Kleinsasser v. Superior Derrick Service, Inc.

708 P.2d 568, 218 Mont. 371, 1985 Mont. LEXIS 923
CourtMontana Supreme Court
DecidedNovember 5, 1985
Docket84-491
StatusPublished
Cited by15 cases

This text of 708 P.2d 568 (Kleinsasser v. Superior Derrick Service, Inc.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kleinsasser v. Superior Derrick Service, Inc., 708 P.2d 568, 218 Mont. 371, 1985 Mont. LEXIS 923 (Mo. 1985).

Opinions

MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiff appeals a judgment entered on a jury verdict for defendants in the Thirteenth Judicial District, Yellowstone County. The jury answered on a special verdict form that defendant manufacturer and its supervisory employee were not negligent and therefore not a proximate cause of plaintiff’s injuries resulting from a fall while engaged in erection of an oil derrick “A-frame” designed and manufactured by defendant.

Plaintiff unsuccessfully moved for a new trial and filed this appeal on the grounds of insufficient evidence to support the jury verdict and error in refusing to give plaintiff’s proposed instruction.

We affirm the judgment, holding that there was substantial evidence to support the jury .verdict. We also hold that plaintiff was not prejudiced by the court instruction involving aspects of strict [373]*373liability where the case was submitted to the jury on the issue of negligence alone.

Appellant raises the issues of sufficiency of the evidence to support the jury verdict and possible error in jury instructions in bringing this appeal. While appellant also raises the issue of possible abuse of discretion on the part of the trial court in refusing to allow certain testimony of his vocational expert, we need not consider this issue, which goes to damages, when there is sufficient evidence to support the jury verdict finding defendants not negligent.

Martin Kleinsasser worked as a derrick hand for Molen Drilling Company which purchased a new mast from Superior Derrick Service, Inc., for fitting to Molen’s existing substructure. Bobby Bradley, Superior Derrick’s field representative from Houston, generally supervised the assembly.

On May 3, 1981, while Bradley was not present, Molen’s crew prepared to raise an “A-frame” designed and manufactured by Superior Derrick, a smaller structure used to provide a point of leverage to winch the mast from the horizontal to the vertical. Superior Derrick’s assembly plans called for four % ” by 3” bolts, but the assembly package contained 3A ” by 4” bolts. Molen’s crew chose to go to nearby Rig Supply store owned by their employer’s son (and once owned by Molen) and pick out the hardest 3” bolts available, instead of using the 4” bolts and washers to tighten the fit.

There is conflicting testimony about Bradley’s knowledge of the substitution, but the jury chose to believe that Bradley neither knew nor authorized the use of the substituted bolts and, in fact, did not see the bolts until after the accident. He claimed that Molen’s supervisor had said he was not needed and could get ready to return to Houston.

The softer, nonstructural bolts sheared or bent as the crew raised the A-frame. Kleinsasser, standing with the crew on the platform, fell fifteen feet to the ground as the A-frame fell. He broke his left wrist and left heel. When Chuck Doornek, Molen’s supervisor, called Bradley at the motel to report the accident, Bradley returned to the scene. He noted that the bolts were not “our bolts” and located the bolts provided by Superior Derrick. While the body of the bolt was too long, the bolt itself was the right width. With washers, the crew put the bolts in, tightened them up, and satisfactorily hoisted the A-frame. The high-strength bolts furnished with the assembly package held.

Plaintiff attempted to establish at trial that Superior Derrick had [374]*374provided the wrong bolts, that Superior Derrick had failed to provide a “spreader bar” (a device to spread the legs of the A-frame in raising the structure), and that Bobby Bradley had negligently supervised in allowing the crew to raise the structure with softer bolts and without his presence. Plaintiff had already settled with Rig Supply for its negligence in providing nonstructural bolts for the job.

Sufficiency of the evidence. We will not reverse a judgment based upon a jury verdict if there is substantial evidence in the record to support the jury verdict. Lackey v. Wilson (Mont. 1983), [205 Mont. 470,] 668 P.2d 1051, 1053, 40 St.Rep. 1439, 1441. We review in the light most favorable to the prevailing party, reversing only when there is a lack of substantial evidence to support the judgment based upon the jury verdict. Gunnels v. Hoyt (Mont. 1981), 633 P.2d 1187, 1191, 39 St.Rep. 1492, 1495; Farmers Union Grain Terminal v. Montana Power Company (Mont. 1985), [216 Mont. 289,] 700 P.2d 994, 996, 42 St.Rep. 815, 818.

The “substantial evidence” test variously expressed allows reversal only if there is a complete absence of probative facts to support the verdict (Griffel v. Faust (Mont. 1983), [205 Mont. 372,] 668 P.2d 247, 249, 40 St.Rep. 1370, 1372), or if the evidence is so overwhelming there is no room for an honest difference of opinion on the issue of causation (Farmers Union Grain Terminal, 700 P.2d at 997), or if there is a complete absence of any credible evidence in support of the verdict (Barmeyer v. Montana Power Company (Mont. 1983), [202 Mont. 185,] 657 P.2d 594, 597, 40 St.Rep. 23, 25). However, where there was admissible probative evidence on the absence of negligence or failure of proximate cause, the verdict for a defendant utility was not disturbed on a sufficiency basis. Barmeyer, 657 P.2d at 597.

We hold that the jury had sufficient evidence to determine that the defendant manufacturer and its supervisor were not negligent. It is not our function to agree or disagree with the jury verdict in reviewing, but rather to search for sufficient evidence on the record. Griffel, 668 P.2d at 249. Questions of fact are for the jury to resolve and should not be taken from the jury because some evidence furnishes reasonable grounds for different conclusions. Gunnels, 633 P.2d at 1192.

Plaintiff should not expect this Court to retry his case because the jury chose to believe the evidence presented by defendant over that of plaintiff. The jury can choose to adopt testimony offered by one [375]*375side to the exclusion of the other and is free to disregard testimony, including expert testimony. Tompkins v. Northwestern Union Trust Company of Helena, Montana (Mont. 1982), 198 Mont. 170, 645 P.2d 402, 408, 39 St.Rep. 845, 853. The jury had admissible probative evidence which was credible, supported the verdict, and led to their conclusion that defendants were not the cause of plaintiffs injuries.

Jury instructions. Appellant contends that the court erred in failing to give his offered instruction on strict liability which he drew verbatim from Restatement (Second) of Torts, Section 402A (1965). Instead, the court gave defendants’ offered instruction over plaintiffs objection. Appellant contends that the case presented at trial as to the manufacturer’s strict liability in tort for a design, manufacturing or material defect resulting from the absence of a spreader bar was not adequately covered by the instruction the court gave.

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Kleinsasser v. Superior Derrick Service, Inc.
708 P.2d 568 (Montana Supreme Court, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
708 P.2d 568, 218 Mont. 371, 1985 Mont. LEXIS 923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kleinsasser-v-superior-derrick-service-inc-mont-1985.