Willson Safety Products v. Eschenbrenner, 89-337

• Decision Date: 07 May 1990
• Docket Number: No. 89-337,89-337
• Citation: 302 Ark. 228,788 S.W.2d 729
• Parties: WILLSON SAFETY PRODUCTS, Appellant, v. Alex ESCHENBRENNER, Appellee.
• Court: Arkansas Supreme Court

Page 729

788 S.W.2d 729

302 Ark. 228

WILLSON SAFETY PRODUCTS, Appellant, v. Alex ESCHENBRENNER, Appellee.

No. 89-337.

Supreme Court of Arkansas.

May 7, 1990.

Wright, Lindsey & Jennings, Little Rock, for appellant.

Hani W. Hashem, Monticello, for appellee.

TURNER, Justice.

The appellee, Alex Eschenbrenner, while operating a drill machine at the White Rogers manufacturing plant in Batesville, suffered a ruptured eardrum and displaced meniscus of the tempromandibular jaw joint (TMJ). While operating the machine, the appellee was wearing a pair of Willson hearing-protectors, resembling headphones, when a co-worker pulled one of the protectors away from the appellee's head and released it, allowing the earcup to snap sharply against the appellee's ear and face.

The appellee filed a products liability action against the appellant, Willson Safety Products, alleging that the design of the hearing-protectors was a proximate cause of his injury and resulting medical problems. The appellee contended that the defective design of the protectors permitted the earcups to rotate 360 degrees on the horizontal axis, thus allowing the hard plastic portion of the cups to come in contact with the appellee's ear and face.

The issues concerning the design of the product, the facts of the incident, and the causal relationship of the appellant's product to the injury were thoroughly developed and contested. The jury returned a verdict for the appellee in the amount of $590,513. We affirm that judgment.

For reversal the appellant argues:

I. There was no substantial evidence that the hearing-protectors were negligently designed or unreasonably dangerous;

II. There was no substantial evidence that the earcup of the hearing-protector rotated before striking the appellee;

III. The misuse of the hearing protector by the appellee's co-worker constituted an independent and intervening cause of the injury as a matter of law;

IV. The future medical expenses were based solely on speculation and conjecture.

Points I, II, and III are clearly challenges to the sufficiency of the evidence. The record reflects that at the close of the appellee's case-in-chief, the appellant moved for a directed verdict, alleging that there was insufficient evidence to submit the issues to the jury. No further motion attacking the issue of sufficiency of the evidence was made until after the jury verdict. Subsequently the appellant moved for judgment notwithstanding the verdict (N.O.V.).

Arkansas Rules of Civil Procedure Rule 50 provides:

(a) Motion for Directed Verdict or Dismissal When Made; Effect. A party may move for a directed verdict at the close of the evidence offered by an opponent.... A party may also move for a directed verdict at the close of all of the evidence.... a motion for a directed verdict shall state the specific grounds therefor....

(b) Motion for Judgment Notwithstanding the Verdict. WHENEVER A MOTION FOR A DIRECTED VERDICT MADE AT THE CLOSE OF ALL THE EVIDENCE is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury SUBJECT TO A LATER DETERMINATION OF THE LEGAL QUESTIONS RAISED BY THE MOTION. Not more than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict.... (Emphasis added) ...

(e) Failure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a party to move for a directed verdict at the conclusion of all the evidence, or to move for judgment notwithstanding the verdict, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.

Subsection (a) of this rule is the grant of authority by which a party may challenge the sufficiency of the evidence, as a matter of law, prior to a submission of the factual issues to the jury. Subsection (b) is the grant of authority and procedure by which a party may, after verdict, submit to the court for its determination "the legal questions raised by the motion"--the motion being the motion for directed verdict made "at the close of all the evidence" as provided in the preceeding phrase of that same sentence in subsection (b).

The appellant artfully contends that subsection (e) of Rule 50, by use of the disjunctive "or," provides for either a motion for a directed verdict at the conclusion of all of the evidence or a motion for judgment notwithstanding the verdict. Standing alone, the argument of the appellant would be persuasive. However, subsection (e) of the rule must be read in the context of the entire rule; when this is done, subsection (e) cannot be given the interpretation argued by the appellant. Such an interpretation would be contrary to the clear language of that part of the rule which is the very authority for a motion for judgment N.O.V.--subsection (b).

A motion for a directed verdict at the close of the plaintiff's case has as its purpose a procedure for determining whether the plaintiff has met the burden of establishing a prima facie case, with that question to be resolved by the court as a matter of law. In the event the motion is overruled, the defendant may elect to stand on the motion or to go forward with the production of additional evidence, in which case he has waived any further reliance upon the former motion. See Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981); Granite Mountain Rest Home v. Schwarz, 236 Ark. 46, 364 S.W.2d 306 (1963...