Ladd by Ladd v. Honda Motor Co., Ltd.

• Decision Date: 07 August 1996
• Citation: 939 S.W.2d 83
• Parties: Prod.Liab.Rep. (CCH) P 14,709 Michael Anthony LADD, a minor, by Virginia LADD, as next friend and legal guardian, Plaintiff/Appellant, v. HONDA MOTOR CO., LTD.; Honda R & D Co., Ltd.; American Honda Motor Co., Inc.; Bowling Green Cycles, Inc.; and Erby L. Givens, Defendants/Appellees.
• Court: Tennessee Court of Appeals

Page 83

939 S.W.2d 83

Prod.Liab.Rep. (CCH) P 14,709

Michael Anthony LADD, a minor, by Virginia LADD, as next

friend and legal guardian, Plaintiff/Appellant, v. HONDA MOTOR CO., LTD.; Honda R & D Co., Ltd.; American

Honda Motor Co., Inc.; Bowling Green Cycles,

Inc.; and Erby L. Givens, Defendants/Appellees.

Court of Appeals of Tennessee,

Middle Section, at Nashville.

Aug. 7, 1996.

Permission to Appeal Denied by

Supreme Court Dec. 23, 1996.

Joe Bednarz, Nashville, for Plaintiff/Appellant.

Linda J. Hamilton Mowles, R. Dale Bay, Lewis, King, Krieg & Waldrop, Knoxville, for Defendants/Appellees.

OPINION

KOCH, Judge.

This appeal involves a twelve-year-old boy who became paralyzed when he lost control of an all-terrain vehicle and crashed into a utility pole. The boy sued the manufacturer of the all-terrain vehicle in the Circuit Court for Sumner County, alleging that its advertisements falsely and misleadingly depicted all-terrain vehicles as safe enough to be operated by children. The jury returned a verdict for the manufacturer following a lengthy trial, and the child and his mother appealed. We have determined that the trial court's instructions did not fairly appraise the jury of the plaintiff's theory of the case and that its supplemental instructions confused the jury about the significance of their verdict. Therefore, we reverse the judgment and remand the case for a new trial.

I.

Erby Givens purchased a four-wheeled Honda all-terrain vehicle Model TRX 250 in January 1986. Approximately four months later, he drove his "four-wheeler" to Earl and Virginia Ladd's apartment in the Portland Housing Authority complex. During his visit, Mr. Givens permitted the Ladds' twelve-year-old son, Michael, to drive the all-terrain vehicle. He had permitted the boy to drive the all-terrain vehicle in the past, and he believed that children could safely operate it because he had seen Honda's advertisements showing children driving all-terrain vehicles.

Michael Ladd began driving the all-terrain vehicle on the street in front of the housing complex. After several hours, he and a passenger began driving the vehicle on a grassy area behind his parents' apartment. While Michael Ladd had adult supervision during the early part of the day, his parents and Mr. Givens became involved with other activities as the afternoon wore on. Mr. Givens and Mr. Ladd were drinking beer on the Ladds' front porch, and Ms. Ladd was babysitting her granddaughter inside the Ladds' apartment.

Michael Ladd drove the all-terrain vehicle on the grassy area behind his parents' apartment all afternoon. At approximately 5:30 p.m., he and a twelve-year-old passenger hit a two-foot wide dish-shaped depression in the ground. Michael Ladd lost control, and the all-terrain vehicle crashed into a utility pole. The passenger was thrown from the vehicle without serious injury, but Michael Ladd hit the utility pole head-on. His injuries have rendered him a paraplegic.

In May 1991, Michael Ladd filed suit in the Circuit Court for Sumner County against Honda Motor Co., Ltd., Honda Research and Development, Ltd., Honda R & D North America, Inc., American Honda Motor Company, Inc., Mr. Givens, and the dealership that sold the four-wheeler to Mr. Givens. With regard to the four Honda defendants, the complaint alleged: (1) that the 1986 Honda TRX 250 all-terrain vehicle was defective or unreasonably dangerous, (2) that the safety warnings for the vehicle were inadequate, (3) that the Honda defendants had misrepresented the characteristics of all-terrain vehicles, and (4) that the design, manufacture, testing, or inspection of the 1986 Honda TRX 250 all-terrain vehicle was negligent. ¹

The trial began in March 1993 and lasted five weeks. On the third day of deliberations, the jury reported that it could not reach a decision with regard to the misrepresentation claims. The trial judge gave the jury additional instructions and urged them to answer as many of the questions on the special verdict form as they could. The jury completed the special verdict form within one hour and answered all questions in favor of the Honda defendants. Michael Ladd filed two timely motions for new trial. The trial court initially denied the motions but later reversed itself because it believed it had given an improper dynamite charge. The Honda defendants sought and obtained an interlocutory appeal with regard to this decision.

On May 13, 1994, this court filed an opinion concluding that the trial court had not given the jury a dynamite charge and, therefore, that the trial court had erroneously granted the new trial. Since the trial court had not acted on the other grounds stated in the motion for new trial, this court vacated the order granting the new trial and remanded the case with directions that the trial court consider and act upon these other grounds. Ladd v. Honda Motor Co., App. No. 01-A-01-9309-CV-00399, slip op. at 9-10, 1994 WL 189119 (Tenn.Ct.App. May 13, 1994), perm. app. denied concurring in results only (Tenn. Sept. 26, 1994).

The trial court denied the remaining grounds of the motion for new trial in July 1994 before the Tennessee Supreme Court had disposed of Michael Ladd's application for permission to appeal. In October 1994, after the Tennessee Supreme Court denied Michael Ladd's application for permission to appeal, the trial court entered a final order approving the jury's verdict as thirteenth juror, denying the first and second motions for new trial, and taxing the costs to Michael Ladd. This appeal ensued.

II. THE SCOPE OF THE APPEAL

We turn first to the scope of this appeal. Since this is the second appeal in this case, Michael Ladd cannot reargue issues that have already been heard and decided. Several of the issues he has raised on this appeal were either directly or implicitly decided on the first appeal and, therefore, will not be considered now.

A.

Michael Ladd filed two timely post-trial motions containing eighteen grounds for a new trial. ² Eight of these grounds related to the trial court's instructions and comments to the jury, including the supplemental instructions given after the jury reported it was deadlocked. The trial court first denied the motions for new trial, observing that the appellate courts "will certainly have a great deal to chew on." During a later hearing concerning the wording of its final order, the trial court announced that it had changed its mind and had decided to grant Michael Ladd a new trial. The decision was based solely on the trial court's belief that it had given an improper dynamite charge when the jury announced it was deadlocked.

Both the trial court and this court granted the Honda defendants permission to perfect an interlocutory appeal to determine whether the trial court's supplemental instructions amounted to "an improper 'dynamite charge' which may have improperly influenced the jury." In this court, the Honda defendants insisted that the only issue to be decided was whether the trial court used a dynamite charge to coerce the jury to return a verdict. Michael Ladd, on the other hand, argued that the court could consider the broader issue of whether there was any ground for granting him a new trial. This court determined that the trial court had not used an inappropriate dynamite charge and accordingly vacated the order granting the motion for new trial. Ladd v. Honda Motor Co., supra, slip op. at 9. We also remanded the case with directions that the trial court consider and rule on the other grounds asserted in the motions for new trial. Ladd v. Honda Motor Co., supra, slip op. at 10.

The trial court thereafter approved the verdict as thirteenth juror and denied both of Michael Ladd's motions for new trial on all grounds. The trial court stayed its order while the Tennessee Supreme Court considered whether it would review this court's decision. After the Court declined to review the case, the trial court entered a final order again denying both motions for new trial on all grounds.

B.

The law of the case doctrine is a discretionary rule of practice that promotes judicial economy and consistency and also protects litigants from the burdens of repeatedly rearguing issues that have been decided. 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478, at 788-90 (1981). It is not a limitation on a court's power like the doctrine of res judicata, but rather it is a common sense recognition that issues ordinarily need not be revisited once they have been litigated and decided. Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912); Mendenhall v. Barber-Greene Co., 26 F.3d 1573, 1582 (Fed.Cir.), cert. denied, 513 U.S. 1018, 115 S.Ct. 582, 130 L.Ed.2d 496 (1994).

Under the law of the case doctrine, an appellate court's decision on an issue of law becomes binding precedent to be followed in later trials and appeals of the same case involving the same issues and facts. Jones v. Jones, 784 S.W.2d 349, 351 n. 1 (Tenn.Ct.App.1989); Cook v. McCullough, 735 S.W.2d 464, 470-71 (Tenn.Ct.App.1987) (quoting Holcomb v. McClure, 217 Miss. 617, 64 So.2d 689, 691 (1953)); 1B James W. Moore & Jo Desha Lucas, Moore's Federal Practice p 0.404 (2d ed. 1995). The doctrine applies to issues that were actually before the court, Barnes v. Walker, 191 Tenn. 364, 374, 234 S.W.2d 648, 652 (1950), or to issues that were necessarily decided by implication. 18 Wright et al., supra, § 4478, at 789. It does not apply to dicta. Ridley v. Haiman, 164 Tenn. 239, 248-49, 47 S.W.2d 750, 752-53 (1932); Schoen v. J.C. Bradford & Co., 667 S.W.2d 97, 101 (Tenn.Ct.App.1984). Thus, taking an interlocutory appeal does not preclude a later appeal from the final judgment, but the decision of the appellate courts on the interlocutory appeal constitutes the law of the case with regard to the issues raised and decided on the interlocutory appeal. 1B Moore et al., supra, p 0.404[4...