,
No. 94-457
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
EMMA JEAN "E . J. II HANDO,
Plaintiff and Appellant,
-vs- JUL 2 5 1995
PPG INDUSTRIES, INC., ETC., cf'$2Ltid
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Defendant, Respondent and Cross-Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Don Edgar Burris, Attorney at Law, Billings,
Montana
For Respondent: -
W. Anderson Forsythe and Brad H. Anderson; Moulton,
Bellingham, Longo & Mather, B,illings, Montana
Submitted on Briefs: March 30, 1995
Decided: July 25, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Emma Jean Hando (Hando) appeals from an order of the
Thirteenth Judicial District Court, Yellowstone County, denying her
motion for a new trial. We affirm.
The dispositive issue on appeal is whether the District Court
abused its discretion in denying her motion for a new trial based
on the improper admission of evidence regarding Spring Creek Coal
Company (SCCC).
SCCC employed Hando as a control room operator at its mine in
Decker, Montana. During a production break in the summer of 1981,
SCCC assigned employees to various painting projects around the
mine site. The paint, which was manufactured by PPG Industries,
Inc. (PPG) , was surplus paint used in a prior painting project.
SCCC transferred the paint from five-gallon drums to smaller
containers which then were given to painting personnel, including
Hando. Neither the five-gallon drums nor the smaller containers
provided to the employees contained warnings concerning health
risks posed by use of the paint.
After using the paint for a period of time, Hando began
experiencing physical problems which included dizziness, light-
headedness, headaches, depression, and vaginal bleeding. After the
painting was completed in September 1981, Hando's symptoms slowly
improved.
Seven months later, Hando began using the same PPG-
manufactured paint to paint the control room where she worked.
During this project, the paint was contained in one-gallon cans
2
purchased from a supplier. She painted for one and one-half days
and almost immediately experienced physical symptoms similar to
those she experienced in 1981. Hando states that she lost
consciousness on the second day of the control room painting
project and that her symptoms increased following that incident.
Hando sought medical treatment for her symptoms which, at that
time, included sensitivity to chemicals and fumes. She eventually
was diagnosed as having extreme chemical sensitivity. According to
her doctors, Hando was totally disabled from performing her work
due to an inability to tolerate exposure to chemicals commonly
found in her work environment. Several months later, while working
in SCCC's front offices, Hando retrieved a label listing several
health warnings from a One-gallon can of paint she had used in
painting the control room.
On October 25, 1985, Hando filed a complaint, later amended,
against PPG, SCCC, and NERCO, SCCC'S parent corporation. Her
claims against PPG alleged negligence and product liability based
on placing a dangerous product in commerce with inadequate
warnings. Hando settled her claims against SCCC, The District
court subsequently granted summary judgment in NERCO's favor on the
issue of whether it had a duty to provide a safe workplace to
Hando; the court denied NERCO's and PPG's motions for summary
judgment on the statute of limitations. All parties appealed, and
we affirmed. We held, in pertinent part, that NERCO, as SCCC's
parent corporation, did not have a duty to provide Hando with a
safe workplace. Hando v. PPG Industries, Inc. (1989), 236 Mont.
3
493, 500, 771 P.Zd 956, 961. Thus, after the first appeal, only
PPG remained as a party defendant.
Hando's negligence and failure to warn claims against PPG were
tried to a jury. The jury returned a verdict finding that PPG was
not negligent and that PPG's paint was not in an "unreasonably
dangerous defective condition."
Hando moved for a new trial under subsections (l), (6), and
(7) of § 25-11-102, MCA. The essence of her argument in each
regard was that PPG's presentation of evidence shifting blame to
SCCC permitted the jury to consider her employer's negligence, in
violation of § 27-l-703(4), MCA. The District Court denied Hando's
motion and Hando appeals.
Hando couches her argument as an error of law by the District
Court in not enforcing the provisions of § 27-l-703(4), MCA, which
provides, in pertinent part:
in attributing negligence among persons, the trier of
fact may not consider or determine any amount of
negligence on the part of any injured person's,employer
o r coemployee to the extent that such employer or
coemployee has tort immunity under the Workers'
Compensation Act or the Occupational Disease Act of this
state . .
In essence, however, her argument is that the District Court erred
in admitting PPG's evidence regarding SCCC's safety procedures to
protect its employees and alleged coercion against employees who
refused to paint. PPG contends that Hando presented evidence
relating to SCCC s conduct during her own testimony and,
furthermore, that she failed to object when PPG followed up by
introducing additional evidence of SCCC's conduct toward employees
4
who were exposed to the paint.
Our standard in reviewing a district court's ruling on a
motion for a new trial is whether the court abused its discretion.
Brockie v. OmO Const., Inc. (1994), 268 Mont. 519, 525, 887 p.2d
167, 170. Determinations regarding admissibility of evidence also
are within the broad discretion of the trial court and we will not
reverse a court's determination absent an abuse of that discretion.
King v. Zimmerman (1994), 266 Mont. 54, 65, 878 P.2d 895, 902.
The record is clear that the general subject of SCCC's conduct
and evidence regarding some of SCCC's specific acts or omissions
first were presented during Hando's case-in-chief. Hando testified
on direct examination that SCCC did not provide her with special
gloves or clothing to use when painting. Regarding the respirator
SCCC provided, she opined that it was designed only for dusty
conditions and was not appropriate for use when painting. She also
testified that, a few days after painting began, SCCC provided the
employees "paint mitts" to speed the painting process and that the
mitts resulted in direct contact between the paint and the
employees' hands.
Regarding the second painting project, Hando testified that
SCCC again did not provide her with gloves, special clothing, or
the correct respirator. She told the jury that the label on the
one-gallon paint can provided to her recommended using the paint in
a well-ventilated area. In response to that recommendation, she
stated that she took the only precautions available by running
several fans in the room and opening a window, but that those
5
precautions did not sufficiently ventilate the control room. Hando
also testified that SCCC again provided respirators, but that they
were ineffective against the paint fumes. It appears that Hando's
SCCC-related testimony was presented to blunt, in advance, any
suggestion by PPG that her own conduct caused, or contributed to,
her injuries.
On cross-examination, PPG's counsel followed up on Hando's
direct testimony about SCCC's conduct. Hando responded that her
supervisors provided employees with warnings about the paint. She
testified that, while SCCC provided respirators, she decided that
they were insufficient for employees who painted and impractical to
use. She did not request a different type of respirator.
During its case, PPG presented testimony from two SCCC
employees who described SCCC's safety precautions toward employees
assigned to painting projects. Howard Smothers testified that SCCC
had charcoal respirators specifically designed to deflect paint
vapors available and that employees were advised to wear the
respirators when painting. When he observed Hando painting, she
was not wearing a respirator. Hando cross-examined this witness
about whether SCCC provided employees with--and trained them in the
use of--respirators. In Suk Githens also testified that SCCC
supplied respirators to be used while painting.
As a general rule, "[w]e will not put a district court in
error for a ruling or procedure in which the appellant acquiesced,
participated, or to which the appellant made no objection."
Pedersen v. Nordahl (1993), 261 Mont. 284, 287, 862 P.2d 411, 413;
6
See also Buhr v. Flathead County (1994), 268 Mont. 223, 254, 886
P.2d 381, 400. Here, the record establishes that Hando first
introduced evidence regarding SCCC's safety procedures. Thus, she
clearly participated and acquiesced in its introduction and cannot
now assert error regarding its admissibility.
Moreover, with regard to PPG's cross-examination of Hando
about SCCC's safety procedures, it is axiomatic that a witness may
be cross-examined on any subject raised or fact stated on direct
examination. Rule 611(b) (l), M.R.Evid.; Tigh v. College Park
Realty (1967), 149 Mont. 358, 364, 427 P.2d 57, 61. In addition,
the SCCC-related conduct PPG presented in its case-in-chief was
relevant and admissible under Rules 401 and 402, M.R.Evid., because
it controverted Hando's direct testimony regarding SCCC's safety
procedures. Again, Hando opened the door to the subject and cannot
now complain because PPG walked through it.
Finally, we note that, even absent Hando's opening the door to
evidence of SCCC's safety-related conduct in presenting her case,
her counsel did not object to PPG's cross-examination of Hando
regarding SCCC's conduct or to its affirmative evidence on that
subject. While we need not rely on it in this case, the general
rule is that a party's failure to object to an alleged error during
trial precludes raising the issue on appeal. - -I 886 P.2d at
See Buhr
400.
Based on the record before us, we cannot conclude that the
District Court abused its discretion in admitting the SCCC-related
evidence of which Hando now complains. Therefore, we hold that the
7
*
.
District Court did not abuse its discretion in denying Hando's
motion for a new trial.
Affirmed.
We concur:
July 25, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Don Edgar Burris
Attorney at Law
P.O. Box 2344
Billings, MT 59103
W. Anderson Forsythe
Brad H. Anderson
MOULTON, BELLINGHAM, LONGO, & MATHER
P.O. Box 2559
Billings, MT 59103
Joseph P. Mazurek, Attorney General
Clay Smith, Assistant
21.5 N. Sanders
Helena MT 5920
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY: A J
Deputy
a