PRESENT: All the Justices

RONDA MADDOX EVANS, ADMINISTRATOR
OF THE ESTATE OF JERRY WAYNE EVANS,
DECEASED
                                            OPINION BY
v. Record No. 161788              JUSTICE STEPHEN R. McCULLOUGH
                                            March 22, 2018
NACCO MATERIALS HANDLING GROUP, INC.


                 FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
                               David B. Carson, Judge

        The widow of Jerry Wayne Evans filed this action against NACCO Materials Handling

Group (“NACCO”), the manufacturer of a lift truck, on theories of negligent design and breach

of an express or implied warranty. The jury returned a verdict for the plaintiff on a theory of

negligent design. Following post-trial motions, the trial court dismissed the case on the basis

that the evidence established contributory negligence as a matter of law. The plaintiff appeals

the dismissal, contending that the question of contributory negligence should have been decided

by the jury. NACCO raises three assignments of cross-error, arguing among other things that the

plaintiff’s evidence fails to establish a negligent design as a matter of law. We agree that the

plaintiff’s evidence failed, as a matter of law, to establish a design defect and, accordingly, we

affirm on this alternate basis. 1




        1
         Our resolution of the case on this ground obviates the need to reach the remaining
assignments of error and cross-error. Shareholder Rep. Servs., LLC v. Airbus Americas, Inc.,
292 Va. 682, 689, 791 S.E.2d 724, 727 (2016); City of Chesapeake v. Dominion SecurityPlus
Self Storage, L.L.C., 291 Va. 327, 336, 785 S.E.2d 403, 407 (2016).
                                          BACKGROUND

       I.      THE FATAL ACCIDENT.

       Jerry Wayne Evans worked at an International Paper plant in Lynchburg. He operated a

post folder gluer, a machine that turns a sheet of cardboard into a box. To earn more money, he

volunteered to train as a clamp lift truck operator. Evans completed the classroom portion of the

training and started to train on the machine. Before he could complete the training, however,

Evans decided he did not want that job. He was never certified to operate the truck.

       On January 22, 2010, the plant was shorthanded, so a supervisor asked Evans to use a lift

truck to unload bales of paper from a tractor trailer. This particular plant was operating five or

six days per week, with three shifts each day. Evans was working the third shift. Unloading the

trailer meant driving the lift truck up a ramp, over a retractable dock plate and into the trailer,

taking the bales of paper out of the trailer and back into the plant. The loading ramp is the only

place in the plant with an incline.

       After Evans had completed several trips in and out of the trailer, his truck became stuck

in the 11-inch gap between the dock plate and the trailer. With the help of a colleague, Lamont

Lacy, Evans affixed a tow chain to his truck and Lacy’s truck. Using Lacy’s truck, the pair

pulled the immobilized lift truck out of the gap and off the dock plate. Evans parked the truck on

the ramp, turned it off, and applied the parking brake. The incline on the ramp was a 12 percent

grade. Evans’ truck was not carrying a load. The lift truck came equipped with an alarm that

will sound when the operator gets out of the seat and the park brake is not applied. Evans

stepped down from his truck, and the alarm did not sound. Evans did not place chocks under the




                                                   2
wheels because they were not available at the plant. He also did not lower the clamp

attachment. 2 Evans placed himself between the two trucks, presumably to unhook the tow chain.

       The parked truck initially did not move. Very quickly, however, Lacy noticed that

Evans’ truck began to roll backwards, toward Evans. Lacy screamed to warn Evans, but, due to

the loud ambient noise at the plant, Evans did not hear him. Evans was crushed and killed when

the truck rolled down the incline and collided with the other truck, pinning Evans between the

two. A post-accident examination revealed that the truck’s parking brake was out of adjustment.

       II.     THE LIFT TRUCK, ITS CHARACTERISTICS, AND REQUIREMENTS FOR TRAINING AND
               OPERATION.

       The lift truck in question, a Hyster S120XMS, 3 is a specialized industrial vehicle. It

weighs 20,000 pounds. It resembles a forklift, but it is equipped with a clamp attachment. The

clamp attachment weighs approximately 2,800 pounds. The clamp attachment allows the trucks

to grab and move large bales of paper. The truck was rated to lift a maximum load of 7,700

pounds. This particular lift truck went into production in 2001. NACCO sold the truck to

Evans’ employer in March 2003.

       The vehicle is equipped with an “operator adjustable” parking brake that is located “over-

center” with respect to the operator’s seating position. Approximately 60 percent of the vehicles

in this class in 2003 were equipped with such a brake. Other lift trucks also had operator




       2
         Federal regulations required the operator to lower the clamp to the ground when the
vehicle was left unattended. 29 C.F.R. § 1910.178(m)(5)(i). The benefit of this maneuver is that
the clamp would create friction that would help maintain the truck in place. Operators at the
International Paper plant were not trained to lower the clamps. Placing the clamps on the ground
could distort the shape of the clamps, causing them to “mushroom,” which, in turn, meant that
the clamps could damage the paper rolls the clamps were designed to pick up.
       3
          The record describes NACCO Materials Handling Group, Inc., as the successor in
interest to Hyster Company.


                                                3
adjustable brakes, but they were laid out in a hand ratchet or foot ratchet configuration. The

operator of a vehicle with an operator-adjustable, over-center brake activates the over-center

brake by manually pulling back on a lever that is located on the dashboard. The amount of

tension on an operator-adjustable, over-center brake can be adjusted by twisting a knob situated

at the top of the lever. The evidence established that the twisting action required the operator to

deliberately tighten or loosen the brake; the operator could not inadvertently tighten or loosen the

brake. Rotating the knob in one direction increases the tension on the brake, and rotating the

knob in the opposite direction decreases the tension. No tools are necessary to increase or

decrease the tension on the brake. When an operator pulls back on the park brake lever, he can

feel whether the brake is tight or loose. As part of the elaborate development process, Hyster

tested the prototype truck with trained operators to gain feedback. It did not receive any negative

feedback with respect to the operator-adjustable, over-center park brake.

       The cabin of the truck contained several warnings. A warning in bright orange, next to

the parking brake, stated:

                                            WARNING

                                  APPLY PARKBRAKE before
                                    leaving seat, parkbrake
                                   not automatically applied.

                                      ALARM will sound if
                                     parkbrake is not applied.

       In addition, the cabin contained an extensive series of warnings on a variety of subjects,

which told the operator, among other things, that “FAILURE to follow these instructions can

cause SERIOUS INJURY or DEATH! AUTHORIZED, TRAINED OPERATOR ONLY!” One




                                                 4
of those warnings stated that “BEFORE DISMOUNTING, neutralize travel control, lower

carriage, set brake. WHEN PARKING, also shut off power, close LPG fuel valve, block wheels

on inclines.”

       Industry standards, in particular the standard set by the American National Standards

Institute (“ANSI”) B56.1-2000, required the parking brake to be capable of holding the truck still

under a full load on a 15 percent incline. Federal government regulations incorporated the

industry standard by reference. See 29 C.F.R. § 1910.178(a)(2).

       The lift truck is not a consumer product. Driving such a truck, an operator testified, “can

be quite a dangerous job.” Federal law requires operators of such lift trucks to be trained and

certified. 29 C.F.R. § 1910.178(l). The operators at the International Paper plant were trained

through a combination of classroom instruction, hands-on demonstration with a lift truck, and on

the truck with a mentor. Evans had completed the classroom component, and he had received

some hands-on training under the supervision of an experienced operator. The operator who

trained Evans said that while he did not specifically recall training Evans on adjusting the

parking brake, it is something he would normally cover with trainees.

       The plant’s policy did not call for training its operators to adjust the park brake.

Operators nonetheless learned how to do so by speaking with the mechanics who serviced the

trucks. Operators were not supposed to adjust the brake themselves. If the parking brake needed

adjustment, operators were taught to tag the lift truck so it could be taken out of service for

maintenance. One operator testified that it was “fairly common” for an operator on a previous

shift to lessen the tension on the parking brake. He believed operators from prior shifts were

loosening the tension required to apply the brake in order to lessen the effort needed to apply the




                                                  5
brake and make their jobs easier. Operators were trained to inspect and test the park brake, but

they were not trained to test it on the ramp. Operators were not permitted to stop on the loading

ramp and park there.

       III.    THE WRONGFUL DEATH ACTION.

       Evans’ widow, as the administrator of his estate, filed a wrongful death action against

several defendants, including the manufacturer, alleging breach of express or implied warranties

and also alleging that the lift truck was negligently designed. At trial, the plaintiff presented the

expert testimony of Frederick Mallett to prove that the parking brake was negligently designed.

Mallet previously served as an engineer and a manager with Mitsubishi-Caterpillar Forklift

America, which designed lift trucks that competed with NACCO’s trucks.

       Mallett rejected mechanical failure or overloading as a cause of the accident. He testified

that the truck rolled down the ramp because the parking brake was not correctly adjusted. In

Mallett’s view, the brake was defectively designed because it was operator adjustable. Mallett

testified that a mechanic should adjust the parking brake, not an operator. Mallett acknowledged

that placing an untrained or uncertified operator on the truck was a misuse of this product.

Mallett testified that “[t]he design was defective and unreasonably dangerous in that it failed to

eliminate misuse by the operator.” He explained that this “misuse” was foreseeable. He cited to

a 1944 publication from the United States Labor Department’s Division of Labor Standards

addressing product safety:

                       Positive mechanical means of eliminating machine hazards
               should be applied wherever possible and to the maximum possible
               extent. One commonly encounters the attitude that it is sufficient
               to guard a machine so that an operator faithfully obeying carefully-
               worked-out rules of safe operation can escape injury. . . .

                      This attitude is wrong and is responsible for a heavy
               portion of the injuries connected with machine operation. Every



                                                  6
                uncontrolled hazard, however remote, will produce its quota of
                injuries and even the most careful operator will at times do the
                wrong thing or fail to take some necessary precaution.
                Furthermore, many machine operators are neither carefully
                selected nor adequately trained, and in many establishments
                supervision is neither safety-minded nor adequate.

        Mallett acknowledged that the company he previously worked for, and for which he

oversaw the design of competitor trucks, did not have a parking brake that had to be adjusted by

a mechanic.

        Experts for both the plaintiff and the manufacturer explained in similar terms the benefits

and drawbacks of an operator-adjusted brake. Mallett testified that, over time, the cables that

control the parking brake will stretch and mechanical components of the linkage are subject to

wear. Similarly, David Couch, called as an expert by the manufacturer, explained that the brake

system can become looser, wear out, and experience linkage stretch over time. Both experts

agreed that an operator-adjusted brake allows the operator to make sure the brakes are properly

functioning by tightening the brake when they became looser. Walter Girardi, a consultant for

NACCO, also explained that an operator-adjustable brake allows the operator to adjust the brake

for particular applications. Less force is needed to keep the truck stationary on level ground than

if it is being parked on an incline.

        Mallett acknowledged that a downside to requiring a mechanic to adjust the brake is that

the truck must be taken out of service if the parking brake is not performing to the required

standard. Similarly, Girardi testified that companies of all sizes use these trucks, and some may

own only one truck. He explained that an advantage of operator adjustability is that the truck

need not be taken out of service by a maintenance department or an outside contractor when the

park brake needs adjustment.




                                                 7
       Mallett explained that it was possible to design a handle that would allow the operator to

tighten the brake without allowing him to loosen it, but that approach, he testified, creates a

separate hazard. If the operator overtightens the brakes, and cannot loosen it, the brake cables

can snap when applied. Mallett agreed it might be convenient to allow the operator to make the

adjustment, but explained that “the potential then exists for incorrect adjustment based on the

level of experience and training of the operator.”

       Mallett agreed that the brake’s design complied with industry standards. He also agreed

that there was no international standard in Japan, Australia, or Europe that prohibited the use of

operator-adjustable, over-center park brakes. The expert for the manufacturer similarly testified

that no other standard worldwide prohibited a brake of this type.

       The trial court provided the jury with instructions covering negligent design, implied

warranty, and failure to warn. The jury was provided with a verdict form that contained three

options, one allowing the jury to find for the plaintiff on the issue of negligent design, another

allowing the jury to find for the plaintiff on her implied warranty claim and, finally, an option

allowing the jury to find in favor of the defendant. The jury was not given an option to find in

favor of the plaintiff on the basis that the warnings were inadequate. The jury found for the

plaintiff on the negligent design theory and awarded total damages in the amount of $4.2 million.

       NACCO moved to set aside the verdict, arguing, among other things, that Evans was

guilty of contributory negligence as a matter of law and that the evidence failed as a matter of

law to establish that the parking brake was unreasonably dangerous. The trial court set aside the

jury’s verdict on the basis that Evans was contributorily negligent as a matter of law. The

plaintiff appeals from the trial court’s contributory negligence holding, and NACCO has




                                                  8
assigned cross-error on, inter alia, the issue of the sufficiency of the evidence of a negligent

design.

                                              ANALYSIS

          I.     APPLICABLE LEGAL STANDARDS.

          “The quest for understanding design defectiveness perennially vexes courts and

accomplished products liability lawyers attempting to unravel design defect problems.” David

G. Owen & Mary J. Davis, Products Liability 702-03 (4th ed. 2014). To state the obvious, “a

courtroom is a poor substitute for a design office.” Santiago v. Johnson Mach. & Press Corp.,

834 F.2d 84, 85 (3rd Cir. 1987) (quoting Lewis v. Coffing Hoist Div., Duff-Norton Co., 528 A.2d

590, 596 (Pa. 1987) (Hutchison, J., dissenting)). Designing a product, particularly a complex

product, involves an enormous number of variables: expected use, feasibility, appeal to the

customer, cost, safety, ease of use, durability, benchmarking competitors’ products, and many

more. Despite the difficulty of the task, it is the duty of the courts to provide an impartial forum

when poorly designed products cause injuries. In the absence of statutory guidance, the

standards governing design defect litigation must be developed through case law.

          Virginia has not adopted a strict liability regime for products liability. When alleging

that a product suffered from a design defect, a plaintiff may proceed under a theory of implied

warranty of merchantability or under a theory of negligence. Negligence is the failure to

exercise “that degree of care which an ordinarily prudent person would exercise under the same

or similar circumstances to avoid injury to another.” Griffin v. Shively, 227 Va. 317, 321, 315

S.E.2d 210, 212-13 (1984) (quoting Perlin v. Chappell, 198 Va. 861, 864, 96 S.E.2d 805, 808

(1957)). With respect to designing products, the law imposes on a manufacturer “a duty to

exercise ordinary care to design a product that is reasonably safe for the purpose for which it is




                                                   9
intended.” Turner v. Manning, Maxwell & Moore, Inc., 216 Va. 245, 251, 217 S.E.2d 863, 868

(1975).

          Whether a plaintiff proceeds under a theory of warranty or negligence, the plaintiff must

prove:

                 (1) that the goods were unreasonably dangerous either for the use
                 to which they would ordinarily be put or for some other reasonably
                 foreseeable purpose, and (2) that the unreasonably dangerous
                 condition existed when the goods left the defendant’s hands.

Featherall v. Firestone Tire & Rubber Co., 219 Va. 949, 963-64, 252 S.E.2d 358, 367 (1979)

(quoting Logan v. Montgomery Ward & Co., 216 Va. 425, 428, 219 S.E.2d 685, 687 (1975)).

          “A product is unreasonably dangerous if it is defective in assembly or manufacture,

unreasonably dangerous in design, or unaccompanied by adequate warnings concerning its

hazardous properties.” Morgen Indus., Inc. v. Vaughan, 252 Va. 60, 65, 471 S.E.2d 489, 492

(1996). In addition, “[w]hile a manufacturer may not be held liable for every misuse of its

product, it may be held liable for a foreseeable misuse of an unreasonably dangerous product.”

Jeld-Wen, Inc. v. Gamble, 256 Va. 144, 148, 501 S.E.2d 393, 396 (1998).

          Whether a manufacturer was negligent involves an objective inquiry. Holiday Motor

Corp. v. Walters, 292 Va. 461, 478 n.14, 790 S.E.2d 447, 455 n.14 (2016); Virginia Elec. &

Power Co. v. Dungee, 258 Va. 235, 252, 520 S.E.2d 164, 174 (1999) (“The test for negligence is

always objective.”). “To sustain a claim for negligent design, a plaintiff must show that the

manufacturer failed to meet objective safety standards prevailing at the time the product was

made.” Holiday Motor, 292 Va. at 478 n.14, 790 S.E.2d at 455 n.14. Governmental safety

standards and industry practices are highly relevant on the question of whether the

manufacturer’s design was negligent because they permit an inference that the manufacturer




                                                  10
exercised (or failed to exercise) ordinary prudence. See id. Governmental regulations and

industry standards and practices are not dispositive, however. It may be the case that such

regulations simply do not exist, for example, or if they do, they may have become antiquated.

Industry practices likewise are not conclusive in assessing whether a manufacturer was

negligent. See Sexton v. Bell Helmets, Inc., 926 F.2d 331, 336 (4th Cir. 1991) (“[C]onformity

with industry practice is not conclusive of the product’s safety, because an industry could adopt a

careless standard.”).

       In addition to governmental regulations, and industry norms and practices, reasonable

consumer expectations can provide objective evidence that the product is defective. Holiday

Motor, 292 Va. at 478 n.14, 790 S.E.2d at 455 n.14 (stating the law imposes a duty on a

manufacturer to design a product that satisfies “reasonable consumer expectations”) (quoting

Redman v. John D. Brush & Co., 111 F.3d 1174, 1177-78 (4th Cir. 1997)). This may be shown

by direct evidence of what reasonable consumers considered defective as well as published

literature or industry practices recognizing a safety standard that reasonable consumers expected.

See Alevromagiros v. Hechinger Co., 993 F.2d 417, 420 (4th Cir. 1993). Published literature

may include, among other sources, marketing, advertising, presentation, promotional materials,

product manuals, and instruction booklets.

       Since Virginia law requires an examination of whether the “unreasonably dangerous

condition existed when the goods left the manufacturer’s hands,” Morgen Indus., 252 Va. at 65,

471 S.E.2d at 492, the court examines the reasonable safety expectations of consumers at the

time the product left the manufacturer’s hands. In undertaking this examination, however, we

are guided by the principle that wholly subjective expectations are insufficient to establish the




                                                 11
degree of protection reasonable consumers expect from a product. Redman v. John D. Brush &

Co., 111 F.3d 1174, 1181 (4th Cir. 1997).

       II.     THE PLAINTIFF FAILED TO ESTABLISH AS A MATTER OF LAW THAT THE OPERATOR-
               ADJUSTABLE, OVER-CENTER BRAKE IS UNREASONABLY DANGEROUS.

       Mallett did not testify that the design of the park brake violated government regulations,

industry norms or practices, or consumer expectations. With respect to governmental or

published industry standards, Mallett agreed that the design of the brake satisfied the applicable

ANSI standard. Since governmental regulations incorporated by reference the industry standard,

the design satisfied that standard as well. Governmental standards addressed the ability of the

brake to hold on a particular incline. Mallett acknowledged that there was no international

standard in Japan, Australia, Europe, or elsewhere that prohibited the use of operator-adjustable,

over-center park brakes. Similarly, the expert for the manufacturer testified that no

governmental standard in the world prohibited a brake of this type. The evidence also

established that the operator adjustable design was widespread in the industry and that a majority

of trucks sold employed it.

       The plaintiff also presented no evidence concerning the reasonable expectations of a user

or consumer of the product with respect to the operator adjustability of the park brake. To the

extent the record bears any evidence on the subject, it established that operators provided no

negative feedback during the testing phase of the design. The plaintiff did adduce testimony

from Julian Lindsay, an experienced operator, who testified that there was “nothing good” about

designing a park brake that could be “adjusted to zero so that it holds nothing.” The subjective

expectations of a single user, however, are not sufficient to establish the objective, reasonable

expectations of consumers as a class. See, e.g., Norris v. Excel Indus., 139 F. Supp.3d 742, 754

(W.D. Va. 2015), aff’d, 654 Fed. Appx. 588 (2016) (plaintiff failed to prove consumers



                                                 12
reasonably expected a higher level of protection than that called for by existing government and

industry standards); Greene v. Boddie-Noell Enters., 966 F. Supp. 416, 418-19 (W.D. Va. 1997)

(plaintiff failed to show defendant breached a recognizable safety standard expected by

reasonable consumers); Mears v. General Motors Corp., 896 F. Supp. 548, 552-53 (E.D. Va.

1995) (plaintiff failed to prove consumers expected manufacturers to use design advocated by

plaintiff).

        Even if the plaintiff had proved that reasonable consumers expected a design that

prohibited an operator from adjusting the parking brake, she failed to prove that any such design

was safer overall than the operator-adjusted park brake. Evans argues on appeal that the ANSI

standard and the governmental standard incorporating it are “silent on the question of whether a

parking brake should be operator-adjustable.” With respect to industry practices, she notes that,

in 2002, some manufacturers offered lift trucks with parking brakes that were not operator

adjustable. The plaintiff maintained that the design was negligent because an operator could

adjust it. The plaintiff’s theory was that an objectively reasonable design would have prevented

an operator from adjusting the parking brake and thus avoided accidents like this one. Of crucial

significance to the objective reasonableness inquiry, however, the plaintiff presented no evidence

upon which a jury could conclude that a mechanic-adjusted park brake, or a park brake adjusted

with the aid of tools, presented a safer design overall than the operator-adjusted park brake.

Even where a plaintiff can prove that reasonable consumers expected a safer design, we hold that

a design is not objectively unreasonable unless the plaintiff can show that an alternative design is

safer overall than the design used by the manufacturer.

        For example, in Morgen Industries v. Vaughn, the question was whether the design of a

concrete conveyer unit was defective for failing to include wheel guards recommended by




                                                13
industry standards that would have prevented the plaintiff’s foot from being pinned between the

wheel and the rail. 252 Va. at 63-64, 471 S.E.2d at 491. In such cases, where the installation of

a safety device is at issue, if the addition of the safety feature was feasible from an engineering

and economic viewpoint at the time the product left the manufacturer’s hands, and the safety

feature would have prevented the injury or death, the jury may conclude that the product is

unreasonably dangerous. Id. at 65-66, 471 S.E.2d at 492.

       With respect to the modification of a design with safety implications, however, the

plaintiff must establish that the proposed design modification is safer than the design used by the

manufacturer. A design is not safer if the proposed modification would expose operators and

bystanders to an overall greater risk of injury or death than under the challenged design. For

example, although airbags unquestionably save lives, they can expose smaller persons and

children to a risk of injury or death in certain conditions. 4 A hypothetical proposed redesign to

remove the airbag would eliminate this danger to children. It would also, however, result in

greater overall risk of injury or death. Such an alternative redesign is not safer. The plaintiff in

that circumstance would have failed to prove, as a matter of law, that the challenged design is

unreasonably dangerous. “[A] primary purpose of products liability law is to encourage the

design of safer products and thereby reduce the incidence of injuries.” Prentis v. Yale Mfg. Co.,

365 N.W.2d 176, 185 (Mich. 1984). It would stand the tort system on its head if we were to




       4
         See Centers for Disease Control and Prevention, Air-Bag Associated Fatal Injuries to
Infants and Children Riding in Front Passenger Seats – United States, 44 Morbidity and
Mortality Weekly Report 845-47 (Nov. 17, 1995), available at
https://www.cdc.gov/mmwr/preview/mmwrhtml/00039562.htm (last visited January 22, 2018).
See also John D. Graham, et al., Reducing Risks to Children in Vehicles with Passenger Airbags,
102 Pediatrics 1 (1998).


                                                 14
incentivize manufacturers to design products that are less safe, or to punish them for designing

products that are safer overall than the proposed alternatives.

       This accident occurred because employees from a prior shift loosened the park brake.

The employer then placed, in violation of federal law, an uncertified, inexperienced employee on

this same truck. Evans used the truck without noticing that the park brake was disabled and then

parked it on an incline without chocking the wheels. A park brake that is adjustable by a

mechanic only would prevent an accident in this very specific circumstance – shift workers from

a prior shift would not be able to loosen the brake, and an inexperienced, uncertified operator

would thus not face the risk of a loosened park brake. A park brake that is adjustable only with

the aid of tools may reduce the likelihood of operators casually loosening the brake, depending

on the ease or difficulty of making the adjustment. The jury could have concluded that the

plaintiff’s proposed redesigns would have prevented this accident or, at least, reduced the odds of

such an accident occurring. But that is not the end of the analysis.

       The evidence in this case was undisputed from both the plaintiff’s expert and the defense

expert that components of the park brake will wear out over time. Allowing the operator to

adjust the brake allows the brake to work properly without having to take the truck out of

service. Some large industrial customers may have multiple trucks to substitute for the truck that

is out of service. According to the evidence, other customers, such as smaller companies, may

not have any additional trucks to place into service while the truck with weakened brakes is

being serviced off-site. An inescapable consequence of a design that limits brake adjustment to a

mechanic, or that makes it more difficult to adjust the brake by requiring the use of tools, is that

some operators and their employers will continue to use trucks with weakened brakes rather than

take them out of service and face the potential of unproductive downtime.




                                                 15
       Thus, while the jury could have concluded from the evidence that the plaintiff’s proposed

redesign would eliminate, or at least reduce, the likelihood that the type of accident at issue in

this case would occur, there was no evidence from which the jury could conclude that the

plaintiff’s proposed redesign would result in a product that is safer overall. It may be that the

plaintiff’s proposed design is safer overall. It may also be true, however, that operators and

bystanders would face a greater risk of injury under the plaintiff’s redesign than exists under the

current design. Thus, even if plaintiff had proved that reasonable consumers expected a design

that limits brake adjustment to a mechanic, or that makes it more difficult to adjust the brake by

requiring the use of tools, there was no evidentiary basis for a jury to conclude that plaintiff’s

proposed redesign was safer overall.

       Therefore, plaintiff failed to prove that the operator-adjustable, over-center brake was

unreasonably dangerous.

       III.    FAILURE TO WARN CLAIM.

       The plaintiff proposes an alternative theory of liability, arguing the jury instructions, as a

whole, were sufficient for the jury to find that NACCO was negligent in failing to warn users of

the dangers associated with the park brake. The plaintiff suggests the jury could have found the

warnings were “inadequately designed.” We find the argument unpersuasive.

       At the outset, we note that a failure to warn claim is distinct from a manufacturing or a

design defect claim. Our cases reflect this distinction. See Morgen Indus., 252 Va. at 65, 471

S.E.2d at 492 (stating that a product may be unreasonably dangerous based on defects “in

assembly or manufacture, unreasonably dangerous in design, or unaccompanied by adequate

warnings concerning its hazardous properties”); Featherall, 219 Va. at 962-64, 252 S.E.2d at

366-67 (separately analyzing failure to warn and design defect claims). As the Supreme Court of




                                                 16
Missouri has observed, “design defect and failure to warn theories constitute distinct theories

aimed at protecting consumers from dangers that arise in different ways.” Moore v. Ford Motor

Co., 332 S.W.3d 749, 757 (Mo. 2011). A product may be as safe as engineering will permit, and

suffer from no design defect, but nevertheless require a warning to consumers about a hidden

danger. “[D]esign defect theories address the situation in which a design is itself inadequate,

rendering the product unreasonably dangerous without regard to whether a warning is given.”

Id.

                  Failure to warn claims are concerned with how a lack of
                  warning about a product, and the user’s resultant lack of
                  knowledge about the product’s dangers or safe use,
                  may give rise to an unreasonable danger to the
                  consumer. In such a case, it would not be inconsistent
                  for a jury to find that a product’s design is not
                  unreasonably dangerous in itself but that, without an
                  accompanying warning imparting knowledge of the
                  product’s dangerous characteristics or safe use, the
                  otherwise non-defective product is unreasonably
                  dangerous.

Id. See also Battersby v. Boyer, 526 S.E.2d 159, 162 (Ga. Ct. App. 1999). In short, a design

defect is not the same as a failure to warn.

       The jury instructions in this case, drawn from the Virginia Model Jury Instructions,

reflect this distinction. The instructions separated defective design from other theories and the

jury was provided with a verdict form for defective design or breach of implied warranty. The

jury was instructed that a product is unreasonably dangerous in three separate ways: “if it is

defective in assembly or manufacture, unreasonably dangerous in design, or unaccompanied by

adequate warnings concerning its hazardous properties.” 5 This instruction drew a distinction



       5
        See 2 Virginia Model Jury Instructions - Civil, No. 34.076 (definition of unreasonably
dangerous product).



                                                17
between negligent design and inadequate warnings as a basis for liability. The separate

instruction on failure to warn was phrased in terms of a “duty to give an adequate warning” – not

to design a warning. 6

       The finding instruction, number 32, provided as follows:

                       The plaintiff has brought her suit based on both negligent
               design and breach of implied warranty. She may recover under
               either basis of liability.

                       As to the claim of breach of implied warranty, you shall
               find your verdict for the plaintiff and against defendant NACCO
               Materials Handling Group, Inc. if the plaintiff has proved by the
               greater weight of the evidence that:

                         (1) an implied warranty was given by NACCO Materials
                         Handling Group, Inc. when it sold the Hyster S120XMS;

                         (2) NACCO Materials Handling Group, Inc. breached the
                         implied warranty; and

                         (3) NACCO Materials Handling Group, Inc.’s breach of the
                         implied warranty was a proximate cause of Jerry Wayne
                         Evans’ accident and death and of plaintiff’s damages;

                You shall find your verdict on this claim for the defendant if:

                         (1) the plaintiff has failed to prove either, or any of the
                         three elements above; or

                         (2) the implied warranties were properly disclaimed in the
                         sale of the Hyster S120XMS; or

                         (3) you find by the greater weight of the evidence that the
                         operation of the Hyster S120XMS by the plaintiff’s
                         decedent, Jerry Wayne Evans, was a misuse of the product
                         that was not reasonably foreseeable by the defendant, and
                         that the misuse was a proximate cause of the accident.

                       As to the claim of negligent design, you shall find your
               verdict for the plaintiff and against defendant NACCO Materials


       6
         See 2 Virginia Model Jury Instructions - Civil, No. 34.150 (manufacturer’s and seller’s
duty to warn).


                                                   18
               Handling Group, Inc. if the plaintiff has proved by the greater
               weight of the evidence that:

                       (1) NACCO Materials Handling Group, Inc. negligently
                       designed the Hyster S120XMS; and

                     (2) NACCO Materials Handling Group, Inc.’s negligence
                     was a proximate cause of Jerry Wayne Evans’ accident and
                     death, and of plaintiff’s damages;
                You shall find your verdict for defendant on this claim if:

                       (1) the plaintiff has failed to prove either or both of the two
                       elements above; or if

                       (2) you find by the greater weight of the evidence that the
                       plaintiff[‘]s decedent, Jerry Wayne Evans, was
                       contributorily negligent and that his contributory
                       negligence was a proximate cause of the accident.[ 7]

       The verdict form did not provide the jury with an option to find for the plaintiff on a

failure to warn theory. The verdict form provided the jury with only two options to find for the

plaintiff. The first was negligent design. In the context of the facts of this case and of these

instructions, negligent design referred to the design of the park brake – not the design of a

warning. The jury found liability on this basis. The second option for the jury was to find for

the plaintiff on a theory of breach of implied warranty. These instructions, among other things,

instructed the jury that a manufacturer breached an implied warranty if the product was

unreasonably dangerous. 8 A product could be unreasonably dangerous due to a failure to warn.

On these instructions, the jury’s defense verdict on breach of implied warranty, of necessity, was




       7
        See 1 Virginia Model Jury Instructions - Civil, Nos. 3.000 (issues and allocation of
burdens of proof) and 3.050 (finding instruction).
       8
        See 2 Virginia Model Jury Instructions - Civil, No. 34.075 (breach of warranty by seller
or manufacturer).


                                                 19
a defense verdict on the failure to warn. Accordingly, we conclude that the jury rejected the

plaintiff’s failure to warn theory.

                                         CONCLUSION

        We affirm the judgment below on alternative grounds and enter final judgment for the

defendant.

                                                                                        Affirmed.




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