Appeal.
On cross-appeal, Kevin summarily argues that Primal Vantage failed to comply with discovery obligations and trial court orders compelling production of evidence.
III. CONCLUSION
The trial court abused its discretion and abandoned its role as evidentiary gatekeeper by allowing substantial amounts of evidence of other incidents to be presented to the jury, threatening that a mistrial would likely be declared if this evidence was found inadmissible, ruling near the end of trial that the other-instances evidence was indeed inadmissible, and then failing properly to admonish the jury to ignore the inadmissible other-incidents evidence during its deliberations. Even so, the trial court‘s jury instructions on failure to warn were not erroneous, the trial court correctly concluded that fault could not be apportioned to the Martins under
Accordingly, the trial court‘s judgment is reversed, and this action is remanded to the trial court for a new trial.
All sitting. All concur.
COUNSEL FOR APPELLANT/CROSS-APPELLEE, PRIMAL VANTAGE COMPANY:
Milton S. Karfis
Clark Hill PLC
Griffin Terry Sumner
Casey Wood Hensley
Frost Brown Todd LLC
COUNSEL FOR APPELLEE/CROSS-APPELLANT, KEVIN O‘BRYAN:
Ann B. Oldfather
R. Sean Deskins
Oldfather Law Firm
COUNSEL FOR APPELLEE/CROSS-APPELLANT SANTE O‘BRYAN:
Paul A. Casi
Jeff W. Adamson
Paul A. Casi, II, P.S.C.
COUNSEL FOR APPELLEES/CROSS-APPELLEES, DENNIS I. AND MARGARET M. MARTIN:
Diane M. Laughlin
Emily C. Lamb
Bryce Lee Cotton
Blackburn Domene & Burchett, PLLC