86 Hawai'i 383, Torres v. Northwest Engineering Co., 15953

• Decision Date: 25 November 1997
• Docket Number: No. 15953,15953
• Citation: 949 P.2d 1004,86 Hawaii 383
• Parties: 86 Hawai'i 383 Anna TORRES, individually and as Special Administratrix of the Estate of Fernando Torres, Deceased, and Carol Torres, Plaintiffs-Appellants, v. NORTHWEST ENGINEERING COMPANY, John Does 1-10, Jane Does 1-10, Doe Partnerships 1-10, Roe Non-Profit Organizations 1-10, and Roe Governmental Entities 1-10, Defendants-Appellees.
• Court: Hawaii Court of Appeals

Page 1004

949 P.2d 1004

86 Hawai'i 383

Anna TORRES, individually and as Special Administratrix of the Estate of Fernando Torres, Deceased, and Carol Torres, Plaintiffs-Appellants, v. NORTHWEST ENGINEERING COMPANY, John Does 1-10, Jane Does 1-10, Doe Partnerships 1-10, Roe Non-Profit Organizations 1-10, and Roe Governmental Entities 1-10, Defendants-Appellees.

No. 15953 Intermediate Court of Appeals of Hawai'i.

Nov. 25, 1997.

Reconsideration Denied Dec. 22, 1997.

As Amended Jan. 28, 1998.

Certiorari Denied Jan. 30, 1998.

Herbert R. Takahashi, Stanford H. Masui, and Danny J. Vasconcellos (Takahashi & Masui, of counsel), Honolulu, for plaintiffs-appellants.

Arthur F. Roeca and Keith K. Hiraoka (Roeca, Louie & Hiraoka, of counsel), Honolulu, for defendants-appellees.

Before BURNS, C.J., and WATANABE and ACOBA, JJ.

WATANABE, Judge.

This lawsuit arises from an industrial accident in which a crane manufactured and sold by Defendant-Appellee Northwest Engineering Company (Northwest) tipped over and crushed its operator, Fernando Torres (Torres). Torres subsequently died from injuries he sustained in the accident.

Plaintiff-Appellant Anna Torres (Anna), the widow of Torres, individually and as Special Administratrix of the Estate of Fernando Torres, and Plaintiff-Appellant Carol Torres (Carol), the adult dependent daughter of Torres, (collectively, Plaintiffs) appeal from the following orders and judgment entered by the Second Circuit Court (the circuit court): (1) the January 21, 1992 Order Granting in Part Northwest's Motion for Judgment Notwithstanding the Verdict (JNOV) or, in the Alternative, for New Trial, Amendment of Judgment, Relief from Judgment and Remittitur; (2) the January 22, 1992 Order Denying Plaintiffs' Motion for Partial Judgment Notwithstanding the Verdict (PJNOV); (3) the December 18, 1991 Order Granting Northwest's Motion for Directed Verdict; and (4) the January 21, 1992 Judgment, entered in Northwest's favor as to all claims asserted by Plaintiffs.

We conclude that (A) the circuit court improperly granted JNOV as to Plaintiffs' claim for breach of express warranty, (B) pure comparative fault principles should be applied to reduce any recovery by Plaintiffs for breach of express warranty, (C) the circuit court improperly directed verdict for Northwest as to Plaintiffs' claim that Northwest breached an implied warranty of merchantability, and (D) wrongful death and negligent infliction of emotional distress damages are derivative in nature and consequently, Plaintiffs cannot recover such damages unless Torres had a viable cause of action.

BACKGROUND

At about 8:15 on the morning of July 2, 1987, Torres, an experienced crane operator, was harvesting sugarcane for his employer, Wailuku Agribusiness Company (Wailuku), in a field located near the Wailuku Heights Subdivision on the island of Maui. According to Joe Azuara (Azuara), an eyewitness to the accident, it had rained that day, creating wet ground conditions in the field where the harvesting was taking place. Torres's job as crane operator was to grab a load of sugarcane from the field and unload that sugarcane into a truck driven by Azuara. At the time of the accident, the crane that Torres was operating was on a 12.9 degree (12.9? ) downhill slope, with the crane's tracks pointed down the slope. Azuara testified at trial that prior to the accident, Torres had already dumped two loads of sugarcane into Azuara's truck. When Torres went for his third "grab" of sugarcane, the back of the crane tipped off the ground about two or three feet. Before the crane could settle back down, Torres rotated the crane's boom, which was loaded with cane, towards the truck, then dropped the load into the bed of the truck. Almost immediately, the crane swung away from the truck and began to topple over. Azuara saw Torres fall out of the crane's cab, and the crane landing on Torres and pinning him to the ground. Torres was rushed to the hospital, where he died from multiple injuries sustained in the accident.

It is undisputed that the crane that Torres was operating was a Model 41 special caneloader crawler-type crane manufactured and sold by Northwest and designated by Wailuku as Crane C204. Crane C204 weighed sixteen tons and was outfitted with a forty-five (45)-foot boom. It also had a grapple apparatus weighing about 3,000 pounds, which was capable of grabbing between one to two tons of sugarcane per grab. The crane had been purchased by Wailuku in November 1972 and delivered to Wailuku by Northwest in April 1973. According to the purchase order and shipping documents (contract documents) for Crane C204, the crane was to be equipped with thirty (30)-inch-wide steel treads. ¹ However, after the accident occurred, it was discovered that the treads were only twenty-four (24) inches wide. Since the undisputed testimony of Wailuku's mechanics was that the treads for Crane C204 had never been replaced while Wailuku possessed the crane, it is clear from the record that Northwest supplied Wailuku with a crane that did not conform to the contract documents.

PROCEDURAL HISTORY

On May 27, 1988, Plaintiffs filed this lawsuit against Northwest, seeking compensatory and punitive damages for negligence, strict products liability, breach of express and implied warranties, wrongful death, and intentional and negligent infliction of emotional distress (NIED). A seven-day jury trial commenced on November 4, 1991.

Plaintiffs' first witness was David Lai (Lai), a retired Wailuku crane operator who had operated heavy equipment for Wailuku for nearly forty-six (46) years and had provided "on-the-job" training to Torres when Torres was first hired by Wailuku. Lai testified that no formal training was provided to Wailuku crane operators and training was instead given "on-the-job." Thus, Lai explained, all Wailuku crane operators handled the cranes basically the same way. Furthermore, none of the operators were taught what to do if a crane were to tip while operating it. Lai did acknowledge that he knew that whenever the crane began to tip, he had to "be sure to check [him]self and go back down again." Lai added, however, that sometimes crane operators didn't realize that their crane was tipping since they had their minds on the "grab at all times," which was the most dangerous part of their job. Moreover, no one at Wailuku had ever cautioned operators not to operate the crane while it was tipped.

When questioned about how he understood the accident to have occurred, Lai testified that the size of the treads had an effect on operation of the crane. Specifically, Lai explained, the treads were twenty-four (24) inches wide when their width should have been thirty (30) to thirty-six (36) inches wide. The defense objected to Lai's statement, but the circuit court overruled the objection, based on Lai's forty years of experience as a crane operator.

Dennis Palmer Martin (Martin), Plaintiffs' expert witness regarding heavy equipment mechanical engineering, testified as to his opinion regarding the cause of Torres's accident. Martin explained that sugarcane is initially burned, then pushed into a wind row with rakes. A crane then comes along and pulls "the cane out of the wind row and out of the tangled up mess of cane." In order to get the sugarcane to break loose, the crane operator would "have to tip the crane up a bit in order to get a little more pull and pull it out of the tangle of the wind row ... to maximize the amount of cane that they are getting each time."

Martin's understanding was that on the day of the accident, Torres was harvesting sugarcane on a slope that appeared to be "a little bit wet." Because the moisture had caused the ground to soften, the crane "would tend to sink down into the ground." When Torres grabbed a load of cane, his crane tipped up about two to three feet at [t]he accident would have would have [sic] been less likely to have happened as the crane is tipped up. It wouldn't be driven nearly so deeply in the ground. It would tend to stay on the surface better.

                [86 Hawai'i 387] the back treads, then started to rotate, putting even more pressure onto the crane and planting it further into the ground.  Realizing he was in trouble, Torres dumped the load into the truck and then rotated the crane out and away from the truck.  Torres then fell out of the crane's door, landing under the crane as the crane fell over and crushed him.  Considering the facts, Martin opined "that burying wouldn't have been nearly so bad if there'd been wider treads on [the crane].  For instance, if this [crane] had 36[-]inch treads instead of the 24 inches, the treads would have only pushed down into the ground one half as much."   Thus, Martin concluded that
                

If it were in a very, very critical zone here where it doesn't take much to have the crane go one way or the other. This crane didn't tip over by very much. The crane almost went back the other way because it took so long to go over. Had it gone over real quick, you'd have known that it wasn't balanced very well, but because it took so long for him to rotate clear over there, dump his load and come all the way back before it went over indicates that the crane was almost--was balanced, and if it had those treads, it probably would have stayed up a little higher, wouldn't have sunk in the ground and there's a strong likelihood that it would have gone right back down and we'd have had no accident.

Martin also looked over the contract documents for Crane C-204 and noted that they specified a crane equipped with 30-inch-wide treads. Additionally, Martin interpreted Northwest's product literature to advertise Northwest's cranes as being suitable for soft ground conditions.

At the conclusion of the presentation of Plaintiffs' case, Northwest moved for a directed verdict on all claims, including Plaintiffs' claim for punitive damages. With regard to Northwest's motion for a directed verdict on the claim of...