Lutz v. National Crane Corp.

• Decision Date: 29 November 1994
• Docket Number: No. 92-445,92-445
• Citation: Lutz v. National Crane Corp., 884 P.2d 455, 267 Mont. 368 (Mont. 1994)
• Parties: , Prod.Liab.Rep. (CCH) P 14,070 Lori LUTZ, individually and as personal representative of the estate of Gerald Lutz, deceased, Plaintiff, Respondent and Cross-Appellant, v. NATIONAL CRANE CORPORATION; a Delaware corporation, Defendant, Appellant and Cross-Respondent.
• Court: Montana Supreme Court

Page 455

884 P.2d 455

267 Mont. 368, Prod.Liab.Rep. (CCH) P 14,070

Lori LUTZ, individually and as personal representative of the estate of Gerald Lutz, deceased, Plaintiff Respondent and Cross-Appellant, v. NATIONAL CRANE CORPORATION; a Delaware corporation Defendant, Appellant and Cross-Respondent.

No. 92-445.

Supreme Court of Montana.

Argued Oct. 27, 1993.

Submitted March 16, 1994.

Decided Sept. 1, 1994.

Rehearing Denied Nov. 29, 1994.

Carol M. Welch (argued), Hall & Evans, Denver, CO, Robert F. James (argued), James, Gray & McCafferty, Great Falls, for appellant.

Joe Bottomly (argued), Bottomly Law Offices, Kalispell, Monte Beck (argued), Beck Law Offices, Bozeman, for respondent.

HARRISON, Justice.

This is an appeal and cross-appeal from a jury verdict in a wrongful death/products liability lawsuit in the Eighteenth Judicial District Court, Gallatin County, Montana. The jury returned a verdict of $815,400 in favor of Gerald Lutz's estate. Lutz was killed by electrocution when the crane cable with which he was working contacted a power line. The jury apportioned 20 percent liability to Lutz and 80 percent liability to National Crane, the crane manufacturer. We affirm in part and remand in part.

Although National Crane raises eighteen issues on appeal, we consolidate and restate the issues as follows:

1. Did the District Court err by submitting the affirmative defense of misuse to the jury?

2. Did the District Court err by submitting the affirmative defense of assumption of risk to the jury?

3. Did the District Court err by allowing Lori's expert witnesses to testify?

4. Did the District Court incorrectly instruct the jury on strict liability and negligence?

5. Did the District Court err by allowing Lori Lutz to present rebuttal testimony?

6. Did the District Court err by excluding evidence relating to causation?

7. Did the District Court err by excluding evidence of OSHA and ANSI standards?

8. Did the District Court Judge err by not recusing himself or granting a mistrial based on a fee splitting arrangement with one of Lori Lutz's attorneys?

9. Did the District Court err by not granting a mistrial based on comments from the bench or on comments by Lori's counsel?

10. Did the District Court err in its evidentiary rulings relating to Lori Lutz's miscarriage and remarriage?

On April 28, 1989, Gerald Lutz (Lutz) was killed when the crane cable he was using contacted a 7,200 volt power line. Lutz, then 28, was a trained and licensed groundman with Montana Ready-Mix. At the time of the accident, Lutz and his supervisor, crane operator Jim Lees (Lees), were retrieving drilling pipe which spilled from a semi-trailer on Highway 191, outside of Bozeman.

Before lifting the pipes, Lees and Lutz discussed the task before them. They planned to extract several 40-foot pipes. Each pipe weighed between 300 and 400 pounds. Lees and Lutz were aware of overhead power lines in the area; that the crane cable with which they worked had no insulated link; and of the potential for electrocution. Lees and Lutz selected pipes that they believed could be safely removed. Because Lees did not feel they could safely remove some of the pipes which were located beneath the power lines, they placed a two-by-four board on the ground to delineate between the safe and unsafe "pick" areas. They then called in a wrecker to drag the pipe that they believed could not be safely removed.

Lutz's job entailed hooking metal chains, which were attached to the uninsulated crane cable, around the ends of the pipe and guiding the pipes to a waiting semi-trailer. Lees operated the crane.

Evidently, on the fatal pick--as the slack in the cable was eliminated--the taut cable, apparently no longer directly beneath the tip of the crane's boom, contacted the power line. The cable conducted electricity from the power line to the pipe, electrocuting Lutz.

On behalf of Lutz's estate, Lutz's widow, Lori Lutz (Lori), filed suit against National Crane, M & W Repair and Americo Trucking on March 9, 1990. M & W Repair and Americo Trucking elected to settle with Lori, leaving National Crane as the sole defendant in this action. Lori proceeded against National Crane on the theory of strict liability in tort, alleging that the crane--absent an insulated link--was defectively designed and unreasonably dangerous. National Crane raised the statutory affirmative defenses of assumption of risk and misuse.

The jury returned a $815,400 verdict in favor of Lori. That amount, however, was reduced by 20 percent, the percentage of responsibility allocated to Lutz. The $110,000 paid in settlement by other defendants was also deducted. Judgment was entered for $542,320, plus allowable costs. National Crane appealed from the verdict and judgment. Lori cross-appealed on the issues of assumption of risk and misuse, seeking to recover the jury's full determination of damages.

I--The Misuse Defense

Did the District Court err by submitting the affirmative defense of misuse to the jury?

In 1987, the Montana Legislature enacted § 27-1-719, MCA, which established misuse as an affirmative defense in products liability cases. The statute provides that the defense may be asserted if "[t]he product was unreasonably misused by the user or consumer and such misuse caused or contributed to the injury." Section 27-1-719(5)(b), MCA.

According to National Crane, two types of product misuse exist: 1) use for an improper purpose, such as using a glass bottle for a hammer; or 2) use in an improper manner, such as using a forklift on steep, rather than level, terrain. See Kavanaugh v. Kavanaugh (1982), 131 Ariz. 344, 641 P.2d 258, 262-63; Simpson v. Standard Container Co. (1987), 72 Md.App. 199, 527 A.2d 1337, 1341; see also Harper, James, Jr., and Gray (2d Ed.1986), The Law of Torts § 26.8 at 364-69.

National Crane argues that Lutz used the crane in an improper manner by sideloading, or dragging the load, from beneath the power lines. The 13-foot, 9-inch distance between the tip of the boom and the power line, National Crane asserts, provides uncontroverted proof that Lutz was sideloading. If the load had been directly beneath the boom's tip when the pick began and the cable became taut, then the cable would not have contacted the power line. Comparing the relative positions of the boom tip and the power line with the fact that the cable contacted the power line, National Crane argues, leads to one conclusion: Lutz's misuse of the crane (sideloading) was the sole cause of the accident.

The District Court prevented National Crane from introducing certain evidence in support of its misuse defense. For instance, the court restricted opinion testimony by Tom Jones, a Montana Department of Labor employee. National Crane attempted to elicit opinion testimony from Jones--who was not disclosed as an expert--as to misuse, or sideloading, of the crane. Accordingly, the court limited Jones' testimony to include only matters within his personal knowledge.

The admission of evidence rests within the sound discretion of the district court and will not be overturned absent an abuse of discretion. State v. Mayes (1992), 251 Mont. 358, 373, 825 P.2d 1196, 1205. The District Court's rulings on evidence offered in support of the defense of misuse were correct; the court did not abuse its discretion.

According to National Crane, "a manufacturer is not responsible for injuries resulting from abnormal or unintended use of his product if such use was not reasonably foreseeable." Trust Corp. of Mont. v. Piper Aircraft Corp. (D.Mont.1981), 506 F.Supp. 1093, 1097 (citing 1 Frumer and Friedman, Products Liability, § 15:01). Moreover, National Crane contends, foreseeability includes only what is objectively reasonable to expect, not everything that could conceivably occur. Winnett v. Winnett (1974), 57 Ill.2d 7, 310 N.E.2d 1, 5-6. National Crane suggests that sideloading a crane is an abnormal, rather than foreseeable, misuse.

Lori argues that Lutz's conduct did not amount to unreasonable, unforeseeable misuse. Rather, according to Lori, the evidence indicates that the crane was being used for its intended purpose: to lift large, heavy drilling pipes and place them on a flat-bed trailer. Lori contends that no evidence exists--either admitted or excluded--that the crane was intentionally misused by sideloading. To the contrary, Lori argues that Lees and Lutz knew the power lines were "live" and potentially dangerous. Lori further contends the evidence establishes that Lutz and Lees took careful steps to avoid sideloading: Lees situated the crane alongside the road, perpendicular to the power lines, and positioned the crane's boom so that the cable would fall 12 feet short of the power lines; Lees and Lutz selected the pipes which they thought could safely be removed without chancing contact with the power lines; they delineated safe from unsafe pick areas with a two-by-four board; they called in a wrecker to drag pipes which they believed could not safely be removed; and Lutz only hooked up those pipes which he and Lees had selected for removal.

At most, Lori argues, the evidence shows ordinary negligence through misperception. The record indicates that Lees or Lutz inadvertently misperceived the distance between the crane cable and the power line. The difficulty of judging the distance to power lines was borne out in eye-witness accounts, scientific articles on visual perception, and expert testimony. Visual misperception of power lines, Lori asserts, may not rise even to the level of contributory negligence, let alone misuse. See Burke v. Illinois Power Co. (1978), 57 Ill.App.3d 498, 15 Ill.Dec. 670, 373 N.E.2d 1354, 1364.

Lori contends that while unreasonable misuse is a recognized defense in Montana under § 27-1-719(5)(b), MCA, reasonably foreseeable misuse is not recognized as a defense. See Kuiper v. Goodyear Tire & Rubber Co. (1983), 207 Mont. 37, 63, 673 P.2d 1208, 1222; Trust...