Estabrook v. J. C. Penney Co.

• Decision Date: 22 January 1970
• Docket Number: No. 9760--PR,9760--PR
• Citation: 105 Ariz. 302,464 P.2d 325
• Parties: John Michael ESTABROOK by and through his Guardian ad Litem, Murray A. Estabrook and Murray A. Estabrook, Appellants, v. J. C. PENNEY COMPANY, a corporation, and Otis Elevator Company, a New Jersey corporation, Appellees. OTIS ELEVATOR COMPANY, Cross-Appellant, v. J. C. PENNEY COMPANY and Estabrook, Cross-Appellees.
• Court: Arizona Supreme Court

Page 325

464 P.2d 325

105 Ariz. 302

John Michael ESTABROOK by and through his Guardian ad Litem, Murray A. Estabrook and Murray A. Estabrook, Appellants, v. J. C. PENNEY COMPANY, a corporation, and Otis Elevator Company, a New Jersey corporation, Appellees.

OTIS ELEVATOR COMPANY, Cross-Appellant, v. J. C. PENNEY COMPANY and Estabrook, Cross-Appellees.

No. 9760--PR.

Supreme Court of Arizona, In Banc.

Jan. 22, 1970.

Rehearing Denied Feb. 24, 1970.

Caine, Brigham & Hocker, by R. Kelly Hocker, Tempe, for appellants, estabrook.

Jennings, Strouss & Salmon, by Robert L. Johnson, Phoenix, for cross-appellant, Otis Elevator Co.

Kramer, Roche, Burch, Streich & Cracchiolo, by William P. French and B. Michael Dann, Phoenix, for appellee and cross-appellee, J. C. Penney Co.

HAYS, Justice.

John Michael Estabrook, a minor plaintiff, brought a personal injury action through his guardian ad litem against defendants J. C. Penney Company and Otis Elevator Company. From a trial court order granting defendant 'Penneys" motion for a new trial, plaintiff and defendant 'Otis' appealed to the Court of Appeals. In Estabrook v. J. C. Penney Co., 10 Ariz.App. 114, 456 P.2d 960 (1969), the Court of Appeals affirmed the trial court's granting of a new trial as to Penneys, and ordered a new trial as to Otis because of the failure of the trial court to instruct the jury concerning strict liability in tort. Plaintiff and defendant Otis brought the matter before this court on a petition for review, which we granted. The Court of Appeals opinion is vacated.

The action resulted from injuries received by plaintiff, a six year old boy, while he was playing on and about an escalator on the premises of the J. C. Penney Company store in downtown Phoenix. John and his younger brother had accompanied their mother on a shopping trip to the store. After they had ridden the escalator from the basement parking garage to the main floor of defendant Penneys' store, John's mother walked a short distance to a shoe display that was near the escalator landing. John stayed behind and began running his hand along the escalator's moving handrail. Soon after, he placed his hand so that it was drawn into the escalator mechanism through the opening where the moving handrail enters the escalator's enclosed balustrade, and the hand became caught in the interior machinery. Although the escalator was shut off almost immediately, nearly half an hour elapsed before firemen were able to free his hand. The hand was crushed and mangled.

Otis Elevator Company was the manufacturer of the escalator in question, and had installed the unit in the Penneys store some seven years prior to the accident. Plaintiff brought suit against both Penneys and Otis seeking damages for the injuries which he sustained, contending that the defendant J. C. Penney Company was negligent in maintaining and operating the escalator and that defendant Otis Elevator Company was strictly liable in tort.

At the close of all the evidence, the trial court refused to instruct the jury as to the doctrine of strict liability in tort. The jury was given four alternative forms of verdicts to consider: (1) for the defendants; (2) for the plaintiff against both defendants; (3) for plaintiff against defendant J. C. Penney Company; (4) for plaintiff against defendant Otis Elevator Company. The jury returned a verdict of $30,000 for plaintiff against Penneys.

Subsequently, defendant Penneys moved for a new trial, and defendant Otis moved for entry of judgment. In response to Otis' motion plaintiff made an alternative motion for a new trial as to Otis. The court directed a final judgment in favor of defendant Otis Elevator Company, and entered an order for new trial as to defendant J. C. Penney Company. After request by the plaintiff that the court state with particularity its reasons for granting Penneys' motion for a new trial, the trial court entered the following amended order:

'I. The Court finds that the verdict of the jury and the judgments previously entered herein were not justified by the weight and sufficiency of the evidence and are contrary to the law applicable to this case for the following reasons:

(a) The weight and sufficiency of the evidence was insufficient to prove negligence on the part of the J. C. Penney Company;

(b) the weight and sufficiency of the evidence was insufficient to show a lack of ordinary care on the part of the J. C. Penney Company.

'II. Further, the Court finds that the verdict is excessive and appears to have been given under the influence of passion and prejudice for the following reasons:

(a) A visual observation of the boy's hand was strong corroboration of the testimony of the defendants' doctor;

(b) The weight and sufficiency of the evidence as to the Plaintiff's injuries was insufficient to sustain the verdict;

(c) After listening to the evidence and viewing the demeanor of the witnesses the conscience of the Court was shocked by the verdict.

IT IS ORDERED granting the Defendant J. C. Penney Company's Motion for New Trial.

FURTHER, IT IS ORDERED, nunc pro granting the plaintiff's alternative Motion for New Trial as to the Defendant, OTIS ELEVATOR COMPANY.

THEREFORE, IT IS ORDERED that a New trial is granted as to all parties and all issues in this case and all other motions are denied.'

Plaintiff appealed from the granting of Penneys' motion for a new trial and from the judgment in favor of Otis. Otis also appealed the new trial order as to Penneys, as well as the trial court's nunc pro tunc order granting a new trial as to Otis. The appeal raises the following questions:

1. Did the order directing a new trial comply with the specificity requirements of Ariz. Rule Civ.Proc. 59(m)?

2. Did the trial court abuse its discretion in granting defendant Penneys' motion for a new trial?

3. Was plaintiff entitled to a jury instruction on the doctrine of strict liability in tort?

We hold that defendant J. C. Penney Company was properly awarded a new trial, and that the trial court properly ordered judgment in favor of defendant Otis Elevator Company.

I. DID THE ORDER DIRECTING A NEW TRIAL COMPLY WITH THE SPECIFICITY REQUIREMENTS OF ARIZ. RULE CIVIL PROC. 59(m)?

Rule 59(m), 16 A.R.S. Rules of Civil Procedure, provides specificity requirements for an order granting a new trial:

'No order granting a new trial shall be made and entered unless the order specifies with particularity the ground or grounds on which the new trial is granted.'

In Yoo Thun Lim v. Crespin, 100 Ariz. 80, 411 P.2d 809 (1966), we discussed the purpose of Rule 59(m), stating that the requirement of specificity is designed to clearly delineate the issues on appeal by keeping the parties and the appellate court informed of the particular ground(s) of the trial court's decision. A party whose favorable verdict is vacated by an order granting a new trial ought to be carefully apprised of the particular reasons for such action. The Crespin case also discussed the consequences of an unspecific order, holding that where the trial court does not specify with particularity the grounds for ordering a new trial, the reviewing court will presume that the jury verdict was correct, placing the burden on the appellee to convince the reviewing court that the trial court did not err in ordering a new trial.

Where, as in the present case, there are several grounds set forth in the new trial order, some specific and some not, the reviewing court will disregard the unspecific reasons and assume that the trial judge acted only on the ground or grounds which comply with the specificity requirements of Rule 59(m). In applying this test to the trial court's order for a new trial as to defendant Penneys, we hold that ground I is stated with particularity, and supports the order for new trial as to Penneys.

The trial judge's nunc pro tunc order granting a new trial as to Otis Elevator Company states No supportive grounds. Even if we should assume that this is a proper nunc pro tunc order, it manifestly does not comply with the requirements of Rule 59(m), and is therefore a nullity.

II. DID THE TRIAL COURT ABUSE ITS DISCRETION IN GRANTING DEFENDANT PENNEYS' MOTION FOR A NEW TRIAL?

A trial judge has considerable latitude in awarding a new trial, and except in cases where his broad discretion is clearly abused an appellant court will not overturn his action. Yoo Thun Lim v. Crespin, supra. In State ex rel. Morrison v. McMinn, 88 Ariz. 261, 355 P.2d 900 (1960), we examined the limits of the trial court's discretion in granting a new trial, and stated:

'While it is true that the granting of a new trial is to a great extent discretionary with the trial court, such discretion, although broad, is legal and not arbitrary and must be exercised according to reason and law. * * * The trial judge must of course have wide discretion because of his intimate relation to the trial and primary justice. This does not mean, however, that this court should abandon all supervision and fail to impose the limitation of legal standards on the exercise of trial court judicial discretion. Thus, where the probative force of the evidence clearly demonstrates that the verdict of the jury is correct, the trial judge exceeds the bounds of judicial discretion in granting a new trial and it is the duty of this court to reverse the action.' 88 Ariz. at 262, 355 P.2d at 901.

Ground I of the new trial order, however, is sufficient to validate the trial court's granting of defendant Penneys' motion for a new trial. That ground points to an insufficiency of evidence on the question of whether Penneys exercised ordinary care in the operation and maintenance of the particular escalator. We agree with the trial court that the evidence was insufficient to prove any liability on the part of Penneys because plaintiff never established that Penneys knew, or in the exercise of ordinary care should have known, of a dangerous condition or defect in the escalator.

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