No. 84-491
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
MARTIN J. RLEINSASSER,
Plaintiff and Appellant,
SUPERIOR DERRICK SERVICE, INC.,
a Foreign corp., ROBERT BRADLEY
alkla BOBBY BRADLEY, and RIG
SUPPLIERS, INC.,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patten & Renz; Jeffrey T. Renz, ~illings,Montana
For Respondents:
McNamer, Thompson & Cashmore; PQil-liamR. McNamer,
Billings, Montana
Crowley Law Firm; L. Randall Bishop, Billings, Montana
Submitted on Briefs: June 7, 1985
Decided: November 5, 1985
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Plaintiff appeals a judgment entered on a jury verdict
for defendants in the Thirteenth Judicial District,
Yellowstone County. The jury answered on a special verdict
form that defendant manufacturer and its supervisory employee
were not negligent and therefore not a proximate cause of
plaintiff's injuries resulting from a fall while engaged in
erection of an oil derrick "A-frame" designed and manufac-
tured by defendant.
Plaintiff unsuccessfully moved for a new trial and
filed this appeal on the grounds of insufficient evidence to
support the jury verdict and error in refusing to give plain-
tiff's proposed instruction.
We affirm the judgment, holding that there was substan-
tial evidence to support the jury verdict. We also hold that
plaintiff was not prejudiced by the court instruction involv-
ing aspects of strict liability where the case was submitted
to the jury on the issue of negligence alone.
Appellant raises the issues of sufficiency of the
evidence to support the jury verdict and possibl-e error in
jury instructions in bringing this appeal. While appellant
also raises the issue of possible abuse of discretion on the
part of the trial court in refusing to allow certain testimo-
ny of his vocational expert, we need not consider this issue,
which goes to damages, when there is sufficient evidence to
support the jury verdict finding defendants not negligent.
Martin Kleinsasser worked as a derrick hand for Molen
Drilling Company which purchased a new mast from Superior
Derrick Service, Inc., for fitting to Molenk existing
substructure. Bobby Bradley, Superior Derrick's field
representative from Houston, generally supervised the
assembly.
On May 3, 1981, while Bradley was not present, Molen's
crew prepared to raise an "A-frame" designed and manufactured
by Superior Derrick, a smaller structure used to provide a
point of leverage to winch the mast from the horizontal to
the vertical. Superior Derrick's assembly plans called for
four 3 1 4 " by 3" bolts, but the assembly package contained
3/4" by 4" bolts. Molen's crew chose to go to nearby Rig
Supply store owned by their employer's son (and once owned by
Molen) and pick out the hardest 3" bolts available, instead
of using the 4" bolts and washers to tighten the fit.
There is conflicting testimony about Bradley's knowl-
edge of the substitution, but the jury chose to believe that
Bradley neither knew nor authorized the use of the substi-
tuted bolts and, in fact, did not see the bolts until after
the accident. He claimed that MoLen's supervisor had said he
was not needed and could get ready to return to Houston.
The softer, nonstructural bolts sheared or bent as the
crew raised the A-frame. Kleinsasser, standing with the crew
on the platform, fell fifteen feet to the ground as the
A-frame fell. He broke his left wrist and left heel. When
Chuck Doornek, Molen's supervisor, called Bradley at the
motel to report the accident, Bradley returned to the scene.
He noted that the bolts were not "our bolts" and located the
bolts provided by Superior Derrick. While the body of the
bolt was too long, the bolt itself was the right width. With
washers, the crew put the bolts in, tightened them up, and
satisfactorily hoisted the A-frame. The high-strength bolts
furnished with the assembly package held.
Plaintiff attempted to establish at trial that Superior
Derrick had provided the wrong bolts, that Superior Derrick
had failed to provide a "spreader bar" (a device to spread
the legs of the A-frame in raising the structure), and that
Bobby Bradley had negligently supervised in allowing the crew
to raise the structure with softer bolts and without his
presence. Plaintiff had already settled with Rig Supply for
its negligence in providing nonstructural bolts for the job.
Sufficiency - - evidence.
of the We will not reverse a
judgment based upon a jury verdict if there is substantial
evidence in the record to support the jury verdict. Lackey
v. Wilson (Mont. 1983), 668 P.2d 1051, 1053, 40 St.Rep. 1439,
1441. We review in the light most favorable to the
prevailirig party, reversing only when there is a lack of
substantial evidence to support the judgment based upon the
jury verdict. Gunnels v. Hoyt (Mont. 1981), 633 P.2d 1187,
1191, 39 St.Rep. 1492, 1.495; Farmers Union Grain Terminal v.
Monta.na Power Company (Mont. 1985), 700 P.2d 994, 996, 42
St.Rep. 815, 818.
The "substantial evidence" test variously expressed
allows reversal only if there is a complete absence of proba-
tive facts to support the verdict (Griffel v. Faust (Mont.
1983), 668 P.2d 247, 249, 40 St.Rep. 1370, 1372), or if the
evidence is so overwhelming there is no room for an honest
difference of opinion on the issue of causation (Farmers
Union Grain Terminal, 700 P.2d at 997), or if there is a
complete a.bsence of any credible evidence in support of the
verdict (Barmeyer v. Montana Power Company (Mont. 1983) , 657
P.2d 594, 597, 40 St.Rep. 23, 25). However, where there was
admissible probative evidence on the absence of negligence or
failure of proximate cause, the verdict for a defendant
utility was not disturbed on a sufficiency basis. Barmeyer,
657 P.2d at 597.
We hold that the jury h.ad sufficient evidence to deter-
mine that the defendant manufacturer and its supervisor were
not negligent. It is not our function to agree or disagree
with the jury verdict in reviewing, but rather to search for
sufficient evidence on the record. Griffel, 668 P.2d at 249.
Questions of fact are for the jury to resolve and should not
be taken from the jury because some evidence furnishes
reasonable grounds for different conclusions. Gunnels, 633
P.2d at 1192.
Plaintiff should not expect this Court to retry his
case because the jury chose to believe the evidence presented
by defendant over that of plaintiff. The jury can choose to
adopt testimony offered by one side to the exclusion of the
o-ther and is free t.o disregard testimony, including expert
testimony. Tompki.ns v. Northwestern Union Trust Company of
Helena, Montana (Mont. 1983), 645 P.2d 402, 408, 39 St.Rep.
845, 853. The jury had admissible probative evidence which
was credible, supported the verdict, and led to their conclu-
sion that defendants were not the cause of plaintiff's
injuries.
Jury instructions. Appellant contends that the court
erred in failing to give his offered instruction on strict
liability which he drew verbatim from Restatement (Second) of
Torts, 402A (1965). Instead, the court gave defendants'
offered instruction over plaintiff's objection. Appellant
contends that the case presented at trial as to the
manufacturer's strict liability in tort for a design,
manufacturing or material defect resulting from the absence
of a spreader bar was not adequately covered by the
instruction the court gave. The court's failure to instruct
the jury on strict liability and the elements of proof,
appellant claims, constituted clear error. Plaintiff's
proposed instruction number 24 stated:
You are instructed that one who sells
any product in a defective condition
unreasonably dangerous to the user or
consumer or to his property is subject
to liability for physical harm thereby
caused to the ultimate user or consumer,
or to his property, if:
(a) the seller is engaged in the busi-
ness of selling such a product, and
(b) it is expected to and does reach the
user or consumer without substantial
change in the condition in which it is
sold.
This rule applies although:
(a) the seller has exercised all possi-
ble care in the preparation and sale of
his product, and
!b) the user or consumer has not bought
the product from or entered into a.ny
contractual relation with the seller.
The court accepted defendant's proposed instruction number
14, and offered it as court's instruction number 16:
One of the claims asserted by plaintiff
is that the design of the oil derrick
was defective either because no "spread-
er bar" was designed, or none was fur-
nished with the derrick.
You are instructed that defective means
"unreasonably dangerous".
A product is in a condition unreasonably
dangerous to the user or consumer when
it is dangerous to an extent beyond that
which would be contemplated by the
ordinary user or consumer who purchases
it or uses it, with the ordinary
knowledge common to the community as to
the product's characteristics. A prod-
uct is not unreasonably dangerous merely
because it is possible to be injured
while using it.
We have determined that it was not error to refuse a
proposed instruction which merely paraphrased the Restatement
(Second) of Torts when another accepted instruction reflected
prior Montana law and where appellants were not prejudiced by
the instruction. Goodnough v. State v. Montana (~ont.1982) ,
647 P.2d 364, 367-368, 39 St.Rep. 1170, 1173-1174.
Repetitious jury instructions setting forth abstract
principles of law should, be avoided. Swenson v. Buffalo
Building Company (Mont. 1981), 635 P.2d 978, 984, 38 St.Rep.
Plaintiff's refused instruction, an abstract statement
of the law, failed to give any more guidance than the court's
instruction to enable a jury to find a d-efendant strictly
liable in tort for a defective product. Counsel for plain-
tiff then failed to offer a special verdict form which would
have all-owed the jury to find liability for a product defect.
He agreed to the special verdict form in settling instruc-
tions once the court added "and/or Bobby Bradley" to "defen-
dants." Counsel made no objection to the special verdict
Form trial upon appeal.
The text of the special verdict form, because not
objected to, defeats plaintiff's claim of error in refusing
his offered instruction on strict liability:
WE, the jury, present our answers to
questions submitted by the Court, with
at least eight (8) of our number agree-
ing upon each and every answer set forth
below:
QUESTION NO. 1: Were the defendants
Superior Derrick and/or Bobby Bradley
negligent? (yes or no)
ANSWER NO. 1: No
If you have answered Question No. 1
"yes," then answer Question No. 2. If
you have answered Question No. 1 "no,"
you will not consider the matter fur-
ther. Sign the verdict and notify the
bailiff, who will return you to Court.
The jury foreperson signed the form without answering the
remaining questions, none of which asked about strict liabil-
ity in tort but only about negligence and proximate cause.
Plaintiff contends that the instructions given on
strict liability offer an incomplete and misleading statement
of the law. Any error alleged is harmless when the plaintiff
did not object to a special verdict form which required the
jury to decide the case on negligence alone. Giving a jury
instruction on strict liability in tort, no matter how com-
plete, would not have cured counsel's failure to offer a
verdict form which would have allowed a jury to consider
strict liability in tort.
In offering instruction number 24, counsel argued that
in a products liability action counsel for plaintiff must
show three things: "1) the Plaintiff was injured by the
product; 2) the injury occurred because the product was
defective and unreasonably dangerous; and 3) the defect
existed when it left the hands of the particular Defendant."
The court noted. that there was a failure of proof as to these
three requirements to establish a. products liability claim.
Counsel for plaintiff did not disagree or challenge the
record in this regard. In agreeing to the form of the ver-
dict, counsel in requesting the amendment stated, "But my
problem is that all the evidence has to do with what he
[Bobby Bradley] did. " Upon appeal, appellant concludes in
his argument "that undisputed facts before the jury were
capable of only one inference and one conclusion, ... Ci.el
that Superior and. Bradley were negligent as a matter of law."
We noted in discussion on substantial evidence on the record
that the iury could find substantial evidence to the
contrary.
Neither instruction is easily comprehensible to the
average jury member. Yet we see no prejudice to plaintiff's
case by instructions given to the jury where plaintiff argued
on the issue of negligence alone. Any alleged error is
harmless. Where jury instructions, taken as a whole, state
law applj-cable to the case, there j s no error in giving
.
certain individual instructions. Rock Springs Corporation v.
Pierre (Mont. 1980), 615 P.2d 206, 211, 37 St.Rep. 1378,
1383. Here, the jury had the opportunity to consider the
aspects of plaintiff's case from the instructions as a whole
and chose, after considering all the facts, to find defendant
manufacturer not negligent. There is substantial credible
evidence to support that verdict
Affirmed.
We Concur:
Justices
Mr. J u s t i c e Frank R . M o r r i s o n , Jr. s p e c i a l l y c o n c u r s a s
follows:
I c o n c u r i n t h e r e s u l t b u t f e e l t h a t some e x p l a n a t i o n i s
needed w i t h r e s p e c t t o what w e have s a i d a b o u t i n s t r u c t i n g on
strict liability. A t t h e o u t s e t I w i s h t o make i t c l e a r t h a t
I c o n c u r i n t h e r e s u l t o n l y b e c a u s e s t r i c t l i a b i l i t y was n o t
s u b m i t t e d t o t h e j u r y on t h e v e r d i c t form and t h e p l a i n t i f f
did not object. Therefore, the instructions on strict
l i a b i l i t y do n o t p r e s e n t a b a s i s f o r r e v e r s a l .
Instruction no. 1 6 , quoted accurately i n the majority
opinion, apparently adopts the rationale found in Justice
Shea's s p e c i a l l y concurring opinion i n Stenberg v. Beatrice
Foods Co. ( 1 9 7 8 ) , 176 Mont. 1 2 3 , 576 P.2d 725. Prior t o this
time it was thought that the requirement set forth in
Restatement (Second) of Torts, 402A (1965) governed
liability. I n o t h e r words p l a i n t i f f ' s proposed i n s t r u c t i o n
no. 2 4 was a correct statement of t h e law. This required
that plaintiff prove both "defective condition'' and
"unreasonably dangerous". The i n s t r u c t i o n g i v e n by t h e t r i a l
c o u r t i n t h i s c a s e e l i m i n a t e d d e f e c t by s i m p l y s t a t i n g t h a t
defective means "unreasonably dangerous". I agree that
future strict liability instructions in Montana should
e l i m i n a t e d e f e c t a s a necessary p a r t o f t h e p l a i n t i f f ' s proof
and submit the case under the "unreasonably dangerous"
standard. This is what Justice Shea advocated in his
s p e c i a l l y concurring opinion i n S t e n b e r g and I believe the
rationale is sound. I do fear that there will be some
c o n f u s i o n by what t h e m a j o r i t y h a s done i n t h e i n s t a n t c a s e
but it seems clear that the majority is blessing this
approach.
The problem w i t h c o u r t ' s i n s t r u c t i o n no. 16 i s t h a t t h e
instruction is incomplete. The instruction does not
adequately submit the plaintiff's theory of strict liability
to the jury because it does not do any more than define
terms. Plaintiff is entitled to an instruction that states
that plaintiff is entitled to recover if certain elements are
proven. The instruction failed in this respect and would
have constituted reversible error had strict liability been
submitted to the jury. Since plaintiff acquiesced in
submission of the case to the jury on a special verdict form
which did not include strict liability, plaintiff can not now
complain about the incomplete nature of court's instruction
no. 16.
I therefore concur in the result and further wish to
give my judicial stamp of approval to the majority's
elimination of "defective condition" as a necessary element
of plaintiff's proof in a strict liability case.
Mr. Justice John C. Sheehy, di-ssenting:
I dissent on the issue of the refusal of the District
Court to give the jury instruction that was offered by the
plaintiff in this case. The instruction is set out in the
majority opinion, and is verbatim from section 402A (1965) of
the Restatement (Second) of Torts.
The offered instruction fitted precisely the problem
involved in this case. It may not be disputed that the cause
of this accident was the failure of the substituted bolts
used in connection with the A-frame. Here the manufacturer
failed to provide properly sized bolts for that use. The
packing list supplied hy the manufacturer indicated that
proper construction bolts, sized 3/4" diameter by 3" long
were included in the shipping package. In fact the shipper
had included 3/4'Viameter by 4" long bolts. Such bolts
could not be used without the use of washers to tighten the
bolts, but there was no way for the manufacturer to give
warning of this fact because the manufacturer obviously
assumed that the shipping package would include the proper
bolts. That proper bolts were indispensable to the operation
of the A-frame in the manner that was used here is obvious,
because improper bolts caused the accident.
Here the manufacturer was engaged in the business of
selling a product such as the A-frame, and the manufacturer
expected its product to reach the consumer without
substantial change in the condition in which it was sold. By
forwarding improper bolts, bolts which were indispensable to
the operation of the A-frame, the manufacturer provided a
defective product. The plaintiff here was entitled to a
defective product instruction that related to the cause of
his injuries, the failure of the company to provide proper
bolts for the operation of the A-frame.
The instruction which was given by the court was
insufficient to tell the jury what its duty was with respect
to the failure to provide the proper bolts. The accepted
instruction related only to the failure to supply a spreader
bar, which may or may not have been the duty of the
manufacturer to supply.
Because the instructions were defective in this case, I
would reverse and remand the matter for trial with proper
instructions.
---- .-
Justice I