Kramer v. J.I. Case Mfg. Co.

• Decision Date: 26 August 1991
• Docket Number: No. 25734-0-I,25734-0-I
• Citation: 815 P.2d 798,62 Wn.App. 544
• Parties: Garey W. KRAMER, Rita Kramer and Gavin W. Kramer, Appellants, v. J.I. CASE MANUFACTURING CO., Respondent.
• Court: Washington Court of Appeals

Page 544

62 Wn.App. 544

815 P.2d 798

Garey W. KRAMER, Rita Kramer and Gavin W. Kramer, Appellants, v. J.I. CASE MANUFACTURING CO., Respondent.

No. 25734-0-I.

Court of Appeals of Washington Division 1.

Aug. 26, 1991.

George Luhrs, Seattle, for appellants

Lee Corkrum, Ogden, Ogden, Murphy & Wallace, Seattle, for respondent.

AGID, Judge.

Garey Kramer ¹ appeals a judgment of dismissal entered on a defense verdict in his product liability action against J.I. Case Manufacturing Co. (Case). Kramer contends that the trial court erred in treating this case as one filed under the tort reform act, in refusing to instruct the jury on several alternative liability theories, in limiting his discovery, and in making several Kramer is a former construction worker. On October 3, 1985, he worked as a cement cutter on a water line installation job. Using a concrete saw, Kramer made cuts down the length of a slope on 7th Avenue West. As a result of these cuts, the slope was covered with slurry, a very fine, slippery mud.

                evidentiary rulings.   He also asserts that the trial court erred in denying his motion for a new trial.   We affirm
                

While Kramer worked cutting the concrete, another worker, Steve Nelson, operated a Case backhoe near the top of the slope. During a repositioning maneuver in which Nelson used the pavement breaker attached to the backhoe's boom as an anchor, the backhoe went out of control and slid or rolled down the hill. The backhoe's shovel knocked Kramer down and dragged him 50 feet. Kramer suffered injuries to his left heel, both ankles and back, as well as numerous scrapes and bruises. Kramer was unable to return to his former employment.

On July 31, 1986, Kramer filed a product liability action in King County Superior Court against several defendants, including Case. He alleged that the backhoe was not reasonably safe in design or construction, and that inadequate warnings were provided. Kramer filed an amended summons and complaint on October 29, 1986, before any defendant filed an answer, and evidently before any defendants were served. Kramer paid a second filing fee at this time. Presumably because of the filing fee payment, the court clerk assigned the amended complaint a new cause number. Case was served with a copy of the amended summons and complaint on October 31, 1986.

The matter went to trial in December 1989. The jury entered a defense verdict, finding that Case did not "supply a product in which the boom was not reasonably safe as designed or was not reasonably safe because adequate warnings or instructions were not provided with the product". Consequently, the jury did not reach questions

                of contributory negligence or damages.   Kramer moved for a new trial.   The court denied his motion.   This appeal followed
                

ADEQUACY OF RECORD

A preliminary issue concerns the adequacy of the record. In an effort to limit his expenditures, Kramer had only a partial verbatim transcript prepared. Case thought the record inadequate and obtained from the trial judge an order requiring Kramer to supplement the existing transcript. Kramer did not do so, and Case moved in this court for an order mandating compliance with the trial court order or dismissing the case. On January 4, 1991, the Commissioner denied Case's motion. He ordered that:

The Kramers' appeal on the merits may proceed on the record they have provided. This ruling in no way finds that record sufficient for purposes of appellate review. If a panel later agrees with the trial court that additional record is necessary, it may refuse to consider the issue on appeal. State ex rel. Dean v. Dean, 56 Wn.App. 377, 382, 783 P.2d 1099 (1989).

Case attacks this ruling in its Respondent's brief filed 1 month after the Commissioner's order. Its attack is untimely. A party aggrieved by a commissioner's ruling can only object by a motion to modify filed no later than 10 days after the ruling is filed. RAP 17.7. If no such motion is filed, the ruling becomes a final decision of the court. Gould v. Mutual Life Ins. Co., 37 Wash.App. 756, 758, 683 P.2d 207 (1984); see also State v. Rolax, 104 Wash.2d 129, 135, 702 P.2d 1185 (1985).

In any event, we see no basis for setting aside the Commissioner's ruling and dismissing Kramer's appeal. Case has not demonstrated that it suffered any prejudice from the lack of a complete record. There is, therefore, no reason to employ any sanction other than the ordinary sanction of refusing to consider matters for which there is an inadequate record. E.g., State ex rel. Dean v. Dean, 56 Wash.App. 377, 382, 783 P.2d 1099 (1989).

APPLICATION OF TORT REFORM ACT

Turning to the merits, we first consider Kramer's contention that the trial court erred in ruling that the Tort Reform Act (Act), which applies to complaints filed on or after August 1, 1986, governs this case. The trial court concluded that Kramer's July 31, 1986 filing did not preclude application of the Act because Kramer paid a second filing fee when he filed his amended complaint in October 1986 and only served defendants under the cause number assigned to the October complaint. In so ruling, the court relied on RCW 4.16.170, the tentative commencement statute, which establishes when filing the summons and complaint alone can toll a statute of limitations. The court reasoned that, although RCW 4.16.170 expressly concerns only the tolling of limitation statutes, it also establishes that a lawsuit does not "blossom ... into a full lawsuit" unless service is made within 90 days of the day a suit is filed.

RCW 4.16.170 does not apply to the issue presented here in this manner. The statute is only a tentative commencement provision which states that, for "the purpose of tolling any statute of limitations", an action is commenced when the complaint is filed. If service is not made on the defendant within 90 days of the date of filing, "the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations." RCW 4.16.170. This provision has been consistently interpreted as governing only when the statute of limitations is tolled, and as being inapplicable when both service and filing are accomplished within the limitation period. See Collins v. Lomas & Nettleton Co., 29 Wash.App. 415, 418-19, 628 P.2d 855 (1981); Hansen v. Watson, 16 Wash.App. 891, 892-93, 559 P.2d 1375, review denied, 88 Wash.2d 1018 (1977). Thus, so long as the statute of limitations has not expired, "it is immaterial that the service and filing were not accomplished within 90 days of each other." Hansen, 16 Wash.App. at 893, 559 P.2d 1375.

Nevertheless, the trial court's decision to apply the tort reform act in this case was not error. The mere act of filing a complaint does not toll a statute of limitations. RCW 4.16.170. Here, Kramer never served Case with a summons and complaint bearing the cause number assigned to the original July 1986 complaint. ² Consequently, the statute of limitations continued to run on that complaint and has since expired. ³ See Collins, 29 Wash.App. at 418, 628 P.2d 855.

In any event, we are convinced that even if the trial court had erred in applying the Act to this case, the error did not affect the outcome of trial and would not require reversal. This is because the applicable portion of the Act is concerned only with allocation of damages, i.e., in certain situations, the Act rejects joint and several liability in favor of a proportional fault formula. ⁴ Here, the jury never reached the issue of damages and thus never considered how damages should be apportioned. Instead, it determined that Case had not manufactured an unsafe product and therefore incurred no liability. Despite Kramer's creative arguments to the contrary, ⁵ we are not

                persuaded that the court's decision to apply the Act in this case influenced the jury's determination on the liability issue.   See generally American Oil Co v. Columbia Oil Co., 88 Wash.2d 835, 842, 567 P.2d 637 (1977) ("[e]rror relating solely to the issue of damages is harmless when a proper verdict reflects nonliability");  Stuart v. Consolidated Foods Corp., 6 Wash.App. 841, 845, 496 P.2d 527, review denied, 81 Wash.2d 1002 (1972) (same).   Consequently, even if the trial court had erred in applying the Act, its error would not have been grounds for reversal
                

ALTERNATIVE THEORIES OF LIABILITY

Kramer's next assignment of error concerns the trial court's decision to preclude evidence relating to alternative liability theories which Kramer identified shortly before trial. The trial court's ruling was based on its conclusion that Kramer's alternative theories were not disclosed in a timely manner.

Until 6 or 7 weeks before trial, Kramer had disclosed only two negligence theories to Case: (1) that the boom on the backhoe was either improperly designed or defectively manufactured, a defect which caused the boom to break under normal use; and (2) that Case failed to provide adequate warnings of this safety problem. Then, on October 20, 1989, Kramer filed a supplemental answer to interrogatories in which he alleged that the backhoe was faulty in several other respects, including having inadequate warnings about operating the backhoe while using a pavement breaker, negligent design of the seat and controls, and inadequate brakes. On November 30, Kramer telephoned Case to inform it that he was also alleging that the backhoe was negligently designed because it lacked an airhorn.

In a pretrial motion, Case moved for an order limiting Kramer's recovery theories to negligent boom design and inadequate warnings about that problem. It argued that Kramer's additional negligence theories were not timely disclosed in that they came after the court-ordered cutoff date for identifying rebuttal experts, after Kramer's expert was deposed, and just days before the discovery cut off date. The trial court granted Case's motion.

On appeal, Kramer contends that the trial court abused its discretion by...