Caterpillar Tractor Co. v. Donahue

• Decision Date: 22 December 1983
• Docket Number: Nos. 83-58,83-65 and 83-59,s. 83-58
• Citation: 674 P.2d 1276
• Parties: CATERPILLAR TRACTOR COMPANY, Appellant (Defendant), v. Gloria L. DONAHUE, Administratrix, of the Estate of Jerry Donahue, Deceased, Appellee (Plaintiff). Gloria L. DONAHUE, Administratrix, of the Estate of Jerry Donahue, Deceased, Appellant (Plaintiff), v. CATERPILLAR TRACTOR COMPANY, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1276

674 P.2d 1276

CATERPILLAR TRACTOR COMPANY, Appellant (Defendant), v. Gloria L. DONAHUE, Administratrix, of the Estate of Jerry Donahue, Deceased, Appellee (Plaintiff).

Gloria L. DONAHUE, Administratrix, of the Estate of Jerry Donahue, Deceased, Appellant (Plaintiff), v. CATERPILLAR TRACTOR COMPANY, Appellee (Defendant).

Nos. 83-58, 83-65 and 83-59.

Supreme Court of Wyoming.

Dec. 22, 1983.

Rehearing Denied Jan. 31, 1984.

G.G. Greenlee and Robert M. Shively of Murane & Bostwick, Casper, for Caterpillar Tractor Co.

James E. Fitzgerald, Cheyenne, for Donahue.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

BROWN, Justice.

Jerry Donahue was killed on November 8, 1977, when the front-end loader he was operating rolled over and crushed him inside the fiberglass cab. Afterwards, his wife, Gloria Donahue, initiated this suit, a wrongful death action, against the manufacturer of the loader, Caterpillar Tractor Company (hereinafter Caterpillar). The loader involved here was a caterpillar model 988 wheel loader manufactured in 1966. The case was tried to a jury on the theory that Caterpillar had negligently manufactured the loader in 1966 without a rollover protection structure, also known as a ROPS. At the close of the Donahue case in chief and again at the close of rebuttal, Caterpillar unsuccessfully moved for a directed verdict. After receiving the case, the jury concluded that Caterpillar was negligent and awarded Mrs. Donahue $1,500,000. Caterpillar then moved for a judgment notwithstanding the verdict, which motion was denied. Caterpillar appealed and Donahue cross-appealed.

Caterpillar has raised the following issues:

1. Whether the plaintiff established the existence of a duty and a breach thereof by Caterpillar;

2. Whether there were intervening causes of the accident which rendered any negligence of Caterpillar too remote to be a proximate cause;

3. Whether the front-end loader's allegedly defective condition was so open and obvious that no recovery may be had;

4. Whether the decedent's negligence in operating the front-end loader must be deemed a proximate cause of the accident;

5. Whether it was prejudicial error for the trial court to refuse to admit a film depicting a rollover by an identical front-end loader;

6. Whether it was prejudicial error for the trial court to admit certain opinion testimony;

7. Whether it was prejudicial error for the trial court to admit certain exhibits;

8. Whether it was prejudicial error for the trial court to admit the transcribed testimony of a deceased expert;

9. Whether the trial court properly instructed the jury that conforming with the custom of an industry was not a substitute for ordinary care but merely evidence of what ordinary care may be;

10. Whether the supreme court should grant a remittitur if it does not reverse on other grounds; and

11. If this court grants plaintiff's motion to dismiss for the failure to timely file a notice of appeal, whether the trial court erroneously denied Caterpillar an extension of time to file its notice of appeal.

Donahue's sole issue on appeal is contingent upon a reversal on Caterpillar's appeal. In such an event, Donahue requests this court to accept the theory of strict products liability as permissible in Wyoming, thus allowing the jury to consider it on remand.

Because we have denied Donahue's motion to dismiss, we need not consider Caterpillar's final issue. Because we are affirming the judgment of the district court, we need not consider the issue raised by Donahue in her appeal.

Caterpillar's issues on appeal may be broken down into three categories. Caterpillar's first four issues address the necessary elements of a cause of action for negligence and whether there existed sufficient evidence to support the jury's conclusion that the essential elements were present. Caterpillar's challenge to one of the instructions also concerns the elements of negligence. The second four issues concern the trial court's rulings on the admissibility of certain evidence. Finally, Caterpillar seeks a remittitur. We shall address the issues in each category, discussing the specific facts of the case as they become relevant to the issues.

We will affirm.

I

Actionable negligence arises where a party breaches a duty thereby proximately causing injury. Beard v. Brown, Wyo., 616 P.2d 726 (1980). The essential elements of a negligence claim are: 1) a duty, 2) a violation of the duty, 3) proximate causation, and 4) an injury. McClellan v. Tottenhoff, Wyo., 666 P.2d 408 (1983).

Caterpillar contends that Donahue failed to establish that it owed the decedent a duty. This court has previously held that the existence of duty is a question to be decided as a matter of law. McClellan v. Tottenhoff, supra; and Medlock v. Van Wagner, Wyo., 625 P.2d 207 (1981). This means that the courts must decide:

" * * * [w]hether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other--or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court. * * * " Prosser, Law of Torts, § 37, p. 206 (4th Ed.1971).

We have previously recognized that a manufacturer owes a duty of care to those who use its product. The manufacturer is required to exercise reasonable care in the planning, designing, and manufacturing of a product in order to ensure that it is reasonably safe to use. Maxted v. Pacific Car & Foundry Company, Wyo., 527 P.2d 832 (1974).

Accordingly, Caterpillar, as a manufacturer, had a duty in 1966 to make its front-end loaders reasonably safe. This entailed the exercise of reasonable care for the protection of those who were expected to use the front-end loader. Decedent, as a user of the front-end loader, comes within the class of people to whom the duty was owed.

Once a duty has been found to exist, it is for the jury to decide what amount of care a reasonable man would have exercised in order to make his product safe for the consumer. The rationale behind turning this decision over to the jury has been explained by Prosser:

" * * * Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in in each particular case. The question then is what the reasonable man would have done under the circumstances. Under our system of procedure, this question is to be determined in all doubtful cases by the jury, because the public insists that its conduct be judged in part by the man in the street rather than by lawyers, and the jury serves as a shock-absorber to cushion the impact of the law. * * * " Prosser, supra at 207.

But Prosser also notes:

"In many cases, however, the court may be required to remove the issue of the particular standard from the jury. It is possible to say, in many cases, that the conduct of the individual clearly has or has not conformed to what the community requires, and that no reasonable judgment could reach a contrary conclusion. The court must then direct a verdict for the plaintiff or for the defendant, or even set aside a verdict once rendered; or, if the evidence as to the facts is in conflict, instruct the jury as to the conclusion it must draw from a particular version of the facts. * * * " (Footnote omitted.) Id.

Caterpillar's position is that it was entitled to either a directed verdict or judgment notwithstanding the verdict on the issue of whether a reasonable man in 1966 would have installed a rollover protection structure (hereinafter ROPS) on a front-end loader. It bases the contention upon two points. First, it argues that since no other manufacturer of front-end loaders installed ROPS in 1966, a reasonable man would not have installed a ROPS either. Second, it alleges that in 1966 it was not feasible to have installed a ROPS which would have withstood the rollover which killed the decedent here.

When reviewing a trial judge's denial of motions for a directed verdict and for a judgment notwithstanding the verdict, this court must presume that all the evidence of the prevailing party is true. Further, we leave out of consideration all the opposing party's conflicting evidence while inferring from the prevailing party's evidence those conclusions which may reasonably and fairly be drawn. White v. Ogburn, Wyo., 528 P.2d 1167 (1974); and Potts v. Brown, Wyo., 452 P.2d 975 (1969).

In Maxted v. Pacific Car & Foundry, supra, we discussed what factors should be considered by the fact finder in deciding whether a manufacturer exercised reasonable care in not incorporating particular safety features on a product. One of the more significant factors there was whether other manufacturers of the same product had included the features. But, as we said, that consideration was merely a factor; it was not determinative on the issue of negligence. The T.J. Hooper, 60 F.2d 737 (2nd Cir.1932). So, Donahue's failure in this case to demonstrate that any other manufacturer of front-end loaders was attaching a ROPS in 1966 by itself did not justify either a directed verdict or a judgment notwithstanding the verdict as the trial judge correctly concluded.

We noted in Maxted, supra, another factor; this was whether a safer design not yet in use was known to be feasible. This information could be used to establish that the custom of the industry was unreasonable. Donahue presented considerable evidence that the danger from rollovers had been long recognized and that during the fifties a push was commenced to install canopies and ROPS to front-end loaders.

The appellant, Caterpillar, relies heavily on Maxted, supra, in support of its...