*1 ROJAS, Sr., individually, Pedro Del Rojas, ad litem for Guardian Pedro
Jr., Minor, Plaintiff-Appellant,
LINDSAY MANUFACTURING COMPA-
NY, foreign corporation, and John through
Does Nos. 1 Defendant-Re-
spondent, Marshall,
Kenneth Defendant.
No. 15244.
Supreme Court of Idaho.
April Annest, Burley, plaintiff-appel- for
James lant. Ramsden, Boise, defend-
Michael E. for ant-respondent.
HUNTLEY, Justice. Sr., brought an Rojas, Del had
Pedro
personal injuries against
action for
company was liable
alleging that the
son,
by his
injuries sustained
entangled in an
Jr., when the son became
Zimmatic Cen-
of a
unguarded drive-shaft
(hereinafter
System
Irrigation
Pivot
ter
*2
system, upon the
distributor of the
by
manufactured
er and
irrigation system”)
“the
liability and
theories of strict
alternative
Lindsay.
second
opening
At the
of the
negligence.
the trial court erred
Rojas argues that
Rojas entered
Marshall and
day of
instructions,
improperly
giving certain
case
agreement and the
into a settlement
evidence,
im-
by permitting
commenting on
Lindsay. The case was
proceeded against
counsel, and
proper
by Lindsay’s
comment
jury upon special verdict.
submitted to the
He
by failing to admit certain evidence.
Lindsay and
jury found in favor of
The
jury’s
that the
verdict was
also contends
fixing
negligence of Ro-
Rojas,
the
against
supported by the evidence.
not
20%,
0%, Lindsay
Sr.,
boy at
at
jas,
the
at
Sr.,
22, 1975,
Rojas,
Pedro
his
On June
and Marshall at 80%.
0%
itinerant
family and the families of other
Rojas’
address
contention
Kenneth Mar-
We first
employed by
workers were
giving
erred in
serviced
that the trial court
crop
shall to thin a beet
in a field
and Instruction 21.
irrigation system.
sys-
The
Instruction 19
Lindsay
the
the
thin-
operating
tem was not
when
beet
provided:
Instruction 19
drew
ning commenced. As the workers
A
is in a defective condition
product
system,
necessary for
near the
it became
meet the rea-
product
the
does not
when
it,
it,
go
them to either
around
under
or
expectation
ordinary
of the
user
sonable
over it.
safety.
product
A
is unreason-
as to its
pivot
running
The
was not
as these work-
an
dangerous
dangerous
if it is
to
ably
Marshall,
passing
ers were
it.
in order to
con-
beyond that which would be
extent
get
way,
equipment
the
out of the workers’
pur-
templated by
ordinary
the
user who
activated
were
system.
The workers
ordinary knowledge
it with the
chases
system
not
would be
informed
community
to its char-
as
common
activated.
case,
purposes
acteristics. For
ordinary
you are instructed
Jr.,
following
par-
his
quali-
to be a
or
user is defined
farmer
against
ents in the
He
field.
leaned
person.
(Emphasis
maintenance
pipe
hanging
fied
his sleeves and arms
added).
down over
When the ma-
the drive-shaft.
activated,
chine was
his sleeves
provided:
Instruction
caught in the drive-shaft and he sustained
condition un-
product
A
is in a defective
injuries.
person
prop-
or
reasonably dangerous to
dangerous than would
erty if it is more
system
The drive-shafts of the
lacked
ordinary person who
expected
be
guarding.
system
The
had been
shields
it.
reasonably
expected
be
to use
may
guards. How-
to Marshall without
sold
be
say
not
what would
The law does
ever,
designed by
guards
had been
ordinary person or who
expected by an
cover the drive-shaft cover as-
Lindsay to
reasonably
expected to use
to
sembly were available for distribution
are for
Both of these issues
product.
early
as
purchasers
equipment
of the
you to decide.
assembly
designed
to
1973. The cover
prevent crops
wrapping
from
around
by giving both
Rojas submits that
damage
doing
drive-shaft and
structural
instructions,
the trial
of the above
could not
equipment.
The accident
persons
limited the classes of
improperly
happened
drive-shafts had been
if the
for defective
might maintain an action
who
guarded
assembly.
with the cover
limiting
class
design or manufacture
He
Marshall,
qualified
person.
service
a farmer or
Rojas brought
against
action
proposition
system,
accept
irrigation
urges this Court
farmer/owner
right to recov
limits the
He also
that Instruction 19
upon
theory
negligence.
qualified maintenance
ery
Manufac-
farmer or
brought
against
to a
action
instruction
agree.
The
designer,
person.
manufactur-
We do
turing Company, the
perspective
states the
law as to
from counsel’s
regarding
pre-trial
con-
which it is
product
to be determined
plaintiff
summated settlement between the
“unreasonably dangerous”.
See Re-
proper
another defendant were
under
(Second) Torts,
(1965),
statement
402A
§
the circumstances.
(i)
(i).
proper perspec-
Comments
tive is
ordinary
that of the
user or consum-
*3
The rule is well established that
intended,
product
er for whose use the
compromise
offer made in an effort to
a
i.e.,
safely
for whose
use must be
de-
cause of action cannot be legally admitted
Hence,
signed.
we find
no error
evidence over the
of
oppos
challenged instructions.
ing party.
Co.,
Empire
Kroetch v.
Mill
Rojas
We next consider whether
was de-
277,
(1903). Likewise,
Idaho
narily improper prejudicial com- done that it can be *5 plaintiff is sincere and during trial must sel for the minor ments of counsel the in he was objected the remarks correct his assertion that to at the time by surprise. assignment caught or of error short and taken are made no point appeal. on can be made on that argument, Lindsay, At oral counsel for 415], the Hayward v. Yost [72 conduct, defending his launched into a dis- P.2d page court stated at [242 seemingly course which was aimed at the 971]: who, all, goes the inti- judge trial after objection
The to the mation, opening up the mat- guilty counsel, ap- on to be made available plaintiff made compromise ter of the made at the peal, should have been judge’s The trial with defendant Marshall. made. ... time the remarks were advising jury the are set out remarks so objection ordinarily This means that an counsel, Lindsay’s majority opinion. purpose of review comes to late for the Court, point first made the arguing to this for the first time appeal, on if made plaintiff’s counsel made no that jury has retired or the cause after the jury, and then judge what the had told the them, or after has been submitted to justified thought that he was advanced mo- arguments, of the or on the close reading jury transcript of the to the a otherwise, after tion for new trial or judge’s he referred to as remarks —which rendered. the verdict has been instruction, “my comment on because intimated, closing argument However, the court’s instruction on the court also the court had occasion, although depart did not from what ... at least one a said.4 The discussion was of settlement. request of the court counsel made no 404, Co., Roy Oregon R.R. 55 Idaho grant rehearing Short Line Following in Creech a 476, case, 42 P.2d Lindquist, companion 99 Idaho State v. (1979), of Justice the views 589 P.2d however, judge, not excite the 4.The did be- expressed Creech dissent in his 1977 Bakes adding jury by that Marshall’s attention of the Lindquist majority his 1979 view in came the this accident.” Nor “action was what caused opinion. would he add "otherwise did the trial you” you____" "tell And have settled?. I can tell inadvertently used Bakes in his article 3. Justice once, once, all at but like did. Not counsel a on "possibly.” issue was raised word The boxer, separate jabs, as hereinafter with three passed upon the Court. appeal, related. amount, anything you wrong was made Do see No mention of an with that? money, that he payment anything, merely language or used here? place.” fact that a settlement had taken Well, MR. RAMSDEN: in—I have point a comment At this on use of word in cases been involved has from produced “instruction” the Bench Often place. taken the court in- will following colloquy: Gentlemen, Ladies and saying, struct Mr. that, Well, longer party MR. RAMSDEN: Your no Marshall is to the case. Honor, only is the exists Your not to consider this way instruction that one concerning this settlement. There is no And no further other. mention is anything. However, jury formal written instruction made or the court jury took into the word settlement and compro- room with them. did use the mise of differences. Well, BISTLINE: would JUSTICE Well, think not. But talk- you’re compro- this is what BISTLINE: JUSTICE mise, ing yes. you anything about when use word “in- But do see wrong doing struction”? the court If with that? foot, on the other shoe were would Yes, Honor, MR. RAMSDEN: Your anything wrong think there is no there formal instruction. written this? JUSTICE BISTLINE: Advisement MR. RAMSDEN: If the shoe were be a better perhaps. would word foot, request I would the other a caution- well, anyway Very MR. RAMSDEN: ary jury that the instruction was not information imparted any purpose. But, no consider that jury the court. cautionary requested instruction was Now, during the BISTLINE: JUSTICE opposing side. selection had Mr. Marshall BISTLINE: Of course that JUSTICE sitting there? been emphasize if would tend one were Yes, along MR. RAMSDEN: with his Now, requested given. if one counsel, Mr. Doer. *6 is, my question next because the court so, JUSTICE BISTLINE: And some- thought proper did this and do to along in process, the selection it, you any justification do see your for they agreement. got struck an off. He further comments then in final summa- MR. RAMSDEN: As I the recall tion? record, Honor, Your my recollection Well, believe, I MR. RAMSDEN: Your jury of the the was and the selected Honor, I justified am in that the zealous
jury selection concluded at about 6:30 on representation my any client to make Monday evening. morning On Tuesday I comment— by Doer, represent- was advised Mr. who I JUSTICE BISTLINE: understand Marshall, ed Mr. that a had settlement that, any justification but do see for reached. The in been court stood recess be- your amplifying going the while settlement were ex- documents yond the what court said? ecuted, compromise and the minor’s was justifica- MR. RAMSDEN: The same me, approved. Pardon the minor’s com- tion, Honor, in Your that I would find recess, approved promise was at a I later remarking upon the statements of Pro- even, any it’s in the believe record. fessor Crawford relative to the unreason- Doer and Mr. left Mr. Marshall then the danger product able or the state- day to come to courtroom back another saying ments of Mr. Aridondo he that the then execute documents and felt had Mr. Marshall driven the machine gave jury. that court information to right Pedro. over Now, page JUSTICE BISTLINE: on BISTLINE: wit- JUSTICE These were anything wrong do with what see nesses? explaining to the the trial court said in empty chairs?
jury there were two Yes. MR. RAMSDEN: explained
JUSTICE few BISTLINE: You were not a minutes of summation which witness? of Lindsay’s use machines—“not used No, play kids to on no Honor, mechanisms for ...
MR. I RAMSDEN: Your relationship people hoeing to beets not ... was counsel. people used to work on”—and then the I JUSTICE BISTLINE: see. Go sequitur interjection reminding non ahead. jury it the judge that had been informed commendably Where counsel was candid that “Ken has his Marshall settled differ- suggesting that the trial court have the plaintiff,” ences with which new theme necessary in advising stated more than was pursued by immediately counsel’s the jury longer that Mr. Marshall no adding: if Ken not “Because Marshall had party, plaintiffs the decision of counsel to up day started the machine that without emphasize not the court’s statements watching doing, what he was without mak- objecting possibly thereto cannot serve as ing danger, kids not in sure improper an excuse for counsel’s and ex- happened.” this not accident would have panded use the court’s statement final acceptable summation. less Even reasonably Plaintiff’s counsel could not improper contention that such summation anticipated that defense counsel justified responses which had been unexpectedly go far out of the would given by are witnesses. Witnesses sworn jury propriety bounds of as to remind the truth, they to tell the not but sworn to Ken Marshall had “settled.” Defense stating alluding any refrain from right counsel had no to make state- matter without a reasonable basis for be- But the made ment. statement was lieving that it is case reasonable to the or is a very attorney would be alert who could supported by evidence. admissible Attor- swiftly interject moved enough however, neys, are so sworn. objection before defense counsel had Moreover, majority, opinion while on. its does moved statement did present vary for Lind- not much from what the trial statements counsel say, fully comprehend of an able trial does seem to had said. cannot conceive ob- highlighting manner in which the same were unfolded counsel statement absurd to jecting room. It was not one to it. It would have been continuous register any moving for a fairly along objection statement. After he was well without grant- not be argument, If a mistrial would his a discussion of causa- mistrial. tion, ed, slightest would have he told the that “Ken Marshall even Moreover, machine, error. I fail literally ran this been a tactical trial ran machine Jr.; have done over that’s that the trial court would what see *7 objection.5 any more than to overrule the caused this accident.” There followed a upon provide only a motion based subdivi- 5. Plaintiffs motion for a trial in Part C was new grounds there- upon improper argu- “must the factual based sion 7 set forth defense counsel’s disposition particularity.” s com- with Plaintiff motion ment. The trial court’s of this ex- fore this, judge was tremely nothing plied Whether the trial only crucial and with rule. issue indifferent, he have realized should more: confused trial motion was based on Part C of the that proceedings, supported D Parts C and are not the de- reporter’s his and the of which 59(2)(7). required tailed affidavit affidavit, any far detail than better *8 argument, just seconds before conclud- time,
ing, for a third he alluded to the evidencing
settlement with Marshall as improper ma- Marshall’s use of the accident,
chine was the cause of
recognition of which Marshall “settled this got
case. He out.” right ordinarily gauge impact tiffs to a new trial without the trial court best suited to having argument improper jury first done so. It is axiomatic that on the —a days presided trial many who has over the which the has had contact. notes a new ... The alternative motion for trial concerning which of the trial and are record denied. charged. in law is error denying plaintiff’s The entire text of the order plain- C of the trial denial of Part The court’s post-judgment clear motions makes it motion, considering the without even tiff’s 59(a). referring Rule trial court I.R.C.P. And, same, clearly of error. notice 59(a)(2) governs jurors— misconduct of the clearly advis- appeal in the record which I read plaintiffs which was Part D of motion. Rule only appeal from final is not us that the es 59(a)(7) governs occurring error in at the law denying plain- judgment, the order but from trial. Deviant fall summation counsel would a new tiff’s motion for trial. into this subdivision. Court, differently days constitut- this In other 59(a) require Rule does not affidavits detailed certain, plain- rule may would not on ed one upon in motions does based subdivision 7. It 597 I Many judges plaintiff, manner are the trial whom was the minor Rojas, deprived known who would have on their voli- own of a fair trial. I against tion counsel re- cautioned such would reverse and for a new remand trial Here, nothing, marks. said plaintiff and the minor all award of his notwithstanding that re- his own appeal costs and all of costs his incurred being marks used. improperly which were attorney’s in including the first fees And, Appeals as the of Court said in John- at levels. For certain would not 350, 354-55, Emerson, son v. Idaho improprieties engaged endorse the here in. upon (Ct.App.1982), P.2d 810-11 relied day strange this out a Court sends opinion: majority message. For certain it is not the same agree We expressed message with rule which the Chief Justice semi-an- However, interpret Annau. we nually do not Bar delivers admittees. require objections counsel to raise all during instantly, closing argument itself. Frequent objections during argument, proper, even if risk alienating the court only objec and emphasize serve tionable An jury. comments See not., A.L.R.3d Following this first into im- excursion MECKERT, Plaintiff-Appellant, summation, proper Klaus defense went counsel into a regulations, discussion OSHA and topics. Eventually, however, other ap- TRANSAMERICA INSURANCE COM- parently pleased having at encountered no PANY, corporation, a California foray, rebuff on his first he abandoned a Defendant-Respondent. compared discourse following cook- books with OSHA standards and certain No. 15738. testimony witnesses, suddenly from di- Supreme Court of Idaho. verted to negligence. Mr. Marshall’s At point stops pulled explain- all 6,May 1985. ing to that defense counsel was Rehearing Denied June satisfied negligence, as to Marshall’s be- caüse—“Otherwise would he set- tled?” that, Having quickly jumped said he away gen- to a discussion automobiles eral, the dangerous propensities their moving parts then specifically to his replete own first on a tuneup engine car points plugs, proximity all in close Much, to fan blades. much later