Mather v. Caterpillar Tractor Corp.

• Decision Date: 03 April 1975
• Docket Number: No. 2,CA-CIV,2
• Citation: 533 P.2d 717,23 Ariz.App. 409
• Parties: Barbara MATHER, surviving spouse of Robert L. Mather, Deceased, Individually, and on behalf of the surviving children, Robert Mather, Jr., and Sandra Mather, Appellant, v. CATERPILLAR TRACTOR CORPORATION, a Foreign Corporation, and Empire Machinery Corporation, an Arizona Corporation, Appellees. 1757.
• Court: Arizona Court of Appeals

Page 717

533 P.2d 717

23 Ariz.App. 409

Barbara MATHER, surviving spouse of Robert L. Mather, Deceased, Individually, and on behalf of the surviving children, Robert Mather, Jr., and Sandra Mather, Appellant, v. CATERPILLAR TRACTOR CORPORATION, a Foreign Corporation, and Empire Machinery Corporation, an Arizona Corporation, Appellees.

No. 2 CA-CIV 1757.

Court of Appeals of Arizona, Division 2.

April 3, 1975.

Rehearing Denied May 7, 1975.

Messing, Franklin & Feulner, P.C. by William Messing and George J. Feulner, Jr., Tucson, for appellant

Murphy, Vinson & Hazlett by John U. Vinson, Tucson, for Caterpillar Tractor Corp.

Chandler, Tullar, Udall & Richmond by David Burr Udall, Tucson, for Empire Machinery.

OPINION

HOWARD, Chief Judge.

Appellant filed this wrongful death action based on negligence and strict tort liability. She appealed from a judgment entered on a jury verdict in appellees' favor. Robert Mather, while in the employ of Anaconda Mining Company, was killed when a caterpillar tractor he was driving rolled over and crushed him. Appellant sued the manufacturer of the tractor, Caterpillar Tractor Corporation (Caterpillar) and Empire Machinery Corporation (Empire), the dealer which sold the tractor to Anaconda Mining Company. The Industrial Cab Company, manufacturer of the all-weather protection cab which was installed on the tractor by Empire, was brought into the case as a third party defendant by Empire. The third party complaint was severed from the rest of the case and its determination has been held in abeyance pending the outcome of this appeal.

Appellant's theories of liability on negligence were that the appellees were negligent in failing to design roll-over protection for the tractor and in failing to warn of the defective design. Strict liability was premised on the contention that the tractor was in a defective condition unreasonably dangerous to the user because of improper design and because of failure to warn of the design defect.

After both sides had rested, the court granted appellees' motion for a directed verdict against appellant on the negligence issues on the ground that since the court was going to submit the case to the jury on the basis of strict liability, the negligence count was superfluous and would tend to confuse the jurors.

Appellant claims the following errors require reversal: (1) directing a defense verdict on the negligence issue; (2) giving Caterpillar's Instructions Nos. 7 and 16; (3) ordering appellant's attorney not to mention 'aggravating circumstances' during rebuttal argument to the jury; (4) 'fundamental error' in appellees' closing statements.

In her brief appellant's arguments as to the directed verdict and 'fundamental error' in closing arguments are intertwined. Although negligence was no longer an issue, appellant claims that appellees argued negligence to the jury. The portion of the transcript cited to us demonstrates that appellees did indeed in their argument refer to matters which were irrelevant in a strict liability case and, further, misquoted the court's instructions. Appellant did not object to the arguments and having failed to do so is precluded from claiming error on appeal. The court instructed the jury on the legal issues involved and no 'fundamental error' was present.

Appellant claims that since negligence and strict liability are 'as different as night and day' she was prejudiced by not having the negligence issue also submitted to the jury. We do not agree.

Appellant's underlying theories as to both negligence and strict liability were the same, to-wit, defective design and failure to warn of the defective design. In both instances appellant had to prove that the tractor was in a defective condition and unreasonably dangerous. In order to prove a defective design under the theory of strict liability it was necessary to prove that the injury occurred while the product was being used in a way it was intended to be used, as a result of a defect in design of which the injured person was not aware, that made the product unfit for its intended use. Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962). Under the negligence theory a 'design defect' arises when the manufacturer has failed to use reasonable care to design its products so as to make it safe for intended uses. Restatement (Second) of Torts § 395 (1965).

The difference between the two theories of liability in a defective design case is that under strict liability the manufacturer can be held liable despite its best efforts to make or design a safe product. Lunt v. Brady Manufacturing Corp., 13 Ariz.App. 305, 475 P.2d 964 (1970); Wagner v. Coronet Hotel, 10 Ariz.App. 296, 458 P.2d 390 (1969). Furthermore, in a strict liability case, contributory negligence of the...