BIC Corp. v. Bean

• Decision Date: 01 September 1995
• Citation: 669 So.2d 840
• Parties: BIC CORPORATION v. Samuel L. BEAN III, et al. Samuel L. BEAN III and Leigh Ann Bean v. BIC CORPORATION. 1930751, 1930853.
• Court: Alabama Supreme Court

Page 840

669 So.2d 840

BIC CORPORATION v. Samuel L. BEAN III, et al.

Samuel L. BEAN III and Leigh Ann Bean v. BIC CORPORATION.

1930751, 1930853.

Supreme Court of Alabama.

Sept. 1, 1995.

Rehearing Denied Nov. 3, 1995.

David P. Whiteside, Jr. and Thomas E. Walker of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellant/cross appellee BIC Corporation.

Hobart A. McWhorter, Jr., David G. Hymer, T. Michael Brown and Matthew H. Lembke of Brandley, Arant, Rose & White, Birmingham, for appellees/cross appellants (Bean).

COOK, Justice.

Pursuant to the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD"), the plaintiffs, Samuel L. Bean III, his wife Leigh Ann Bean, and their minor son Luke Bean, filed this wrongful death and products liability action against BIC Corporation ("BIC") and other defendants following a fire that destroyed the Beans' home on February 26, 1988. The fire, which resulted from the Bean children's playing with a butane cigarette lighter manufactured by BIC, injured five-year-old Luke Bean and killed four-year-old Kristi Bean.

Before commencing this action, the Beans began a collateral action against their mortgagees and State Farm Fire and Casualty Company, seeking damages for failure to provide or procure homeowner's insurance on their home. Bean v. State Farm Fire & Cas. Co., 591 So.2d 17, 19 (Ala.1991). Eventually, a jury returned a verdict in that case in favor of the Beans against one of the mortgagees for $80,000. Id. at 20.

In the meantime--on April 25, 1989--this AEMLD action was begun against BIC and others. The trial court granted BIC's motion for a partial summary judgment on the Beans' claims that BIC's lighter design was defective and that the BIC lighter failed to carry an appropriate warning. ¹ On appeal, this Court held that the entry of the partial judgment was "premature." Specifically, as to the issue of alleged design defect, the Court stated:

"Proper and complete discovery would provide the trial court a greater opportunity to further assess this case toward the question of what duty, if any, BIC has to offer the public a child-resistant lighter. Adequate discovery could also provide answers to questions relating to the product's safety when measured against the foreseeability of a danger presented by its use as well as to the feasibility of an alternative design that could avert any danger."

Bean v. BIC Corp., 597 So.2d 1350, 1352-53 (Ala.1992).

As to the claims that BIC had provided inadequate warnings regarding the use of the lighter, the Court held:

"We hold that BIC failed to show an absence of a genuine issue of material fact, because the affidavit [of BIC's expert] in support of the motion for summary judgment does not address the reasons the Beans argue that the warning was inadequate. The Beans do not contend that there was no warning, but rather that the warnings given did not adequately apprise them that small children would be attracted to the lighter and that it could be easily operated by small children. Because BIC has failed to show the absence of a genuine issue of material fact, as to the allegation of a failure to warn, the summary judgment is due to be reversed."

597 So.2d at 1353-54.

During the trial following the remand from this Court, the parties agreed to allow the trial court to determine the issue of the Beans' alleged property damage and the amount of the award therefor, if any. The issue of BIC's liability under the AEMLD was to be determined by the jury.

During its deliberations, the jury asked the court whether it could find in favor of the minor children but against the parents. The judge answered this inquiry in the affirmative, and the jury returned the following verdicts:

"We, the jury, find the issues in favor of the defendant, BIC Corporation, and against the plaintiff, Sam L. Bean III.

"We, the jury, find the issues in favor of the defendant, BIC Corporation, and against the plaintiff, Leigh Ann Bean.

"We, the jury, find in favor of the plaintiff, Sam L. Bean III, as next friend of Luke Bean, a minor, and against the defendant, BIC Corporation, and assess plaintiff's damages at One Hundred Fifty Thousand Dollars ($150,000).

"We, the jury, find in favor of the plaintiffs, Sam L. Bean III and Leigh Ann Bean, as parents and personal representatives of the estate of Kristi Bean, and against the defendant, BIC Corporation, and assess plaintiffs' damages at One Hundred Thousand Dollars ($100,000)."

BIC moved for a mistrial on the ground that the verdicts were inconsistent. The trial court denied BIC's motion and entered its judgment on the jury's verdicts on September 30, 1993.

On October 5, 1993, the Beans moved the trial court to enter a judgment on their claim for property damage. They sought "an award of $71,843.29," which, they alleged, represented the value "of jointly held real and personal property damaged or destroyed in the fire." On January 14, 1994, the trial court entered a judgment for the Beans in the amount of $70,000. The court, however, citing the Beans' collateral action in which they had already received $80,000, see Bean v. State Farm Fire & Cas. Co., 591 So.2d 17 (Ala.1991), concluded that the $80,000 was due to "be credited against the amount of the [Beans'] recovery against ... BIC ... for damage to the [Beans'] real and personal property." Consequently, it held that the $70,000 judgment entered against BIC was "extinguished by a set-off through the entry and collection of the judgment" recovered in the earlier case. (Emphasis added.)

BIC appeals from those portions of the judgment that are based on the jury verdicts in favor of the injured minor plaintiff, Luke Bean, and in favor of the Beans, as parents of their deceased minor daughter, Kristi Bean. The Beans cross-appeal from that portion of the judgment that effectively awarded them no damages on their property damage claim.

Case No. 1930751--BIC's Appeal

BIC argues that the verdicts are inconsistent. More specifically, it contends:

"The jury's findings against Sam and Leigh Ann Bean but in favor of Luke and Kristi Bean are inherently inconsistent and contradictory. Only one liability issue was presented at trial: whether BIC was liable for having manufactured a lighter that was defective and unreasonably dangerous under the AEMLD. By finding that BIC was liable to the children but was not liable to the parents, the jury found that the same lighter was both defective and not defective. These legally irreconcilable findings require a new trial."

Reply Brief of Appellant/Cross-Appellee BIC Corporation, at 29 (emphasis in original).

Were it not for the events that transpired during the jury's deliberations, we would be compelled to agree with BIC. We derive the most accurate and complete account of those events from a post-trial affidavit given by the trial judge and submitted for the record by BIC. The judge's affidavit states in pertinent part:

"2. I was the trial judge for the trial of Samuel L. Bean, III, et al. v. BIC Corporation (Civ. Action No. CV 89-3282), which was tried in the Circuit Court for Jefferson County, Alabama, beginning on September 13, 1993. The trial concluded with a jury verdict on September 30, 1993.

"3. On September 30, 1993, my law clerk ... informed me that the jury had asked a question concerning whether the jury could award money to the children, Luke and Kristi Bean, but not to the parents, Sam and Leigh Ann Bean. At the time [she] informed me of the jury's question, there were no attorneys for any party present. I instructed [her] to tell the jury 'yes.'

"4. After sending [the law clerk] back to the jury room to answer affirmatively the question posed by the jury, I called the attorneys for the Beans and BIC ... into my chambers to advise them of what had transpired. There was no opportunity for the attorneys for either party to object to the Court's response to the jury's question before the response was delivered to the jury."

(Emphasis added.)

Obviously, the inconsistency of which BIC complains arises out of the trial court's affirmative answer to the jury's question. It is undisputed, however, that neither the Beans nor BIC objected to the trial court's answer to the jury before it was given, or, as the trial judge's affidavit suggest, before the jury emerged from the jury room with its verdict. Criticizing, the procedure that was followed, BIC states:

"The Beans ... argue that BIC waived its right to attack the consistency of the jury's verdict by failing to object to the 'charge' given by the trial court shortly before the verdict was returned.... As the Record on Appeal reflects, none of the attorneys were present when the trial court gave its affirmative response to the jury's question whether it could find in favor of the children but not in favor of the parents. As a result, none of the attorneys had an opportunity to object to the court's 'charge' before it was given."

Reply Brief of Appellant/Cross-Appellee BIC Corporation, at 32 (emphasis added) (citations and footnote omitted).

Ala.R.Civ.P. 51, however, does not require an opportunity to object before a charge is given. It merely requires that a party be permitted an "[o]pportunity ... to make the objection out of the hearing of the jury." (Emphasis added.) In Kirkland & Co. of Anniston, P.C. v. A & M Food Serv., Inc., 579 So.2d 1278 (Ala.1991), we explained this aspect of Rule 51, as follows:

"In McLendon Pools, Inc. v. Bush, 414 So.2d 92 (Ala.Civ.App.1982), the Court of Civil Appeals stated:

" 'As we read Rule 51, A.R.C.P., the onus for objection is upon counsel. The rule does not require the court to initiate the opportunity to object, only that opportunity be given to make the objection out of the hearing of the jury. We conclude that if counsel fails to request the opportunity to object, the court will not be in error for not affirmatively offering it.'

"414 So.2d at 95. In that case, it appeared that the...