Luna v. Shockey Sheet Metal & Welding Co.

743 P.2d 61, 113 Idaho 193, 1987 Ida. LEXIS 316

• Court: Idaho Supreme Court
• Decided: June 2, 1987
• Docket: 16473
• Status: Published

Opinions

HUNTLEY, Justice.

Mary and Jesus Luna appeal a jury verdict finding Shockey Sheet Metal not liable for injuries suffered by Mary Luna while working at Ore-Ida Foods, Inc. (not a party). Mrs. Luna was sprayed by exploding hot oil and severely burned while working near a fryer manufactured by Shockey Sheet Metal according to plans and specifications provided by Ore-Ida. The Lunas argue that the trial court erroneously informed the jury that joint and several liability was to apply and its implications could therefore be considered by the jury. Shockey Sheet Metal cross-appeals, arguing that the trial court erred by not granting its motions for summary judgment and directed verdict, alleging that there was no evidence of negligence by Shockey Sheet Metal and the theories of strict liability and implied warranty could not, as a matter of law, apply in the instant case.

STATEMENT OF FACTS AND PROCEEDINGS

Mary Luna was employed at the Ore-Ida plant in Burley, Idaho, controlling foam coming from “blanchers” by the use of either a “defoaming agent” or oil drawn from a “new oil line.” The defoaming agent was more effective in controlling foam, but Ore-Ida had not provided enough of the agent, and had not responded to employee requests for more. Consequently, the employees would use the new oil line located next to a fryer to control the foam. On February 10, 1982, for an unknown reason, the oil in the fryer next to the new oil line was jumping in a way that Mary Luna had not seen in her five years at Ore-Ida. As she tried to run away, the oil burst out of the fryer and sprayed onto her, causing extensive burns and permanent scarring.

The three-stage fryer which caused the accident was relatively new and had been manufactured by Shockey Sheet Metal according to plans and specifications from Ore-Ida. Shockey Sheet Metal had assisted in the installation of the fryer, which installation was at all times supervised and controlled by Ore-Ida.

Mary and Jesus Luna filed suit against Shockey Sheet Metal (but not Ore-Ida) under theories of strict liability (design and manufacturing defects and failure to warn), negligence, and breach of the implied warranties of merchantability and fitness for a particular purpose. Shockey Sheet Metal moved for summary judgment, arguing that there was insufficient evidence of a manufacturing defect to go to the jury; that Shockey Sheet Metal could not be held liable for a possible design defect, as the fryer was designed by Ore-Ida; that there was no evidence that Shockey Sheet Metal had knowledge of a defect so as to indicate a failure to warn; that there was no evidence of negligence on the part of Shockey Sheet Metal; and that there was no privity between Luna and Shockey, as required to implicate warranty theories. The trial court denied the motion for summary judgment, ruling that it was unclear whether Shockey Sheet Metal had provided any engineering or design services in connection with the fryers it manufactured for Ore-Ida; that Luna did allege a manufacturing defect in the complaint; that, at that stage of the proceedings, no one was certain of the cause of the accident; and that the court could not yet rule whether Shockey Sheet Metal was unaware of all potential dangers which existed for the operators of the fryers as such would relate to a duty to warn. The trial court further ruled as to negligence, that case law indicated that contractors of another’s design could be liable for a dangerous defect in the design if the design were “so obviously bad that a competent contractor would realize that there was a grave chance that his product would be dangerously unsafe.” Restatement (Second) of Torts, § 404 comment a. Due to the danger potential inherent when hot oil and water are in close proximity, the trial court held that the issue of negligence should also be before the jury. As to breach of warranty theories, the trial court looked to I.C. § 28-2-318, also known as “Alternative A” of § 2-318 of the UCC. The trial court noted that if Luna could not claim the benefit of an implied warranty for personal injuries as against “seller” Shockey Sheet Metal, basically no one in the “buyer” Ore-Ida corporation could, undermining the very purpose behind implied warranty theories.

During trial, evidence was presented that: Shockey manufactured and sold the fryer; that Shockey knew Ore-Ida intended to place the fryer in an area where water was extensively used; that Shockey knew that if water got into the hot fryer it posed an extreme danger, but that Shockey did not consider warning anticipated users of the fryer. After the evidentiary phase of trial, the court gave Instruction No. 53 to the jury:

If you find that defendant Shockey Sheet Metal and Welding Company’s contribution to the cause of the accident exceeds the plaintiff’s contribution to the cause of the accident, in addition to recovery for the percentage of damages caused by Shockey Sheet Metal and Welding Company, the plaintiffs may be allowed to recover from Shockey Sheet Metal and Welding Company some or all of the plaintiff’s damages including that percentage, if any, caused by Ore-Ida.

If you find that Shockey Sheet Metal and Welding Company’s contribution to the cause of the accident, if any, is equal to or less than the plaintiff’s contribution to the cause of the accident, if any, or if you find that Ore-Ida is solely responsible for the accident, then the plaintiffs will recover nothing from Shockey Sheet Metal and Welding Company.

The Lunas moved for mistrial on grounds that Instruction No. 53 erroneously allowed the jury to choose not to apply the law of joint and several liability; that the jury was misinformed as to the effect its verdict could have; and that the instruction improperly directed the jury to a consideration of who would pay the judgment. The motion was denied. Shockey Sheet Metal moved for a directed verdict at that time, which motion was also denied.

The jury returned a special verdict form finding that defendant Shockey Sheet Metal was not negligent and did not manufacture or sell the fryer in a defective and unreasonably dangerous condition; that Shockey did not breach the implied warranties of merchantability or fitness for a particular purpose; and that Shockey Sheet Metal did not negligently fail to warn of any dangers of which it should have been aware. The Lunas and Shockey Sheet Metal then filed their respective appeals.

We address first the propriety of the trial court’s Instruction No. 53 on the applicability of joint and several liability and second, the propriety of the trial court s award of discretionary costs. A discussion of the merit of Shockey Sheet Metal’s cross-appeal will not be necessary in view of our resolution of the first issue.

THE INSTRUCTION ON JOINT AND SEVERAL LIABILITY

The concept of joint and several liability is a legal principle of long-standing in Idaho. Shields v. Martin, 109 Idaho 132, 706 P.2d 21 (1985); Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1981); Tucker v. Union Oil Co. of California, 100 Idaho 590, 603 P.2d 156 (1979).¹

This court has long held that when tortious acts of several parties concurrently cause an injury, each tortfeasor is liable for the whole of the damage. (Citations omitted). As stated in Seattle First National Bank v. Shoreline Concrete, supra [91 Wash.2d 230, 588 P.2d 1308 (1978)]: “Joint and several liability is premised upon causation and indivisibility of the harm caused.” Tucker, supra, 100 Idaho at 600, 603 P.2d at 166.

Idaho Code § 6-803(3) generally limits consideration of the relative degrees of fault of joint tortfeasors to the question of contribution between themselves.

We also hold that a limitation of liability based on proportionate fault, ... would be inconsistent with I.C. § 6-803(3) which provides: When there is such a disproportion of fault among joint tortfeasors as to render inequitable an equal distribution among them of the common liability by contribution, the relative degrees of fault of the joint tortfeasors shall be considered in determining their pro-rata share solely for the purpose of determining their rights and contribution among themselves, each remaining severally liable to the injured person for the whole injury as at common law. Tucker, 100 Idaho at 598-599, 603 P.2d at 164. (Emphasis supplied).

The Lunas argue that Instruction No. 53 improperly allowed the jury to disregard the law of joint and several liability by adjusting its findings in order to achieve a certain result in the award of damages. The Lunas point to the following language from Instruction No. 53 as particularly inappropriate:

... in addition to recovery for the percentage of damage caused by Shockey Sheet Metal and Welding Company the plaintiffs may be allowed to recover from Shockey Sheet Metal and Welding Company some or all of the plaintiffs’ damages including that percentage, if any, caused by Ore-Ida.

The Lunas argue that the instruction misrepresented the law by stating that the jury could apportion which degree of causation was attributable to Shockey Sheet Metal and which, if any, was attributable to Ore-Ida when, in fact, under the law of joint and several liability, harm is not divisible. Additionally, the Lunas argue that by directing the jury to a consideration of who will pay the judgment, the trial court was implicitly condoning the tailoring of findings to achieve the desired award, thereby subverting the jury process.

In addition to those policy concerns, the Lunas cite to our holding in Holland v. Peterson, 95 Idaho 728, 518 P.2d 1190 (1974), wherein we held:

The general rule, and the one we adopt today, is that it is reversible error for the trial court to instruct the jury as to what the effect their answers will have on the final outcome of the case. Holland, 95 Idaho at 732, 518 P.2d at 1194.

As an aid in determining whether Instruction No. 53 contravenes our holding in Holland, supra, and allows for jury misconduct, both the Lunas and Shockey Sheet Metal invite our attention to Seppi v. Betty, 99 Idaho 186, 579 P.2d 683 (1978). In Seppi, we fashioned an exception to the general rule in Holland, by allowing the trial court to apprise the jury of the workings of the concept of comparative negligence (i.e., how that concept operates to determine a prevailing party). In Seppi, we expressed our belief that, “[irrespective of whether one considers it a virtue or a vice, the tendency of juries to adjust their verdicts to accord with their notions of the justice of the cause is an inherent characteristic of juries and will be with us as long as we continue to have juries.” Seppi, 99 Idaho at 193, 579 P.2d at 690. We then went on to hold that, in the comparative negligence context, it was better to equip jurors with knowledge of the effect of their findings than to let them speculate in ignorance “and thus subvert the whole judicial process.” Seppi, 99 Idaho at 193, 579 P.2d at 690. We noted that Idaho’s comparative negligence rule, which bars recovery when the plaintiff’s negligence is 50% or more, “poses a trap for the uninformed jury.” And, therefore, “a jury, not knowing the critical importance Idaho law places on a finding of 50% negligence, may reach such a verdict too quickly and without carefully examining the facts.” Seppi, 99 Idaho at 193, 579 P.2d at 690.

In short, not informing the jury of the effect of a 50% negligence finding in many cases is likely to cause an unjust result and produce a judgment which does not reflect the wisdom of the jury or their view of the facts, but only their ignorance of Idaho law. Seppi, 99 Idaho at 194, 579 P.2d at 691.

Similarly, the doctrine of joint and several liability, under which a defendant assessed a mere 1% negligence may be required to pay 100% of plaintiff’s damages if, for some reason, the joint tortfeasor is unreachable through the judicial process, “poses a trap for the uninformed jury.” An informed jury will be much more likely to carefully examine the facts prior to reaching a verdict holding a defendant even 1% at fault, no matter how cosmetically appealing a partial allocation of fault might be.

In Kaeo v. Davis, 719 P.2d 387 (Hawaii 1986), the Hawaii Supreme Court, relying in part upon our holding in Seppi, held that, if requested and under appropriate circumstances, the trial court should inform the jury of the possible legal consequences of a verdict apportioning negligence among joint tortfeasors. The Kaeo court determined that it was more desirable for the courts to explain the operation of the law to the jury than to perpetuate a system which encourages mistaken speculation by ignorant jurors.

In view of the reasoning in Seppi and Kaeo, as well as our belief that the doctrine of joint and several liability does, in fact, “pose a trap” to an ill-informed jury, it is appropriate for the trial courts to inform the jury of the effect their findings may have under an application of the doctrine of joint and several liability. While so holding, we do not overrule Holland v. Peterson, supra, as that case continues to state the general rule regarding issues which do not require articulation to avoid hidden or obscure pitfalls. Further, we do not mandate that the trial courts inform the jury of the legal effect of their findings in all cases where the doctrine of joint and several liability is implicated. Instead, as in Seppi, we grant the trial court discretion as to whether or not to inform the jury of the legal effect of its findings, contingent upon whether the trial court believes an instruction might confuse or mislead the jury. In the instant case, the giving of Instruction No. 53 was not reversible error.²

In a related argument, the Lunas contend that counsel for the defense made several improper statements regarding Instruction No. 53, in effect enticing the jury to manipulate its determination of negligence and change its award of damages. The statement at issue reads as follows:

Now, that means if you found Ore-Ida 97% responsible for this accident, Mary Luna 1% and Shockey 2%, all or some of this 97% attributed to Ore-Ida can be recovered from Shockey. Now, that’s the law. If that’s what you think is the correct result in this case, then so be it. You just have to make that decision, but you ought to be aware of that effect ... If they (Ore-Ida) can do all those things, and Shockey has to pay the whole freight, that doesn’t encourage them (Ore-Ida) to be safe. If you want to send a message to Ore-Ida, then what you ought to do is find 100% cause of this accident on the part of Ore-Ida. If you really believe that's what happened. [Sic] And you’re not sending any kind of message to be safe in the operation of a fryer if you make Shockey pay for their mistakes.

We find no impropriety in the above statement. Defense counsel neither misstated the law nor argued with the merits of the law. Instead, the jury had the law and its effect explained to them. It is entirely consonant with our holding today to permit such argument, as it furthers an underlying goal of encouraging careful, informed deliberations by juries rather than well-meaning, but often misguided, speculation.

THE DISCRETIONARY COST AWARDS

Shockey Sheet Metal submitted a memorandum and supplemental memorandum of costs requesting discretionary costs for photographs totaling $564.68 and for photocopies totaling $322.25. The Lunas objected and submitted an affidavit which stated in relevant part:

There has been no showing with which to support a finding that any of the discretionary costs claimed were reasonable or necessary.

The trial court entered an award for both the photography and photocopying costs in the full amounts requested. The applicable Rule of Civil Procedure is I.R.C.P. 54(d)(1)(D), provides in part:

[Discretionary costs] may be allowed upon a showing that said costs were necessary and exceptional costs reasonably incurred, and should in the interest of justice be assessed against the adverse party. The trial court, in ruling upon objections to such discretionary costs ... shall make express findings as to why such specific item of discretionary cost should or should not be allowed.

The Lunas argue that the trial court failed to enter specific findings as required by I.R.C.P. 54(d)(1)(D) and that Shockey Sheet Metal did not submit an affidavit averring the reasonableness and necessity of the claimed discretionary costs.

The record shows that Shockey Sheet Metal did submit a notarized affidavit following its supplemental memorandum of costs stating “that the items in the above bill are true and correct and that they have been reasonably and necessarily incurred in the defense of this action; ____” The supplemental memorandum of costs further details what the photocopies and photographs were used for, as well as each item’s cost. Additionally, the trial court made specific findings that the photographs and photocopies were used by both sides and that both the photography and photocopying expenses were “appropriate” and “not unreasonable.” We hold that there was no abuse of discretion by the trial court in awarding costs for defendant’s photocopying and photography expenses.

THE CROSS-APPEAL

In view of our decision upholding the propriety of the trial court’s instruction to the jury on the effect of its findings given the applicability of joint and several liability, and in view of the jury’s verdict totally exonerating Shockey Sheet Metal from any liability whatsoever and finding no fault on Shockey Sheet Metal’s behalf, the issues of whether the trial court ruled appropriately in denying Shockey Sheet Metal’s motions for summary judgment and directed verdict are moot.

Costs to respondent/cross-appellant, no attorney fees awarded.

SHEPARD, C.J., and DONALDSON and BAKES, JJ., concur.

1 . Senate Bill 1223, 1987 Idaho Session Laws, Chapter 278, effective as law July 1, 1987, addresses the applicability of the doctrine of joint and several liability.

2 . Even had Instruction No. 53 been erroneous, its tender would have constituted harmless error given that the jury found absolutely no negligence for which Shockey was liable, their verdict and statements evidencing that, instead, they believed a non-party to be at fault.