*1 33 36, v. Boyett, Boyett final order. appealable Procedure, Appellate Arkansas Rules of S.W. 2d (1980); us, before Therefore, no final order 2. having Rule. must dismissed. appeal dismissed.
Appeal FORREST CITY INC. WORKS, MACHINE Rayburn ADERHOLD, BANK, by CROSS COUNTY Arkansas, Wynne, Guardian of Estate, His and E.
Wayne ADERHOLD and Maureen ADERHOLD 81-17 of Arkansas Court
Supreme delivered Opinion May denied [Rehearing 1981.] June *3 Harrold, Allen, Wildman, McDonnell, & Dixon by: Shaver, Walsh, Jr., Robert M. and Thomas Johnson J. Smith, Smith, & B. Shaver Tom by: for appellant. Halle, Laughlin, Regan, Gibson, Clark & and H. David Blair, for apрellees. H. Appellee, Rayburn Wayne Robert Justice. Dudley,
Aderhold, his guardian and parents, sued appellant, Works, Forrest City Machine for personal injuries sustained in a farm accident involving grain cart which was manufactured by appellant Aderhold, 1956. who was eight old at years the time accident, of the had accompanied his uncle ato farm where the uncle and two of Aderhold’s cousins young worked. One of the cousins, a thirteen-yеar- old, was operating tractor with a cart attached by means of an open power take-off line shaft which was controlled by the tractor operator. Aderhold had climbed up on the cart while the shaft was in motion and told to get off. When he was climbing back down ladder, he caught his of the pants part machinery leg leg He multiple leg into the shaft. sustained rotating pulled fractures, had various and is now disabled. operations, farm, sued and the owner of the who is Appellee appellant not involved on theories of appeal, negligence A liability. strict Cross circuit court awarded County #235,000 #500,000 appellee plus compensatory damages punitive damages. the issue of appellant contends *4 a
should never have been submitted to the As jury (1) because: law, matter of an and is open obvious hazard not unreason- warn ably duty and the has no to dangеrous, manufacturer hazard; of such a is (2) there no evidence that substantial failed to with the appellant state of the art comply carts; (3) features on concerning safety regardless of a theory applied, as matter law the of circumstances leading to the accident were not foreseeable. rule,
Under the and a “open obvious” manufacturer of a has no to product duty or notice guard against give whiсh are dangers patent obvious or to user. See Campo Scofield, N.Y. N.E. 2d 802 We have Arkansas, never followed this do not now adopt rule and it. The Florida Machine Court Auburn Works Supreme v.Jones, Co. 2d (1979) So. observed: wisely manufacturers The doctrine patent danger encourages safety to eliminate in their design, to be outrageous if For devices, example, and to make hazards obvious. as a safety is an electric fan which placed cage hand in the put device were left off and someone on the fan, duty doctrine there no under this would be the hazards as a matter of law. So as long manufacturer obvious, without be manufactured are could product ... consideration of safeguards The patent danger doctrine manufacturers protects who sell machines which negligently designed pose dangers formidable their users. not be
Manufacturers Arkansas are not and should relieved of the to exercise due care in the duty manufacture of because the equipment merely dangerous feature is clearly exposed foreseeably using to those However, machine. there is no on the of a duty part when the defect manufacturer warn a danger dangerous and obvious. As stated Larson Machine v. open Wallace, 268 Ark. 600 S.W. “One cannot be (1980): heard that he did condition not know of say dangеrous that was so that it those of apparent ordinary obvious One must use care to himself ordinary protect intelligence.” an he from be barred apparent danger, from the manufacturer on recovery contributory grounds risk, assumption is for Larson, to determine. See rule supra. open obvious law, defense, will as not serve as a matter of to all bases of liability. evidence that there was insufficient contends
Appellant was manufactured cart that the grain to conclude for the jury the art at state of with the that did not comply in a manner law, it therefore, matter of as a manufacture, and time of manufac- or negligent liable for a negligent design is not test, there the Arkansas if the art” were Even “state of turing. *5 finding to support jury evidence is substantial in accordance not not manufactured cart was appellant’s grain to the that time. According at customary with procedures manufacture, various other 1956, the time of record, manufacturers were to using safety power devices shield the unit. take-off with
Compliance industry customs is not a defense as matter of law to a action. As we stated in negligence Verson Garner, Allsteel Press Co. v. 261 Ark.
(1977): we consider this evidence ... [safety
[W]hile standards] pertinent reached, relative to the determination i.e., such evidence is not meth- controlling, customary ods, or accepted standаrds are not at all conclusive and may exist that the notwithstanding fact method was in accordance with adopted customary procedures. [Emphasis added.] that it Appellant argues foreseeable reasonably that an cart, would eight-year-old up climb on or that anyone would use the cart grain ladder while the machine was in operation, anyone be oblivious to the of an danger open shaft. spinning power Court, This сase, products that a liability ruled manufacturer who fails use reasonable care the design and manufacture aof is for the product liable not harm only which come to may users of the product, also for harm expected to come with into contact Interna- product. tional Land, Harvester Co. v. S.W. 2d the evidence
Viewing most favorably appellee, we say cannot there was no substantial evidence from which thе could find it customary Arkansas for youngsters to be farm operating machinery that it was not unusual for an eight-year-old farm be boy to attracted such The machinery. record shows Arkansas fre- farming a family operation quently family all youngsters expected come into with contact farm family’s machinery. record also contains sufficient evidence from which the jury could find that one might use the ladder cart while the power take-off was еngaged.
39 in if it next contends that even was Appellant negligent cart, of injuries, the and manufacture the appellee’s law, as a of were caused his own proximately matter of the risk and causes. assumption by intervening Co., 839, In 260 Ark. S.W. 2d and Capps v.McCarley 544 (1976), recovery we held that bars of risk assumption where (1) a condition exists which is inconsistent dangerous with the the is injured party’s safety, (2) injured person aware of the condition and the actually аppreciates danger, and (3) the himself to the injured person voluntarily exposes However, which the under danger produces this injury. doctrine, harsh the prove sufficient for defendant to that the of plaintiff was aware of the risks or generally dangers into with contact the rather the coming product, defendant prove must that the had of plaintiff knowledge the and that he specific danger fully and comprehended v. Daughtery, that said in Pricе As appreciated danger. (1972): 486 S.W. Assumption of risk occurs when the only injured person and actually knows the appreciates danger. one, standard ais subjective based what the being upon sees, knows, in particular understands, fact person and Hickman, Ark. 300, McDonald appreciates. S.W. 2d we this point, upon to prevail for appellant order
In of appellee, in favor inferences hold, all with have would eight- this conclude only persons that intelligent prox- dangerous the appreciated and knew child year-old that as and shaft, drive to the ladder cart’s the grain imity become could shaft ladder, the down climbed he and ladder him pull pants, with entangled in proof strong this find do not We him. injure horribly trial judge affirm abstracted that was record Likewise, decide. the was for risk assumed ruling inter- the issue submitting judge trial we affirm the jury. cause to vening statutory 1979), (Supp. §Ann.
Ark. Stat. 85-2-318.2 The enacted 1973- liability, strict adoption cart was manufactured obviously designed before The accidental after being produced. occurred injury enactment of the statute. The trial the statute court applied appellant prohibition violated argues retroactive against application legislation.
We find no constitutional statutory or to prohibition the of this prevent application statute case. The only in the express Federal provisions Constitution retro- against active laws forbids to ex Congress pass post facto laws or attainder, I, 9, 3, § bills of Article No. and forbid states to pass laws, attainder, ex facto bills of or post laws which impair contract, I, 10, 2, the § § Art. 1. Article obligation No. attainder, Arkansas also Constitution to bills of applies ex facto laws and post laws which impair obligation contracts. of retroactive Many types laws are not covered by these express prohibitions.
The due process clauses are held prevent to frequently retroactive legislation taking property belonging another, it to one without giving any prior regard relations between To determine if one has a parties. protected the courts often see if a property right look to right Smith, articles, has vested. Bryant in “Retroactive Laws and Vested Texas Law Review and 6 Rights,” (1927) Sands, Texas Law Review (1928), Suther- reprinted Ed., land Statutory Construction, Vol. page Edition, vested discussing states: rights, ***It is on the basis of this distinction that also legislature, as to injuries sustained, not yet may deprive servants of their common law right of action for or employers of their defenses, common law but may not so deprive either party after the has injury occurred; already laws may change the rules of inheritance before but not after cast; descent cure or defеctive wills before but after not the death of the testator; that the location of lands public is immune to retroactive deprivation after before, survey not and so on.
We have concluded that no vested were violated rights the law exists when In this vested right this case. context another, it declares or a claim against that one has declares a claim another. the enforcement that one resist has appellee not declare does The statute question doctrine was claim, liability for the products acquired liability of strict scheme statutory before long recognized the statute applicable The section of liability. for products not have the does provides appellee this case simply in the in the design burden of proving negligence is a As to appellee, of the cart. manufacture Hence, appel- one. matter and not a substantive procedural which is claim or right substantive lee has acquired applied retroactively. of negligence found the appellant guilty cart. This manufacture of the
both lost a decide whether appellant renders moot the necessity *8 the claim by losing vested to resist right substantive that issue of lack We do not reach defense of negligence. and a that no claim was revived we do note although a valid area of remedies is considered modification generally Sands, Con- Statutory Sutherland of retroactive legislation. struction, Also, a §at no man has vested right supra 41.09. Commissioners, Commonwealth remedy. particular 23
Mass. 501 lost no these reasons we hold that has appellee For as appellant. and the is moot right, question vested However, the doctrine of vested is not rights only factor and is not followed always deciding determinative аrticles, Smith, law in his retroactively. whether to apply Laws and Vested states: Rights,” supra, “Retroactive that, an illegitimate by legitimizing ... what a law the law an heir who before child, from property takes all purposes, for respect title in every had perfect the illegitimate? remote purchaser it to a and gives all, some at anything means term “vested” If the and yet vested away rights, take certainly these laws It is submitted sustained. laws have been suсh like rights, and non-vested between vested distinction remedies, or between jurisdic- rights that between 42
tional and non-jurisdictional proceed- defects legal is of use ings, as a which to primarily basis on classify decisions after have they been reached on already other grounds.
Courts have traditionally applied laws retroactively when deem it they for “courts do not just vested regard rights contrary equity justice of the case.” State v. Newark, Dutсh (New Jersey This 1858). 30 185 us to brings one of the factors in the deciding retroactive application of —laws public policy. stated the legislature public policy § act as follows: “This enactment remedial in nature and in no way affects or limits other If existing remedy.” an act violence does to our sense of it justice is found to be contra to public In policy. General Tate, Motors v. Ark. 2d S.W. (1974), we thought would be unfair to relate back this statute when bоth manufacture and the accident place took before the act. case, However present accident took place after the statute was enacted. We deem that to be a dis- factor in tinguishing the considerations of public policy. is remedial is also signif- The fact legislation Matthews, icant. As we stated Harrison v. (1962):
The rule which statutes are construed to operate prospectively does not оrdinarily apply procedural or remedial “The strict rule legislation. of construction *9 contended for does not to remedial apply statutes which do not disturb vested or create rights, new obligations, a new only supply or more appro- priate to enforce an remedy existing or right obliga- tion. These should receive a construction, more liberal and should be given retrospective effect whenever such seems to have been the intention of the Legisla- ture.” State ex rel. Moose v. Kansas & M. & B. City Ry. Co., Ark. S.W. 248.
For these reasons we affirm the trial court submitting the statute to the event, in this case. In the jury matter was rendered moot the by jury’s specific finding manufac- or in the of guilty negligence was appellant accident, of the cause the proximate which was ture the cart of in a defective cart the and the specific finding at the unreasonably it dangerous rendеred which condition Co. v. I.M. & So. Ry. See St. Louis manufactured. time was Ledford, the appellee injured
The eight-year-old thirteen- driven to a tractor which was attached cart heavy hired to operate had been cousin. The cousin year-old Ark. Stat. of in violation machinery farm and dangerous no under which 1976), person § (Repl. provides Ann. 81-702 any occupation dangerous sixteen be employed shall that a violation an instruction life limb. offered Appellant with of to be considered this statute evidence of The refused to all and circumstances. trial court other facts this affirm. The of purpose the instruction we give thirteen- child in this case a employees; statute is to protect child statute does year-old protection tractor driver. This child employees standards of conduct for toward prescribe from liability. third which absolve a manufacturer persоns the Before violation of a statute be used a evidence of it must the the seeking be shown that negligence, party the is a the class persons statute member of of protection manu- for whose benefit the statute was passed. Appellant is not a of that class. We do not facturer member simply if were pursuing what our ruling appellant imply a claim for contribution hired the who against employer thirteen-year-old, for is not before us. Like- question wise, has dismissed his claim appellee against employer, and we do not consider application violation of statute as between them. in the appellee in favor of a verdict
The returned jury say cannot We 8285,000 damages. compensatory amount verdict, and to support evidence is no substantial there We affirm a remittitur. or suggest decline to order we damages. 8285,000 of compensatory award appellee in favor of a verdict returned also have parties Both 8500,000 damages. punitive amount *10 at briefs, engaged and have unusuially good submitted length a upon discussion of the philosophical of propriety in awarding punitive a case. damages products liability We have concluded that there are valid for reasons allowing in punitive damages products liability cases. The Supreme Sturm, Court of Alaska in & Co. P. Ruger Day, (1979), stated: persuasively
We believe that аas matter public policy, of punitive can serve in damages useful functions the products area. liability For example, threat punitive a damages serves as deterrence function in cases in which a product may cause numerous minor injuries for which potential plaintiffs sue, decline to might in cases in which it would be for the manufac- cheaper turer to pay compensatory damages to those who did present claims than it would be to remedy product’s defect. In addition, if punitive could not be damages awarded in the products context, a liability reckless manufacturer an unfair might gain advantage over its more socially responsible competitors.
Arkansas Model Jury Instruction is the proper instruction to give products case, when liability However, warranted evidence. we have examined the record case and have concluded thеre was insufficient evidence to submit the issue punitive damages jury. The proof with regard and manufacture amounts to simple and negligence, we can find no substantial evidence to sustain finding of reckless disregard which malice would be inferred. $500,000
We reverse the award punitive damages $285,000 affirm the award compensatory damages. Affirmed as modified. JJ., concur part dissent Hickman Hays,
part. J., not participating. Holt, Justice, dissent- part, concurring
Darrell
Hickman,
*11
I
thаt
the
for
ing
agree
compensatory
part.
judgment
I
to
affirmed in this case.
dissent
damages should be
the
award.
punitive
reversing
damages
In
most difficult
issue
my judgment
legal
case is the
statute.
application
liability
of Arkansas’s strict
§
Ark.
Ann.
was
1979).
Stat.
This law
(Supp.
85-2-318.2
was
The machine in
a
passed
question,
grain buggy,
1973.
was
built
The accident occurred after
statute
1956.
enacted. The
has skirted some
cases
majority
previous
ours which
that
strict
statute is a new
say
Arkansas’
liаbility
347,
Tate,
cause
Motors v.
of action. See General
language
2d 602
It
that the
is
(1974).
my judgment
in the Tate case
that
and other cases
strict
is a
say
liability
new cause of action is
The
statute
wrong.
strict
liability
simply
the burden of
The statute does not
changes
proof.
make a
it
manufacturer
liable for conduct
that
not
that
provides
have
the statute. It simply
been
for before
liable
defect in the manufacture
a
has to show a
plaintiff only
rather
was
product
negligent.
a
than show
manufacturer
In such cases it is
to show
virtually impossible
negligence.
the statute is
The statute
shifts the burden of proof;
simply
new
action.
remedial
creates no
cause of
purely
therefore
It
rule of
that statutes
to
relating only
is
fundamental
law
are
held to operate
remedies or modes of procedure
generally
Board, 100R.
Hardman v. Personnel
retrospectively.
Appeal
I.
At the time this was manufactured it buggy take-off customary completely power cover shaft аlthough some many manufactured provide did products kind however, guard. demonstrate, evidence did most manufacturers of such some sort of placed buggies *12 shield or below the ladder to step protect who anyone climbed the ladder. There was on this nothing grain buggy and it was inevitable that someone would mount the ladder or dismount the ladder in the power take-off. get caught In case it small child.
This negligence, my amounted to judgment, gross and a fоr the reckless disregard safety. user’s Therefore, I punitive reverse the award of that the to the amount only plaintiff reduce damages $ asked for 150,000.00. which is The trail remarked judge $500,000.00 after the returned a verdict for that the appellate court would reduce it amount for. prayed finds that majority there is no substantial evidence I at support punitive damages. find two least instances of substantial evidence. The first is the of the machine design itself and the failure to provide step; the second guard the fact the manufacturer had at received notice that least two lawsuits had been filed for aas result injuries occurring of the of this and the fact design machinery manufacturer made no effort to correct defect or to notify any of the purchasers of grain buggy of the possible To me reflect danger. these acts a reckless for the disregard safety of others from which malice inferred. J., joins opinion and concurring dissent.
Hays,