Kavanaugh v. Kavanaugh
| Decision Date | 22 December 1981 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 131 Ariz. 344,641 P.2d 258 |
| Parties | Laura Lee KAVANAUGH, a minor, by and through her guardian and conservator, R. Carmeletta Cohrt, Plaintiffs-Appellees, v. Michael KAVANAUGH and Francine L. Kavanaugh, individually and as guardian ad litem for Jimmy Kavanaugh, a minor, Defendants-Appellants. Laura Lee KAVANAUGH, a minor by and through her guardian and conservator, R. Carmeletta Cohrt, Plaintiffs-Appellants, v. SOUTHLAND MOWER CO., INC., an Alabama corporation; Globe Discount City of Arizona, Inc., an Arizona corporation; Walgreen Arizona Drug Co., an Arizona corporation, Defendants-Appellees. 4812. |
| Court | Arizona Court of Appeals |
Gust, Rosenfeld, Divelbess & Henderson, by Richard A. Segal, Phoenix, for defendants-appellants Kavanaugh.
Burch, Cracchiolo, Levie, Guyer & Weyl, P. A., by Daniel Cracchiolo and Weyl, Guyer, MacBan & Olson, by Thomas G. Bakker, Phoenix, for Southland Mower Co., Globe Discount City of Arizona and Walgreen Arizona Drug Co.
The plaintiff, Laura Lee Kavanaugh (Laura), who was five years of age at the time of the accident, suffered a partial amputation of her left foot in an incident involving a family-owned power lawn mower. The lawn mower was being operated by her brother, James, who was nine years old. After the accident, a guardian was appointed, who filed an action on Laura's behalf against defendants Southland Mower Co., Inc. (the manufacturer), Globe Discount City of Arizona, Inc., and Walgreen Arizona Drug Co. (the sellers), Michael Kavanaugh and Francine Kavanaugh (parents), and James Kavanaugh (brother).
The theory for recovery against the manufacturer and sellers was strict liability in tort based on Restatement, Second, Torts § 402 A. The allegations in the complaint relevant to this appeal are that the lawn mower was defectively designed and that there was a failure to adequately warn of dangerous propensities in the lawn mower.
The case was tried to a jury, and at the close of plaintiff's case, the court directed a verdict in favor of the manufacturer and the sellers on the issue of defective design. The issue of failure to warn was submitted to the jury, and a verdict was returned in favor of the plaintiff for $92,000. The plaintiff filed a motion for an additur which was denied. The defendants manufacturer and sellers filed a motion for judgment notwithstanding the verdict which was granted on the basis that the lawn mower was being misused at the time of the accident.
As to the strict liability action against the manufacturer and sellers, the plaintiff on appeal alleges error by the court in the denial of her motion for additur; error in directing a verdict on the issue of defective design; and error in granting the judgment notwithstanding the verdict on the failure to warn issue.
The plaintiff also in the same action sued her parents and brother James, alleging her injury was caused by their negligence. The jury rejected such claim and found in favor of her parents and brother. The trial court granted the plaintiff a new trial on this negligence claim and her parents and brother now appeal that order.
To facilitate analysis of this rather involved appeal, we will first consider Laura's appeal as to the claim against the manufacturer and sellers of the lawn mower, and then consider the appeal by the parents and brother from the trial court order granting Laura a new trial on her negligence claim against her family.
The Southland lawn mower is a self-propelled machine. It is equipped with a set of turning rollers which come into contact with the rear wheels. The rollers are part of the rear drive housing and are turned by a belt off the lawn mower's gas engine. The rotating action of the rear drive rollers on the rear wheels propels the lawn mower forward. The rear drive housing pivots up and down at the rear end of the lawn mower. When the drive housing is up, the rollers are not in contact with the rear wheels and thus the self-propelled mechanism is disengaged. The mechanism is engaged and the lawn mower moves forward when the drive housing is down and the rollers contact the rear wheels.
There are two manners in which the self-propelled mechanism can be disengaged. A lever on the lawn mower's handle, called a "lockout arm", pulls the drive housing with the rollers away from the rear wheels. The second manner involves simply pushing down on the lawn mower's handle bars. This action creates leverage which causes the drive housing to rise up off the back wheels. After being disengaged in this manner, the evidence showed that the drive housing will remain disengaged without further pressure on the handle bars.
Dr. Stanley Chen, a mechanical engineer testifying as Laura's expert witness, stated that due to the resisting force of the rollers, the lawn mower could not be started while the drive housing was in the down position with the rollers on the rear wheels. Dr. Chen further testified that if the lawn mower is started after disengaging the drive housing by pushing down the handle bars without using the lockout arm, the vibration of the engine will cause the handle bars to spring back up, engaging the self-propelled mechanism and causing the lawn mower to take off by itself.
Viewing the evidence in a light most favorable to Laura, Lerner v. Brettschneider, 123 Ariz. 152, 598 P.2d 515 (App.1979), the facts are as follows:
The accident occurred on August 20, 1971, when Laura and James Kavanaugh were five and nine years old, respectively. Their testimony seven years later in September of 1978 is understandably vague. Mr. John Moran, a friend of the Kavanaugh family, had Laura and James re-create the accident in September of 1971. His testimony described the accident as re-created by Laura and James. The day before the accident, Patrick Kavanaugh, Laura's brother, was using the lawn mower to cut a neighbor's lawn. James was helping by doing the trimming. While Patrick was mowing the lawn, the lockout arm broke. James testified that he was aware that "the safety catch had broke."
The facts surrounding the actual accident are in dispute. The testimony of Mr. Moran, however, was sufficient to justify findings by the jury that, on the day of the accident, James asked his mother if he could mow a strip of grass in his parents' backyard and that she gave him permission to do so; that James asked his sister to sit on the lawn mower to steady it while he started it; that the lawn mower took off by itself immediately after being started; that Laura jumped off in front of the lawn mower and fell down while attempting to run away; and that the lawn mower ran over her foot approximately ten to twelve feet from the point where the machine was started.
The issues of defective design and failure to warn come before us in an unusual posture. The majority of Laura's evidence concerned the issue of defective design. Three expert witnesses gave their opinion that the design of the mower which enabled an operator to start it by pushing down on the handle made it defective and dangerous. At the close of Laura's case, the trial court granted a motion for directed verdict in favor of the defendants manufacturer and sellers in regard to the issue of defective design. The court denied the defendant's motion for directed verdict concerning the issue of lack of warning. The defendants presented their case to the jury relative to the issue of lack of warning and the jury returned a verdict in favor of Laura for $92,000. Laura's motion for an additur was denied. The defendants manufacturer and sellers filed a motion for judgment notwithstanding the verdict. The trial court granted this motion on the grounds that the lawn mower was being misused as a matter of law, and that defendants were not responsible for injuries occurring or arising out of the unforeseeable misuse of the product.
On appeal, Laura contends that the trial court erred in granting the motion for judgment notwithstanding the verdict on the issue of failure to warn because, even if the lawn mower was being misused by James and Laura, such use was reasonably foreseeable. Laura also argues that the court erred in granting the motion for directed verdict on the issue of defective design because there was sufficient evidence to warrant The manufacturer and sellers contend that the lawn mower was being misused as a matter of law. They allege that James and Laura were using the lawn mower as a riding toy after the lockout arm was broken. They contend that this misuse was unforeseeable in that they could not have foreseen that Laura's parents would permit this type of use by such young children. They further contend that they owed the users of the lawn mower no duty to warn of the dangers of its use because such dangers were already known to the users. Their final argument is that the alleged failure to warn was not the proximate cause of the accident because the use of the lawn mower after the lockout arm had been broken constituted the proximate cause of the accident.
submission of this issue to the jury. She contends that by removing the evidence of defective design from the jury's consideration, the size of the verdict was reduced. She contends that this supports her motion for an additur. Accordingly, she asks this court to reinstate the jury's verdict and grant her an additur.
A. THE JUDGMENT NOTWITHSTANDING THE VERDICT
We will first discuss the judgment notwithstanding the verdict granted by the trial court after the jury returned a verdict for Laura based on the manufacturer's and sellers' failure to adequately warn of the dangers involved in operating the lawn mower.
A duty to warn may be imposed on...
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