## Facts

- Darel K. Hardin, a Combustion Engineering employee, was injured at work while using a push-pull jack attached to a crane.
- The crane was manufactured by Manitowoc Engineering (a division of Manitowoc Company, Inc.), ordered by Manitowoc-Forsythe, allegedly sold to Lummus Company, and leased by Lummus to Combustion Engineering.
- The push-pull jack was manufactured by Columbus McKinnon Corporation.
- Hardin sued Manitowoc-Forsythe and Columbus McKinnon on a products-liability theory alleging defective design, but did not sue Combustion Engineering (employer), Lummus, or the Manitowoc manufacturing entities.
- Defendants contended in the pretrial order that fault of other actors contributed to the accident and should be compared in assessing liability.
- After the pretrial order, Manitowoc-Forsythe moved to compare the fault of all persons shown by the evidence to be causally responsible; the district court allowed comparison of nonparty fault under Kansas law.
- Hardin opposed comparison on the ground that Kansas law did not permit comparative fault in strict-liability cases; he did not object on notice or pleading grounds at that time.
- Hardin deposed and called as a witness Malcolm Fell, a Manitowoc Engineering employee, whose testimony tended to support attributing fault to Manitowoc Engineering.
- At the close of evidence, the court instructed the jury to allocate fault among Hardin, the named defendants, and “phantom” nonparties, including Combustion Engineering, Manitowoc Engineering, and Lummus; Hardin objected to including the phantom parties.
- The jury found $150,000 in total damages and apportioned fault: Hardin 20%; Manitowoc-Forsythe 0%; Columbus McKinnon 13.5%; Combustion Engineering 45%; Manitowoc Engineering 9%; Lummus 12.5%.
- Judgment was entered only against Columbus McKinnon for $20,250 (13.5% of damages).

## Issues

1. Under the Kansas Comparative Negligence Act, may a jury in a products-liability action allocate fault to nonparties, including immune or unjoined actors, for purposes of determining the named defendants’ shares?
2. Under Federal Rule of Civil Procedure 15(b), did the district court abuse its discretion by treating the fault of phantom parties as tried by consent and submitting them to the jury despite Hardin’s objection, particularly as to Lummus?

## Decision

- The Tenth Circuit held that Kansas comparative fault law permits allocating fault to nonparties (including immune and unjoined actors) in products-liability cases.
- The court affirmed the district court’s use of Rule 15(b) as to submission of Manitowoc Engineering’s fault, finding the issue was tried by implied consent given Hardin’s discovery and trial presentation.
- The court held the district court abused its discretion in treating Lummus’s fault as tried by consent because Hardin lacked adequate notice that Lummus’s independent fault was being litigated.
- Because the improper inclusion of Lummus could have affected the interdependent fault percentages and the resulting recovery, the court reversed and remanded for a new trial.

## Legal Principles

- Kansas comparative fault allocates responsibility among all persons whose conduct contributed to the injury, including nonparties and entities immune from suit; allocation to such persons reduces the named defendants’ percentage shares even though no judgment is entered against the nonparties.
- In diversity cases, state comparative fault rules govern substantive allocation of fault, while federal procedural rules govern pleading and amendment practice.
- Rule 15(b) allows amendment to conform to the evidence only when the unpleaded issue is tried by the parties’ express or implied consent; implied consent requires fair notice and an opportunity to litigate the issue.
- A court may not infer implied consent where a party is effectively surprised by the injection of a new issue and timely objects to its submission to the jury.

## Conclusion

The court recognized broad nonparty fault allocation under Kansas law in products-liability actions, but required strict satisfaction of Rule 15(b)’s notice-and-consent standard before adding a phantom party’s fault for jury allocation; inadequate notice as to Lummus required a new trial.


Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449 (10th Cir. 1982)