The opinion of the court was delivered by: William J. Holloway, Jr., Circuit Judge.
Plaintiff, who was injured when parked vehicle rolled down incline and struck him, brought action against vehicleís manufacturer, alleging vehicle was unreasonably dangerous, invoking the theory of manufacturerís strict liability for a defective product, and alleging failure to warn consumers about a known product defect. At the close of evidence, the United States District Court for the District of Colorado, dismissed the failure to warn claim, but allowed plaintiff to comment at closing on evidence presented regarding such claim. The jury returned verdict in plaintiffís favor, and District Court entered judgment against manufacturer. Manufacturer appealed.
The Court of Appeals, William J. Holloway, Jr., Circuit Judge, held that:
manufacturer failed to preserve for appeal its claim that it was unfairly prejudiced by the trial judgeís ruling allowing plaintiffís counsel to comment on evidence that had been presented regarding plaintiffís failure-to-warn claim, and
conclusion that jury was not unduly influenced by plaintiff counselís allegedly improper remarks in closing arguments was not abuse of discretion.
Before LUCERO, HOLLOWAY and HARTZ, Circuit Judges.
This appeal comes from the district courtís final judgment, entered after a jury trial, in a civil action. The district courtís jurisdiction was based on diversity of citizenship. Appellate jurisdiction is granted to this court by 28 U.S.C. ß 1291.
PlaintiffñAppellee Timothy Beene (Plaintiff) was injured when a parked Ford Expedition rolled down an incline and struck him. Mr. Beene sued DefendantñAppellant Ford Motor Company, alleging that the Expedition was unreasonably dangerous and invoking the theory of manufacturerís strict liability for a defective product. Mr. Beene also alleged breach of a duty to warn consumers about a known product defect.
Plaintiff was a volunteer firefighter in Ridgway, Colorado. On June 7, 2006, he responded to a reported fire near the townís new high school. Ridgway Town Marshal David Scott also responded. Scott parked his 1997 Ford Expedition on a downward slope and left it with the engine running and without setting the parking brake. Plaintiffís pickup was 86 feet from Scottís Ford. Thirty minutes later, the small fire had been extinguished, and Plaintiff was sitting on the tailgate of his pickup to take off his firefighterís gear. Scottís vehicle started rolling down the slope and struck Plaintiff, causing serious injuries to both of Plaintiffís legs. Plaintiffís left ankle was crushed and his right leg broken in three places.
What caused the Marshalís vehicle to begin rolling down the gentle slope where he had left it after having remained there for about thirty minutes? That was the most contested issue at trial. Witnesses for both parties seemed to agree, however, that it was not surprising that a vehicle with an automatic transmission could remain stationary for some time and then begin to roll when that vehicleís transmission had been left in the neutral gear. The focus of the dispute at trial was whether Marshal ...