NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 1 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCO CRANE & RIGGING No. 21-15175 COMPANY, an Arizona Corporation, D.C. No. 2:17-cv-01836-GMS Plaintiff-Appellant,

v. MEMORANDUM*

GREENFIELD PRODUCTS, LLC,

Defendant-Appellee,

and

MI-JACK PRODUCTS, INC.; SAF-

HOLLAND INCORPORATED,

Defendants.

MARCO CRANE & RIGGING No. 21-15972 COMPANY, an Arizona Corporation, D.C. No. 2:17-cv-01836-GMS Plaintiff-Appellee,

v.

GREENFIELD PRODUCTS, LLC,

Defendant-Appellant,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 and

MI-JACK PRODUCTS, INC.; SAF-

HOLLAND INCORPORATED,

Defendants.

Appeal from the United States District Court for the District of Arizona G. Murray Snow, Chief District Judge, Presiding

Argued and Submitted May 19, 2022 Pasadena, California

Before: MILLER and COLLINS, Circuit Judges, and KORMAN,** District Judge.

This appeal and cross-appeal arise from a jury trial concerning a single-

vehicle accident involving a mobile crane owned by Marco Crane & Rigging

Company (“Marco Crane”). Marco Crane purchased a model W3-2833 boom dolly

manufactured by Greenfield Products, LLC and attached it to the mobile crane. The

accident, which caused Marco Crane significant economic damages, occurred while

the mobile crane turned onto a freeway entrance ramp.

The jury found Greenfield Products liable on Marco Crane’s Arizona-state

law strict liability claim and calculated Marco Crane’s associated damages to total

$603,523.67. At the same time, the jury found that Marco Crane bore 43% of the

fault for the accident. The district judge reduced Marco Crane’s award to conform

** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. 2 to that verdict.

Marco Crane appeals from the denial of its motions for judgment as a matter

of law on the issue of comparative fault and for prejudgment interest on the jury’s

award. Greenfield Products cross-appeals from the district judge’s decision to allow

Marco Crane to present evidence of other accidents involving Greenfield Products’

boom dollies and of remedial measures Greenfield Products undertook after the

Marco Crane accident. The district court had jurisdiction under 28 U.S.C. § 1332,

and we have jurisdiction under 28 U.S.C. § 1291.

1. We review de novo the denial of a motion for judgment as a matter of law.

Flores v. City of Westminster, 873 F.3d 739, 748 (9th Cir. 2017). Under Arizona

law, “contributory negligence is not a defense to a claim of strict products liability.”

Gosewisch v. Am. Honda Motor Co., 737 P.2d 376, 381 (Ariz. 1987), superseded by

statute on other grounds as stated in Jimenez v. Sears, Roebuck & Co., 904 P.2d

861, 866 (Ariz. 1995). While the Arizona Supreme Court has used varying

formulations to describe “contributory negligence,” its decisions make clear that the

term “is generally defined as conduct of the plaintiff which falls below the standard

to which he is required to conform for his own protection.” Id. at 382; see also

Jimenez, 904 P.2d at 870 (providing that contributory negligence encompasses

“[c]areless and thus improper handling or operation of [a] product”).

Contrary to Greenfield Products’ argument, Arizona’s 1984 adoption and

3 1987 amendment to the Uniform Contribution Among Tortfeasors Act (“UCATA”)

did not make contributory negligence a defense to a strict liability claim. That law

“preserv[ed] [Arizona’s] common-law rule that contributory negligence is not a

defense in strict liability.” Jimenez, 904 P.2d at 867 (citing Ariz. Rev. Stat. § 12-

2509(B)).

The cases upon which Greenfield Products relies, State Farm Insurance Cos.

v. Premier Manufactured Systems, Inc., 172 P.3d 410 (Ariz. 2007), and Zuern v.

Ford Motor Co., 937 P.2d 676 (Ariz. Ct. App. 1996), do not hold otherwise. Those

cases interpreted the UCATA to provide for the reduction of a defendant’s strict

liability due to the negligence of third parties, not that of the plaintiff. See State

Farm, 172 P.3d at 413–16; Zuern, 937 P.2d at 678, 680–82; see also Gosewisch, 737

P.2d at 382.

In this case, the only evidence the district judge or Greenfield Products

identified that could have established Marco Crane’s fault was its employee’s

“negligen[ce] in the manner in which he drove” the mobile crane through the turn at

a speed “that was unreasonable given the circumstances of the turn and the heavy

machinery he was operating.” Such activity does not amount to anything more than

“[c]areless and thus improper handling or operation of the” boom dolly “for a proper

purpose” and thus constitutes “contributory negligence,” which cannot limit

Greenfield Products’ “strict products liability.” Jimenez, 904 P.2d at 865, 870; see

4 also Gosewisch, 737 P.2d at 381. Notably, Greenfield Products does not argue that

Marco Crane’s driver’s actions involved “assumption of risk [or] product misuse,”

the “two affirmative defenses” based on a plaintiff’s conduct that Arizona law

“recognize[s] . . . in products liability” cases. Jimenez, 904 P.2d at 864. Accordingly,

Marco Crane was entitled to judgment as a matter of law on the issue of comparative

fault. See Englehart v. Jeep Corp., 594 P.2d 510, 514 (Ariz. 1979). We remand for

the district judge to award Marco Crane the full amount of damages the jury

calculated.

2. “State law governs prejudgment interest in a diversity action.” Westport

Ins. Co. v. Cal. Cas. Mgmt. Co., 916 F.3d 769, 781 (9th Cir. 2019). “Under [Arizona]

law, prejudgment interest on a liquidated claim is a matter of right in an action on a

contract or in tort. But prejudgment interest is generally not awardable on

unliquidated claims.” Metzler v. BCI Coca-Cola Bottling Co. of L.A., 329 P.3d 1043,

1046 (Ariz. 2014) (internal citations, alterations, and quotation marks omitted); see

also Ariz. Rev. Stat. § 44-1201(D)(1). “A claim is liquidated if the evidence

furnishes data which, if believed, makes it possible to compute the amount with

exactness, without reliance upon opinion or discretion.” Stenz v. Indus. Comm’n of

Ariz., 353 P.3d 361, 363 (Ariz. 2015) (citation omitted). In cases where a jury grants

an award on a liability claim that contained discrete claims for damages—some

liquidated, some unliquidated—the prevailing party is entitled to prejudgment

5 interest on any portion of the award that a court can determine represents an award

for the liquidated damages. See Precision Heavy Haul, Inc. v. Trail King Indus., Inc.,

228 P.3d 895, 899 (Ariz. Ct. App. 2010).

We review the district court’s denial of a motion for prejudgment interest for

abuse of discretion. Westport Ins., 916 F.3d at 781. The district court refused to

award Marco Crane prejudgment interest on any portion of the jury’s strict-liability

award because it said it could not determine what percentage of the award

represented liquidated damages. But the parties appear to agree that Marco Crane

asserted only $323,935.06 in unliquidated damages on the strict-liability claim. Even

if the jury found that Marco Crane suffered all of the unliquidated damages, the

remainder of the award would represent liquidated damages on which Marco Crane

would be entitled to prejudgment interest. That “the amount of [liquidated] damages

[Marco Crane] claimed differs from the amount ultimately awarded does not

preclude an award of prejudgment interest.” Paul R. Peterson Const., Inc. v. Ariz.

State Carpenters Health & Welfare Tr. Fund, 880 P.2d 694, 705 (Ariz. Ct. App.

1994). We therefore vacate the denial of Marco Crane’s motion for prejudgment

interest. We remand for the district judge to award interest on the portion of the

jury’s strict-liability award that represents liquidated damages and to determine (a)

the date from which interest should begin to accrue on that portion of the award and

(b) the applicable interest rate under Arizona Revised Statutes section 44-1201.

6 Marco Crane is also entitled to prejudgment interest on the unliquidated

portion of the jury’s award from the date of the verdict because any “obligation

[usually] becomes liquidated on the rendition of a verdict in a sum certain.” Borrow

v. El Dorado Lodge, Inc., 254 P.2d 1027, 1029 (Ariz. 1953); see also Ariz. Rev. Stat.

§ 12-347; Hall v. Schulte, 836 P.2d 989, 994 (Ariz. Ct. App. 1992). The district judge

should also determine the rate of this interest on remand.

3. Consistent with the Federal Rules of Evidence’s admonishment that a court

may admit only relevant evidence, see Fed. R. Evid. 402, we require “[a] showing

of substantial similarity . . . when a plaintiff attempts to introduce evidence of other

accidents as direct proof of negligence, a design defect, or notice of the defect.”

Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991). At

trial, the district judge allowed Marco Crane to present evidence of other accidents

involving Greenfield Products’ W3 boom dollies without first determining whether

those other accidents were substantially similar to the one Marco Crane experienced.

Greenfield Products argues that this evidence was erroneously admitted and that the

error requires a new trial.

Greenfield Products must establish two propositions to prevail on this aspect

of its appeal. First, it must demonstrate that Marco Crane “introduce[d] evidence of

other accidents as direct proof of . . . a design defect” of the W3 or “notice of the

defect,” and not for some other, permissible purpose. Cooper, 945 F.2d at 1105.

7 Second, Greenfield Products must establish that the other accidents at issue were

indeed not “substantial[ly] similar[]” to Marco Crane’s accident such that their

admission was improper. Id. Greenfield Products, however, dedicated its briefing

solely to the first issue and said almost nothing about the second. Greenfield

Products has thus failed to carry its “burden [to] affirmatively show[] error,” United

States v. Jeremiah, 493 F.3d 1042, 1046 (9th Cir. 2007) (citation omitted), and,

accordingly, we affirm the admission of the other accidents evidence.

4. Evidence of “measures . . . that would have made an earlier injury or harm

less likely to occur” is “not admissible to prove . . . a defect in a product or its

design.” Fed. R. Evid. 407. At trial, Marco Crane presented evidence that, when

another company experienced a tip-over accident with a Greenfield Products W3

after Marco Crane’s accident, Greenfield Products altered the design of the W3

purchased by the other company “[t]o reduce the likelihood of a rollover or tip-over

on a turn.” Marco Crane also elicited testimony from its expert that this “fix”

addressed “th[e] propensity to tip over that the W3 design originally had.”

Greenfield Products argues that this evidence was improperly admitted and its

admission requires a new trial.

Yet Greenfield Products did not preserve its challenge to the admission of

this evidence. Greenfield Products did not make a “specific” contemporaneous

objection to the admission of this evidence at trial, nor did it receive a

8 “definitive[]” pretrial ruling on its admissibility. Fed. R. Evid. 103; see Jerden v.

Amstutz, 430 F.3d 1231, 1236–37 (9th Cir. 2005); Palmerin v. City of Riverside,

794 F.2d 1409, 1413 (9th Cir. 1986). The district judge did rule in limine that

Marco Crane could reference subsequent remedial measures in its opening

statement. That ruling, however, was premised on Greenfield Products’ plan to

assert a state-of-the-art defense, and Greenfield Products subsequently withdrew

this defense before trial. With that defense withdrawn, the district judge’s in

limine ruling could not be described as “definitive.” Palmerin, 794 F.2d at 1413.

Greenfield Products had no reason to “expect [the] district court to adhere to its

earlier ruling” that the subsequent remedial measures evidence would be admissible,

and it thus needed to object when that evidence was introduced at trial to preserve

its challenge. City of Pomona v. SQM N. Am. Corp., 866 F.3d 1060, 1070 (9th Cir.

2017) (citation omitted).

We review unpreserved errors for plain error. Tan Lam v. City of Los Banos,

976 F.3d 986, 1006 (9th Cir. 2020) (citing Fed. R. Evid. 103(e)). The appellant “has

the burden of establishing each . . . requirement[] for plain-error relief.” Greer v.

United States, 141 S. Ct. 2090, 2097 (2021); see also Guam v. Marquez, 963 F.2d

1311, 1315 (9th Cir. 1992). Greenfield Products does not advance any argument

explaining how the admission of the subsequent remedial measures meets the plain

error standard.

9 REVERSED in part, VACATED in part, AFFIRMED in part, and

REMANDED.

10