Christopherson v. Deere & Co., 90-2231

• Decision Date: 11 October 1991
• Docket Number: No. 90-2231,90-2231
• Citation: 941 F.2d 692
• Parties: Prod.Liab.Rep. (CCH) P 12,945 Curtis M. CHRISTOPHERSON, Appellant, v. DEERE & COMPANY, a/k/a John Deere Company, a Delaware Corporation, Appellee. Monica R. CHRISTOPHERSON, Appellant, v. DEERE & COMPANY, a/k/a John Deere Company, a Delaware Corporation, Appellee, v. Howard CHRISTOPHERSON.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 692

941 F.2d 692

Prod.Liab.Rep. (CCH) P 12,945

Curtis M. CHRISTOPHERSON, Appellant, v. DEERE & COMPANY, a/k/a John Deere Company, a Delaware

Corporation, Appellee.

Monica R. CHRISTOPHERSON, Appellant, v. DEERE & COMPANY, a/k/a John Deere Company, a Delaware

Corporation, Appellee, v. Howard CHRISTOPHERSON.

No. 90-2231.

United States Court of Appeals,

Eighth Circuit.

Submitted March 11, 1991.

Decided Aug. 12, 1991.

Rehearing and Rehearing En Banc

Denied Oct. 11, 1991.

Jefferson D. Sellers, argued (Jack B. Sellers, on brief), Sapulpa, Okl., for appellant.

Philip Willson, argued (Joseph D. Thornton, on brief), Council Bluffs, Iowa, for appellee.

Edward F. Noethe, Omaha, Neb., for cross-appellee Howard Christopherson.

Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and LARSON, ^* District Judge.

BOWMAN, Circuit Judge.

Plaintiffs Curtis M. and Monica R. Christopherson appeal from the final judgment entered on the jury verdict in their products liability action. The jury awarded compensatory damages to plaintiffs, denied their claim for punitive damages and, applying the Iowa law of comparative fault, found Curtis Christopherson responsible for twenty percent of his injuries. Federal subject matter jurisdiction is based upon diversity of citizenship. 28 U.S.C. § 1332(a)(1) (1988). Appellate jurisdiction is based upon 28 U.S.C. § 1291 (1988). We affirm.

Only a brief statement of the facts is necessary. The injury from which this suit arises occurred while Curtis Christopherson was attempting to remove beans from beneath the vertical unloading auger of his father's Titan series combine. The design of the combine, which was manufactured by defendant Deere and Company (Deere), made it necessary for the user periodically to remove by hand grain or beans that had accumulated in the sump area below the vertical unloading auger. To facilitate this task, Deere had incorporated on the housing of the vertical unloading auger a small clean-out door, large enough to permit the combine user to reach in and scoop out the accumulated grain or beans. Users of the Titan combines also had found that the cleaning process was made easier by briefly engaging the auger during the cleaning of the combine to dislodge any grain or beans that were stuck in the system. On September 20, 1984, Curtis's right hand was severely injured when he reached in through the clean-out door to remove excess beans and his father, third-party defendant Howard Christopherson, briefly engaged the auger.

Curtis Christopherson and his wife Monica initiated this action in the District Court ¹ seeking actual and punitive damages against Deere under Iowa's laws of strict liability. Deere in turn filed a third-party claim against Howard Christopherson. Curtis and Monica Christopherson did not file any claims against Howard Christopherson. The case proceeded to a trial by jury.

After approximately six hours and forty minutes of deliberations, the jury returned a unanimous verdict finding Curtis Christopherson's damages to be $100,000 and Monica's damages for loss of consortium to be $3000. In addition, the jury unanimously found that Deere was fifty percent responsible Plaintiffs ask this Court to order a new trial, arguing that the jury instruction on assumption of risk was erroneous. We conclude that this argument has not been preserved for appellate review. Plaintiffs' argument to us is that instruction number twenty-four, the assumption of risk instruction, misstated Iowa law by using the phrase "voluntarily assumed the risk" rather than "voluntarily and unreasonably assumed the risk." The plaintiffs point out that, under Iowa law, to assume a risk one must "voluntarily and unreasonably" accept a known risk, see, e.g., Hughes v. Magic Chef, Inc., 288 N.W.2d 542, 545 (Iowa 1980), and that the omission of the word "unreasonably" from the instruction given the jury ordinarily constitutes reversible error. Cf. Garnes v. Gulf & Western Mfg. Co., 789 F.2d 637, 642 (8th Cir.1986) (finding reversible error where jury instruction omitted the concept of reasonableness). Here, however, plaintiffs' only objection to instruction twenty-four was that the evidence was insufficient to justify an assumption of risk instruction, not that the instruction itself contained an incorrect statement of the law. Cf. Garnes, 789 F.2d at 640-41 (defendant specifically objected to the instruction on the basis that it incorrectly stated its duties under Iowa law). Rule 51 requires that an objection to a jury instruction state "distinctly the matter objected to and the grounds of the objection." Fed.R.Civ.P. 51. Plaintiffs' objection here was insufficient to preserve the issue they now seek to raise for appellate review, and we therefore will reverse on the basis of this instruction only if we find plain error. See, e.g., Tinnon v. Burlington Northern R. Co., 898 F.2d 1340, 1343 (8th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 255, 112 L.Ed.2d 213 (1990).

                for Curtis's injuries, that Howard Christopherson was thirty percent responsible, and that Curtis was twenty percent responsible.   The jury also returned a non-unanimous verdict, signed by seven of the eight jurors, 2 denying the request for punitive damages.   The District Court then entered judgment against Deere for $50,000 in favor of Curtis Christopherson and for $1,875 in favor of Monica Christopherson. 3  Because neither plaintiff made a claim against Howard Christopherson, the court refused to hold Deere jointly and severely liable for his thirty percent of the fault and, consequently, no judgment was entered against him on Deere's third-party claim.   The court also ordered that costs be divided among the parties in accordance with their percentages of fault
                

"[A]ny plain error exception to compliance with Rule 51 is 'confined to the exceptional case where error has seriously affected the fairness, integrity or public reputation of judicial proceedings,' " Smith v. Honeywell, Inc., 735 F.2d 1067, 1069 (8th Cir.), cert. denied, 469 U.S. 1077, 105 S.Ct. 576, 83 L.Ed.2d 516 (1984) (quoting Rowe Int'l v. J-B Enterprises, 647 F.2d 830, 835 (8th Cir.1981)), and has "contribute[d] to a miscarriage of justice." United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985). This exacting standard has not been met here, as the essential fairness of the trial was not undercut by the omission of the word "unreasonably" from instruction twenty-four, and plaintiffs, who have been awarded substantial compensatory damages, have not suffered a miscarriage of justice. ⁴

Plaintiffs also argue that the District Court erred as a matter of law by refusing to hold Deere jointly and severally liable for the portion of damages assessed against Howard Christopherson. The District Court declined to hold Deere jointly and severally liable with Howard because plaintiffs had elected their remedy by choosing not to sue Howard and therefore it would be inequitable to saddle Deere with Howard's portion of the responsibility for plaintiffs' injuries. Plaintiffs urge us to find that the District Court's ruling conflicts with the provisions of Iowa's comparative fault statutes. They do not challenge the District Court's conclusion that joint and several liability is inappropriate here by virtue of Iowa's doctrine of election of remedies, or its conclusion that it would be inequitable to permit plaintiffs to recover from Deere upon that portion of fault attributed to Howard Christopherson. Having reviewed the disputed question of Iowa law de novo, see Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991), we hold that the District Court's ruling does not conflict with Iowa's comparative fault statutes.

Plaintiffs' argument is based upon an overly broad reading of two sections of Iowa's comparative fault statutes. The first section, Iowa Code Ann. § 668.4 (West 1987), provides that "[i]n actions brought under this chapter, the rule of joint and several liability shall not apply to defendants who are found to bear less than fifty percent of the total fault." Iowa Code Ann. § 668.4 (West 1987). The second section, Iowa Code Ann. § 668.3(1) (West 1987), provides that:

[c]ontributory fault shall not bar recovery in an action by a claimant to recover damages for fault resulting in death or in injury to person or property unless the claimant bears a greater percentage of fault than the combined percentage of fault attributed to the defendants, third-party defendants and persons who have been released pursuant to section 668.7, but any damages allowed shall be diminished in proportion to the amount of fault attributable to the claimant.

Iowa Code Ann. § 668.3(1) (West 1987). Plaintiffs assert that section 668.4 not only prohibits joint and several liability when the defendant is less than fifty percent at fault, but that it also mandates joint and several liability in every case in which the defendant is at least fifty percent at fault. They also assert that the policies underlying Chapter 668 require that this allegedly mandatory joint and several liability apply to the fault of all the parties, ⁵ excluding the claimant, even if the claimant has not sued all the parties found to be at fault. We disagree.

Neither of the sections upon which plaintiffs rely addresses the situation in which one party is assessed with at least fifty percent of the fault, ⁶ nor does either section address the issue of joint and several liability where a party that the plaintiff did not sue is assessed with fault. Furthermore, plaintiffs have not referred us to any ambiguity in either section, nor can we find any, that justifies construing these sections For the reasons set forth above, we find that any error in the jury instruction on assumption of risk did not rise to the level of plain error and that the District Court's conclusion not to hold Deere jointly and severally liable for Howard...