Sanchez v. Galey, 15918

• Decision Date: 17 October 1986
• Docket Number: No. 15918,15918
• Citation: 733 P.2d 1234,112 Idaho 609
• Parties: Lorenzo SANCHEZ, Plaintiff/Appellant, and Cross-Respondent, v. Frank GALEY, Jr., d/b/a Bennett Creek Farms, and Rusty Anderson, Defendants/Respondents and Cross-Appellants.
• Court: Idaho Supreme Court

Page 1234

733 P.2d 1234

112 Idaho 609

Lorenzo SANCHEZ, Plaintiff/Appellant, and Cross-Respondent, v. Frank GALEY, Jr., d/b/a Bennett Creek Farms, and Rusty Anderson, Defendants/Respondents and Cross-Appellants.

No. 15918.

Supreme Court of Idaho.

Oct. 17, 1986.

On Denial of Rehearing March 4, 1987.

John Hepworth (argued) and John T. Lezamiz (argued), Twin Falls, and Jerry Goicoechea, Boise, for plaintiff/appellant and cross-respondent.

David E. Comstock, Robert M. Tyler, Jr., Donald A. Kofoed (argued), and Jeffery J. Ventrella (argued), Boise, for defendants/respondents and cross-appellants.

HUNTLEY, Justice.

This appeal arises from an action for damages filed by Lorenzo Sanchez as a result of an injury sustained while employed by Bennett Creek Farms. Sanchez had worked at Bennett Creek, owned by Frank Galey, Jr., for approximately one week before he suffered the severing of his right (dominant) hand while unclogging a potato harvester driven by Rusty Anderson, an employee of Bennett Creek.

The jury found defendants' negligence to be the sole proximate cause of Sanchez's injuries and awarded Sanchez $1,350,000 in damages. The district court denied defendants' motion for a new trial based on their contentions of unfair prejudice due to allegedly improper jury instructions, improper admission of certain testimony regarding Sanchez's economic damages, and improper denial of admission of statements made by Anderson prior to trial. However, pursuant to its interpretation of Dinneen v. Finch, 100 Idaho 620, 603 P.2d 575 (1979), the trial court ordered that Sanchez elect to either submit to a remittitur of judgment to $950,000 or to a new trial on the ground that the verdict was excessive pursuant to Dinneen, supra and I.R.C.P. 59(a)(5).

On November 6, 1982, Sanchez was working at Bennett Creek as a "clod picker." One of his duties required that he occasionally unclog the potato harvester on which he worked.

The person in charge of the farm at that time was Dick Nelson; second in command was Gary Smith. Rusty Anderson, the operator of the potato harvester had not previously operated a potato harvester. Smith gave Anderson training over a two-week period on the operation of the harvester and the attached tractor. In particular, Smith showed Anderson the chain and sprockets involved in the accident, and instructed him to disengage the power takeoff (the shaft that transfers power from the tractor to the harvester, referred to as the PTO) whenever anyone was unclogging the harvester, instructed him to remain in the tractor cab while workers unclogged the machine, and directed him to make certain everyone was clear of the machine before reengaging the PTO. This procedure was made clear by safety warning signs on the harvester.

Sanchez was unfamiliar with the equipment, neither spoke nor understood English, and so could not read or understand the English safety warnings. Anderson, who spoke no Spanish, demonstrated to Sanchez how to unclog the harvester and perform his other assignments. Anderson admitted that he fully appreciated that Sanchez and the other workers depended on him for their safety.

Four individuals witnessed the accident: Jose Louis Esquivel (a co-worker of Sanchez), Bernardo Corral (driving the truck beside the harvester), Anderson and Sanchez. In addition, Smith was close by and had observed Anderson's activities prior to the accident.

Esquivel and Sanchez testified that they had been unclogging the harvester in the manner demonstrated by Anderson for five or six days. They testified that immediately prior to the accident, the machine had clogged, Anderson had stopped and disengaged the harvester, and Anderson had directed them to descend from the top of the machine to unclog the harvester. This they proceeded to do when, after a few minutes and without warning, the machine started, severing Sanchez's hand and fingers. Corral also testified that when the harvester clogged, Anderson stopped and disengaged the harvester and then signaled him to stop the truck and signaled the workers to go underneath the machine to unclog it. Corral got out of his truck and was standing alongside the truck when the accident occurred. According to Corral's testimony, after several minutes, rather than signal Corral to position the truck before restarting, Anderson engaged the harvester without warning.

Smith testified that he had carefully observed Anderson operating the machine for two-and-one-half weeks, and had observed Anderson throughout the day of the accident, and that Anderson had always turned off the PTO as he had been instructed except on the sole occasion of the accident.

In contrast, Anderson testified that over the previous one-and-one-half to two weeks he had adopted a different, faster method for unclogging the machine. His method involved stopping the tractor with the PTO engaged, and then himself getting out of the cab and pushing with his feet to cause the digger chain to begin turning again. During this procedure, Anderson testified, he did not request the workers to come down off the harvester and that the workers had not gotten under the harvester prior to the accident. Anderson testified that he was following this procedure with the PTO engaged when the accident occurred. All of this testimony was contrary to Anderson's deposition taken three months after the accident, in which Anderson stated that he had shut off the PTO while the harvester was being unclogged, and then had reengaged it. Counsel for Sanchez used this deposition to impeach Anderson's trial testimony.

Dr. John Kloss, who had attempted the surgical replantation of the right hand and three fingers, testified regarding the extensive medical complications which occurred and the numerous medical procedures performed before trial and required in the future. Sanchez's hand remains completely nonfunctional, and perceives only slight sensation. Dr. Kloss testified as to the difficulty of right-handed persons such as Sanchez who have lost the use of that dominant hand. He testified that Sanchez had no occupational function in the hand, and recommended against Sanchez returning to manual labor.

Dr. Hurst, a psychologist, testified on psychological difficulties Sanchez was experiencing as a result of the injury.

Dr. Barry Ben-Zion, a forensic economist, testified on Sanchez's lost past and future wages. His testimony was based on an interview with Sanchez and statistics compiled by the Bureau of Labor in California and the State of Idaho. Adjusting for various economic factors, Dr. Ben-Zion calculated the present value of Sanchez's lost future earning capacity to be approximately $700,070. He cited to two U.S. government studies (prepared by the Veterans' Administration) which demonstrated that an injured worker who has lost the use of the dominant hand could expect, on average, a reduction of pre-morbidity earnings of 70%. Dr. Ben-Zion testified that since Sanchez had only the equivalent of a sixth grade education, he would probably suffer a reduction in earning capacity of greater than 70%, due to forced reliance on his physical prowess and the use of his hands. Dr. Ben-Zion also testified that the value of lost household services which Sanchez had difficulty performing was $3,000 per year. Sanchez himself also testified to the difficulties he did, indeed, have in performing various household services.

The defense sought testimony from Nelson as to a conversation he had with Anderson on the day after the accident. When Sanchez's counsel made a hearsay objection, the defense counsel argued the statement was admissible as a prior consistent statement offered to rebut a charge of recent fabrication. The court sustained the objection.

During cross-examination, defendants' expert, Dr. Blotter, testified that during his first visit he had noticed that one of the persons present had stated that "the tractor operator admits negligence in not shutting off the PTO." One of the persons present during the visit was insurance claims adjuster Sandee Hagen. The court instructed the jury that the persons present were agents of defendant Galey. Defendants' counsel unsuccessfully objected that, if indeed it was Hagen who made such a statement, she was not an agent whose statements were binding on defendant Galey.

Following the court's order of a new trial unless Sanchez accepted a $400,000 remittitur to $950,000, Sanchez filed a motion for reconsideration supported by an affidavit taken from jury foreperson, Suzette Payne. The district court denied the motion.

Sanchez appealed the remittitur as an interlocutory order to this Court, and also petitioned for writ of prohibition. The former was accepted, the latter denied, and further proceedings below were stayed pending this appeal. The defendants cross-appealed.

There are eleven issues on appeal. (1) Whether the district court was correct in its interpretation of Dinneen, supra, requiring the court to substitute its opinion on damages for that of the jury; (2) whether it was error to instruct the jury that violations of certain OSHA regulations constituted negligence per se; (3) whether there was error in stating as a matter of law, that an insurance claims adjuster was an agent of the insured for purposes of binding defendants with an admission of negligence possibly communicated by the adjuster to the defendants' expert; (4) whether it was error to deny the admission of testimony offered by defendants concerning an allegedly consistent statement of defendant Rusty Anderson, made prior to trial, and offered for the purpose of rebutting a charge of recent fabrication; (5) whether it was error to permit plaintiff's economist to testify concerning lost earnings, present and future, over the defendants' objection that the evidence lacked foundation; (6) whether it was error to permit plaintiff's economist to use Veterans' Administration and Social Security Administration disability...