Trione v. Mike Wallen Standard, Inc., 93CA0973

• Citation: 902 P.2d 454
• Decision Date: 26 January 1995
• Docket Number: No. 93CA0973,93CA0973
• Parties: James E. TRIONE and Marilyn Trione, Plaintiffs-Appellants and Cross-Appellees, v. MIKE WALLEN STANDARD, INC., a Colorado corporation, James Bradley, Defendants-Appellees and Cross-Appellants, and Dover Corporation, a Delaware corporation, Defendant-Appellee. . IV
• Court: Colorado Court of Appeals

Page 454

902 P.2d 454

James E. TRIONE and Marilyn Trione, Plaintiffs-Appellants and Cross-Appellees, v. MIKE WALLEN STANDARD, INC., a Colorado corporation, James

Bradley, Defendants-Appellees and Cross-Appellants,

and

Dover Corporation, a Delaware corporation, Defendant-Appellee.

No. 93CA0973.

Colorado Court of Appeals,

Div. IV.

Jan. 26, 1995.

Rehearing Denied March 23, 1995.

Certiorari Denied Sept. 5, 1995.

Schaden, Lampert & Lampert, Brian J. Lampert, Susanna Meissner-Cutler, Denver, for plaintiffs-appellants and cross-appellees.

Bayer, Carey & McGee, P.C., Gary L. Palumbo, Terry L. Lutts, Denver, for defendants-appellees and cross-appellants Mike Wallen Standard, Inc., and James Bradley.

The Mellon Law Firm, Joseph J. Mellon, Denver, for defendant-appellee Dover Corp.

Opinion by Judge ROTHENBERG.

Plaintiffs, Jim and Marilyn Trione, appeal from the judgment entered upon a jury verdict in favor of defendants, Mike Wallen Standard, Inc. (Standard), James Bradley, and Dover Corporation. We reverse and remand for a new trial.

In July 1986, defendant Bradley, an employee of defendant Standard, was driving a tow truck and towing a car to which he had attached an SW-33 steering wheel locking device. The locking device was designed, manufactured, and distributed by defendant Dover and secured the steering wheel of the towed vehicle to keep it from swaying from side to side, as it was towed from the rear.

Bradley was driving west. Plaintiffs were driving east on the same highway towards Bradley. As plaintiffs' vehicle approached Bradley's tow truck, the towed car swung into plaintiffs' lane of traffic, and the towed car hit plaintiffs' vehicle. Plaintiffs suffered severe damages.

Plaintiffs filed a complaint against Bradley and Standard, seeking damages for negligence. As part of their response and pursuant to § 13-21-111.5(3)(b), C.R.S. (1994 Cum.Supp.), Bradley and Standard designated Dover as a non-party tortfeasor.

In their designation, Bradley and Standard claimed that: (1) Bradley had attached the steering wheel locking device to the towed vehicle in the exact manner described in Dover's instructions for installation; (2) the device nevertheless came loose, allowing the towed vehicle to cross into plaintiffs' lane of traffic; and (3) the locking device was defective and unreasonably dangerous because it was not accompanied by adequate instructions and warnings.

Plaintiffs, Bradley, and Standard then stipulated to the filing of an amended complaint, making Dover a defendant and adding claims of negligence and strict products liability against Dover.

At trial, the jury returned a verdict in favor of all defendants.

Plaintiffs filed a motion for new trial on several grounds. The trial court granted the motion on the ground that it had erred in giving a modified res ipsa loquitur instruction which prevented the jury from arriving at a fair verdict.

Dover then filed a motion for relief from the order for new trial, contending that the erroneous instruction applied only to Bradley and Standard. Approximately two years after the court had ordered the new trial as to all parties, it reversed itself and granted Dover's motion. The court found that: the erroneous instruction was never intended to and specifically did not implicate Dover; the jury had returned a special verdict finding Dover was not negligent or at fault; and on retrial the issue of whether Bradley was negligent was distinct and separate from the issue of the liability of Dover.

The trial court also concluded that the jury had been properly instructed on the issues of Dover's negligence and whether the product was defective, and that the jury had resolved these issues. Accordingly, the court determined that its order for new trial applied only to Standard and Bradley and that the previous jury verdict finding no negligence on the part of Dover was res judicata for purposes of the new trial.

Before the second trial, plaintiffs filed a motion in limine asking the court, inter alia, to: (1) instruct Bradley and Standard's counsel not to argue, infer, or blame the accident on the negligence, defective design, or failure to warn concerning the use and operation of the Dover product because that issue had been resolved by the jury verdict; and (2) preclude defendants Bradley and Standard from calling two tow truck drivers as experts to testify as to their experiences with, and previous failures of the Dover product, based on a lack of foundation showing any similarity between the experiences of the two witnesses and the facts of this case.

The trial court granted the motion as to the first issue. However, at the second trial, over plaintiffs' objection, the court permitted the defense to introduce certain evidence suggesting previous failures of the steering wheel device. The trial court deferred ruling on the second issue involving the tow truck drivers, but then permitted the drivers to testify as experts about their experience with Dover's product.

At the second trial, the only issue before the jury was whether Bradley and his employer, Standard, were negligent. The jury returned a verdict in favor of defendants Bradley and Standard.

I. Order Granting New Trial

Two separate issues arise regarding the trial court's order granting a new trial. Defendants Standard and Bradley, in their cross-appeal, assert that the trial court erred in granting a new trial at all. Plaintiffs contend that the court erred in granting the motion for new trial only as to Bradley and Standard. We agree with plaintiffs that a new trial should have been ordered as to all defendants.

The granting of a new trial is within the sound discretion of the trial court and its ruling will not be disturbed in the absence of a clear showing of an abuse of discretion. See Aspen Skiing Co. v. Peer, 804 P.2d 166 (Colo.1991). Also, the trial court may grant a motion for new trial on all or part of the issues. C.R.C.P. 59(a)(1).

At the first trial, the court instructed the jury as follows:

In determining whether or not the defendant, James Bradley, was negligent, if you find that the plaintiff, James Trione, or Marilyn Trione, incurred injuries caused by the SW33 Steering Wheel Lock, which was in the exclusive control of the defendant James Bradley, and that such injuries probably would not have been caused by the SW33 Steering Wheel Lock had the defendant exercised reasonable care, then the law presumes the defendant, James Bradley, was negligent, otherwise; the mere happening of an accident does not give rise to the presumption of negligence.

You must consider this presumption together with all the other evidence in the case in determining whether or not the defendant, James Bradley, was negligent. (emphasis added)

The court granted plaintiffs' motion for new trial, correctly concluding that it was error to include the sentence "the mere happening of an accident does not give rise to the presumption of negligence" in this instruction. See Kitto v. Gilbert, 39 Colo.App. 374, 384, 570 P.2d 544, 551 (1977) ("To avoid confusing the jury, this instruction should not be given in a res ipsa loquitur case."). Accordingly, we reject defendants' contention that the trial court erred initially in granting plaintiffs a new trial.

However, we do agree with plaintiffs that the trial court erred in granting a partial new trial because their claims against Bradley, Standard, and Dover were so intertwined as to require a new trial against all defendants.

Initially, the trial court granted a new trial as to all parties. In its later ruling reversing itself, the court focused upon the specific error that necessitated the new trial and the fact that the plaintiffs had not tendered a res ipsa loquitur instruction as to Dover. The court reasoned that, since the erroneous res ipsa loquitur instruction applied only to Bradley's negligence and "did not implicate" Dover, a new trial could be conducted fairly without Dover.

In Bassett v. O'Dell, 178 Colo. 425, 427, 498 P.2d 1134, 1135 (1972), our supreme court stated that:

[B]efore granting a partial new trial, it should clearly appear that the issue to be retried is entirely distinct and separable from the other issues involved in the case and that a partial retrial can be had without injustice to any party.

In O'Dell, the supreme court concluded that the issue of liability could not be separated from the issue of damages because they were inextricably interwoven.

In determining whether to grant a new trial based on part of the issues, the determinative considerations are those factors relating to fairness. The focus is on the relationship between the issues under the evidence and the practical logistics of retrial. Kitto v. Gilbert, supra.

Applying those principles here, we conclude that the issues to be retried are not "entirely distinct and separable from the other issues involved." Bassett v. O'Dell, supra. To the contrary, the facts relating to Dover's alleged liability and Bradley and Standard's alleged liability as well as to their defenses are inextricably interwoven. This became evident at the second trial when evidence about Dover's product was introduced by plaintiff to show how the accident had occurred and by Bradley and Standard to support their defense of sudden equipment failure.

Defendants' witnesses at the second trial included two tow truck drivers testifying as experts who discussed previous failures of the same steering wheel locking device. One driver testified that the device could fail even if it was installed in accordance with the manufacturer's instructions. Such testimony concerning a previous failure of a similar locking device was tantamount to evidence of a defective product and permitted defendants Bradley and Standard to infer or blame the accident on the product, that is, the negligence, defective design, or failure to warn concerning the use and operation of the Dover steering wheel locking device.

One...