McBride v. Ford Motor Co.

P.2d 55 Charles H. McBRIDE and Sandra

McBride, wife, Plaintiffs- husband

appellants Cross-respondents, Surety Co., Casualty Davey

Aetna & Co., Plaintiffs, Expert

Tree CO., and

FORD MOTOR KPS Manufac-

turing, Defendants-respondents

Cross-appellants. 13441.

No.

Supreme Court Idaho.

Oct. 1983.

Rehearing Denied Dec. 1983. power The 240 industrial

bly. unit was an manufactured and sold to motor Ford individuals for a various manufacturers or number of different uses such as power ma- generators, various industrial pumps, sources, testi- power chine etc. There was effect that for some mony panels uses for the 240 motor side industrial other appropriate protective would purposes but that for some other purposes, according to might Accordingly, not. they Ford, manufactured power unit was being panels, panels side the side without option depending upon as an available put. which the was to be use to motor purchased record indicates that KPS pow- five the 240 hundred of approximately in which er units for use machines chipping manufactured, pur- and and designed it them panels go some side with chased to the option made them available as an and machines. The purchasers chipping purchased of KPS testified that he founder Nungester Hepworth, Hepworth, John most units in power panels without side Felton, Falls, Twin plaintiffs-appel- & for of the en- instances to facilitate ventilation cross-respondents. lants and cus- He testified that he informed gine. Koontz, Tyler, M. Robert J. and Robert optionally panels tomers that side Burke, Koontz, Jr., Elam, Evans, &Boyd available, but that had recommended KPS Boise, and for defendants-respondents chipping Tree that it Davey purchase cross-appellants Ford Motor Co. on the panels without machines the side There unit, Tree did. Smith, Davey which McCurdy, power William Quane, How- accident Hull, Boise, prior also evidence that defendants-respon- was ard & for complained plaintiff had cross-appellants McBride dents and KPS. needed Davey power Tree that unit unit power of shroud BAKES, type some around Justice. getting foreign materials from prevent action arose from products liability This injury engine, prevent into appellant, suffered injuries by plaintiff but to order Davey Tree refused employees, McBride, on June while Charles and panels which were available the side operating chipping McBride was a branch installed the machine. them have employment machine the course of his wife, together McBride and his Tree A blade Plaintiff Davey Expert with Co. from Surety & co-plaintiff Casualty Aetna separated disintegrating radiator fan with defendants Co., against this action the motor McBride filed from and struck Ford, recovery for back, seeking and severely him. The injuring branch KPS in the McBride involved, injuries by B- suffered machine known as a chipping personal was complaint accident. amended Chipmore designed was and Chipper, liabili- of strict solely upon theory respondent based manufactured defendant unit tort, alleging power It contained Manufacturing. ty KPS defective, request- and unit, inch de- power cubic manufactured and/or and injuries the McBrides’ damages for respondent Company, fendant Ford Motor ed $21,- as as well reimbursement which was cooled fan assem- losses by a six-blade native, 857.15 m s new compensation workmen benefits for a trial. Defendants Ford Aetna, Tree, surety Davey for had and filed KPS memoranda costs and paid to McBride. Defendants KPS and attorney Following argument fees. oral Ford separately, denying answered re- each briefing, district court entered an injuries, sponsibility for McBrides’ denying order motions for McBrides’ filing against crossclaims one another seek- judgment verdict and notwithstanding the ing and indemnification contribution trial, new denying re- defendants’ event they were held Upon liable. motion quests attorney fees I.C. 12- under § KPS, defendant the trial court ordered discretionary under costs I.R.C.P. Davey brought Tree into the case as 54(d)(1)(D). The district subsequently plaintiff an involuntary purpose for the entered an order that each bear its party determining whether Davey negli- Tree costs, own denying effect the defendants’ gent, would, a determination requests right for costs as a un- matter McBride, event of recovery affect Aet- 54(d)(1)(C). der ap- I.R.C.P. The McBrides na’s claim for reimbursement from Ford peal from judgment entered compensation KPS for the workmen’s them district and the court order denying paid benefits to McBride. their post-trial motions. Both defendants appeal cross from the order denying court’s At trial expert par- witnesses for all attorney costs and fees. agreed ties separated fan blades power and flew off the unit as a result of metal fatigue. Witnesses I. were of the opinion fatigue urge On appeal McBrides caused by produced excessive resonance by district court erred in their denying motions design. the defective Witnesses defend- for judgment notwithstanding the verdict Ford, ants hand, KPS on the other trial; and for new that the district court were of the opinion that fatigue result- allocating erred in peremptory four ed from to damage the fan im- caused challenges plaintiffs; court erred or proper poor maintenance and misuse of to admitting allowing defendants use the chipper by Davey Tree. trial; certain at photographic evidence trial, At the conclusion of .the jury re- instructed; and, jury was not properly

turned a special containing verdict the fol- form of the special confusing verdict was to lowing specific findings: that McBride had the jury jury’s and that the answers to the not chipper; Davey misused the Tree questions special in the form were verdict maintenance, negligent in the opera- we irreconcilably inconsistent. Because tion of and/or use and that such chipper of appellant’s find no reversible error in any negligence a proximate of cause error, allegations judg- we of affirm damages McBride; sustained by that Davey ment entered the McBrides. Tree misused or failed to properly maintain Peremptory Challenges A. the chipper and that such misuse was a argue The McBrides proximate cause of damages; McBride’s peremp court four allocating only erred in that there design was no defect in the Ford while allo tory challenges plaintiffs engine; the Chipmore Chipper challenges to each cating peremptory four not defective when it control left of defendants, of the Ford. The KPS; KPS and that 100% of the responsibility that the of each of positions McBrides claim alleged McBride’s attributable damages was antagonistic the plaintiffs sufficiently were McBride, Davey Tree to Ford and and 0% have been require they each should KPS; and, damages amount of peremptory allowed to exercise four chal sustained by McBride was $0. lenges. Following entry of judgment,

McBrides in the judgment 47(j) filed motions for not- I.R.C.P. vests broad discretion and, allocating trial chai- withstanding peremptory the verdict alter- ary, were lenges among co-parties, provides, irrelevant to the be- issues ing tried. part: relevant coparties plain- “In there the event are as constituting Defend photographs otherwise, tiffs, or the court defendants ants’ -J through Exhibits 124A were first shall of conflict of degree determine Ford on March introduced defendant interest, any, among if between or objection by plaintiffs’ 1979. On counsel coparties and shall in its discretion allo- court, questioning counsel for cate the full number of chal- peremptory Ford that the expressly photographs stated lenges authorized this rule each of were not offered to establish condition the authorized coparties, apportion of the time McBride’s between and peremptory challenges accident, impeach but offered coparties, or in discretion among plaintiffs’ witnesses who had credibility equal or unequal allocate an number Davey properly Tree earlier testified peremptory challenges to each the co- consistently followed a program parties.” maintenance of its machines. The court objections overruled and admit the record and trial court reviewed warning ted photographs, an nothing antagonistic found- indicate they any way purport repre “[did] position the plaintiffs. between The trial B-702, that particular sent the condition of court allowed the McBrides to exercise all inju Mr. McBride’s chipper, at the time of challenges four peremptory allocated ry.” again The court admonished the plaintiffs. No or antagonism conflict on the day later in the limitation arose plaintiffs during between admissibility photographs.1 trial, pursuing course proceed- approach throughout uniform “evi long held that This Court has circumstances, these find ings. Under we purpose for one dence inadmissible no abuse of discretion in the court’s pur be admissible for another nevertheless challenges. peremptory allocation of Ins. Mutual pose.” Erikson Nationwide Nelson, 293, 297, 581 Stoddard v. 99 Idaho Co., 291, 543 P.2d P.2d Burcham, (1975); see Owen v. (1979). Personnel Photographs

B. Tree Davey had that Davey Tree testified -J, 124A through program, Defendants’ Exhibits and good enforced a maintenance Davey of the and consisting photographs of ten that at the time of the accident both wit- the B-702 chipper by just prior chipper Tree B-702 taken Ford’s to trial the Stocks, ness, shortly good before tri- condition. Defendants’ operating Mr. Charles -J, showed al, objection through at trial. Exhibits 124A which were admitted over disrepair shortly the in a injury chipper since the state argue The McBrides that trial, clearly were admissible for fan blade oc- before disintegrating caused testimony.2 that impeaching purpose of the same photographs curred in consideration of jury’s trial Febru- limited the chipper just prior Having taken to day, maintained on his machine the court which Mr. McBride 1. Prior a recess later to machine at that time.” condition that cautioned: Gentlemen, you recall I ad- and when “Ladies engine photographs reflected an 2. The photo- ten Polaroid mitted Exhibit graphs missing; pin mounting a clevis bolt taken, I had advised that Mr. Stocks governor was to the attached throttle cable only you they with the were concerned out; completely governor belt was almost concerning Davey persons testimony of Tree worn; extremely shroud inside out present at their maintenance standards loose, dent- the shroud was radiator were testimony time. also Mr. Stocks’ concern- And ed; en- inside the were small branches there chippers ing he found in Boise these three gine compartment; evi- fan blades showed Davey Company stan- to the Tree relates hit, having blade and one fan been dence of present It time. dard of maintenance at bent. any way does to the maintenance not in relate photographs impeachment pictures to had those shown before purposes, to the court did err in exhib- first admitting calling witness.

its. photographs of the representative Other chippers configuration Chipmore argue McBrides also re and admitted as offered the defendants gardless of whether the district prop court 211. Defend- Defendants’ Exhibits erly admitted the photographs impeach for single photograph ants’ Exhibit ment purposes, abandoning it erred in later for defend- chipper, was offered counsel its limitation on use of the photographs. of the purposes ant “for illustrative KPS Defense Schoeppner witness Karl referred to “illustrate general configuration,” and to Exhibits through during 124A -J his of the configuration and the location testimony 14,1979, on March while describ at this time.” engine engine and the shroud ing position of the fan assembly and counsel illustra- McBrides’ stated that “[f]or covering shroud. When defendants’ counsel objection,” I and the tive have no purposes, requested permission to show photographs court admitted the exhibit. 124H and -J to illustrate the Defendants’ Exhibit No. included testimony alignment fan of the of two photographs Chipmore chippers not and shroud in relation the feed chute on action, in this involved and one of a Chip- the chipper, and generally characterize chipper’s more cutting cylinder positioned the configuration of the chipper, plaintiffs between feed and discharge chute objected on ground photo Jr., chute. Mr. Karl Schoeppner, testifying graphs had been admitted for a limited introduced, the time this exhibit was purpose. Although the trial stated court configuration stated that “basic [of it did not recall limitation on the pictured chippers] is equivalent that of use of the photographs, the reasons Davey chipper.” Tree Plaintiffs raised no discussed below we hold that the objection to the admission Defendants’ did not commit error allowing photo 211. Exhibit No. graphs be used the purpose of illus trating the chipper’s configuration. With all the other of the photographs question chippers or similar be-

First, although the district court was mis- fore jury, the fact that the trial court taken as to the existence of an earlier limi- allowed defendant show KPS to Defend- tation on the use of the photographs, ants’ 124H Exhibits and -J “to sought use to be made the photographs show, Schoeppner’s to illustrate Mr. testi- by defendant gen- KPS characterize the mony as the location of the fan and configuration eral Chipmore chipper, shroud” “alignment relation to was not inconsistent with previ- the court’s portion” the feed chute of little conse- ous direction the photographs were not noted, As the quence. trial court Defend- considered as evidence of the condi- ants’ Exhibits 124A -J had through already tion of the B-702 at of the time been in “admitted evidence and [would] appellant’s injury. eventually go any to the It jury in event.” Second, defendants’ Exhibits 124H and was not error for court permit the trial are -J to photographs dissimilar intro- through Defendants’ Exhibits 124A -J to be by plaintiffs duced and admitted as Plain- shown the jury during Schoeppner’s Mr. 1, tiffs’ Exhibit No. which five contained testimony. photographs of B-702 chipper involved C. Instructions in this action. Plaintiffs’ counsel stated that Plain- photographs constituting We turn next conten- McBrides’ tiffs’ Exhibit were No. 1 taken time adequate- some tions that court failed to the accident, after but had ly theory that counsel of jury plaintiffs’ instruct on stipulated to the admission of the exhibit In the McBrides liability. particular, strict purposes. illustrative Plaintiffs’ counsel in argue refusing the court erred

760 that, 18, A, 25, designs way in

give requested 24, 30, their defec- instructions Thereafter, 29, jury testimony heard 28, B tive. and 17. weeks, a por- three substantial nearly appeal On the instructions must tion of which was directed toward the be viewed as a whole to determine whether plaintiffs’ allegation main defec- in jury properly adequately was in claim a tive condition asserted their was Bushnell, 528, 93 structed. Davis v. Idaho defense was design testimony defect. The (1970); 465 P.2d v. 91 Byers, 652 Blaine that the cause proving directed toward 665, (1967). Idaho 429 P.2d 397 If the be- disintegrating the fan was not blade instructions, whole, court’s considered as a manufac- design cause of a defect or other fairly adequately present issues and defect, poor misuse or turing but because of law, error state then no applicable all that testi- hearing maintenance. After Pipeline committed. Pacific Northwest See directly upon focused mony, was Waller, v. Corp. 80 Idaho alleged claim defective plaintiffs’ (1958); Burley Savage, Co. v. Union Seed defect, court, a design condition was (1955); 283 P.2d 918 Koehler jury instructed the given instruction Stenerson, v. 74 Idaho P.2d 1101 liability cause as to the elements of strict (1953). We opinion are action, requirement “that including instructions, whole, as a cor court’s taken product in a defective condition was appli jury instructed the on law rectly to a user or con- unreasonably dangerous Nevertheless, we will cable to issues. when it the control of the de- sumer left appellants’ assertions of consider each given the-court’s Additionally, fendant.” separately. error between a de- distinguished instruction 16 and a defect parts, fect in materials or assert error plaintiffs Question verdict design. special 7 on in give requested court’s refusal to their whether or not specifically asked However, struction 18. as the trial court the machine. there defect” in “design was noted, requested instruction which sets was we Accordingly, conclude forth the of the Restatement requirements general princi- instructed on adequately (Second) Torts, fully was cov 402A § .liability ples applicable products of law refusal given instruction 11. The ered theory of defec- factual cases and particular instruction is give requested requested instruc- tive Plaintiffs’ design. not erroneous where the substance by the in- covered adequately tion 24 was is covered elsewhere proposed instruction given jury, structions and directions v. No Garrett given. the instructions on the bottom correctly as the court noted (1981); bles, P.2d 656 of it. Gonzales, 769, 605 P.2d Mann A, requested Plaintiffs’ of the evi toward one which was directed court’s Error is also asserted which the dentiary upon bases instruc give plaintiffs’ requested defective, i.e., refusal to design claimed essentially prod that a tion 24 which stated devices, was cover safety failure to include to defec only due not uct defective instructions general trial ed court’s also parts, liability tive materials or but because of a strict the elements regarding clearly as the design. defective of action. cause instruction, the noted various factual requested plaintiffs' aware of defect oc design subject adequately why alleged covered an ories First, the failure curred, court. which was other instructions of the one of court did trial, court The trial safety the trial devices. beginning include re instruction general claim a plaintiffs’ giving not err in jury advised the liability of a strict elements design garding in upon based both a defect out one singling in not action and also ad cause of in defects manufacture. to evidentiary why claim as particular denied defendants vised the that the jury

761 design defective, i.e., particular failure the substance of instruction 29 was covered safety 14, to include given devices. instruction both of which re- in ferred to a defective condition not “contem- Next, error plaintiffs assert or plated by ordinary ultimate consum- give requested failure to their instruc Moreover, er.....” several courts have 25 and pertaining duty tions 30 a “unreasonably danger- held that term give argu manufacturer to This warnings. ous” term which is itself definitional does ment is two without merit for reasons. v. defining. not need additional Gaenzele First, appellants specific objection raised no 93, Ill.App.3d Wallace 39 Corp., Products give the court’s failure to the requested 571, (1976); 350 576 v. Pyatt Engel N.E.2d instructions, required by as then I.R.C.P. Inc., 1070, Equipment, Ill.App.3d 17 309 51(a), and thus are from precluded raising 225 N.E.2d argument this on appeal. Quincy v. 41, 764, Joint School Dist. No. 102 Idaho B requested instruction Plaintiffs’ 640 (1982); P.2d 309 Stoddard v. that “a jury would have instructed Nelson, 293,298, 344 degree of manufacturer must foresee some (1978). Additionally, requested those in or products, misuse of its either user structions failed to include the caveat clear parties, third and must take reasonable Wilson, ly mandated Rindlisbaker 95 precaution to minimize harm re (1974), 519 P.2d 421 wherein this sult However, from misuse abuse.” stated such a duty Court warn “is is not the law in Idaho. Shields v. Morton limited to situations wherein the danger Co., 674, 677, Chemical 518 P.2d requested not obvious.” instructions (1974)(which held that misuse of a did not include that caveat. Additionally, product is an affirmative to a defense strict given the trial court’s instruction covered liability action the manufacturer or duty to warn of unsafe conditions and distributor). other Accordingly, the trial included the Rindlisbaker caveat that “a refusing court did not B. err instruction warning is however, not required, if the allege Finally, plaintiffs error danger is obvious or actually known to the refusing give plaintiffs’ requested in user.” error was Accordingly, no commit theories of describing struction some ted in refusing to give instructions 25 and action, instructing parties to 30. questions special as to which Plaintiffs next assert error in the the particular verdict form relate which give failure to instruction 28 which would However, ory re liability. have instructed that evidence of since quested incomplete instruction 17 was a defect in a presence product would negli it did not include reference to permit the that the inference defect made Tree, properly which was gence Davey product unreasonably dangerous. How verdict. Fur special included the court’s ever, agree we with the Minnesota Supreme thermore, specifically given instruction Court’s statement in v. Twin Boutang City in negligence advised Co., 240, 80 Motor Bus 248 Minn. N.W.2d to the cross claims be struction “refers (1975), drawing that “the of inferences is tween Ford Motor KPS matter common sense and reason logic claims,” thereby defense as to plaintiffs’ ing jurors normally which the will use with plaintiffs which accomplishing purpose express out direction or guidance of 17 would now requested assert court.” The district court no committed error Accordingly, no have served. refusing error in instruction 28. requested instruction refusing committed 17. Plaintiffs next assert error in the foregoing er- give requested

trial court’s refusal to in In asserted addition give requested struction 29 instruc- attempted define the ror in the refusal tions, dangerous.” term also assert that “unreasonably 762 rule structed on the of strict liabili- in prejudicial giving committed error Torts, (Second) from Restatement of ty 8, 10 and 11.

instructions (1965), in adopted by as 402A this Court § 8, which instruction given As to Morton Co., v. Chemical supra. Shields an accident stated “the mere fact that that us ask adopt the rule in plaintiffs occurred, of alone, evidence standing is no decision of Cronin v. J.B.E. Olson California any part fault on the of the defendant 121, 433, 104 501 Cal.Rptr. 8 Cal.3d Corp., any product that there was defect (1972), rejected which portion 1153 P.2d defendant,” manufactured that rule adopted Restatement of Shields In plaintiffs Jury that Idaho assert plaintiff prove not requiring (IDJI) that struction Manual recommends inwas condi- product defective However, at no such given. instruction be that it was dan- tion, unreasonably also but instruction conference before However, Cronin’s of elimination gerous. about complain court the did not plaintiffs unreasonably is dangerous requirement se, they stated per instruction 8 prior with our inconsistent decisions the court “is a correct statement Co., v. Morton supra, Chemical Shields law,” read but that “when argued Co., 97 Farmer v. International Harvester inconsistent.” to be appears instruction 14 742, (1976), 553 P.2d 1306 and has Idaho In inconsistent. are not they juris- other rejected nearly every been jury that instructed struction 14 question, diction which has considered the is product of the a malfunction “[p]roof of legal commenta- together with innumerable evidence of a defect in that circumstantial reject Cronin we Accordingly, tors. (emphasis added), while instruc product” “unreasona- case and its elimination 8 “the mere tion instructed Fur- requirement. bly proof dangerous” occurred, standing fact that ah accident thermore, instruction plaintiffs’ requested alone, any is evidence of fault on no verdict requested special 18 and or that there was part the defendant language “product both contained the form defect manufactured product dan- unreasonably in a defective condition added.) Instruc (Emphasis defendant.” ...,” cases our gerous to the user 14 a malfunction proof tion referred as- that one reject the notion clearly evidence, while instruc as circumstantial lan- instructing error the court’s sert as an accident as proof tion 8 referred to specifically has person which that guage of a defect. The two being evidence give, regardless the court requested inconsistent, be instructions are not statement was a correct whether it cause the to consider instructed Gailey, Idaho 97 v. law. Anderson See whole, alle as a the instructions (1976). P.2d 154 555 gation of is without merit. error whole, viewed When assert error in Plaintiffs next and correct adequately instructions court’s manufac giving instruction 10 that “[a] law, and and relevant the issues ly stated product that its turer entitled assume plain give certain refusal court’s will be Aside from properly maintained.” giving instructions and the requested tiffs’ objection the fact no was raised as error assigned as instructions of other I.R. required by at trial as instruction v. was not error. Garrett the McBrides 51(a)(1), it is a correct statement of C.P. Nobles, (1981); 630 P.2d 656 Co., F.2d law. v. Ford Motor Mitchell Schutte, v. Annau Co., Bullard (1st Cir.1976); v. Murray Bushnell, (1975); Davis v. Foster 220, 265 (1970); 110 N.H. A.2d 309 465 P.2d 652 Marshall, (La.App.1977). 341 So.2d Special D. Verdict assert Finally, plaintiffs allege also McBrides error prejudicial committed trial court confusing verdict form special in- essentially 11 which giving

763 con machine questions gone to the the had jury’s nearly ninety the answers days without maintenance. special tained in the verdict were irreconcil The record contains inconsistent, new trial further evidence that: at and that a least one ably McBride’s crew that basis. members was granted should have been on at times responsible checking the for that the oil argue gas the Specifically, McBrides and for chipper examining not misuse the finding chipper did the jury’s that McBride obstructions; its find chute for McBride with did not chipper the inconsistent work; negligent perform tuneups and, Tree was and service ings Davey that the maintain properly repairs McBride could not authorize or any misused or failed argu of this premise costing The basic maintenance in excess with- chipper. $25 was the only McBride one to Davey ment is that out authorization from Tree’s maintenance or to the perform ever use manager account or head office. The the time from of its purchase record contains evidence that the chipper until June of 1974 when the overnight accident was left and that it was outside However, occurred. being garbage receptacle. record discloses misused a Fi- that McBride was the expert foreman for the record contains nally, testimony approximately the last pri- fourteen period months that it could have taken an extended accident, or to the and while fatigue he had the develop of time metal responsibility for use, Therefore, maintenance and causing a failure. point of the record established that others per acci- supports record conclusion formed much of that Reviewing work. improper from misuse or dent resulted evidence most favorably prevailing machine, though maintenance of the even party below, drawing all reasonable necessarily res- McBride himself was favor, inferences in must, their as we Hig Accordingly, ponsible that misuse. ginson v. Westergard, 100 Idaho refusing grant not err in trial court did 51 (1979); Park, Furness ground jury’s new trial on 617, 570 (1977); P.2d 854 Brizendine v. special questions answers and 5 Nampa Dist., Meridian Irr. were inconsistent. irreconcilably verdict 548 P.2d that, 80 (1976), the record discloses argue McBrides also according expert testimony special confusing verdict form was because respondents’ witnesses, the primary and the trial court the term failed define probable most disintegrat cause of the fan questions “misuse” found in 1 and 5. Like ing was that it had been bent some time in “unreasonably dangerous,” the term the past aas of negligent result mainte defining. term “misuse” is self Even if it nance or misuse. experts testified that not, request the McBrides did not an bending alignment a fan blade out of defining preclud misuse and are will setting up result in resonance arguing ed from the failure appeal that would fatigue result ultimately metal to define misuse was erroneous. Hol and the apart. fan flying There was testi Peterson, 728, 730, land v. 518 P.2d mony employees of Davey Tree used a large tightening wrench in fan argue The appellants also belt which could have or resulted one form the special confusing more verdict was having the blades of fan been an Also, required question bent. that it answer to there of tree was evidence Tree Davey negligent. of whether limbs and getting other debris into the en gine question regarding Davey compartment which could or damage included in negligence properly bend the Tree’s blades. An examination of previ maintenance records verdict. This Court has testimony special Davey employer’s negli an employees Tree held that where ously was that the ma together negligence chine needed to be with the of a approximately gence, serviced tortfeasor, weeks, every non-employer two but con party the written mainte third of an shortly currently injury nance records indicate that before contributed jury applied negligence employee, employer neither the nor its sure- to defeat their ty can reimbursement for workmen’s McBrides claims. obtain compensation benefits from the employee argue the McBrides Finally, damages party who recovers from the third damages of in the jury’s determination v. Liberty tortfeasor. See Mutual Ins. Co. sufficiently illustrates that of amount $0 Adams, 151, Idaho (1966). 91 417 417 P.2d special the verdict jury the was confused We this extended rule in Tucker v. Union that isit undis- The McBrides assert form. Co., (1979), Oil 603 P.2d 156 damaged at least McBride was puted that to hold that a third enti- party tortfeasor is and that $21,857.15, amount of tled to have the re- judgment it against jury the disre- finding damages his to be $0 duced the compen- amount of workmen’s provid- 25 number garded paid sation benefits where employee con- that the “not to ed, part, was jury had employer guilty also been found of paid the amount him sider [McBride] negligence. case, plaintiff In Aet- this Casualty and in deter- Co.” Surety Aetna na, Tree, as insurer of reim- Davey sought mining damages. McBride's bursement from for the Ford and KPS Assuming that McBride had estab bene- compensation amount workmen’s explanation there is an damages, lished paid $21,857.15. fits McBride, Under setting a determination jury’s verdict rule, above stated KPS even if Ford and damaged was in the amount that McBride had been found on McBride’s strict liable jury informed the pleadings $0. claim, enti- liability would have been they surety Tree, Davey for Aetna, as $21,857.15 tled against to offset the Aetna’s for the workmen’s seeking reimbursement claim of Davey negligence. because Tree’s paid to McBride. benefits compensation Da- Consequently, concerning question not knew Aetna was jury Certainly the negligence in vey special Tree’s verdict Tree, its by Davey entitled reimbursed to be a com- proper form was and for necessary other finding liability, no set and, insured rights obli- plete determination of the and Further damages $0. amount parties to this gations of the action. See disregarded jury instruc more, even if Montgomery also Elevator McDrummond 25, no would have prejudice tion number Co., Lib- (1976); P.2d 966 jury’s McBrides since the resulted to Adams, supra. Ins. erty Mutual Co. v. was, damages or should determination totally independent its conclu been, have argue that the an The McBrides chipper was not defective. sion that special questions swers dem verdict jury’s in that onstrate confusion Judgment N.O.V. E. McBride against applied negligence the tri The McBrides claim that even not defense to though is negligence for motion denying their dis erred al court liability strict action. As the verdict. notwithstanding above, judgment found jury specifically cussed record contains previously, chipper, discussed that McBride did not misuse the jury’s evidence support substantial or fail to Davey but that Tree did misuse or failed finding Davey Tree misused showing that chipper, maintain properly maintain the On motion chipper. actions distinguished between the verdict, the notwithstanding the judgment Fur Tree. Davey of McBride and those of ad moving the truth of party admits thermore, forth the given instruction set the record evidence verse contained specifically principles negligence legitimately every inference stated: “This instruction refers Kelly Rowett v. drawn therefrom. See and KPS crossclaims between Ford Motor Hill, Idaho Inc., 102 Canyon claims.” Ski plaintiff’s not a defense to is must be motion (1981). The 639 P.2d appellants’ support There is nothing evidence substantial denied if there claim confused Interna- Barlow v. verdict. support the Davey negligence Tree’s question regarding Co., 881, 886, 522 appellants’ tional Harvester fendants-cross I.R. costs under very There 54(d)(1)(C). C.P. As to cross appeal competent substantial and evidence in judgment of the district court is reversed finding record to support jury’s proceedings. and remanded for further Tree Davey misused or failed to maintain ap- appeal respondents-cross Costs chipper, the trial court accordingly attorney No fees allowed. pellants. did err in denying motion judgment notwithstanding the verdict. J., McFADDEN, Pro SHEPARD, J. No reversible error been shown in having Tern., concur. record, judgment this we en- affirm the tered McBrides and favor DONALDSON, result. C.J., in concurs Ford liability and KPS on the strict claims. Justice, part BISTLINE, dissenting in II in part. and concurring

On appeal, cross defendant respon plaintiffs-appellants The were denied a dents Ford and KPS both assert error in trial to trial grant court’s refusal their motions fair in this case in because of errors attorney fees under 12-121 I.C. evidentiary § crucial rulings and in in- errors mandatory 54(d)(1)(C). costs under I.R.C.P. us, structions. Upon the record this before We find no in abuse of discretion the court’s case should be remanded for a new trial fees, to refusal award see attorney I.R.C.P. because of those errors. 54(e)(1) Develop and Minich v. Gem State The majority today holds in Part I-A ers, Inc., (1979). 591 P.2d 1078 that “the instructions, court’s taken as a the trial to grant court’s refusal whole, correctly “costs as a matter of instructed the right” under I.R.C.P. law applicable 54(d)(1)(C) 54(d) a to the error. is issues.” I.R.C.P. Supra major departure comparable 62. However, from the fed the trial in court failed up eral rule. It categories sets two basic duty instruct the jury on the law of strict prevailing costs allowable to a party, those liability, which comprised the plain- hub of which that party receives as a matter tiffs’ Therefore, case. reversible error was right, 54(d)(1)(C), I.R.C.P. those committed a new trial must be ordered. “upon court its discretion allow Blair, See Everton showing a necessary said costs were incurred, exceptional reasonably costs requested that plaintiffs The justice and should in be the interest complete provide court instructions party,” assessed the adverse I.R. 54(d)(1)(D). liability. C.P. did of strict concerning While the trial court the law not denying discretionary err in costs under requested Specifically, 54(d)(1)(D), falling as to those under costs a as to when the court instruct 54(d)(1)(C), Right,” “Costs as a Matter is defective and define product legally court those denying trial erred costs danger- “unreasonably phrase troublesome prevailing who the defendants under interpreted ous” as it has come parties defending against plaintiffs’ form instructions following law. The complaint. Accordingly, the court’s in- legal requested core “Costs a denying order defendants their as jury: struction to the Right” reversed, is and the cause Matter provided: remanded to the trial court for determi Requested Instruction # those KPS nation of costs defendants a defec any product “One who sells 54(d)(1)(C). and Ford under I.R.C.P. unreasonably dangerous condition tive is af- judgment property district or to his user or consumer all as to the de- respects except firmed in harm subject liability physical or user ultimate “(1) That defendant is engaged caused thereby if .1 consumer, or to property, his manufacturing the business of or selling, ...; product assembling provided: Requested Instruction # “(2) product was in defec- That defective, within “A product may be unreasonably dangerous tive condition meaning of that term used it the user or when left the consumer when it rule not liability, of strict defendant; control of the materials contains unsafe or defective “(3) proximate That defect was if of its funda- parts, part but also cause of injuries; bystand- users or design mental exposes “(4) inju- nature extent of the physical ers to risk of an unreasonable damages, any, ries and if sustained injury.” plaintiff.” Requested provided: A Instruction Second, in- majority upon given relies de- “A defective in its product may be A, provides: struction which necessary sign if it lacks devices safety “A product is in a defective condition its reasonable safety.” if, at the time it hands, leaves the seller’s provided: Requested # Instruction it is in a condition contemplated indicating “Ordinarily, evidence consumer, ultimate which will be un- or product a presence of defect reasonably dangerous to him. cir- its under all the permitting inference “The plaintiffs prove specif- need not a in- prove permit the cumstances will ic defect to meet proving their burden of the defective to be drawn that ference product that a is defective. the made it unrea- product condition of “A defect be proven by either dangerous.” sonably direct or circumstantial evidence. Proof provided: # 29 Requested Instruction aof malfunction product is circum- dangerous unreasonably “A is product stantial evidence of prod- a defect beyond it an extent dangerous if is uct.” the by contemplated that which would be requested It is in- plaintiffs’ clear that it, with the uses ordinary consumer who by struction the court’s fully 18 is covered to those common ordinary knowledge given instruction 11. the instruc- product who as to characteris- use the given the inade- woefully tions court are tics.” de- product when a is quate explaining then, laid out plaintiff In this way, design regard to especially with fective— in a of his case various elements defined the safety of de- resulting defects from lack under- clearly have jury that the could way vices, plaintiffs’ a central element of applied. stood and “un- case—and is the term what meant today has ruled However, the majority regard to reasonably dangerous.” With The is required. that much less than this in- was not jury that the plaintiffs’ claim on two instruc- relies majority principally a exactly comprises to what structed as finding for its given by tions the trial court itself defect, the contents design majority pro- plaintiffs’ that “the substance of (1) noting following: with elsewhere.” covered posed instructions [are] of beginning jury advised the at the points majority Supra at 62. First the was based trial claim provides: given and manufac- design upon both a defect of strict theory “To recover under ture; (2) advised that the trial court prov- the burden plaintiff has liability, that their defendants denied proba- as following more ing defective; each of the (3) that designs were than bly true not: this testimony heard extensive directed.at famil- thereafter recited 1. The instructions 2d. Torts Restatement, from 402A of § iar elements very duty design issue of whether there a manufacturer’s and manu- design existed defect; (4) included as products instruction 11 facture its so to eliminate among liability its elements of a strict cause injury risks of foreseeable unreasonable requirement product of action the “that the impact” the event of collisionor other unreasonably inwas a defective condition added). (emphasis Id. 553 P.2d at 1315 dangerous to a user it or consumer when a provide safety devices was This failure left control of the defendant.” With the plaintiffs’ central element of demon regard to the failure of trial court defectively product stration that any as to provide specific instruction are designed. The entitled to significance the defendant’s failure theory presented have their the case devices, include safety majority says proper instructions. Ever jury by simply “jury clearly aware Blair, supra. ton v. should not be the plaintiffs’ various factual theories of guess significance forced to at occurred,” why alleged design an defect circumstance which settled Idaho law. at trial court did supra it Similarly, is clear that “within the con- not err “in not singling particular out one ..., liability products concept text as evidentiary why particular claim to ‘unreasonably dangerous’ general- is neither defective, design i.e., failure include jurors ly understood nor within their Supra 62. safety devices.” experience.” Aquaslide common Becker v. The majority attempts to avalanche Corp., Dive 35 Ill.App.3d ‘N’ 341 N.E.2d justifications reader with phrase “unreasonably court’s instructions while the essen- missing dangerous” has itself spawned an entire problem: tial the jury was left without cases, see, e.g., line of Cronin v. J.B.E. Olson guidance as to what exactly comprised Corp., 104 Cal.Rptr. Cal.3d design defect. All the jury had was lan- (1972), P.2d 1153 as well an entire com- guage to the something extent that called very ment authors the Restate- design defect was at issue here and that if penned ment it. who Restatement See design such a defect existed and was unrea- (Second) Torts, 402A, of Comment i. Un- § sonably dangerous, plaintiff then the circumstances, patently such der it is unrea- entitled to their judgment. what But is merely sonable to toss such a difficult issue defect, design what it relationship does bear the of an lap jury into untutored for resolu- devices, to safety and what must exist be- the Contrary by tion. statement the fore the defect is “unreasonably danger- majority ‘unreasonably that “the term dan- ous”? The trial provides guidance court no is a definitional gerous’ itself term which on jury pivotal these issues and thus defining,” supra does not need additional at leaves the essentially speculate as to 63, language is a of distinct element what of ultimately these terms art mean. case in strict actions plaintiffs’ liability would, course, The issue of be Court as a substantial which this has defined matter of Farmer, ly 749, different if questions these were of the law. 97 Idaho at 553 P.2d Farmer, kind juror meant to be left to In the discretion. 1306. Court addressed this However, First, action, this is not is aspect liability the case. it of a strict cause of guidance clear that under Farmer v. International how the “unrea- and offered Harvester, supra, dangerous” the provide sonably requirement failure to could be safety more, devices may, comprise properly applied. without As the Court stated: design defect. This derives requirement aspect plaintiff’s “One further of a case is following from the statement in Farmer: that must requirement prove he product

“The intended of it ‘un- use the truck includes the defect rendered scope reasonably dangerous.’ within its foreseea- Restatement reasonably 402A, ble of i (Second) likelihoodthat the normal course of Torts Comment § operation Ordinarily, a truck be in a indicat- involved evidence accident; ing presence collision or other thus the of the defect it is product or under A J permitting through its inference to be shown to the jury or prove all the circumstances will also during Schoeppner’s testimony.” Mr. Su- permit the inference to be drawn that pra at it product defective made condition by The conclusionreached is majority dangerous.’’ unreasonably grounds. least patently incorrect on at two Farmer, added). (emphasis at 1313 supra First, it widely recognized that: plaintiffs’ requested jury “While evidence is in generally admitted 28 incorporates No. this holding verbatim. evi- any legitimate purpose, case for majority contents itself with and dence cannot be used another concurring by in an observation the Minne- party totally purpose by different “the Supreme drawing sota Court that and admitted offering it which is offered inferences is a matter of common sense Where, express by for a purpose. limited logic jurors reasoning and which the will one with- ruling, purpose, it is limited to normally use without express direction out it used an- exception, cannot 63. Supra, at court.” guidance of the purpose. any other It is manifest This, course, flies this in the face of in surprise other would result and rule Farmer, once holding Court’s own injustice.” again plaintiff deprives right Cream American Produce Co. Marion presented jury, have his case under Co., 214 Or. 327 P.2d ery Poultry & law, proper with instructions. The 1104, 1108(1958); also 88 C.J.S. Trial giving plaintiffs’ trial court erred in not A, 28, cases cited therein. p. requested instructions § should be reversed. expressly In this case the court limited trial instructions, the In addition to the warning use photographs, of the it also erred in Part I-B. There majority not in photographs that these “[did] did not commit' ruled way represent the condition purport abandoning origi- limitation it error B-702, particular chipper, placed photo- the use of certain nally Supra at injury.” time of Mr. McBride’s to evidence graphs of the admitted however, Later, when the 60. defend- (defendants’ A-J), allow- Exhibits 124 photo- again sought to display ants ing subsequent purpose their use for generally very purpose graphs for illustrating chipper’s configuration. configuration characterizing conclusion not- majority justifies objection was met chipper at issue and ing sought of the that “the use to be made photo- counsel photographs defendant KPS to charac- “for a limit- had been admitted graphs of the general configuration terize the “I don’t the trial court stated: purpose,” ed with was not inconsistent Chipmore chipper, limitation, nothing I recall and have any previous pho- court’s direction This clear such.” my indicating missing right-hand engine; from the side of the considering chipper condition (3) engine there were small branches inside the time, another, engine, it is to that and not compartment; (4) pin attaching a clevis you your should attention. direct governor cable throttle out was backed may You not utilize or consider evidence of completely; (5) only almost normal four of the or the other condition condition present; five drive belts on the chipper today determining its condition (6) being all fan blades showed evidence June, 1974, years ago. almost You five by foreign hit material and one fan blade relating testimony consider evidence and bent; (7) dead; battery (8) the inside chipper’s slightly condition before damaged accident, diameter of the shroud was and dent- after, slightly or at the time ed; (9) the shroud and radiator were loose. only.” the accident notes evi- tographs were not to be considered as be re- and must by error chipper dence of the condition of the B-702 versed. injury.” at at appellants’ Supra the time of pro- Second, court’s ultimate addition, the on majority depends 61. In denied clearly on the matter nouncement photo- circumstance some photo- use of any limitation by defendants were graphs upon relied This contradicted evidence. graphs as of- photographs already unlike other not was first jury which A earlier instruction. by plaintiffs fered into evidence both photo- the court by instructed Thus, majority concludes defendants. a limited only admitted graphs were 124 A because “Defendants’ Exhibits there was later instructed purpose and already J been ‘admitted through had best, is, a confused at no such limitation eventually go evidence [would] worst, apt is most which and, jury event,’ jury, for the at it was not error jury any Al- pronouncement. go the latest Defendants’ Exhibits with permit trial court though this confusion and error photographs by resultant did not in fact might have been by corrected an occur, a new trial must be ordered. at the given time the case jury, Although join I as to majority opinion the trial court give refused to the necessary IA, D, II, parts parts E and I dissent from instruction, though requested it was by the IB and C and dissent from the result. plaintiff.2 As recently as this term we not ed that contradictory instructions on mate rial matters prejudicial constitute error require reversal. Umphrey v. Sprinkel, Idaho, (1983) (Supreme Court No. Released 1983); October Yacht Club Service, Sales & Inc. v. Na First tional Bank of Idaho, North 673 P.2d 71 852, 863, 623 P.2d Ab Idaho, Plaintiff-respondent, STATE of sent a showing by defendants did not consider the photographs SCHROM, Defendant-appellant. Frank their chipper’s evaluation condition at the time of the accident —and thus 14069. No. not material the jury’s verdict —the con of Idaho. Supreme Court tradictory instruction would rever require sal as a matter of Idaho law. 2, 1983. Dec. case, In this it is clear such a show ing could made defendant. disclaiming The statement the trial court any photo limitation on the use of the graphs evidence was made in front as jury. quite proba The could have and bly photographs did consider —taken nearly years four after accident —as the chipper’s evidence of condition at the time of the accident. photographs all, were, after the same fact—a out in an exchange came before the a patently improper jury. Such use of clearly would have photographs been prejud and, plaintiffs icial3 we because that such prejudicial cannot say use of requested Appellant giv- following 2. that Instruction 3. Stocks testified as C be Charles problems en as follows: maintenance demonstrated (1) governor photographs: belt was inside relating have heard “You evidence extremely out and worn so that it could have Chipper question of the KPS condition flipped ungovemed out and left the machine today. time of it exists the accident time; (2) engine mounting an bolt was alleged June In 1974.

Case Details

Case Name: McBride v. Ford Motor Co.

Court Name: Idaho Supreme Court

Date Published: Oct 27, 1983

Citation: 673 P.2d 55

Docket Number: 13441

Court Abbreviation: Idaho