Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 78 C 135 -- Allen Sharp, Judge .
Before Bauer, Circuit Judge, Kilkenny, Senior Circuit Judge*fn* , and Cudahy, Circuit Judge.
Plaintiff-appellant Roy L. Harris was severely burned when his camper exploded due to a gas leak. The jury found for defendant-appellee Karri-On Campers, Inc. Appellants charge that the jury was erroneously instructed on various issues. We reverse and remand for a new trial.
Roy L. Harris purchased a camper manufactured by Karri-On Campers on July 6, 1975, from Duncan's Romer Sales to live in while at a job site away from home. The camper had a gas-operated stove, refrigerator, and light, but the propane gas system was not hooked up at the time of purchase. J. C. Duncan, the proprietor, told Harris that ordinarily he would fill the tanks for him, but that he had to leave to take care of a family problem. Tr. 102. Harris mounted the camper to his truck and drove to a service station. The station attendant filled the propane tanks and hooked up the regulator, which governed the amount of gas released to the pipes inside the camper. Tr. 33. Harris testified that he saw the station attendant use a crescent wrench to make adjustments, although he was unclear as to how much he saw of the procedure. Tr. 35, 102, 105, 111-112.
Harris then drove to a mobile trailer park. There, he and a friend read the instructions accompanying the unit and lit the pilot lights in the refrigerator, stove, and gas light. Tr. 40-44. Both men smoked while they were in the unit and the windows were open. Tr. 47, 48. Both men testified at trial that they turned off the gas burners after they lit the pilot lights. Tr. 45. After a brief visit in his friend's mobile home, Harris returned to his camper and went to sleep. Tr. 47.
The next morning, Harris stepped down from the sleeping bunk and lit his cigarette lighter. Tr. 49. The first spark ignited an explosion which severely burned Harris and destroyed the camper.
Harris was in a coma for almost two weeks. He spent the next three weeks in the burn unit of the West Penn Hospital in Pittsburgh. Tr. 51, 58. He underwent a painful process of daily whirlpools, skin removal, and bandage replacement. Tr. 52, 55, 56. He remained totally covered by bandages for almost four months. Tr. 61.
Harris recuperated at home for the next eleven months. Mrs. Harris continued the treatments prescribed by the hospital. Tr. 58. He was unable to return to his job as a carpenter for a year.
Harris and his wife filed suit in the Northern District of Indiana against Karri-On Campers, Duncan's Romer Sales, the owner of the service station, and the attendant. All the defendants except Karri-On Campers were dismissed from the case on jurisdictional grounds. The Harrises assert eight errors on appeal. They claim: (1) that the trial judge refused to instruct the jury that comparative fault governed the action; (2) that the court improperly instructed the jury on the definition of a defect; (3) that the court gave insufficient instructions concerning the adequacy of warnings; (4) that there was insufficient evidence to support an instruction on the defense of incurred risk; (5) that there was insufficient evidence to instruct the jury on the defense of misuse; (6) that the court should not have instructed the jury that a manufacturer has no duty to warn of an obvious danger; (7) that the court inadequately instructed the jury on the defendant's burden of proving defenses; and (8) that the court improperly admitted the plaintiffs' complaint into evidence without a corrective or limiting instruction.
As a preliminary matter, we review appellants' motion, taken with the appeal, to certify the issues presented here to the West Virginia Supreme Court of Appeals.*fn1 We decline to do so.
West Virginia has enacted the Uniform Certification of Questions of Law Act, W.Va.Code §§ 51-1A-1 to 12. The Act permits a federal court to certify controlling questions of law to the Supreme Court of Appeals of West Virginia when "it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of appeals of" West Virginia. W.Va.Code § 51-1A-1. The power to certify a question is discretionary, and the West Virginia court does not feel itself bound to answer certified questions. Abrams v. West Virginia Racing Commission, 164 W.Va. 315, 263 S.E.2d 103, 105 (W.Va.1980).
In Morningstar v. Black & Decker Manufacturing Co., 162 W.Va. 857, 253 S.E.2d 666 (W.Va.1979), the Supreme Court of Appeals declared the West Virginia law of products liability. In deciding the issues before us, therefore, we will not be writing on a completely clean slate. Moreover, the request before us is appellants' first such request. Appellants filed and tried the case in federal court without seeking certification. To certify the questions at this late date would only prolong the life of this litigation at all the parties' expense. We therefore decline to certify the questions to the West Virginia Supreme Court of Appeals.
The Harrises first complain that the trial judge failed to instruct the jury that comparative fault governed the findings of liability in their suit. The doctrine of comparative fault permits the plaintiff to recover from a defendant even though his injury was partly the result of his own fault. The doctrine first developed as an alternative to contributory negligence, which completely bars the plaintiff's recovery in a negligence action if he or she is in any way negligent. Applied in a strict liability case, the doctrine injects the concept of fault into an otherwise "strict" doctrine. See Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162, 1166-69 (Cal.1978).
The West Virginia Supreme Court of Appeals has not decided whether comparative fault applies in strict liability cases. We must therefore decide "what rule the (West Virginia) Supreme Court would adopt in such a case and apply it." Huff v. White Motor Corp., 565 F.2d 104, 106 (7th Cir. 1977), vacated and remanded on other grounds, 609 F.2d 286 (7th Cir. 1979). Our decision must not be based on our own views of what the law should be; rather, we must analyze West Virginia decisions to see the approach taken by its courts. We must consider all the data which the West Virginia court would consider. Huff v. White Motor Corp., 565 F.2d at 106.
The West Virginia Supreme Court of Appeals has said that although it is not a leader, it has not "languished in the rear" of the products liability movement. Morningstar, 253 S.E.2d at 680. In Morningstar, the West Virginia court adopted strict liability in tort for defective products. In so doing, the court analyzed Section 402A of the Restatement (Second) of Torts (1965) and the standards of strict liability enunciated in various states. Although using the laws of all the states for reference, the court viewed the chief conflict as between the California rule in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (Cal.1962), and the Restatement rule.
The court reviewed the Restatement position and observed that the Restatement defined a defective product in terms of whether it is "unreasonably dangerous".*fn2 The court rejected this standard because it placed
a concept of foreseeability into the tort product liability law which is inappropriate, since the manufacturer's liability is not based on negligence and the issue of foreseeability is a part of negligence law.
After rejecting the Restatement position, the court considered an appropriate definition of "defect." It analyzed the rules in California, Illinois, and New Jersey in reaching its conclusion. The court concluded that both California and Illinois required that the plaintiff "show he was using the product in a normal manner and was injured" to prove a defect. Id. at 681. The court ultimately rejected the Illinois test, however, because Illinois adopted the "unreasonably dangerous" standard of the Restatement for strict liability. The court also refused to apply the recent California definition of defect, announced in Barker v. Lull Engineering Co., Inc., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (Cal.1978). That case held that a defect in design is proved
(1) if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if the plaintiff proves that the product's design proximately caused his injury and the defendant fails to prove, in light of the relevant factors discussed above, that on balance the benefits of the challenged design outweigh the risk of danger inherent in such design.
Id. 143 Cal.Rptr. at 239-40, 573 P.2d at 457-58. The second part of the definition involved a "risk/utility" analysis similar to the New Jersey test.*fn3 While the Morningstar court agreed that "a risk/utility analysis does have a place in a torts product liability case by setting the general contours of relevant expert testimony," 253 S.E.2d at 682, the court rejected the doctrine's use as a jury standard. Instead, the court held, "what is a defective product must be analyzed in traditional tort terminology." Id. Since Greenman did not define "defect," the court drew on precedent from the states discussed above in articulating what it believed to be a reasonable interpretation of the general Greenman standard. The court concluded that the general test of a defective product "is whether the involved product is defective in the sense that it is not reasonably safe for its intended use." Id. at 683. The test, the court noted, was in accord with Greenman, although it was "somewhat more restrictive" than Morningstar at 684.
It thus appears that the West Virginia court has adopted a more "conservative" approach to strict liability than California. Although generally following that state's lead, the court is reluctant to adopt the latest pronouncement from California. Instead, the court follows the original Greenman approach, as it has been interpreted by other states.
The California Supreme Court adopted comparative negligence in negligence cases in 1975. Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (Cal.1975). Li pronounced a rule of "pure" comparative negligence which permits the plaintiff to recover regardless of the amount of his negligence so long as the defendant's negligence proximately caused the injury. The California court extended the doctrine to strict liability cases in Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (Cal.1978). Both these cases abolished the defenses of assumption of the risk, misuse, and last clear chance, and replaced them with a system of assessing liability in proportion to each party's fault. Li, 119 Cal.Rptr. at 872, 532 P.2d at 1240-41; Daly, 144 Cal.Rptr. at 390-391, 575 P.2d at 1172-73.
The West Virginia court adopted the doctrine of comparative negligence in negligence cases in Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (W.Va.1979). While believing the rule prohibiting recovery for slight contributory negligence to be unfair, the court also rejected the "pure" comparative negligence of Li. The court ruled that "pure" comparative negligence was inequitable because it allowed a plaintiff with great fault and large damages to impose liability on a defendant who was not substantially negligent. Id. at 883. Moreover, the "singular emphasis on the amount of damages" of the pure comparative negligence approach made liability depend on the parties' insurance. Id. at 885.
The court reasoned that the policy of fair apportionment of damages required that a plaintiff's recovery be reduced by his contribution to his injury. On the other hand, the court stated it was "not willing to abandon the concept that where a party substantially contributes to his own damages, he should not be permitted to recover for any part of them." Id.
In accordance with these policies, the court adopted a "substantially negligent" standard, stating that it was "an intermediate position" between the current West Virginia rule and the California rule. Id. at 887. The court held that
a party is not barred from recovering damages in a tort action so long as his negligence or fault does not equal or exceed the combined negligence or fault of ...