Christopherson v. Deere & Co.

BOWMAN, Circuit Judge.

Plaintiffs Curtis M. and Monica R. Chris-topherson appeal from the final judgment entered on the jury verdict in their products liability action. The jury awarded compensatory damages to plaintiffs, denied their claim for punitive damages and, applying the Iowa law of comparative fault, found Curtis Christopherson responsible for twenty percent of his injuries. Federal subject matter jurisdiction is based upon diversity of citizenship. 28 U.S.C. § 1332(a)(1) (1988). Appellate jurisdiction is based upon 28 U.S.C. § 1291 (1988). We affirm.

Only a brief statement of the facts is necessary. The injury from which this suit arises occurred while Curtis Christopher-son was attempting to remove beans from beneath the vertical unloading auger of his father’s Titan series combine. The design of the combine, which was manufactured by defendant Deere and Company (Deere), made it necessary for the user periodically to remove by hand grain or beans that had accumulated in the sump area below the vertical unloading auger. To facilitate this task, Deere had incorporated on the housing of the vertical unloading auger a small clean-out door, large enough to permit the combine user to reach in and scoop out the accumulated grain or beans. Users of the Titan combines also had found that the cleaning process was made easier by briefly engaging the auger during the cleaning of the combine to dislodge any grain or beans that were stuck in the system. On September 20, 1984, Curtis’s right hand was severely injured when he reached in through the clean-out door to remove excess beans and his father, third-party defendant Howard Christopherson, briefly engaged the auger.

Curtis Christopherson and his wife Monica initiated this action in the District Court1 seeking actual and punitive damages against Deere under Iowa’s laws of strict liability. Deere in turn filed a third-party claim against Howard Christopher-son. Curtis and Monica Christopherson did not file any claims against Howard Christo-pherson. The case proceeded to a trial by jury.

After approximately six hours and forty minutes of deliberations, the jury returned a unanimous verdict finding Curtis Christo-pherson’s damages to be $100,000 and Monica’s damages for loss of consortium to be $3000. In addition, the jury unanimously found that Deere was fifty percent respon*694sible for Curtis’s injuries, that Howard Christopherson was thirty percent responsible, and that Curtis was twenty percent responsible. The jury also returned a non-unanimous verdict, signed by seven of the eight jurors,2 denying the request for punitive damages. The District Court then entered judgment against Deere for $50,000 in favor of Curtis Christopherson and for $1,875 in favor of Monica Christopherson.3 Because neither plaintiff made a claim against Howard Christopherson, the court refused to hold Deere jointly and severely liable for his thirty percent of the fault and, consequently, no judgment was entered against him on Deere’s third-party claim. The court also ordered that costs be divided among the parties in accordance with their percentages of fault.

Plaintiffs ask this Court to order a new trial, arguing that the jury instruction on assumption of risk was erroneous. We conclude that this argument has not been preserved for appellate review. Plaintiffs’ argument to us is that instruction number twenty-four, the assumption of risk instruction, misstated Iowa law by using the phrase “voluntarily assumed the risk” rather than “voluntarily and unreasonably assumed the risk.” The plaintiffs point out that, under Iowa law, to assume a risk one must “voluntarily and unreasonably” accept a known risk, see, e.g., Hughes v. Magic Chef, Inc., 288 N.W.2d 542, 545 (Iowa 1980), and that the omission of the word “unreasonably” from the instruction given the jury ordinarily constitutes reversible error. Cf. Garnes v. Gulf & Western Mfg. Co., 789 F.2d 637, 642 (8th Cir.1986) (finding reversible error where jury instruction omitted the concept of reasonableness). Here, however, plaintiffs’ only objection to instruction twenty-four was that the evidence was insufficient to justify an assumption of risk instruction, not that the instruction itself contained an incorrect statement of the law. Cf. Garnes, 789 F.2d at 640-41 (defendant specifically objected to the instruction on the basis that it incorrectly stated its duties under Iowa law). Rule 51 requires that an objection to a jury instruction state “distinctly the matter objected to and the grounds of the objection.” Fed.R.Civ.P. 51. Plaintiffs’ objection here was insufficient to preserve the issue they now seek to raise for appellate review, and we therefore will reverse on the basis of this instruction only if we find plain error. See, e.g., Tinnon v. Burlington Northern R. Co., 898 F.2d 1340, 1343 (8th Cir.), cert. denied, — U.S. -, 111 S.Ct. 255, 112 L.Ed.2d 213 (1990).

“[A]ny plain error exception to compliance with Rule 51 is ‘confined to the exceptional case where error has seriously affected the fairness, integrity or public reputation of judicial proceedings,’ ” Smith v. Honeywell, Inc., 735 F.2d 1067, 1069 (8th Cir.), cert. denied, 469 U.S. 1077, 105 S.Ct. 576, 83 L.Ed.2d 516 (1984) (quoting Rowe Int’l v. J-B Enterprises, 647 F.2d 830, 835 (8th Cir.1981)), and has “contribute[d] to a miscarriage of justice.” United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 1047, 84 L.Ed.2d 1 (1985). This exacting standard has not been met here, as the essential fairness of the trial was not undercut by the omission of the word “unreasonably” from instruction twenty-four, and plaintiffs, who have been awarded substantial compensatory damages, have not suffered a miscarriage of justice.4

*695Plaintiffs also argue that the District Court erred as a matter of law by refusing to hold Deere jointly and severally liable for the portion of damages assessed against Howard Christopherson. The District Court declined to hold Deere jointly and severally liable with Howard because plaintiffs had elected their remedy by choosing not to sue Howard and therefore it would be inequitable to saddle Deere with Howard’s portion of the responsibility for plaintiffs’ injuries. Plaintiffs urge us to find that the District Court’s ruling conflicts with the provisions of Iowa’s comparative fault statutes. They do not challenge the District Court’s conclusion that joint and several liability is inappropriate here by virtue of Iowa’s doctrine of election of remedies, or its conclusion that it would be inequitable to permit plaintiffs to recover from Deere upon that portion of fault attributed to Howard Christopherson. Having reviewed the disputed question of Iowa law de novo, see Salve Regina College v. Russell, — U.S. -, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991), we hold that the District Court’s ruling does not conflict with Iowa’s comparative fault statutes.

Plaintiffs’ argument is based upon an overly broad reading of two sections of Iowa’s comparative fault statutes. The first section, Iowa Code Ann. § 668.4 (West 1987), provides that “[i]n actions brought under this chapter, the rule of joint and several liability shall not apply to defendants who are found to bear less than fifty percent of the total fault.” Iowa Code Ann. § 668.4 (West 1987). The second section, Iowa Code Ann. § 668.3(1) (West 1987), provides that:

[contributory fault shall not bar recovery in an action by a claimant to recover damages for fault resulting in death or in injury to person or property unless the claimant bears a greater percentage of fault than the combined percentage of fault attributed to the defendants, third-party defendants and persons who have been released pursuant to section 668.7, but any damages allowed shall be diminished in proportion to the amount of fault attributable to the claimant.

Iowa Code Ann. § 668.3(1) (West 1987). Plaintiffs assert that section 668.4 not only prohibits joint and several liability when the defendant is less than fifty percent at fault, but that it also mandates joint and several liability in every case in which the defendant is at least fifty percent at fault. They also assert that the policies underlying Chapter 668 require that this allegedly mandatory joint and several liability apply to the fault of all the parties,5 excluding the claimant, even if the claimant has not sued all the parties found to be at fault. We disagree.

Neither of the sections upon which plaintiffs rely addresses the situation in which one party is assessed with at least fifty percent of the fault,6 nor does either section address the issue of joint and several liability where a party that the plaintiff did not sue is assessed with fault. Furthermore, plaintiffs have not referred us to any ambiguity in either section, nor can we find any, that justifies construing these sections *696in the manner plaintiffs suggest. See, e.g., State v. Landals, 465 N.W.2d 660, 662 (Iowa 1991) (“When a statute is plain and its meaning clear ... we should not reach for meaning beyond its express terms.”). Finally, we are unconvinced that the policies behind Chapter 668 require that a defendant be jointly and severally liable to the claimant for the fault of a party not sued by the claimant. None of plaintiffs’ cases supports such a conclusion, see, e.g., Kopsas v. Iowa Great Lakes Sanitary Dist. of Dickinson County, 407 N.W.2d 339, 340-41 (Iowa 1987); Dumont v. Keota Farmers Coop., 447 N.W.2d 402, 405-06 (Iowa Ct.App.1989), nor does section 668.-3(1), upon which plaintiffs rely almost exclusively for their public policy argument.7 To the contrary, other sections of Chapter 668 evidence a public policy supportive of the District Court’s decision. See, e.g., Iowa Code Ann. § 668.7 (West 1987) (requiring that claimant’s recovery be reduced by the amount of fault attributed to parties with whom the claimant has executed releases, covenants not to sue, and similar agreements).8 We therefore reject the plaintiffs’ argument and we hold that the District Court’s judgment does not conflict with the express provisions of, or the policies behind, Iowa Code Chapter 668.

For the reasons set forth above, we find that any error in the jury instruction on assumption of risk did not rise to the level of plain error and that the District Court’s conclusion not to hold Deere jointly and severally liable for Howard Christopher-son’s fault was not an error of law. Because we also find no merit in the other issues raised by plaintiffs, the judgment of the District Court is affirmed.9

. The Honorable Donald E. O'Brien, Chief United States District Judge for the Northern District of Iowa.

. The jury was instructed that if they could not reach a unanimous verdict after six hours of deliberations, they then were permitted to return a non-unanimous verdict in which only seven out of the eight jurors must agree. The plaintiffs originally challenged this instruction on appeal. However, during oral arguments they conceded that the issue was not preserved for appellate review and they therefore withdrew that argument from consideration.

. The $1,875 figure was determined by multiplying the total award to Monica Christopherson by Deere's percentage of fault divided by the total percentage of fault excluding that of Curtis Christopherson. Thus $3,000 x (50%/50% + 30%) = $1,875. This result is in accordance with Iowa law. See Schwennen v. Abell, 430 N.W.2d 98, 103 (Iowa 1988) (en banc).

.In allocating twenty percent of the fault for the accident to Curtis Christopherson, the jury necessarily considered the reasonableness of his conduct.

. As used in Iowa Code Chapter 668, the term "party” has a specific legal definition including:

1. A claimant.
2. A person named as defendant.
3. A person who has been released pursuant to section 668.7.
4. A third-party defendant.

Iowa Code Ann. § 668.2 (West 1987). Thus, in the case now before us, Howard Christopherson is a "party” under subsection 4 of this section, despite the fact that he was not sued by the plaintiffs. Cf. Dumont v. Keota Farmers Coop., 447 N.W.2d 402, 404-05 (Iowa Ct.App.1989) (holding that a joint tortfeasor that is dismissed without prejudice before trial is not a “party” under section 668.2 and therefore should not be included in the apportionment of fault).

. Iowa’s courts have held that section 668.4 is directed only to those case in which the defendant’s fault is less than fifty percent and that it does not alter the common law of joint and several liability in those instances in which the defendant is at least fifty percent at fault. See, e.g., Dumont v. Keota Farmers Cooperative, 447 N.W.2d 402, 406 (Iowa App.1989). Furthermore, Iowa’s courts have yet to address the question of whether common law joint and several liability applies in a comparative fault setting in which at least one tortfeasor who qualifies as a party under section 668.2, and who is found to be partially at fault, is not sued by the plaintiff.

. Plaintiffs’ discussion of how section 668.3(1) evidences the public policy behind Iowa’s statutes is actually nothing more than a quotation of the statute emphasizing the phrase “any damages allowed shall be diminished in proportion to the amount of fault attributable to the claimant.” Appellants’ Brief at 15-16 (quoting Iowa Code § 668.3(1) (West 1987)).

. Section 668.7 is not applicable directly to the case at bar as the record here does not contain evidence of the types of agreements addressed in section 668.7 — releases, covenants to not sue, and similar agreements. Cf. Dumont v. Keota Farmers Coop., 447 N.W.2d 402, 405 (Iowa Ct. App.1989) (holding that section 668.7 does not cover a plaintiffs dismissal of a defendant without prejudice). However, this section is relevant for the purpose of determining whether the public policy behind Iowa Code Chapter 668 calls for the imposition of joint and several liability under the facts presently before us. It is for that purpose that we refer to it.

.Plaintiffs argue there was insufficient evidence to justify instructing the jury on the issue of assumption of risk, and that the District Court abused its discretion by assessing costs to the parties in the same proportions as the fault assessed against each party by the jury. Both of these arguments are meritless, and neither warrants discussion.