Lasselle v. Special Products Co.

• Decision Date: 29 September 1983
• Docket Number: No. 13402,13402
• Citation: 106 Idaho 170,677 P.2d 483
• Parties: Stanford LASSELLE, Plaintiff-Respondent, Cross-Appellant, v. SPECIAL PRODUCTS COMPANY, Defendant-Appellant, Cross-Respondent.
• Court: Idaho Supreme Court

Page 483

677 P.2d 483

106 Idaho 170

Stanford LASSELLE, Plaintiff-Respondent, Cross-Appellant, v. SPECIAL PRODUCTS COMPANY, Defendant-Appellant, Cross-Respondent.

No. 13402.

Supreme Court of Idaho.

Sept. 29, 1983.

Rehearing Denied March 12, 1984.

Jeremiah A. Quane, Boise, for defendant-appellant, cross-respondent.

Daniel T. Eismann, Homedale, for plaintiff-respondent, cross-appellant.

DONALDSON, Chief Justice.

The plaintiff, Stanford Lasselle, who was sixteen at the time of the accident, sustained injuries when he became caught in a posthole digger while working with his father on the Lasselle dairy farm. On the day of the accident Lasselle's father was sitting on the tractor seat, and in an attempt to make it easier to dig through sod, the plaintiff was standing on the ground, holding the control rod of the posthole digger and rocking the digger back and forth.

A power takeoff shaft was attached to the auger and power was supplied to the auger through the shaft from the tractor. When Lasselle's father engaged the power takeoff shaft the plaintiff moved his right hand to the clevis and commenced rocking the posthole digger. The plaintiff's coat sleeve became entangled in the U-joint and he was severely injured.

The defendant, Special Products Company, manufactured the posthole digger and the dealer, D & B Supply Company, Inc., sold the posthole digger to the plaintiff's father. D & B Supply Company was a defendant in this action until a short time before trial when the company reached a settlement with the plaintiff.

Lasselle filed a complaint against Special Products Company and alleged negligence, strict liability and breach of an implied and express warranty. Lasselle claimed that the defendant's conduct caused the injury and because of it he suffered damages.

In February 1979, Special Products Company moved for a partial summary judgment dismissing the action with respect to any claim for medical expenses incurred in treating Lasselle during his minority. On the same date Lasselle made a motion for an order dismissing with prejudice D & B Supply Company, Inc. The court granted both motions. Thereafter, a jury trial was held as to the remaining claims against the defendant. The jury returned a special verdict in which they found that Lasselle was thirty-three percent (33%) the cause of the accident, Special Products Company was sixty-seven percent (67%) the cause of the accident, and Lasselle was damaged in the amount of $150,000.

Special Products Company then moved for a new trial, or, alternatively, remittitur of the judgment. These motions were denied and the defendant appeals from the judgment and the order denying the post-trial motions. Lasselle cross-appeals the court's granting of the partial summary judgment dismissing his claim for medical expenses incurred during his minority.

On appeal, the defendant alleges several errors. The first one we will consider is Special Products' claim that the court erred in refusing to include D & B Supply Company on the special verdict form. This Court has stated that,

"It is established without doubt that, when apportioning negligence, a jury must have the opportunity to consider the negligence of all parties to the transaction, whether or not they be parties to the lawsuit and whether or not they can be liable to the plaintiff or to the other tortfeasors either by operation of law or because of a prior release." Connar v. West Shore Equipment of Milwaukee, Inc., 227 N.W.2d 660, 662 (Wis.1975) quoted in Pocatello Industrial Park Co. v. Steel West, Inc., 101 Idaho 783, 787, 621 P.2d 399, 403 (1980).

As stated in Pocatello Industrial Park Co. the reason for the rule is that " true apportionment cannot be achieved unless that apportionment includes all tortfeasors guilty of causal negligence either causing or contributing to the occurrence in question, whether or not they are parties to the case. " Pocatello Industrial Park, supra at 787, 621 P.2d at 403 (quoting Heft & Heft, Comparative Negligence Manual § 8.131, at 12 (1978)).

The jury was instructed on both strict liability and negligence but an examination of the special verdict form indicates the jury found that the plaintiff assumed the risk, thus precluding the plaintiff from recovering under the strict liability claim. Assumption of risk does not bar recovery in this type of negligence action, Messmer v. Ker, 96 Idaho 75, 524 P.2d 536 (1974), but under strict liability this Court has stated that, " [i]f the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery. " ¹ Shields v. Morton Chemical Co., 95 Idaho 674, 677, 518 P.2d 857, 860 (1974) (quoting Restatement (Second) of Torts § 402A, comment n (1965)); see also Garner v. Crater Farms, Inc., 96 Idaho 383, 529 P.2d 779 (1974). Therefore, since the plaintiff was awarded damages under the negligence theory we hold that the trial court erred in not placing D & B Supply Company on the special verdict form because in a negligence action it is imperative that the jury have the opportunity to consider the negligence of all the parties to the transaction. Pocatello Industrial Park, supra.

In support of the trial court's refusal to include D & B Supply Company on the special verdict form, Lasselle argues that Special Products Company did not adequately demand that the issues be submitted to the jury as required by I.R.C.P. 49(a). I.R.C.P. 49(a) states that the opportunity to set forth an issue of fact in the special verdict is waived "unless before the jury retires he demands its submission to the jury." (Emphasis added.) Special Products Company filed a requested special verdict form containing a question concerning D & B Supply Company's negligence but the special verdict form was denied. Later, however, when asked by the court about the chosen special verdict form the appellant stated it had "no objection." Lasselle argues that this was not sufficient to meet the requirements of I.R.C.P. 49(a). In response, Special Products Company argues that an objection after the refusal would have been futile.

Normally, if a party makes his position known to the court he need not repeat his objection when the court takes contrary action. Even though there is specific language contained in I.R.C.P. 49(a) that a party demand an issue be submitted to the jury we decline to require more than is normally expected of a party when objecting to an adverse ruling. ² Therefore, we hold that once a request is made to include a tortfeasor on the special verdict form and that request is refused by the trial court there is no added requirement for counsel to again object to the form chosen by the court in order to preserve its right to raise the issue on appeal.

Lasselle also claims that the trial court did not err in refusing to place D & B Supply Company on the special verdict form because Special Products Company did not point to any conduct on the part of D & B Supply Company that could be considered negligent. However, an examination of the evidence indicates that Mr. Greenburg, the general manager of Special Products Co., testified that the control rod was designed so that the digger could be operated from the tractor seat, rather than having another individual operate the digger. A picture in the operating manual, plaintiff's Exhibit No. 20, shows the rod being operated from the tractor seat. Mr. Oswald, the store manager for D & B Supply Company, testified that they received posthole diggers unassembled and that Special Products Company includes instruction booklets with the...