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Couch v. Astec Industries6/19/2002
gligence
With respect to Plaintiff's claims for strict liability and negligence, Defendant contends that either Plaintiff's own negligence or Employer's failure to secure the tail pulley guard to the conveyor frame caused the accident. As noted previously, the evidence was disputed as to whether Plaintiff's foot came in contact with the conveyor belt because of Employer's failure to adequately secure the guard, because of an impermissible gap between the guard and the conveyor belt, or because of Plaintiff's own negligence.
In order to hold Defendant strictly liable, the jury had to find that a condition of the recycling plant or the manner of its use caused an unreasonable risk of injury to "persons whom the supplier can reasonably expect to use the product." UJI 13-1406 NMRA 2002. In order to conclude that Defendant was negligent, the jury had to find that Defendant failed to use ordinary care in designing or making the recycling plant. UJI 13-1410 NMRA 2002. Plaintiff presented evidence through Gallagher supporting the theory that the plant was unreasonably dangerous because the gap between the guard and the belt was large enough for a person's foot to slip through and the conveyor belt was not equipped with pull cords. As discussed below in connection with Defendant's post-sale duty, Plaintiff also presented evidence from which the jury could reasonably infer that Defendant knew or should have known about these purported defects.
Although Defendant presented evidence supporting its countervailing theories, it was the jury's prerogative as the fact finder to disbelieve Defendant's view of what caused the accident and rely instead on testimony, as presented primarily by Gallagher, that Defendant's conduct caused Plaintiff's injuries. See Buckingham v. Ryan, 1998-NMCA-012, 10, 124 N.M. 498, 953 P.2d 33. While the jury found Plaintiff and Employer comparatively negligent, this does not free Defendant from liability. See, e.g., Smith v. Bryco Arms, 2001-NMCA-090, 42, 131 N.M. 87, 33 P.3d 638 (recognizing that a product's misuse by the consumer does not necessarily operate to bar recovery as a matter of law). Because evidence was presented to support Plaintiff's position, we affirm.
The Trial Court Properly Instructed the Jury on Defendant's Post-Sale Duty
Defendant argues that the trial court erred in recognizing a duty to retrofit when it instructed the jury in accordance with UJI 13-1402 NMRA 2002:
The supplier's duty to use ordinary care continues after the product has left possession. A supplier who later learns, or in the exercise of ordinary care should know, of a risk of injury caused by a condition of the product or manner in which it could be used must then use ordinary care to avoid the risk.
While Defendant limits its argument to the duty to retrofit, Plaintiff's theory of Defendant's post-sale obligations was more expansive. Plaintiff claimed that Defendant negligently failed to either (1) retrofit the conveyor belt with emergency pull cords after 1994 when Engineering Change Order 195 (ECO 195) went into effect, or (2) notify customers about ECO 195. We also emphasize that UJI 13-1402 does not describe a specific post-sale duty, such as a duty to retrofit. Rather, the instruction tells a jury only that a supplier who, after the sale of the product, knows or should know of any risks associated with the product, "must then use ordinary care to avoid the risk." UJI 13-1402. Thus, it is for the jury to determine what steps-whether by warning or retrofitting or some other means-a supplier must take in the exercise of ordinary care.
Defendant argues that the imposition of a post-sale dut
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