Figgie Intern., Inc., Snorkel-Economy Div. v. Tognocchi

• Decision Date: 01 September 1992
• Docket Number: No. 857,SNORKEL-ECONOMY,857
• Citation: 624 A.2d 1285,96 Md.App. 228
• Parties: , Prod.Liab.Rep. (CCH) P 13,541 FIGGIE INTERNATIONAL, INC.,DIVISION v. Virginia TOGNOCCHI, individually, etc. ,
• Court: Court of Special Appeals of Maryland

Page 228

96 Md.App. 228

624 A.2d 1285, Prod.Liab.Rep. (CCH) P 13,541

FIGGIE INTERNATIONAL, INC., SNORKEL-ECONOMY DIVISION v. Virginia TOGNOCCHI, individually, etc.

No. 857, Sept. Term, 1992.

Court of Special Appeals of Maryland.

May 27, 1993.

Robert E. Powell (Catherine A. Potthast and Smith, Somerville & Case, on the brief), Baltimore, for appellant.

Daniel M. Clements (Paul D. Bekman and Israelson, Salsbury, Clements & Bekman, on the brief), Baltimore, for appellees.

William T. Wood of Rockville, for amicus curiae, Maryland Trial Lawyers' Ass'n.

Mark D. Gately, J. Mark Coulson, Donna B. Preston and Miles & Stockbridge of Baltimore, for amicus curiae, Maryland Ass'n of Defense Trial Counsel.

David M. Funk, Richard A. Froehlinger, III and Shapiro and Olander of Baltimore (Stephen P. Carney, Hunt Valley, Gen. Counsel, of counsel), for amicus curiae, Medical Mut. Liability Ins. Soc. of Maryland.

Argued before BISHOP, GARRITY, ALPERT, BLOOM, WENNER, FISCHER and HARRELL, JJ.

FISCHER, Judge.

This case stems from the death of Ronald Tognocchi, a safety manager with AAI Corporation. Mr. Tognocchi was killed while operating a UNO-33E manlift manufactured by Figgie International, Inc., Snorkel-Economy Division (Snorkel). Following Mr. Tognocchi's death, his wife, Virginia Tognocchi, and his son, Scott C. Tognocchi, filed suit in the Circuit Court for Baltimore City against Snorkel and against the lessor of the manlift. ¹ The complaint contained claims for wrongful death on behalf of Mrs. Tognocchi as surviving spouse and on behalf of the Tognocchi's son and their minor daughter, Dawn. The complaint also contained personal representative's survival claims on behalf of Mr. Tognocchi's estate.

The matter proceeded to trial before a jury, and at the end of the plaintiff's case, the court granted Snorkel's motion for judgment on the issue of punitive damages. At the conclusion of all the evidence, Snorkel argued that it was entitled to judgment since the uncontradicted evidence established, as a matter of law, that Mr. Tognocchi had assumed the risk of his injury. Snorkel also raised the issue of its duty to warn. The court denied Snorkel's motion, and submitted the case to the jury.

On October 18, 1991, the jury returned a special verdict in which it awarded damages for economic loss of $704,000 to Mrs. Tognocchi, $278,000 to her minor daughter, and $85,000 to her son. With regard to noneconomic damages, the jury awarded $675,000 to Mrs. Tognocchi and $650,000 to her daughter. Mrs. Tognocchi was also awarded $250,000 for loss of household services and $12,000 for counseling expenses. So, too, her daughter was awarded $8,000 for counseling expenses. On the survival claim, the jury awarded $125,000 to Mr. Tognocchi's estate for his pain and suffering. For Mr. Tognocchi's funeral expenses, the jury awarded $2,000.

Snorkel subsequently filed a motion for judgment notwithstanding the verdict and a motion to conform the verdict to § 11-108 of the Md.Cts. & Jud.Proc.Code Ann. On March 9, 1992, the court denied the motion for judgment notwithstanding the verdict and granted the motion to reduce the damages award in accord with § 11-108. On March 19, 1992, the court entered final judgment reducing Mrs. Tognocchi's award for noneconomic damages from $675,000 to $178,000 and similarly reducing Dawn's award for noneconomic damages from $650,000 to $171,000. ² The $125,000 awarded to the estate for Mr. Tognocchi's pain and suffering was unchanged. On April 9, 1992, Snorkel filed its appeal, and on April 13, 1992, the Tognocchis filed their cross-appeal.

Snorkel presents the following questions for us to decide:

1. Did Appellees' decedent assume the risk of injury, as a matter of law, when he, knowing that a prior operator of a manlift had been seriously injured, voluntarily drove the same manlift down the same slope, in the same configuration and in the same manner as the prior operator while attempting, before a video camera, to investigate or illustrate the prior accident?

2. Did the decedent's conduct, in using the manlift to ascertain or illustrate how the previous accident happened, constitute product misuse as a matter of law?

3. Did the manufacturer of the manlift owe [the] decedent a duty to warn him that the vehicle had a dangerous propensity, when he already knew that it had caused serious injury to a prior operator?

A. Did the trial judge err in refusing to grant the manufacturer's motions for judgment and j.n.o.v. as to its alleged failure to warn?

B. Did the trial judge err in refusing to instruct the jury that a manufacturer need not warn users of known dangers?

4. Did the trial judge err in admitting evidence of subsequent remedial measures taken by the manufacturer of a manlift for the purpose of establishing an alleged negligent failure to warn of a product defect and alleged manufacturer culpability, when the manufacturer did not contest feasibility?

The Tognocchis' cross-appeal presents several other questions for us to resolve:

1. Was Snorkel's Notice of Appeal filed more than thirty days after the entry of final judgment?

2. Did the legislature intend to exclude the cap from wrongful death actions?

3. Was the trial court correct in applying a separate cap to the claim by the estate as opposed to the wrongful death claimants?

4. Did the trial court err in applying an aggregate cap to Virginia and Dawn Tognocchi?

5. Does an aggregate cap violate the equal protection clause and right to trial by jury of the United States Constitution and Maryland Declaration of Rights?

6. Did the trial court err in refusing to submit the issue of punitive damages to the jury?

Central to the facts of this case is the UNO-33E manufactured by Snorkel. The UNO-33E is a "cherry-picker" type manlift that has a basket attached to the end of a boom, and the operator controls the machine while standing in the basket. The basket is located over a wheel base that rotates 180 degrees. This allows the operator to drive the manlift in the "forward" configuration, with the basket centered over the drive wheels, or in the "reverse" configuration, with the basket centered over the steer wheels.

On June 19, 1989, AAI employee Roy Flaharty drove the lift, in the reverse configuration, down a slope. As he did so, the lift accelerated and then stopped suddenly. At that point, the rear wheels of the vehicle rose into the air and Flaharty was thrown upward and forward in the basket. Flaharty was seriously injured as a consequence.

AAI then assigned Mr. Tognocchi, its Assistant Safety Director, to investigate the Flaharty accident. Mr. Tognocchi was an engineer with more than twenty years of experience in industrial safety. During the course of the investigation, Mr. Tognocchi consulted with Gary Wampler, a representative of Snorkel. Wampler had come to AAI to test the unit that had been driven by Flaharty. On June 20, 1989, with Tognocchi and several others present, Wampler drove the unit up and down the slope in both the forward and reverse configurations without incident. It was then collectively decided that the Flaharty accident was the result of operator error.

Notwithstanding this conclusion, Tognocchi maintained the vehicle in a red-tagged status and did not allow it to be returned to service. On June 23, 1989, while in the presence of Alfred Young, in-house counsel for AAI, Mr. Tognocchi drove the manlift. Young videotaped the events as Mr. Tognocchi drove the manlift down the slope in the forward configuration and then in the reverse configuration. Mr. Tognocchi drove the lift in the reverse configuration only a short distance when the lift suddenly pitched forward. The rear wheels came several feet off the ground, and Mr. Tognocchi was catapulted against the controls. He died as a result of his injuries.

I. Timeliness of Appeal

Preliminarily, the Tognocchis argue that Snorkel did not file its notice of appeal within thirty days of the entry of judgment. See Md.Rule 8-202. The Tognocchis contend that the memoranda filed by the court on March 9, 1992 constituted a final, appealable judgment. In order for a judgment to be final and appealable, two criteria must be met: first, the judgment must settle the rights of the parties thereby concluding the cause of action, and second, the judgment must be entered on the docket. Estep v. Georgetown Leather Design, 320 Md. 277, 282, 577 A.2d 78 (1990). The docket sheet reflects that final judgment was entered on March 19, 1992. Snorkel's April 9, 1992 notice of appeal was, therefore, timely filed.

II. Assumption of Risk

Snorkel contends that Mr. Tognocchi was attempting to replicate the Flaharty accident, and in so doing, Mr. Tognocchi assumed the risk as a matter of law. To assume the risk, Mr. Tognocchi must have known and appreciated the risk and must have voluntarily chosen to encounter it. Schroyer v. McNeal, 323 Md. 275, 282, 592 A.2d 1119 (1991). The test of whether an individual knows of and appreciates the risk in a certain situation is an objective one and is a question that is usually to be resolved by the jury. Schroyer, 323 Md. at 283, 592 A.2d 1119. "[T]he doctrine of assumption of risk will not be applied unless the undisputed evidence and all permissible inferences therefrom clearly establish that the risk of danger was fully known to and understood by the plaintiff." Kasten Constr. Co. v. Evans, 260 Md. 536, 544, 273 A.2d 90 (1971) (emphasis in original, citations omitted).

Despite Snorkel's assertions, it is far from clear that any risk of danger, much less this risk of danger, was known to and was voluntarily encountered by Mr. Tognocchi. Snorkel first contends that Mr. Tognocchi knew the circumstances of the Flaharty accident. The evidence on this point is not as definitive as Snorkel would like us to believe. Mr. Tognocchi was not present at the time of the Flaharty accident. Anything that he might have been told about the accident came from persons who...