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Washburn v. Beatt Equipment Co.11/25/1992
a product seller under the instructions given. Under jury instruction 17, the jury had to find that defendant was a product seller in order to determine that defendant was a manufacturer. However, to prevail on their theory that defendant was a product seller whose negligence caused plaintiffs' injuries, plaintiffs had to establish defendant's negligence. See RCW 7.72.040(1)(a). The special verdict forms directed the jury to first determine whether defendant was a manufacturer and then, if the jury found that defendant was a manufacturer, to proceed to the special verdict form for determining liability on that theory. The jury therefore never answered questions about whether defendant was negligent as a product seller. We do not address the product seller theory, as we uphold the verdict and judgment on manufacturer liability grounds.
To decide whether this case should have gone to the jury on the issue whether defendant was a manufacturer, and therefore not protected by the statute of repose, we first look to the definition in the jury instructions. The relevant instruction is the trial court's instruction 17, given exactly as submitted by defendant and set out in the footnote. We then examine the facts to ascertain whether defendant's activities fall within that definition.
We emphasize that the definition of "manufacturer" is contained in only one instruction. That instruction was submitted by the defendant. At the instruction conference, defense counsel, in referring to defendant's proposed definition of manufacturer, stated: "I think that this is a correct statement of the law . . .". VRP vol. 8, at 664. Defense counsel was careful to note his exception to submitting the case to the jury on the theory that it was a manufacturer, VRP vol. 8, at 664-65, but the definition of manufacturer is binding on defendant as its proposed instruction. There was no exception to the instruction stating the duty of a manufacturer. Instruction 16; Clerk's Papers, at 708.
The jury returned special verdict forms. The jury was asked: (1) "Was the defendant a manufacturer of the pipe in question?" Answer: "Yes." Clerk's Papers, at 724. (2) "Did the defendant supply a product which was not reasonably safe in construction at the time the product left defendant's control?" Answer: "Yes." Clerk's Papers, at 726. The "not reasonably safe" standard was established by the definition of a manufacturer's duty to which no exception was taken.
Before analyzing the facts relating to defendant's activities, we reject a major portion of defendant's arguments. Defendant asserts "that the court erred by accepting plaintiffs' definition of manufacturer." (Italics ours.) Brief of Appellant, at 30. As shown above, and there is no question about it, the court accepted defendant's definition.
The definition of manufacturer in instruction 17 is identical to the definition in the product liability act, RCW 7.72.010(2). Defendant asserts that use of that definition
"was totally inappropriate in this case." Brief of Appellant, at 40. We repeat that the trial court accepted defendant's definition which defendant stated was a correct statement of the law.
Defendant argues extensively about legislative history, and legislative intent, all to the end that the instruction defining manufacturer was in error. It argues for narrow construction of the proviso excepting manufacturers from the statute of repose. Defendant contends that because the word "manufacturer" is not defined in RCW 4.16.300 it must be given its plain and ordinary meaning. Brief of Appellant, at 42; Reply Brief of Appellant, a
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