Horstmeyer v. Golden Eagle Fireworks

• Decision Date: 27 July 1995
• Docket Number: No. 940222,940222
• Citation: 534 N.W.2d 835
• Parties: Misty HORSTMEYER, Plaintiff and Appellee, v. GOLDEN EAGLE FIREWORKS; Olde Glory Marketing, Ltd.; and Starr Fireworks, Inc., Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 835

534 N.W.2d 835

Misty HORSTMEYER, Plaintiff and Appellee, v. GOLDEN EAGLE FIREWORKS; Olde Glory Marketing, Ltd.; and Starr Fireworks, Inc., Defendants and Appellants.

Civ. No. 940222.

Supreme Court of North Dakota.

July 27, 1995.

Calvin N. Rolfson (argued), and Michael Geiermann (appearance), Rolfson Schulz Lervick Law Offices, Bismarck, for plaintiff and appellee.

William P. Zuger (argued), Zuger Law Offices, Bismarck, for defendants and appellants.

MESCHKE, Justice.

Golden Eagle Fireworks, Olde Glory Marketing, Ltd., and Starr Fireworks, Inc., appeal from a judgment awarding damages to Misty Horstmeyer who was struck in the eye by exploding fireworks. We affirm.

Golden Eagle, Olde Glory, and Starr (collectively "Golden Eagle") are connected companies who import, distribute, and retail fireworks. In 1991, they sold fireworks that included a 37-shot parachute device named "Victory Celebration." If working properly, a "Victory Celebration" sequentially fired into the air 37 projectiles, each equipped with a parachute and a flaming flare.

On July 3, 1991, Misty's husband, Michael Horstmeyer, bought fireworks, including a "Victory Celebration," at a Golden Eagle stand on the outskirts of Bismarck. The Horstmeyers then drove to a family reunion in Nebraska. On the evening of July 4, Michael's brothers, David and Bernie, began shooting off fireworks while the rest of the family watched from a distance. Misty was seated in a lawn chair 65-70 feet from the fireworks display.

David lit the "Victory Celebration," and two or three projectiles with parachutes went up normally. Then, sparks struck David on his head and back, burning a hole in his shirt. A projectile simultaneously struck Misty near her left eye. The impact shattered the left lens of her eyeglasses, and the right lens was knocked out of the frame. This seriously injured Misty, who was permanently blinded in her left eye.

How Misty's injury happened is disputed. Misty's witnesses testified that the "Victory Celebration" violently exploded, sending shrapnel out the sides in all directions. Golden Eagle theorizes that a projectile from the "Victory Celebration" ricocheted off an overhead powerline and struck Misty.

Misty sued on grounds of strict liability and breach of warranty. The jury, answering special interrogatories, found Golden Eagle liable on both grounds and assessed damages at $356,880. The trial court entered judgment upon the jury verdict, and Golden Eagle appealed, presenting four questions:

I. Did the trial court properly admit expert testimony?

II. Did the trial court properly refuse to allow evidence of violation of statutes and regulations?

III. Did the trial court properly instruct on strict liability?

IV. Did the trial court properly refuse to submit a special verdict form to measure fault by Misty and third persons?

I. EXPERT TESTIMONY

Golden Eagle argues the trial court erred in allowing testimony by David Opperman, Misty's expert witness. Golden Eagle asserts that Opperman had no specialized scientific education or training in physics or chemistry to qualify him as an expert on fireworks.

Expert testimony is allowable whenever "specialized knowledge" will assist the jury.

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 knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

NDREv 702. Whether a witness is qualified as an expert, and whether the testimony will assist the trier of fact, are decisions within the sound discretion of the trial court. City of Devils Lake v. Davis, 480 N.W.2d 720, 724 (N.D.1992); In re Estate of Aune, 478 N.W.2d 561, 564 (N.D.1991). The trial court's decision will not be overturned on appeal absent an abuse of discretion. Davis, 480 N.W.2d at 724; Aune, 478 N.W.2d at 564. As Aune said, the rule envisions generous allowance of the use of expert witnesses, if the witness is shown to have some degree of expertise in the relevant field.

This expert, Opperman, began his own fireworks company in 1959. When he sold the company in 1974, it had become the largest importer of professional display fireworks in the country. His company also produced large commercial fireworks displays for various clients around the country. He has a pyrotechnician's license from the City of Detroit, and has served on the Pyrotechnic Rules Committee of the State of Michigan for 20 years. He served as executive director of the National Pyrotechnic Director's Association for several years, and also served on its board of directors. Opperman has appeared as a fireworks expert on national television programs and has testified as a fireworks expert in over three dozen cases in more than two dozen states.

Golden Eagle stresses Opperman's lack of scientific training or education in arguing that he was not qualified to testify as an expert. However, a witness may be qualified as an expert by "knowledge, skill, [or] experience," Rule 702 recognizes. Although Opperman did not have a specialized scientific education in fireworks, he demonstrated extensive knowledge, skill, and experience from his 35 years in the fireworks industry.

Golden Eagle also attacks the basis for Opperman's opinion testimony. However, any weakness in an expert's opinion affects credibility, not admissibility. Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 163 (N.D.1985). We conclude that the trial court did not abuse its discretion in allowing Opperman to testify as an expert.

II. EVIDENCE OF VIOLATIONS OF NEBRASKA LAWS

Golden Eagle sought to introduce evidence that Nebraska laws prohibited the use of the "Victory Celebration" there. Golden Eagle also requested instructions that the transportation and use of this type of fireworks were illegal in Nebraska, and that violations of the statutes and regulations by Misty, Michael, and David evidenced their negligence. The trial court refused to admit evidence of the Nebraska laws, concluding those laws were irrelevant, and refused to give the requested instructions.

Golden Eagle designates its argument on appeal as whether the court erred in failing to give the instructions requested. The crucial question, however, is not the failure to instruct, but the admissibility of the evidence. It is not error for a court to refuse to give requested instructions not warranted by the evidence. Dale v. Cronquist, 493 N.W.2d 667, 670 (N.D.1992); In re Estate of Ambers, 477 N.W.2d 218, 221 (N.D.1991). The failure to give requested instructions becomes reversible only if the court erred in keeping out the evidence.

Section 28-1244, Neb.Rev.Stat., says:

Fireworks; unlawful acts. Except as provided in section 28-1245, it shall be unlawful for any person to possess, sell, offer for sale, bring into this state, or discharge any fireworks other than permissible fireworks.

"Permissible fireworks" is defined in Section 28-1241(7), Neb.Rev.Stat., and various state regulations identify those that are permissible. Misty concedes that the "Victory Celebration" was not "permissible fireworks" in Nebraska.

Golden Eagle argues that Misty and Michael transported the device into Nebraska in violation of the statute, and that David discharged the device in Nebraska in violation of the statute. Golden Eagle further argues that these statutory violations are evidence of negligence that should have been compared with Golden Eagle's fault under our comparative fault law.

Golden Eagle correctly states that violation of a statute, although not negligence per se, may evidence negligence. See Gronneberg v. Hoffart, 466 N.W.2d 809, 812 (N.D.1991); Keyes v. Amundson, 391 N.W.2d 602, 608 (N.D.1986). See also Restatement of Torts 2d § 286 (1965). For negligence, however, there must be a showing of a causal connection between the violation of the statute and the injury. Ross by Kanta v. Scott, 386 N.W.2d 18, 24 (N.D.1986). See also Prosser and Keeton, Torts § 36 (5th ed. 1984). Golden Eagle seeks to supply this causal connection by arguing, "Had the Horstmeyers acted in accordance with the law of Nebraska, the fireworks would not have acted in Nebraska at all." This is akin to arguing that driving a vehicle without a license in violation of a statute is negligence, because otherwise the accident would not have happened. In other decisions, like Dewitz by Nuestel v. Emery, 508 N.W.2d 334, 337-38 (N.D.1993), and Ross, 386 N.W.2d at 24, we have rejected the notion that evidence of driving without a license is admissible to show negligence.

In this case, Golden Eagle's argument would create the ultimate irony. Golden Eagle essentially argues that its product was so dangerous that any use of it at all, at least within the State of Nebraska, was negligence. Under the theory urged by Golden Eagle, the Horstmeyers are guilty of negligence even if they used the product in the precise manner intended and directed by the manufacturer and seller. Responsibility would result from the geographical location of the product's use, not from the actual manner of its use. We believe public policy does not allow avoidance of liability by a seller of a defective product in this way.

Also, Golden Eagle thus seeks to minimize Misty's recovery for her own conduct in only passively participating in the transportation of the fireworks into Nebraska. We assume that Misty, who was injured while an innocent observer of the fireworks display, was among the class of persons intended to be protected by the statutory prohibition of certain fireworks. But, surely, the statute was not intended to shield manufacturers and sellers of defective fireworks from full liability to injured bystanders.

In a case like this, where the seller of a defective product seeks to avoid liability, not by the manner that the product was used, but by the geographical location where it...