Esparza v. Skyreach Equipment, Inc.

• Decision Date: 26 December 2000
• Docket Number: No. 43379-2-I.,43379-2-I.
• Citation: 15 P.3d 188,103 Wash.App. 916
• Court: Washington Court of Appeals
• Parties: Matt ESPARZA, Respondent, v. SKYREACH EQUIPMENT, INC., a Washington Corporation, Appellant, William Espy, Debora Espy, and their Marital Community; Leonetta Espy and Adina Espy, both minors, by and through their father as their legal Representative, Plaintiffs.

15 P.3d 188

103 Wash.App. 916

Matt ESPARZA, Respondent, v. SKYREACH EQUIPMENT, INC., a Washington Corporation, Appellant, William Espy, Debora Espy, and their Marital Community; Leonetta Espy and Adina Espy, both minors, by and through their father as their legal Representative, Plaintiffs.

No. 43379-2-I.

Court of Appeals of Washington, Division 1.

December 26, 2000.

Daniel Gandara, Vandeberg Johnson, PS, Seattle, Andrew Larkin Seiple, Bellevue, for Appellant.

William Scherer Bailey, Seattle, for Respondent Matt Esparza.

Charles Kenneth Wiggins, Bainbridge Island, Dan L. Larson, Seattle, for Respondent William Espy.

KENNEDY, J.

Matt Esparza was in a manlift painting a ship when the manlift tipped over, causing him to fall approximately 50 feet to a steel dry dock deck and injuring him severely. Esparza sued Skyreach Equipment, Inc., the company that rented the manlift to his employer, for damages under the theory that Skyreach negligently failed to inspect and test a safety component on the manlift that would have prevented the tip-over if it had been working properly. The jury returned a verdict in favor of Esparza. Skyreach appeals the trial court's (1) denial of its motion to quash a Notice of Trial Attendance to Skyreach's president; (2) admission of testimony from two expert witnesses; (3) denial of its motion for a judgment as a matter of law on the issue of proximate cause; (4) refusal to allow the jury to consider the allocation of fault to the manlift's manufacturer, JLG Industries, Inc.; (5) order striking the jury's allocation of fault to Todd Shipyards, Esparza's employer; and (6) denial of Skyreach's motion to convert the jury's award of future economic damages to a stream of periodic payments. We affirm all but one of the challenged rulings. The trial court erred by refusing to allow the jury to consider allocation of fault to JLG Industries, Inc., on one of the product liability theories argued below, i.e., that adequate warnings or instructions were not provided after the product was manufactured, where the manufacturer learned or should have learned about a danger connected with the product after it was manufactured, and a reasonably prudent manufacturer would have issued such warnings or instructions. Skyreach is entitled to a new trial, not as to its own liability, but as to whether any portion of the fault for Esparza's injury should be allocated to the manufacturer of the manlift.

FACTS

On October 2, 1996, Matt Esparza, a Todd Shipyards employee, was in a manlift painting a ship when the manlift tipped over, causing him and the operator of the manlift, William Espy, to fall approximately 50 feet to a steel dry dock deck.¹ Later, it was discovered that the manlift's circuit cards had been damaged by an excessive dose of electrical current, causing the "load management system" (LMS) to fail to automatically stop further extension of the boom before the manlift could tip over. As a result of the fall, Esparza suffered severe injuries to his head, legs, foot, and ankle and is unable to return to the type of work he did before the fall. Todd Shipyards compensated Esparza under the federal Longshore and Harbor Workers' Compensation Act (LHWCA) for his injuries.

Esparza sued Skyreach Equipment, Inc., the company that rented the manlift to Todd Shipyards, for damages. Esparza claimed, inter alia, that Skyreach failed to inspect, test, and maintain a safety component on the manlift. In Skyreach's answer to Esparza's complaint, it raised the affirmative defense that Esparza's injuries were proximately caused by JLG Industries, Inc., the manufacturer of the manlift, and Todd Shipyards, Esparza's employer.

Before trial, Skyreach moved to quash a Notice of Trial Attendance that Esparza sent to Barry Weaver, Skyreach's Canadian president and owner. The trial court denied this motion, thereby requiring Weaver to attend trial when he was scheduled to testify. After the parties had presented all their evidence to the jury, Skyreach moved for judgment as a matter of law because it maintained that Esparza had failed to present evidence on the issue of proximate cause. But the trial court denied this motion. The court then prohibited Skyreach from arguing that JLG Industries, Inc., was a nonparty entity to which the jury could allocate fault because the evidence did "not establish that the machine was defective either in design or [that] there was anything negligent about it." Report of Proceedings (6/10/98) at 27.

The jury returned a verdict in favor of Esparza, allocating 67 percent of the fault to Skyreach and 33 percent to Todd Shipyards, and awarding $393,147.25 in damages—including $137,285 in future economic damages—to Esparza. Thereafter, the trial court struck the jury's allocation of fault to Todd Shipyards, in accordance with the policies behind the federal LHWCA. The court also denied Skyreach's post-verdict motion to convert the jury's award of future economic damages to a stream of periodic payments under RCW 4.56.260 because Skyreach failed to notify Esparza of its intention to request such relief before the jury returned its verdict. Skyreach appeals. We will describe the relevant evidence in more detail as we discuss the issues, in order to clarify the bases for our opinion.

DISCUSSION

Issue 1: Did the trial court err by denying Skyreach's motion to quash the Notice of Trial Attendance that Esparza sent to Skyreach's president in light of the president's contention that he had no personal knowledge of the circumstances surrounding Esparza's fall or of the day-to-day operations of Skyreach's Seattle office, and that requiring the president—who lives in Alberta, Canada—to attend the trial was burdensome and unnecessary?

Skyreach maintains that the trial court erred by requiring Barry Weaver, Skyreach's president and owner, to attend and testify at this trial in light of his declaration averring that he had no personal knowledge of the circumstances surrounding Esparza's fall or of the day-to-day operations of Skyreach's Seattle office. It also maintains that requiring Weaver—who lives in Alberta, Canada— to attend the trial was burdensome and unnecessary. In response, Esparza contends that Weaver could, and did, provide relevant evidence with respect to corporate policies regarding safety and training.²

"[U]nder CR 43(f)(1), nonresident parties and their managing agents may be `compelled' to attend trial in Washington by service of a notice to attend on local counsel." Campbell v. A.H. Robins Co., Inc., 32 Wash. App. 98, 107, 645 P.2d 1138 (1982). CR 43(f)(1) states that a "party, or ... an officer, director, or other managing agent ... of a public or private corporation, partnership or association which is a party to an action or proceeding may be examined at the instance of any adverse party." The rule further provides that for good cause shown, the trial court may make orders for the protection of the party or managing agent to be examined in the manner prescribed by CR 39(b). That rule, in turn, allows the court, upon motion and with appropriate procedural protections, to order that the witness be allowed to testify by telephone or videotape, subject to the provisions of CR 32. "Failure to attend after notice to local counsel may ... result in a contempt order against a party, even where the party is beyond the reach of a subpoena." Campbell, 32 Wash.App. at 107, 645 P.2d 1138.

We reject Skyreach's argument that the trial court should not have required Weaver to attend trial because doing so was unduly burdensome. Skyreach points to nothing in the record indicating that it asked the court to allow Weaver to testify by telephone or videotape in order to reduce the alleged burden of his attendance at trial. Moreover, the trial court ordered that Weaver need only be present for his own testimony, and not throughout the trial, thus reducing such burden as may have existed.

Further, the record reflects that Weaver testified about Skyreach's obligations under contracts between Skyreach and Todd Shipyards, Skyreach's safety procedures, and Skyreach's training of its employees. Thus, despite the fact that Weaver had no personal knowledge of the circumstances surrounding Esparza's fall or of the day-to-day operations of Skyreach's Seattle office, he was able to communicate to the jury relevant information about Skyreach's contractual obligations and safety and training policies. Thus, we need not decide Skyreach's contention that CR 43(f)(1) contains an implicit requirement that an adverse party desiring to examine an officer, director or managing agent make an affirmative showing of necessity. But see Oakview New Lenox Sch. Dist. v. Ford Motor Co., 61 Ill.App.3d 194, 19 Ill.Dec. 43, 378 N.E.2d 544, 547-48 (1978) (holding that a trial court erred by requiring the attendance of a corporate officer under a similar court rule where the officer had no relevant information whatsoever).

Issue 2: Did the trial court abuse its discretion by admitting opinions from two experts on the issues of defective design and causation because these experts were not qualified to render such opinions?

Skyreach maintains that the trial court abused its discretion by admitting testimony from two expert witnesses. Specifically, Skyreach contends that Richard Leonard's opinion that the manlift's circuit cards were not defectively designed was outside his area of expertise. Skyreach also maintains that Steven Forgas was not qualified to testify that the manlift's circuit boards did not fail because of an induced current or because of a malfunctioning voltage regulator, and that the manlift, if properly tested and maintained, would not have failed within a short time after such servicing, absent abnormal operation.

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by...