Rattenborg by Rattenborg v. Montgomery Elevator Co.

• Decision Date: 26 January 1989
• Docket Number: No. 87-1672,87-1672
• Parties: Prod.Liab.Rep. (CCH) P 12,229 Traci RATTENBORG, a minor, by her father and next best friend, Charles RATTENBORG, and Charles Rattenborg and Doris Rattenborg, Individually, Plaintiffs-Appellees, v. MONTGOMERY ELEVATOR COMPANY, Defendant-Appellant.
• Court: Iowa Court of Appeals

Page 602

438 N.W.2d 602

Prod.Liab.Rep. (CCH) P 12,229

Traci RATTENBORG, a minor, by her father and next best friend, Charles RATTENBORG, and Charles Rattenborg and Doris Rattenborg, Individually, Plaintiffs-Appellees, v. MONTGOMERY ELEVATOR COMPANY, Defendant-Appellant.

No. 87-1672.

Court of Appeals of Iowa.

Jan. 26, 1989.

As corrected Feb. 9, 1989.

Ross H. Sidney and John Werner, of Grefe & Sidney, Des Moines, for defendant-appellant.

Roland D. Peddicord, of Peddicord, Wharton, Thune, Foxhoven & Spencer, Des Moines, and Clifford J. Shoemaker, Vienna, Va., for plaintiffs-appellees.

Heard by SCHLEGEL, P.J., and SACKETT and HABHAB, JJ.

SACKETT, Judge.

We address a series of errors raised by defendant following a jury trial and verdict for plaintiffs for damages plaintiffs claimed as a result of an allegedly defective escalator manufactured by defendant.

Defendant-appellant, Montgomery Elevator Company, manufactured an escalator installed at Merle Hay Mall in Des Moines, Iowa. On June 25, 1985, plaintiff-appellee, Traci Rattenborg, then sixteen years old, was injured in attempting to catch her shoe after it became stuck in the escalator. Plaintiffs Traci and her parents Charles and Doris Rattenborg sued Montgomery Elevator and Merle Hay Mall alleging their actions were a proximate cause of Traci's injuries and damages. Plaintiffs settled with Merle Hay Mall seventy-two hours before trial and Merle Hay Mall was dismissed as a defendant. ¹ Montgomery then moved for a continuance. The continuance was not granted.

The case against Montgomery was tried to a jury and a verdict was returned finding defendant Montgomery one hundred percent liable for Traci's injuries and assessing damages of $505,109 ² for plaintiff Traci Rattenborg and $65,385 ³ for her parents. Defendant has appealed.

I.

Defendant first contends the trial court abused its discretion in not granting its motion for continuance. Defendant relies on four grounds which it says collectively show the trial court abused its discretion in not granting the motion, namely: (1) Merle Hay Mall, a codefendant, settled shortly before trial, (2) a motion in limine was not ruled on before trial, (3) Traci had elective surgery prior to trial that was not healed at time of trial, and (4) the defendant learned just before trial the escalator had been changed despite an earlier order allowing the jury to view the escalator.

The rule is a continuance may be allowed for any cause not growing out of the fault or negligence of the applicant which satisfies the court that substantial justice will be more nearly obtained by continuing the trial. See Iowa R.Civ.P. 183(a). A ruling on a motion for continuance rests in the sound discretion of the trial court. Countryman v. McMains, 381 N.W.2d 638, 640 (Iowa 1986); Michael v. Harrison County Rural Electric Cooperative, 292 N.W.2d 417, 419 (Iowa 1980). A district court's ruling on such matters is presumptively correct, and a party challenging the ruling has a heavy burden to overcome the presumption. Id.

The question is could defendant have prepared for the events it now claims justify its position. See Countryman, 381 N.W.2d at 640.

This case was filed in November 1985 against defendant Montgomery and Merle Hay Mall, a limited partnership and the general partners individually. A cross-claim was filed by Merle Hay against defendant Montgomery Elevator Co., on December 18, 1986. Extensive discovery by all parties was pursued.

In addressing defendant's contention the trial court abused its discretion in not continuing the trial, we first look at settlement by the former codefendant Merle Hay Mall. Defendant claims because of this settlement there were significant changes in the pleading and parties prior to trial. Basically, Merle Hay settled and was not a party at trial. The jury was instructed Merle Hay had settled and was given an interrogatory directing them to determine what if any percentage of fault for the accident should be attributable to Merle Hay.

Defendant cites no authority to support a holding the trial court abused its discretion in not continuing under these circumstances. The trial court did not abuse its discretion in not continuing the case because Merle Hay had settled with plaintiffs prior to trial.

Defendant next complains Judge Perkins failed to rule on a motion in limine when it was submitted. The motion sought to prevent plaintiffs from introducing evidence of two subsequent accidents involving the escalator. Defendant contends because of the trial court's failure to rule they could not prepare for trial and should have had a continuance. Just before trial Judge Van Wifvat was substituted for Judge Perkins. Perkins was originally scheduled to try the case and the motion in limine had been argued to him. Judge Wifvat allowed the evidence to come in at trial.

In arguing the motion for continuance, defendant's attorney John Werner responded to plaintiff's attorney's statement Perkins had overruled the motion in limine and would rule on admissibility when evidence was offered. In response, Werner said:

* * * he (reference to Judge Perkins) listened to counsel's argument and indicated his inclination to overrule my motion. He told me he was going to read the cases cited * * * I agree with counsel that he expressed an inclination, that was all.

Defendant admittedly had an indication its motion would not be sustained. Defendant now claims it was forced to go to trial wondering what accidents to defend against and was "put in the untenable position of not knowing if it was defending one accident or three." We find no basis for this argument.

Traci had corrective surgery before trial. She had not healed at trial time. Defendant contends because plaintiff's surgery and tenderness were not the final result, it should have had a continuance. Again defendant cites no authority supporting the granting of a continuance on these grounds. We find none. Apparently defendant's position is plaintiffs should only go before juries with well-healed injuries. All the facts surrounding the surgery were in evidence. The jury was advised the surgery wounds would heal. The surgery was necessitated by the accident. There is no basis for defendant's position the jury should only see well-healed injuries.

Defendant's fourth contention is it should have a continuance because the jury did not view the premises. Defendant had an order for a jury viewing of the escalator. There was no order preventing the escalator from being changed. After Merle Hay settled, Merle Hay modified the escalator allegedly to make it safer. Defendant's attorney Ross Sidney, speaking on motion for continuance said there should be a view by the jury with the escalator operating as it was previously without the change. He said it would take one-half hour to change the escalator to its prechange condition. Assuming defendant had a right to have a viewing with the escalator changed, there is no showing the change could not be made by the scheduled trial date. There was no request for an order directing the change be made. There was no showing a change could be made for a later trial date but not for the current trial date.

We consider defendant's contentions singularly and collectively. We find no abuse of discretion in the trial court's failure to grant the requested continuance.

II.

Defendant next contends it was error to admit evidence of two subsequent accidents involving the escalator that injured Traci. In March 1987 a fourteen-year-old girl wearing soft latex high-top tennis shoes got the rubber "bumper-guard" of her shoe caught in a comb plate on the left ⁴ side of the escalator step. The girl pulled her foot free and did not attempt to retrieve her shoe. In August 1987 a teenager got her sneaker caught on the left side of the escalator. Her toe was pinched between two leveling plates ahead of the comb plate. The escalator continued to run and did not shut down in either instance.

Admissibility of evidence of other accidents may be admissible to prove the existence of a particular physical condition, situation or defect. See § 200 McCormick, Other Accidents and Injuries. Evidence of similar accidents is admissible in strict liability actions. Eickelberg v. Deere & Co., 276 N.W.2d 442, 445 (Iowa 1979). There must be substantial similarity. McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir.1981). Evidence of subsequent accidents may be considered pertinent in determining whether or not the product was hazardous. See Ginnis v. Mapes Hotel Corporation, 86 Nev. 408, 470 P.2d 135, 139 (1970). The requirement of substantial similarity between the other accidents and the one at issue has been characterized as a matter of relevance to be decided in the discretion of the trial judge. See Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 783 (Kentucky 1984). Exactly identical circumstances cannot be realized and are not required. See Jones & Laughlin Steel Corp. v. Matherne, 348 F.2d 394, 400-01 (5th Cir.1965). Where defendant has ample opportunity to show differences by cross-examination or by its own witnesses, the differences may go to the weight rather than the admissibility of the evidence. Id.

The Iowa court has also recognized the admissibility of evidence of the absence of accidents at the same place or with the same instrumentality under substantially similar circumstances as probative of the absence of danger or lack of knowledge of the danger by the defending party. See Schuller v. Hy-Vee Food Stores, 328 N.W.2d 328, 330 (Iowa 1982); Wiedenfeld v. Chicago & North Western Transportation Co., 252 N.W.2d 691, 700 (Iowa 1977); Nelson v. Langstrom, 252 Iowa 965, 970, 108 N.W.2d 58, 61 (1961).

Plaintiff argued the escalator was defective because of the failure of a comb plate safety device to automatically shut the escalator down where an object, such as a shoe, became lodged. In this case Traci's shoe was lodged in the escalator...