Judith Wurster v. The Plastics Group, Inc.

James Wurster (“Mr. Wurster”) suffered fatal burns when a gas can

manufactured by Appellee The Plastics Group, Inc. (“TPG”) exploded as he was

burning garbage on his farm in Iowa. His wife, Judith Wurster (“Mrs. Wurster”),

filed suit, both in her personal capacity and in representative capacity for the estate

and heirs-at-law, against TPG. After trial, a jury rendered a take-nothing verdict

under Iowa’s comparative fault scheme, finding TPG forty-five percent at fault for

Mr. Wurster’s death due to its failure to provide adequate warnings on the gas can

and apportioning the balance of the fault to Mr. Wurster. See Iowa Code § 668.3(1).

Mrs. Wurster appeals, asserting the district court 1 erred by (1) refusing to give her

proposed design defect instruction; (2) instructing the jury on reasonable alternative

design; (3) including two separate assumption of risk instructions; and (4) granting

judgment as a matter of law on her post-sale failure-to-warn claim. We affirm.

I. Background

In the late morning of February 8, 2013, Mr. Wurster stood in the backyard of

his farmhouse in Lenox, Iowa, attempting to burn some trash in a burn barrel. As a

fire or embers burned inside the barrel, Mr. Wurster poured gasoline from a gas can

into the barrel. This caused a flame to travel up the stream of gasoline into the can.

Vapors inside the can ignited, and the can exploded.

When Mrs. Wurster heard the explosion, she rushed outside to see her husband

on fire, running toward her, and pleading for help. By the time they were able to

extinguish the fire, it had burned most of Mr. Wurster’s clothing and skin. Despite

his injuries, Mr. Wurster was lucid and coherent. He let a responding officer inside

the farmhouse and told the officer “he had been in the process of starting a fire to

burn some scraps around the yard area there and a gas can exploded and that’s what

caused the injuries.”

Mr. Wurster was rushed by helicopter to a hospital in Iowa City. When Mrs.

Wurster arrived at the hospital, she was told that her husband’s injuries were fatal,

would inevitably lead to systemic organ failure, and that the only care that medical

1The Honorable Charles R. Wolle, United States District Judge for the Southern

District of Iowa.

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staff could provide was to keep Mr. Wurster as comfortable as possible. Mr. Wurster

died the next day with his wife and some of his children by his side.

The gas can used by Mr. Wurster was a Model W520 can that TPG

manufactured in November 2000 under the brand name Wedco. It is unknown when

and where the Wursters purchased the can. Embossed on one side of the can was a

warning:

GASOLINE

DANGER – FLAMMABLE

EXTREMELY FLAMMABLE – VAPORS CAN EXPLODE

. . .

CAUTION: . . . VAPORS CAN BE IGNITED BY A SPARK

OR FLAME SOURCE MANY FEET AWAY – KEEP AWAY

FROM FLAME . . . AND OTHER SOURCES OF IGNITION –

KEEP CONTAINER CLOSED

The can had a removable front pouring nozzle that contained a debris screen. The

debris screen functioned as a flame arrester. A flame arrester is a mesh screen that

allows air and liquid—but not sparks and flames—to pass through. The can had a

vent hole in the back that was not protected by a mesh screen. The experts who

testified at trial did not agree on whether Mr. Wurster had poured gas out of the main

hole of the can after removing the nozzle or out of the rear vent hole.

The possibility of fire while using a gas can has been known for over a century,

and efforts to avoid such fires by use of a flame arrester can design date to at least a

patent in 1871. Safety organizations and Consumer Reports have urged the industry

to take precautions to protect against explosions caused by the lack of a flame arrester

since the 1970s. By the time the can in question was manufactured, many of TPG’s

competitors were manufacturing cans that included flame arresters. TPG could have

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added a basket-type flame arrester to its gas cans for as little as five to ten cents per

can.

TPG acknowledged at trial that while it was aware of the possibility that

explosions could be caused by the lack of flame arresters by at least 2006, it provided

no post-sale warnings to previous purchasers of its cans. They did, however, change

the warning label on newly manufactured cans. A TPG representative explained the

company does not make retail sales of its products and had no way of identifying

where Mr. Wurster purchased the can or whether he was the original purchaser.

While TPG was aware of which big box retailers it sold its products to, it had no way

of knowing which particular stores sold the W520 gas can.

This appeal focuses primarily on the court’s jury instructions. The case was

tried to a jury on a negligence theory, with the jury being instructed on two

specifications of negligence requested by Mrs. Wurster. Instruction No. 12 stated that

in order to prevail on the negligence claim, Mrs. Wurster must prove TPG was

negligent in (1) its “design of its gas cans” and/or (2) its “failure to provide adequate

gas can warnings.”

Instruction Nos. 13 and 18 are the assumption of risk instructions at issue in

this appeal. Instruction No. 13 read:

TPG claims that James Wurster was at fault by being negligent.

In order to prove this claim, it must prove

1. James Wurster was negligent in one or more of the following

ways:

a. misuse of the gas can by attempting to pour gasoline on

a fire;

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b. misuse of the gas can by attempting to pour gasoline

from the vent hole; and

c. unreasonable assumption of the risk.

2. James Wurster’s fault was a cause of plaintiffs’ damage.

If TPG failed to prove either of these propositions, TPG has not

proved its defense. If TPG has proved both of these propositions, then

you will assign a percentage of fault against James Wurster and include

his fault in the total percentage of fault found by you in answering the

special verdicts.

Instruction No. 18 read:

TPG claims that James Wurster unreasonably assumed the risk by

pouring gasoline onto the fire or using the vent hole to pour gasoline.

To prove this defense, TPG must prove all of the following

propositions:

1. James Wurster knew the risk was present.

2. James Wurster understood the nature of the risk to himself.

3. Nevertheless, James Wurster unreasonably, freely, and

voluntarily took the risk.

4. James Wurster’s assumption of the risk was a cause of

plaintiffs’ damage.

If TPG has failed to prove any of these propositions, it has not

proved this defense. If TPG has proved all these propositions, then you

will assign a percentage of fault against James Wurster and include it in

the total percentage of fault, if any, found by you in your answers to the

special verdicts.

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Mrs. Wurster objected unsuccessfully to submitting assumption of risk both as a

negligence factor in the comparative fault instruction and as a separate instruction.

Mrs. Wurster proposed a jury instruction based upon Iowa Civil Jury

Instruction 1000.2, which is titled “Design Defect - Essentials for Recovery.” At the

instructions conference, the court proposed a modified version of Mrs. Wurster’s

proposed instruction as Jury Instruction No. 14. The court’s proposed instruction was

substantially similar to Mrs. Wurster’s except for its mention of strict products

liability in the preamble:

Plaintiffs claim TPG was at fault under a theory of strict products

liability. In order to prove a claim of design defect, they must prove all

of the following propositions:

1. TPG manufactured the gas can,

2. TPG was engaged in the business of manufacturing gas cans,

3. The gas can did not comply with the state of the art at the time

of its manufacture,

4. The gas can was in a defective condition at the time it left

TPG’s control, in that it lacked flame arrestors on all openings.

5. A reasonable alternative safer design could have been

practically adopted at the time of sale or distribution.

6. The alternative design would have reduced or avoided the

foreseeable risks of harm posed by the gas can.

7. The omission of the alternative design renders the gas can not

reasonably safe.

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8. The alternative design would have reduced or prevented

plaintiffs’ harm.

[9]. The amount of damage.

If plaintiffs failed to prove any of these propositions, they are not

entitled to damages on this theory of recovery. If plaintiffs have proved

all of these propositions, then you will consider the defense of

comparative fault.

Counsel for TPG objected to the mention of strict products liability, arguing defective

design under Iowa law is a negligence concept, and suggested the words “strict

products liability” be replaced with “defective design.” When Mrs. Wurster’s counsel

insisted the “instruction is not a negligence instruction, and it would be error to give

it if the court is not giving a strict products liability instruction,” the court decided not

to give Jury Instruction No. 14.

Both parties proposed a reasonable alternative design instruction based on Iowa

Civil Jury Instruction 1000.4, which is the counterpart to—and specifically

references—Iowa Civil Jury Instruction 1000.2. During the instructions conference,

Mrs. Wurster’s attorney argued the court could not give Instruction No. 15—the

court’s modified version of her proposed reasonable alternative design instruction—if

it did not also give Instruction No. 14. The court overruled the objection, responding

“15 is needed for the question of design negligence.” Instruction No. 15 instructed

the jury to consider a list of several factors “to determine whether an alternative

design is reasonable and whether its omission renders the gas can not reasonably

safe.”

At the conclusion of the evidence, the court granted TPG’s motion for

judgment as a matter of law on Mrs. Wurster’s post-sale failure-to-warn claim. On

April 12, 2017, the jury returned a special verdict, finding TPG did not sell a

defectively designed gas can but TPG did fail to provide adequate warnings on the

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gas can. The jury determined TPG was forty-five percent at fault for Mr. Wurster’s

injuries and Mr. Wurster was fifty-five percent at fault. Pursuant to the Iowa

Comparative Fault Act, judgment was entered for TPG.2 The court denied Mrs.

Wurster’s motion for a new trial.

II. Discussion

A. Jury Instructions

Mrs. Wurster asserts the district court’s jury instructions erroneously

emphasized Mr. Wurster’s alleged fault and failed to present what she perceives to

be her primary claim. We review for abuse of discretion a court’s jury instructions.

Brown v. Sandals Resorts Int’l, 284 F.3d 949, 953 (8th Cir. 2002). The district court

has broad discretion in formulating jury instructions. Id. (quoting B&B Hardware,

Inc. v. Hargis Indus., 252 F.3d 1010, 1012 (8th Cir. 2001)). The instructions “taken

as a whole” must “fairly and adequately represent the evidence and applicable law in

light of the issues presented to the jury in a particular case.” Id. (quoting Ford v.

GACS, Inc., 265 F.3d 670, 679 (8th Cir. 2001)). We have noted that jury instructions

need not be “technically perfect or even a model of clarity.” Id. (quoting B&B

Hardware, 252 F.3d at 1012). When reviewing a district court’s refusal to adopt a

proposed instruction, we consider a three-part test: “the proposed instruction must (1)

correctly state the applicable law; (2) address matters not adequately covered by the

charge; and (3) involve a point ‘so important that failure to give the instruction

seriously impaired the party’s ability to present an effective case.’” Cox v. Dubuque

Bank & Tr. Co., 163 F.3d 492, 496 (8th Cir. 1998) (quoting Thomlison v. City of

Omaha, 63 F.3d 786, 791 (8th Cir. 1995)).

2Iowa Code § 668.3(1) states, “Contributory fault shall not bar recovery . . .

unless the claimant bears a greater percentage of fault than the combined percentage

of fault attributed to the defendants, . . . but any damages allowed shall be diminished

in proportion to the amount of fault attributable to the claimant.”

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i. Design Defect Instruction

Mrs. Wurster first contends the district court committed reversible error by

failing to provide a design defect instruction based on Iowa Civil Jury Instruction No.

1000.2. She asserts the court should have given either her proposed instruction or the

court’s proposed Instruction No. 14. Under Iowa law, Mrs. Wurster was not entitled

to submit both a negligence claim and a strict liability claim to the jury based on the

same design defect. The Iowa Supreme Court has held that “a court should not

submit both a negligence claim and a strict liability claim based on the same design

defect since both claims rest on an identical risk-utility evaluation.” Wright v.

Brooke Grp. Ltd., 652 N.W.2d 159, 169 (Iowa 2002) (citation omitted).3 The Iowa

Supreme Court has also held that design defect claims are not strict liability claims.

Scott v. Dutton-Lainson Co., 774 N.W.2d 501, 505 (Iowa 2009). See also Wright,

652 N.W.2d at 168 (“The Products Restatement demonstrates a recognition that strict

liability is appropriate in manufacturing defect cases, but negligence principles are

more suitable for other defective product cases.”). The court properly declined to

give Instruction No. 14 because the proposed instruction as drafted was inconsistent

with Iowa law.

Mrs. Wurster’s claim that she was denied the opportunity to present her design

defect claim is equally unavailing. While an instruction based on Iowa Civil Jury

Instruction 1000.2 might have set forth the design defect claim more clearly than the

3Mrs. Wurster argues our decision in McGuire v. Davidson Mfg. Corp., 398

F.3d 1005 (8th Cir. 2005), allows a plaintiff, post-Wright, to bring both claims.

McGuire is inapposite. In McGuire, whether a plaintiff can bring both a product

defect claim and negligence claim for the same defect was not before the court.

Instead, under plain-error review, we concluded that while conformance with the state

of the art is a complete defense under Iowa law to product-defect claims, the Iowa

Supreme Court “would likely find that proof of the state-of-the-art defense does not

automatically exonerate a defendant from liability for general negligence.” Id. at

1010.

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court’s final instructions did, the claim and its elements were presented to the jury in

the court’s instructions. Instruction No. 12 included design defect as one of two

specifications of negligence and explained that TPG’s negligence must have been a

cause of Mr. Wurster’s injuries. Instruction No. 11 instructed that negligence is the

“failure to use ordinary care . . . which a reasonably careful person would use under

similar circumstances.” Instruction No. 15 provided a list of factors to guide the

jury’s consideration of negligent design, which involved a determination of “whether

an alternative design [was] reasonable and whether its omission render[ed] the gas

can not reasonably safe” based on “the foreseeable risks of harm.” Looking to the

instructions as a whole, as we must, Mrs. Wurster’s design defect claim was

sufficiently presented to the jury. The court did not abuse its discretion.

ii. Reasonable Alternative Design Instruction

Mrs. Wurster next argues the district court erred when it instructed the jury on

reasonable alternative design in Instruction No. 15 despite declining to give

Instruction No. 14 or her proposed design defect instruction. Instruction No. 15 was

based on Iowa Civil Jury Instruction No. 1000.4, which Mrs. Wurster—citing no

authority—asserts cannot be given without Iowa Civil Jury Instruction No. 1000.2.

To the contrary, “[i]n the exercise of [a court’s] broad discretion [in forming jury

instructions], state-mandated instruction forms may be given in their entirety or mixed

with other instructions that the district judge feels are appropriate.” Chohlis v.

Cessna Aircraft Co., 760 F.2d 901, 904 (8th Cir. 1985).

Mrs. Wurster also argues that by “giving Instruction No. 15 without its partner

instruction, the court created chaos in the instructions” and told the jury “what factors

to consider when deciding an issue that the instructions never presented to the jury

to decide.” We disagree. The court instructed the jury on design defect based on a

negligence theory in Instruction No. 12. Instruction No. 15 pertained to whether TPG

acted reasonably by not using an alternative design for its gas cans. The instruction

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was necessary to provide the jury with the proper factors for conducting the

risk-utility test required for design defect claims. The court did not err by instructing

the jury on reasonable alternative design.

iii. Assumption of Risk Instructions

Mrs. Wurster’s final challenge to the jury instructions involves the district

court’s inclusion of assumption of risk as both a species of fault in the comparative

fault instruction and as a separate instruction. Mrs. Wurster argues the instructions

unduly emphasized her husband’s alleged fault and violated the Iowa Supreme

Court’s decision in Coker v. Abell-Howe Co., 491 N.W.2d 143 (Iowa 1992), in which

the court held “assumption of risk may not be pleaded or instructed upon as a separate

defense in cases in which contributory negligence is an available defense under the

Iowa Comparative Fault Act . . .” Id. at 148.

Here, the district court instructed the jury in a manner somewhat inconsistent

with Coker. The court included assumption of risk as a species of fault in Instruction

No. 13, identifying assumption of risk as one of three ways in which Mr. Wurster was

allegedly negligent. The instruction further directed the jury to assign fault against

Mr. Wurster if the evidence established the unreasonable assumption of risk caused

his injuries. The district court then gave a separate assumption of risk instruction in

Instruction No. 18. The instruction stated, “TPG claims that [Mr.] Wurster

unreasonably assumed the risk by pouring gasoline onto the fire or using the vent

hole to pour gasoline. To prove this defense, TPG must prove all of the following

propositions.” The instruction listed the four elements of assumption of risk and then

instructed the jury, “If TPG has failed to prove any of these propositions, it has not

proved this defense.” The instruction’s use of the phrase “this defense” appears at

first blush to present the assumption of risk doctrine as both a species of fault and a

separate defense.

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This view fails, however, to take into account the final director, which simply

directs the jury to apportion such fault as may have been caused by the unreasonable

assumption of risk. In context, the instruction is simply a definition setting forth the

elements of an unreasonable assumption of risk. The inclusion of the phrase “this

defense,” while unfortunate, does not direct the jury to do anything other than what

it was directed to do in Instruction No. 13. The instruction provided a necessary

definition of assumption of risk that was otherwise absent from the jury instructions.

While the instructions are no model of clarity, our review of the record

demonstrates no prejudice. During closing argument, Mrs. Wurster’s counsel argued

to the jury that there was no doubt about the facts and there was no doubt the fixes

were easy. Counsel told the jurors that looking at the instructions would “lead [the

jurors] home and allow [them] to reach a fair verdict in the case.” He highlighted

certain jury instructions, including No. 12 that required Mrs. Wurster to prove either

design defect or failure to provide adequate warnings, not both claims. Counsel for

both sides discussed extensively allocation of fault. Mrs. Wurster focused on the lack

of a flame arrester and the inexpensive and simple fixes available. TPG directed the

jury’s attention to evidence suggesting misuse. Mrs. Wurster’s counsel went through

the questions on the special verdict form in detail with the jury, suggesting to the jury

the appropriate answers to certain questions. The jury was well informed about the

issues involved in the case and nothing in the jury instructions precluded Mrs.

Wurster from fairly presenting or arguing her claims. Under the circumstances, we

find no prejudice. See Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 720 (8th Cir.

2008) (citing Burry v. Eustis Plumbing & Heating, Inc., 243 F.3d 432, 434 (8th Cir.

2001)) (“Reversal is only warranted if a party’s substantial rights are prejudiced by

instructional error.”).

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B. Post-Sale Failure-to-Warn Claim

Mrs. Wurster argues the district court erred when it granted judgment as a

matter of law for TPG on her post-sale failure-to-warn claim. We review a district

court’s grant of judgment as a matter of law de novo, “viewing the evidence in the

light most favorable to the nonmoving party while giving that party the benefit of all

reasonable inferences.” Children’s Broad. Corp. v. Walt Disney Co., 245 F.3d 1008,

1015 (8th Cir. 2001) (citation omitted). Judgment as a matter of law is appropriate

only when “all of the evidence points one way and is ‘susceptible of no reasonable

inference sustaining the position of the nonmoving party.’” Stults v. Am. Pop Corn

Co., 815 F.3d 409, 418 (8th Cir. 2016) (quoting Howard v. Mo. Bone & Joint Ctr.,

Inc., 615 F.3d 991, 995 (8th Cir. 2010)).



Iowa has adopted the four factors found in the Restatement (Third) of Torts:

Product Liability § 10 as the elements of a post-sale failure-to-warn claim:

(a) One engaged in the business of selling or otherwise distributing

products is subject to liability for harm to persons or property caused by

the seller’s failure to provide a warning after the time of sale or

distribution of a product if a reasonable person in the seller’s position

would provide such a warning.

(b) A reasonable person in the seller’s position would provide a warning

after the time of sale if:

(1) the seller knows or reasonably should know that the product

poses a substantial risk of harm to persons or property; and

(2) those to whom a warning might be provided can be identified

and can reasonably be assumed to be unaware of the risk of harm;

and

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(3) a warning can be effectively communicated to and acted on by

those to whom a warning might be provided; and

(4) the risk of harm is sufficiently great to justify the burden of

providing a warning.



Lovick v. Wil-Rich, 588 N.W.2d 688, 694 (Iowa 1999) (quoting Restatement (Third)

of Torts: Products Liability § 10 (Am. Law Inst. 1997)). “Normally, . . . the jury

determines whether a warning of product danger should have been given,” but “the

particular circumstances of a case may permit a trial court to utilize the [Restatement]

factors to determine as a matter of law no duty existed.” Id. at 696 (citations

omitted).

We agree with the district court that Mrs. Wurster presented insufficient

evidence to show TPG had a post-sale duty to warn consumers of the danger posed

by its W520 gas cans. It is clear from the record TPG lacked the ability to identify

the Wursters—or any other individuals—as users of the gas can. While TPG knew

which big box store companies it sold gas cans to, it had no way of knowing which

individual stores—in Iowa or elsewhere—were retailing the W520 gas can, as

individual stores were given the ability to choose whether to carry TPG’s products.

Without a direct relationship with users of its gas cans, TPG had no way of

determining who purchased the cans and who should have been warned.

“Records [that] indicate classes of product users, or geographically limited

markets” may be sufficient where records of “[i]ndividual names and addresses” do

not exist. Restatement (Third) of Torts: Products Liability § 10 cmt. e. “But when

no such records are available, the seller’s inability to identify those for whom

warnings would be useful may properly prevent a post-sale duty to warn from

arising.” Id. Based on the evidence presented at trial, Mr. Wurster was simply a

“member of a universe too diffuse and too large for manufacturers or sellers [like

TPG] . . . to identify” or warn. Robinson v. S.D. Brandtjen & Kluge, Inc., 500 F.3d

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691, 698 (8th Cir. 2007) (quoting Lewis v. Ariens Co., 751 N.E.2d 862, 867 (Mass.

2001)). The district court did not err by granting judgment as a matter of law for

TPG.

For the foregoing reasons, we affirm the judgment of the district court.

Editor's Comment: It appears that Plaintiff may have settled part of her case before trial with Dow Chemical Canada.