Gammon v. Clark Equipment Co.

• Citation: 38 Wn.App. 274,686 P.2d 1102
• Decision Date: 23 July 1984
• Docket Number: No. 10754-2-I,10754-2-I
• Court: Court of Appeals of Washington
• Parties: Judy L. GAMMON, in her capacity as Personal Representative of the Estate of Richard G. Gammon, Deceased, and Judy L. Gammon, in her individual capacity, and Barry Duke Gammon, Appellants, v. CLARK EQUIPMENT CO., a corporation; AA Rentals of Bothell, Inc., a Washington corporation, Respondents, and Star Machinery Co., Inc., a Washington corporation, Defendant.

Page 274

38 Wn.App. 274

686 P.2d 1102

Judy L. GAMMON, in her capacity as Personal Representative of the Estate of Richard G. Gammon, Deceased, and Judy L. Gammon, in her individual capacity, and Barry Duke Gammon, Appellants, v. CLARK EQUIPMENT CO., a corporation; AA Rentals of Bothell Inc., a Washington corporation, Respondents and Star Machinery Co., Inc., a Washington corporation, Defendant.

No. 10754-2-I.

Court of Appeals of Washington Division 1.

July 23, 1984.

Rehearing Denied Sept. 6, 1984.

Review Granted Dec. 7, 1984.

James D. Burns, Burns, Schneiderman & Davis, Douglass A. North, Hennings, Maltman, Weber & Reed, Seattle, for appellants.

William R. Hickman, Robert C. Dickerson, II, Reed, McClure, Moceri & Thonn, Seattle, for respondent Clark Equipment.

Philip A. Talmadge, Robert P. Piper, Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Seattle, for respondent AA Rentals.

DURHAM, Chief Judge.

Judy L. Gammon appeals from the denial of her motion for a new trial or judgment notwithstanding the verdict in connection with this wrongful death action. She raises several instructional, procedural and evidentiary errors, and also alleges that the jury's answers to the special interrogatories were inconsistent. We remand for a new trial as to respondent Clark Equipment Company only.

On October 13, 1978, Richard Gammon was killed when a Bobcat 720 loader, which he was using in conjunction with a backhoe to clear a house foundation, tipped over on its side. Although there were no witnesses to the accident, it appears that the backhoe lift arms were fully extended, rendering the Bobcat unstable. Two laborers heard a loud noise, ran to the other side of the house, and found Gammon impaled by the backhoe stabilizers. Gammon died on October 15.

The Bobcat and backhoe were manufactured by Clark Equipment Company, distributed by Star Machinery Company, and leased by AA Rentals of Bothell. Gammon rented the Bobcat from AA Rentals on October 12, and was given instructions by an employee regarding the Bobcat's operation. Gammon was not, however, given a copy of the owner's manual.

In December 1978, Gammon's wife, Judy Gammon (hereinafter Gammon), brought this wrongful death action against Clark, Star Machinery and AA Rentals. By way of amended complaint, Gammon asserted causes of action based upon negligence, strict liability, and breach of implied warranties. The case was tried to a jury, which returned a verdict in the form of answers to interrogatories. ¹ The jury found that Clark and Star Equipment were not negligent, and that they had supplied a product which was reasonably safe. The jury found that AA Rentals was negligent in failing to provide adequate warnings, but that such negligence was not the cause of Gammon's injuries. The jury also found that Gammon was 90 percent contributorily negligent, but failed to assign the other 10 percent.

Gammon unsuccessfully moved for a new trial or for judgment notwithstanding the verdict, and this appeal followed.

VIOLATION OF DISCOVERY ORDER

Gammon first assigns error to the trial court's denial of her motion for a new trial based upon Clark's failure to comply with a pretrial discovery order to produce certain accident reports. Gammon contends that the trial court's sanction for the alleged discovery abuse--a $2,500 award of terms against Clark--was inadequate under the circumstances, and that a new trial at this point is the only effective remedy. We agree.

The circumstances surrounding Clark's refusal to turn over the accident reports are as follows. Gammon submitted her first set of interrogatories to Clark on May 9, 1979, over 2 years before trial. Interrogatory 20 asked Clark if it had notice of any personal injuries arising out of the use of "any similar or substantially similar products" which it manufactured, designed or distributed. ² Clark answered by objecting to the scope of the interrogatory, and submitted five accident reports that described similar accidents involving similar equipment.

Nothing happened during the next 2 years, and Clark made no attempt to supplement its answers to the interrogatory or to provide additional accident reports. See CR 26(e). In early June 1981, however, during the depositions of Clark's design and safety engineers, Gammon received information suggesting that Clark had not fully answered interrogatory 20. It was ascertained that the Bobcat 720 had been manufactured since 1972, that the Bobcat line of loaders as a whole are similar in style and operation, and that approximately five accidents per year had been reported to Clark. ³ Based upon the deposition testimony, Gammon moved on June 16, 1981 for an order compelling Clark to respond fully to interrogatory 20. On June 24, 1981, Judge Sullivan ordered Clark to produce "all accident reports and reports of accidents involving a tip over of any Bobcat machine ever produced by [Clark]." (Emphasis added.) Clark was also ordered to "answer fully and completely Interrogatory No. 20". Clark produced about 50 additional accident reports in response to this order. Ninety-five percent of the documents produced were documents described as "accident summaries" which were an abbreviated form of accident report containing minimal information about the accident involved. The rest of the documents were a more comprehensive accident report known as a "product accident report form."

When trial began on July 6, 1981 and before the jury was empaneled, Gammon's counsel advised the trial judge that he still did not believe that Clark had turned over all of its accident reports involving the tipping over of a Bobcat or similar equipment. Counsel's suspicion was fueled when, purely by happenstance, a Mr. Reimers came to his office and informed him that he had also experienced a tip-over accident involving a Bobcat. Neither an accident summary nor a product accident report form for the Reimers accident was included in Clark's initial response to interrogatory 20. Gammon did, however, receive an accident summary for the Reimers accident in response to Judge Sullivan's order. In addition, Gammon's counsel stated that because he had "called around the United States" he was aware of accidents for which no reports had been produced. At this point, Clark's counsel did not deny that additional reports existed, but took the position that the reports were not relevant because they involved different equipment being operated under different circumstances.

On July 7, Gammon's counsel raised anew the discovery issue, and complained about having received only the accident summary for the Reimers accident. He then informed the court that AA Rentals' counsel had shown him a more comprehensive product accident form for the Reimers accident. The report was turned over to Gammon's counsel, and the trial court noted that sanctions could be imposed later if bad faith became evident.

On July 8, following jury selection, Gammon's counsel again raised the issue of Clark's noncompliance. Counsel contrasted the skimpy Reimers accident summary with the product accident report form produced by AA Rentals, and asked the court to order Clark to turn over all accident reports. Counsel also requested terms in the event of noncompliance. In order to resolve the issue, Clark's counsel offered to have the Clark employee who reviewed the reports testify as to how they were maintained. The employee indicated that Clark maintained two accident "books" in which both the accident summaries and product accident report forms were filed. The court ordered that both books be flown out immediately from Clark's headquarters in North Dakota. Gammon did not move for a continuance.

After examining the accident books over the weekend, Gammon's counsel complained that the indices to the accident books referred to accidents for which there were no accident reports, including an accident involving a Bobcat 720. Moreover, during a deposition taken over the weekend of Mr. Leroy Brooks, Clark's product safety manager, Gammon learned that two boxes of accident reports had been turned over to Clark's attorneys before the weekend. Clark's counsel indicated that he had the boxes of reports in the courtroom, and the trial court ordered Clark to allow Gammon's counsel to inspect or copy them. Gammon's counsel suggested that the reports had been deliberately withheld, and requested terms. The court stated that it appeared that Clark was unilaterally determining what reports were relevant, but reserved the matter of sanctions until after trial. Gammon's counsel did not object to this approach, but moved for a new trial following the jury verdict. The court denied the motion, and instead awarded $2,500 terms against Clark.

The Supreme Court has noted that the aim of the liberal federal discovery rules is to "make a trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). The availability of liberal discovery means that civil trials

no longer need be carried on in the dark. The way is now clear ... for the parties to obtain the fullest possible knowledge of the issues and facts before trial.

Hickman v. Taylor, 329 U.S. 495, 501, 67 S.Ct. 385, 389, 91 L.Ed. 451 (1947).

This system obviously cannot succeed without the full cooperation of the parties. Accordingly, the drafters wisely included a provision authorizing the trial court to impose sanctions for unjustified or unexplained resistance to discovery. CR 37 authorizes the imposition of such sanctions "as are just," CR 37(b)(2), including the striking of pleadings and the entry of a default judgment. See Pamelin Indus., Inc. v. Sheen-U.S.A., Inc., 95 Wash.2d 398, 622 P.2d 1270 (1981). Although the choice of sanctions is within the discretion of the trial court, Associated Mortgage Investors v. G.P. Kent...