Antley v. Yamaha Motor Corp., U.S.A.

• Decision Date: 08 February 1989
• Docket Number: No. 87-1172,87-1172
• Citation: 539 So.2d 696
• Parties: Prod.Liab.Rep. (CCH) P 12,203 Rickey Lynn ANTLEY Sr., Plaintiff-Appellant, v. YAMAHA MOTOR CORPORATION, U.S.A., et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 696

539 So.2d 696

Prod.Liab.Rep. (CCH) P 12,203

Rickey Lynn ANTLEY Sr., Plaintiff-Appellant, v. YAMAHA MOTOR CORPORATION, U.S.A., et al., Defendants-Appellees.

No. 87-1172.

Court of Appeal of Louisiana, Third Circuit.

Feb. 8, 1989.

Rehearing Denied March 8, 1989.

Chris J. Roy, Law Corp., Leslie R. Leavoy, Alexandria, for plaintiff-appellant.

Charles W. Seaman, Natchitoches, for intervenor-appellant.

A.J. Gregory, Jr., Natchitoches, Wilson & Walker, and Gold, Simon, Weems, Bruser, Sharp, Sues & Rundell, Raymond L. Brown, Jr., Alexandria, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Donald O. Collins, Vivian L. Madison, New Orleans, for defendants-appellees.

BEFORE GUIDRY, KNOLL and KING, JJ.

GUIDRY, Judge.

On July 10, 1984, Rickey Lynn Antley, Jr. (hereafter Rickey), a seven and one-half year old boy, was killed when the Yamaha YTM225DXL all-terrain vehicle (hereafter ATV 225) he was riding capsized and fell upon him. The accident occurred in Natchitoches Parish, Louisiana. Rickey's natural father, Rickey Lynn Antley, Sr. (hereafter Antley, Sr.), timely filed suit seeking recovery for the deceased's wrongful death against Mr. and Mrs. Jimmy Warford and their insurer, Allstate Insurance Company (hereafter Allstate), for alleged negligence on the part of Mrs. Warford in permitting Rickey to ride the ATV 225; and against Yamaha Motor Corporation, U.S.A. (hereafter Yamaha), the manufacturer of the ATV 225. Jeri Antley Norman, Antley, Sr.'s former wife and Rickey's natural mother, intervened seeking damages for the wrongful death of her son. Antley, Sr. subsequently amended his petition to include Cane River Cycles, Inc., d/b/a Honda Village, as a defendant. ¹ Numerous cross-claims and third-party demands were filed but all were dismissed before trial.

Prior to trial, the Warfords and Allstate settled with the plaintiff and intervenor and the latters' demands against these defendants were dismissed. Thereafter, the matter proceeded to trial by jury against the remaining defendants, Yamaha and Cane River Cycles, Inc. The jury unanimously found Yamaha and Antley, Sr. each 50% at fault in causing Rickey's death. The jury found no negligence on the part of the Warfords, Ed Stewart, and/or Cane River Cycles, Inc. The jury awarded Jeri Antley Norman $50,000.00 in damages but found that Antley, Sr. suffered no damages. Pursuant to this verdict, the trial court rendered judgment in favor of Jeri Antley Norman against Yamaha in the amount of $50,000.00 together with interest from date of judicial demand until paid. Antley, Sr.'s claims against Yamaha and Ed Stewart, d/b/a Cane River Cycles, Inc. were dismissed. Yamaha and Antley, Sr. were cast with all costs of the proceedings. Yamaha filed a motion for a new trial. Antley, Sr. filed a motion for judgment notwithstanding the verdict and, in the alternative, for a new trial. The trial court denied all post-trial motions. Plaintiff and intervenor appealed devolutively, however, intervenor's appeal was dismissed upon her own motion. Defendant, Yamaha, answered Antley, Sr.'s appeal urging that if the trial court judgment is revised or reversed then, in such event, Yamaha is entitled to have such judgment revised to additionally cast judgment against Beverly Warford and Antley, Sr., in solido, for the full amount of Jeri's damages. Yamaha also seeks a reversal of the trial court judgment insofar as its casts Yamaha 50% negligent in causing Rickey's death.

FACTS

In July 1984, Rickey was living with his mother, Jeri Norman, in Longview, Texas. From time to time Rickey would visit with his father and his paternal grandparents in Natchitoches, Louisiana. On this particular occasion young Rickey had come to Natchitoches to attend the funeral of his great-aunt. He was staying with his grandfather, Floyd Antley, who was the next door neighbor of the Warfords. When Rickey would visit his grandfather, he often played with the Warfords' nine year old son, Keith.

On July 9, 1984, Rickey sought and received permission from his father and his grandfather to spend the night with Keith at the Warford home. On the morning of July 10, 1984, Mrs. Warford took her son Keith to swimming lessons, and Rickey accompanied them. They later returned to the Warford residence, had lunch, and then met Rickey's father and some other people at the movie theater. At the end of the movie, Mrs. Warford, Keith and Rickey returned to the Warfords. Rickey's father and stepmother went to their house, decided to see another movie, and attempted to contact the Warfords to ascertain whether or not Mrs. Warford, Keith and little Rickey wanted to join them. They received no answer to their telephone call. The Antleys then went to the movie theater alone.

At about that same time, Mrs. Warford was bathing another one of her children and preparing dinner. She had instructed the two boys to check in with Rickey's grandfather. Mrs. Warford remembered that Rickey and Keith were looking for the key to the ATV 225, and upon finding the key, they left the house. Presumably, Rickey got on the ATV 225, started it and proceeded down a dirt and gravel road, ostensibly to check in with his grandfather. Within minutes John LeVasseur, who was driving in the area, found the ATV 225 lying on its left side on top of little Rickey. There were no signs of life. Other individuals came to the scene and Rickey was rushed to the hospital. He was pronounced dead in the emergency room. There were no eyewitnesses to the accident.

The ATV 225, being operated by Rickey, was manufactured by Yamaha in 1984 and sold to Jimmy Warford by Cane River Cycles, Inc. The ATV 225 is one of the larger model all-terrain vehicles manufactured by Yamaha and is capable of attaining speeds in excess of 50 miles per hour. It was designed primarily as an off-road, all-terrain vehicle to be operated in the snow and mud. Advertisements by Yamaha, which were introduced in evidence, billed the ATV 225 and its other all-terrain vehicles as recreational vehicles. The control features of a Yamaha ATV 225 are similar to that of a motorcycle. The distinctive features of the Yamaha ATV 225 are its three oversized wheels designed for adverse terrain conditions and its solid rear axle which propels both rear wheels forward at the same rate of speed. These distinctive features affect the maneuverability of the vehicle and require the rider to respond to uneven or changing terrain by a shift in weight and manipulation of the hand and foot controls and the steering apparatus. Thus, the ATV 225 is a "terrain active" or "rider interactive" vehicle which requires experience and practice to operate safely.

On appeal, appellant, Antley, Sr., urges trial court error in the following particulars:

1. The jury erred when it determined that Mrs. Jimmy Warford (Beverly) was free of any fault or negligence in causing Rickey's death.

2. The jury erred when it determined that Antley, Sr. was 50% at fault in causing Rickey's death.

3. The trial court erred when it denied plaintiff's motion for a judgment notwithstanding the verdict, and, in the alternative, for a new trial. ²

NEGLIGENCE OF YAMAHA MOTOR CORPORATION, U.S.A.

We note at the outset that the trial judge erred when he permitted the jury to determine on its own whether or not witnesses tendered as experts by the plaintiff and defendant were qualified to testify as experts. The determination as to whether or not a witness possesses the necessary expertise to give expert opinion testimony is for the trial judge to decide not the jury. Carvell v. Winn, 154 So.2d 788 (La.App. 3rd Cir.1963), writ refused, 156 So.2d 603 (La.1963). However, in this case, the error is harmless as the record does not reflect that the jury afforded any improper weight to the testimony of these witnesses.

We first consider Yamaha's answer to the appeal seeking a reversal of the trial court's judgment insofar as it casts Yamaha 50% at fault in causing Rickey's death.

The jury apparently found Yamaha negligent on the basis of strict tort products liability. In determining whether a product is defective, our Supreme Court, in Halphen v. Johns-Mansville Sales Corp., 484 So.2d 110 (La.1986), stated in pertinent part as follows, at pages 113-115 "There is general agreement upon the most basic principles of strict tort products liability. In order to recover from a manufacturer, the plaintiff must prove that the harm resulted from the condition of the product, that the condition made the product unreasonably dangerous to normal use, and that the condition existed at the time the product left the manufacturer's control. The plaintiff need not prove negligence by the maker in its manufacture or processing, since the manufacturer may be liable even though it exercised all possible care in the preparation and sale of its product. Bell v. Jet Wheel Blast, 462 So.2d 166 (La.1985); Hebert v. Brazzel, 403 So.2d 1242 (La.1981); DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981); Hunt v. City Stores, 387 So.2d 585 (La.1980); Chappuis v. Sears, Roebuck & Co., 358 So.2d 926 (La.1978); Weber v. Fidelity & Casualty Ins. Co. of New York, 259 La. 599, 250 So.2d 754 (1971).

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A product is unreasonably dangerous per se if a reasonable person would conclude that the danger-in-fact of the product, whether foreseeable or not, outweighs the utility of the product. ² Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980); cf. Entrevia v. Hood, 427 So.2d 1146 (La.1983); Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133, 140 (1971). See Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434 (Mo.1984); Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979); Carter v. Johns-Manville Sales Corp., 557 F.Supp. 1317 (E.D.Tex.1983); Prosser and Keeton on Torts, p. 699 (5th Ed. 1984); Keeton, Torts, Annual Survey of Texas Law, 1981, 35 Sw.L.J. 1, 9 (1981); Keeton, The Meaning of Defective in Products Liability Law, 45 Mo.L.Rev. 579, 592 ...