Bigham v. JC Penney Co.

• Decision Date: 29 June 1978
• Docket Number: No. 47526,47527.,47526
• Citation: 268 NW 2d 892
• Parties: Vernon E. BIGHAM, Respondent, v. J. C. PENNEY COMPANY, defendant and third party plaintiff, Appellant, v. NORTHERN STATES POWER COMPANY, third party defendant, Appellant.
• Court: Minnesota Supreme Court

268 N.W.2d 892 (1978)

Vernon E. BIGHAM, Respondent, v. J. C. PENNEY COMPANY, defendant and third party plaintiff, Appellant, v. NORTHERN STATES POWER COMPANY, third party defendant, Appellant.

Nos. 47526, 47527.

Supreme Court of Minnesota.

May 26, 1978.

Rehearing Denied June 29, 1978.

Johnson, Fredin, Killen, Thibodeau & Seiler and Steven C. Fecker, Duluth, for J. C. Penney Co.

Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan and R. D. Blanchard, Minneapolis, for Northern States Power.

Carroll, Cronan, Roth & Austin and Donna D. Geck, Minneapolis, Berndt, Overson, Nelson & Smith, Mankato, for respondent.

Heard before SCOTT, WAHL, and IRVINE, JJ., and considered and decided by the court en banc.

SCOTT, Justice.

This is an appeal by J. C. Penney Company (Penney) from an order of the Blue Earth County District Court denying its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Northern States Power Company (NSP) also appeals from the same order denying its motion requesting that NSP be found not negligent and not liable for contribution as a matter of law. We affirm in part, reverse in part, and remand with instructions.

Plaintiff, an NSP lineman since 1960, was part of a crew that responded about 3:30 p.m. on June 13, 1968, to a call to replace a broken insulator on a "bus bar" at a Mankato, Minnesota, substation. The bus bar was a hollow copper tube, attached to a steel support about 20 feet above the ground, carrying 4,160 volts of electricity. Because the insulator was broken, the bus bar was no longer firmly supported at one end. The crew and supervisory personnel discussed whether the job could be done safely without de-energizing the bus bar, and agreed that it could.¹

Plaintiff and another member of his crew, Lawrence Voeltz, climbed a wooden ladder to the insulator. Plaintiff was wearing Penney's "Big Mac" 65 percent polyester-35 percent cotton work shirt and pants, recently purchased by his wife, and safety equipment provided by NSP. To support the bus bar while they worked, plaintiff tied a rope around it. As he secured the rope a "flash-over" occurred. A flash-over is an electric arc or "fire ball" producing heat up to 11,000° F. This flash-over melted parts of the copper bus bar and porcelain insulator, and caused first-, second-, and third-degree burns to plaintiff's face, neck, abdomen, groin, and legs, including 50 percent of his right leg and 75 percent of his left leg.

As a result, plaintiff was hospitalized for 8 months, and received a number of skin grafts. He suffered disfiguring scars and reduced movement of his legs. He lost approximately $11,610 in wages from his lineman's job and a part-time, tree-trimming business. He was able to return to work for NSP about 1 year after the accident.

Plaintiff brought the present action against Penney in June, 1972, alleging that he should have been warned that his work clothes were flammable and if ignited would produce a "melt and cling" effect that would lead to unusually severe burns. Penney impleaded NSP.

The case was tried in April 1976. The jury awarded plaintiff $310,000 general damages and $50,000 medical and hospital expenses. It apportioned the causal negligence as follows: Penney, 50 percent; NSP, 30 percent; plaintiff, 20 percent. The trial court found that plaintiff had assumed the risk of flash-over injuries, but not the risk of having his burns aggravated by the work clothes. Accordingly, judgment was ordered against Penney for $288,000, and NSP was ordered to contribute $108,000. Subsequently, after hearing motions for judgment notwithstanding the verdict and for a new trial, the trial court reduced the award of medical and hospital damages to $25,000, which lowered the total judgment to $268,000. All other motions were denied.

As a result of our holding, only the following issues need be discussed:

(1) Did plaintiff assume the risk for all of his injuries?

(2) Are the jury's findings that the work clothing was not defective, but that Penney was guilty of unspecified negligence, irreconcilable?

(3) Was the trial court's determination of the right to ask leading questions so improper as to require a new trial?

(4) Did the jury award excessive damages?

(5) Did the trial court err in ruling that plaintiff assumed all risks attributable to NSP, but at the same time that Penney was entitled to contribution from NSP?

1. The trial court found that "plaintiff assumed the risk of injury due to flash over," but that he "did not know or appreciate the flammable characteristics of the work clothing he was wearing, sold by defendant Penney." The court did not instruct the jury on assumption of risk. The essence of Penney's appeal on this point is that it disagrees with the court's view that two separate risks were involved, that of the flash-over and that of the "melt and cling" effect of the work clothing. Thus Penney argues that it was entitled to judgment notwithstanding the verdict because the jury found that plaintiff assumed the risk of the flash-over; or that it should be granted a new trial with a separate instruction on assumption of risk because this case arose before Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826 (1971).²

Expert witnesses disagreed as to whether, and to what extent, the injuries plaintiff received from the flash-over were aggravated by the polyester in the work clothes. The verdict and trial court memorandum indicate that the jury accepted this aggravated-injury theory.³ In Montes v. Betcher, 480 F.2d 1128 (8 Cir. 1973), the court held that the plaintiff, who was injured while diving off defendant's boat dock, assumed the risk of hitting the lake bottom but not that of hitting a jagged piece of concrete, of which defendant failed to warn him. The court correctly refused to instruct the jury on assumption of risk as to the concrete. Smith v. J. C. Penney Company, Inc., 269 Or. 643, 525 P.2d 1299 (1974), is a case which is factually closer to the present one. There, plaintiff, who was wearing an acrylic synthetic fur coat, received much more serious burns in a gas station fire than a person standing nearby who was not wearing synthetic fabric. The Oregon Supreme Court stated that "the jury could infer from this that plaintiff would not have incurred severe burns to her lower extremities if she had not been wearing the coat. There was evidence that burning material dripped from the coat * * *." 269 Or. 657, 525 P.2d 1305. Both of these cases support the trial court's two-risk analysis of the present accident.

The issue becomes, then, whether plaintiff assumed the risk of the flammable characteristics of the clothing. There were no warning tags with respect to flammability of the work clothes. An element of assumption of risk is that plaintiff must have known of the danger involved and must have made an intelligent choice to encounter it. We therefore hold that the trial court was correct in denying the requested instruction. Lange v. Nelson-Ryan Flight Service, Inc., 263 Minn. 152, 157, 116 N.W.2d 266, 270 (1962), certiorari denied, 371 U.S. 953, 83 S.Ct. 508, 9 L.Ed.2d 500 (1963); Lametti v. Peter Lametti Const. Co., 305 Minn. 72, 77, 232 N.W.2d 435, 440 (1975); Coenen v. Buckman Building Corp., 278 Minn. 193, 204, 153 N.W.2d 329, 337 (1967).

To be distinguished are cases cited by Penney where a plaintiff encounters a known danger only to have it turn out to be more serious than he recognized. Rausch v. Julius B. Nelson & Sons, Inc., 276 Minn. 12, 149 N.W.2d 1 (1967), and Simpson v. May, 5 Wash.App. 214, 486 P.2d 336 (1971). In these cases, only one risk was encountered, while the present situation includes two, one known and assumed, the other unknown and thus legally unassumable.

2. In its special verdict, the jury found that the work clothes bought by plaintiff's wife were not "in a defective condition unreasonably dangerous to the plaintiff"; that Penney breached neither an express nor an implied warranty with respect to the clothing; and that Penney was causally negligent. Penney now argues that the first two findings preclude the third, thus entitling it to judgment notwithstanding the verdict or, in the alternative, a new trial.

Penney relies chiefly on the case of Halvorson v. American Hoist & Derrick Co., 307 Minn. 48, 240 N.W.2d 303 (1976). In that case, a highway construction worker received a shock from a piece of metal suspended from a crane when the crane came in contact with a power line. The jury found that the crane was not defective, but that the crane manufacturing company had been negligent. This court found that the verdict was "inconsistent and irreconcilable." 307 Minn. 56, 240 N.W.2d 307. In Halvorson, however, this court reasoned that the only issue the jury had considered regarding both products liability and negligence was the absence of certain safety devices which might have prevented the shock. There was no failure-to-warn issue in that case because it was clear that the crane's operator had disregarded an explicit warning in the crane's instruction manual. As a result, it was held that "American Hoist was not negligent as a matter of law * * *." This court seemed to imply, in other words, that while the questions of negligent design and manufacture may be subsumed in a jury's decision that a product is not defective, failure to warn of potential hazards from the use of a product is a separate issue. This analysis of the Halvorson case is consistent with the discussion of that case by the Eighth Circuit Court of Appeals in Bjerk v. Universal Engineering Corp., 552 F.2d 1314 (8 Cir. 1977). Had there been no warning, it appears that this court would have reached a different conclusion concerning the consistency of the jury's verdict. See, also, Skaggs v. Clairol Incorporated, 6 Cal.App.3d 1, 85 Cal.Rptr. 584 (1970), where, had the defendant not warned consumers of the possibility of allergic reactions to its...