Christopherson v. Deere & Co.

941 F.2d 692, 1991 U.S. App. LEXIS 18378, 1991 WL 151210
Court of Appeals for the Eighth Circuit·Decided August 12, 1991·No. No. 90-2231·Published·Cited by 19 cases

Opinions

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[694] sible 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

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Christopherson v. Deere & Co., 941 F.2d 692, 1991 U.S. App. LEXIS 18378, 1991 WL 151210 (8th Cir. 1991).

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