Lovick v. Wil-Rich

• Citation: 588 N.W.2d 688
• Decision Date: 21 January 1999
• Docket Number: WIL-RICH,No. 97-1484,97-1484
• Parties: Prod.Liab.Rep. (CCH) P 15,439 Leo LOVICK and Marlys Lovick, Appellees, v., a division of the Tic United Corp., Appellant.
• Court: United States State Supreme Court of Iowa

Page 688

588 N.W.2d 688

Prod.Liab.Rep. (CCH) P 15,439

Leo LOVICK and Marlys Lovick, Appellees, v. WIL-RICH, a division of the Tic United Corp., Appellant.

No. 97-1484.

Supreme Court of Iowa.

Jan. 21, 1999.

As Amended on Denial of Rehearing March 25, 1999.

Petition for Rehearing on Amended Opinion Denied April 12, 1999.

Kevin M. Reynolds and Richard J. Kirschman of Whitfield & Eddy, P.L.C., Des Moines, and Richard J. Sapp and W. Don Brittin, Jr., of Nyemaster, Goode, Voights, West, Hansell & OBrien, Des Moines, for appellant.

Gary D. McCallister of Gary D. McCallister & Associates, LTD., Chicago, Illinois, Jay P. Roberts of Roberts & Stevens, P.L.C., Waterloo, E.J. Giovannetti of Hopkins & Huebner, P.C., Des Moines, Brenda L. Head of Davis, Unrein, Hummer, McCallister & Buck, Topeka, Kansas, and John W. Walker, Jr. of Beecher, Field, Walker, Morris, Hoffman & Johnson, Waterloo, for appellees.

Bruce L. Braley of Dutton, Braun, Staack & Hellman, P.L.C., Waterloo, for amicus curiae Iowa Trial Lawyers Association.

Considered by McGIVERIN, C.J., and CARTER, LAVORATO, SNELL, and CADY, JJ.

CADY, Justice.

The manufacturer of a farm cultivator appeals from a judgment entered by the district court in favor of the product user in this product liability action. We conclude the district court failed to fully instruct the jury on the negligence claim based upon a post-sale duty to warn, and this incomplete instruction constituted prejudicial error. We affirm in part, reverse in part, and remand for a new trial.

I. Background Facts and Proceedings.

On May 20, 1993, Leo Lovick set out to cultivate a field preparatory to spring planting. He was an experienced farmer. The land was owned by Paul Rotgers and Lovick was using his cultivator.

Lovick pulled the cultivator to the field with a tractor. The wings of the cultivator were in the upright, vertical position to accommodate its transportation. Once in the field, Lovick attempted to unfold or lower the wings into position to begin cultivation.

The wings of the cultivator folded and unfolded by the operation of two hydraulic cylinders, which also held the wings in its vertical position. Additionally, the wings were secured in the upright position by a metal pin manually inserted under each wing, near the rear of the implement. The pins were designed to hold the wing in the vertical position in the event of hydraulic or mechanical failure.

Lovick positioned himself under the left wing of the cultivator to remove the first pin. The wing immediately fell when the pin was removed. Lovick was severely injured. Later investigation revealed the wing fell when Lovick removed the pin because the linkage attaching the cylinder to the wing had broken. Consequently, the pin was the only device holding the wing in its upright position at the time it was removed. ¹

Wil-Rich first introduced the vertical fold model cultivator into the market in 1971. Since that time it has manufactured approximately 35,000 units. The cultivator which injured Lovick was manufactured and sold by Wil-Rich in 1981. Rotgers purchased the cultivator in "the late 80s." He was at least the second owner.

The cultivator contained a warning sign which cautioned the operator to remove the pin prior to lowering the wings. Wil-Rich placed the warning on the cultivator because it believed hydraulic pressure against the wing pins could break the hydraulic cylinder. The operator's manual further warned against going under the wings to remove the pins.

In 1983, Wil-Rich received a report that a wing of one of its cultivators had fallen and injured the operator. Since that time, it received eight other such reports. In 1988, Wil-Rich began to affix a warning label to the cultivators it manufactured to caution operators of the danger of going under the wing to remove the pin. Wil-Rich added this warning in response to the reports of operators injured by a falling cultivator wing, as well as changes in engineering standards.

In 1994, Wil-Rich began a campaign to notify owners of its cultivators of the danger of falling wings. It also made a backup safety-latch kit available for installation on the wings.

Lovick instituted a strict liability and negligence action against Wil-Rich. He sought compensatory and punitive damages. At trial, Lovick successfully introduced evidence that Deere & Company, a competitor of Wil-Rich, instituted a safety program in 1983 for its similarly designed cultivator after learning of instances of the wing falling on the operator. The Deere & Company program included efforts to locate the cultivator owners, and equip the existing cultivators with a wing safety latch and an upgraded warning label. Lovick also introduced evidence of the nine other accidents involving the wing of a Wil-Rich cultivator falling on an operator.

Wil-Rich investigated the prior accidents as the information became available. It also became aware of the Deere & Company post-sale warning program in 1987, but did not institute its post-sale warning program prior to 1994 essentially due to the practical difficulties of identifying and locating the owners and users of previously sold cultivators.

The trial court submitted the case to the jury on the strict liability theory of defective design and the negligence claim of breach of a post-sale duty to warn. It also submitted punitive damages on the negligence claim. The jury returned a verdict in the amount of $2,057,000. The verdict included $500,000 in punitive damages and $400,000 in loss of consortium to Lovick's wife.

Wil-Rich appeals. It claims the trial court erred in: (1) admitting evidence the warning program by Deere & Company included a retrofit or wing latch safety component; (2) instructing the jury on the continuing duty to warn; (3) admitting evidence of other accidents; (4) using a strict liability theory to instruct the jury on the defective design theory; (5) submitting punitive damages to the jury; (6) failing to direct a verdict for Wil-Rich on the negligence claim because Lovick failed to establish a warning would have prevented the accident; and (7) failing to grant a new trial because the verdict was contrary to the evidence.

II. Standard of Review.

We generally review the admission of evidence under an abuse of discretion standard. Williams v. Hedican, 561 N.W.2d 817, 822 (Iowa 1997). On the other hand, we review claims of erroneous jury instructions for errors at law. Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602, 604 (Iowa 1998). Similarly, we review rulings on a motion for directed verdict and posttrial motions for errors at law. Iowa R.App. P. 4; Molo Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998).

III. Post-Sale Duty to Warn.

We first address the issue of whether the trial court erred in instructing the jury on the duty of Wil-Rich to warn. Wil-Rich claimed it had no duty to warn following the sale. It further claimed the instruction given by the district court was too vague to permit the jury to understand the scope of the duty or to properly determine whether it was breached.

A. Existence of Duty.

Our law has long recognized a duty to warn of the presence of defects or dangers. See Lakatosh v. Diamond Alkali Co., 208 N.W.2d 910, 913 (1973) (common law duty). This duty is predicated upon superior knowledge, and arises when one may reasonably foresee danger of injury or damage to another less knowledgeable unless warned of the danger. Baumler v. Hemesath, 534 N.W.2d 650, 653-54 (Iowa 1995). The duty to warn has traditionally been applied over the years to owners and occupants of property, and more recently to the manufacturer of products. See West v. Broderick & Bascom Rope Co., 197 N.W.2d 202, 209 (Iowa 1972) (adopting the modern rule from the Restatement (Second) of Torts § 388 (1965)). Today, it has assumed a prolific role in products liability actions. ²

The body of law we have developed concerning a manufacturer's duty to warn has been predicated on warning inadequacies at the time of manufacture and sale. A growing number of jurisdictions, however, have now expanded this duty to require warnings after the sale when the product later reveals a defect not known at the time of sale. See 3 American Law of Products Liability § 32:79 (3d ed.1998).

The seminal case in this area is Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (Mich.1959). In Comstock, the court observed the reasons for the imposition of a duty to warn at the point of sale also applied to the imposition of a duty to warn of latent defects which became known to the manufacturer after the product has been placed in the market. Comstock, 99 N.W.2d at 634. Since Comstock, other states have imposed a post-sale duty either by statute or judicial decision. See 3 American Law of Products Liability § 32:79 (citing jurisdictions imposing duty by statute).

Iowa unceremoniously joined this growing trend in 1986 when our legislature enacted the products liability state-of-the-art defense statute. In establishing the state-of-the-art defense in products liability actions, our legislature added:

Nothing contained in this section shall diminish the duty of an assembler, designer, supplier of specifications, distributor, manufacturer or seller to warn concerning subsequently acquired knowledge of a defect or dangerous condition that would render the product unreasonably dangerous for its foreseeable use or diminish the liability for failure to so warn.

Iowa Code § 668.12 (1987). Although no statutory or judicial post-sale duty to warn had been recognized in Iowa prior to the statute, section 668.12 clearly established our legislature's understanding of the duty. We previously recognized this statutory post-sale duty but have not had the occasion to begin to consider its specific application or parameters. See Tucker v. Caterpillar, Inc., 564 N.W.2d 410, 412 (Iowa 1997); Fell v. Kewanee Farm Equip. Co., 457 N.W.2d 911, 920 ...