Butz v. Werner, 870336

Citation438 N.W.2d 509
Decision Date21 March 1989
Docket NumberNo. 870336,870336
Parties, Prod.Liab.Rep. (CCH) P 12,083 Charles BUTZ, Jr., Plaintiff, Appellee and Cross-Appellant, v. Jack A. WERNER, Defendant, Appellee and Cross-Appellee, and World Wide, Inc., a Minnesota corporation, and Cass Oil Co., a North Dakota corporation, Defendants, Appellants and Cross-Appellees. Civ.
CourtUnited States State Supreme Court of North Dakota

Morley & Morley, Ltd., Grand Forks, for plaintiff, appellee, and cross-appellant; argued by Patrick R. Morley.

LaRoy Baird III (argued), Bismarck, for defendant, appellee, and cross-appellee.

Cahill & Maring, P.A., Moorhead, Minn., for defendants, appellants, and cross-appellees; argued by Steven J. Cahill.

GIERKE, Justice.

Cass Oil Co. [Cass] and World Wide, Inc. [World] appeal from a district court judgment awarding damages to Charles Butz, Jr., for injuries he sustained while riding on a "Super Tube." We affirm.

On June 16, 1984, Butz was severely injured while riding a "Super Tube" which was sold and distributed by Cass and World. The Super Tube is a large, bright yellow inner tube with handles for the rider. The tube comes with a harness so that it may be attached to a water-ski towrope and pulled behind a boat.

The tube which Butz was riding had been purchased a few weeks earlier by his friend Jack Werner. On the day of the accident Butz and Werner had been fishing. They decided to try out the tube, which Werner had not used before. Butz took the first ride, with Werner driving the boat. Two other people rode along in the boat, with one serving as a spotter.

With Butz on the tube behind the boat, Werner made one or two large circles out in an open area of the river and then headed back near shore. The testimony as to exactly what happened next is somewhat conflicting, but the tube with Butz aboard went skimming along the shoreline for a distance and then slammed into a boat which was sitting partially in the water and partially on the shore. As a result, Butz sustained serious injuries.

Butz sued Werner, World, and Cass, on theories of negligence, strict products liability, and breach of warranty. The case was tried to a jury and the trial court instructed on all three theories. The jury found for Butz on the strict liability theory; found that all four parties were negligent under the negligence theory; and found no breach of warranty.

The verdict form submitted to the jury required separate assessment of fault under the negligence and strict liability theories. On the strict liability theory, the jury assessed fault as follows:

                World   37 1/2%
                Cass    37 1/2%
                Werner       0%
                Butz        25%
                

On the negligence theory, fault was assessed as follows:

                World   25%
                Cass    25%
                Werner  15%
                Butz    35%
                

The jury found that Butz's damages totaled $550,479.79.

The trial court entered judgment on the strict liability claim and dismissed the negligence and breach of warranty claims. The motions of Cass and World for judgment notwithstanding the verdict or a new trial were denied by the trial court. Cass and World have appealed. 1

I. DUTY TO WARN

Cass and World assert that the trial court erred in failing to hold that as a matter of law there was no duty to warn.

The parties initially disagree whether the existence of a duty to warn is a question of law for the court or a question of fact for the jury. In a negligence action, whether a duty exists is generally a preliminary question of law for the court. Barsness v. General Diesel & Equipment Co., 383 N.W.2d 840, 843 (N.D.1986). However, if the existence of a duty depends upon factual determinations, their resolution is for the trier of fact. The appropriate procedure in such cases is for the court to instruct the jury as to the defendant's duty, or absence of duty, if certain facts are found. Barsness v. General Diesel & Equipment Co., supra, 383 N.W.2d at 843; Restatement (Second) of Torts § 328B comment e (1965).

The parties have cast their arguments on this issue in terms of the defendants' duty to warn. The judgment appealed from, however, is based upon the jury verdict on the strict liability cause of action. The problem with casting the issue in terms of a duty to warn is that it focuses on the defendants' conduct, whereas strict liability focuses upon the nature of the product. Mauch v. Manufacturers Sales & Service, Inc., 345 N.W.2d 338, 346 (N.D.1984). The relevant inquiry in a strict liability action based upon failure to warn is whether the defendant marketed a product which was unreasonably dangerous to the user because of inadequate warnings. Mauch, supra, 345 N.W.2d at 345.

Whether a product is unreasonably dangerous to the user because of a lack of proper warnings is generally a question of fact. See, e.g., Kysor Industrial Corp. v. Frazier, 642 P.2d 908, 912-913 (Colo.1982) (en banc); Martinez v. Atlas Bolt & Screw Co., 636 P.2d 1287, 1289 (Colo.App.1981); Pepper v. Selig Chemical Industries, 161 Ga.App. 548, 288 S.E.2d 693, 696 (1982); Collins v. Sunnyside Corp., 146 Ill.App.3d 78, 100 Ill.Dec. 90, 92, 496 N.E.2d 1155, 1157 (1986); Ebbert v. Vulcan Iron Works, Inc., 87 Ill.App.3d 74, 42 Ill.Dec. 617, 618, 409 N.E.2d 112, 113 (1980); Phillips v. Kimwood Machine Co., 269 Or. 485, 525 P.2d 1033, 1040 (1974) (en banc); Berg v. Sukup Manufacturing Co., 355 N.W.2d 833, 837 (S.D.1984); Haysom v. Coleman Lantern Co., 89 Wash.2d 474, 573 P.2d 785, 789 (1978); 3 American Law of Products Liability 3d § 32:83, at 126 (1987).

We noted in Mauch, supra, that " '[i]t is the adequacy of the warning which is given, or the necessity of such a warning, which must command the jury's attention, not the defendant's conduct.' " Mauch, supra, 345 N.W.2d at 346 (quoting Little v. PPG Industries, Inc., 92 Wash.2d 118, 594 P.2d 911, 914 (1979) (en banc)). In Stillwell v. Cincinnati Inc., 336 N.W.2d 618, 622 (N.D.1983), a strict liability action based on both design defect and failure to warn, we stated that "whether or not a manufacturer fits within the parameters of strict liability in tort is essentially a factual question for the trier of fact."

Cass and World assert that there was no duty to warn in this case because the dangers of using the Super Tube were open and obvious. In the context of a strict liability action, their argument must be that the lack of warnings did not render the Super Tube unreasonably dangerous because, as a matter of law, the dangers were open and obvious. Assuming for the purpose of argument that openness and obviousness of the dangers may constitute an absolute defense in a strict liability action based upon failure to warn, 2 we find no merit in the defendants' contentions under the facts of this case. Cass and World argue that it is apparent to everyone of common intelligence that there is danger in colliding with a fixed object. Butz, however, has never asserted that Cass and World should have warned that it was dangerous to crash the Super Tube into a fixed object. Butz's contention, which was supported by expert testimony, was that Cass and World should have warned that the Super Tube should not be towed above a certain speed; that the Super Tube would accelerate and arc around corners; that the rider would have no control of the direction or speed of the Super Tube; and that the rider's visibility would be impaired by the "spray" from the Super Tube. It was this failure to warn of speed restrictions, excessive arcing, lack of control, and lack of visibility which Butz asserts was a primary cause of the collision.

We conclude that the trial court did not err in failing to rule as a matter of law that the open and obvious nature of the dangers associated with the Super Tube obviated any need for warnings. The court properly submitted to the jury the issue whether the Super Tube was unreasonably dangerous because of the lack of warnings.

II. CAUSATION

Cass and World assert that Butz failed to prove that the lack of warnings on the Super Tube was a direct cause of his injuries.

Proximate causation in a negligence case is a question of fact. E.g., Priel v. R.E.D., Inc., 392 N.W.2d 65, 69 (N.D.1986). Implicit in our holding in Mauch, supra, is that proximate causation is also a question of fact in a strict liability case. See Mauch, supra, 345 N.W.2d at 347-348. Courts in other jurisdictions have expressly so held. E.g., Prince v. Parachutes, Inc., 685 P.2d 83, 89 (Alaska 1984); Kavanaugh v. Kavanaugh, 131 Ariz. 344, 641 P.2d 258, 266 (Ct.App.1981).

Our review of questions of fact in a jury case is limited to consideration of whether there is substantial evidence to sustain the verdict. Farmers Co-op. Elevator of Cavalier v. Lemier, 328 N.W.2d 833, 835 (N.D.1982). We will not invade the province of the jury to weigh evidence or determine the credibility of witnesses. Farmers Co-op. Elevator, supra. We view the evidence in the light most favorable to the verdict and if there is substantial evidence to support the verdict we will not set it aside. Farmers Co-op. Elevator, supra.

Cass and World assert that the lack of warnings did not proximately cause the accident; Butz and Werner assert that it did. There is evidence in the record to support a finding either way. Under these circumstances, we will not substitute our judgment for that of the jury, which heard the testimony and had the opportunity to judge the credibility of the witnesses. See Hoerr v. Northfield Foundry and Machine Co., 376 N.W.2d 323, 326 (N.D.1985). We conclude that there is substantial evidence to support the jury's finding that the lack of warnings proximately caused Butz's injuries.

III. ADMISSION OF EXPERT TESTIMONY

Cass and World assert that the trial court erred in allowing Butz's expert witness, Albert Tillman, to testify regarding the necessity of specific warnings on the Super Tube.

Admission of expert testimony is governed by Rule 702, N.D.R.Evid.:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to...

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