577 F.2d 873 (5th Cir. 1978), 75-3885, Westerman v. Sears, Roebuck & Co.

Docket Nº:75-3885.
Citation:577 F.2d 873
Party Name:Joan WESTERMAN, as personal representative of the Estate of Michael Westerman, Deceased, etc., et al., Plaintiffs-Appellees, Cross-Appellants, v. SEARS, ROEBUCK AND COMPANY, Defendant-Appellant, Cross-Appellee.
Case Date:August 01, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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577 F.2d 873 (5th Cir. 1978)

Joan WESTERMAN, as personal representative of the Estate of

Michael Westerman, Deceased, etc., et al.,

Plaintiffs-Appellees, Cross-Appellants,


SEARS, ROEBUCK AND COMPANY, Defendant-Appellant, Cross-Appellee.

No. 75-3885.

United States Court of Appeals, Fifth Circuit

August 1, 1978

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[Copyrighted Material Omitted]

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Sam Daniels, Miami, Fla., for defendant-appellant, cross-appellee.

Marvin Weinstein, Miami Beach, Fla., Robert Orseck, Miami, Fla., for plaintiffs-appellees, cross-appellants.

Appeals from the United States District Court for the Southern District of Florida.

Before THORNBERRY, GODBOLD and FAY, Circuit Judges.

FAY, Circuit Judge:

This is a wrongful death action in which the defendant, Sears, Roebuck and Company (Sears), appeals a $901,510 final judgment for the plaintiff, Joan Westerman, as personal representative of the Estate of Michael Westerman, deceased. As grounds for this appeal Sears asks us to decide:

I. Whether Florida would apply its Wrongful Death Act, Fla.Stat. 768.16 et seq., in a products liability case where the product was sold in Florida to a Florida citizen but the fatal injuries occurred in Texas.

II. Whether on the present record the trial court correctly charged the jury on a manufacturer's duty to warn.

III. Whether the trial judge erred in holding that contributory negligence, assumption of the risk, and misuse of the product were not available defenses and refusing to instruct the jury on those defenses.

IV. Whether Sears is entitled to a new trial on both liability and damages pursuant to this Court's decision in Edwards v. Sears, Roebuck and Company, 512 F.2d 276 (5th Cir. 1975).

On cross appeal by Mrs. Westerman we are asked to consider:

V. Whether the trial court abused its discretion in entering various remittiturs of the verdicts returned by the jury.

For the following reasons we affirm the judgment of the district court but modify it with respect to the amount of damages.


In 1973, Mrs. Westerman sued Sears in a Dade County, Florida, trial court. In her

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three count complaint, she sued as personal representative for her husband's wrongful death (Count I), as mother and next friend to recover for her son, David's, personal injuries (Count II), 1 and individually, to recover for her own personal injuries (Count III). The complaint alleged that the automobile accident was caused by a defective tire and sought recovery under the theories of negligence and breach of express and implied warranties. Later, the complaint was amended to include the theory of strict liability. Sears' answer and amended answer denied the material allegations of the complaint and asserted contributory negligence, assumption of the risk, the statute of limitations, and misuse of the product as defenses.

Subsequently, the cause was removed to United States District Court in the Southern District of Florida. Diversity jurisdiction existed because plaintiff was a Florida citizen and Sears was incorporated or had its principal place of business in New York and Illinois.

The trial court ordered a bifurcated trial on liability and damages and ruled prior to trial that Texas "substantive tort law is applicable to the issues of negligence and strict liability." As to the warranty claims, the trial judge held since both Texas and Florida had adopted the Uniform Commercial Code, "its warranty sections would apply." The trial court also ruled that if the two states interpreted a Code section differently, the Florida interpretation would prevail "because a more significant part of the sales transactions occurred within Florida." He also ruled that Florida law governed as to what defenses were available in warranty actions.

During the liability trial plaintiff abandoned her negligence claims and case went to the jury on the warranty and strict liability claims. The jury returned verdicts for plaintiff on all claims.

An issue contested during the damage trial and here is whether the recoverable damages in this wrongful death action were governed by the Texas or the Florida wrongful death act. Sears claimed the Texas act applied and plaintiff the Florida statute. The major difference between the two acts is that in Texas recovery may be had for decedent's pain and suffering but not for the mental pain and suffering of beneficiaries because of decedent's death. The converse is true in Florida.

The trial court reserved ruling on this choice of law issue and submitted a special verdict form to the jury which required the jury to assess damages separately for all disputed damage elements. The jury returned the following verdict:

  1. For the estate of Michael Westerman a. Medical and funeral expenses $ 2,500 b. Conscious pain and suffering of decedent (element of recovery in Texas only) 200,000 II. (A) For the minor son of decedent, David, for his father's death a. Loss of parental companionship and for his mental pain and suffering resulting from his father's death 500,000 b. Loss of services, moral advice, education, care, counsel, instruction and guidance 500,000 (B) For the wife of decedent, Joan, for her husband's death a. Loss of companionship and protection and her mental pain and suffering resulting from her husband's death 350,000 b. Loss of services and care 200,000 III. For the personal injuries of Joan Westerman 560,000 ---------- TOTAL $2,312,500

    Upon a motion for new trial and/or remittitur which the trial court granted and

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    plaintiff accepted under protest the judge reduced the damages as follows:

  2. a. Medical and funeral expenses reduced to $ 1,510 b. Pain and suffering of decedent (if recoverable) 50,000 II. (A) a. Loss of parental companionship, etc., reduced to 200,000 b. Loss of services, etc. reduced to 150,000 (B) a. Recovery of wife for loss, left intact 350,000 b. Recovery of wife for loss, left intact 200,000 --------- TOTAL $ 951,510 III. New trial granted on damages for Mrs. Westerman's personal injuries. The trial court then ruled the Florida wrongful death act was applicable (thereby excluding I(b) $50,000 from the allowed recovery) and the final judgment totaling $901,510 was entered. This appeal and cross appeal followed.


    Mrs. Westerman, a Miami, Florida, schoolteacher, and her husband saw a television commercial entitled "The Baja Run in 1969" which advertised Sears Steel-Belted Radial Tires. At that time they owned a 1969 Chevrolet which they had purchased new and had then traveled 15,000 miles. Not needing new tires at the time but drawn by the representations made in this commercial, the couple went to a nearby Sears store in Hollywood, Florida, to look into the purchase of the advertised tires. Wanting to get "the best tires (they) could get" and after being told how wonderful the tires were by the salesperson and being shown the owner's manual and guarantee, the Westermans purchased four new tires for the Chevrolet. On that date, December 29, 1969, the Chevrolet had traveled 15,082 miles.

    Mrs. Westerman was given the Owner's Manual which had the following language on the front cover:

    The manual itself contained the following language:


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