Klein v. R. D. Werner Co‪.‬

This is a products liability action wherein a jury determined that R. D. Werner Company, Inc., petitioner, was liable to the respondents for injuries received when a scaffolding plank on which Norman Klein, Eugene Romine and Donald Wiediger were standing collapsed and that each of them had assumed the risk of their injuries by 75 percent. Respondents appealed the reduced award. Petitioner did not cross-appeal on the issue of liability nor request a new trial in the event the appellate court reversed the assumption of risk theory. Accordingly, the only issue on appeal is whether there was substantial evidence of assumption of risk to warrant submitting that issue to the jury. The Court of Appeals in an unpublished opinion held that instructing on assumption of risk was error and reinstated the full amount of the jury award. We affirm.