NO. 92-093
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
SIGRID M. GREYTAK,
Plaintiff, Respondent and
Cross-Appellant,
Reg0 COMPANY, a Delaware corporation;
and BUTLER MANUFACTURING COMPANY, a
Delaware corporation,
Defendants an Appellants.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Norman L. Newhall, Floyd D. Corder, Alexander,
Baucus & Linnell, Great Falls, Montana
For Respondent:
Ward Swanser, Moulton, Bellingham, Longo & Mather,
Billings, Montana; William C. Callaham, Donahue &
Callaham, Sacramento, California; J. Michael Jordan,
Beirne, Maynard & Parsons, Houston, Texas
Submitted on Briefs: September 24, 1992
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Decided: March 2, 1993
Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal of an order of the Thirteenth Judicial
District Court, Yellowstone County. The order granted plaintiff's
motion for a new trial and denied plaintiff's motion for judgment
notwithstanding the verdict. Defendant appealed and plaintiff
cross-appealed. Reversed in part, affirmed in part.
The issues raised by the appeal and cross-appeal are:
Whether the District Court was correct in submitting the issue
of assumption of risk to the jury.
Whether plaintiff is entitled to a new trial because of
alleged errors in the jury instructions.
Whether affidavits of jurors are admissible to impeach the
jury verdict by showing that the jury did not understand the
jury instructions.
Whether in viewing the evidence in the light most favorable to
RegO, the jury could find that plaintiff voluntarily and
unreasonably exposed herself to a known danger.
Whether the District Court abused its discretion by granting
a new trial on the grounds that the jury instructions
contained an error in law.
In Winnett, Montana, on June 24, 1986, a spark ignited a
basement full of propane. The resulting explosion completely
demolished the house. Sigrid Greytak, who was in the basement,
suffered serious burns in the explosion.
A 1060 gallon propane tank in the yard supplied propane to the
house. The tank was manufactured in 1949 by Butler Manufacturing
2
Company. The company had equipped the tank with a model 3101CO
valve made earlier in 1949 by Bastian-Blessing Company, Reg0
Company's predecessor in interest.
To operate that type of valve, a handwheel is turned until a
seat disk inside the valve contacts the rim of a valve port. When
the seat disk firmly contacts the rim, it seals the port so gasses
cannot escape through the valve.
The valve contained a seat disk made of hard rubber. Greytak
contends the valve was defective because the company should have
used nylon instead of hard rubber as a seat disk material.
On June 22, 1986, Greytak closed the valve to shut off the
flow of propane from the tank to the rental house. After turning
off the valve, she assisted her father and another person in
removing the propane-fired hot water heater. They did not cap the
propane supply line after they removed the water heater.
Two days later, Greytak returned to the rental house to do
some painting and to cap the open propane line. She smelled a
strong odor of propane when she entered the house, so she went into
the basement to investigate. She testified that the smell of
propane was so strong in the basement it made her dizzy and almost
overwhelmed her.
Greytak made several trips in and out of the basement during
the next few hours. First, she went outside to make certain the
propane valve was off. Then she went back into the basement and
screwed the cap on the open propane supply line.
Greytak then tested the capped line for leaks by submerging
the end of the line in a dish of soapy water and watching for
bubbles. She testified that she knew there was a leak because
bubbles appeared in the dish.
After Greytak went outside and cranked the handwheel on the
valve tighter, she went back into the basement, tightened the cap
and did a second test with the dish of soapy water. At trial, she
testified that the line still leaked after she tightened the valve
and cap.
She left the rental house and drove home to get a fan. When
she returned she took the fan to the basement, plugged it in, and
turned it on.
Later, Greytak went back into the basement and moved the fan
closer to where the water heater had been. While she was adjustinq
the location of the fan, the propane exploded, reducing the house
to rubble and engulfing Greytak in flames.
The jury found that the valve was defective and that the
defect caused her injuries. Greytak did not recover damages,
however, because the jury found that she assumed the risk and was
55 percent responsible for her injuries.
As a jury poll showed, nine jurors of the twelve juror panel
determined that the valve was defective. Eight of the nine
determined that the defect caused Greytak's injuries. Eleven
jurors found Greytak had assumed the risk of her injuries.
Our review of a district court's conclusions of law is
plenary. We determine whether the district court's conclusions are
correct. Steer, Inc. v. Dept. of Revenue (lggO), 245 Mont. 470,
474, 803 P.2d 601, 603.
I.
Was the court correct in submitting the issue of assumption of
risk to the jury?
In her cross-appeal, Greytak argues that as a matter of law
she did not assume the risk. Greytak contends that because she
testified she did not know of any defects in the valve assembly she
could not assume the risk. We disagree for two reasons.
First, if the valve leaked Greytak surely knew about it. She
testified that she turned the valve off, yet the basement filled
with propane. She further testified that she tested the propane
supply line twice and it was leaking both times.
Second, at the time Greytak's cause of action accrued, it was
not necessary for a plaintiff to know of the specific defect before
the defense of assumption of risk became operative. Rather, the
plaintiff must have known of the particular condition that
constituted the danger. See Kopischke v. First Continental Corp.
(l98O), 187 Mont. 471, 500, 610 P.2d 668, 683-84. As this Court
has repeatedly held, the defense of assumption of risk applies upon
a showing that the plaintiff knew of the danger, then both
voluntarily and unreasonably exposed herself to the danger. Kuiper
v. Goodyear Tire and Rubber Co. (1983), 207 Mont. 37, 64, 673 P.2d
1208, 1222; Zahrte v. Strum, Ruger & Co., Inc. (1983), 203 Mont.
90, 94, 661 P.2d 17, 18-19; Krueger v. General Motors (1989), 240
Mont. 266, 277, 783 P.2d 1340, 1347.
In this case, the dangerous condition was a basement full of
propane. Two days before the accident, Greytak and her father
removed a propane hot water heater from the basement. They left
the propane line uncapped and the basement filled with propane.
On the day of the accident, Greytak returned to the rental
house. She smelled propane when she entered the house. The smell
of propane in the basement was so strong it made her dizzy and
nearly overwhelmed her. She tested the propane line twice and
testified that it leaked both before and after she tightened the
valve on the tank outside.
Greytak testified she knew the accumulation of propane in the
basement constituted a dangerous and hazardous condition. She
testified she knew sparks could cause the propane to explode. She
had been shocked by electrical appliances in the past. Although
she testified that she did not know electric motors emit sparks
when running, she had seen sparks fly when electrical cords were
yanked from outlets.
Knowing of the danger, Greytak made several trips into the
propane filled basement. On her final trip into the basement, two
hours after discovering it was full of propane, the explosion
occurred while Greytak was adjusting the location of an electric
fan.
On this evidence, a jury could and did find that Greytak
assumed the risk by voluntarily and unreasonably exposing herself
to a known danger. The District Court's decision to submit the
issue of assumption of risk to the jury was correct.
TI.
Is plaintiff entitled to a new trial because of alleged errors
in the jury instructions on assumption of risk?
Greytak contends that question 3 of the special verdict forms
and jury instructions numbered 22, 23, and 24 are not accurate
statements of the law. Greytak's counsel objected generally to any
instructions on assumption of risk and specifically to the
substance of the first part of instruction 23. However, he did not
object to the sufficiency of either the special verdict or the
other instructions before the court submitted the case to the jury.
As a result, Greytak waived the right to appeal based on the
sufficiency of any instruction except the first part of instruction
23. See Rule 51, M.R. Civ.P; Ahmann v. American Fed. Savings & Loan
Ass'n (1988), 235 Mont. 184, 195, 766 P.2d 853, 860; Reno v.
Erickstein (1984), 209 Mont. 36, 46, 679 P.2d 1204, 1209.
Greytak also contends that the District Court should have
given plaintiff's proposed instruction 27 instead of the court's
instruction 23. We disagree. Only the first part of number 23
varies significantly from plaintiff's proposed instruction 27.
The court patterned instruction 23 after Montana Pattern Jury
Instruction (MPI) 7.07 (Civil). Instruction 23 reads in pertinent
part:
The defendants claim Sigrid Greytak assumed the risk of
her injury.
In order to establish that claim, the defendants
must prove (1) that Sigrid Greytak had actual knowledge
of the danger, and (2) that Sigrid Greytak then
voluntarily and unreasonably exposed herself to that
danger.
* * *
Greytak's proposed instruction differed from the court's
instruction in that the proposed instruction required actual
knowledge of the defect rather than knowledge of the danger in the
defect. Greytak's counsel stated that the proposed instruction
came directly from Krueser, 783 P.2d 1340. He argues that Krueqer
implies that knowledge of the danger actually means knowledge of
the defect.
In Zahrte, this Court stated, "Plaintiff must have a
subjective knowledge of the danger and then voluntarily and
unreasonably expose himself to that danger before assumption of
risk will become operative in a strict liability case." Zahrte,
G G 1 P.2d at 18-19. In Krueser, we endorsed the language of Zahrte
and MPI 7.07 as an accurate, comprehensible, and complete statement
of the law in the case. 783 P.2d at 1347.
That portion of instruction 23 was an accurate statement of
the law in this case and the remaining portion was nearly identical
to plaintiff's proposed instruction 27. Therefore, the District
Court did not err by giving instruction 23, rather than plaintiff Is
proposed instruction 27.
111.
Are affidavits of jurors admissible to impeach the jury
verdict by showing that the jury did not understand the jury
instructions?
As we recently discussed, Rule 606(b), M.R.Evid., allows the
use of juror affidavits to impeach the jury verdict only to show
external influences on the jury. O'Leyar v. Callender (Mont.
l992), 843 P.2d 394, 309-10, 49 St.Rep. 2008, 1011. A juror may
not impeach the verdict by testifying that, because the jurors
misunderstood the jury instructions, the verdict had an unintended
effect. In this case, there are no allegations of external
influence on the jury. The District Court, therefore, properly
granted defendant's motion to strike the juror affidavits.
IV.
In viewing the evidence in the light most favorable to RegO,
could a jury find that Greytak voluntarily and unreasonably exposed
herself to a known danger?
Greytak argues that the court should have granted her motion
for judgment notwithstanding the verdict because the evidence was
insufficient to justify the verdict. The basis for Greytak's
argument is essentially the same as her reasoning in the first
issue--that she did not know the valve was defective. Greytak
further argues that her actions, after discovering that her
basemmt was full of propane, were negligence in attempting to
rescue herself from the peril rather than assumption of risk.
*!A judgment notwithstanding the verdict will be granted only
when the evidence presents no room whatsoever for honest difference
of opinion over the factual issue in controversy.It Walters v.
Getter (l988), 232 Mont. 196, 203, 755 P.2d 574, 578. A court must
not grant a motion for judgment notwithstanding the verdict unless
it appears that the non-moving party cannot prevail on the issue
when the evidence is viewed in the light most favorable to it.
Larson v. K-Mart Corp. (l99O), 241 Mont. 428, 433, 787 P.2d 361,
364.
As discussed above in issue I, there was ample evidence for
the jury to determine that Greytak knew of the dangerous
accumulation of propane, then voluntarily and unreasonably exposed
herself to the danger. As a matter of law, that is all that was
required to justify a finding that Greytak assumed the risk of her
injuries. See Krueqer, 783 P.2d at 1347. The District Court was
correct in d e n y i n g Greytakls motion f o r judgment n o t w i t h s t a n d i n g
the verdict.
v.
Did the District Court abuse its discretion by granting
Greytak a new trial on the grounds that the jury instructions
contained an error in law?
The District Court granted Greytak's motion for a new trial.
This Court will reverse a district court's order granting a new
trial only for a manifest abuse of discretion. Tigh v. College
Park Realty Co. (1967), 149 Mont. 358, 362, 427 P.2d 57, 60. We
would uphold the District Court's order granting a new trial if it
could be sustained on any grounds named by the court. See Tiqh,
427 P.2d at 60. The order in this case, however, cannot be
sustained.
The sole reason that the court stated in granting a new trial,
is that the jury instructions did not clarify that Greytak was
barred from recovery if t h e j u r y found t h a t she was more than 50
percent responsible for her injuries. The court determined that
instruction 2 3 when read with questions 4 and 5 of the special
verdict is inappropriate under Montana law. We disagree.
Instruction 2 3 stated in pertinent part:
Assumption of the risk on the part of Plaintiff does
not bar her recovery unless her responsibility for the
injury is greater than the defendants'. However, the
total amount of damages which you award will be reduced
by the Court according to the percentage of plaintiff's
responsibility, as determined by you.
Question 4 of the special verdict stated:
You must now apportion the responsibility for the
cause of this accident between Sigrid Greytak and RegO
Company/Butler Manufacturing Company. If the total
responsibility is loo%, what percentage of this 100% is
attributable to Sigrid Greytak and what percentage to
RegO Company/Butler Manufacturing Company?
Question 5 stated:
What is the total amount of Sigrid Greytak's damages
without regard to your answers to questions 3 and 4 ?
The court's order does not question whether the evidence was
sufficient to support the jury's finding. Rather, the District
Court granted a new trial based on errors of law. The order stated
that the jury instructions were erroneous because "[nowhere] in
[instruction 2 3 1 was the jury advised that a finding by them of 50%
or more would bar the Plaintiff from recovery." That is simply
incorrect.
It follows from instruction 2 3 that if the jury determined
Greytak's responsibility for her injuries was greater than that of
the defendants', then assumption of risk on the part of Greytak
bars her recovery. Therefore, instruction 2 3 clearly stated the
law.
Furthermore, Greytak's counsel did not object to the
instructions at trial as is required both for this Court to review
them and for the District Court to grant a new trial. See Rule 51,
M.R.Civ.P.; Ahmann 766 P.2d at 860: 5 25-11-102(7), MCA. In fact,
Greytakls counsel proposed instructions that were virtually
identical to those he objected to on appeal.
In the post-trial motions Greytak asserted that the jury was
hopelessly confused. She contends that the problem could have been
solved by adding to question 4 of the special verdict, "If you
attribute more than 50% of the responsibility for this accident to
Sigrid Greytak, then do not proceed to Question 5 .... II
Greytakls counsel, however, did not offer the added language
at trial. On the contrary, the special verdict he offered
contained language substantially similar to that used by the court.
Section 25-11-102, MCA, provides the grounds for a new trial.
At issue in this case is 5 25-11-102(7), MCA, which allows a court
to vacate a verdict and grant a new trial for an "error in law
occurring at the trial and excepted to by the party making the
application."
The District Court manifestly abused its discretion in
granting a new trial because (1) the jury instructions did not
contain an error in law; and (2) plaintiff's counsel did not object
to the sufficiency of the instructions at trial.
In summary, the District Court was correct in submitting the
issue of assumption of risk to the jury. Greytak is not entitled
to a new trial based on errors in the jury instructions. The court
correctly ruled that the affidavits were not admissible to impeach
the verdict based on a misunderstanding of the jury instructions.
The court was correct in denying Greytak's judgment notwithstanding
the verdict because there was plenty of evidence for the jury to
determine that she assumed the risk. Finally, the District Court
abused its discretion by granting a new trial. We reverse the
order granting a new trial and direct entry of judgment. We affirm
all other issues.
Justice ,'
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Chief Justice