805 F.2d 360 (10th Cir. 1986), 83-2166, Black v. Hieb's Enterprises, Inc.

Docket Nº:83-2166.
Citation:805 F.2d 360
Party Name:Brian K. BLACK, Plaintiff-Appellant, v. HIEB'S ENTERPRISES, INC., Defendant-Appellee.
Case Date:November 14, 1986
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 360

805 F.2d 360 (10th Cir. 1986)

Brian K. BLACK, Plaintiff-Appellant,


HIEB'S ENTERPRISES, INC., Defendant-Appellee.

No. 83-2166.

United States Court of Appeals, Tenth Circuit

November 14, 1986

Page 361

Michael J. Friesen (Phyllis F. Wendler, Michael J. Friesen, P.A., with him on the briefs), Michael J. Friesen, P.A., Garden City, Kan., for plaintiff-appellant.

T.J. Carney (Casey Law, Turner and Boisseau, Chartered, with him on the brief) Turner and Boisseau, Great Bend, Kan., for defendant-appellee.

Before HOLLOWAY, BARRETT and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiff-appellant Brian Black (Black) brought this products liability suit against defendant-appellee Hieb's Enterprises, Inc. (Hieb). A jury trial was conducted, and the jury returned a verdict allocating fault and assessing damages. Black moved for a new trial and to correct the verdict. The trial judge denied both of these motions, and Black appeals both denials. Black also appeals the lower court's decisions to exclude from the evidence presented at trial certain deposition testimony by Mr. Hieb which referred to his liability insurance, and to direct a verdict in favor of Hieb on the issue of punitive damages. We affirm the district court on all issues.

In January 1981, Black was injured during an attempt to tow his vehicle out of a snow bank. Black and Fred Hemmert (Hemmert) attempted to pull Black's vehicle out of the snow by fastening one end of a synthetic rope belonging to Hemmert to the rear of Black's vehicle, and attaching the other end of the rope to the hitch ball on the rear bumper of Hemmert's truck. As the synthetic rope was pulled taut, the hitch ball on Hemmert's truck broke off of the bumper. The stored energy in the rope caused the hitch ball to be propelled through the rear window of Black's vehicle. The ball struck Black in the face, causing facial fractures, scarring, the loss of an eye, and dental injuries.

Black brought this diversity suit in the federal district of Kansas. 28 U.S.C. Sec. 1332. Black's complaint contained theories of strict products liability, negligence, and breach of warranty against the manufacturer of the rope (Hieb), several entities involved in the distribution of the rope, and the manufacturer and distributor of the hitch ball. The complaint also contained a prayer for punitive damages against these parties. No claim was brought against Hemmert. Prior to trial by jury, all named defendants except Hieb were dismissed from the suit. The trial judge granted a directed verdict in favor of Hieb on the punitive damages claim. Fed.R.Civ.P. 50; Rec. vol. II at 670-71. The jury returned a verdict allocating fault as follows: Black--45%, Hemmert--45%, Hieb--10%, hitch ball manufacturer--0%. Rec. vol. I at 234-35. The total damages to Black are specified in the special verdict form to be $55,000. Id. Judgment was entered in accordance with the jury verdict. Rec. vol. I at 238. The net result of the jury's fault allocation and damage assessment as reflected in the special verdict was a $5,500 award from Hieb to Black. Rec. vol. I at 268, vol. II at 709.

After judgment was entered, Black filed a motion for new trial, along with a motion requesting the district court to correct the net amount awarded to Black. The lower court denied both motions, noting that the case had been fully and fairly tried, and that it would not invade the province of the

Page 362

jury and disturb the verdict. Rec. vol. II at 717-22. Black filed a timely appeal with this court, appealing the denial of the post-trial motions, as well as the trial court's directing of a verdict as to punitive damages and an evidentiary ruling pertaining to evidence of Hieb's liability insurance. 28 U.S.C. Sec. 2107.

Black first contends that the trial judge erred in denying his motion for new trial, and that a new trial is proper because the jury's verdict (1) awards inadequate damages and (2) is clearly against the weight of the evidence. We disagree with both contentions.

In reviewing the trial judge's determination that the damages awarded by the jury were not so inadequate as to require a new trial, we are to determine whether the trial judge has abused his discretion. Brown v. Richard H. Wacholz, Inc., 467 F.2d 18, 19-20 (10th Cir.1972). However, no abuse of discretion will be found unless the verdict is so inadequate "as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption, or other improper cause invaded the trial." Bennett v. Longacre, 774 F.2d 1024, 1028 (10th Cir.1985) (quoting Barnes v. Smith, 305 F.2d 226, 228 (10th Cir.1962)). Absent such a showing of passion or prejudice, the jury's finding on damages is considered inviolate. Acree v. Minolta Corp., 748 F.2d 1382, 1388 (10th Cir.1984); Barnes v...

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