Vannoy v. Uniroyal Tire Co.

726 P.2d 648 Vannoy,

Jerry hus- and Nadine VANNOY wife, Plaintiffs-Respondents, band and appellants,

Cross COMPANY, TIRE

UNIROYAL

Defendant-Appellant, Cross

Respondent.

No. 15529. Idaho.

Supreme Court of

Nov. 1985. Rehearing Sept.

On Benoit, High Thomas B. Alexander & Sinclair, Falls, defendant-appel- Twin for

lant, respondent. cross Webb, Burton, L. Pedersen of Kenneth Carlson, Paine, Falls, Pederson & Twin plaintiffs-respondents, appellants. cross BAKES, Justice. Uniroyal, appeal- tire manufacturer has judgment awarding damages ed from a plaintiffs products liability in a action stem- ming explosion from a tire accident. Plain- appealed tiffs have cross from an order for portion damages remittitur of a for loss or, alternative, grant- of consortium ing a part new trial. We reverse in ques- remand for a new trial limited to the liability.

tion of Jerry Vannoy manager was a tire for a repaired business which sold and tires. On 6, 1980, Vannoy attempting October was mount a 16-inch tire on a 16.5-inch rim with mounting the use of a tire machine. Van- noy testified that on this occasion he was size; not aware of the ever, difference how- that, he further testified had he been aware, he would attempted have still mount the tire since he successfully had mounted 16-inch tires on 16.5-inch rims on previous Vannoy occasions. While was fill- ing the tire attempting get with air and properly against tire bead to seat rim, exploded. the tire explosion pro- pelled the tire and rim ceiling into the seriously injured Vannoy, leaving him with a'permanent impairment right to his arm. Vannoy complaint and his wife filed a manufacturer, damages against the tire Uniroyal; manufacturer, the wheel rim Co.; Kelsey-Hayes mounting machine manufacturer, Co., Inc.; The Coats a trade association, Association, The Tire Rim& Inc.; wheel, and the seller of the rim Terry granted Brennan. Brennan summary judgment and was dismissed from the case. Vannoys dismissed the Tire Rim& Associa- prejudice, tion without and Coats and Kel- sey-Hayes separately settled with the Van- noys prior during to or trial. proceeded The case against to trial defendant, single Uniroyal. major claim at trial Uniroy- the defendant design al was whether the tire contained a consisting alleged spot defect of an weak issues only law in this action on Uniroyal the bead of the tire. Other the included attribute fault under the strict Vannoy’s adequacy warnings, parties, al- one two product, and the al- leged plaintiff.” though misuse of the and the Even rim contributing permitted Uniroyal argue factors of the and the court leged the tire plaintiffs’ gence trial Although mounting machine. that the other two manufactur- originally ers, Uniroyal, proximately included case had claim, theory dropped accident, dur- place caused the the there was no to the trial and the case was submitted ing jury reflect verdict form for the to such solely jury theory conclusion, of strict liabili- the ty a and the verdict form directed design alleged for the defective plaintiffs’ Uniroyal’s and that the contribu- warnings. alleged inadequate up to We ting that tire and cause must add hold 100%. refusing and Kel- the trial to include Coats Uniroyal requested spe- a The defendant form, sey-Hayes on the verdict form which have allowed cial verdict would erred. court percentage jury assign to a of fault or the causation allegedly prior we to for the defec- In of our cases have Coats several machine, Kelsey- that, to mounting in tort actions based on tive tire held gence, allegedly for the defective wheel Hayes rim. The trial request. court denied the that, doubt “It is established without apportioning a negligence, when finding a jury returned opportunity must have the the to consider cause Uniroyal “contributed negligence parties of all to the trans- Vannoy accident” 10%. 90% action, parties to they whether or not be Vannoy’s damages found total also the lawsuit whether or not can $224,688, his wife’s loss of consor- be tium plaintiff liable to the or to be $74,895. damages post All at trial by operation either of law tortfeasors because exception of were with the motions denied prior v. a release.” Lasselle damages a for remittitur on the motion Co., 170, 106 Idaho Special Products trial for of consortium. The awarded court ruled that loss 483, (1983), 172, quoting 485 677 P.2d the evidence would Park Co. v. Pocatello Industrial $74,895 loss from support jury’s award of 783, West, Inc., 101 Idaho 621 Steel granted a new of consortium and therefore (1980). P.2d plaintiffs accepted remit- trial unless the [Tjrue apportionment cannot be “... the loss of consortium titur which reduced apportionment in- achieved unless cludes accepted $20,000. Vannoys damages to guilty all of causal tortfeasors claiming rights a reservation remittitur on contributing negligence causing or either appeal. question, to the occurrence whether assigning appealed several has they are the case.” Poca- error, assignment points being principal West, Park v. Steel tello Industrial Co. of the trial court allow the refusal Inc., 101 at P.2d at Idaho special verdict form to list Coats Heft, Comparative & quoting Heft from having all Kelsey-Hayes purpose for the (1978). Negligence 8.131 Manual § portion the causation for the acci- or a this issue in While we have not addressed injuries attributed to the mount- dent and solely upon liability tort cases based strict Vannoys wheel rim. have ing machine and many courts negligence, rather than have granting appealed cross from order problem responsibili- addressed how accept a plaintiffs remit- new trial unless damages ty in tort should allocated portion loss titur of substantial liability, a mix- upon strict cases based damages. consortium negligence liability. The ture of and strict Texas, in its recent deci- Supreme Court of I Co., sion of Duncan Cessna Aircraft (Tex.1984), We first address the has made com- issue of 665 S.W.2d whether the trial court dealing erred prehensive analysis of the cases refusing to submit cases, analyzing verdict form with that issue. per- mitted the jury to court stated: compare consider and percentage of causation which Coats’ and years, liability products litiga- “In recent Kelsey-Hayes’ mounting machine and spawned many so intractable tion wheel rim contributed to the neg- accident. problems of loss allocation between Both had previously settled out of the negligent case. ligent plaintiffs and strict- The trial court ruled the “jury can our brief ex- ly liable defendants that Motors [General pression of concern in tations In the ap- absence of omitted.] Corp. v. Simmons S.W.2d 855 portionment, ] [558 some manufacturers bear (Tex.1977) now seems understated. expense ] [Ci- total of accidents for which ... have had to tations Courts partly blame, omitted.] others are while other problematic wrestle with various indem- totally manufacturers escape liability nity recognize ‘shadowy and to doctrines though even they have sold defective distinctions between defenses in products. unacceptable. Either result Thus, negligence cases and cases.’ man- “Unfairness, however, only is not ufacturers have often borne accident virtually ignoring plain- serious flaw of generated part by costs the substand- tiff party and third misconduct strict plaintiff ard conduct of the or some third products liability actions. The failure to party. [Citation omitted.] allocate proportion accident costs in “Product suits which are not parties’ prevent relative abilities to are based treated anoma- to reduce those economically costs is in- system lously because the of allocation efficient. An ideal [Citation omitted.] provided in compa- Art. 2212a Texas [the system tort impose responsibility should negligence statute, rative similar to I.C. parties according to their abilities apply, does not and there is no § 6-802] prevent law, Existing harm. how- comprehensive system for loss allo- ever, encourages manufacturers to make existing cation under law. This court safety improvements that are cost not previously attempted to ameliorate justified, failing while to deter the sub- inequitable consequences the harsh and standard conduct of other tortfeasors. stemming from this anomalous treat- Thus, equitable and [Citation omitted.] products ment of loss allocation in liabili- distribution, rational risk a fundamental Thus, ty actions. recognizing instead of policy underlying imposition of strict nothing’ product ‘all or in issues misuse products liability, logically depends on cases, implied warranty and breach of we system existence of some compar- comparative apportionment created ing involving causation in cases plaintiff schemes. Neverthe- [Citation omitted.] party third misconduct. less, [past cases], our limited in efforts reasons, “For these most of the courts though positive, substantially have not addressing the issue have decided to confusion, alleviated the intolerable un- adopt comparative some form of causa- manageability, and inherent unfairness liability tion for strict tort. These products this area of Texas law. [Ci- preceded by decisions have often been result, tation As a we have omitted.] procedural extensive discussions of the implored repeatedly recognize been policy proportionate benefits of loss comparative some form of fault in strict allocation. We [Citations omitted.] products liability actions. [Citations ____ agree applying with these courts that omitted.] principles comparative apportionment products liability only to strict not fur- significant majority “A of the numerous policy goals thers the Restate- [the addressing question commentators (Second) 402A, ment also but Torts] § strenuously have urged implementa- simplifies the submission of comparative fault, tion of also referred cases. comparative to as responsibility or com- applying comparative “Courts fault parative causation, aas means of distrib- liability strict actions have taken several uting among negligent accident costs Daly v. General approaches. valid plaintiffs, negligent defendants, Corp., Motors 725, 20 Cal.3d 575 P.2d strictly liable defendants. [Citations (1978), 1162, 144 Ca.Rptr. 380 the Califor They pointed have out on the omitted.] Court, Supreme nia unencumbered products liability one hand that strict statute, comparative negligence extended absolute is, not liability product —that comparative judicially its formulated suppliers are safety not insurers of the negligence system involving to actions products. hand, of their On the other ‘all negligence liability both and strict claims nothing’ liability strict defenses are ‘logic, justice, because and fundamental outmoded undesirable doctrinal Id. 575 P.2d at required fairness’ it. resulting throwbacks in unfairness 1172, Cal.Rptr. 144 at 390..... plaintiffs, defendants, and to other interpreted purchasers “Several other courts have ultimately who ab- sorb the less through comparative negligence statutes as en- price setting. [Ci- 540 liability in In the strict tort. Sears, Co., compassing 802, 395 Roebuck & 118 N.H. Sciano, v. Dippel 37 leading case of instance, (1978), New A.2d 843 443, (1967), for N.W.2d 55 Wis.2d 155 its Hampshire Supreme held that Court Supreme Court example, the Wisconsin comparative negligence statute did negli- liability as characterized strict liability cases because the apply strict se, a matter gence as per actions for only statute referred law, from a violation because it arises recognize[d] gence, ‘judicially safety requires no liability a standard strict comparative concept foreseeability harm. showing of It recogni- parallel legislature’s cases then, followed, com- the Wisconsin negligence.’ 395 tion area apply parative negligence statute must v. also Stueve 848, See A.2d at liability as well. Minnesota has Motors, to strict Honda F.Supp. 457 American the ‘Wisconsin rule.’ See Busch adopted 740, (D.Kan.1978) (predicting that 751-56 Co., N.W.2d v. Busch Construction 262 Supreme Court would the Kansas Jensvold, (Minn.1977); see also statute, comparative negligence apply its Approach Allocation A to Loss Modern adopt a com- probably instead but would Liability Among Tortfeasors Products cases parative system strict (1974); Cases, law). Minn.L.Rev. 748-51 principle of common 1 com- Comparative Fault Act Uniform § (1977). ment “Many and commentators courts Angelo Foundry & Suter San “In system type of loss allocation labeled this Company,

Machine N.J. compara- choose comparative We fault. (1979), Jersey 145-46 New A.2d it is con- tive causation instead because applied compara- Supreme Court also in cases based ceptually accurate liability negligence to strict tive statute warranty of liability and strict breach characterizing strict tort. Instead ‘fault,’ theories in which the defendant’s however, se, negligence per liability as culpability, in the sense traditional New Jer- the court determined the is to at The trier fact not issue. ap- to the sey legislature intended allow defec- compare harm caused the the according portioning of costs to accident by the product the harm caused tive with ‘fault,’ negligence. concept subsuming defendants, any negligence other given Id. at 145. One reason for this plaintiff.” settling tortfeasor Jersey adopted New conclusion was that Co., 665 Duncan v. Cessna Aircraft compara- of the Wisconsin provisions original). (emphasis in 424-27 S.W.2d at after Wiscon- negligence statute tive legislature In 1971 Chapter enacted Dippel already Supreme had sin Court 8, 6, Code, Title provides Idaho which liability. strict applied its statute to comparing contributory negligence be- distributing an court then observed parties percentage basis, tween on a departure from a is a unsafe states: other required standard of conduct —in Comparative negligence “6-801. —Ef- words, Accordingly, fault. the court contributory negligence. fect of —Con- required the com- the statute held tributory negligence shall not bar recov- negligent and parison of fault between ery in any person an action by or his parties. Other courts have strictly liable legal representative damages to recover reasoning applying com- used similar negligence or gross negligence re- negligence lia- parative statutes to strict sulting injury person in death or in to Airlines, Valley bility actions. See Sun property, negligence if such was not as Corp., 411 Avco-Lycoming Inc. v. great negligence gross negli- as the (D.Idaho 1976); Kenne- 598, F.Supp. 603 gence person against whom recov- 439, dy City Sawyer, v. 229 Kan. 618 ery damages is sought, allowed (1980); Baccelleri v. 788, P.2d 796-97 proportion in the shall be diminished to 3, Hyster Company, 287 Or. 597 P.2d negligence amount of attributable 351, (1979). 354-55 person recovering.” jurisdictions “Finally, some courts comparative This negligence negligence statutes scheme was comparative with applicable products held liability interpret statutes actions declined those v. negligence. See Henderson based encompass products liability strict American, Inc., Cominco 95 Idaho cases, judicially but have nevertheless (1973). P.2d 873 With this Court’s adopted separate comparative causation adoption liability of strict it was v. Thibault systems for such cases. result, suggest different clearly “contributory negligence in the held that interpretation follow the we should product, of misuse sense Supreme had Court which the Wisconsin voluntarily unreasonably pro- sense of comparative negligence upon their danger placed known are ceeding in the face of a 4-5, at prior to 1971.” 102 Idaho statute Shields liability.” good defenses to strict omitted). (footnotes Co., 95 Idaho 674, 677, 624 P.2d at 386-87 Morton Chemical v. (1974). necessity of This 518 P.2d 6-801, the Prior to the enactment of I.C. § contributory negligence of comparing the already had con- Supreme Wisconsin Court liability of a de- party with the strict one comparative negligence statute strued its con- fendant resulted the well-reasoned theory of equally applicable to the being the United States District Court clusion of theory of liability as well as the strict District of Idaho that: for the District gence, the United States just as Valley comparative Sun “The rationale of held in the for Idaho Court Sciano, products in a Dippel apply meant to as well case. See 37 Wis.2d action, may (1967). that misuse Accordingly, compa- such N.W.2d 55 recovery. Apply an absolute bar to responsibility comparative be ing causa- rative comparative negligence stat Idaho’s liability cases was consistent tion in strict with, way in this is consistent with the ute probably and indeed mandated liability, policy underlying strict placed upon the Wis- prior interpretation namely spreading 6-801, of loss to manufac consin version of I.C. § turers who are best able to absorb it. Odenwalt v. legislature adopted. Idaho conduct, finding blameworthy Upon a Zaring, supra. asked, jury in this case was consist respon- comparative scheme In Idaho’s law, assign percent ent Idaho sibility: par age to causative conduct of the “ that, doubt without ‘It is established to this lawsuit.5 ties negligence, a apportioning when consider opportunity to must have culpability, blamewor- 5. Once "[Footnote] trans- parties to the negligence of all some form of fault is determined thiness or action, be or not whether occurred, fact to have then the trier of they can whether or lawsuit and denoting 'quality’ of the act or omis- labels plaintiff or to the sion, liability, negligence, liable to whether it be strict se, etc., negligence per unimportant. of law or by operation becomes either tortfeasors Thus, underlying issue in each case is to v. release.’ Connar prior because of analyze compare the causal conduct of Milwaukee, Equipment Shore West of Valley party, regardless of its label.” Sun each 660, Inc., 42, 662 N.W.2d 227 68 Wis.2d Airlines, Avco-Lycoming Corp., Inc. v. 411 (1975). 598, (1976). F.Supp. 603 “ is that for such ‘The reason rule] [a decision, in Valley to the Sun Subsequent achieved cannot be apportionment true 1, Zaring, P.2d Odenwalt 102 Idaho 624 includes all apportionment unless (1980), 383 this Court was faced with negligence guilty of causal tortfeasors either interpretation of the com- specific issue of oc- contributing to the causing or statute, negligence 6-801. parative I.C. § they or not question, whether in currence The stated: Court Heft, Heft & the case.’ parties to are 1971, statute, in “The above enacted 8.131, Negligence Manual Comparative § virtually Wisconsin com- identical to the Ind. Park Co. Pocatello (1978).” at 12 negligence in effect in parative statute 783, 787, West, Inc., 101 Idaho v. Steel one of a few states 1971. Wisconsin was (1980). 399, 403 P.2d 621 concept compara- of pioneered practice having The of list or find negligence____ This court has con- tive contributing ap all causes has even been sistently statute which is held ‘[a] plied are unknown. Jen parties where the adopted jurisdiction another will be from Shank, 565, sen v. 99 Idaho 585 P.2d 1276 adopted prior with the presumed to be (1978). practice approved The has been upon byit the courts placed construction adopted many involving of our cases Nixon v. Tri- jurisdiction.’ such See, e.g., Run circumstances. different ber, 200, 1093, 198, 100 Idaho 595 P.2d Inc., Products, Miles, v. Shearer Lumber corn (1979). State v. 97 Idaho 1095 389, (1984); Las 107 Idaho 690 P.2d 324 v. Elec- 396, (1976); Doggett 545 P.2d 484 Co., Special America, selle v. Products 26, 106 Idaho Corp. Idaho tronics 93 170, (1983); Pocatello Ind. P.2d 483 (1969). Therefore, 677 in the 454 P.2d 63 West,Inc., 101 783, Park Co. v. Steel Idaho legislation which absence of some other comparing responsibility alleged of all Union Oil (1980); Tucker v. 621 P.2d 399 special form, tortfeasors on a 590, verdict Calif., 100 Idaho 603 P.2d 156 Co. of alleged whether or not those tortfeasors Shank, 99 Idaho (1979); Jensen v. Although parties prod are to the action. (1978). have never While we P.2d 1276 liability liability claims on strict prod ucts based specific in a practice considered the are a common law innovation of this Court solely liability based ucts action case, from the Shields emanating legis liability, policies under theory of strict comparative the issue responsibil lature did address attributing lying practice responsibility Liability tortfeasor, the Products Act whether or ity every alleged legislature action, appli act equally are party adopted comparative same scheme of liability actions based products cable liability responsibility products actions upon liability as as actions based strict well comparative had enacted negligence theories. or other tort Compare negligence 6- statute. I.C. §§ culpability, blameworthiness “Once interpreted We 1304 and 6-801. have I.C. by the form of fault is determined some 6-801, comparative negligence stat § occurred, then the trier of fact ute, negligent require all actors contrib denoting ‘quality’ of the act labels omission, uting to the causation of accident or liability, it be strict whether injuries to be listed on the verdict se, etc., per be- negligence, negligence form, or not whether are Thus, underly- unimportant. comes Special the action. Lasselle v. Products analyze ing compare is to issue each case Co., supra; Ind. Park Pocatello Co. v. each the causal conduct of West, Inc., supra. Steel con Reason and party, regardless its label.” Sun statutory interpretation sistency in dictate Airlines, Avco-Lycoming Valley Inc. v. products liability cases on strict based (1976). 603, n. 5 Corp., F.Supp. liability should the same. be treated I.C. (Emphasis supplied.) 6-1304, comparative providing for re § sponsibility usually liability include Products actions actions, products liability negli- liability including all both theories 6-801 which substantially identical to I.C. § gence liability. present In the and strict responsibility provides comparative liability negligence both and strict They actions.1 should be treat pursued by plaintiff until theories were ed the same. trial, when the nearly end of the argue that Plaintiffs evidence theory The use of gence dropped. listing support Coats and schemes, did not differing depending allocation Kelsey-Hayes on a form negligence or upon theory was whether the prima liability case of strict since liability, merely add to the strict facie against each manufacturer. already compli- was not shown existing in confusion argument requires a This review of the law. cated area expert plaintiffs’ own wit evidence. act, Chapter ef supplied evidence to the ness detailed Code, Title Idaho states: mounting the tire machine manu fect that applicable law of previous existing “The Co. and the wheel factured The Coats liability is modified product this state on by Kelsey-Hayes contained manufactured act.” to forth in this only the extent set warnings inadequate design defects and 6-1401. I.C. § In contributed to the accident. the modi- Nothing liability act mounting in the tire machine expert’s opinion the required practice pressure approved designed the with a fies should have been 1. The comparative proportion identical nature of those two in the negligence to the amount of responsibility clearly statutes person recovering.” is evident when attributable to the they are viewed in Comparative tandem: responsi- 6-1304. "[6-1404] bility. Comparative responsibility shall not Comparative negligence “6-801. — —Effect recovery by any person bar in an action or his contributory negligence. Contributory — legal representative damages to recover gence for recovery by shall bar in an action product liability resulting injury any in death or person legal representative to or his re- to person property, responsibility if damages or such negligence gross negli- was cover great gence resulting responsibility person not as as the injury person in in death or to against recovery sought, property, negligence whom if such but was not as damages great gross negligence as the allowed shall be diminished in the person against recovery sought, proportion responsibility to whom the amount of any damages person recovering." but allowed shall be diminished attributable whether, over-pressurization regulator and an giving line question merely “The helped system which would produc- alert to the evidence full consideration He also testified that accident. legitimate avoid the by plaintiff every ed in that it acted therefrom, was defective the machine which can be drawn inference contributing “launching pad” as a as a substantial defect expert accident. The also to the causing injuries factor in factor suffered. in this wheel involved testified The conduct of the [Citations omitted.] Kelsey-Hayes con- by manufactured case need not be the sole factor manufacturer accident. He described the factor, to the causing tributed primary in or even the design” “anomaly in of the 16.5-inch merely a sub- plaintiff’s injuries, improper but permitted an wheel which Fouche v. stantial factor therein.” 701, to be mounted Corp., 107 Idaho similarly sized 16-inch tire Chrysler Motors pre- safety (1984) feature the wheel without a (emphasis P.2d in being from introduced on venting the tire original). design This defect was a the wheel. case, present upon In the based the evi- explosion and was the precondition of by plaintiffs’ expert dence own submitted bomb,” as stated the ex- “fuse of Fouche v. applied in and the standard expert testified that the pert. Finally, supra, Chrysler, jury have been would markings on the wheel warning and size allocating entirely justified to the mount- inadequate. were Coats, ing machine manufactured and to The evidence detailed above was much Kelsey- the wheel rim manufactured presented more extensive than the evidence Hayes, responsibility some or all of the Chrysler Corp., in Fouche v. Motors 107 proximately causing damages to the (1984), Idaho 692 P.2d 345 which we plaintiffs. Accordingly, it was reversible there held to be sufficient to submit to the error for the trial court to refuse to include jury liability. on the issue of strict verdict form. Lasselle v. jury them on the Fouche, Co., only presented by evidence Special Products 106 Idaho that, accident, plaintiff prior (1983). P.2d 483 plaintiff performed had a test which con- assert that Plaintiffs nevertheless sitting sisted of in the driver’s seat and prima against case the Coats Com facie leaning forward to find that the seat belt pany Kelsey-Hayes require a body steering did not allow his to touch the among things, showing, of when the wheel. There was further evidence that in mounting rim tire manufactured; machine or wheel were body impacted the accident his on the steer- the standard the indus ing wheel and the windshield. The Court time; they try at that and whether or not evidence, held that the inference from that changed had been altered or without their together testimony that the seat belt prior knowledge or consent to the accident. collapsible steering wheel de- were Plaintiffs assert that failure to make such signed prevent impact injuries, such showing precluded judg would have present was sufficient being ment rendered Coats and issues of defects in the seat belt and steer- Kelsey-Hayes, and thus should ing proximate column which were causes of have been listed on the verdict. injuries. Regarding quantum Fouche’s decision in Fouche v. However, prior our issue, necessary of evidence to raise a Chrysler, supra, did not require such Fouche stated: the Court however, showing. importantly, More where, “Finally, we note that as in the comparative responsibility determining present the motion for ver- directed necessary comparative causation it is not proximate dict concerns the issue of persons that all included on the establish cause, only it is rare situation be liable for some or all verdict form would which reasonable minds could not reach damages attributable to con their different conclusions that the trial court Indeed, product. many in duct or their justified removing in the issue from instances, possible establish it will not be to jury. the consideration of the [Citation including im liability for various reasons gen- The issue of causation is omitted.] erally settlement, munity, join par failure to aas jury reserved for the unless the limitations, ty, identity, unknown statute of proof is so clear that all reasonable possible or numerous other causes. de minds would construe the facts and cir- termining not to include addi whether or cumstances in the same manner. [Cita- form, ques parties on the verdict the tional tion omitted.] judgment or tion is not whether a would person, that be rendered could in was subse- ence size. association action, or not his conduct or his whether caused injuries. from quently the and the dismissed to the and accident contributed requests for admissions were not answered Thus, in case the Coats the trial, prior plaintiffs to or denied. Just Kelsey-Hayes, and the issue Company requests a for made motion to have the mounting the tire machine and Whether The defendant ar- admissions “discarded.” cause, in in rim were the whole wheel requests be deemed gued that the should part, plaintiffs. injuries to the accident they since were not answered or admitted denied within fifteen were, If verdict required by days as jury to allocate require 36(a). granted form should that causation to The trial court I.R.C.P. motion them, regardless of requests to for admis- discard Kelsey- Company whether Hayes Coats of the under the circumstances case. sions rendered judgment could have a ruling. find no court’s We error trial damage against them as of the a result plaintiffs’ in essence a The motion motion was mounting machine and 36(b) caused the wheel their tire pursuant to I.R.C.P. which rim. permits the trial court to withdraw admis- No appropriate under circumstances. sions the trial Accordingly, conclude that we Uniroyal plain- to since prejudice occurred required include names court to their was depositions in and inter- tiffs’ statements rogatories form attribute to their order plaintiffs’ position out set prod to evaluate and of the re- adequately denied substance (the mounting and the the tire machine ucts by the as- quests for submitted admissions rim) portion cause of wheel sociation. accident which those two items contributed or Spe responsible for. were Lasselle B. Products, Inc., Ind. supra; Pocatello cial Inc., West, It is supra. Park v. Steel Co. We also find no error the trial present enough in the case that evidence Surbaugh to court’s allowance Dr. fy testi Kelsey- Coats and record identified treating physician place plaintiff’s con Hayes as manufacturers was who unavailable at trial. Dr. Sur proximately caused taining defects which baugh ing physician, plaintiff’s an associate of treat to, part, the in whole or in or contributed testimony and his was of not, complained of. We need damages do being substantially as the same as fered the be, not, action what extent decide testimony treating physician’s would actually litigat issues judgment testifying from the same further upon non-parties, binding ed treating physi medical which the records litig subsequent Kelsey-Hayes, Coats and Uniroyal from. cian would have testified objected Dr. testimony on the basis that ation.2 Surbaugh surprise was a witness II Uniroyal opportunity pre had no on reversing for new trial are Since we testimony. trial pare for the court unnecessary for liability, it the issue testimony, subject being admitted the raised the other issues all of address us to upon showing Uniroyal’s later excluded However, will we appeal. on by Uniroyal cross prejudice. did not examine on error assignments of Uniroyal’s address nor did it ever take the Surbaugh, Dr. on retrial. reoccur may appeal which any preju opportunity to articulate basis A. Uniroy dice to trial court. Neither appeal al articulated to this Court on how it defendants, to trial one Prior testimony. prejudiced the doctor’s was The trial court’s decision to re submitted Rim Association & the Tire allow such plaintiff seeking admission an quests 26(e)(4) discretionary. witness is I.R.C.P. tire mounting 16-inch aware states, seasonably sup “If fails party explosion, in an result rim could a 16.5-inch plement responses required in this his attempted to he would and that mount 26(e), may rule the trial court exclude differ- he realized had tire by person injured Plaintiffs have damaged); settled those manufactur- both Holve v. However, Draper, settling (1973). ers. not neces- 95 Idaho tortfeasor is P.2d sarily joint The issue released tort- of how the Kelsey-Hayes from Coats and agreements may settlement feasors for actions in contribution or indemnifi- affect obli- 6-804, -805, -806; Annot., gation indemnity I.C. Uniroy- §§ cation. contribution or (contribution (1949) joint al is not A.L.R.2d 196 at issue in this between and we venture no by opinion tortfeasors as affected with one or settlement resolution of that issue. witnesses____” damages moti- conclude were excessive and testimony of We that the vated trial by passion prejudice, its discre- court did not abuse that the trial tion testimony weighed to con- refusing properly the evidence exclude court sider what been a he testimony substantially sim- he would awarded had was have since the Uniroyal notified of juror. ilar was to that cross ex- supposedly prepared and only by question “The answered amine. evidence, of the and considera- weighing tions doing justice. That of substantial court, of confer- function the trial is the ring upon Ill and com- power that court a question whether address of We now obligation else- unequaled mensurate where granting new trial the unless court erred trial jury. in civil cases tried to a accept reduc plaintiffs a remittitur courts, jurors, have the Trial unlike “... ing damages loss of consortium advantage having and deter- of heard $20,000. $74,895 argue Plaintiffs from on damage many hundreds claims. mined appeal tha the trial court abused cross exactly jury A trial court in a trial hears granting its the remittitur discretion hears, jury evidence and the same makes as the alternative, and, Uniroy new trial. his own inward assessments argues appeal al on that the loss of consor So, credibility weight. after a and when damages reduced to tium should have been returns a verdict which trial thereafter competent evi zero and that no substantial assailed, as excessive either finding dence was submitted of sustain inadequate, judgment as is then called a trial court’s damages. consortium The trial loss of him play, requiring into that “the actual evidence intro court found evidence____ of the weighing very on loss of consortium was duced sketchy justify would not award of an $74,895.81____ damages in the amount of prem- trial is “Where a motion for a new grant Accordingly, I will mo defendant’s damages, inadequate on or excessive ised the plaintiffs agree tion to reduce the new trial for a unless weight evidence trial court must damages Nadine award to compare jury’s then award $20,000.” Vannoy for loss of consortium to given there been what he would no it had accepted attempt Plaintiffs ing the remittitur disparity great If so jury. rights appeal.3 to reserve its on appears to the trial court damages An award of for loss of given influence of under the award supported by consortium should be stantial sub- ought prejudice, passion or competent evidence of the loss Finch, Ida- not stand.” Dinneen v. ho (1979) services, society, companionship, re- sexual 624-25, 579-80 603 P.2d lations, etc. Husband & See Am.Jur.2d original). (emphasis However, (1968). we Wife §§ Therefore, plaintiffs’ appeal we cross agree plaintiffs that for loss an award not abuse evidence find the trial court did damages sup- may also be consortium weighing discretion ported by circumstantial such as evidence damages were exces- concluding that injury hospitalization. the extent of the In only support a the evidence could sive and present plaintiffs presented no $20,000 of con- damages for loss finding of of the wife direct evidence husband and infringe upon The order did not sortium. relationship or the relation- losses to that plain- plaintiffs’ right to a trial since damages ship. The loss consortium accept a new could have elected to tiffs all, only supported, by cir- could cumstantial evidence of injury, hospitalization from Mrs. if at jury trial. the extent for error we have found no basis Since an inference damages or the affecting the evidence of very Vannoy’s testimony limited damage jury’s formulation of a amount lifestyle which states that “our home court and properly remitted the trial accident____” changed after the plaintiffs, reverse accepted we the trial and remand the judgment of court considering mo When defendant’s trial with this for a new consistent tion a new trial or dam case reduction of liability. ages opinion but limited the issue upon the assertion based defendant’s right plain- accept plaintiffs’ does not appeal contest we cross without ad- appeal grant dressing accept tiffs to cross party of the new trial the issue whether a can Therefore, having accepted after appeal remittitur. and then a remittitur from it. appellant. on loss of consortium is affirmed. The attorney Costs No fees on appeal. majority correctly quotes rule of Din- neen v. Finch which authorizes a district court to enter remittitur: DONALDSON, C.J., SHEPARD, J., disparity great If the “... is so that it concur. appears to the trial court that the award HUNTLEY, Justice, concurring part given passion was or under the influence of dissenting part. prejudice.” majority opinion by citing Dinneen I. implies properly that the trial court con I majority concur in Parts I and II of the applied sidered and the Dinneen standard. opinion. provides Part I is, The fact the trial court no made such gence of the wheel manufacturer and the mounting machine manufacturer finding, simply ruling that there was not should enough (only sketchy) evidence in the placed have on been record to sustain the award. We cannot comparison form for of causation. I con- properly supply finding passion cur therein with some reservation in that prejudice appeal. pertinent portion might the better rule of law on the verdict form tobe submit of the memorandum order is noted below in only parties actual footnote.1 exception the case. An not employer would be simply The trial court stated the evidence properly before the court such as an not, sketchy. Sketchy was facts if there are employee suing in a case an jury, the record to sustain the negligence party where his of both a third judge power does not have the to overrule employer is involved. the he under judgment and substitute his unless Only where the issue of the fairly acting can conclude the “phantom fully litigat- of the ed can the defendant” is passion prejudice. Although Mrs. jury realistically percent- fix a Vannoy only pages testified for two case, age of causation. the instant had transcript, the trial court should have con- Uniroyal truly percentage desired to have a testimony sidered the extensive injuries about the negligence assigned missing to the two Vannoy to Mr. from which the ef- parties, party it could have filed a third relationship fect on his to the marital com- complaint cross-complaint against them munity is most Vannoy obvious. Mr. had a holding though them in the case even arm, type” injury upper right “blast to his plaintiff prior had dismissed them to trial. multiple operations including he had skin Accordingly, my preference would be that grafting and installation and removal of require briefing analysis we further plates, injuries he sustained to the muscles rendering counsel before this decision bones, linings injuries and ulnar over the to his may unanticipated conse- nerve, injuries to the tendons that time, quences. Being forced to vote at this thumb, developed relate to the and he join majority upon analysis I based chronic arthritis from which he was still Company, Duncan v. Cessna Aircraft suffering at the time of trial and from (Tex.1984). S.W.2d proba- which the doctor testified he would bly never recover. II. my vantage point III of I from Part From have noticed an dissent respectfully I increasing propensity among remittitur both trial and opinion wherein majority court, having 1. The reviewed the damages briefs on file duce the Vannoy awarded to Nadine hearing argument, oral $20,000.00. took the Motion for for loss of consortium to regarding Remittitur noy the claim of Nadine Van- ORDERED, IT IS HEREBY ADJUDGEDAND opinion under advisement. A letter DECREED: April issued 1984. The Court stated therein: That Defendant’s Motion for Remittitur “The Court finds that the actual evidence in- troduced on loss of consortium was hereby granted and that Vannoy’s Nadine loss very $20,- damages of consortium are reduced to sketchy justify and would not an award of 000.00. damages $74,895.81. in the amount of If I That Defendant’s Motion for a New Trial is sitting were I would have award- granted hereby agree unless Plaintiffs to reduce $10,000.00. damages ed I feel that the judgment acknowledge as set forth above and jury’s weight. decision also deserves some writing days same in within 7 aor new trial Accordingly, grant I will defendant’s Motion shall be ordered.” plaintiffs agree for a New Trial unless to re- usurp finding Defendant moves this Honora- judges to the fact appellate 59(a)(5) to Rule pretexts. Court, jury pursuant under various province of the ble promise Procedure, judge’s oath of office includes A the Idaho Rules of Civil and federal and state support and defend the an justice, in the interest of Order of constitutions, provide both Remittitur, reducing jury verdict of as to the jury is the finder of facts such accurately damages to reflect the Plain- damages should restrain extent of damages. tiffs’ —we gathering from unto ourselves ourselves foregoing In the alternative to both people placed in power which the Motions, Defendant moves this Honora- jury. hands of the 59(a)(1), (3), Court, to Rules pursuant ble Accordingly, I would reverse the trial (5), (6) (7) granting a and for an Order and court’s decision relative to remittitur new trial. Defendant’s Motion for a him to reconsider his decision remand for upon following based is New Trial of the Dinneen proper application under a specific during errors which occurred standard. the course of this case: BISTLINE, Justice, concurring in the (3) 59(a)(5) jury Rule verdict of the —The HUNTLEY, Justice, opinion as to Part I damages grossly is as to excessive dissenting from majority opinion, evidence, under unreasonable Part II. given result of and under the was the why To understand Justice Hunt- better passion prejudice. influence correct, ley’s views are I submit that Uni- 59(a)(6) (4) contrary Rule verdict is —The royal seeking precise has been less than weight to the of the evidence. The ver- Vannoy a remittitur from both Mr. contrary dict is to law. Some of the stated, Vannoy. Uniroy- Mrs. Otherwise contrary reasons the verdict al’s own confusion without confused doubt evidence or law are as follows: court, majority the trial and the of this may prefer to Court remain confused rath- (g) presented by The evidence Plain- er than examine the record. regarding damages specula- tiffs was brief, opening Uniroyal In its states as upon conjecture. tive based Issue 5:No. (h) presented by No evidence Did the trial court abuse its discretion regarding damages sustained Plaintiff failing to reduce the verdict awarded to Vannoy. Nadine Vannoy, failing Nadine to order a (i) jury grossly The verdict of the ex- new trial? ceeded evidence of Plaintiffs dam- points Under section V of its and authori- ages upon passion or and was based ties it states: prejudice. damages The award of to Nadine Van- added). R., I, p. (emphasis 242-245 Vol. unsupported by the evidence. noy supporting Finch, submitted no brief to Dinneen v. 100 Idaho Cantrell, following The is the sum Papp trial court. v. P.2d 575. 96 Idaho Uniroyal’s argument oral Seppi Betty, total of directed 536 P.2d 746. (1978). obtaining damages at remittitur of the Idaho 579 P.2d 683 plaintiffs, Jerry Vannoy awarded to both argument, p. “Uniroyal In its it states: Vannoy. Uniroyal argued and Nadine moved, trial, at the conclusion of the and no more: much upon remittitur or new trial the basis brought, pursuant We’ve also to Rule unsupported by the verdict was the evi- fo,r 59(a)(5), a upon passion prej- dence motion remittitur. As this based R., I, aware, p. Jerry Uniroyal’s post- udice. Vol. 241.” Court awarded $224,688.43. judgment double-barreled, Vannoy motions were awarded $74,895.81. use of the word “and” indicates: Vannoy Nadine prejudice. Closely read it is a con- presented sion or evidence respect to the With cession, fact, if not absolute at least tantamount did, his he break Vannoy, Mr. one, being recit- that the scant evidence arm had arm, his was evidence there suggest, may “may enough to it ed not be broken, he had lost some and that been finding enough justify a fully not be work, his arm was not and that setting figure of However, was also evi- there [the healed. $225,000] passion was in fact based heal- still that the arm was dence working, prejudice.” currently ing process, that he’s job than a better job, he now has addressing the paragraph, second lifting before, he’s he’s ever held finding damages sustained Na- jury’s arm, feel that the using his and we and brought to claim or issue Vannoy dine —the $225,000, jury of rendered verdict preju- appeal, argues passion not us on although may not be it approximately, any evi- dice, “put not but that she had enough may enough suggest, it to loss,” injury or her dence on as to her fact, was, in finding that it justify a evidence, “the of which lack of because sheerly is passion, prejudice or based on and, evidence,” if may weigh the Court that, the Court should speculation and may improperly, believing jury acted grant the remittitur. damages. reduce award to Nadine respect to the With forgot that he had apparently Counsel only testified you recall she Vannoy, as damages under both plaintiff’s attacked stand, didn’t on the a few moments for 59(a)(6), 59(a)(5) made it far and Rule injury or as to her put any evidence on argument whether clear at oral less than loss, Jerry periodi- said only that she her weigh Nadine court to the trial he wanted remit- feel that a cally his arm. We rubs 59(a)(5) or Rule Vannoy’s damages under in absolutely essential titur that the (a)(6). surprising then It is not notwithstanding, or judgment should motions, court, was of ruling in on the trial granted. Under case not be a new trial it to reduce Uniroyal wanted the view evidence, may weigh the the Court law Vannoy to that Nadine award to jury verdict if decides the the Court thought was sustained he amount which prove enough suggest, not great did so judge That the all of evidence. im- suggest jury that the acted no which makes by an order is evident may it order a remittitur. properly, 59(a)(5) of Dinneen. mention of Rule plaintiffs, in his memo- for the Counsel I, R., order was drawn p. 259. That Vol. opposition in to our motion R., I, p. randum Vol. Uniroyal. by counsel for remittitur, cases. listed numerous those, stay ignore We ask the Court what Jus Accordingly, is much to there cases, it heard as the court what with the Na the issue of Huntley states as to tice basis, of oth- hearsay statements not the damages. For certain Vannoy’s dine urge the publications. We er this issue is discussion of majority in their here, vs. in Kommen as the Van Court reading of the of inattentive guilty here grant the remittitur. Weyerhauser to primary ignoring in as it is record Tr., pp. 704-05. Vol. responsibility under the comparative issue— in Act—which Liability contained Reform foregoing argument Products The of a motion up on denial first and fourth comes paragraphs, short it addresses four the denial of which second motion The for new trial—a are but informative. of which mandated, assuming that absolutely for a re- the claim paragraph addressing — recently in it said damage meant what Vannoy’s award the Court Jerry mittitur of Mason, Boise, Rigby and Inc. v. (a pursued not be claim which would Scafco (1977).1 566 P.2d pas- Idaho only mention of appeal)—contains and Justice Bakes. Sitting aldson on that case 1. A unanimous decision. today’s majority Justice Don- were Chief from concurring simply BISTLINE, Justice, dis- it is ad- Thus seen Lasselle precedent of Pocatello Indus- opinion. hered senting majority from the trial, But both cases. neither alteration of I.C. majority’s dramatic authority for Pocatello nor Lasselle are Liability seq. Product 6-1401 et § —Idaho’s requiring place nonpar- district court wording ignores plain Reform Act— in a ties on a verdict form strict law, abrogates legislature’s statutory liability case. The district court intent, usurps legislature’s func- ruled. did furnish the so Nor majority has accounts the tions. On two authority prece- Court error seriously holding that was erred unexplored dential value that theretofore allowing part court’s on the district of the law. area Kelsey- the conduct of to consider justification placing nonparties Company Hayes Coats non- and the —two on a Pocatello Industrial First, legisla- it was the parties at trial. was couched the same Lasselle procedures in de- declared the ture which language: termining in a comparative responsibility [Tjrue be achieved apportionment cannot liability at products evidence all apportionment unless that includes products dealing with the manufac- trial negligence guilty causal tortfeasors did Kelsey-Hayes and Coats tured contributing causing or to the oc- either Second, jury consideration. qualify for question whether currence competent there was substantial parties are to the case. in the record would have evidence which 172, Lasselle, Idaho 677 P.2d at 106 at placing parties on the justified the of these 485, Pocatello, quoting supra, 101 Ida- verdict form. 787, (emphasis 403 ho at 621 P.2d at added).

I. Heft, the Court cited Heft & In both cases 8.131, Comparative Negligence Manual cases, § majority relies two Poca- on (1978), comparative negli- at 12 West, tello Industrial Park Co. Steel cases, authority no cited gence but 783, Inc., (1980), 101 P.2d Idaho 621 399 products from liabili- stemmed strict which Co., Special 106 and Lasselle v. Products ty cases. 170, (1983) support P.2d Idaho 677 483 to readily position. Both the cases are compara- authority and rationale outset; neg- distinguishable at the both are one negligence statutory in Idaho is a tive judgments ligence The verdict and cases. found I.C. 6-802: § we here review resulted thereon which may, requested The Court and when centering around the issue of from trial shall, to find by any party direct Uniroyal’s products liability. strict determining the separate special verdicts Lasselle, of the deci- the most recent two damages percentage and the amount of sions, point out Court was careful party; to each negligence attributable that: shall then reduce the the Court damages proportion of such amount damages plaintiff awarded

since the negligence attributable the amount hold theory, negligence under the we recovering. person D in not placing trial court that the erred Company B Supply & Entirely contrary to what Justice Bakes is in a negligence form because action envision, 6-1304, I.C. which allows § oppor- imperative that the have the responsibility in comparison of for some of all tunity to consider the actions, differently: liability reads to the transaction. Pocatello Comparative Responsibility Compa- — Park, supra. Industrial not bar recov- responsibility shall rative his any person 172, (emphasis ery 485 an action 677 P.2d at Id. at damages representative legal to recover added). 550 ipse product liability resulting may very champion in death or well be the of all dixits.

injury person property, given is such re- No reason is for these state- great was not as as the re- ments; sponsibility authority supplied support no is sponsibility person against these assertions. is the existence Nowhere recovery sought, whom is any dam- of I.C. 6-1305 ever mentioned. How the § ages majority completely ignore shall diminished in the can the cru- allowed so proportion responsibili- applicability legislature’s amount of cial statute beyond person recovering. belief. ty attributable to the added.) (Emphasis Many impact courts have considered the 6- The difference is substantial. Under concepts comparative negligence § 1304, comparison responsibility be- liability majori fault to strict actions. The person against recovery tween the whom ty cites several decisions acknowl which person sought defendant], and the comparative responsibility edge is an [the recovering plaintiff]. is, liability There issue strict actions. [the however, authority a solid line of 6-1305, entitled “Conduct Affect- I.C. § inapplicable comparative negligence hold Responsibility” specifies ing Comparative principles fault strict actions. compared against the conduct which can be Co., Colo.App. 555, See Kinard v. Coats 37 products liability defendant’s conduct in a Ford (1976); Melia v. 837 553 P.2d action, (1) specifically, the claimant’s fail- Co., Cir.1976); (8th Motor 534 F.2d defect, (2) the ure to observe an obvious Corp., Kirkland v. General Motors a known defective use of a (Okla.1974); Roy v. Star P.2d condition, by a claimant or a non- either Co., (1st Chopper Cir. 584 F.2d claimant, or, (3) the misuse or alteration denied, 916, 1978), 99 cert. 440 U.S. S.Ct. product by either a claimant or a non- v. 1234, (1979); Smith 59 L.Ed.2d 466 claimant, subject the claimant’s dam- shall (S.D.1979); Smith, 155, 160-61 278 N.W.2d Such ages apportionment. to reduction or 319, Corp., 93 Wash.2d Seay Chrysler v. statutorily controlling are the directives 1382, (1980). 1384 609 P.2d comparison responsi- allowing in the cases products liability actions in In examination of bilities in its detailed in comparative fault Thus, majority discussing the role of Idaho. in order for the actions, majority liability sim Kelsey- product declare in this case that either ply goes astray. The issue before Hayes Company comes under one or Coats 6-1305, comparative today is not whether categories set out in it Court § fault, judicial applies in Idaho. The Court point language to that in must be able v. Morton Chemi Shields ly adopted it in statutory authority which would have Co., 674, (1974); 857 cal 95 Idaho 518 P.2d trial court to allow the authorized the and oc legislature followed suit degree comparative re- the Idaho to assess some enacting Coats, what cupied the field 1980 sponsibility Kelsey-Hayes or to Liability tire, legislature called the Product using for the defective and/or question Act. The course, misusing altering it. Reform and/or Of before conduct, i.e., the conduct whose equally, neither mis- house is it, neither used entities, should what individuals and it. used it altered addressing ques be considered when may say Carefully, and the trial bar devi- comparative responsibility. That tion of majority applying I.C. ously, avoids too, by has been answered question, Instead, majori- 6-1304 and 6-1305. §§ majority would be well legislature, and the ty contentedly 6-1304 ... writes: “I.C. § analysis by first to commence its advised substantially identical to I.C. 6-801 which § legislature has addressing that which the provides comparative responsibility said. should be treat- They actions. reason, upon the cases 542, For this all of opinion, p. ed the same.” Majority point added). far off majority This relies are (emphasis p. 726 P.2d 654 551 any liability, applicable, ucts before of those decisions discuss or that none where light non-party can included on the form. interpret comparative responsibility Lasselle, supra, 106 Idaho at 173, statute, 677 P.2d let alone one a relevant state instance, beyond dispute 486. For it is at similar Idaho’s. that where there no evidence that Liability legislature’s Product Re negligent, plaintiff contributorily responsi system comparative form Act’s applicable, comparatively where contrary any bility consensus gent, applicable, should not where discussing comparative respon those cases plaintiff’s be instructed to consider con- sibility enactments. under See, e.g., Hundt v. LaCrosse Grain duct. It represents one several schemes Co., 687, (Ind.App.1981); 425 N.E.2d 704 public policy responsibility comparative —a Michel, Md.App. 646, Batten v. 15 292 A.2d part legislature of the Idaho choice 707, Biggs, (1972); Gutterman v. 712 249 It system.2 it is should not the best 421, 260, (1968); Jen- 240 A.2d 262 Md. brazenly so modified. To do therefore be nings Hodges, 80 S.D. 582, v. 129 N.W.2d judicial so in its most constitutes activism 59, (S.D.1964). 64 regrettable decision form. trial court’s days recognized nonparties Kelsey- prior This Court in not to include Coats and much, he was cor and has held that there must Hayes verdict form reversed, support legal substantial evidence to readily rect and should not be so theory any on that oblige justify of a instruction especially to manufacturer See, e.g., Johnson v. Clearwater only theory. dangerously tire ef defective whose Lines, Inc., 389, 391, Stage 96 Idaho 529 of a fort to establish kind case v. (1974); Edwards 1261, Walk only fell of P.2d 1263 them far short and consisted er, 289, 292, 486, using plaintiff’s expert 95 Idaho 507 P.2d witness as own 66, Engle, v. (1973); McIntire practitioners 90 Idaho most will see as im what Dell, v. (1965); Kuhn VI, cross-examination. See in proper part 408 P.2d 250, 253, (1965); Idaho 404 P.2d 358-59 fra. Bates, 131, 133, 397 Schwandt 88 Idaho (1964). P.2d II. proof there insufficient A. part of any negligence on the either non-party corporations, Kelsey- Kelsey-Hayes Company.3 or the Coats

Hayes Company Company, and Coats proof transcript in There is no the put have on verdict should not been the mounting machine or the rim when the tire form for the reason that the additional Therefore, other than manufactured. were any required compara- kind elements speculation, it would have been by sheer either not tive fault assessable to were jury to impossible for the determine when established at trial. mounting the machine or wheel the tire jury How a could de general nonpar- rule manufactured. It is the that before were Kelsey-Hayes if or Coats Com placed jury on forms there cide either ties are is ordinary to use care when it showing requisite pany the ele- failed must be a that impossible to know machines against them when these ments of a cause action designed or is un at There manufactured an presented must have been trial. were very may It well be that both been admitted into evidence known. must have mounting machine were proof negli- in tire and wheel sufficient to make a case the first tire bead gence, prod- manufactured before applicable, where strict B, insufficiency times, discussing myself being infra, See I have believed 3. Part In recent public policy philosophy any educated to the strict of evidence as it relates courts, proper even in Kelsey-Hayes Company never concern for claim either the yet legislature spo- an area where the Company. Coats ken. may equally It fact failed. be the under all circumstances and conditions products these manufactured were before then case, existing. jury In this did economically technologically it was not know when “then” was. All we any changes to make in them. feasible expert’s opinion an that modifications could jury How could the in this case have decid- testimony be made as of the time of his designers ed that the and manufacturers of improved upon safety prod- of those mounting tire machine the wheel ucts. hardly proves negli- This a case of negligent were when the record is devoid gence, contrary majority’s cavalier establishing any of evidence when claimed fact, assertion. In it does not even rise to performed? acts of were of prima level which even facie Neither is there evidence of the pure comparative negligence case knowledge which was available to the man- placing essential before the these non- ufacturers of these at the time negli- jury verdict form. A they designed and manufactured. were gence action focuses on the acts of did What information these manufacturers parties, regard always in which it has been they regarding have or should have had thought necessary to make a case. What- any potential respective hazard their nonparties did or ever did not do has Speaking specifically products? about this sufficiently developed. not been situation, questions some of the sum, correctly per- the trial court proof went unanswered are: What enough proof ceived that there was chargeable information was known justify placing the record to the Coats Com- the manufacturer of the wheel and the tire pany Kelsey-Hayes Company and the might explode machine that tires jury Uniroyal’s verdict form because they at all? How much did know about contention that each both were explosions? tire How much should gent, contributing and such cause of proper es- have known? Without evidence injuries. plaintiff’s times, tablishing applicable ques- these have been unable answer Inc., Henderson v. Cominco American indulging specula- in sheer tions without 690, 700, (1974), 95 Idaho 518 P.2d All that before the trial court tion. harmony foregoing dis is in total with the Dr. Milner that is the statement of where this Court stated that cussion opinion in his corrections could certain party claiming product a defective has the machines, although he con- made preponderance proving by burden that the manufacturer itself did not ceded allegedly evidence that defective agree with him. There is no evidence complained the harm of and caused the need for the record to establish when party with the burden changes apparent, nor as to these became his case—Henderson—had failed burden of prod- feasibility of which is a natural —all and, therefore, judgment reversed a proof, plaintiff’s expert. Uniroyal’s uct of use of in his favor. recognized proving that in Idaho has acts of Henderson involved the negligence, case in the basic test is wheth Rather, the suit. Our case does not. to conduct of the defendant measured er the a defendant on case involves cross-ex- our person up ordinary prudent to that of the attempting prove neg- to either a amination acting circumstances and condi under all ligence products liability or strict cause of Payonk, Alegria v. existing. tions then against nonparties the to par- action 135, 617, 619, suit — 619 P.2d 137 101 Idaho represented by legal counsel who ties not Ker, 96 Idaho 75, 79, (1980); Messmer v. by a motion for directed verdict ob- would (1974); Nagel v. Ham 536, 524 P.2d 540 ruling tain a that the evidence was insuffi- 468, mond, 96, 102, 472 408 P.2d 90 Idaho majority telling cient. Here we have a (1965). All cases state that of these liabil- court to conduct another trial on trial compared complained of are to be actions open wide to wild ity with the doors thrown ordinarily prudent person’s actions 553 fail, of failure of nonparties Hayes, must because as whether speculation to products liability proof that Uni- on an element some fault so should be assessed liability case law—which in will law as outlined Idaho responsibility strict royal’s diminished, stand in 1980 when unsatisfactory and case law was allowed to most occupy legislature that would decided it proposition. unfair liability. products the field strict teaches, Henderson As the burden action prove to a cause of on III. not, and, It did nonparties. court, deciding this issue Henderson, The district pursuant Uni- accordingly, to Pocatello, supra, and Las below, reviewed damages argument royal’s for reduction selle, supra, compara and concluded of insuffi- properly denied basis to applicable are not principles tive fault ciency of evidence. product liability except as under

strict majority If is legislative guidelines. B. usurp legislative func determined to to There is also insufficient evidence tion, apply appropriately it more comparative prove as that either fault it but to all cases tried to instant Kelsey-Hayes Company were or the Coats filing opinion.4 When Cali after the Vannoy’s responsible providing employ- for principles adopted fault comparative fornia unreasonably er with a dan- defective Daly v. liability cases strict gerous product under 402A of the Restate- 725, Corp., 20 144 General Motors Cal.3d (Second) Torts adopted by ment Ida- (1978), 380, 1162 stat Cal.Rptr. 575 P.2d Co., v. Morton Shields Chemical ho in page page ed 575 P.2d 1173: on (1974). P.2d Idaho for to decide the extent It remains us states, part, in pertinent Section 402A principles comparative are to be to which following: liability applied strict actions other to any product One who sells in a defec- conclude We than those hereafter filed. unreasonably dangerous tive condition that, public policy reasons property for user consumer or his par- expectations reasonable subject physical is harm litigants gen- to this action and the ties thereby user or caused the ultimate expressed principles herein erally, the consumer, property____ his all cases in which trial apply shall important relevant to this statement opin- the date this begun has not before any product in a case “one who sells No becomes in this Court. ion final condition____” words, In other defective upon the trial which has judgment based must at the condition exist defective finality prior to commenced time it is sold. There not a scintilla of on appeal opinion shall be reversible proof in this record to establish the time compa- principles of ground the sole mounting the tire ma- that the wheel and any applied. If were rative fault Vannoy’s employer, sold to chine were appeal judgment reversed on such that, at then state of the the time and the reasons, principles ex- herein art, were defective. Without any pressed applicable to retrial will be proof, how could find opinion fi- after its becomes commenced product was a defective condition and nal this Gourt. unreasonably dangerous it left at time Aircraft, Thus, In Duncan Cessna of the defendant? the hands (1984), 414, upon products liability against 434 case relied of strict S.W.2d claim court also heavily majority, nonparties, Company Kelsey- and Coats apply degree credibility. majority than decide the small Rather 4. In that manner the law, however, majority at presented as it existed make issues law chooses to -just court did. In that time of as trial new law. trial— majority some manner an activist would retain 554 RECOVERY, new con-

declared that the rules announced AMOUNT OF TO PRO- cerning comparative fault TITLE; in strict A VIDE SHORT PRO- TO only applica- have prospective SEVERABILITY; cases would VIDE AND TO tion. PROVIDE AN DATE. EFFECTIVE Prospective rulings are to Idaho. not new Legislature Be It of the Enacted principle The it Court utilized when State of Idaho: Smith governmental immunity in abolished 6, Code, SECTION That Title Idaho State, 795, (1970). 473 Idaho P.2d 937 be, hereby and same is amended In the instant trial court followed CHAPTER, addition thereto of a NEW Pocatel- the law available in that was both designated Chapter known and Lasselle, in lo which was that Code, Idaho Title and to read as follows: cases, gence op- should have CHAPTER portunity compare of all PRODUCT LIABILITY parties or not whether are fault, trial if such previous existing the lawsuit. The court’s 6-1301. SCOPE. be, I proposition it monstrous applicable product law state on lia- of this subscribe, looking at the could never was in bility only is set modified extent legislature’s specific totally unam- in this forth act. biguous language as to what circumstances (1) 6-1302. DEFINITIONS. “Product persons entities of what or conduct any person entity means or that is seller” diminishing at could result that which selling prod- engaged in the business products liabili- the outset would be a strict ucts, resale, sale is for or for whether the ty percent responsibility defendants’ The term includes a consumption. use or product placing a defective into wholesaler, distributor, manufacturer, or legisla- mainstream of commerce. The product. The term retailer of the relevant reading is not ture’s enactment difficult party who is the business also includes a ambiguous as to content: leasing bailing products. such CHAPTER 225 include: “product seller” does not term

(H.B. 577) No. (a) provider professional A services products utilizes sells within who AN ACT scope profession- legally authorized LIABILITY; TO PRODUCT RELATING provider nonprofessional practice. A al CODE, TITLE AMENDING IDAHO unless the sale services not included is BY A NEW THE ADDITION OF part principal product of a or use 13, TITLE IDAHO CHAPTER transaction, of the and the essence THE CODE, TO PROVIDE FOR pur- relationship the seller and between ACT, THE PROVIDE SCOPE OF TO furnishing judgment, chaser is not the DEFINITIONS, FOR TO PROVIDE services; skill, or TIME THE OF MAXIMUM LENGTH (b) A seller used commercial ARE SUBJECT PRODUCT SELLERS by a product after resells a use who LIABILITY, FOR TO TO PROVIDE user, product provided or other consumer RESPONSIBILITY, COMPARATIVE essentially product is in used CERTAIN CONDUCT TO DEFINE acquired condition as when was same RE- COMPARATIVE AFFECTING resale; SPONSIBILITY, STAN- TO PROVIDE (c) A lessor who not otherwise finance FOR CER- OF RELEVANCE DARDS A lessor” “finance seller. EVIDENCE, IN- TAIN TO DEFINE capacity, who in a financial one who acts AND RESPON- RIGHTS DIVIDUAL wholesaler, manufacturer, dis- is not SELLERS SIBILITIES OF PRODUCT retailer, tributor, who leases MANUFACTURERS, THAN OTHER op- having a reasonable product without THE CONTENTS TO FOR PROVIDE defects inspect and discover portunity THE AND OF A COMPLAINT arrange- caused product, prod- under a lease that harm was after in the selection, possession, expired. safe life” had uct’s “useful ment in which the maintenance, prod- operation of the begins “Useful safe life” at the time of by a other than person uct are controlled delivery product and extends for the the lessor. during product time which the would nor- (2) mally likely perform a or be stored in a product be “Manufacturer” includes makes, designs, purposes manner. For the this produces, seller fabri- safe who cates, constructs, delivery” chapter, “time of means time or remanufactures purchas- part delivery product a a first product component or its relevant engaged or or who was not product its sale a user consum- er lessee before selling entity products or product includes a seller or business of either such er. It using component parts a manufacturer that holds them as of another not otherwise product product a A itself out as manufacturer. to be sold. wholesaler, acting primarily as dis- a seller (b) may subject product A be seller tributor, may a product retailer of a or liability product harm a used caused only the extent “manufacturer” but safe life to the extent beyond its useful fabricates, makes, designs, produces, expressly product seller war- constructs, product or remanufactures period. product longer for a ranted the its sale. before (2) repose. Statute of (3) object any possess- “Product” means (a) Generally. In claims that involve value, capable delivery ei- ing intrinsic (10)years ten harm caused more than after compo- as a ther as an assembled whole or delivery, a arises that presumption time of produced part parts, nent or for intro- useful safe harm caused after the duction into trade or commerce. Human may expired. presumption This life had organs, including human blood tissue and convincing only by clear and be rebutted components, are this and its excluded from evidence. product” this The “relevant under term. (b) repose. on statute of Limitations chapter component product, is that or its gave prod- expressly

part parts, product rise to the If seller war- 1. a product uct claim. its can be utilized rants that (10) longer safely period than ten for a (4) entity person means a “Claimant” repose, after which years, period of claim, asserting product liability includ- a presumption created subsection action, and, ing wrongful if the death (2)(a) arises, shall be extended ac- hereof through claim asserted or on behalf promise. warranty or cording to that estate, an the term includes claimant’s de- (10) year period repose 2. The ten any person or includes cedent. “Claimant” (2)(a) hereof subsection established entity suffers harm. apply product if seller inten- does not (5) “Reasonably anticipated conduct” misrepresents tionally facts about expect- means the conduct which would be fraudulently infor- product, conceals prudent per- ordinary reasonably ed an it, conduct was mation about product in the likely to use the son who cause of the claimant’s harm. substantial circumstances. same or similar (2) Nothing contained subsection OF TIME 6-1303. LENGTH PRODUCT right of shall affect the of this section LIABILITY. ARE SUBJECT TO SELLERS chap- person found liable under this any (1) safe life. Useful obtain contribution ter to seek and person who is indemnity from (a) Except provided subsection chapter. responsible for harm under hereof, (l)(b) not be product seller shall (10) period year repose ten harm 4. The subject liability to claimant for (2)(a) hereof subsection if seller established chapter under this apply if the harm was caused shall not of the evidence proves preponderance by prolonged exposure to a defective ordinary obvious to an reasonably prudent product, or if the injury-causing aspect of person, shall not reduce claimant’s dam- product that existed at the time of ages. delivery was not by discoverable an ordi- (2) product Use of a with a known defec- nary .reasonably prudent person until tive condition. (10) years more than ten after the time (a) By a product claimant. When the delivery, harm, ifor caused within proves, seller by preponderance a of the (10) years ten delivery, after the time of evidence, that the claimant knew about the did not manifest itself until after that product’s condition, defective and voluntar- time. ily product used the voluntarily or assumed (3) Statute of limitation. No claim under the risk of harm from product, chapter may brought be more than two damages claimant’s shall subject be to re- (2) years from the time the cause of action duction to the extent that the claimant did 5-219, accrued as defined in section Idaho not act ordinary as an reasonably prudent Code. person under the circumstances. 6-1304. COMPARATIVE RESPONSI- (b) By a product nonclaimant If user. Comparative BILITY. responsibility shall product proves seller by preponder- a recovery not bar in an by any person action user, ance of product the evidence that a legal representative or his to recover dam- claimant, than the knew about a ages product liability resulting in death product’s condition, defective but voluntar- injury person or property, or if such ily unreasonably used or stored the responsibility great was not as as the re- product thereby proximately caused sponsibility person whom harm, claimant’s damages the claimant’s recovery sought, 'is damages but al- shall subject apportionment. be lowed shall proportion be diminished in the (3) product. Misuse of a to the amount of responsibility attributable person to the recovering. (a) product “Misuse” occurs when the user does not act in a manner that would 6-1305. CONDUCT AFFECTING COM- expected ordinary be of an reasonably pru- (1) PARATIVE RESPONSIBILITY. Fail- person likely dent who is product to use the ure to discover a defective condition. in the same or similar circumstances. (a) Claimant’s inspect. failure to A (b) product proves, When the by seller a required claimant is not inspected to have preponderance evidence, prod- of the product for a defective condition. Fail- claimant, by party uct misuse ure to have done so does not render the product other than the claimant or the sell- responsible claimant for the harm caused er proximately caused the claimant’s damages. reduce the claimant’s harm, damages the claimant’s shall be sub- (b) Claimant’s failure to observe an obvi- ject apportionment to reduction or ous product defective condition. When the proximate extent the misuse awas proves seller preponderance cause of the harm. claimant, evidence that the using while (4) product, prod- Alteration or injured by modification of a a defective condi- tion that uct. would have been obvious to an ordinary reasonably prudent person, (a) “Alteration or modification” occurs damages

claimant’s subject shall be to re- person entity when a other than the duction. product changes design, seller con-

(c) struction, A inspect nonclaimant’s product, failure to or formula of the defects or to observe changes warnings an obvious defective or removes or instruc- condition. A accompanied nonclaimant’s failure to in- tions that displayed or were spect for a defective product. condition or to observe “Alteration or modifica- defective condition that would have been tion” of a includes the failure to maintenance, oth- prejudicial effect and that there care routine observe available, ordinary may wear and tear. proof not include er this evidence does in- purposes, admitted for other relevant proves, (b) product seller When the proving to owner- cluding but not limited evidence, that an al- preponderance of the ship control, impeachment. or or product by the modification of teration or claimant, party other than the the or a section, (3) “cus- purposes of For proxi- product claimant or the seller practices by an the followed tom” refers to harm, mately the claimant’s the caused product product sell- ordinary seller subject to damages shall re- claimant’s be industry or business. er’s the extent that apportionment or duction section, (4) purposes For of this “techno- proxi- a or modification was the alteration technological, logical feasibility” means the harm. mate cause of the knowledge relat- mechanical and scientific applicable if: This shall not be subsection reasonably ing product safety that was was in 1. The alteration or modification use, light prac- economic feasible instruc- product seller’s accord with ticality, at the time of manufacture. specifications; tions or AND or modification was 6-1307. INDIVIDUAL RIGHTS 2. The alteration implied consent express made or OF PRODUCT RESPONSIBILITIES seller; product or of the THAN MANUFAC- SELLERS OTHER or was (1) express alteration modification The In the absence TURERS. conduct, reasonably anticipated contrary, product sellers warranties to the of the product was defective because not sub- than manufacturers shall provide ade- product seller's failure to ject liability in where circumstances warnings or with re- quate instructions opportunity do not have a reasonable spect to alteration or modification. inspect product in a manner which should, in the exercise of reason- OF INDUSTRY would or 6-1306. RELEVANCE CUSTOM, care, OR PERFORMANCE of the defec- SAFETY reveal the existence able STANDARDS, AND issue; TECHNOLOGICAL or which is where tive condition (1) changes in FEASIBILITY. Evidence of in a product acquires seller product design, (b) or in- (a) product’s warnings a and sells the package or container sealed (c) concerning product, tech- structions package or con- product in the same sealed (d) art,” nological feasibility, “state of the liability of this sub- limitation tainer. The (e) product seller’s or the custom if: apply shall not section business, industry occurring or after or knowledge (a) product seller had The product and delivered to was manufactured prod- to know of the defect reason purchaser its first or lessee who was not uct; selling engaged in the either business of modified, altered, (b) product The seller component using or such them product, such altera- installed the or sold, is parts product of another to be a tion, or installation was modification purpose proving that for the admissible inci- proximate cause of the substantial product design or that was defective action, giving rise dent warning should have ac- or instruction requested by the manufac- authorized product manu- companied the at the time of performed compli- turer and was not provisions section The of this facture. specifications directions or ance with the product not relieve the seller shall manufacturer; of the duty of known discovered warn defects product designed and manu- after the plans (c) product provided the The seller factured. for the manufacturer specifications product such preparation pres-

(2)If the court finds outside the were a substantial plans specifications probative that the value ence product’s alleged defect. outweighs substantially cause evidence such (d) product wholly-owned judgment The seller enforce product subsidiary manufacturer, of the or the manufacturer. wholly-owned manufacturer is a subsidi- 6-1308. CONTENTS OF COM- ary product seller. PLAINT-AMOUNT OF RECOVERY. (e) product product The seller sold the any product liability action dollar no expiration placed after the date figure amount or shall be in the included package or its manufac- complaint. complaint pray shall turer. damages such as are reasonable premises. complaint shall (2) include In an action where the limita- reciting jurisdictional statement (1) applies, any of subsection

tion manufac- filing amount established for the action accept who refuses to a tender turer satisfied. seller, product from the shall in- defense demnify product for the seller reasonable 6-1309. SHORT TITLE. shall This act attorney’s by fees and incurred the costs may be known and be “Idaho cited as the defending seller in such product action. Liability Product Reform Act.” (3) action, any product liability the provisions 2. The SECTION of this act in- product manufacturer of the shall be hereby are declared if to be severable prod- product the seller of the demnified any provision of this application act or the against any judgment the uct rendered any provision person of such to or circum- be reimbursed manufacturer shall also reason, any stance is declared invalid for attorney’s for reasonable fees costs such declaration shall not validi- affect the in defending incurred such action: remaining ty portions of this act. (a) provided product If the seller 3. This act shall effective SECTION be plans specifications or manufac- regard product liability with to all actions preparation product; ture or of the July filed on after 1980. or (b) If plans specifications such or were a Approved March 1980. alleged product’s substantial cause of the Laws, Sess. ch. 1980 Idaho 255. defect; and displaying in My purpose the entire (c) product If the was in manufactured Liability Products Reform Act is to demon- according compliance with and legislature extent to which the strate the plans specifications or seller. to, did, occupy It determined field. provisions shall of this subsection a act in it did only was “reform” apply if the had knowl- manufacturer occupy the field which entirely theretofore edge or with the exercise of reasonable and only by this Find- had entered Court. been diligent knowledge care should have had nothing in the District ing amiss U.S. product. defect in the Valley in or Court’s decision Sun Airlines (4) seller, product A than a manu- Shields, by decision this Court’s facturer, liability subject is also to specified previous that “The 6-1301 § if: manufacturer applicable on existing law of this state (a) subject to The manufacturer is only is modified process laws of the service of under the in this act.” 6-1304 forth Section extent set domicile; claimant’s There, important. just legislature as the (b) judicially The manufacturer been has done had earlier

declared the manufac- insolvent field, comparative responsi- it declared pay turer is debts as unable comparative bility, it had with ordinary course of become due in the recovery plaintiffs’ gence, would not bar business; or it matched or exceeded until and unless (c) person whom presence responsibility of a The court outside the sought. There is or should highly probable recovery is jury determines that it applicabil- in this case about problem be unable to no the claimant would Minnesota, Wisconsin, 6-1304, compare Hampshire, Oregon, ity which § Kansas, and the federal responsibility with from various of comparative plaintiff’s jurisdictions following it makes Uniroyal’s. — persons or con- assertion that “[a]ll is, be, prob- no Similarly, there or should tributing plaintiff’s injuries 6-1305, (1) inspect; failure lem with § instant case should have been included on (2) with a known product use of Brief, p. Appellant’s 39. verdict form.” 6-1305, (3) Moving down defect. § authority array of Not one whit of that no evi- product, there misuse of appears to to the trial have been furnished any dence here of misuse of motion, court, notwithstanding that al- tire, product “the plaintiff, either 24, 1984, though February was not filed user,” party other than the claim- argued orally until March had Concededly, ant or the seller. Uniroyal’s sum total of written motion rela- established, plaintiff’s damages such been comparison nonparties tive to “subject apportion- were to reduction pp. found in the Record at 245 and that the ment the extent misuse part fifth for a new trial: of its motion no proximate of the harm.” There is cause (5) 59(a)(7) Rule Honorable Court (4) contention that 6-1305 § —This during erred the course of the trial did, applicability. If it alteration were following respects: again recovery proven, plaintiff’s could apportioned the been reduced or “to extent that the alteration or modification (m) failing Kelsey-Hayes In to include proximate I.C. cause of the harm.” was Company The Company and Coats 6-1305(4). § Special Verdict. dispute the beyond explained

It thus seen that No whatever or elabo- statement field, has legislature occupied sup- has the upon grounds which would rated Yet, I.R. C.P. of error. parameters port specification set the of those circumstances this 59(a) requires “[a]ny based on that motion any of plaintiff’s which can result loss recovery, set apportioned or reduced or recov- subdivisions or must forth years majority particularity.” ery. Five short later grounds with factual act, 59(a) has the Court determined to amend the requirement This intrinsic Rule has doing I mandatory. Conclusory, gener- and are so. On other occasions been held any any have observed that at time under vague language does not suffice. al and circumstances, conclusory three members this Uniroyal’s wholly statement anything they do Court can want to do. had it entitled to have the two was This is such an occasion. But that does verdict form was nonparties on right. Right always particularity make it unsupported by any has been entirely wrong. right, wrong always been Such re- grounds. of the factual failure quired have been that “the motion should IV. Boise, denied the trial court.” Scafco 432, 566 P.2d 381 Rigby, Inc. opening 98 Idaho Uniroyal’s brief this Court (1977). judge did not itself to have In that case trial sets forth how it believes motion, conditionally granted deny preserved comparison appeal: issue for but Trial, etc., “Uniroyal, consent to a remit- in its for New unless Scafco would Motion Here, however, it true that an compare forth the failure to as error titur. set (R.Vol. I, 241). for a new p. denying trial court in the motion made the Court. specify a reason the failure post trial motions. trial did not as Court denied the various 59(a)’s (R.Vol. Brief, requirement I, 256).” comply with Rule p. Appellant’s p. 26. 59(a)(7), grounds must be Uniroyal presents quotations that under From there particularity. with factual from and citations to au- stated and statements Uniroyal a Illinois, compassionately allowed thority North court from the courts of Texas, argument Dakota, California, Alaska, at oral opportunity New second supply grounds particularity ... can say prod- the other [H]ow all, supported motion, which proximate cause, abso- ucts were the legal all, lutely test is not provided were proximate [sic “their”] cause, wholly conclusory it’s whether or not remarks—none which the tire was proximate cause. They tied into testimony were one bit of don’t even evi- argue cases, they or cite base it on some dence received at trial: cause, sort superseding, intervening respectfully We would [MR. HIGH:] any wouldn’t have application any- submit that the Court erred ... re- way. fusing compare causation between the submit, your Honor, We de- that the wheel manufacturer and the tire-mount- fendant has not any legal shown reason ing machine required manufacturer why in this case it should be retried. under Pocatello Industrial Park vs. contention, gives another Lasselle, one he evidence clear there [and] significance to, the most really improp- proximate as to the cause accident basis, er both on factual no facts in the law, compare under the trend of all record, either in ar- chambers nor in his causations, and been should have com- gument today ques- has he addressed the pared in this case. proven tion of how could it be Furthermore, Honor, your we would product was defective at time signed submit that the order of dismissal proof manufacture if there was no trial, during Court with re- date of manufacture of products. those spect required to Kelsey-Hayes, a com- Secondly, how could proven it be parison in that order. It was an order were negligent- defective or signed basis, February your 9. On that ly if designed proof there is no of what Honor, we would ask that the Court was, state the art or whether grant one of our three alternative mo- there ever knowledge even tions. blow-ups tire at the time of manufacture. Pedersen, THE you may COURT: Mr. grounds He has not raised sufficient for respond. n.o.v., judgment new trial. Well, MR. PEDERSEN: the first up by addressing I’ll finish ques- place only compare negli- we have to tion on remittitur. gence if proof negligence, there I was any signed don’t think by kind of order High, you THE Mr. re- may COURT: the Court could alter that fact. There spond. showing would have to be a rebuttal, your HIGH: No MR. Honor. gence, showing prod- or a other that the THE At this COURT: time the Court defective, my ucts were first and going order that motion argument statement, foremost on that it judgment n.o.v. and the motion for new chambers, was in it evidence of wasn’t be, in respects, trial all will overruled negligence, jury say how could denied. the tire the tire was manufacturer —that points I Mr. The two best think that designed negligently manufactured raises, one, I High feel number negligently, jury even didn’t know just justify does did not evidence when it was manufactured when it not— instructing any defects designed. How could find products used in the other defective, may that the wheel was it have tire, Uniroyal no than the and therefore any been manufactured before of these making in- making such an error blow-ups, speculation pure it would be —no struction. suggest adequate proof that there was Tr., (emphasis added). pp. 707-11 ... to establish that there was a causal link any between ... these. compli- fell Uniroyal’s effort far short of rule. The most

ance with the trial court not, only which was before in the written the same record obviously either motion, motion, argument court, part, oral most at or an the trial any particularity least, authority argu- factual at provided with the same also all, for certain not with Returning page Uni- ments. 15 of the he brief, him that out of whole cloth convinced royal reply after its assertion Liability expand the 1980 Products should authority point is no more on Vannoy’s so as to include on a Reform Act Uniroyal apparently claims Uniroyal’s, than did not nonparties whose conduct one-upmanship in that: legislative purview of what come within the has, however, cited this Court conduct, could parties, and what type of comparisons cases to numerous where duty heightened “the dimmish defendants, some of made between were prod- of a defective of the manufacturer See: were manufacturers. who uct.” Goodrich, 626], v. B.F. Or. Wilson [292 (Or.1982) 642 P.2d 644 and Busch Y. Inc., Construction, supra. Busch reply makes an in- Uniroyal in its brief Brief, (empha- Reply p. 15 Appellant’s array of teresting concession as to that added). sis authority opening in its brief—a set out De- point escapes thrust me. of this think which one would would concession nomenclature, fendants, se, par- per are caught eyes Bakes in of Justice may plaintiff name ties. Sometimes writing opinion: of his plain- If party more defendant. than one reporting that was correct in Plaintiff defendant, only one that defend- tiff names no au- Uniroyal has cited this Court person may implead yet another who ant thority non-party wherein a was com- And where party becomes the action. pared products liability action. defendants, more plaintiff names two or Appellant’s Reply Brief, p. 15. implead other of those defendants can each Uniroyal’s response to “Con- sole this:- defendants, party Such third- and so on. versely, neither has Plaintiff cited pursued practice may be party defendants comparison Court to such a case where a place elsewhere. order to the blame Reply permitted.” Appellant’s was not California, named plaintiff who has not Brief, Judge p. Putting aside third-party defend- as his own defendant recent Meehl’s decision in this case is one brought can a defendant ant later issue, holding hardly on the exact discovery proven help- (probably after Uniroyal carry to expect seem that would ful) accept third-party defendant as i.e., appellate day, persuading of an to is not plaintiff’s All of which defendant. that, precedential court in that state of practice, third-party on attempt a lecture clearly in equipoise, trial court was stage to for some observations set Moreover, apparently although not error. highly pertinent to my to mind are troubling agree who majority appeal. on our review Court, opinion for the it would seem in filed complaint in this case was The presenting mo- any party post-judgment in complaint named September of 1982. should not allowed to use a scat- tions (2) (1) Uniroyal, Kelsey- as defendants: by any authority ter-gun unsupported manufacturer), (3) (wheel Company Hayes scurry appellate clamor- and then into the Company Industries, The Coats Hennessey against ing the error in the trial court’s out tire-mounting ma- (manufacturer of the me that one decision. Recollection tells Association, (4) chine), Tire and Rim has decried such member of this Court Inc., Two of (5) Terry Brennan. Count sandbagging the trial court—a conduct as prod- on strict complaint was founded no discouraged, if for other practice to be until liability. Trial did not commence ucts judicially ineffi- than because it is reason Uniroyal’s to February answer of 1984. that on cient. One would like to think in November complaint was filed examining reviewing court is appeal the “Uniroyal denied the claims of Van- Company Kelsey-Hayes respon- were noy, alleging that proxi- accident was any part explosion sible in for the of the mately caused the combined And, conduct Uniroyal pains tire. as I have been at Vannoy, the Kelsey-Hayes Corporation out, point Uniroyal post- to did in its Hennessey and/or Industries/The Coats judgment arguing motions or in mo- these Company.” Uniroyal’s opening brief, p. 1. tions, lay ever before the trial with court Uniroyal pleaded was the first of the de- particularity background the factual with the complaint. fendants to answer persuade which it would the trial court that it was in error. allege It did as six the first of affirma injuries plaintiff’s tive defenses that were Moreover, Uniroyal, charging where chargeable to the acts or omissions of the Kelsey-Hayes and The Company Coats with (1) named defendants: the Coats injured the conduct which Vannoy did not Company, Hennessey division of Indus choose to name them as third-party defend- tries, (2) Kelsey-Hayes Company, (3) the ants, thusly it also opportuni- eschewed the Inc., Association, (4) Tire and Rim Ter that, ty keeping them court so at least ry Brennan.5 originally as between all defendants Uniroyal Inexplicably, fol- chose not to named, could, perhaps, apportion up allegations alleging low on its purposes for later or indem- contribution responsible other defendants were all the Instead, nity. Uniroyal, having failed in plaintiff’s injuries by filing every respect, to comes this Court ar- against claiming cross-action them contri- TIME, gue, THE FIRST it FOR that which indemnity. Obviously, bution or so argued never trial court —either the seem, Uniroyal so, had done it would it, Luckily boding law the facts. kept both The Company Coats Idaho, jurisprudence ill for science of Kelsey-Hayes in law suit notwithstand- it has found a Court which will at one fell ing plaintiff’s each, settlement fol- swoop legisla- amend the recent law by plaintiff’s lowed Uni- dismissal. How ture, and decide the issues accordance royal prove allegations intended therewith. those defendants unknown. known, however, What is that when those VI. prior

two defendants were dismissed to tri- al, Uniroyal’s only effort the direction open- Beginning page Uniroyal’s at 39 of proving allegations of its first affirma- Court, ing con- brief filed tive was make defense use its cross- “The evidence of the wheel and tire tends: Milner, plaintiff’s examination Dr. ex- mounting machines contribution witness, pert attempt to establish injuries provided cause of Plaintiffs’ enough part on causative fault of those expert, Plaintiffs’ own Dr. Alan Milner.” two defendants. expert Dr. Milner was indeed called an plaintiff’s Uniroyal’s on case. witness plaintiff’s

When case went counsel on cross-examination Dr. Milner charge Uniroyal’s liabil- strict attempt in its to was successful steal ity only, theory negligence having an only him its witness in effort to use as dropped, been whatever had de- contributing veloped establish some kind fault by using Dr. own Milner non-parties to the two wholly conduct attributable witness was insufficient to have tire-changing being ma- allowed to consid- who had constructed warranted (wheel). Re- Uniroyal’s allegations built the I6V2 rim er that Coats chine and risk, admitting liability, Uniroyal’s sumption of the his of the various 5. Not second misuse tire, rim, alleged negligence (the mounting affirmative defense ma- party Vannoy Jerry defendants, "his chine) that manufactured than, great, greater any alleged negli- was as injuries dam- the cause of the misuse was gence answering [Uniroyal].” of this defendant ages. alleged Vannoy’s Other affirmative defenses as- contribut- opinion machine the Coates 39, brief, page turning Uniroyal’s accident, correct? ed to the citations, thusly: goes argument, with II, Tr., added). p. (emphasis Vol. the mountain ma- identified Dr. Milner sense, yes. always 30-30. is In that in this as a Coats This used case A. chine 3-12). II, 339, Dr. Milner p. L. like that. (Tr. a machine Vol. the case with machine con- that further testified launching pad? Q. it’s a Because II, (Tr. p. accident. Vol. tributed Yes, they have— all A. 339, 23). to the acci- It contributed L. Milner, believe, Q. you Dr. Don’t also “launching pad.” it acted as because dent regulator pressure-line of a that the lack 3). II, lacked a (Tr. p. L. It also Vol. machine contributed to on Coates 30-30 II, (Tr. p. regulator. Vol. pressure line explosion? 16). further The machine was L. Well, where there it does cases A. overpres- an lacked because it defective it, but in overpressurization (Tr. II, p. system. Vol. alert surization recall, was not. as I there 3). Finally, Dr. Milner testified L. over-pressuri- Q. Sixty pounds contributing machine was a that zation? II, (Tr. p. Vol. of the accident. cause sixty pounds in order It has to be A. 1). 349, L. sixty-five to inflate to to inflate —in order pages to the cited Turning from the brief you sixty pounds, has to be pounds there (339, transcript of Volume II of regulate the level down below could not 341, 343, 349): enough put in the and have air to that tire. CROSS-EXAMINATION believe, Milner, Q. you don’t Dr. machines, HIGH: these BY MR. though, these that machines, defective, are Coates 30-30 Milner, Q. you ever determine Dr. did pressure-line reg- they have no because mounting type of machine what forty pressure limits ulator rim? this tire on this used to mount pounds? Yes, a machine. A. Coates me, I’ll Excuse MR. PEDERSEN: Q. it a Coates 30-30 machine? Was questioning line of object to this have I it Mr. Pedersen was. A. believe scope direct examina- as not within of it. photographs tion. believe, Q. you not Dr. you And do Milner, machine the Coates 30-30 added). Tr., II, (emphasis p. 340 Vol. accident, you? don’t contributed that, Well, say this let me about A. going The Court THE COURT: testimony I the involve- heard about may You answer objection. overrule the is somewhat con- of the machine ment question. testimony There is flict. [the tire] you restate Would THE WITNESS: explo- time of the on the machine at the please. question, ma- sion, if it’s on the the sense you was: Don’t be- explosion, Q. question at the time chine reg- pressure-line the same lack of a to the accident that the lieve contributes was a con- machine contributes to the Coates ulator on sense floor the accident? accident, machine tributing cause to because the Coates it have other machines like contributing cause I think it’s a A. flat can which the tire from overpressurization, it’s surface if it contributes so projected, you only pounds, because if forty sense, sitting the machine. it’s on I you me tell what forty pounds if —let asked, said, I I’ve when been Vannoy Mr. testi- Assuming that Q. machine, your think— it was on the fies 564

MR. question. HIGH: Just answer the So much Uniroyal’s proof of causal part on tire-changer. fault of the Its THE your I WITNESS: can’t answer contends, 40, brief then p. on that: question. provided Dr. Milner testimony also Honor, MR. PEDERSEN: Your he respect to the wheel involved in this opportunity ques- needs an to answer the case. In direct examination he described tion. “anomaly design” of the 16.5 going THE COURT: I’m to indicate permitted inch wheel which inch tire you’ve question. answered the (Tr. be II, 272, introduced. Vol. p. L. overpressurization, answer was so 1). Milner, cross-examination, Dr. on ad- Court going is allow that answer mitted problem the basic of a mis- to remain. match of a 16 inch tire to a 16.5 inch wheel inability was initial tire Tr., II, p. added). (emphasis Vol. being able to anomaly fit over the wheel,

design of the and the wheels vis- similarity ual proper to a sized wheel. youDo Q. believe there should be an (Tr. II, 356, 1). p. Vol. L. It was the system? alert design pre- wheel which set IA. there believe that should be a explosion, condition of the inor position pedal, double which would intro- words, was the “the on fuse the bomb.” air, and when air is above a duce (Tr. II, 356, 6). p. Vol. L. He testified pre-determined figure, and would be configured wheel should be so as good figure any, although it it accept would not a 16 inch tire. necessarily preclude wouldn’t the acci- (Tr. II, 357, p. 1). Vol. L. He described dents, be sig- there should some audible an ability mount as “internal de- pressure nal that more than that is (Tr. II, p. fect” of the wheel. Vol. L. there, cases, in passenger because tire 22). Finally, Milner Dr. testified that the this can be most of the tires mounted on system wheel an alert lacked was machines, tires, they passenger are (Tr. II, p. improperly marked. Vol. sixty-five pound tires. 19). L. Q. And this machine does not have Turning pages transcript to the cited system? such a (272, 356, 359): A. No. [ON DIRECT]: Q. You believe that’s a defect referring A. are You the reason these machines? why being might it tire mounted] [the hang up? IA. believe all these machines could improved. Q. Yes. Well, general

A. are there two cir- cumstances in which this occurs. Most Tr., II, added). p. (emphasis Vol. them, explosions majority vast Q. page depo- Then on the next [of occurs, instance, when a 14-inch tire witness], page sition handed to the wheel, wheel, a 14-inch or a 13-inch you “Q. were asked that case or a there is an 16-inch—but anomalous your opinion that the Coates tire machine arise in which there situation that can acci- contributing cause wheels, two kinds of one which be- are dent?” longs family different than the oth- Certainly “A. I I testified Yes. think degree er. There the so-called 15 what it states in that.” Is that not wheel, question the wheel in there? accident, are in this and these somewhat Yes, A. that’s correct. wheels, design different than other identical, Tr., II, p. although appear almost Vol. ease, if ability, Q. It’s these cases possible in some of and it’s smaller, easier, put a inadvertently if it’s type 16-inch that’s for a half The rea- a inch a 16.5 wheel. 16-inch tire on sixteen onto introduced slightly that, 16-inch wheel— put 16.5 are it on a wheels wheel than to son for wheels, some 16-inch larger than necessarily eas- think it’s I don’t A. flange di- design, anomaly in the depth of got to consider the ier. You’ve actually larg- go is it has to over ameter experience center, my and drop wheels, pres- this in the small sized er indistinguishable, been it’s differ- 16.5, and pull tires onto the these sure to easier, ence, or more not found it I’ve inadvertently creates a situation which difficult. of situa- of this kind the causes one of you’re if Q. that you Don’t believe tion. going to have stop you to make Q. Let me there added), Tr., II, (emphasis p. 356 Vol. something that all understand sure we config- tire, the wheel should be a 16-inch confusing. may be you put a way that can’t in such a ured wheel, larger the 16.5 Q. is the Which a inch a half tire on sixteen 16-inch 16-inch or the wheel? wheel wheel? diameter, the A. In terms of over-all should, yes. I think that it A. I think here, the tire which of diameter amount precluded, should be kind wheel actually over, the 16.5 go has to tire, it I mounting of the 16-inch think in this diameter than slightly smaller designed— so should be usually and I it’s about think doesn’t, it? Q. does This wheel inch, just a sixty-fourths an three A. No. little bit. Q. makes this wheel? Who added). II, Tr., (emphasis p. Vol. I think. Kelsey-Hayes, A. mar- CROSS:] modified Q. [ON If this wheel were Q. 16-inch problem by Kelsey-Hayes, The of mis-match this ginally, basic half go of a 16-inch tire a sixteen and it—on tire wouldn’t ability inch is the initial wheel asking telling me or me? you A. Are wheel, is the tire can be mounted modified, it, if it it Q. if were Would right? that marginally modified? Yes, the visual A. that combined with per- Well, if—I can I think that A. similarity. wheel could ways in which the ceive of that, you Q. In fact refer to don’t introduction preclude the be modified circumference, lesser circumference low it. tire on of a 16-inch manufactur- as, half inch wheel the sixteen and a says it cannot. er itof “the fuse on the bomb”? Q. you But can? circumstances, it It is some A. it, I don’t see not done but A. I have you up a situation where can sets any reason— hangup. de- an internal Q. You that’s believe Q. you “the fuse Don’t believe it’s thing, this wheel? of this fect the bomb”? is, yes. think A. I lan- if I've used that A. I don't know pre- you It sets could. guage, added). Tr., II, p. (emphasis Vol. although not hangup, condition explosion. necessarily an Milner, believe, if Dr. Q. design Q. of the wheel sets You a half sixteen and going to have a up, pre-condition? you’re wheel, be identified it should hangup, inch pre-condition for A. The paint scheme? type of some yes. A. I think it should. There should be It will for be the reader to determine for way some visually distinguish to it. I him or Uniroyal’s herself capsu- whether think past I’ve said in the that a wheel lized of testimony version can with- like that should have distinguish- scrutiny some stand the of an actual examination ing thing ought questions that developed put to be to of to Dr. Milner his people alert to it. answers. Q. At the minimum it should have Justice Bakes declares for the majority well, type some it should of— that the testimony Milner, of per Dr. size marked on it properly is cor- that Justice Bakes’ testimony, recitation of that rect? “was much more than extensive the evi-

A. The size inadequately on it Chrysler dence Fouche Corp., Motors marked. (1984).” 107 Idaho 692 P.2d 345 I disagree First, on three counts. I have

Q. There should be some kind of alert read Dr. testimony agree Milner’s inch, it’s sixteen and a half don’t wholeheartedly with trial court’s view put it, a 16-inchtire on correct? it that was not sufficient to make a case. Tr., II, added). p. Yol. 359 (emphasis Second, there was not in this trial Well, that, A. say I wouldn’t because procedure which moving allows for for a I you don’t think should write the word by nonparty. directed verdict In Fouche “sixteen” on it. so, plaintiff’s defendant did and the Q. You should have some— evidence with all inferences had be to good A. I don’t think that’s a idea at Third, in his viewed favor. Fouche all, person seeing got sixteen—that has upon expert testimony, based but testi- to go it. into mony prior of an actual demonstration Q. But type some alert an should purchase physical vehicle and evi- be on it? dence that Fouche did in smash into fact so, A. I yes. would think steering wheel and the It windshield. Tr., II, simply impossible to added). accept the conten- p. (emphasis Vol. tions Justice Bakes has advanced. doubt, So that there will no let it be clearly foregoing however, understood acceptable, exer- Even less is the exactly testimony Uniroy- cise is highly questionable danger- and I believe brief, upon pages al relied determining compa- 39 and ous “in statement that support its contention responsibility comparative that the trial court rative causa- jury necessary should have allowed the consider tion is not to establish that all comparative responsibility persons of the two form included on the verdict nonparties, damages majority which the now be liable for some all of rules was that product.” sufficient that “the to their attributable conduct entirely justified my part, would have been surmise on I allo- Sheer assume that cating mounting confusing liability to the machine re- manufac- the Justice Coats, practice, tured and to the rim sponsibility. wheel manu- by Kelsey-Hayes, percentages factured some or all fixes causative fault or responsibility proximately causing responsibility. causative To the court falls damages plaintiffs.” again entering proper judgment Once the task of myself wrong I much that I im- fear find considered are such factors as where profession. frightening munity, caps liability, It is know settlements. Frankly, Justice Bakes has I am written that statement unable understand majority argument, nothing making after review drift his but it has Vannoy’s evi- an insuf- evidence. That “review do contention that startling similarity dence” bears a or strict to that ficient case by Uniroyal I plain- which have from made out in its above extracted (mis)use Vannoy’s expert tiff’s brief. witness. guarantor is not an that no VII. insurer using injured product. his one will be seemingly Bakes believes Justice duty under a The opinion States District Court’s manufacturer the United produce product a which is Airlines, Valley Avco-Ly Inc. v. in Sun free from dangerous unreasonably conditions. A Corp., (1976), coming F.Supp. 411 598 sus legislature’s duty of how the constitutes blame- tains his own view violation of that Act should be read and under 1980 Reform culpability or sense of le- worthiness stood, and, judi perhaps why it should be gal fault. Uniroyal’s That cially at behest. amended heightening Together of a initially appears to have been filed action duty, a modification oc- manufacturer’s Valley against corporation Airlines Sun regard curs with to a manufacturer’s defendants, Avco-Lycoming and Beech Air liability products defenses in a strict ac- persons Corp. heirs of the five craft Idaho negli- contributory plaintiff’s tion. A sepa also either initiated killed in the crash a to recov- gence that label is not bar or intervened. The title of rate actions Nevertheless, that it well-settled ery. separate civil actions action reflects four a a manner un- misuse in The presumably consolidated. which were a is a de- foreseeable manufacturer diversity hearing in its a case federal court products liability. to strict fense statu did not the benefit Idaho policy a that a misuse defense embodies Idaho tory any appeal-developed law or the con- manufacturer should absorb dealing ramifications of case law with the of a sequences plaintiff’s of a misuse responsibili apportionment comparative way manufacturer product in which the products liability, the theo under strict ty anticipate. reasonably could not upon ry the claims went to of case which added) (emphasis F.Supp. 411 at 602 Observing that contention made trial.6 (footnotes omitted). “compara post-trial motions was that applied in der tive causation ... was based on The italicized sentence was Idaho,” ogation F.Supp. 411 of the law of opinion in from this Court's statement proceeded at court then the district Co., Idaho v. Morton Chemical 95 Shields ample language its outline succinct but (1974), Court wherein the 518 P.2d later, 1980, appeared which 1976 views judicially membership was unanimous accepted leg Idaho to have been when the liability for of strict adopting the doctrine products islature entered the field of strict Airlines, Valley the Dis- Sun In Idaho. liability. The United district court States jury had observing, as the trict Court after wrote as follows: Airlines, found, Valley Sun specifically concept in tort law is A fundamental Carlton, through employees Smith lie, liability there order for un- aircraft a manner had misused the wrongdoer vio- must be a actions whose manufactur- foreseeable the defendant duty plaintiff. A viola- late a owed to a ers, “the in this case was stated that duty owed, labeled of a whether tion asked, [existing Idaho stat- consistent with liability, negligence or strict is blame- to as- utory comparative law] With worthy culpable conduct. causative conduct sign percentage liability, a advent strict lawsuit.” to this duty was im- heightened standard or added). In (emphasis F.Supp. at 603 manufacturer, such that posed upon a no dealt with individual case Court prod- liability results from defective not a entity was corporate who injury, proximately causes uct which part to the lawsuit. though was even the manufacturer 7, the district by footnote As indicated However, liability negligent. is not strict Sciano, upon Dippel v. relied a manufacturer court liability absolute because defective, a cause question and that defect was answering Nos. 6 Beech aircraft crash. found that (1967), Wis.2d 155 N.W.2d 55 for the read into language the 1980 act which the liability, statement like “strict legislature did not choose to insert. se, gence per equally capable of causal comparison.” What the Wisconsin Su- ON REHEARING preme actually Court said was: BAKES, Justice. .liability Strict in tort for sale of a petition rehearing A product unreasonably this matter danger-

defective granted reargued. ous to an and the intended user or consumer cause now arises in this state Court has virtue of decision reviewed the record con- of this court. arguments this same presented by were sidered coun- If imposed violation a statute it is sel and continues adhere to the views of perceive difficult why would we not expressed and the in conclusion reached negligence per consider it pur- se for the Opinion No. filed November pose of applying comparative negli- the 22, 1985. gence just statute as we have done so many in involving times other cases the C.J., DONALDSON, SHEPARD, J., “safety so-called statutes.” Under the concur. negligence per definition of se set forth HUNTLEY, Justice, dissenting. in Osborne Montgomery, 203 Wis. [v. (1931)], supra, 234 N.W. 372 a safe- ty origin rule trace can its to a court I. decision well as as a statute. The viola- Although majority November safety tion of a statute can create a opinion of may this Court read well in the condition that constitutes an unreason- abstract, I totally fear it will be unwork- able risk of harm to If others. this un- setting, able in the trial from the actual danger cause, reasonable ais a substan- standpoint judge of both trial factor, producing injury tial in com- litigating parties, and if permit- this case is of, it plained compared can be with the stand, great ted to it will do violence to the contributory negligence causal of the orderly type trial of this case. In addi- plaintiff. While this discussion con- providing guidance tion to no real as to the tributory negligence, assumption phantom circumstances which de- under comparative negligence may risk and form, is to fendant be added the verdict be obiter issues dicta because those are ruling of the case seem to run would appeal,____ us not before on this salutory policy of contrary Idaho law Dippel, (emphasis 155 N.W.2d at 64-65 encourages which settlements. I will ad- added). in turn. dress each consideration then, seen, judi- court as Wisconsin case, The core issue this cially adopting the doctrine of strict liabili- present opin- by majority not addressed patterned Restatement, ty, after 402A § ion, comparison respon- a is how to make

just years as this Court do seven liability sibility strict cases work a later Shields. Since 1967 strict meaningful following manner. The are judicial wholly has remained doctrine in considerations: legislature Wisconsin. The not has entered (a) adversary system work well Can occupied and has In field. Idaho truly we when do adversaries pas- the converse been true since the kinds presenting the issues these sage Liability of the Product Reform Act cases? legislature of 1980. Had Idaho acted (b) Normally, to be in a Airlines, the issues tried prior to trial Valley of Sun by plead- case are those “framed the United States District Court would of all other legislature’s ings,” and consideration have looked to the law—not to Moreover, improper. In my opinion, is irrelevant and Dippel. the Unit- matters finally went to trial ed States District Court would not have when bring by plaintiff can now lawsuit pleading no there was phantoms either the rim to ascertain their alleging negligence of two mounting ma- or the contribution. gence manufacturer was no manufacturer and there chine present Although language of the by any third-party claim cross-claim opinion might good in the majority sound any negligence on alleging defendant atmosphere antiseptic appellate writ- (Uni- part “phantoms” those two really gives ing process, it the trial court defense). have an affirmative royal did guideline no and workable realistic Thus, practice pleading our under phantom. how to include the Just when pleading (although only notice system, said, much has to be what kind of in a required), party formally no witness, possible negligent con- about the position prove where had either non-party tribution to the accident disprove the two non-party judge before the must add that complaint phantoms on the basis effect, present In to the verdict form? our and answer. merely says that on the facts of decision (c) all fairness to the defendant Uni- mounting this case we think machine if, fact, Uniroyal desired to royal, cause, clearly wheel rim were exposure its ultimate reduce really by no which a we articulate standard presenting negligence of the two the judge trial can make that determination. phantoms, opportunities it to had three case, the In the instant all we have is so, remains, that do one of which still judge stating: trial is: just does did “... That the evidence (1) Initially phantoms when the were not— on justify instructing not the settlement, prior to the defendants other used in the defects in the fully litigated matter would have been Uniroyal tire, the ...” other than Uniroyal filed a cross-claim. had (2) the made When settlement was having finding, judge made that The trial phantoms on the eve of him. that we overrule peculiar it is a bit trial, of, Uniroyal option had the at short, opinion procedure In leaves the point, asking court for the trial dis- trying for of these cases total one against file ei- leave to a cross-claim if some array as asserts rule that it phantoms it ther both of the and which, taken witness makes a statement to opted not do so. It would have been case,” alone, “prima in a facie would result fully for trial to appropriate court non-party must be added to then a de- condition the dismissal the two cases, many virtue verdict form. opportunity on leave and fendants law, judge depositions rules of the trial cross-complaints Uniroyal get to well of the fact attorneys are aware filed. all were theo- Since prima facie case would be rebutted that the trial, prepared probably it retically appli- testimony byor rules of law by other required delay even have matter is not But since the cable thereto. trial, commencement pleadings, it placed will not issue have, if it would the court could get litigated. Uniroyal if had asked granted a recess that, possible I when suppose it to so. that it do trial, during of a some witness the course (3) having to Even failed exercise up something tending to make a brings option filing cross-complaint, Uni- against non-party, prima case some facie procedure to royal day still this stop coun- in midstream while the trial can negligence comparative stat- under the there rule as contribution, to then and sel asks the court utes it can seek where get prepared counsel had best to whether the cause of action for contri- because disprove prove a case only Uniroyal is arises after bution to excuse it then would have phantom. We found liable in the first instance give jury, recess the trial sey-Hayes Company counsel or the Company, Coats opportunity get prepared on an issue any responsibility Inc. with for the acci- by any party. framed Such would seem to dent, it interesting to note what did way operate be a cumbersome a trial pleadings remain in invite at- that, given case, Uniroyal in this had the tention court and counsel to the fact that right join phantom defendants as problem might not be us before had third-party defendants or cross-defendants. given attention been to the status of the state, long It is indeed ironic that this pleadings following the dismissal designed encourage leader innovation two defendants. expeditious litigation, efficient and will now of Uniroyal plaintiffs’ answer open itself to this kind of abuse of the complaint in Paragraph states V: judicial process. allegations Paragraphs contained in verdict, resulting does the What with the VIII, X speak and XI acts or omissions included, phantom ultimately defendants Defendants than Uni- Defendant Are non-party phantoms mean? those royal, Inc., and therefore Uni- Defendant way? in any bound Can the royal, position Inc. takes no on said alle- plaintiff from collect either one of them? gations. get Can true defendant contribution on all based that verdict? The answer to Paragraph charges Kelsey-Hayes, VIII questions liability three is “no.” The of Paragraph charges Uniroyal, IX Para- phantoms probably will have to be liti- graph X charges Company, Inc. Coats gated again. Accordingly, status an- appropriate It is to further consider the taking position swer was that was no at practice effect of this decision all or strict al- settling It is re- lawsuits. true there leged against phantom the two defendants. taking the of not mains device covenant Therefore, plead- the on basis of own execute, settling with the then defendant ings, Uniroyal right had no that insist sitting through the participating trial and verdict, jury be included on the be- proceedings. in (lengthening) the How- totally cause such be inconsistnet would ever, why practice should such be encour- position position with its that it “takes no aged, especially those cases where allegation.” on said of plaintiff recognizes the eve the trial the Unfortunately, the confusion does he only has a case of doubtful or answer, Paragraph with V the be- end of possibly validity against no as one or more defendant, Uniroyal, permit- the was cause defendants? ted to affirmative de- maintain “first rule “phan- Our of law should be the totally fense” which was inconsistent with can tom defendant” be included answer, Paragraph ofV the the defense special only form in those verdict cases reading: prohibits joinder the law in the ac- where further, separate As a and affirmative (such liability employer tion of an barred Five, through One in- defense to Counts statute). In compensation the worker’s clusive, Complaint, of Plaintiffs’ an- cases, seeking all other a defendant contri- alleges swering al- Defendant appointment or bution of should leged alleged damages injury suffered join under the other defendants a cross- proxi- directly were Plaintiffs third-party complaint. claim mately negligent acts caused

II. Kelsey-Hayes Com- and/or omissions of Inc., pany, Company, Henne- Coats hereinabove, Having I noted in Part Industries, sey and Rim Associa- Tire proceeded jury before the case to trial tion, Inc., Burnan, or their Terry any complaint, cross-complaint, or without charging agents, employees. Kel- third-party complaint either servants if the settlement defense the instant pleading of that affirmative phantom I address defendants had not been brings into focus that which shall made, had been tried in Part III of this dissent. and the case ultimately sub- three defendants all I it is point, note that At this would jury against all defend- mitted to the three (or been until this at least has axiomatic ants, special verdict form would have out) party opinion came that a majority following question asking the given been asserting defense has the an affirmative toas each. con- proving the matters therein burden of proof That includes tained. burden QUESTION 1: Was the defendant NO. elements of the “cause ac- proving all negligent, negligence Uniroyal which court and tion” or defense. As the trial proximate cause of the accident? was the relative to counsel noted in their discussion defendant, QUESTION 2: Was the NO. including phantom de- propriety negli- negligent, Company which Coats fendants, presented there was no evidence gence proximate cause (1) party the date by any relative to either accident? manufactured, (2) equipment was defendant, QUESTION NO. 3: Was the applied industry the standards which negli- Kelsey-Hayes negligent, which Thus, on the face of this at that time. gence proximate cause of record, is clear that did not accident? proof required to estab- meet the burden QUESTION plaintiff, 4: NO. Was The trial court lish its affirmative defense. Vannoy, negligent, which Jerry including phan- in not the two was correct proximate cause gence was the toms on the verdict form.

accident? III. pro- form then Idaho apportion I now to a consideration of unfortu- come to ask the 100% ceeds wording majority and loose among nate whom which, opinion thoughtfully if and care- given “yes” were answers affirmative judges lawyers, fully analyzed by trial questions. the above four multi-party the trial of most will confound ques- comes the kicker! Those Now four fail- problem This arises from our actions. jury on propounded tions presentation how the ure to remember all instructions the basis of general ultimately culminates evidence preceded. further re- jury to the instructions pre- instructions which Included in those presentation special a sult in the of defendant a as to each would be ceded comparative negligence cases. form in the jury the determine requirement agree in this quite Justice Bakes I with any those and if its defenses merit of Donaldson, opinion speaking and Justice convincing the by prevailed defendants Special Prod for the Court Lasselle defenses, there would jury any of its Co., 677 P.2d 483 106 Idaho ucts appropriate to a “no” answer the have been (1983), jury proposition the questions and the the first three one compare to opportunity should have any per- apportioned not have jury would parties, including both culpable fault all centage to that defendant. charged negligence under those defendants word, asking jury to are we liability. charged under strict those and Thus, compare the rationale Sun However, goes beyond this case Lasselle fault. Airlines, comparing those Inc. of Valley subtle, insidious, totally and way that is blameworthi- culpability, parties for whom standpoint those from the unworkable of fault has been deter- some form ness or attempting present to judges lawyers and by language quoted following mined in the I juries, for reasons am about cases opinion. majority articulate. “Once culpability,- and injuries plaintiffs. blameworthiness or to the If' some determined were, special verdict form should re- form of fault occurred, trier of fact to have then the quire to allocate that causation denoting labels ‘quality’ of the act or them, regardless of whether the Coats omission, whether be strict liability, Company Kelsey-Hayes and could have a negligence, se, negligence per etc., be- judgment rendered them as a unimportant. Thus, comes the underly- damage result of the caused their tire ing issue in analyze each case and mounting machine and the wheel rim. compare the par- causal conduct of each That has never been the rule of law in ty, regardless of its label.” Valley Sun Idaho, it way special has never been the Airlines, Avco-Lycoming Corp., Inc. v. verdict forms are drafted in Idaho since F.Supp. 598, (1976). (Em- 603 n. 5 1971, and I am fearful Idaho’s trial phasis supplied). judges lawyers going are to wonder Note that ask we do not fix whether anything of us remember percentage negligence upon every party about the nuts bolts presenting for whom the evidence shows prima some jury. case to the Apparently, major- if this case negligence where the defend- facie ity opinion followed, is to be Idaho trial ant has shown defense which rebuts the judges going are to have to submit two prima facie case of causation. special sets of jury, verdict forms to the words, In other there is not one set of comparing prima one testimony facie cause questions on special appor- verdict form and a comparing second fault. tioning “prima negligences” facie and a questions second apportioning fault, set of

culpability, and blameworthiness. Stated IV. again, jury only apportions negligence majority opinion Part I of the concludes among responsible those who are sentence, following which is a plaintiff under mandate of all of the jewel: including instructions consideration of the not, not, “We do need decide in this defenses. judgment action to what extent foregoing points out the serious mis- actually litigated the issues would be opinion. chief of the majority Apparently, binding upon non-parties Coats and instructing Justice Bakes is Idaho’s trial Kelsey-Hayes, subsequent litigation.” judges ignore the instructions as a required practice We are under the of this whole, place upon now ver- Court and a to decide all statute issues dict corporations, form all individuals necessary to resolution of the ultimate case not, party whether a prima whom a knowing when it is Without re-tried. facie case of has been made out question posed, answer to the testimony of some witness. proceed cannot know how to their ac- opinion His following contains the lan- tions for contribution indemnification guage page at 15: Obviously, flow from this case. determining whether or not to include judgment that the answer to the issue is form, additional the verdict on binding non-parties. To admit that question judgment whether a acknowledge would be to force tous would or could be rendered I, problems I have set forth Parts II and person, but whether not his conduct or III of this would also dissent and force us his caused contributed to the are, acknowledge we this deci- Thus, injuries. accident and in the case sion, wasting judicial resources on the liti- Company Kelsey-Hayes, the Coats and gation binding have no issues which mounting issue is the tire whether nothing effect and result incur- machine wheel rim and the were the cause, litigation part, expensive of non-issues whole or in of the accident rence step back parties. We should by the whole situation.

re-think this J.,

BISTLINE, concurs. P.2d MURGOITIO, De Plaintiff-Counter

L.L.

fendant, Appellant-Cross-Respondent,

v. MURGOITIO, Defendant-Counter-

J.C. claimant,

Respondent-Cross-Appellant, Murgoitio Murgoitio, Per and L.L.

J.C. Representatives for the Estate

sonal Defendants-Respon Murgoitio,

R.G.

dents, Potts, Repre one of the Personal

Anna Murgoi of the Estate of R.G.

sentatives deceased,

tio, Defendant-Respondent,

Cross-Appellant. MURGOITIO, Plaintiff-Appellant,

L.L. MURGOITIO, Murgoitio, and J.C.

J.C. Potts, Murgoitio Anna Person L.L. Representative R.G. of the Estate of

al deceased, Murgoitio, Defendants-Re Coughlan, Cough- Coughlan, of A. Glenn spondents. Stoppello, Stop- Korn, and Frank lan & Nos. 15241. Boise, plaintiff-coun- pello Hampton, & defendant, appellant-cross-respondent. ter Supreme Court of Idaho. dark, Hawley, Tro- Esq., of Merlyn W. April 1986. Jr., xell, Tyler, Hawley, Robert M. Ennis & Rehearing Denied Oct. II, K. Domin- Fisher and Bobbi MelvilleW. A. ick, Elam, Stanley Boyd, Burke & Clemons, Humphrey, Welsh, Cosho & Boise, defendants-respondents. DONALDSON, Chief Justice. dissolution, wind- case involves the This family partner- of a ing-up and termination 1900’s, Murgoitio early J.H. ship. In the

Case Details

Case Name: Vannoy v. Uniroyal Tire Co.

Court Name: Idaho Supreme Court

Date Published: Sep 10, 1986

Citation: 726 P.2d 648

Docket Number: 15529

Court Abbreviation: Idaho