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


Hardin sustained injuries in an on-the-job accident caused by a defective push-pull jack. He then brought a products liability suit against Manitowoc-Forsythe and Columbus.

  • Manitowoc made the crane.
  • Columbus made the jack.

Side notes:

  • Lummus was a wholly-owned subsidiary that leased the items, but not included in the suit.
  • Combustion was Hardin’s employer and immune from suit.


This was a comparative negligence jurisdiction, and at trial, the judge instructed the jury to assess the fault of the following three companies as “phantom parties” (persons who share in potential liability, but had not been sued as defendants):

1. Combustion

2. Manitowoc Engineering

3. Lummus

Hardin objected but was overruled: The issue of fault of Manitowoc and Lummus was tried by implied consent and thus treated as if it had been raised by the pleadings:

  • Hardin called a Manitowoc employee to the stand himself and pursued the issue of their fault!
  • Some evidence of the phantom parties’ fault had already been presented during trial, and by not objecting then, Hardin impliedly consented.

The jury then allocated fault as follows:

  • Columbus (defendant): 13.5%
  • Manitowoc-Forsythe (defendant): 0%
  • Plaintiff: 20%
  • Combustion (phantom): 45%
  • Manitowoc Engineering (phantom): 9%
  • Lummus (phantom): 12.5%

Damages amounted to $150,000 and Hardin only received $20,250. (13.5% of $150,000 from Columbus.)


Was there consent for each of the phantom parties?


No. New trial.


  • Regarding Manitowoc Engineering, the court held that the Hardin received information well in advance of trial which should have made him aware that its fault was an issue.
    • Over a year before trial, Hardin took the deposition of an employee of Manitowoc Engineering, which ordered the jack. They also supplied a general specifications, but didn’t specify safety stops or place warning on the jack.
      • Those are necessary elements of fault for products liability.
      • Hardin’s “claim of surprise is unreasonable.”
  • However, Lummus company was wrongfully included and Hardin was a denied a fair opportunity to defend against the theory that they were at fault.
    • The only evidence related to them was how the jack arrived to the worksite.
    • The defendants didn’t even give any indication that they intended to make an issue of Lummus’ fault.