Fell v. Kewanee Farm Equipment Co., A Div. of Allied Products, 89-397
| Decision Date | 20 June 1990 |
| Docket Number | No. 89-397,89-397 |
| Citation | 457 N.W.2d 911 |
| Parties | , 13 UCC Rep.Serv.2d 159, Prod.Liab.Rep. (CCH) P 12,512 Anne FELL, Appellant, v. KEWANEE FARM EQUIPMENT COMPANY, A DIVISION OF ALLIED PRODUCTS, Appellee. |
| Court | Iowa Supreme Court |
Randall G. Sease of the Sease Law Firm, Hartley, and Edmund J. Sease of Zarley, McKee, Thomte, Voorhees & Sease, Des Moines, for appellant.
David L. Phipps, Kevin M. Reynolds, and Maureen Roach Tobin of Whitfield, Musgrave & Eddy, Des Moines, for appellee.
Considered en banc.
Anne Fell was loading ear corn into a corn crib when her left hand became entangled in the exposed beveled gear mechanism of a Kewanee Model 500 elevator. As a result of the accident Anne suffered mutilating injuries to her hand.
Following the accident Anne sued Kewanee Farm Equipment Company, the manufacturer of the elevator. Anne alleged that her injuries were caused by Kewanee's negligence. She also claimed that Kewanee breached its implied warranty. In addition, Anne sought relief on a strict liability theory. Anne asked for compensatory and punitive damages.
Anne also named her father-in-law, Lewis Fell, as a defendant. Lewis owned the elevator. As a third-party plaintiff, Lewis sought relief from Anne's husband, James. Before trial, Anne settled with Lewis, and Lewis and James were dismissed from the lawsuit.
Kewanee moved for partial summary judgment as to Anne's strict liability theory. The district court, the Honorable James L. McDonald presiding, sustained the motion. In a separate motion, Kewanee sought partial summary judgment on the implied warranty theory and on the request for punitive damages. The district court, the Honorable Murray S. Underwood, Senior Judge, presiding, sustained Kewanee's motions on these last two issues. Anne challenges these rulings on appeal.
The case proceeded to trial on the only remaining claim--Kewanee's alleged negligence. During trial, the district court, the Honorable Tom Hamilton presiding, sustained Kewanee's objections to evidence of prior accidents and to certain exhibits. Following the close of the evidence the district court instructed the jury as to Kewanee's state of the art defense as codified in Iowa Code section 668.12 (1987). In the special verdict forms, the court listed James Fell as a party against whom to apportion fault.
In accordance with the special verdict form, the jury found that Kewanee had established its state of the art defense. So the jury, as instructed, proceeded no further. The district court then entered judgment for Kewanee.
Anne challenges on appeal the district court's evidentiary rulings, its state of the art defense instruction, and its action in listing James Fell as a party in the special verdict forms. We affirm in part, reverse in part, and remand.
On the day of the accident--December 16, 1986--Anne and her husband, James, were loading ear corn into a crib. They were using a Kewanee Model 500 grain elevator to move the corn. The elevator was hooked to James' tractor, which supplied the power to operate the elevator.
The elevator is equipped with a power raise and lower attachment. A shifter lever is attached to the side of the elevator to engage the power raise and lower attachment. Movement of the lever toward the front of the tractor raises the elevator; movement of the lever in the opposite direction lowers it.
The shifter lever has holes at the top and bottom. Ropes can be threaded through the holes and extended to the tractor so that the tractor operator can activate the power raise and lower attachment from the operator's seat. The operator can pull one rope to raise the elevator and pull the other rope to lower it. The evidence is uncontroverted, however, that Kewanee, the manufacturer of the elevator, does not provide ropes for the elevator.
The following illustration is taken from the owner's manual, which is in evidence. The illustration depicts the shifter lever without ropes and with arrows indicating the directions that the shifter lever should be moved.
At the time Lewis Fell purchased the elevator he was given the wrong owner's manual. The owner's manual he did receive does not show a power raise and lower attachment with ropes attached to the shifter lever.
Next to the shifter lever is a beveled gear mechanism that controls the power raise and lower attachment. A factory-installed gear guard covers the beveled gear mechanism. Kewanee has designated the guard as 615-002 gear guard. The above illustration shows the guard covering the beveled gear mechanism.
The gear guard is held in place with a single wing nut on a carriage bolt which is designed to fit in an open-ended slot on the guard. The only point of attachment for the guard is the wing nut, carriage bolt, and open slot.
The following illustration is also in evidence. It shows the gear guard, carriage bolt, wing nut, and open-ended slot.
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
At the time of Anne's injury, the gear guard was not in place. Lewis Fell testified--and his testimony is uncontroverted--that the guard had vibrated off several times after he purchased the elevator in 1969. The following illustration, which is also taken from the owner's manual, shows how the beveled gear mechanism and shifter lever look without the gear guard in place. The wing nut and carriage bolt are in place in the upper right-hand corner.
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
At the time of the accident, Anne was standing on the ground near the shifter lever. The elevator was in an elevated position because the couple had just used it to move corn into the crib. Anne had pushed the shifter lever with her hand to engage the lower attachment. She stepped back and the power raise and lower attachment popped out of gear. Anne then moved forward, grabbed the shifter lever with both hands, and pushed the attachment back into gear. While doing this, Anne's mitten and left hand became entangled in the exposed beveled gears. The gears caused severe mutilation and partial amputation of Anne's left hand.
After some discovery, Kewanee filed two motions for partial summary judgment. The first motion went to the strict liability claim. The second went to Anne's breach of implied warranty claim and her request for punitive damages.
Summary judgment is appropriate when the moving party shows by way of pleadings, affidavits, and discovery that there is no genuine issue as to any material fact. Iowa R.Civ.P. 237(c). In considering such a motion, the district court must view the record in the light most favorable to the nonmoving party. Anita Valley, Inc. v. Bingley, 279 N.W.2d 37, 40 (Iowa 1979).
A. Strict Liability. Before enactment of Iowa Code chapter 668--Iowa's comparative fault law--the elements of a strict liability claim involving products included the following:
1. The defendant sold the product.
2. The defendant was engaged in the business of selling the product.
3. The product was in a defective condition at the time of sale.
4. The defective condition was unreasonably dangerous to the plaintiff.
5. The plaintiff used the product in the intended manner or in a manner reasonably foreseeable by the defendant.
6. The product was expected to and did reach the plaintiff without substantial change in its condition.
7. The defect was a proximate cause of plaintiff's damage.
8. The amount of damage.
Osborn v. Massey-Ferguson, Inc., 290 N.W.2d 893, 901 (Iowa 1980); Hughes v. Magic Chef, Inc., 288 N.W.2d 542, 545-47 (Iowa 1980); II Iowa Uniform Jury Instructions, No. 1000.1 (June 1987).
In Magic Chef, Inc., we made it clear that "[m]isuse is not an affirmative defense but rather has to do with an element of the plaintiff's own case." Hughes v. Magic Chef, Inc., 288 N.W.2d at 545. Iowa Code section 668.1 defines "fault" to include "strict tort liability." "Fault" in section 668.1 also includes "misuse of a product for which the defendant otherwise would be liable...." Although one might argue that the legislature has made "misuse" an affirmative defense we take no position on this issue at this time. We decline to do so because the issue is not before us and the parties have neither briefed nor argued it.
In its motion Kewanee asserted that as a matter of law the elevator was not unreasonably dangerous and that there was a substantial change in the elevator after its sale.
The district court found that there was a genuine issue of material fact whether the elevator was unreasonably dangerous. But the court agreed with Kewanee that no genuine issue of material fact existed whether the elevator reached the consumer without substantial change. Specifically the court found
that the machine in question, which was fifteen years old, had been materially altered some twelve years after its purchase. The plaintiff became entangled in rotating gears that were originally shielded by a gear guard. This guard had been removed three years before [Anne's] accident. There is no genuine issue of fact generated by the record, and the court is compelled to find that the machine in question was altered by removing the gear box shield and that this alteration occurred after the delivery of the machine to the user.
Considering that Anne would be unable to establish one of the essential elements of her strict liability claim, the court sustained the motion and dismissed the claim.
Anne contends here that a genuine issue of material fact existed on both issues. We agree.
1. Defective condition unreasonably dangerous. Comment g to section 402A of Restatement (Second) of Torts (1976) defines "defective condition":
g. Defective condition. The rule stated in this Section applies only where the product...
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