*1 TREADWAY, Plaintiff-Appellee, Ronald COMPANY, TIRE A
UNIROYAL New Corporation,
York
Defendant-Appellant,
Otasco, Inc., an Oklahoma
Corporation, Defendant.
No. 61823.
Supreme Court of Oklahoma.
April 1988. April
As Corrected 18 and Oct. 1988.
Dissenting Opinion Nov. *2 appellee’s
tured in three bones the wrist. The has the use limited and move- appellant’s right ment of the hand. The appellee presented evidence that future likely. surgery appellee’s theory is The prosecution his of the case was that the tire time was defective from the of manu- facture, and the caused the defect tire appellee airing up burst while the was the appellant tire. presented evidence at support the trial to its the appellee failed follow the instructions tire, properly mounting for fail- burst, any ure caused the tire to and not manufacturing process. defect in the that a for Horizons holds motion preserve any new is insufficient to trial if the is appellate errors for review motion vague general too to inform the trial meaningful way of the court in a reasons sought. for relief An examination of the hearing on the reveals that the Jones, Rhodes, motion McCullough, Bert M. J.A. Gable, Tulsa, argued points of error Jones, appellant three Hieronymus, Tucker & argued in its brief in chief. defendant-appellant. which are also for arguments only objection these Harris, Boydston Boydston, & John D. hearing. very beginning of the made at the Gibbon, Gladd, Ghostbear, Gladd, A. John case, After trial court called Tulsa, Hickman, plain- Taylor, for Smith & any explana appellee’s attorney, without tiff-appellee. tion, objected to motion. WILSON, ALMA Justice: language of Any specificity lack plaintiff’s In this from a verdict new is cured at the a motion for trial action, a manufacturers’ movant, objec- any hearing if the “without appellant, the auto- who manufactured precisely opposite party,” tion from found caused the mobile tire which fairly point which is each of law identifies injury, propositions three of error. submits general allegations of the comprised in the appellant complains that a letter was Horizons, P.2d, motion. defective evidence, improperly excluded from that an appellee argues that because Ho- 759. The worded, improperly instruction was describing “any” in the term rizons uses an- his verdict was excessive. objection, objection made should brief, that the appellee contends swer objection insufficiently an suffice. Such trial was defec- appellant’s motion new specific is no effective than more vague and motion too tive because the objec- nonspecific motion for new trial. An court of the apprise the general to flag to serve a mere marker tion not re- causing appellant to seek reasons potential legal errors for the locating lief, Leasing citing v. Keo Horizons purpose of appeal. an “The preparation (Okla.1984). affirm the We call court’s objection in a trial is to an of the trial court. decision being committed so that to errors attention party, court, opposing as well as the appellee, a service On June opportunity to and have will be advised attendant, attempting to mount station Cox, 437 P.2d correct them.” Hodo appellant when a tire manufactured (Okla.1967),quoting City Build- Ponca resulting force frac- and the burst ing Graff, Loan find no & Co. Okla. abuse of the trial court’s discretion (1941). refusing to admit letter. We therefore any objection find that the waived assignment error, In his second appellant's to the form of the motion for appellant argues that the trial court’s by appellee’s new trial failure to state the equivalent number seven was grounds objection. for his eliminating effect of the misuse issue from *3 consideration, jury’s the thereby substan argument appellant’s The in motion for tially prejudicing appellant. the in That propositions new trial included three of er- struction reads: (1) ror: that the trial erred re- plaintiff the Defendants contend mis- fusing permit appellant’s the counsel to tire, used the and defendant has expert concerning appellee’s cross-examine the proving burden of such misuse as a by appellant a certain letter to the sent defense. expert; (2) improperly trial court that the product Misuse of a is where the meth- appellant’s the instructed the de- using od of was not that which misuse; (3) fense of that the verdict of intended, the manufacturer or was it a $750,000.00 As no was excessive. other reasonably anticipated use not by the propositions argued of error were to the manufacturer. court, no other issues shall be ad- plaintiff using If the the Horizons, P.2d, dressed this Court. in a manner foreseeable or at 759. anticipated
could have been the de- fendant, In the ap- cross-examination of the it is not misuse plain- even if the pellee’s expert, tiff Forney, ap Mr. Loren has been careless in the that use. pellant attempted to have a letter admitted In objecting wording to the of this in- evidence, into dated November trial, during appellant struction the the trial, which a month was less than before asked the court to instruct that the tire Forney offered to Mr. allow to visit appellee could be misused if the used the plants appellant’s one of the where he product in legally direct contravention of a provided would be awith vulcanizer and a warning sufficient prod- which was on the quantity of in order raw tires to demon appellant argues uct. The in its brief that strate during how the bead could be broken although given may the instruction have vulcanizing process. The bead is the law, been an accurate statement of the it edge against inside of the tire which seals should have been tailored to fit the facts of the wheel. The trial court ruled that the the case. probative value letter was out The evidence shows that instructions weighed by danger prejudice to the specifically always referred to warn to lu- appellee. Relevant evidence be ex flanges bricate rim both beads and with the cluded if probative its value substantially is described; is always solution which outweighed by preju of unfair mounting a tire machine with a hold- dice, ruling by and such a the trial court down to inflate a tire but device never will distrubed the ab lying is inflate a tire which on the floor or strong showing sence of a prejudice surface; other flat never inflate to seal proponent. Madill Bank and Trust using an extension hose beads without Herrmann, (Okla. Co. chuck; guage clip-on with a and a never to
App.1987). Although the letter was not stand next to or lean over a and wheel credibility allowed to attack the of the inflating; psi while never to exceed 40 witness, appellant’s thoroughly counsel pressure. continues that fail- Forney. cross-examined Mr. He subse safety precautions may ure to follow the quently questioned appellant’s expert injury. result serious The evidence is concerning impossibility bead uncontested that the took the tire breaking mounting inside the vulcanizer which was from the device order to finish appellee. inflating attempted advanced We it. He to air the tire on beads, ground only contributory in order to seal and failure could be called negligence. checking pressure, air he reached after burst, him. injuring the tire over appellant’s The failure in- to follow properly he Whether lubricated is structions an issue causation. The pressure air or exceeded the beads light evidence viewed in the most favor- contested. issue whether the appellant appel- able would be that in this case con- to follow instructions failure to lee’s inflate the tire on the stitutes misuse. mounting machine resulted in an overinfla- and an explosion injured tion establishing manufacturer’s appellee, and that such an would State, liability in this the case of Kirkland prevented have been if the tire had been Corp., v. General Motors appellant de- machine. (Okla.1974) set to this out three defenses factory any nied that the tire left the The first that the defective tort. *4 The appellee’s defect. was that the injury. did not cause the The burden factory, tire was defective from the that plaintiff, and proof for causation is on the appellee properly handled the tire ex- that the record the case at bar reveals cept for the fact that he inflated it on the plaintiff The the trial so instructed. ground, and that the defect in the tire’s prove directly must that the defect caused explosion. what The bead was caused injuries. his The other two defenses appellee’s expert appellee that stated products liability, manufacturer’s abnormal if left injured could have been even he had assumption risk voluntary and The the tire on the machine. defect, defenses of a known are affirmative jury appellee. chose to The believe pled they must be or are waived. RST and causation, cor- issue is and causation was MFG., Musselwhite, 628 Inc. v. Service upon. error in rectly instructed We find no (Okla.1981). uses the P.2d 366 Kirkland given by the court on the instruction interchangeably with term “abnormal use” the issue of misuse. pled appel- by “misuse.” Misuse was in its lant answer. appellant’s third final as The jury’s signment of error is whether the prod use or misuse of a Abnormal The issue of dam verdict was excessive. using a occurs where the method of uct personal injury action is left to ages in a product is not that which maker intend jury can and before the verdict be jury reasonably ed or is a use that could not be excessive, the must aside as award set by anticipated a manufacturer. Fields mankind, being be at first blush as strike Inc., America, Volkswagen P.2d 555 show measure unreasonable and yond all (Okla.1976). observes, As Fields a dis passion, by activated jury to have been must be drawn between use for tinction corruption. prejudice or Dodson partiality, purpose and use for a abnormal Inc., P.2d Properties, Henderson purpose in a careless but manner. (Okla.1985). also held We have properly use would be described latter can no absolute standard that there be contributory de negligence, which is not a damages, that the such measure products liability discretion, to manufacturer’s fense given a wide latitude Negligence in the use cases. aside excessive will not set a verdict be even recovery not bar under this tort damages jury clearly does unless committed error, acted though negligence gross “contributed” and obvious some bias, influence, Fields, P.2d, As there improper some accident. under rules appellant totally rea mistaken the dispute that the could or has prejudice, is no regulated. damages inflat are anticipate by a tire be sonably of law Morhain, 380 P.2d ground, mounting ma off of a Oil Co. v. ed on the Carraco hearing (Okla.1963). mis chine, not constitute such action does appellant fol for new trial counsel for appellee motion though the failed use even not determine what that he could stated appellant’s instructions. Such low the preju- passion could have caused the total amount awarded should exceed alleging. only dice he was He state could $1,562,705.00, which was the amount sued $750,000 injuries that an award of for the for. The awarded half less than outrageous. appellee received jury’s We find no amount. abuse of the appellant correctly states discretion award. enough amount of a verdict AFFIRMED. part indicate that the inwas motivated by prejudice passion. St. Louis-San DOOLIN, C.J., HODGES, J., and Fox, Railway Francisco Co. v. BAILEY, (appointed S.J. place (Okla.1961). SUMMERS, J., disqualified), who The evidence reveals that KAUGER, J., concur. concurs wrist, right fractured bones in his that the stare reason of decisis. surgery, fractures necessitated that one of HARGRAVE, V.C.J., and heal, properly appel- did not the bones LAVENDER, SIMMS, JJ., OPALA and physicians lee’s stated that wrist fusion dissent. operation was recommended alleviate pain caused He traumatic arthritis. HODGES, Justice specially significant grip, has suffered loss concurring. fused, more wrist would lose move- agree I with the result of this Court’s appellee presented ment. follow- today. I decision also find no reversible ing damages: evidence *5 given error in the instruction the trial Wages 6,885.00 Past $ the issue product court on misuse. 120,328.00 Wages Future 3,234.00 5,000.00 Medical Past Future Medical giving of The an instruction erroneous
will not warrant reversal the trial appears jury court’s unless it thereby, resulting was misled in miscar- a $135,447.00 TOTAL riage Kirkland v. Mo- justice. General judge jury trial instructed Corporation, tors 521 P.2d following into take consideration the ele- (Okla.1974); Seay v. General Elevator damages: ments Company, 522 P.2d (Okla.1974). physical suffering, pain past A. His and view, my In the misuse instruction future; jury such would have rendered a pain suffering, past His B. mental different verdict. future; Upon examination of the record I entire age; His C. find there was no evidence which warrant ed of the invocation affirmative defense of physical His immediately D. condition previously misuse as defined this Court accident; and after the before Gypsum Smith United States injuries; The nature his E. and extent of (Okla.1980); Fields v. Volks P.2d permanent; injuries F. Whether the are America, Inc., wagen 56-57 physical impairment; G. Here, (Okla.1976). Treadway was mount time; tire, earnings ing obviously Loss of H. a a use for purpose, purportedly in a man but careless Impairment capacity; earning I. he ner inasmuch as did not the safe follow expenses of the nec- J. reasonable ty warnings Uniroyal. instructions treatment, essary care, medical and ser- addition, Treadway’s conduct was rea vices, past and future. sonably by Uniroyal. foreseeable Tread- At the time of trial the had a life way’s conduct constituted at most contrib years, expectancy of 43.35 additional utory negligence and as such cannot be physical activities his such as handiwork complete considered as a a man defense in house, activities, sports around and his case, products liability ufacturers’ unless play ability guitar greatly his re- were this conduct was the sole of the cause accident. Smith v. United States The trial that the stricted. court instructed (Okla.1980), gent my Fields v. conduct use tire. Prom P.2d America, record, Inc., examination there was com- Volkswagen of petent find evidence for explosion. defect caused dispositive issue Uniroyal claims the is: The only Uniroyal instruction legally “Does to follow a sufficient failure to, entitled which the trial failed court product?” misuse of a constitute give, charging a correct, then Uniroyal’s analysis If is they would inform the that if found directed a verdict in trial court should have cause of the sole accident was Tread- its favor. But that is not correct issue i.e., way’s negligent product, use of the in this It not denied that Tread- case. properly Uniroyal’s follow way Uniroyal’s did not follow tire mount- instructions, they then should ing Treadway does con- instructions. Nor Uniroyal. Instead, render a verdict were tend the instructions gave instruction, following Treadway insufficient. claims there was number 7: unreasonably dangerous defect “Defendants contend Plaintiff misused of a flaw. He tire because manufacturer’s Uniroyal tire and Defendant has the prod- his does not claim on defective base proving burden of such misuse as a de- warning. design inadequate uct fense. issue Consequently, the determinative “Misuse is where the explode. the tire to Did the what caused using method of was not that explode because manufac- which the manufacturer intended or was explode a defective tire or did the tire tured reasonably anticipated by solely manner in which because manufacturer. Treadway tire in mounted the violation of using “If the Plaintiff was (use Uniroyal’s for the written instructions in a manner that was foreseeable or negligent in a purpose intended man- but anticipated by been the De- could have ner)? Uniroyal create a cannot defective fendant, it is if the even and then excuse its tire which causes *6 Plaintiff been careless that have liability by the claim that sufficient ade- use.” given. quate was 9,1 In number the trial jury instruction Upon the examination of record tran- if jury that the evidence told expert script appears there was tes- that Treadway guilty of misuse as shows was timony support position would either which number defined in the above instruction Treadway’s expert concerning causation. judgment should be for then their putting tire on testified that a a witness against Treadway. prevent not mounting machine does the tire exploding. witness further testi- from of the two instructions effect above if rim “fastened fied even the tire to stringent proof that a burden of for was less explodes, tire that alleged the machine Uniroyal’s Treadway’s necessarily it’s all mean that not negligent doesn’t court’s in- conduct. Under the tire going going keep structions, Uniroyal it’s to to to—that would be entitled a it, put “The majority negligent As the con- the machine.” verdict even appellee.” product was Conse- duct or use of the defective jury chose believe causing contributing Uniroyal’s merely misuse became factor quently, claimed a occur, injury than the sole cause jury found the de- rather irrelevant because Negligent conduct use of the of the accident. was the direct cause fective tire by plaintiff does not negli- of the a which explosion, Treadway’s purported not guilty proven that was of misuse not Plaintiff read: 1. Instruction number 9 herein, judg- your then the tire defined preponderance you by of the find a "If against Plaintiff and shall be for the ment its burden Plaintiff has met evidence Defendant. proving under the law of Manu- his case find, however, your then you do so Liability "If out in as set In- Products facturer's for the Defendant." shall [sic] has verdict No. Defendant struction plain- amount not a damages to misuse is bar to a the amount awarded jury tiff’s claim unless such conduct is the sole was not excessive. plaintiffs injury. cause of the If the de- I must recede from the court’s affirm- fendant manufacturers a defective judgment. ance of the In trials of person to a causes and that actions sponte the district court must sua person’s negligent was on all critical issues in factor, only contributing then in that discharge case. Its failure responsi- this complete event such is not a conduct de- bility ground is a for new trial. Because fense in a manufacturers’ given by the instructions the trial court case. were not tailored material issues party may
It is well settled that raised objec- evidence admitted without complain tion, of an erroneous instruc- the essence of the de- manufacturer’s party tion that is more fense favorable was never communicated to the fact giving than it is and the entitled to of the triers. I would reverse the constitute does not reversible remand the case for new trial. Birks, Taylor error. 740- I (Okla.1958). It therefore follows that the trial court’s erroneous instruction of THE ANATOMY OF LITIGATION prejudicial defense of working part-time While aas service sta- and therefore is harmless error. attendant, tion Treadway Ronald [Tread- regard With appellant’s assertion that way] injured by a tire exploded excessive, jury’s agree I verdict was being when it was mounted for a customer. rejection with this of this Court’s conten- by Uniroyal Company Manufactured Tire initially tion. I add that the verdict of [Uniroyal], offending tire was the last $750,000appears shocking. somewhat But mounting. of four Treadway new ones upon review of the evidence there is abso- mounting For first three tires Tread- lutely no prejudice bias or shown in the way used a machine without incident. support record to remittitur or a new inflating Treadway While the fourth tire damages trial. The amount of awarded is did not use the machine because prerogative this Court piece equipment a vital of that was then right has no finding to interfere absent a Instead, Treadway elsewhere in use. by prejudice “the were activated moved the fourth to the station’s cen- guilty passionate of abuse and exercise.” attempted ter island and to inflate it with Properties, Inc., Dodson v. Henderson ring. the aid of an “O” tire blew when (Okla.1985). Treadway reaching across it sum, affirming I judg- concur in *7 air hose. explosion, which hurled the ment of the trial court. air, twenty tire to injury feet in caused Treadway’s by fracturing wrist three I am to authorized state Justice bones, respond one of which did not to YVONNE concurs in the KAUGER views Treadway brought treatment. this action expressed herein. against Uniroyal and the retailer. He OPALA, Justice, sought predicate liability whom with on a manufac- LAVENDER, SIMMS, JJ, join, turing tire. defect dissenting. As it did in the trial court so on also
Today
Treadway’s
Uniroyal
court affirms
ascribes
products
verdict in
to his
a manufacturer’s
failure to follow instructions and
liability
action and
pronounces
[1]
warnings
printed
the tire’s
label.
That
idence;
court
defendant sufficiently
errors for
specially
correctly
[3]
the trial court’s refusal to
appellate
tailored
excluded certain midtrial
review;
preserved
[2]
concerning
the trial
claimed label directed a
give
ev-
inflate the tire
over the tire
each label
without a
beyond
mounting machine,
while
user
a
not to:
inflating
p.s.i.
that the user’s
[1]
it,
Included
inflate the
[2]
lean
[3]
misuse defense was not
error;
to follow the
instructions could re-
liability
According
products
facturer’s
Uni-
injury.
undis-
action.1
suit in serious
Treadway did not
puted proof,
argues
royal
instruc-
it was entitled to an
follow
when in-
these instructions
two
informing
Treadway’s
tion
of
first
tire, although he was
flating the fateful
mounting
failure to
the tire
instruc-
follow
their content and was
familiar
prod-
tions could constitute misuse of the
danger
disregarding
aware of
from
uct.
cases from other states are
Several
them.
persuade
cited
an effort
this
Treadway’s undisputed failure
Based
user’s failure
follow known
label,
warnings on the tire’s
follow
operating
can constitute a mis-
instructions
sought to
a “misuse” de-
Uniroyal
assert
product.2
use of the
Whatever
jury charge on "misuse of
fense.
In its
law in
it
that on
jurisdictions,
those
is clear
product”
refused to
the trial court
include
un-
this
a defense misuse was
record
Treadway’s
explanation
failure to
available to
under the Oklahoma
the tire
instructions.
follow
liability.
norms of strict
given
charges
other
below
None of the
the tire
instructions and
mentioned
label’s
Corp.,3
Motors
Kirkland
General
effect,
any,
warnings
genesis
lia-
of manufacturer’s
obey
Treadway’s failure to
them.
Oklahoma,
bility
among
we noted that
permissible
strict
defenses are
II
(1)
(2)
voluntary
misuse of a
DEFENDANT’S
DEFENSE
THAT assumption
exposure
risk from
of or
PLAINTIFF
DISREGARDED
danger. The
is a
a known defect or
latter
KNOWN TIRE MOUNTING IN-
concept
variant of the common-law
known
AND WARNINGS
STRUCTIONS
by
the Latin maxim
volenti non fit
ON THE PRODUCT’S LA-
PRINTED
injuria.4
phrase
means that one who
BEL DOES NOT FALL UNDER THE
known,
voluntarily exposes himself to a
OF
RUBRIC
PRODUCT’S “MISUSE”
appreciated
danger may not
and avoidable
generally
The trial court instructed
con-
expo-
injuries
recover for
occasioned
in a
cerning the defense of misuse
manu-
2.
nent
No other
Liability,
fection
charge
ho
There is
F.Supp.
F.2d
v.
tire.
on misuse
regard
Ind.App.
Corporation, 493
[Ind.1983];
[5th
1981].
Instruction
Hoffman
been
"* *
the manufacturer intended
manner
If the Plaintiff
method
reasonably anticipated by
misuse even
careless
Avco-Lycoming
1976];
Cir.1980];
1370 [9th
part
on misuse
Paint
of the instructions and
anticipated
*
1223
presently no
106,
Uniform Civil
that:
Misuse of a
in that use.”
that was foreseeable
Borel
v.
Kroon Beech Aircraft
using product
& Color
product.
[M.D.Fla.1979],aff'd,
sure.5
liability litigation8
sought
it is
when
be
America,
Volkswagen
In Fields v.
of
plaintiff's
invoked for the
“failure to dis-
misuse as that
Inc.6 we
product’s
defined a
product,
guard
or
cover the defect
reasonably
use which is not
foreseeable
against
possibility
of its existence.”9
by
Here,
the manufacturer.
apparent
it is
hand, “the
On the other
form of contrib-
anticipate that consum-
could
utory negligence
consists in
volun-
attempt
to mount
its tires. As-
ers would
tarily
unreasonably proceeding to en-
and
suming Treadway did not follow the known
danger,
commonly
counter a known
and
instructions, his conduct —in the context of
assumption
passes
under the name of
of
risk," is invocable as a defense sanctioned
products liability claim —could not be con-
might
402A,
(Second)
Torts,
be viewed as a
by
sidered a misuse but
of
Restatement
§
contributory negligence.7
liability.10
The lat-
as it is in other cases of strict
form of
Kirkland
7.
8. 6. Fields
volenti doctrine
5. The Deere and
Billings,
note
Landrum v.
Kleppe v.
sum
supra note 3 at
note 3
Doctrine
times
The defenses
note at
arise under the same
230-231
90,
conceptually
supra the law of
W.
Ill fect adequate warnings on the is important case, an issue of law THE DEFENDANT’S RELIANCE ON duty court has a on that THE PLAINTIFF’S DISREGARD OF issue.13 MOUNTING IN- FAMILIAR TIRE THE AND OF DAN- STRUCTIONS plead voluntary While did not A NONCOM- GERS FROM USER’S assumption one of its of risk as defenses ENTITLED THE DE- PLIANCE answer, evidence of A JURY ON FENDANT TO CHARGE warnings to heed instructions ASSUMPTION OF VOLUNTARY admittedly to him intro- were known A DEFECT THE RISK OF KNOWN Moreover, objection. duced without DANGER AND upon general evidence was relevant The admis- undisputed product’s safety.14 issue of the Treadway did not It is evidence, under sion this law mounting machine to inflate the tire use a operated force, then in Oklahoma he leaned over the tire while in- and that amend the answer to make it conform to flating it. Both of these actions were risk, voluntary assumption of proof direct contravention the instructions though even no amendment was label, printed on the of whose content he formal sought and none was ordered to be made Moreover, Treadway was aware.11 knew court,15 the trial short, defense, warnings In disregarding could be dangerous. good defenses to make the more That is not a known are face of Annot., liability. See also Products Liabili- the situation in the before us now. strict Negligence ty: Contributory Assumption 634, AMF,Inc., v. 788 F.2d 636 [9th 13. Gauthier Liability under Doctrine Strict Risk as Defense Tort, p. citing Cir.1986]. supra at Kirk- § note 5 Motors, thirty supra land v. General note jurisdictions "assumption opinion for the view that other in the text of the 14. See the discussion risk”, voluntarily unreasonably meaning at footnote 23 infra. danger, proceeding is a to encounter a known (Second) j, Comment 402Aof the Restatement § upon liability based strict defense to an action Torts, pertinent part: states in ” * * * in tort. given, seller Where is may reasonably that it will be read assume Treadway’s familiarity with the tire 11. Neither heeded; bearing such a and a warnings ade- instructions and nor the followed, warning, is which safe for (sufficiency) printed quacy condition, information it unrea- is not in nor is defective disputed issue below. the label was [Emphasis sonably dangerous.” added.] 12. See the parative instruction on tions trials of There, 9.14 and is In Smith v. note 3 at defect was adapted slight change knew failure to footnote 23 [UCJI we found Negligence, negligence-based 254-255, discussion in the text of the found in required 1981], appears use in United States in its voluntary assumption of a known assumption infra. follow the no evidence the defendant we refused to hold that verbiage, Uniform Civil Chapter in the trial of that of risk that bears No. tort claims. to be usable recommended 9, Negligence-Com- it could Jury cases. opinion Instruc- only With a would easily supra case. 15. The Blumenfeld the answer Oklahoma that tion, yet, versed on account of the facts variance between the stated in amended to conform sponsive King, the facts (syllabus principle 92 Okl. if it be a case where proved, syllabus pleading admitted ought proved Mann, when evidence of an 1). has 1 that 217 P. be allowed to of the defendant without on the long allegations such variance.” 126 Okl. Blumenfeld “[t]hough been established trial without proof. an amendment of objection, 362 [1923] will not be of an conform it to there be a See Nelson unpleaded the court answer the re- P. 918 stands objec- re- *10 948 volenti non though pleaded in terms of instruction, asked for the j comment Re- (Second) 402A, injuña, was an issue i.e., statement of Torts the case be- §
fit
product
that a
warning
sufficient
evidence,
undisputed
admitted sans
cause
unreasonably dangerous.17
Since none
objection, operates as an amendment of
given
of the instructions
below addressed
pleadings.16
the effect of
failure to follow
By
requested
offered under
tire,
instructions
“misuse”, Uniroyal
the incorrect
label of
any charge explaining
absence of
the de-
jury charge
on the
asked for a
effect
voluntary exposure
fense of
to a known
plaintiffs
disregard
of
written
risk must
considered
preju-
be
crucial and
warnings.
orally
did not in iis-
It also
Although Uniroyal
instructions
dicial.18
16.The evidence of a defense that was not
the answer stands
law,
defense has been admitted without
thus
when met
proof
cluded. Once
ed
issues. Evidence of an
constitutes "variance." This is so because the
the 1984 Oklahoma
§
where the amendment would have been
at the trial.”
pleadings
In Coats the court stated the rule that "[w]heré
First Nat. Bank v.
pleading will be deemed to have been amended
Okl.
evidence is
is inadmissible because not within the
party complaining waives the
to conform to the
specifically
court said: “The attention of the court must be
Lumber
dicial effect
814,
86,
See also
way
[1935];
181 Okl.
even after
made
does not affect the result of the trial of these
issues.
the evidence and to raise these issues
pretrial
pleadings
parties, they
where the order has
IDENCE. When issues not raised
are tried
This common-law
"AMENDMENTSTO CONFORMTO THE EV-
2015B,
proof.
230 P.
they
make the answer conformable to the elicit-
v.
of such defense "varies from the
§§
pretrial
(syllabus
incorporate
upon
Stroup
Bolt,
had been raised in the
2001 et
[1925]
be
Liberty
conference
* * *” [Emphasis
as amended to conform to the
502,
awith
Cook v.
by express
introduced,
or
called to the variance and its
Supreme
judgment;
necessary
360 P.2d
shown ...
motion of
"varying"
conference
174 Okl.
shall
503 [1924].
75 P.2d
and Parsons v.
provides:
3)
Plan Co. v. Francis T. Smith
seq.,
timely objection, may
Brittain,
proof.”
Sheffield,
Pleading
Cox,
amended,
be
principle
and Coats v.
500,
pretrial
order. Such amendment
or
superseded
Court
to cause the
treated in all
without
where it is
but failure so to amend
evidence of an
270 [1949]
Unless
180,
any party
implied
unplead
order to conform to
503
To the same effect is
unpleaded
In Cook v.
Okl.
”
Code,
may
supra
50 P.2d
conference
variance,
added.]
[Okl.1961];
by operation
Heenan,
pleadings
objection,
Okl.
this is done the
incorporated
consent of the
consider the
Duncan,
defense and
pleadings
(syllabus
note 15 75
codified
276,
949
dem terminis submit
carry
to the trial court a
its failure to
responsibility
out this
ground
requested
jury charge
for new trial.20
on the effect of
Treadway’s
disregard
of known instruc-
Uniroyal’s
targets
critical defense
Tread-
warnings,
tions and
the omission
not way’s disregard of known instructions and
sought
fatal
to the
relief
here.
corrective
appreciated danger.
giv-
The instructions
clearly
This is so because the trial court
en,
individually
considered either
duty
jury on this
toto, clearly
had the
to instruct
tailoring
lack the contextual
It
tendered
the evidence
issue.
stood
presented
evidence
and issues raised
objection
admitted
and was critical
without
Uniroyal’s
carry meaningful
defense to
In
Uniroyal’s
defense of the claim.19
message
short,
to the fact finders.21 In
jury
essence the district
trials of actions at
law
Uniroyal’s response
to the claim
sua
duty
court
pressed against
bears the
it never was communicated
sponte
on all critical issues in the
case,
jury.22
to the
19.
joined.” [Emphasis
jury.”
substantially
200 P.
but held that it was waived
Hoar,
Express Baty,
Nat. Bank v.
Liberty
at 195
ance with the issue
objected
duty
Rader v.
ries of the
the trial court has the
properly
failure to do so is reversible error. See First
stated the rule in
and evidence introduced at the trial and that
(syllabus
the law
its
[1941];
P.2d
442
The fact that
the
ningham
606, 610 [1939].
mischaracterized does not relieve
184 Okl.
Co. America v.
duced
Tenny &
instruct on a material or critical
1968];
1986].
136,
1966];
1377,
Works
cover material issues and the
Acker v.
It is well established in extant case law that
affirmative
[1949];
838,
1382
court,
421 P.2d
at 241 the
McKee v.
arose from the evidence and was at vari-
&
In First Nat. Bank
(syllabus
the court to
Croy
Nat. Bank
v.
Petty v.
as is
all
to. The court stated that
Kugler
18,
Fleming,
on decisive issues made
1)
[Okl.1979]
v. Charles
840
Mfg.
[Okl.1975]; Thompson
and McKee
parties
Elam v.
even
Hopfeld,
84 P.2d
v. Bacon
correct and
Cox,
Uniroyal’s
[1942]
applicable
proof
meaningful guidance. See Cun-
responsibility
Co.,
189 Okl.
Neilson,
Frank,
M.D.’s,
2).
though
syllabus
court noted that the issue
Snider,
supra
give,
of Weatherford
201 Okl.
818 [Okl.1966]
Pfizer
mine.]
constitutes reversible
joined
and Middlebrook v.
Peoples
438,
Beverly,
416 P.2d
duty
Transport
the instructions
713 P.2d
194 Okl.
upon
Haar,
International Harvester
444
note
Neilson,
184 Okl.
3 that “it is the
&
with the
to instruct the
Cox,
Bank Aurora v.
to act
P.2d
requested
182,
Co., Inc.,
his own
191
114 P.2d
[1938]; Roadway
15 200 P.
since
supra,
facts
953,
may have been
751 [Okl.1967]
572,
supra
instruction of
v. Galion Iron
203
supra
194,
Okl.
by pleadings
proper
537,
(syllabus
v.
defense
it was
"fifi
and issues
pleadings,
956 [Okl.
motion,
the court
providing
P.2d
579 [Okl.
199 [Okl.
604 P.2d
Semkoff,
151 P.2d
532
to do
375,
court
note 15
note 19
88
to the
Imler,
is the
error.
theo-
duty
P.2d
241;
P.2d
438,
129
ad-
so,
3);
21. See
22.
jurisdictional,
facts
supra
Where the record contains
tle
theory,
becomes even
Treadway’s
dence
crisply
required
public
accepted
review on a
tion-of-the-risk-of-a-known-defect defense.
appeal. Chaney, supra
A failure to follow tire mount-
ing instructions has been assessed under ger- analysis
several discrete rubrics of products liability
mane to a manufacturer’s disregard
claim.23 of familiar indeed relevant to the af- *12 voluntary assumption
firmative defense of defect,
of the risk of a as well as to known respect disputed
the other issues with danger-
causation and to the unreasonable product.24 If the
ousness of the trial court legal incorporated
had effect of Tread-
way’s conduct heedless within either its “unreasonably dangerous”
causation or its
charge, specifically its failure to instruct on
assumption-of-risk theory might not have
been a reversible error. But because the
assumption defense included in given,
any of the instructions the essential ingredient nay, very heart —of Uni- —
royal’s claim to exoneration from allegedly
for its defect-free
obscured and withheld from the fact triers.
I would hence reverse the
remand the case for a new trial. FORD, Appellant,
Jon R. FORD, Appellee.
Jane
No. 63212.
Supreme Court of Oklahoma.
Sept. 1988.
Rehearing Granted in Part and Denied
Part Jan. Co., Cir.1977]; explained its one verbal rich F.2d [8th 910-912 reasons, or another. For these I believe it F.Supp. v. B.F. Goodrich Breazeale form prejudicial and hence reversible error for [E.D.La.1983]; generally collect- see cases incorporate the trial court not to effect Anno., Liability: Liability ed at In- Products Treadway's any of to the conduct in of its instructions Tire, Allegedly or Death Caused Defective jury. 11, pp. 81 A.L.R.3d at § [1977]. 360-363 23. Hale Firestone Tire & Rubber 756 F.2d Cir.1985]; supra. v. B.F. Good- 24. See cases cited in footnote 23 Collins [8th