Ford Motor Co. v. Fulkerson ( 1991 )

SPAIN, Justice,

dissenting.

I respectfully dissent. The trial court’s instructions to the jury properly separated the issues of design and manufacturing defect in determining whether the product was in a “defective condition unreasonably dangerous.” The separate jury instructions simplified for the jury the types of product defects which could make the product unreasonably dangerous under the facts of this case. The second instruction properly required the jury to answer the pivotal question raised in all products liability cases; i.e., was the spindle assembly of the Ford Ranger truck in a “defective condition unreasonably dangerous” when it was placed in the stream of commerce? The third instruction was consistent with the second instruction because it defined for the trier of fact what could constitute a defective condition of the product under the evidence presented at trial and whether the defective condition resulted from defective design or defective manufacture or both. The jury was clearly directed to proceed to the fourth instruction if they did not find the existence of a “defective condition unreasonably dangerous.”

We have recognized only two types of defects which will render a product in a “defective condition unreasonably dangerous.” Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441 (1966). A manufacturing defect exists in a product when it leaves the hands of the manufacturer in a defective condition because it was not manufactured or assembled in accordance with its specifications. See Ford Motor Co. v. McCamish, Ky. App., 559 S.W.2d 507 (1977). A design defect exists in a product when a manufacturer fails in his duty to exercise reasonable care to design a product that is reasonably safe for its intended and foreseeable use. Jones v. Hutchinson Manufacturing Inc., Ky., 502 S.W.2d 66 (1973). These two types of product defects require separate standards of proof. A manufacturing defect requires the jury to determine whether the product failed because of an error in the process of manufacture or assembly. Ford Motor, supra. A design defect requires the jury to consider the “feasibility of making a safer product, patency of danger, warnings and instructions, subsequent maintenance and repair, misuse, and,the products’ inherently unsafe characteristics.” Montgomery Elevator Company v. McCullough, Ky., 676 S.W.2d 776, 780 (1984). If either defect is proven, then the product is considered to be in a “defective condition unreasonably dangerous.” Nichols v. Union Underwear Co., Inc., Ky., 602 S.W.2d 429 (1980). If the product does not contain a manufacturing or design defect, then the product cannot be in a defective condition unreasonably dangerous. The bifurcation of these separate types of defects was merely a logical extension of the inartful standard which the majority apparently requires to be applied in all jury instructions in product liability cases.

It also should be noted that the instructions complained of by the plaintiffs below were the same, in essence, as the ones which they tendered at trial. I believe that this constitutes a waiver of any objection by these parties.

I do not believe that the trial court abused its discretion when it excluded evidence that Ford had subsequently changed its design of the spindle assembly of the Ford Ranger truck to include a backup or safety feature. The plain meaning of KRS 411.330 requires the trial court to admit evidence of any change of a product “ only after the same has been offered to the court in a hearing out of the presence of the jury and the court has ruled that the evidence is relevant and material.” Id.

The record indicates that Judge Schroer-ing complied with both the spirit and the letter of the law of the statute. The trial court held two hearings to determine the relevancy and materiality of the evidence of the subsequent design change. At both hearings, the plaintiffs failed to prove to the satisfaction of the trial court that the changes were remedial and not for the purpose of cost. The trial court properly overruled the admission of the evidence because it was not relevant or material. The majority’s decision to substitute its judgment for the trial court virtually eliminates any discretion which a trial judge may have been granted under the statute in determining whether to admit evidence of a subsequent design change in product liability cases.

WINTERSHEIMER, J., joins in this dissent.