Nichols v. Westfield Industries, Ltd.
| Decision Date | 13 November 1985 |
| Docket Number | No. 84-1417,84-1417 |
| Citation | 380 N.W.2d 392 |
| Parties | Prod.Liab.Rep. (CCH) P 10,858 John E. NICHOLS, Jr., Appellee, v. WESTFIELD INDUSTRIES, LTD., Van Zetten Implement Co., and Greg Guiter, Appellants. |
| Court | Iowa Supreme Court |
Michael H. Figenshaw, Marsha K. Ternus, and Lawrence P. McLellan of Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellant Westfield Industries, Ltd.
Richard C. Bauerle of Johnson, Bauerle, Hester & Walter, Ottumwa, for appellant Van Zetten Implement Co.
Timothy J. McKay and John N. Moreland of McKay & Moreland, P.C., Ottumwa, for appellant Greg Guiter.
Garold F. Heslinga and David D. Dixon of Heslinga, Heslinga & Dixon, Oskaloosa, for appellee.
Considered en banc.
Defendants appeal from judgment for plaintiff in a personal injury action alleging theories of strict liability and negligence. All defendants assert on appeal that they were entitled to directed verdicts following trial. Defendants Van Zetten Implement Company and Greg Guiter also claim that the trial court erred in instructions to the jury. We affirm in part and reverse in part.
Plaintiff sustained injuries, including partial amputation of his foot, while unloading grain for his employer, Chillicothe Grain & Livestock Company, on June 16, 1980. He was using a fifty-one foot long auger to transfer corn from a steel bin to a wagon. He slipped from a ledge above the auger, and the resulting fall plunged his foot between the protective bars surrounding the auger and into the revolving auger bit. Defendant Westfield Industries, Ltd. manufactured the grain auger involved in plaintiff's accident in 1974. It was equipped with a removable mesh safety shield. The diameter of the auger was approximately seven inches, and it fit within an eight-inch sleeve. When the shield is not attached, the auger is encased within a framework of metal bars spaced approximately three and one-third inches apart. When the safety shield is attached, it keeps persons and objects at a somewhat greater distance from the auger bit than the protective bars. It serves to superimpose a grid framework over the protective bars with openings approximately two and three quarters inches by three inches. The photographs shown below were used in evidence at the trial and depict the auger as it appears both with and without the safety shield.
Defendant Van Zetten Implement Company, a Westfield dealer, sold the auger to defendant Greg Guiter, a farmer, in September of 1974. At the time of a 1975 design change to a safety shield which is welded in place, Westfield instituted a recall program involving, first, contacting its dealers to obtain names of purchasers of pre-1975 augers and, second, contacting those purchasers in order to offer a safety package designed to bring the auger up to 1975 standards.
Westfield wrote Van Zetten on two occasions requesting the names and addresses of persons who had purchased augers. Van Zetten forwarded the name of only one customer who was not Guiter, although Guiter's name was in Van Zetten's files as a purchaser of a Westfield auger. Guiter never learned of the recall program.
Guiter's auger was damaged by a grain truck in a manner causing the detachable shield to come off. He never replaced the shield and later sold the auger in 1979 to the employer of plaintiff John E. Nichols, Jr. without the shield and without informing the buyer that the machine had been originally sold with a safety shield attached.
Plaintiff's action at law was submitted to the jury on theories of both strict liability and negligence as to defendants Westfield and Van Zetten, and on negligence only as to defendant Guiter. Instruction No. 22 related to the defense of assumption of risk. It provided as follows:
You will first consider this affirmative defense before considering any other claim in this case. If the defendants have established by a preponderance of the evidence (1) that John E. Nichols, Jr., knew of the defect and was aware of the danger associated with using the auger without a shield and (2) that he nevertheless voluntarily and unreasonably proceeded to place himself in a position of hazard or risk related to his use of the auger, then your verdict should be for the defendants. If the defendants fail to establish one or both of the foregoing propositions, then you should proceed to consider whether or not plaintiff is entitled to recover in accordance with other instructions given to you herein.
The jury returned a special verdict stating that defendants Westfield and Van Zetten had established the defense of assumption of the risk as defined in Instruction No. 22.
As a result of the special verdict no recovery was permitted on the strict liability claims. On the negligence claims the jury found negligence on the part of all three defendants and assessed causal negligence as follows: plaintiff--60%; Westfield--15%; Van Zetten--15%; Guiter--10%. Damages were assessed at $500,000 and, based on plaintiff's proportionate negligence, judgment was entered against defendants jointly and severally in the amount of $200,000.
The issues which we consider on appeal are the following: (1) whether the court erred in submitting a negligence claim against Van Zetten based on improper design; (2) whether Van Zetten was entitled to a directed verdict; (3) whether the jury's finding on assumption of risk provides a defense to the negligence claims against defendants; (4) whether Guiter was entitled to a directed verdict; (5) whether the court erred in submitting negligence claims against Guiter based on alteration of the auger and failure to warn; and (6) whether legal errors against defendants who are successful on appeal, and which might alter the allocation of causal negligence among the parties, requires a retrial of the claims against another defendant whose arguments on appeal are otherwise unsuccessful. We consider these issues separately. Other facts which are significant in the case will be considered in our discussion of the legal issues which are presented.
In instructing the jury the trial court submitted a specification of negligence for improper design against both the manufacturer Westfield and the dealer Van Zetten. The jury was advised the plaintiff claimed that both were negligent "[i]n failing to properly design the auger intake so as to protect against foreseeable risk of limbs becoming entangled therein during normal use and operation." The jury was asked to determine these claims against both the manufacturer and dealer based on a standard of ordinary care of a reasonably prudent person under the same circumstances. Van Zetten excepted to the instructions permitting the jury to find it negligent for improper design on the ground that such claim was, under applicable law, without support in the evidence. He urges that the giving of such instructions was reversible error.
In Wagner v. Larson, 257 Iowa 1202, 1223-24, 136 N.W.2d 312, 325 (1965), we gave tacit approval to the following commentary on design negligence:
Design negligence is particularly an area in which it seems difficult ordinarily to find any logical basis for imposing liability upon the retailer in negligence because design certainly in most instances involves questions of specialized knowledge which the retailer cannot be expected to have.
L. Frumer & M. Friedman, Products Liability § 18.04 (1960 ed.). We find that the record in the present case is devoid of any evidence from which the design of the auger, if faulty, can be attributed to the dealer Van Zetten. We need not consider whether it might have been proper to submit a negligence claim phrased in terms of the dealer's failure to discover the dangers which the auger, as designed, presented. Clearly the jury should not have been permitted, as it was, to find Van Zetten negligent for directly participating in the design of the auger. This was clearly beyond the sphere of the dealer's involvement as shown by the evidence.
Where, as here, the forms of verdict do not reveal the basis on which the jury finds a defendant to be negligent, the submission of a specification which is without support in the evidence requires reversal. Childers v. McGee, 306 N.W.2d 778, 780 (Iowa 1981).
In addition to its claim that there is no evidentiary support that it negligently designed the auger, Van Zetten contends that all other specifications of negligence against it which were submitted to the jury lacked evidentiary support. Based on this contention it argues that the trial court erred in not granting its motion for directed verdict at the close of the evidence. We disagree with this contention.
One of the theories under which the claim against Van Zetten was submitted to the jury involved alleged negligence "in failing to take reasonable steps to correct the mesh shield as a part of a factory recall program." Exhibits admitted without objection by Van Zetten included two letters to it from Westfield.
The first letter advises that:
You may have noted that grain augers have changed considerably over the past few years, especially in the area of safety shielding. This is due largely to groups such as OSHA, ASAE, and FIEI who have conducted studies relating to safety practices on the farm. We have ... incorporated their recommended safety shields into our grain augers.
....
It seems that now when an end user receives injuries on a grain auger, they will immediately sue anyone connected with the manufacture, sale, or assembly of said auger. It does not matter that the auger involved may be an older machine manufactured prior to the date when safety shielding was adopted by the industry as a whole.
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