Riha v. Jasper Blackburn Corp., 74-1795

• Decision Date: 11 June 1975
• Docket Number: No. 74-1795,74-1795
• Citation: 516 F.2d 840
• Parties: Dennis L. RIHA, Appellee, v. JASPER BLACKBURN CORP., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 840

516 F.2d 840

Dennis L. RIHA, Appellee, v. JASPER BLACKBURN CORP., Appellant.

No. 74-1795.

United States Court of Appeals,

Eighth Circuit.

Submitted March 13, 1975.

Decided May 19, 1975.

Rehearing Denied June 11, 1975.

J. Arthur Curtiss, Lincoln, Neb., for appellant.

Bryce Bartu, Seward, Neb., for appellee.

Before CLARK, Associate Justice, ^* and LAY and BRIGHT, Circuit Judges.

LAY, Circuit Judge.

Dennis Riha received a $460,500 jury verdict in this personal injury action against the Jasper Blackburn Corporation, a company which manufactures and markets electrical equipment. On appeal from the district court's denial of a judgment n. o. v. the defendant raises two basic issues: (1) whether the evidence was sufficient to submit the issue of strict liability to the jury, and (2) whether the trial court erred in allowing expert testimony on the projected rate of inflation and its effect on the plaintiff's future earning capacity. We affirm the judgment of liability, but find the trial court erred in allowing the jury to consider testimony concerning the rate of inflation. We order a remittitur or in the alternative a new trial.

On July 10, 1968, Riha, then 25 years old and employed as an electrician by Eschliman's Electric of David City, Nebraska, was sent by his employer to an outlying farm to install an electrical transmission line for an irrigation pump. This job required the stringing of 500 to 600 feet of aluminum wire between a meter pole (the electricity source) and the well pump. The wire had to be strung over a series of three 30-foot wooden poles and attached to a fourth pole, the meter pole, which was also 30 feet tall. Beginning with the pole nearest the pump, Riha climbed the first three poles and successfully attached the wire to each pole by means of a wedge clamp, a device used to secure wire to electrical poles. On one end, it has a clamp or wedge capable of gripping the electrical wire securely. On the other, it has a wire loop or bail which can be opened, affixed to the pole, and closed by inserting one end (the button end) in a keyhole slot on the side of the wedge. When he came to the meter pole, Riha's helper ¹ placed a 30-foot wooden extension ladder against the pole, and Riha climbed the ladder and secured the end of the electrical wire to the pole, again using a wedge clamp. He then descended to retrieve more equipment, climbed back up to the second rung from the top, turned, leaned back against the ladder and began to strip the insulation coating from the end of the wire he had just attached. Suddenly the clamp released, caught his shirt, and threw him from the ladder. He landed some 16 feet from the base of the meter pole. He suffered severe and permanent injuries, including a concussion and a broken hip.

The controversy in this case centers around the reason the wedge clamp released. Riha contends that a defect in the clamp allowed it to straighten and slip from its keyhole slot. The defendant argues that it is at least as likely that the plaintiff failed to properly seat the wire in the keyhole slot.

The plaintiff offered no specific evidence of a defect. He testified to the procedure he used to attach the clamp to the pole. He said that after securing it in the normal fashion, he tested it by vigorously shaking the guy wire supporting the pole. He also said that after being thrown to the ground, he retained consciousness and was able to observe the wedge clamp, which had landed right next to him. He noticed that the bail was straightened out, as was the short 90o bend just before the button which had been seated in the keyhole in the body of the clamp. ²

Ray Riha, the plaintiff's brother, and Art Eschliman, Riha's employer, both observed the clamp after the accident and found it to be in substantially the condition described by the plaintiff. The plaintiff's final witness, David Cooksey, the manager of financial services of ITT Blackburn Company, the successor to Jasper Blackburn Corporation, testified by sworn interrogatory that the model of wedge clamp involved was not tested after production, though quality control inspections were conducted during production.

In Kohler v. Ford Motor Co., 187 Neb. 428, 191 N.W.2d 601 (1971), Nebraska adopted the doctrine of strict liability in products cases. The Nebraska court recognized that the existence of a defect in the product can be proven by circumstantial evidence. When the sufficiency of circumstantial evidence is challenged, the test to be applied by a reviewing court is whether, viewing all the plaintiff's evidence as credible, the conclusion reached by the trier of fact was within the range of reasonable probabilities provided by the evidence. Powers v. Wong, 477 F.2d 116 (8th Cir. 1973).

In the present case, the defendant urges that it is as likely that the plaintiff did not properly seat the wire bail in the clamp as it is that the clamp gave way. However, this argument overlooks the plaintiff's testimony, to which we must give credence, that he observed and tested what he did and that he in fact properly placed the wire bail within the keyhole slot of the clamp. It also overlooks the testimony of two other witnesses that the clamp was bent and straightened out after the failure. This presented substantial evidence of a defect which the jury was entitled to believe or disregard. If this evidence is believed there exists no explanation for the failure of the clamp other than a defect, cf. Franks v. National Dairy Products Corp., 414 F.2d 682 (5th Cir. 1969), a theory defendant's experts conceded to be a "possibility." We find there was sufficient evidence to submit the case to the jury. See also Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631 (8th Cir. 1972).

We come now to the more difficult question of whether the trial court erred in permitting the testimony of an expert witness on the rate of inflation over the period of the plaintiff's projected work expectancy.

The plaintiff offered the testimony of Dr. Keith Turner, an associate professor of economics at the University of Nebraska. Dr. Turner testified to the general trend of inflation in the United States and to the possibility of its continuance. On the question of wage inflation in particular, he testified that in 1947, according to the Bureau of Labor Statistics, the average non-supervisory worker earned $45.58 a week, but that by 1972 the average had risen to $135.00 per week. He had prepared a chart showing future earnings for a 25-year-old electrician of good health with two years of high school, a life expectancy of 45.8 years and a work life expectancy of 37 years. He based his chart on the assumption that Riha would have become an electrical contractor and the standard charge of $6.50 per hour for electrical service calls during 1974 in the David City area, and the rate of average wage inflation since 1947 (4.4%). It showed a projected 1974 salary of $13,000.00. Then he testified that between 1969 and 1973, electricians in this region experienced an increase of 7% Per annum. Using this rate of increase he calculated Riha's total future earnings if he had continued as an electrician to be $1,337,000.00. He likewise predicted that based on Riha's five tax returns as a farmer (without any similar discussion of the increase in farm income) and the 4.4% Wage inflation rate applicable to non-supervisory workers, he would earn $244,901.00 as a farmer during the same period.

Plaintiff's counsel argued from this testimony that Mr. Riha would suffer a loss of income before taxes of $1,092,000.00, which commuted at 5% To a present value of $539,363.00.

The defendant challenges the admission of expert testimony on the question of inflation. The admissibility of expert testimony concerning inflation and its effect on future values is a question of first impression in this circuit. We are reluctant to interfere with the trial court's discretion in determining the necessity for and admissibility of expert opinion evidence. Nonetheless we are bound by our interpretation of the Nebraska rule on damages.

The measure of damages in Nebraska for personal injury resulting in permanent disability is that amount which will compensate the plaintiff for the diminution of his earning capacity reduced to its present value. Lake v. Southwick, 188 Neb. 533, 198 N.W.2d 319 (1972); Borcherding v. Eklund, 156 Neb. 196, 55 N.W.2d 643 (1952). The Nebraska Supreme Court has considered the place of inflationary considerations in this measure of damages. In Johnson v. Schrepf, 154 Neb. 317, 47 N.W.2d 853 (1951), it observed:

Economic condition, including the low purchasing power of money for the necessities of life, is a factor in determining the amount of a verdict. . . . The period of inflation now existing is a factor which the jury could consider in arriving at the amount of the verdict. We must assume that the jury gave consideration to this fact, as it had a right to do. (Emphasis added.)

47 N.W.2d at 858.

See also Borcherding v. Eklund, supra, 55 N.W.2d at 650-51.

Notwithstanding the fact that jurors may consider inflation as a general factor, however, the Nebraska court has held that an instruction on future inflation is improper. In Segebart v. Gregory, 160 Neb. 64, 69 N.W.2d 315 (1955), the court said:

The value of money is a representative one. It is fixed by the value of the thing or things for which it can be exchanged. Whether that value has depreciated or appreciated with reference to some other period is not material. The value of money, i. e., its purchasing power, is elemental within the knowledge and experience of men generally. It is one of the facts of life which jurors are presumed to know. (Emphasis added.) ³

69 N.W.2d at 318.

See also Shields v. County of Buffalo, 161 Neb. 34, 71 N.W.2d 701 (1955).

We believe the Nebraska Supreme Court would also prohibit direct testimony on inflation over a person's life or work expectancy. ⁴

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