Beerman v. Toro Mfg. Corp.

• Decision Date: 05 August 1980
• Docket Number: No. 6368,6368
• Citation: 615 P.2d 749,1 Haw.App. 111
• Parties: Otto BEERMAN, Ruby Beerman and Otto Beerman, as Guardian Ad Litem of Perry Beerman, a minor, Plaintiffs-Appellants, v. TORO MANUFACTURING CORPORATION, Inter-Island Equipment Company, Defendants- Appellees, and The City and County of Honolulu, Defendant.
• Court: Hawaii Court of Appeals

Page 749

615 P.2d 749

1 Haw.App. 111

Otto BEERMAN, Ruby Beerman and Otto Beerman, as Guardian Ad Litem of Perry Beerman, a minor, Plaintiffs-Appellants, v. TORO MANUFACTURING CORPORATION, Inter-Island Equipment Company, Defendants- Appellees and The City and County of Honolulu, Defendant.

No. 6368.

Intermediate Court of Appeals of Hawai'i.

Aug. 5, 1980.

Syllabus by the Court

1. It is not always necessary to produce the specific machine or instrumentality causing the accident in question to prove a case in products liability.

2. Where plaintiffs seek to introduce evidence in support of the theory that all machines of a certain model were defectively manufactured and such theory is within the scope of the pleadings, it is error procedurally and substantively to grant a motion to dismiss part way through the plaintiffs' liability case.

3. There is no claim for treble damages allowable for personal injuries under HRS § 480-13.

4. The satisfaction of a judgment for compensatory damages against one party defendant does not prevent the plaintiff from proceeding for punitive damages against the other parties defendant.

5. In the circumstances of this case, the matter of costs should be remanded for consideration after the trial upon punitive damages.

R. Patrick Jaress, Honolulu, Mukai, Ichiki, Raffetto & MacMillan (Renton L. Nip, Honolulu, opening brief and Shackley F. Raffetto, Honolulu, reply brief), for plaintiffs-appellants.

Stephen B. McDonald (Peter C.-P. Char, Honolulu, on brief), Stephen K. C. Mau, Edmund L. Lee, Jr., (Cades, Schutte, Fleming & Wright) Honolulu, Hamilton, Gibson, Nickelsen, Rush & Moore, Corp. Counsel, Honolulu, for defendants-appellees.

Before HAYASHI, C. J., and PADGETT and BURNS, JJ.

PADGETT, Judge.

In this case to recover damages for injuries caused by an allegedly defective lawn mower, plaintiffs-appellants appeal the granting of a partial summary judgment, the granting part way through plaintiffs-appellants' case of an oral motion to dismiss and the taxation of costs.

The following issues are the subject of this appeal:

1. Whether appellants were properly required to produce the specific lawn mower alleged to be defective in order to prove its defective design.

2. Whether in this suit for personal injury against a manufacturer and distributor of an allegedly defective product the appellants' claim for treble damages under HRS § 480-13 was properly dismissed where the manufacturer and distributor allegedly made knowing misrepresentations as to the safety of the product.

3. Whether satisfaction of a judgment for compensatory damages by one of three tort-feasors bars any subsequent judgment for punitive damages against the other two tort-feasors.

4. Whether the court below correctly allowed costs of $3,037.55 to Appellee Toro and $1,962.14 to Appellee Inter-Island against appellants while awarding appellants only $561.62 of $13,128.57 claimed against Appellee City.

We reverse as to point one, affirm with respect to point two, hold in the negative on point three and remand without a determination on the merits as to point four.

Appellant Perry Beerman was standing in line at a school water fountain with his fourth grade class when a piece of debris was hurled into his right eye by a nearby Toro Hevi-Duty model 23000 lawn mower. He allegedly lost 83% of his vision in that eye. Perry's father brought suit as Guardian Ad Litem alleging that the City and County of Honolulu was liable for negligent operation of the mower, that Inter-Island Equipment Company (the distributor) was liable for misrepresentation, negligent inspection or gross negligence in the sale and delivery of the mower, and that Toro Manufacturing Corporation was liable for defective design, gross negligence in manufacture and marketing, gross negligence in failing to warn of dangers, breach of warranty of fitness of the lawn mower and misrepresentation.

One of appellants' prayers for relief was based on HRS § 480-13, which levies treble damages against businesses found guilty of deceptive trade practices. Prior to trial, Toro and Inter-Island joined in a successful motion for partial summary judgment on that claim. During the trial, after appellants had presented part of their case, the court granted Toro and Inter-Island's oral motion to dismiss all remaining claims against them because appellants failed to prove which specific Toro mower was involved in the accident.

On June 24, 1976 the jury found the City liable for negligently causing the injury to Perry Beerman's eye and awarded compensatory damages of $62,500 for Perry Beerman and $1,156.04 for Otto and Ruby Beerman. Prior to trial, the City together with all other defendants had made an offer of judgment for $77,500 that included costs up to May 11, 1976.

Thereafter, the City paid the damages awarded against it and appellants filed a Satisfaction of Judgment as to the City. Costs were specifically excepted from the Satisfaction.

After the trial, the costs of the parties were taxed by the court. Appellees Toro and Inter-Island were allowed $3,037.56 and $1,962.14, respectively, against appellants. Of appellants' claimed costs of $13,128.57 against Appellee City, $561.92 was awarded.

Motion to Dismiss

The first issue is whether Appellees Toro and Inter-Island were properly dismissed. The "motion to dismiss" was made after eight witnesses had testified for the appellants.

All parties agree that appellants had stated a claim for relief under Rule 12(b)(6), Hawaii Rules of Civil Procedure. Appellees argued, however, and the court below granted the motion, on the theory that appellants had to specifically identify the allegedly defective Toro law mower to prevail.

At one point counsel for the appellants characterized the motion before the court as a motion for directed verdict. Such a motion was clearly inappropriate under Rule 50(a), Hawaii Rules of Civil Procedure since appellants had not yet rested.

However, in the circumstances of this case, the procedural irregularity is not important since in granting the motion, the court erred substantively.

Appellants alleged, and, at trial, sought to prove that the lawn mower in question suffered a design defect common to all Toro Hevi-Duty model 23000 lawn mowers. The court, by its ruling, prevented the introduction of expert testimony to that effect. The evidence on that point was that the lawn mower which injured Perry Beerman was one of 6 to 8 mowers of that model owned by the City, but it could not be specifically identified. At that point, the appellants sought to subpoena all Toro 21 Hevi-Duty lawn mowers that the City had at Palolo Valley at the time in question. The court quashed the subpoena.

The crux of a products liability case is "proof that the product was somehow defective and that the damages were caused by the defect." Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71, 75, 470 P.2d 240, 243 (1970). Appellees cite Shramek v. General Motors Corp., 69 Ill.App.2d 72, 216 N.E.2d 244 (1966) for the proposition that appellants "by not bringing forth the alleged defective lawnmower, cannot . . . demonstrate that the lawnmower had any defect at all." In Shramek, the plaintiff was injured when his automobile overturned following a tire blowout. The suit claimed that a defect in design or manufacture of the tire made both the tire and the automobile to which it was attached defective. The tire could not be produced at trial. The Shramek court entered summary judgment because, without the tire, the plaintiff could not prove "(1) that the accident which resulted in his injuries was caused by a tire, (and) (2) that said tire was defective." 216 N.E.2d at 246-47. Significantly, the court also stated:

Blowouts can be attributed to myriad causes, including not only the care with which the tires are maintained, but the conditions of the roads over which they are driven and the happenstance striking of damaging objects.

Id.

The injury here, unlike Shramek, cannot be said to be attributable to a "myriad" of causes. Perry had no control of the allegedly defective mower as he awaited his turn at the drinking fountain. There was no evidence that the machine was being operated in a manner other than that for which it was designed. Nor was there evidence that any of the Toro model 23000 mowers owned by the City had been altered.

Although in products liability cases the mere happening of an accident does not justify the inference that the product was defective, see, e. g., Gates v. Ford Motor Co., 494 F.2d 458 (10th Cir. 1974); Tucson Gen. Hosp. v. Russel, 7 Ariz.App. 193, 437 P.2d 677 (1968), we find our Supreme Court's decision in Stewart v. Budget Rent-A-Car Corp., supra, 52 Haw. 71, 470 P.2d 240 (1970), to be apposite. In Stewart, the allegedly defective parts of the auto that caused the plaintiff's accident were found to be broken after the accident. An expert could not say whether the breaking caused the accident or vice versa. The plaintiff's testimony was that the automobile began going uncontrollably to the left and that applying her brakes only increased the condition. On appeal, the Supreme Court found sufficient evidence to affirm the lower court's denial of a directed verdict.

It is obvious from their very nature that there are going to be products liability cases where the plaintiff cannot produce the specific instrumentality which caused the injury. That inability is not always a bar to recovery. Compare Hessler v. Suburban Propane Natural Gas Co. of Pennsylvania, 402 Pa. 128, 166 A.2d 880 (1961); Trowbridge v. Abrasive Co. of Philadelphia, 190 F.2d 825 (3rd Cir. 1951); Bailey v. Montgomery Ward and Company, 6 Ariz.App. 213, 431 P.2d 108 (1967); Bronson v. J. L. Hudson Co., 376 Mich. 98, 135 N.W.2d 388 (1965).

We hold that it was not necessary for appellants to identify the specific defective mower in order to prove that model Toro 21 Hevi-Duty lawn mowers were defective and...