Hood v. Roadtec, Inc.

785 S.W.2d 359, 1989 Tenn. App. LEXIS 468
CourtCourt of Appeals of Tennessee
DecidedJune 30, 1989
StatusPublished
Cited by7 cases

This text of 785 S.W.2d 359 (Hood v. Roadtec, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hood v. Roadtec, Inc., 785 S.W.2d 359, 1989 Tenn. App. LEXIS 468 (Tenn. Ct. App. 1989).

Opinions

OPINION

GODDARD, Judge.

In this products liability action, Roadtec, Inc., and Astee Industries, Inc., Defendants-Appellants, appeal a jury verdict in favor of Harold and Sandra Hood, Plaintiffs-Appellees. The Defendants urge this Court to vacate the judgment below and order a new trial, primarily because of the Plaintiffs’ failure to disclose the identity of a witness during the principal discovery stage of the lawsuit. For the reasons that follow, we vacate the judgment below and remand the case for a new trial.

[361]*361In August 1986, the Hoods filed suit against the Defendants, both Tennessee corporations engaged in the business of designing, manufacturing, and selling road paving equipment. Roadtec is a wholly-owned subsidiary of Astee. The Hoods sought compensation for injuries suffered by Mr. Hood in a road construction accident involving a road paving machine manufactured and sold to Mr. Hood’s employer by Roadtec.

The accident occurred at the end of the working day when a paving crew, working under the supervision of Mr. Hood, had finished paving a section of road. At the direction of Mr. Hood, the operator of the self-propelled paver, Mr. Tipton, drove the paver to the edge of an embankment by the roadside in order to discharge asphalt that was still contained inside the paver. Two employees shoveled the asphalt down the embankment as it was being discharged. Thereafter, Mr. Tipton drove the paver forward, perpendicular to the road, with the back portion of the paver approximately six to nine feet from the edge of the embankment. Mr. Tipton testified that he then engaged the emergency brakes and got up from his seat to change gears. At this point, the paver began to roll backwards toward the embankment. Mr. Tipton testified that he returned to the driver’s seat and applied the foot brakes which failed. He jumped from the paver as it was about to go over the embankment.

Mr. Hood, seeing that the paver was rolling toward the two men working behind it, stepped up onto the back portion of the paver and attempted to engage the emergency brakes three or four times but to no avail. He testified that when he climbed onto the paver, the emergency brake was already in the on position. He jumped off the machine as it rolled off the embankment. However, the machine landed on top of him, severely injuring his legs.

In their complaint, the Hoods set forth claims based on strict liability, negligence, and breach of warranty. At trial, the Plaintiffs submitted the case to the jury solely on the theory of strict liability.

The jury returned a verdict in favor of Mr. Hood in the amount of $850,000 and in favor of Mrs. Hood in the amount of $100,-000. Pursuant to a compromise agreement between the parties, judgment was entered against the Defendants in the amount of $675,000 for Mr. Hood and $75,000 for Mrs. Hood.1

The Defendants maintained at trial that the accident could not have happened in the manner in which Mr. Hood claims, highlighting the fact that both the emergency and foot brakes of the paver worked immediately before and after the accident. Specifically, the Defendants’ experts asserted that it was impossible for separate and independent braking systems (parking brakes and foot brakes) to both work one moment, stop working the next, and then both suddenly start operating again. Their aim was to prove that the accident was caused by operator error instead of a defect in the paver.

The first two issues raised by the Defendants concern the testimony of Willie Wooden whose identity was not disclosed during the principal discovery efforts of the parties, but whose deposition was ultimately taken on March 31, 1988, five days before the trial. Shortly after the case was commenced, the Defendants propounded an interrogatory request to the Plaintiff which stated:

2. Identify ... all persons known to you who have knowledge or information pertaining to your allegations in this action or to the accident, and with respect to each such person, identify ... and describe the substance of his knowledge or information.

It was not until three weeks prior to trial and after four motions to compel and threats of dismissal by the Trial Judge, that the Plaintiffs disclosed the identity of Mr. Wooden in a witness list. Specifically, eleven days prior to trial, the Plaintiffs disclosed that Mr. Wooden, an employee of [362]*362a contractor who had borrowed the subject paver from Mr. Hood’s employer on several occasions in the past, had experienced similar problems with the brakes both before and after Mr. Hood’s accident. His testimony as to the incident before Mr. Hood was injured was allowed over the objections of the Defendants which were made at the pre-trial conference three days before trial and at the trial itself. The Trial Judge offered the Defendants a continuance of two or three days which was refused. He then ruled that there was no prejudice to the Defendants by allowing Mr. Wooden to testify.

The Defendants maintain that Mr. Wooden’s testimony should have been excluded because his identity was not disclosed before the Defendants had fully developed a defense to support their theory of the case. The Plaintiffs assert that the Defendants knew of Mr. Wooden despite the omission of his identity prior to the witness list and that in any event his testimony was cumulative.

In determining whether a previously unnamed witness should be prevented from testifying, courts are to consider the reasons given for the failure to disclose the person’s identity, the importance of the testimony, the need for time to prepare to meet the testimony, and the possibility of a continuance. Strickland v. Strickland, 618 S.W.2d 496 (Tenn.App.1981). As was made clear in Strickland, the broad scope of the discovery rules was in an intentional effort to rid trials of the element of surprise, which often led, prior to the adoption of the present discovery rules, to results based on unexpected legal maneuvering rather than upon the merits. Obviously, failing to disclose the identity of persons with discoverable knowledge prevents litigants from making adequate trial preparations.

With the factors set forth in Strickland as a guide, we are persuaded that the Trial Judge should have excluded the testimony of Mr. Wooden or at least have granted a longer continuance. The record shows that the Plaintiffs’ counsel had interviewed Mr. Wooden three months before being asked to produce the names of people with discoverable knowledge in the interrogatory request. Mr. Wooden was again interviewed by the Plaintiffs’ counsel some two months prior to trial. Yet, his identity and the substance of his testimony, was not disclosed in any manner until two weeks before trial when witness lists were exchanged.2

We agree with the Trial Judge that there was no excuse for not revealing the identity of Mr. Wooden prior to the exchange of the witness lists. We find nothing in the record to support the Plaintiffs’ assertion that the Defendants knew of the problems experienced by Mr. Wooden prior to the time that his name appeared on the witness list. Mr. Wooden stated in his deposition that he had never told the Defendants that the brakes on the paver did not work, but only that he did not like the brakes. In short, the record lacks any credible reason to justify the non-disclosure.

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Bluebook (online)
785 S.W.2d 359, 1989 Tenn. App. LEXIS 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hood-v-roadtec-inc-tennctapp-1989.