Juarez v. Aardema

• Decision Date: 07 June 1996
• Docket Number: No. 20918,20918
• Citation: 918 P.2d 271,128 Idaho 687
• Parties: , 1996 O.S.H.D. (CCH) P 31,080 Angeles Torres JUAREZ, an individual and as mother and natural guardian ad litem of Alberto T. Juarez and Sandra T. Juarez, her minor children and as Administratrix of the Estate of Aldo J. Juarez, the decedent, Plaintiffs-Appellants, v. Frans and Cornelia AARDEMA, husband and wife, Thomas and Mary Jane Heida, husband and wife, individually and dba Aardema-Heida Dairy, an Idaho business entity; John Does I through V, Defendants-Respondents. Twin Falls, November 1995 Term
• Court: Idaho Supreme Court

Page 271

918 P.2d 271

128 Idaho 687, 1996 O.S.H.D. (CCH) P 31,080

Angeles Torres JUAREZ, an individual and as mother and natural guardian ad litem of Alberto T. Juarez and Sandra T. Juarez, her minor children and as Administratrix of the Estate of Aldo J. Juarez, the decedent, Plaintiffs-Appellants, v. Frans and Cornelia AARDEMA, husband and wife, Thomas and Mary Jane Heida, husband and wife, individually and dba Aardema-Heida Dairy, an Idaho business entity; John Does I through V, Defendants-Respondents.

No. 20918.

Supreme Court of Idaho,

Twin Falls, November 1995 Term.

June 7, 1996.

Ellsworth, May, Sudweeks, Stubbs, Ipsen & Perry, Twin Falls; Kenneth L. Pedersen, Twin Falls, for appellants. Bart D. Browning argued.

John A. Doerr, Twin Falls, for respondents.

SILAK, Justice.

This case involves a wrongful death action brought by the wife and children of a deceased dairy employee who died while working at the dairy. The principal issue presented in this appeal is whether the district court properly denied the appellants' motion for judgment n.o.v. or in the alternative a new trial. For the reasons stated below, we affirm that portion of the district court's order denying appellants' motion for judgment n.o.v., but vacate the portion of the order denying the motion for a new trial and remand the case for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL BACKGROUND

This appeal arises from the death of Aldo J. Juarez (Juarez) on the night of April 17, 1991, while he was working as the night foreman at the Aardema-Heida Dairy (the Dairy). Juarez was asphyxiated when a rapid-exit gate caught him across the neck and upper chest. Juarez was working alone on the night of the accident. The facts as developed at trial are summarized below.

Juarez had worked at the Dairy for approximately two years before he was killed. Juarez was a very good employee whom the Dairy manager had promoted to night foreman because Juarez was a hard worker who was always on time, had good attendance, was trustworthy and was safety conscious. On the night of the accident, Juarez's duties as night foreman included checking the barn and calving shed for problems, pushing feed up to the cows with a tractor, milking the cows, greasing the rapid-exit gates, cleaning the barns, bringing in the next milking shift's cows, and odd jobs such as replacing light bulbs. At the time of Juarez's accident, he appeared to have either just finished or was about to finish greasing the rapid-exit gates. The purpose of greasing these gates is so that they do not become "hung up" or stuck.

Juarez's body was discovered by a co-employee of the Dairy, Pablo Gonzalez, when he arrived at the Dairy for his milking shift on the night of April 17, 1991, at 11:30 p.m. As Pablo Gonzalez was leaving the barn to retrieve the cows for the next milking shift, he discovered Juarez caught in the last rapid-exit gate. Juarez was facing the exit alley (toward the outside), with his back to the gate switch that was located in the operator station. Pablo Gonzalez opened the rapid-exit gates to release Juarez, causing Juarez to fall to the ground, his body landing halfway inside the stall area and halfway inside the exit alley. Pablo Gonzalez observed that Juarez was wearing a greasy plastic glove that was customarily worn by employees when greasing the gates. Pablo Gonzalez testified that both of Juarez's hands had grease on them and that there was a grease Haag stated that when he found Juarez, Juarez's grease bucket was on the far side of the gates where Juarez would have been greasing the gates from. Haag testified that Juarez did not have any grease on the hand with which Haag took Juarez's pulse. Before the police arrived, Haag noticed that Juarez had finished greasing all of the gates. Haag did not recall whether the switch, which opened and closed the gates on the side where Juarez was found, had any grease on it.

[128 Idaho 690] bucket in the exit alley about three yards away from where Juarez was found. Pablo Gonzalez stated that when he found Juarez, there was no grease on the switch that opened and closed all of the gates for the side of the barn where Juarez was found. Once Pablo Gonzalez released Juarez from the gate which had caught Juarez, Pablo Gonzalez went to the manager of the Dairy, Scott Haag (Haag), to tell him of the accident.

The barn in which Juarez was killed had twelve gates on each side, allowing twenty-four cows to be milked at a time. The process of milking the cows required first bringing the cows in from the corrals and placing the cows in a large holding pen where the cows would be washed by sprinklers. Second, twenty-four cows from the holding pen would be herded through entrance doors, with twelve cows entering in each side of the barn. During the second step, the gates would have to be closed in order to prevent the cows from walking out of the stall area, through the gates, and down the exit alley. Third, the milking would occur. Fourth, an employee would flip a switch to open the gates, which would release the cows from the stall area, into the exit alley, through the exit gates, and finally into the corrals. The gates opened and closed like bi-fold doors with the gates folding in towards the exit alley.

The two switches that opened the gates were inside the operator station that was located in the pit. The pit was located between and below the two rows of stalls where the cows would stand in order to be milked. Each switch controlled twelve gates located on each side of the barn. The switch that opened and closed the gates on the side where Juarez was found, was located in the operator station, which was right below the gate where Juarez was found. Although there was testimony that an employee could stand in the stall area, flip the switch into the closed position, and run through the closing gate, Pablo Gonzalez, Haag and another Dairy employee, Jose Manuel Gonzalez (Jose Gonzalez), all testified that they had never seen Juarez flip the switch and try to run through a closing gate.

The appellants' expert, a consulting safety engineer, Jay William Preston (Preston), testified that in reconstructing Juarez's accident, there were two elements that led up to Juarez's death: (1) Juarez had to be in the closing point of the gate, and (2) the gate had to close. Preston found that there were two ways the gate could have closed: the gate could have closed as a result of someone flipping the switch to the closed position; or the operating handle was in its closed position, but the gate, because of either friction, damage or corrosion, was hung-up and did not release to the closed position until some time later while Juarez greased the gates. It was Preston's opinion that the cause of Juarez's death was that the gates were hung-up (unknown to Juarez) when Juarez was greasing them and that when the friction in the gates gave way, the gates slammed shut, catching Juarez in the pinch-point of the gate.

Jose Gonzalez testified that he worked the shift right before Juarez's shift on April 17, 1991, and that during his shift, the gates on the side where Juarez's body was found were not working well. Jose Gonzalez explained that the gates were malfunctioning by sometimes failing to close or hanging-up and then slamming shut. Jose Gonzalez stated that he did not tell anyone that night that the gates were hanging-up.

The customary manner of greasing the gates was by standing in the exit alley, facing the pit, and applying the grease to the rod on which the gate slid by standing beside the rod that was being greased. The gates were customarily greased in the open position, in order to grease the entire rod that the gates slid on. Haag stated that he never saw It was Preston's opinion that had the Dairy instructed its employees in an electrical lockout procedure pursuant to the Occupational Safety and Health Act of 1970 (OSHA) regulations, the gates could not have slammed shut on Juarez. A lockout procedure was described by Preston as an electrical control for the compressor in the form of a switch or a lever, that would disconnect all phases of power from the compressor and facilitate the placement of a padlock or other lockout device through the handle to isolate the compressor so it would not go on. Preston testified that had the Dairy implemented a lockout procedure, Juarez would first have gone to the point of the lockout and thrown the switch which simultaneously releases the pressure on the air valve and shuts the air off from the reservoir. Juarez would then have placed a labeled padlock through the switch, closed it and pocketed the key. Next, according to Preston, Juarez would have greased the gates, returned his bucket to the proper place, discarded the glove he was working with, and unlocked the system making it operational again. When asked whether Juarez would have been hurt had he been attempting to beat the gate if a lockout procedure had been in place, Preston testified in the negative because "[t]he cylinder would have been at atmosphere [and] there wouldn't have been any pressure. It wouldn't have actuated at all and [Juarez] could have gone through that point back and forth without any problem, because [the gate] wouldn't have gone anywhere."

[128 Idaho 691] anyone standing in the closure area of a gate trying to grease a gate because such a position would result in the grease falling on top of the person who was trying to grease the gate. It was standard practice to grease the gates while wearing a greasing glove. Haag stated that he had not discussed with Juarez the dangers the gates posed to operators or greasers of the gates because Haag did not think there was any danger in operating and greasing the gates in their normal operation.

Haag testified that the Dairy did not have a device that would lock out the power to the gates with a padlock while the gates were being worked on by the Dairy's...