W.M. Bashlin Co. v. Smith, 82-24
| Decision Date | 22 November 1982 |
| Docket Number | No. 82-24,82-24 |
| Parties | W.M. BASHLIN COMPANY, Appellant, v. James SMITH and Janet Smith, and Arkansas Power and Light Company, Appellees. |
| Court | Arkansas Supreme Court |
Wildman, Harrold, Allen, Dixon & McDonnell by James W. McDonnell, Jr., J. Richard Buchignani, and Thomas J. Walsh, Jr., Memphis, Tenn., and Butler, Hicky & Hicky, Ltd. by Philip Hicky, II, Forrest City, for appellant.
Gary Eubanks & Associates by Gary L. Eubanks and Hugh F. Spinks, Little Rock, for Smith.
Barber, McCaskill, Amsler, Jones & Hale, Little Rock, for J.L. Matthews Co.
House, Holmes & Jewell, P.A. by Phillip E. Dixon, Little Rock, for AP & L.
James Smith was a serviceman employed by Arkansas Power and Light Company (AP & L) on May 19, 1977. On that day he was working 30 feet off the ground on a pole, wearing a lineman's belt manufactured by W.M. Bashlin Company. The belt broke while Smith was engaged in a hazardous practice commonly known as double D-ringing. He fell to the ground injuring his spine and paralyzing him from the waist down. A St. Francis County jury returned a verdict finding that James Smith and his wife had suffered damages in the amount of $1,000,000. The jury apportioned the negligence at 80% to Bashlin and 20% to Smith. The distributor of the safety belt, J.L. Matthews Co., Inc., was a defendant along with Bashlin but the jury apportioned 0% responsibility to Matthews. Bashlin cross-complained against AP & L, Smith's employer, and Eddie Wells, Smith's supervisor. Before trial the court granted both AP & L and Wells a summary judgment based upon the exclusive remedy of the Workers' Compensation Act. The verdict was by interrogatories. One interrogatory found Bashlin responsible for 80% of Smith's damages. One interrogatory found the Matthews company was not negligent. Another interrogatory found that Bashlin did not supply the safety belt in "a defective condition which rendered it unreasonably dangerous ... [which] condition was a proximate cause of the occurrence." Still another interrogatory found that Bashlin was guilty of negligence which was the proximate cause of the occurrence. Finally, an interrogatory found that James Smith assumed the risk of the occurrence. The jury apportioned the responsibility for the occurrence and the resulting injuries and damages at 80% to Bashlin, 20% to Smith and 0% to J.L. Matthews Co. The trial court reserved a ruling on appellant's motion seeking credit against the judgment for $200,000 which AP & L had paid to Smith under the workers' compensation agreement. In view of our ruling this issue is now moot.
Bashlin appeals from the dismissal of AP & L as a third party defendant, the judgment against Bashlin, and the denial of its post-trial motion for credit on its judgment. We uphold the judgment against Bashlin.
The appellant sets forth six arguments for reversal which are as follows: (I) the finding by the jury that Bashlin did not manufacture the belt in a defective condition rendered the judgment against them improper; (II) the finding by the jury that the injured employee assumed the risk bars his recovery of any sums from the appellant; (III) AP & L's negligence constituted an independent intervening cause of the accident which bars recovery; (IV) the trial court erred in refusing to instruct the jury that any amount awarded the plaintiff would not be subject to income tax; (V) the trial court erred in dismissing appellant's third party complaint against AP & L for indemnity; and, (VI) the verdict was excessive.
This is a products liability suit against the manufacturer (Bashlin) and the distributor (Matthews) of a lineman's belt which was manufactured in 1964. Bashlin filed a third party complaint against Smith's employer, AP & L. The facts are not in material dispute. Bashlin manufactured the belt in 1964 and sometime in, or prior to 1966, AP & L purchased the belt from Matthews and provided it to Smith. The belt was made primarily of leather but included nylon reinforcing on the saddle portion of the belt. There were D-rings on each side of the body belt. A separate safety belt snapped into the D-rings and looped around a light pole or some other object to be climbed. As described above, the weight of the user would be on the back side or saddle of the body belt, between the D-rings, and upon the looped safety belt. In this position, a lineman could climb up a pole using gaffs on his shoes with the belts to prevent him from falling. The portion of the belt between the D-rings, on the front side where the belt is buckled to adjust to the size of the wearer, has a smaller leather strip with holes for the buckle which is commonly called the "tongue."
Double D-ringing was a practice used by the injured employee and by a lot of other people. The practice consists of snapping both ends of the safety belt into a single D-ring on the body belt. Double D-ringing is used for the purpose of providing the lineman with a longer reach. It was recognized that double D-ringing was not generally considered safe and Smith had acknowledged it was not a safe practice although he continued to utilize it. Double D-ringing was not considered safe because it placed the user in a position where his footing was more unstable, sometimes having only one foot against a pole thereby creating a situation where he was more apt to fall. It also increased the force of one's weight against the tongue portion of the body belt.
The employer, AP & L, had warned Smith that double D-ringing was dangerous. However, they recognized that this was no defense to them under the Workers' Compensation Act. Accordingly, they made a settlement with Smith, who is now a paraplegic, for the sum of $200,000. AP & L waived any right of subrogation against the manufacturer and the distributor. The trial court ruled, as a matter of law, that AP & L and Smith's supervisor were protected from liability by the exclusive remedy of workers' compensation.
Although it will lengthen the opinion, it is necessary to a proper understanding of the pertinent interrogatories that they be set out in full:
Do you find from a preponderance of the evidence that W.M. Bashlin Company was guilty of negligence which was a proximate cause of the occurrence?
Do you find from a preponderance of the evidence that the lineman's body belt involved in the occurrence was supplied by W.M. Bashlin Company in a defective condition which rendered it unreasonably dangerous and that the defective condition was a proximate cause of the occurrence?
Do you find from a preponderance of the evidence that the lineman's body belt involved in the occurrence was sold by J.L. Matthews Company, Inc., in a defective condition which rendered it unreasonably dangerous and that the defective condition was a proximate cause of the occurrence?
Do you find from a preponderance of the evidence that James Smith was guilty of fault which was a proximate cause of the occurrence?
Do you find from a preponderance of the evidence that James Smith assumed the risk of the occurrence?
Using 100% to represent the total responsibility for the occurrence and any injuries or damages resulting from it, apportion the responsibility among the parties whom you find to be responsible:
State the amount of any damages which you find from a preponderance of the evidence were sustained by James Smith as a result of the occurrence.
State the amount of any damages which you find from a preponderance of the evidence were sustained by Janet Smith as a result of the occurrence.
ANSWER: $40,000.00
THE FINDING BY THE JURY THAT BASHLIN DID NOT MANUFACTURE THE BELT IN A DEFECTIVE CONDITION RENDERED THE JUDGMENT AGAINST THEM IMPROPER.
The first point argued by appellant is that the jury's specific finding that the product (the body belt) was not supplied or sold in a defective condition which proximately caused the accident is a bar to holding the manufacturer liable under a negligence theory. The jury was given instruction No. 18 (AMI 1012) which states that the appellees asserted two grounds for recovery: first, that a defective lineman's body belt was manufactured or sold by W.M. Bashlin Company; and, second, that there was negligence on the part of W.M. Bashlin Company. The court then instructed the jury on the two separate causes of action. The finding by the jury that Bashlin did not supply the lineman's body belt in a defective condition does not preclude the finding that Bashlin was negligent in some other respect. The jury may have found that Bashlin was negligent in failing to warn the plaintiff on the use of the belt, in failing to warn about double D-ringing, or that the manufacturer became aware that the belt tongue should not have been constructed of leather alone and should therefore have recalled the product. While it is mere speculation as to what the jury might have based a finding of negligence, it is obvious from the interrogatories that they did make a specific finding of liability against the appellee. We have recognized that more than one theory of liability may properly be used in matters involving products liability. AMI 1012 provides first for a finding of a defect in the product and second that there was negligence on the part of the supplier. The plaintiff need not bear the burden of proving both theories of liability, it is enough that he prove either. Sterner v. U.S. Plywood-Champion Paper, Inc., 519 F.2d 1352 ...
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