*1 Mauch, and Harold Kathleen MAUCH
Plaintiffs, Appellees, and
Cross-Appellants, SERVICE, &
MANUFACTURERS SALES Defendant,
INC., foreign corporation, Cross-Appellee,
Appellant, Third- Plaintiff,
Party Cordage Corp., foreign
Amalgamated Industries, Inc.,
corporation, Dixie
foreign corporation, Farm and Inc., Supply,
Home Defendants
Third-Party Defendants. No. 10431.
Civ.
Supreme Court of North Dakota. 2, 1984.
Feb. *3 may
leased recoil with tremendous force. The Mauchs also nylon asserted that the rope, because it was sold without an ade- quate warning dangerous of its pro- recoil pensities, was in a defective and unreasona- bly dangerous condition; that the lack of adequate warning inju- caused Kathleen’s ries; and that Manufacturers should be strictly held liable. Manufacturers assert- ed as a defense at the trial that Kathleen’s injuries proximately were caused her negligent own rope. use of the tow assertion, of that it introduced evi- dence that the hook broke and recoiled *4 toward Kathleen’s tractor cab because she had rope attached the to the being tractor pulled by placing the hook into a hole locat- ed on the properly drawbar instead of in- serting the drawpin hook into a clevis and arrangement. court,
The trial concluding that the dif- ferences between the strict negligence recovery theories of in this case imperceptible, were refused to instruct the Bennett, Kelsch, Kelsch, Robert P. jury liability, on strict and the case was Bennett, Austin, Bismarck, Ruff & for solely negligence submitted on the Mauchs’ plaintiffs, appellees, cross-appellants. theory. jury special The returned a verdict Bucklin, Bucklin, Zuger Leonard H. & by which it found that the cause Bismarck, defendant, appellant, and injuries percent of Kathleen’s was 50 at- cross-appellee. negligence tributable to Manufacturers’ percent and 50 attributable to Kathleen’s WALLE, VANDE Justice. court, negligence. properly ap- The district plying jury’s findings compara- Kathleen Mauch to our injured using was while law, Big tive-negligence nylon rope, a “Mr. N.D. Tow” manufactured defendant, C.C., by the Manufacturers Sales & determined that because Kathleen’s Service, (“Manufacturers”), great negligence Inc. was as as Manufacturers’ pull- negligence she start one tractor with another on the was not entitled to recover driving any damages, judg- Mauchs’ farm. and the court entered Kathleen was pulling accordingly. ment tractor when the hook attached to nylon rope the other tractor broke. The Thereafter, the Mauchs filed a motion instantly recoiled towards Kathleen’s trac- 59, N.D.R.Civ.P., for new trial under Rule hurling the tor broken hook which was still they grounds numerous raised through attached to it the tractor cab win- 22, 1983, request. February for their striking injuring dow Kathleen and her se- granting the district court entered an order riously. ground the Mauchs a trial on the new husband, Harold, irregularity jury Kathleen and her sued there had been an in the proceedings jury Manufacturers on theories of had disre- because products liability. garded and strict The Mauchs the instructions of the court. Man- negligently appealed asserted Manufacturers ufacturers has from that order trial, duty granting breached warn Kathleen that the Mauchs a new and the rope nylon appeal judg- when stretched and then re- filed an from the Mauchs have of the trial court and will not be cross-appeal from the order discretion and a ment manifest appeal set aside on unless a abuse through which granting a new trial Stenslie, is shown. Cook v. refusing discretion court erred assert that the (N.D.1977). We conclude on several of grant of a new trial base its that the district court abused its discretion We reverse grounds raised them. granting Mauchs a new trial on their grant- order judgment and the court’s against claim Manufacturers. negli- on their ing Mauchs a new trial action, case for a gence and we remand this verdict, jury Through special cause of solely on the Mauchs’ new trial negligent con- found that Manufacturers’ liability. products action in strict negligent conduct each duct and Kathleen’s proxi- toward the contributed 50 case, we find it nec- disposing of this injuries. mate causation of Kathleen’s Un- following issues: essary to resolve special-verdict question, the der the last (1) court or not the district Whether requested to determine the total the Mauchs a new granting erred in damages “as defined in these instructions.” ground that there was trial on the to determine The had been instructed jury proceedings irregularity in the damages in plaintiffs’ the amount in- whereby jury disregarded negli- diminution for dollars “without given to it the court. structions gence.” special-ver- The answered (2) court or not the district Whether $230,000 question inserting dict grant Mauchs erred in $15,400 damages for for Kathleen and Ha- ground trial on the that there a new *5 jury the found Kathleen’s rold. Because to was insufficient evidence Manufacturers’, great negligence was as as jury verdict. the any not entitled to recov- the Mauchs were (3) court or not the district Whether Manufacturers, judgment ery against refusing grant in to the Mauchs erred accordingly. was entered ground a new trial on the that the in Subsequent entry judgment of the application compara- of our court’s case, signed jurors all the affidavits this law, tive-negligence stating jury that the had decided Kath- N.D.C.C., to this case violated the great as as that leen’s “was not equal-protection due-pro- Mauchs’ stating of Manufacturers ...” and further rights cess under the Federal and jury intended that the Mauchs that the had State Constitutions. of dam- actually receive the amount would (4) or not the district court Whether ages special-verdict in the form. inserted jury in instruct erred the jurors published an article One of the also theory on a strict revealing the in The Bismarck Tribune recovery. substantially jurors’ intentions were those (5) plaintiffs’ negli- Whether or not juror revealed in the affida- that had been gence is a defense to a strict juror vits. the basis of the affidavits ucts-liability claim. article, published the district court and the (6) district court Whether or not determination, following as re- made the denying expert in certain wit- erred by its memorandum decision dated vealed requested fees and other costs ness 22, February 1983: by Manufacturers. apprehended instruc- jury “Had the of their verdict in Manufacturers asserts that the dis tions and the result case, opinion granting it is the Court’s that it trict court erred the Mauchs changed findings and that ground that there was would have its new trial on the failing they corrupted by their irregularity jury proceedings in the be verdict jury disregarded the follow the instructions that this Court cause the instructions gave my opinion It is given by to it the court. The decision to them. the result and then grant deny a new trial rests within the first determined They solemnly proceeded to work backwards. dicts rendered unassailable regard- jurors failed to follow the instructions affidavits of as to their not under- ing proceed should in determin- standing how charge or as to their rea- damages only they determined ing after agreements, sons for deem it the liability. This Court believes that rule, subject better to less jury did one before the other a reverse injustice, actually that a verdict rendered way.” conclusively shall be deemed to be a ver- dict, beyond impeachment by the Concluding irregularity that there had been juror declaration of a as to a mental jury proceedings by jury’s failure instructions, existing agreed upon the dis- condition when he to follow court’s verdict, granted agree- trict court the Mauehs new trial or as to his reasons for so ing.” on their claim under Rule
N.D.R.Civ.P. Subsequent Grenz, to our decision su- improper
It is
for a court to con
606(b), N.D.R.Ev.,
pra,
adopted
Rule
purposes
juror
sider
affidavits for
provides
that when
in-
there is an
impeaching a verdict relative to the mental
quiry
validity
into the
juror
of a verdict a
reasoning
jurors
processes or
may testify only as to “whether extraneous
arriving
Keyes
at a decision.
v. Amund
prejudicial
improperly
information was
son,
(N.D.1983);
being upon called to state the occurrenc- We conclude that the district court room, ought granting to its discretion in a new trial es of be abused kept privileged. by impermissibly relying upon It written secret as well as to, subject jurors jurors influences cor- and affidavits of the would statements effect, rupt parties impeach jury’s them in verdict. Ac an effort have they cordingly, reverse the district court’s impair their verdict after had ceased Although injustice on their jurors. may grant to act as of a new trial to the Mauehs holding negligence against Manufacturers. at times result from thus ver- claim 344 time when unless reminded at the cross-appeal, the Mauchs their
On using product.” were court erred in re district assert that the trial' on the fusing grant them a new the record that We conclude from evidence there insufficient ground that support evidence to there was substantial finding that Kathleen’s support negli jury’s finding that Kathleen’s 50 negligence was cause of percent proximate gence was 50 injuries. The her accident and cause of Accordingly, we injuries. her accident and grant merely cannot a new trial trial court court did not abuse hold that the district jury’s disagrees with the verdict grant a new trial because discretion nearly balanced the evidence of insufficient evidence. when on the basis could reach differ different minds where cross-appeal, Through their conclusions; aside a verdict to set ent comparative- that our Mauchs also assert trial, the trial court must grant a new 9-10-07, N.D.C.C., law, manifestly against find the verdict to be due-pro equal-protection and their violates v. Penn. weight of the evidence. Wall rights the Federal and State cess (N.D.1979). Co., 274 N.W.2d Ins. Life Constitutions, under that statute because in the the evidence appeal, we review neg plaintiff whose recovery is denied to verdict, and the light most favorable to ligence great is as as grant trial refusal to a new trial court’s sought. recovery is person against whom insufficiency of the evidence based case decision or The Mauchs have cited no a manifest disturbed unless will not be authority of their attack other is shown. See of discretion abuse Scientif constitutionality of Section on the Delkamp, 303 Application, Inc. v. ic Valley In Grain N.D.C.C. Southern (N.D.1981). N.W.2d County Board Dealers Association v. (N.D. Commissioners, trial, attempted to At the the Mauchs 1977), part: in relevant we stated Manufacturers’ failure to warn prove that on constitu- who attacks a statute “One nylon propensities of the recoil users statute grounds, defended as that tional proximate cause of Kath- rope was the sole strong presumption of constitu- Manufacturers introduced injuries. leen’s bring up heavy his artil- tionality, should failure to prove that Kathleen’s evidence to entirely.” lery forego the attack nylon rope hook on the properly fasten the was the tractor drawbar reason Dakota Work- See also Jones v. North rope that the Bureau, hook broke and the reason 334 N.W.2d Compensation men’s trac- (N.D.1983). in the direction of Kathleen’s Although recoiled we believe opinion re- adequately tor cab. its memorandum not raised this Mauchs have trial, issue, the dis- garding the motion for new will comment brief- constitutional ly- trict court stated: *7 nothing in record finds the “This Court 9-10-07, N.D.C.C., must be Section finding jury restrict the from
that would
of the Mauchs’
upheld as not violative
liable or the
either the Plaintiff 100%
rights if the
equal-protection
classification
The
could
Defendant
liable.
arbitrary
100%
so as to
patently
it draws is not
desired,
found,
Mrs.
they
had
that
have
if
discrimination and
constitute invidious
or should have
Mauch did understand
legitimate govern
a
rationally
is
related to
dangers
facing
she
understood the
interest.
See Rothe v. S-N-Go
ment
token,
and,
(N.D.1981).
by
Stores, Inc.,
I think
the same
345
extent,
contributory
plaintiffs
ny,
(9th
499
Cir.1974);
see,
F.2d 809
but
attempt
an
to tem-
Sons, Inc.,
obvious
v.
Squibb
Smith
E.R.
&
405
per
plain-
79,
the harshness of that defense for
(1979).
Mich.
tiffs,
Legislature
9-10-
enacted Section
In Johnson v. American
Corpo-
Motors
N.D.C.C.,
07,
contributorily negli-
to allow
ration,
(N.D.1974),
225
57
gent plaintiffs to
a reduced
recover
amount
expressly adopted
court
Restatement
all,
damages,
of
instead of no
at
§
(Second) Torts,
poli-
402A.1 One
provided
plaintiffs
negli-
contributory
development
cies
behind
gence
as
great
was not so
the defendant’s
ucts-liability theory of recovery is succinct-
negligence.
We believe
Section 9-10-
ly
explained
Brantly
Berkebile v.
Heli-
07, N.D.C.C.,
rationally
legit-
is
related to a
copter Corporation,
93,
83,
462 Pa.
337
government objective
imate
and does not
893,
(1975),
A.2d
898
constitute invidious discrimination.
products liability
“The law of
devel-
The district
on
court instructed the
oped
response
changing
societal
negligence theory
the Mauchs’
but refused
relationship
concerns over the
between
strict-liability theory
to instruct on their
on
product.
the consumer
and
seller of a
that,
ground
in a
case
failure-to-warn
increasing complexity
The
of the manu-
this,
such as
theories are
two
indistin-
facturing
process
and distributional
guishable
instructing
and
on both would
placed upon
injured plaintiff nearly
a
only
jury.
appeal,
serve
to confuse the
impossible
of proving negligence
burden
the Mauchs assert that the
court
district
where,
reasons,
policy
for
felt
it was
erred in
to instruct
on
responsible
injuries
a seller should be
for
strict-liability theory.
their
agree.
We
products.”
caused
defects
his
Although
disagree
the authorities
court,
This
in Olson v. A. Ches
W.
issue,
recovery
over this
we believe
(N.D.
Company, 256 N.W.2d
terton
530
sought under a negligent failure-to-warn
1977), recognized that under Restatement
theory
sought
recovery
and
under
prod
a
§
(Second) Torts,
402A, one
manufac
who
ucts-liability theory marketing
product
product
duty
tures or sells a
has a
to warn
which is defective
dan
unreasonably
and
dangers
inherent
its intended use and
gerous
accompanied by
because it is not
dangers
also to warn
involved
a use
adequate warnings
separate
two
are
reasonably anticipated.
which can be
Thus
recovery.
distinct theories of
tri
Thus the
a manufacturer or seller can be held liable
al court must instruct on each where there
products-liability theory
selling
evidence to
See
both theories.
which,
meeting
product
although
every
Inc.,
Properties,
Freund v.
Cellofilm
designed
229,
(1981);
requirement
utility
for its
N.J.
We contributory erred instruct on the contested issue is whether sense, that of theory Mauchs’ the broader recov-
347 ordinary to exercise care one’s ence. failure for On the other hand the form of safety, will in own constitute a defense contributory negligence which in consists products liability strict action.” voluntarily and unreasonably proceeding [Foot- *10 348
07, N.D.C.C.,
applicable.2 How
er than
are not
the causation attributable to the
ever,
accept
Legislature’s
product,
in
of
of
not
view the
defective condition
the
will
comparative-negligence principles
ance of
a
to
plaintiff’s
act as
total bar
the
claim.
by
enactment of Sec
as demonstrated
today
a
in
We reached
similar conclusion
9-10-07, N.D.C.C.,
following
in
a
tion
and
Day
Motors,
v. General
Motors
Manufacturers asserts that be court’s the Mauchs a new jury negligence negligence theory cause the Kathleen’s trial on a reversed; found is proximate reversed; of judgment cause her and the case is injuries, jury one must infer that the deter remanded for a on new trial the Mauchs’ mined already that Kathleen knew the products-liability cause of action. Costs on dangerous propensities nylon rope that a appeal are not party. awarded either and, warning might label have revealed ERICKSTAD, C.J., if
consequently, jury PEDERSON, had been even SAND, theory JJ., instructed GIERKE and products-liability on a it concur. would not have awarded the Mauchs SAND, Justice, specially concurring. recovery theory. under We refuse I signed concurred opin- basic speculate jurors have might as to what Nevertheless, compelled ion. I am to make if ultimately determined had been impression additional comment. The I re- prod properly on the instructed Mauchs’ opinion ceived from the basic is that the ucts-liability theory. We hold that dis placed limitation constriction on contrib- trict court’s failure to instruct the on negligence utory applies only to the instant products-liability prej claim constituted case. udicial and reversible error. I am satisfied in products liability Because the Mauchs’ cause contributory negligence, action as a de- fully litigated action present- has been term, scriptive though even instructions, proper ed to the we title, i.e., placed heading under another retry conclude that there is no reason to “misuse,” and is to the relevant resolution the negligence cause of action or disturb In may of the issue. some instance even respect Having the verdict con- with it. the injury be the cause of cluded that the Mauchs are to have entitled damage depend- and needs to be considered their determine cause of un- action ing upon the of the case. circumstances products-liability theory, der a will re- mand the a new on that only case for trial
cause of action. appeal, has also Manufacturers
raised the issue whether or not dis denying expert
trict court erred certain requested witness fees and other costs Lynda Thomas J. DAY and Manufacturers. The district court awarded Plaintiffs, Day, expert Manufacturers costs and witness fees a reduced amount from that re remand, quested. of our find it view CORPORATION, GENERAL MOTORS necessary is neither appropriate nor Defendant. reach the merits this issue. Because the Civ. No. 10519. Mauchs are entitled to a new trial case on their of ac cause Supreme Court of North Dakota. tion, judgment case entered Feb. 1984. entirety must be in its vacated with expectation judgment a new will be
entered remand and retrial extent,
case.
any,
To what
if
that Manu-
notes
danger,
to encounter a
omitted.]
known
and com-
monly passes under the name
assump-
rationale,
We
believe
better
risk,
tion of
is a defense under this Sec-
in
and the one we choose to follow this
tion as in other
liability.
cases of strict
case,
plaintiff’s
is that the
conduct should
If the user or consumer discovers the
ordinary “contributory
not be scrutinized in
danger,
defect and is aware of the
negligence” terminology as a defense to a
proceeds unreasonably
nevertheless
products-liability
The
claim.
focus of a
product
make use of the
injured
and is
products-liability action is on whether or
it,
he is barred
recovery.”
from
product
not the
is defective and unreasona
bly dangerous, and thus the reasonableness
assumption
The defenses of
of the risk
negli
of the defendant’s conduct under
product
focus,
misuse
as does the
gence concepts is not relevant to this ac
itself,
ucts-liability
claim
the nature
previ
tion. The defenses which we have
product
and its use. We believe that
Chesterton,
ously recognized
supra,
in
the interjection
ordinary
contributory
assumption of risk and
mis
unforeseeable
negligence principles
only
would
serve as a
are,
opinion, adequate
protect
use
in our
diversion
proper
from the
focus on the
unjust
a seller or manufacturer from
liabili product and its
in
use
such a case without
ty
type.
in
a case of this
We find
providing any
protection
needed additional
position in the
for this
comments to Re
to the defendant seller or manufacturer
§
(Second) Torts,
402A,
statement
assumption
which the defenses of
of risk
jurisdic
the case decisions of a
number
product
and unforeseeable misuse of the
do
Smith,
tions:
v.
Smith
already provide.
not
(S.D.1979);
Corporation
General Motors
Although we conclude that a
(Tex.1977)
[po
Hopkins,
344
v.
548 S.W.2d
ssi
plaintiff’s ordinary
negli
contributory
bly
point
overruled on another
irrelevant
label,
gence, by that
is not a
defense
this case in
Turner v. General Motors
action,
emphasize
Corporation,
(Tex.1979)];
844
S.W.2d
clarity that a seller can be held liable under
Airlines,
Valley
Inc. v. Avco-Lycom
Sun
§
(Second) Torts,
402A, only
Restatement
Corporation,
(D.Idaho
ing
F.Supp. 598
proved
unreasonably
where it is
that an
1976);
Brantly Helicopter
Berkebile v.
dangerous
prod
defective condition of the
Corporation, 462 Pa.