Keller v. Vermeer Mfg. Co.

• Decision Date: 19 December 1984
• Docket Number: No. 10590,10590
• Parties: Ronald A. KELLER, Plaintiff and Appellee, v. VERMEER MANUFACTURING COMPANY, Defendant and Appellant, Tom Alme, Liberty Mutual Insurance Company and White & White Inspection and Audit Service, Inc., Defendants. Civ.
• Court: North Dakota Supreme Court

Page 502

360 N.W.2d 502

Ronald A. KELLER, Plaintiff and Appellee, v. VERMEER MANUFACTURING COMPANY, Defendant and Appellant, Tom Alme, Liberty Mutual Insurance Company and White & White

Inspection and Audit Service, Inc., Defendants.

Civ. No. 10590.

Supreme Court of North Dakota.

Dec. 19, 1984.

McIntee Law Firm, Towner, and Breidenbach, Swainston, Yokaitis & Crispo, Los Angeles, Cal., for plaintiff and appellee Ronald A. Keller; argued by Francis Breidenbach, Los Angeles, Cal. Appeareance by Michael S. McIntee, Towner.

Nilles, Hansen, Magill & Davies, Fargo, for Vermeer Manufacturing Company and Tom Alme; argued by W. Todd Haggart, Fargo.

McGee, Hankla, Backes & Wheeler, Minot, for defendant White & White Inspection and Audit Service, Inc.; argued by Richard H. McGee, Minot.

Faegre & Benson, Minneapolis, Minn., for defendant Liberty Mutual Insurance Company; argued by G. Alan Cunningham, Minneapolis, Minn.

SAND, Justice.

Vermeer Manufacturing Company has appealed from a judgment entered against it in favor of Ronald A. Keller and from an order denying Vermeer's objections to the allowance of Keller's costs and disbursements. This appeal raises issues with regard to a jury instruction on momentary forgetfulness of a known danger, evidentiary rulings, and costs and disbursements allowed to the prevailing party. We affirm.

This case arises out of the operation of a round baler. The type of baler involved is towed behind a tractor and operated by a power take-off from the tractor. Crop material to be baled is picked up by a rotating pickup comprised of several rows of steel tines. The pickup delivers the material to two in-running compression rollers which propel the material into the baling chamber, where it is formed into a cylindrical bale. A full-sized bale is five feet long, six feet in diameter, and weighs approximately 1,200 to 1,500 pounds.

From the time that Keller's father purchased the baler new in 1975, Keller was its principal operator and did most of the maintenance and service work on it. Keller was an experienced operator who had made approximately 5,000 bales with the baler prior to the accident.

On 19 September 1979, Keller was baling oat straw with a Vermeer Model 605C baler. After making one bale Keller saw a rock, got off the tractor, picked up the rock, and carried it to a rock pile. While returning to the tractor, Keller saw a dirt lump in the baler, almost touching the compression rollers. Without shutting off the tractor or disengaging the power take-off, Keller reached into the baler to dislodge the lump. He intended to propel the lump forward to the ground without touching the compression rollers. In the process, however, Keller's left arm was drawn between the rollers, resulting in an injury that ultimately resulted in a fore-quarter amputation of the left arm and shoulder.

Keller brought suit against Vermeer, the manufacturer of the baler; Tom Alme, the dealer who sold the baler to Keller's father; Liberty Mutual Insurance Company, which Keller alleged provided liability insurance and engineering safety consulting services to Vermeer and participated in the design, manufacture, labeling and distribution of warnings for Vermeer balers; and White & White Inspection and Audit Service, Inc., which Keller alleged provided engineering safety consulting services to Vermeer and participated in the design, manufacture, labeling and distribution of warnings for Vermeer balers.

Among others, Keller advanced four theories of liability: (1) that all of the defendants "negligently designed, manufactured, assembled, tested, inspected, distributed, labeled and provided instructions for the use of its Vermeer hay baler"; (2) strict liability against all defendants; (3) breach of an implied warranty of fitness for a particular purpose against Vermeer and Alme; and (4) breach of an implied warranty of merchantable quality against Vermeer and Alme.

Keller voluntarily dismissed his claims against Alme during trial. The jury by its special verdict found: (1) Vermeer was negligent in the design, testing, labeling, warnings or instructions for the baler; (2) the baler was not in a defective and unreasonably dangerous condition when it left the control of Vermeer; (3) Liberty Mutual was causally negligent; (4) White & White was not causally negligent; (5) Keller was contributorily negligent; (6) Keller's damages were $800,000.00; and (7) the percentages of fault proximately causing Keller's damages were as follows:

                Vermeer         50%
                Liberty Mutual  13%
                White & White    0%
                Keller          37%
                

The trial court ordered judgment for Keller against Vermeer for the sum of $504,000.00 ($800,000 minus 37%), together with costs and disbursements. The trial court further ordered that Liberty Mutual and White & White have judgment dismissing Keller's action, with costs and disbursements in favor of White & White. ¹ Judgment was entered accordingly. The trial court denied Vermeer's objections to Keller's costs and disbursements. Vermeer, which is the only party that has appealed, appealed from the judgment and from the order denying its objections to Keller's costs and disbursements.

Vermeer has raised the following issues in this appeal:

"1. Did the District Court commit reversible error in submitting Instruction No. 32 entitled 'Contributory Negligence--Forgetfulness of Known Danger?'

"2. Did the District Court abuse its discretion on certain evidentiary matters, resulting in the denial of a fair trial to Vermeer?

"3. Did the District Court err in allowing Plaintiff to recover as taxable costs the litigation expenses incurred by him in prosecuting the action and in failing to apportion the taxable costs according to the jury's allocation of negligence?"

I.

Momentary Forgetfulness

The trial court gave an instruction entitled "Contributory Negligence--Forgetfulness of Known Danger", as follows:

"Whether or not it is negligence for one to proceed into a dangerous situation of which he had previous knowledge is a question of fact. If you find that plaintiff voluntarily proceeded into a dangerous situation of which he had previous knowledge, but that he momentarily forgot the danger, such forgetfulness is not in itself contributory negligence unless under all the circumstances it shows a want of ordinary care not to have kept the danger in mind."

Vermeer contends that the trial court committed reversible error in submitting the instruction because: (1) the instruction is inappropriate in a case involving comparative negligence principles; (2) there is no evidence in the record that Keller momentarily forgot the danger posed by the baler rollers; and (3) the instruction misled the jury and was prejudicial to Vermeer. We do not believe the trial court erred.

Vermeer first asserts that momentary forgetfulness has no place in cases governed by the principles of comparative negligence, stating that "[w]ith the abandonment of contributory negligence, doctrines whose purpose was to ameliorate the harsh effects of contributory negligence are anachronistic and no longer justifiable from a policy standpoint" and "the momentary forgetfulness doctrine is a throwback to the contributory negligence era and no longer has a place in the law of North Dakota."

North Dakota has adopted a system of comparative negligence under which a plaintiff's contributory negligence no longer is a defense which bars recovery [See Bartels v. City of Williston, 276 N.W.2d 113 (N.D.1979); and Wentz v. Deseth, 221 N.W.2d 101 (N.D.1974) ] "if such negligence was not as great as the negligence of the person against whom recovery is sought." Section 9-10-07, N.D.C.C. It is important to note that Sec. 9-10-07, N.D.C.C., did not abolish the concept of contributory negligence. It only abolished the former result of contributory negligence--that a plaintiff's contributory negligence barred recovery of any damages--by providing that "any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person recovering." What constitutes contributory negligence has not been changed.

The doctrine of momentary forgetfulness has been a part of the law in North Dakota since at least 1906. In Pyke v. City of Jamestown, 15 N.D. 157, 107 N.W. 359 (1906), the plaintiff was injured when she stepped in a hole in a plank sidewalk. Although she had previously known of the defect in the sidewalk, she was not thinking of it at the time she fell. The City contended that the plaintiff was contributorily negligent as a matter of law. This Court stated, 15 N.D. at 169-170, 107 N.W. at 363:

"The question of negligence, whether it be of a defendant or the alleged contributory negligence of a plaintiff, is primarily and generally a question of fact for the jury.... The plaintiff was required to exercise such care as the condition of the street and her knowledge of it made reasonable under the circumstances.... [A]nd when he is injured as a consequence of a defect of which he had previous knowledge, the mere fact of previous knowledge does not per se establish contributory negligence. And this is also the rule when previous knowledge is coupled with absence of thought concerning the defect at the time of the injury, or momentary forgetfulness of it. Previous knowledge of a defect and forgetfulness of it are important facts to be considered in connection with all other circumstances in determining whether the party injured was exercising reasonable care. But it is not negligence, as a matter of law, for a person who has knowledge of a defect not to remember it at all times and under all circumstances...." [Citations omitted.]

See also, Krause v. City of Wilton, 40 N.D. 11, 168 N.W. 172 (1918); Moeller v. City of Rugby, 30 N.D. 438, 153 N.W. 290 (1915) (Pyke, supra, not applied when plaintiff remembered the defect at the time of the accident); and Jackson v. City of Grand Forks, 24 N.D. 601, 140 N.W. 718 (1913).

Vermeer has...