Schweich v. Ziegler, Inc.

• Decision Date: 30 November 1990
• Docket Number: Nos. CX-89-2124,CX-90-430,s. CX-89-2124
• Parties: , Prod.Liab.Rep. (CCH) P 12,656 Lawrence SCHWEICH, et al., Appellants, and Minnesota Assigned Risk Plan, through Employee Benefit Administration, Intervenor, Respondent, v. ZIEGLER, INC., Defendant and Third-Party Plaintiff, Appellant, Gibbs-Cook Equipment Co., Caterpillar, Inc., Defendants and Third-Party Plaintiffs, Respondents, v. LAWRENCE SCHWEICH HOME BUILDERS, INC., Third-Party Defendant, Respondent.
• Court: Minnesota Supreme Court

Page 722

463 N.W.2d 722

59 USLW 2404, Prod.Liab.Rep. (CCH) P 12,656

Lawrence SCHWEICH, et al., Appellants,

and

Minnesota Assigned Risk Plan, through Employee Benefit

Administration, Intervenor, Respondent, v. ZIEGLER, INC., Defendant and Third-Party Plaintiff, Appellant, Gibbs-Cook Equipment Co., Caterpillar, Inc., Defendants and Third-Party Plaintiffs, Respondents, v. LAWRENCE SCHWEICH HOME BUILDERS, INC., Third-Party

Defendant, Respondent.

Nos. CX-89-2124, CX-90-430.

Supreme Court of Minnesota.

Nov. 30, 1990.

Rehearing Denied Feb. 15, 1991.

Syllabus by the Court

1. The evidence was sufficient to support a finding that defendants waived the right to a jury trial.

2. Where circumstantial evidence preponderates against other theories of causation, the evidence is sufficient to uphold the trial court's finding of negligence.

3. The trial court did not abuse its discretion in refusing to grant a new trial based on post-trial surveillance videotapes where the evidence was merely cumulative and impeaching.

4. A statute limiting recovery of loss of consortium damages does not violate the "certain remedy" clause of the Minnesota Constitution.

5. Intervention in an action between others renders the intervenor liable for taxation of costs.

Eric J. Magnuson, Amy K. Adams, Rider, Bennett, Egan & Arundel, Jay T. Hartman, Kevin L. Stephenson, Gilmore, Aafedt, Forde, Anderson & Gray, P.A., Minneapolis, for appellants.

Harry A. Sieben, Sieben, Grose, Von Holtum, McCoy & Carey, Ltd., Paul C. Peterson, Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, Wayne D. Tritbough, Chadwick, Johnson & Condon, P.A., Edina, G. Alan Cunningham, Linda S. Svitak, Faegre & Benson, Minneapolis, for respondents.

Heard, considered, and decided by the court en banc.

POPOVICH, Chief Justice.

This case rises from an action for damages for injuries suffered by plaintiffs Lawrence and Bonita Schweich after Lawrence Schweich fell while attempting to mount a D6H Caterpillar tractor. Seeking compensatory and loss of consortium damages, Schweichs commenced a products liability action in Scott County District Court against the sellers, defendant/appellant Ziegler, Inc. (Ziegler) and defendant Gibbs-Cook, Inc. (Gibbs-Cook), and the manufacturer, defendant Caterpillar, Inc. (Caterpillar). The trial court found Ziegler was negligent and breached express and implied warranties. On appeal are issues regarding (a) the demand for a jury trial, (b) sufficiency of the evidence, (c) "newly discovered" evidence of the injured plaintiff's physical abilities, (d) constitutionality of Minn.Stat. § 549.23 (1988), and (e) the allocation of the tort recovery award between the injured plaintiff and the subrogated employer. We affirm in part and reverse in part, remanding for the allocation under Minn.Stat. § 176.061, subd. 6 (1990).

I.

At approximately 6:15 a.m. on May 29, 1987, Lawrence Schweich was seriously injured when he fell while ascending a new Caterpillar D6H tractor. The fall was caused when the rear bolt of the grab handle used by Schweich came loose, causing Schweich to fall backwards to the ground. Lawrence Schweich was employed by Lawrence Schweich Home Builders, Inc. (LSHB), a corporation engaged in the excavation and home construction business. Schweich recalls ascending the D6H tractor, but remembers nothing of his fall or its cause.

The D6H tractor was manufactured by Caterpillar at its Davenport plant in 1987. The D6H is a bulldozer-type machine operating on movable tracks. The cab of the D6H is accessible from either side through two doors. The D6H has grab handles attached to a fender located above the machine's tracks. The grab handle, which is roughly one foot wide, is secured to the fender by two bolts and washers. The offending grab handle was located on the right side of the D6H.

Before it was sold to LSHB, the D6H was shipped by Caterpillar to Las Vegas for exhibition. Caterpillar employees prepared the D6H for display, using and viewing the right grab handle. The D6H returned following the exhibition in April of 1987 to Gibbs-Cook in Des Moines. Between April 10 and May 27, 1987, Gibbs-Cook installed different tracks, a bulldozer attachment, heavy-duty batteries, and performed touch-up painting. On May 27, 1987, Gibbs-Cook delivered the D6H to Ziegler in Bloomington, Minnesota for sale to LSHB.

Several Ziegler employees inspected and examined the D6H upon arrival on May 27, 1987. None of the employees observed a loose right fender grab handle. The day foreman, Steve Geiser, ordered touch-up painting to be done on the trunnion areas, an area roughly equivalent to the hubcap area on a car. A final inspection of the D6H was performed between 4:00 and 5:30 p.m. on May 27th. This inspection required use of the right grab handle at least four times, and Ziegler employee Tim Cebulla testified the grab handle was tight when he performed the final inspection. There was no evidence of anyone having contact with the D6H after the final inspection until the following afternoon when LSHB employee Jamie Hennen picked up the D6H. Furthermore, there is no evidence of anyone having contact with the right grab handle after the final inspection until the handle came loose in Schweich's hands. Expert testimony revealed the rear grab handle bolt had, at one time, been properly torqued. Dr. Stuart Ross, a metallurgist, testified the grab handle had been repainted while the bolts were loose, and it was his opinion that the bolt loosened during transportation. Ross also testified the repainting could have occurred either before or after the accident.

Around 3:30 p.m. on May 28, 1987, Jamie Hennen, an employee of LSHB, picked up the D6H from the Ziegler dealership and delivered it to LSHB in Prior Lake, Minnesota. When he arrived at LSHB, Jamie Hennen unloaded the D6H and drove it approximately 25 feet. Subsequently, Jamie's cousin, Victor Hennen, moved the D6H approximately 75 feet to the fuel tanks. Both men examined the tractor, checking fluid levels and untaping the exhaust stack. Although they both mounted and operated the D6H tractor at least twice, neither Jamie or Victor Hennen did so by way of the right side of the tractor. The D6H remained parked in the yard at LSHB until the next morning, May 29, 1987, when Lawrence Schweich directed the loading of the D6H onto a low-boy trailer. Victor Hennen operated the D6H as Lawrence Schweich directed the placement of the tractor from the ground. Lawrence Schweich then approached, ascending the right side of the D6H as it sat on the trailer. As Schweich grasped the right fender grab handle, the rear bolt of the handle came free, causing Lawrence Schweich to fall backwards. Victor Hennen witnessed Lawrence Schweich approach the right side of the tractor and heard Schweich shout as he fell backwards. Emergency personnel arriving on the scene observed the grab handle dangling from one bolt. The other grab handle bolt was found resting on the tractor tread.

Lawrence Schweich was hospitalized for eight days following his fall. Dr. John Berg, Schweich's regular physician, did not notice any memory or concentration difficulties in fourteen post-accident visits until December of 1987, when Schweich complained of memory and concentration problems. Experts diagnosed Lawrence Schweich as suffering from an organic brain injury, a torn right rotator cuff, and deep vein thrombophlebitis resulting from the fall. Testimony regarding Schweich's condition revealed he suffered from a litany of injuries and medical problems, including serious carbon monoxide poisoning nine months before the fall. Describing Lawrence Schweich as "an encyclopedia of medical problems," defendants' experts disputed claims of brain injury, contending Schweich was not permanently disabled, that his problems were psychological and caused by carbon monoxide poisoning, not by the fall. Lawrence Schweich had been listed as partially or totally disabled a number of times on insurance forms.

In February of 1988, Lawrence and Bonita Schweich sued Caterpillar, Gibbs-Cook and Ziegler alleging strict liability and negligence in design, manufacture, maintenance, and inspection as well as breach of implied and express warranties. The Schweichs claimed Lawrence Schweich suffered an organic brain injury from the fall and is permanently disabled. In October of 1988, Schweichs filed a note of issue demanding a court trial. The Scott County Court Administrator mailed a trial notice, designating a court trial, and pre-trial questionnaires to each of the parties in December of 1988. Caterpillar, Gibbs-Cook and Ziegler returned their pre-trial questionnaires marked with the "Jury Trial" designation. None, however, filed a note of issue. Just prior to trial, Minnesota Assigned Risk Plan (MARP) intervened, asserting a subrogation interest for workers' compensation benefits paid to Lawrence Schweich on behalf of LSHB.

When the case was called for trial on June 20, 1989, Ziegler, Gibbs-Cook and Caterpillar demanded a jury trial. Counsel for the Schweichs had anticipated this demand, arriving that morning with a memorandum of law on the issue. The trial court ruled the demand for a jury trial was untimely under Minn.Stat. § 487.23, subd. 3 (1990), and proceeded to try the case. After a lengthy trial with considerable evidence concerning the cause of the accident and the extent of injuries suffered, the trial court found the grab handle loosened during repainting performed by Ziegler and that Ziegler alone was negligent. The trial court awarded Lawrence Schweich damages of $2,945,056.30 for past and future suffering, lost income, and medical expenses. Bonita Schweich was awarded damages of $680,200.00 for lost consortium.

In its motion for new trial, Ziegler offered videotaped post-trial surveillance of Lawrence Schweich as "newly discovered evidence." The videotapes show Lawrence Schweich walking, purchasing a car, visiting an auction,...