Anthony Wade v. Terex-Telelect, Inc. ( 2012 )

FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
W. SCOTT MONTROSS JULIA BLACKWELL GELINAS
Montross Miller Muller KEVIN C. SCHIFERL
Mendelson & Kennedy, LLP MAGGIE L. SMITH
Indianapolis, Indiana Frost Brown Todd LLC
FILED
Indianapolis, Indiana
JOHN F. TOWNSEND, III
Townsend & Townsend
Apr 11 2012, 9:13 am
Indianapolis, Indiana
CLERK
of the supreme court,
court of appeals and
tax court
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY WADE, )
)
Appellant-Plaintiff, )
)
vs. ) No. 29A05-1101-CT-72
)
TEREX-TELELECT, INC., )
)
Appellee-Defendant. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable William J. Hughes, Judge
Cause No. 29D03-1004-CT-445
April 11, 2012
OPINION - FOR PUBLICATION
KIRSCH, Judge
This appeal originates from a complaint alleging that Terex-Telelect, Inc. (“Terex”)
was negligent under the Indiana Product Liability Act in the design of the liner of an aerial
passenger bucket attached to a truck from which Anthony Wade (“Wade”) fell and was
rendered a quadriplegic. Wade appeals from a jury verdict in favor of Terex and asserts that
the trial court erred when it denied his partial motion for directed verdict and instructed the
jury regarding the rebuttable presumption under Indiana Code section 34-20-5-1 that the
product was not defective. Wade raises the following restated and consolidated issue:
whether the trial court erred in instructing the jury because no evidence was presented to
show that the liner was state of the art or in compliance with government standards.
We reverse and remand.
FACTS AND PROCEDURAL HISTORY1
Terex is the manufacturer of buckets and booms used by utilities and construction
companies to access elevated work areas. The buckets and booms allow linemen to work on
utility lines and equipment that could not be reached from standing on the ground. A bucket
is attached by a retractable boom to a truck, and the bucket is cradled on top of the truck for
transport. When cradled, the bucket is approximately twelve feet above the ground.
In 1994, Richmond Power & Light (“Richmond Power”) purchased a double-man
bucket truck (“Truck 32”). After reviewing brochures regarding the products available,
1
On January 19, 2012, we held oral argument in this matter at Purdue University‟s Krannert Graduate
School of Management. We extend many thanks. First, we thank counsel for the quality of the oral and
written arguments, for participating in post-argument discussions with the audience, and for commuting from
Indianapolis. We especially thank the Krannert Executive MBA Program for their accommodations and the
students in the audience for their thoughtful post-argument questions.
2
Richmond Power prepared detailed specifications for the type of truck desired. A bid was
submitted by a distributor that complied with the specifications and included an aerial lift and
bucket manufactured by Terex. This distributor was ultimately awarded the contract.
Richmond Power specified that the bucket in Truck 32 contain a polypropylene
dielectric/insulating liner. The use of a dielectric liner is very important for utility companies
purchasing bucket trucks because of the danger of a lineman being electrocuted by power
lines. To maintain dielectric integrity, holes or openings in the liner are avoided because they
would expose the occupant to electrical contact.
Richmond Power‟s specifications included an exterior step, and the bucket produced
to meet these specifications had a molded exterior step with an interior recess that extended
into the hollowed out portion of the exterior step. Richmond Power‟s specifications did not
include an interior step for the bucket or the liner. The interior recess for the exterior step
was completely covered by the dielectric liner requested by Richmond Power. A molded
interior step or a portable interior step were available options, but Richmond Power did not
specify that it desired either.
On August 25, 1997, Wade was employed by Richmond Power as an apprentice
lineman. As part of his employment, Wade installed various types of equipment for
Richmond Power, which sometimes involved the use of a bucket truck. When working in the
bucket, linemen were attached to the bucket through the use of a lanyard and harness. The
reason for wearing the lanyard is to ensure that the lineman does not fall to the ground if he
were to lose his balance and fall. On the date at issue, Wade was working on the installation
3
of a transformer approximately thirty feet off the ground. He was working from inside a
double-man bucket attached to Truck 32. After finishing the installation, the bucket was
lowered to the cradling position on top of the truck, with the top of the bucket approximately
twelve feet above the ground. When the bucket was cradled, Wade replaced his tools in a
tool apron that hung inside the bucket, removed his safety goggles, detached his lanyard, and
prepared to exit the bucket. While attempting to exit the bucket, Wade missed the exterior
step completely and fell twelve feet to the ground. As a result of this fall, Wade was
rendered quadriplegic.
On July, 9, 1999, Wade filed a complaint against Terex and Dueco, Inc. (“Dueco”), a
distributor of Terex products, alleging that Terex was negligent under the Indiana Product
Liability Act in the design of the bucket, which injured Wade.2 Wade contended that the
interior recess for the exterior step was in fact an interior step and that the lack of a molded
interior step on the insulating dielectric liner caused this interior step to be covered up, which
led to his fall. Wade alleged that, because Terex had sold liners with molded interior steps to
other customers, Terex should not have allowed the sale of an insulating dielectric bucket
liner that contained no molded interior step.
A jury trial commenced on June 16, 2010. At trial, Terex presented evidence that, in
providing an insulating dielectric bucket liner without an interior step, it was complying with
Richmond Power‟s specifications for the product desired. Evidence was presented that it was
common in the industry for an entity specifying and purchasing such equipment to require
2
In 2006, Dueco settled with Wade and was dismissed from the lawsuit; Terex subsequently named
Dueco as a non-party defendant.
4
that the aerial lift and bucket be manufactured to meet the American National Standards
Institute (“ANSI”) Standard A92.2 (“ANSI A92.2”). Appellant’s App. at 581. ANSI is an
independent entity that works in conjunction with the United States government, serves as the
official representative of the United States to the International Standards Organization, and
accredits various committees, which draft standards that are then approved and published as
ANSI standards. Id. at 567. ANSI A92.2 applies to vehicle-mounted elevating and rotating
aerial devices, commonly referred to as bucket trucks. Id. at 568. The evidence showed that
the primary objective of this standard is to provide users, operators, manufacturers, sellers,
inspectors, and others with instruction as to how the machines are to be manufactured, used,
and maintained. Id. Any aerial device manufactured after January 2, 1990 must follow the
requirements of the standard to be compliant with the 1990 version of ANSI A92.2. Truck
32 was manufactured during the relevant time period covered by the 1990 version.
Forest Carr (“Carr”), a board-certified safety professional, stated at trial that he had
reviewed ANSI A92.2 and the applicable Occupational Safety and Health Administration
(“OSHA”) regulations and that, in his opinion, the bucket on Truck 32 complied with the
standards. Tr. at 1268, 1276-77, 1290. He also testified that he believed that buckets without
interior steps were perfectly safe. Id. at 1290. Carr further expressed concern that, if an
interior step was introduced to the bucket, it would be available not only when the bucket is
cradled, but also when linemen are in the air and doing work, which could put lineman at
more risk of falling out of bucket. Id. at 1298, 1327.
5
Norman Hargreaves (“Hargreaves”), an engineer and a former director of product
safety for Terex from 1992 to 2006, testified that he had inspected the design of the bucket
on Truck 32, which did not contain an interior step, and that, in his opinion, an individual
could safely enter and exit the bucket. Id. at 865. He further testified that he believed that
the Terex design with no interior step used in Truck 32 was a safe design and not
unreasonably dangerous to linemen in 1995. Id. at 871-72.
Gary Alexander (“Alexander”), a long-time member of ANSI and the immediate past
chairman of the subcommittee that drafted ANSI A92.2, testified that the bucket on Truck 32
met all of the dimensional requirements contained within ANSI A92.2 and also complied
with the standard in all other respects. Appellant’s App. at 572. He also stated that the
design utilized by Terex on Truck 32 was used by other manufacturers during the time period
from 1981-1995 and that ANSI A92.2 did not dictate a design for ingress or egress that must
be used by the manufacturers. Id. at 572-73.
At the conclusion of the evidence, Wade made a motion for directed verdict,
contending that there was a lack of any evidence to support Terex‟s claim that its product
was in conformity with the generally recognized state of the art applicable to the safety of the
product. The trial court overruled the motion. Wade also objected to Terex‟s tendered final
jury instruction pertaining to the rebuttable presumption associated with the product being
state of the art and in compliance with government standards. This objection was overruled,
and the trial court adopted Terex‟s tendered instruction as Final Instruction 26. It stated as
follows:
6
Terex has alleged that its bucket was manufactured in conformity with
the state of the art and that the bucket complied with applicable codes. Terex
has the burden of proving these allegations. If you find that Terex has proved
by a preponderance of the evidence that before Terex sold the bucket it:
(1) was in conformity with the generally recognized state of the art
applicable to the safety of the bucket at the time the product was
designed, manufactured, packaged, and labeled; or
(2) the bucket complied with applicable codes, standards, regulations, or
specifications established, adopted, promulgated, or approved by the
United States or Indiana, or by an agency of the United States or
Indiana,
then you may assume the bucket was not defective or that Terex was not
negligent and find for the Defendant. However, if Plaintiff has introduced
evidence tending to disprove the above proposition, then you may, but are not
required to, find the product was defective.
Appellant’s App. at 291. At the conclusion of the trial, the jury returned a verdict that
allocated zero fault to Terex, zero fault to Dueco, and 100% fault to Wade. Wade now
appeals.
DISCUSSION AND DECISION
The Indiana Product Liability Act provides for a rebuttable presumption that a product
is not defective if it was manufactured in conformity with the state of the art or if it complied
with governmental standards:
In a product liability action, there is a rebuttable presumption that the product
that caused the physical harm was not defective and that the manufacturer or
seller of the product was not negligent if, before the sale by the manufacturer,
the product:
(1) was in conformity with the generally recognized state of the art
applicable to the safety of the product at the time the product was
designed, manufactured, packaged, and labeled; or
7
(2) complied with applicable codes, standards, regulations, or
specifications established, adopted, promulgated, or approved by the
United States or by Indiana, or by an agency of the United States or
Indiana.
Ind. Code §34-20-5-1.
Wade argues that the trial court erred in instructing the jury as to the rebuttable
presumption under Indiana Code section 34-20-5-1. When determining whether error
resulted from the giving of an instruction, we use the following three-prong test: (1) whether
the tendered instruction correctly states the law; (2) whether there is evidence in the record to
support giving the instruction; and (3) whether the substance of the instruction is covered by
other instructions which are given. R.R. Donnelley & Sons Co. v. N. Texas Steel Co., 752
N.E.2d 112, 139 (Ind. Ct. App. 2001), trans. denied (2002). The decision to give a particular
instruction rests within the trial court‟s sound discretion. Id. We review this decision only
for an abuse of that discretion. Id. The giving of instructions will be reversed only if the
instructions given, as a whole, failed to advise the jury of the applicable law or misled the
jury. Id. We note that a trial court may be justified in giving an instruction if there is any
evidence to support the instruction. Id.
I. State of the Art
Under subsection (1), manufacturers such as Terex are entitled to a rebuttable
presumption that their product was not defective, and they were not negligent, if their product
was manufactured in conformity with the generally recognized state of the art. Ind. Code §
34-20-5-1(1). Although the statute does not define state of the art, Indiana courts have
defined the term to mean “the best technology reasonably feasible” at the time the defendant
8
designed, manufactured, packaged, and/or labeled the product at issue. Indianapolis Athletic
Club, Inc. v. Alco Standard Corp., 709 N.E.2d 1070, 1074 (Ind. Ct. App. 1999). State of the
art is not a legal term of art meaning industry custom and practice. Id. (citing Montgomery
Ward & Co. v. Gregg, 554 N.E.2d 1145, 1155 (Ind. Ct. App. 1990), trans. denied (1991)).
“Rather, the courts have „embraced the concept of technological advancement‟ in defining
state of the art.” Id. (citing Phillips v. Cameron Tool Corp., 950 F.2d 488, 490 (7th
Cir.1991)). Evidence of the existing level of technology, industry standards, the lack of other
advanced technology, the product‟s safety record, and the lack of prior accidents may be
presented in order to prove that a product is state of the art. Weller v. Mack Trucks, Inc., 570
N.E.2d 1341, 1343 (Ind. Ct. App. 1991).
Wade argues that no evidence was presented to support the giving of the jury
instruction on the rebuttable presumption under Indiana Code section 34-20-5-1. He
contends that no evidence was presented to show that the liner manufactured by Terex
without an interior step to facilitate egress from the bucket was either state of the art or that it
complied with applicable government standards. Specifically, Wade alleges that none of
Terex‟s witnesses presented evidence that the liner with no interior step was the best
technology reasonably feasible to show that it was state of the art. Further, he claims that
Terex did not present sufficient evidence that the liner at issue complied with any applicable
government standards because neither of the standards cited by Terex was applicable to
egress out of buckets or interior steps in buckets. Wade therefore asserts that the trial court
9
abused its discretion in instructing the jury as to the rebuttable presumption under Indiana
Code section 34-20-5-1. We agree.
To claim the benefit of the statutory presumption, the defendant manufacturer must
show that its product is the best technology reasonably feasible at the time it was
manufactured. Indianapolis Athletic Club, 709 N.E.2d at 1074. In the present case, Terex
presented evidence that, at the time that the liner at issue was manufactured, the liner was the
best technology reasonably feasible in terms of its capacity for dielectric insulation and that
almost all of the buckets with dielectric/insulating liners used by utility companies utilized
the same technology as the liner in Truck 32 and that the same design concept had been used
by basically all utility companies for years. Tr. at 864-65; 910.
While such evidence may well have established that the liner was state of the art for
dielectric insulation, it was irrelevant to the issue before the court. Wade was not
electrocuted. He fell. Wade made no claim that the dielectric insulation was defective or
unreasonably dangerous. Rather, he claimed that the product was unreasonably dangerous
and defective because the liner blocked the interior recess in the bucket that provided a step
to facilitate egress from the bucket.
State of the art evidence must be relevant to the risk at issue. The fact that a product
may be in conformity with the generally recognized state of the art applicable to a particular
risk does not make it state of the art for all purposes. Thus, while the braking system on an
automobile may be state of the art in terms of its ability to stop a car travelling at a designated
rate of speed within a designated distance from the time the brakes are applied, such evidence
10
would not be relevant in a products liability case where the braking system caused a fire in
the vehicle.
Terex‟s attempts to prove lack of other advanced technology by arguing concerns
regarding electrocution are greater than concerns regarding falls similarly do not show that a
liner without an interior step was the best technology reasonably feasible. While dielectric
insulation is important in the utility industry, it was not relevant to the issue of egress out of
the bucket. Here, the defect at issue was that the liner failed to provide a safe means of
egress out of bucket, not its insulating capabilities.
Terex presented the testimony of several of its experts, namely Hargreaves, Carr, and
Alexander, that they deemed the bucket design without an interior step to be safe for ingress
and egress and not unreasonably dangerous. Id. at 871-72, 878-79, 1290; Appellant’s App. at
573. No evidence was presented that there was a lack of other advanced technology to
support that the liner at issue was the best technology reasonably feasible at the time it was
manufactured. Indeed, evidence was presented that, at the time that the liner at issue was
manufactured, Terex also manufactured a liner that contained an interior step, and that other
products available in the market that incorporated an interior step to aid workers when
exiting buckets. These included a liner with an interior step included in the bottom corner
and hanging steps that could be added to a bucket. Pl.’s Exs. 20-23. The fact that Terex
manufactured a liner with an interior step at the time that the liner at issue was manufactured
shows that there was other advanced technology available.
11
There was no testimony that liners without interior steps are safer than those with such
steps. Although Terex presented testimony by their experts that, if an interior step was
included in the liner, it could possibly pose a risk that linemen could fall out of the bucket
while working in the air, none of these experts testified that an interior step was actually less
safe. Tr. at 1327; Appellant’s App. at 576. There was no evidence that a liner without an
interior step is the best technology reasonably feasible for ingress into and egress out of the
bucket.
Terex introduced no evidence regarding the product‟s safety record and the lack of
prior accidents pertaining to the buckets with the liner at issue because it was not able to meet
the trial court‟s evidentiary foundational requirement of demonstrating that a satisfactory
investigation had been conducted regarding whether and to what extent prior accidents
involving the product had occurred.3 It did present anecdotal evidence that the same
technology had been used for almost thirty years and that it had sold approximately 40,000
buckets with the same liner and had not heard of a report of anyone falling while entering or
exiting the bucket as Wade did. Tr. at 864, 878, 913. Evidence was also presented of studies
done by the National Safety Council that contained instances of accidents involving falls
occurring when exiting buckets; although some of the recounts of accidents did not contain
many details to show they involved the same situation as the present case, they could still
support an inference that other similar accidents have occurred previously.
3
The trial court had granted a motion in limine to exclude evidence of the lack of prior accidents
unless Terex was able to “establish a foundation that a satisfactory investigation [had] been performed to
ascertain whether and to what extent prior accidents [had] occurred.” Appellant’s App. at 94.
12
We conclude that there was not sufficient evidence presented to support Terex‟s
contention that the liner at issue was “in conformity with the generally recognized state of the
art applicable to the safety of the product at the time [it] was designed, manufactured,
packaged, and labeled.” Ind. Code § 34-20-5-1(1). As a result, the trial court erred in
instructing the jury that it could “assume the bucket was not defective or that Terex was not
negligent” if it found that the product was in conformity with the generally recognized state
of the art. Appellant’s App. at 291.
II. Compliance with Government Regulations
Terex also contended that it was entitled to the rebuttable presumption that its
product was not defective and was not negligent under subsection (2) of Ind. Code §34-20-5-
1, because its product “complied with applicable codes, standards, regulations, or
specifications established, adopted, promulgated, or approved by the United States or by
Indiana, or by an agency of the United States or Indiana.” Ind. Code § 34-20-5-1(2).
Specifically, Terex claimed that its design without an interior step was in compliance with
ANSI A92.2, which was a standard that applied to any truck with an aerial device, such as
Truck 32.
Although ANSI standards are not government standards or regulations, at all relevant
times for this case, OSHA regulations provided, “Unless otherwise provided in this section,
aerial devices acquired on or after July 1, 1975, shall be designed and constructed in
conformance with the applicable requirements of . . . [ANSI A92.2] . . ., including appendix,
which is incorporated by reference as specified in § 1910.6.” 29 C.F.R. § 1910.67(b)(1).
13
The referenced section 1910.6 stated, “The standards of . . . organizations which are not
agencies of the U.S. Government which are incorporated by reference in this Part, have the
same force and effect as other standards in this Part.” 29 C.F.R. §1910.67(a)(1). Thus,
because OSHA regulations require compliance with ANSI standards for lift trucks, Terex
argues that it is entitled to the statutory presumption. We do not agree.
As was the case above regarding state of the art evidence, for evidence of compliance
with governmental standards to be relelvant, the standard itself must relate to the risk or
product defect at issue. Here, it does not. While there was testimony that the primary
objective of ANSI A92.2 was to prevent accidents associated with the use of buckets and to
provide guidance as to how to safely manufacture, use, and maintain such buckets, this
standard did not address the design issue in this case, namely, the egress out of buckets and
the necessity of interior steps inside buckets to facilitate. Appellant’s App. at 524, 568.
Nowhere in either the OSHA regulations or ANSI A92.2 is there a requirement for or
prohibition of an interior step in buckets or liners. Rather, the standards are silent regarding
interior steps. As a result, there was no relevant evidence presented regarding any
government standard applicable to interior steps in buckets or bucket liners. Therefore, there
was not sufficient evidence presented to support Terex‟s contention that the liner at issue
complied with applicable government regulations. We conclude that the trial court erred in
instructing the jury as to the rebuttable presumption under Indiana Code section 34-20-5-1.
Having determined that there was insufficient evidence to support the instruction, we
must next decide whether the instruction was prejudicial to Wade. “Although a jury
14
instruction may have been given in error, the error is not reversible unless the complaining
party was prejudiced thereby.” Indianapolis Athletic Club, 709 N.E.2d at 1073 (citing Spirito
v. Temple Corp., 466 N.E.2d 491, 493 (Ind. Ct. App. 1984), trans. denied (1985)).
“Moreover, where an instruction presents a correct statement of law, but no evidence
supports it, the objecting party is generally unharmed by the instruction.” Id. Here, the
instruction in this case was not harmless. By its specific language, the instruction allowed
the jury to presume that Terex‟s product was not defective and that Terex was not negligent
if the bucket liner was manufactured in conformity with state of the art or compliance with
government regulations. This instruction was erroneous because it was unsupported by
relevant evidence and went to the very heart of this case. Wade was prejudiced by
instructing the jury as to the rebuttable presumption under Indiana Code section 34-20-5-1.
We reverse the trial court‟s judgment and remand for a new trial.
Reversed and remanded.
VAIDIK, J., concurs.
BRADFORD, J., concurs in part and dissents in part with separate opinion.
15
IN THE
COURT OF APPEALS OF INDIANA
ANTHONY WADE, )
)
Appellant-Plaintiff, )
)
vs. ) No. 29A05-1101-CT-72
)
TEREX-TELELECT, INC., )
)
Appellee-Defendant. )
BRADFORD, Judge, concurring in part and dissenting in part.
Although I agree that Terex was not entitled to a “state of the art” instruction and so
would remand for retrial in any event, I cannot agree that the trial court abused its discretion
in instructing the jury regarding the rebuttable presumption that a product is non-defective if
it conforms to applicable governmental regulations. Consequently, I respectfully dissent in
part.
Terex produced evidence that its bucket complied with ANSI A92.2, the standard
applicable to trucks with aerial devices, and the plain language of Indiana Code section 34-
20-5-1(2) supports the giving of a regulatory compliance instruction under such
circumstances. To deny a manufacturer a regulatory compliance instruction because the
16
regulations do not specifically address the risk at issue4 would, in my view, run counter to
clear legislative intent. I agree with the Tennessee Supreme Court‟s observation on that
state‟s similar provision that such statutes are designed “„to give refuge to the manufacturer
who is operating in good faith and [in] compliance of what the law requires him to do.‟”
Flax v. DaimlerChrysler Corp., 272 S.W.3d 521, 536 (Tenn. 2008) (quoting Tuggle v.
Raymond Corp., 868 S.W.2d 621, 625 (Tenn. Ct. App. 1992)) (brackets in Tuggle).5 Terex
introduced evidence that it manufactured the bucket up to ANSI A92.2 standards and so is
entitled to a regulatory compliance instruction.
This is not to say, however, that Instruction 26 should have directed a verdict for
Terex based on regulatory compliance, and, in fact, it did not. Wade was free to attempt to
counter evidence of compliance, as Final Instruction 26 clearly provided, with evidence that
the bucket either did not actually comply with ANSI A92.2 or was defective despite its
compliance. In other words, Wade was given the opportunity to prove that a reasonable
4
My interpretation of ANSI A92.2 is that it is entirely possible that ANSI considered the safety of
ingress and egress in general and interior steps in particular in crafting the standard. The bucket specifications,
particularly the requirement that the bucket walls be thirty-nine to forty-five inches high, seem to be an attempt
to strike a balance between walls high enough to reduce the risk of falling out and low enough to allow for
generally safe ingress and egress. Defendant‟s Ex. M p. 28. I believe ANSI recognized that no one bucket
design could be completely safe for both purposes, however, as reflected in the provision that “[d]uring
operation of the aerial device the operator shall wear a body belt or harness and be connected to the aerial
device with a lanyard at the platform position.” Defendant‟s Ex. M p. 22. As for interior steps, it seems
entirely possible that ANSI considered them but rejected them as unsafe, given the following provision: “The
operator shall not use railings, planks, ladders or any other device in or on the work platform for achieving
additional working height or reach.” Defendant‟s Ex. M p. 22 (emphasis added).
5
Tennessee Code section 29-28-104(a) provides as follows:
Compliance by a manufacturer or seller with any federal or state statute or administrative
regulation existing at the time a product was manufactured and prescribing standards for
design, inspection, testing, manufacture, labeling, warning or instructions for use of a product,
shall raise a rebuttable presumption that the product is not in an unreasonably dangerous
condition in regard to matters covered by these standards.
17
manufacturer would have installed an interior step in the bucket whether ANSI A92.2
mandated it or not. As the Colorado Supreme Court has stated,
a product may be in a defective condition unreasonably dangerous to the user
or consumer notwithstanding the supplier‟s compliance with a safety
regulation related to that product. While undoubtedly compliance constitutes
evidence that the product was not defective at the time of sale, it by no means
is conclusive on the issue of defect.
Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 591-92 (Colo. 1984).6 On retrial, I would
hold that Terex is entitled to instruct the jury on regulatory compliance, assuming, of course,
that it presents the same or similar evidence on that question.
Because I believe that the trial court properly instructed the jury on regulatory
compliance, I respectfully dissent in part.
6
Colorado‟s regulatory compliance statute provides, in relevant part, as follows:
(1) In any product liability action, it shall be rebuttably presumed that the product which
caused the injury, death, or property damage was not defective and that the manufacturer or
seller thereof was not negligent if the product:
(a) Prior to sale by the manufacturer, conformed to the state of the art, as distinguished from
industry standards, applicable to such product in existence at the time of sale; or
(b) Complied with, at the time of sale by the manufacturer, any applicable code, standard, or
regulation adopted or promulgated by the United States or by this state, or by any agency of
the United States or of this state.
Colo. Rev. Stat. § 13-21-403.
18