Estate of Williams v. Schwarze Industries, Inc.

Cite as 2017 Ark. App. 255

ARKANSAS COURT OF APPEALS
DIVISION IV
No.CV-16-309

ESTATE OF ANDERSON DALE OPINION DELIVERED: APRIL 26, 2017
WILLIAMS, DECEASED, AND TWYLA
A. WILLIAMS, ADMINISTRATOR
APPELLANTS APPEAL FROM THE DESHA
COUNTY CIRCUIT COURT
V. [NO. 58CV-14-59-1]
SCHWARZE INDUSTRIES, INC., AND HONORABLE SAM POPE, JUDGE
ARKANSAS POWER STEERING AND
HYDRAULICS AFFIRMED
APPELLEES

ROBERT J. GLADWIN, Judge

Appellant, the Estate of Anderson D. Williams, appeals the October 15, 2015 order

of the Desha County Circuit Court denying its motion for judgment notwithstanding the

verdict (JNOV) regarding the September 11, 2015 order that found appellees Schwarze

Industries, Inc. (Schwarze), and Arkansas Power Steering and Hydraulics (APSH) not liable

in the death of Williams. Appellant contends that the jury verdict is against a preponderance

of the evidence and thus lacks substantial evidence to support it and that the trial court erred

by not granting its motion for JNOV on appellees’ liability. We affirm.

Williams, a highway employee, was killed on June 2, 2011, when a highway-

department sweeper ran over him as he lay unconscious on the asphalt behind it. Appellant,

through its administrator (Williams’s widow), Twyla A. Williams, contended that the

sweeper was defectively designed because it had a rear-end blind zone where Williams lay
Cite as 2017 Ark. App. 255

unconscious, unable to react to the back-up beepers as the sweeper traveled in reverse.

Appellant initially sued Navistar, Inc., and APSH for products liability, breach of warranty,

and negligence in the wrongful death of Williams. Schwarze was brought in via a third-

party complaint as the manufacturer of the completed sweeper. Appellant filed an amended

complaint on November 21, 2014, and Schwarze filed an answer on December 1, 2014, in

which it admitted that it sold the unit to the highway department through its dealer, APSH,

and that Navistar designed, manufactured, and distributed the cab and chassis. Schwarze

denied that the design was unreasonably dangerous and pled comparative negligence. APSH

filed a separate answer on January 5, 2015.

On January 23, 2015, an order granting Navistar’s motion for summary judgment

was entered, which dismissed with prejudice appellant’s cause of action against it. Appellees

Schwarze and APSH filed their motion for summary judgment on July 23, 2015, contending

that appellant did not have expert testimony of a design defect. Appellant responded on

August 8, 2015, and appellees filed a reply on August 21, 2015. The motion for summary

judgment was denied by the trial court during a telephone pretrial conference that was held

on August 26, 2015.

The jury trial commenced on September 1, 2015. Jury instructions were submitted,

and a verdict form reflected that the jury found that appellees did not supply the sweeper in

a defective condition that caused the accident, that there was no negligence on the part of

appellees that caused the accident, and that appellees did not manufacture a sweeper that

was unfit for ordinary purposes for which it was used.

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Cite as 2017 Ark. App. 255

A judgment was entered on September 11, 2015, in favor of appellees on appellant’s

complaint and amended complaint. Appellant filed a motion for JNOV and for a new trial

on damages on September 18, 2015. Schwarze responded on September 25, 2015. Appellant

requested an extension to reply to Schwarze’s response on September 29, 2015, and an order

entered on October 1, 2015, granted an extension until October 7, 2015; a subsequent order

set the motion for hearing for October 13, 2015. After that hearing, an order entered on

October 15, 2015, denied appellant’s motion for JNOV and upheld the jury verdict

submitted on interrogatories, finding that there was substantial evidence to support

appellees’ verdict. Appellant filed its timely notice of appeal on October 28, 2015.

We hold that appellant failed to preserve its point for appeal because it did not

properly move for a motion for directed verdict at trial. Arkansas Rule of Civil Procedure

50(b) requires that a party move for a directed verdict as a prerequisite to subsequently filing

a JNOV motion. Rule 50(a) states that the motion should be made at the close of the

opposing party’s case and specifically state the grounds for the motion. After appellees

renewed their motions for directed verdict, the sum and substance of appellant’s purported

motion for directed verdict was as follows:

THE COURT: Yes, ma’ am. Thank you. Mr. Gibson?

MR. GIBSON: Your Honor, as I have previously stated, the evidence is in a posture
at best for counsel’s motion, there are facts in dispute. And the jury could -- The
evidence could support a verdict on all theories, three theories of liability.

And I will address that we have alleged that the sweeper was not fit for its
intended purpose which satisfies the pleading in this case and the proof under that
pleading.

Now, I will say this: We think that we have gotten very close to a directed
verdict ourselves on the issue that a convex mirror would have prevented this

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Cite as 2017 Ark. App. 255

accident because their testimony from their expert said it may have. He has not
negated our assertion –

THE COURT: You’ve still got the issue of proximate cause, so you’re wrong.

MR. GIBSON: I rest.

THE COURT: Okay.

Okay. I- You know, I have to consider the issues at this time and the evidence
in the light most favorable to the nonmoving party. The nonmoving party would be
the Plaintiff.

And in doing that, there are questions of fact on almost everything that’s been
mentioned by the Defendant. And I’m not making a comment concerning the
weight of the evidence, because I’m not required to do that at this time. But I am
required to consider both the testimony and the circumstantial evidence.

And in doing that, like I did before, I’m denying the motions for directed
verdict. That’s the ruling.

Merely because appellant claimed that it came close to a directed verdict in response

to appellees’ renewed motions for directed verdict is not sufficient to meet the requirement

of stating specific grounds and making an actual motion. See Thomas, 364 Ark. at 448, 220

S.W.3d at 630–31. In Thomas, our supreme court found the plaintiff’s bare motion for

directed verdict insufficient and refused to allow her to rely on comments made in response

to the defendant’s motion for directed verdict. The record indicates that appellant’s

comments related solely to its claim that the sweeper was defective and unreasonably

dangerous because it lacked the rear convex mirror proposed by appellant’s expert. Appellant

specifically abandoned that ground, as demonstrated by the following exchange with the

trial court at the hearing on appellant’s JNOV motion.

THE COURT: I don’t have any questions. Mr. Gibson, you want to address anything
else in rebuttal?

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MR. GIBSON: Yes, Your Honor. Your Honor, we do not attack the jury verdict on
the basis, having anything to do with the convex mirror would have fixed this. That’s
not before the court. This is -- This is an allegation in the motion that this machine
was unreasonably dangerous when it left the factory, manufactured and configured
with a sixty-foot blind spot. We’re not trying to say that they were negligent in this
motion for not putting a convex mirror on the rear. That’s out. I spent too much
time on that in the trial of this case. I’m not-

THE COURT: Well, you didn’t-- That was your theory of the case, really.

MR. GIBSON: That was the theory on negligence.

THE COURT: Yeah. Well, on everything.

MR. GIBSON: No.

THE COURT: It all-- it all-- That’s the point you called your expert for to a large
degree and it’s the point you tried to make with the jury. And I assume you did it
because it was a fairly low-cost fix.

MR. GIBSON: Yes, Your Honor. But the-- That wasn’t my only theory of recovery.
That was the negligent design which could have been cured by a convex mirror.
What I said in my first theory of recovery was strict liability based on defective design,
which we’re not required to come up with a remedy to cure the defect. When it
leaves the factory without, with a design that renders it unreasonably dangerous,
we’re not required to prove negligence.

THE COURT: I think strictly speaking you’re correct. I’m just saying that was your
theory that you advanced.

Accordingly, we hold that appellant failed to properly preserve this argument before

the trial court, and we specifically reject appellant’s argument that the trial court’s ruling

denying what appellant claims was a motion for directed verdict constituted an

acknowledgment that the “motion” was sufficient. Appellant failed to meet the specific

requirements of Rule 50(a)–(b) of moving for a directed verdict—as a prerequisite to

subsequently filing its JNOV motion—at the close of the opposing party’s case and

specifically stating the grounds for the motion.

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Affirmed.

GRUBER, C.J., and VAUGHT, J., agree.

Gibson Law Office, by: Charles Sidney Gibson and Chuck Gibson, for appellant.

Friday, Eldredge & Clark, LLP, by: Elizabeth Robben Murray and Joseph McKay, for

appellee.