Mortensen v. Chevron Chemical Co.

693 P.2d 1038, 107 Idaho 836
CourtIdaho Supreme Court
DecidedJanuary 29, 1985
Docket14335
StatusPublished
Cited by6 cases

This text of 693 P.2d 1038 (Mortensen v. Chevron Chemical Co.) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mortensen v. Chevron Chemical Co., 693 P.2d 1038, 107 Idaho 836 (Idaho 1985).

Opinions

DONALDSON, Chief Justice.

This appeal involves a claim by plaintiff Mortensen against defendant Chevron for damages to Mortensen’s 1979 potato crop. The case arose under the following facts: During 1979, Mortensen planted potato seed in five different sprinkler irrigated fields. The potato seed was obtained from three different sources: (1) from Mortensen’s own 1978 potato crop, (2) from a Canadian seed grower, and (3) from Ferrell Black Ranches.

Mortensen purchased “Clean-Crop Cap-tan 7.5 Dust Fungicide” (a potato seed protectant) from a retailer, Blair M. Geisler Farm Supply. Mortensen applied the fungicide to all of the potato seed planted except that obtained from Ferrell Black. The fungicide, which comes in a dry dust form that adheres to the cut potato seed pieces, was applied to the seed at planting.

When Mortensen commenced his 1979 planting, the atmospheric temperature was essentially normal. However, as the planting continued, the temperature increased dramatically. Shortly after planting, Mortensen noticed unsatisfactory plant emergence. The acres planted with the untreated Ferrell Black seed showed less decay than the rest of the fields.

Geisler Farm Supply had purchased the fungicide used by Mortensen from the Snake River Chemical Company. Snake River formulated the “Clean-Crop Captan 7.5 Dust Fungicide” which is sold under a Platte Chemical Company label. The fungicide was a mixture of three ingredients— Frianite (diatomaceous earth), Silvacon (fir bark dust), and Captan Concentrate which Snake River purchased from Chevron. Chevron marketed and sold concentrated Captan under the name “Orthocide 80 Concentrate.”

Captan is the accepted common name for the organic fungicide N-[ (trichloromethyl) thio]-4-cyclohexene-l, 2-dicarboximide. It was discovered by A.R. Kittleson and his associates of ESSO Laboratories, Chemicals Division, Standard Oil Development [838]*838Company of New Jersey. Chevron was granted a license to produce, develop and distribute Captan under the “Orothocide” trademark in the agricultural and industrial fields.

Mortensen originally sued Snake River, Platte, Geisler and Chevron. Mortensen settled with all parties except Chevron pri- or to trial. Mortensen’s claims against Chevron were tried before a jury on the theories of strict liability, negligence and gross negligence and fraud. At trial, Mortensen contended, through his expert witness, that a fungal organism, fusarium, was the primary pathogen which caused his loss. He contended that the fungicide “totally failed to prevent or reduce rot in Plaintiff’s potato seed pieces and, to the contrary, directly caused Plaintiff’s said potato seed pieces to rot and decay and caused serious and irreversible damage to Plaintiff’s 1979 potato crop.”

At the close of Mortensen’s case in chief, Chevron moved for a directed verdict on all of Mortensen’s claims. The district court granted the motion with respect to negligence, gross negligence and fraud, and strict liability based upon failure to warn. Thereafter, the district court submitted the case to the jury on the only remaining theory, strict liability based upon defective design.1 The jury returned a verdict in favor of Mortensen.

After judgment was entered, Chevron filed alternative motions for judgment notwithstanding the verdict, or a new trial. The district court denied the motion for a judgment notwithstanding the verdict. As to the motion for a new trial, the district court granted a new trial solely and exclusively on the issue of liability. The trial court granted the new trial concluding that the “unreasonably dangerous” element in the prima facie case for strict liability based on defective design must be judged by a “risk/utility” standard, on which the court had not instructed the jury. Chevron appeals from the denial of judgment notwithstanding the verdict. Mortensen cross-appeals from the grant of a new trial.

We first address Chevron’s assertion that the district court erred in denying Chevron’s motion for judgment notwithstanding the verdict. “A judgment n.o.v. should be granted when there is no substantial competent evidence to support the verdict of the jury.” Brand S. Corporation v. King, 102 Idaho 731, 732, 639 P.2d 429, 430 (1981); see Mann v. Safeway Stores, Inc., 95 Idaho 732, 518 P.2d 1194 (1974). The only cause of action presented to the jury was strict liability for the alleged defective design of the product Cap-tan. All other claims against Chevron and other parties have either been settled or eliminated by directed verdicts, and Mortensen has not raised on appeal the correctness of those directed verdicts. Therefore, the only issue which we must examine is whether the evidence will support the jury verdict of strict liability for defective design.

Initially we note that there is some confusion as to whether this case is a defective design case at all. At oral argument both parties stated that this is not a defective design case. In support of his effort to reverse the trial court’s grant of a new trial, Mortensen’s counsel stated:

“There is no allegation in Mortensen’s complaint that anybody defectively designed Captan.
“ ‘[Captan]’ was discovered ... by a couple of biochemists ____ It was not designed [by Chevron] from a plant into a synthesized molecule, an organic fungicide.
“Now, we again submit that the case is not a design defect case because Chevron didn’t design it.”

Similarly, counsel for Chevron stated:

“There’s just nothing in the record that would indicate that this truly is— that there is a defective design. That’s why it’s a tough case to analyze because it’s not a design defect case.”

[839]*839The evidence indicates that Captan was discovered in the Standard Oil Laboratories and that Chevron in no way “designed” the fungicide involved in this case.

Regardless of which of the three general categories of strict liability a case falls under — manufacturing defect, design defect, or failure to warn — there are certain elements which must be met. 2 L. Frumer & M. Friedman, Products Liability § 16A[4] f[i] (1984); W. Prosser, Handbook of the Law of Torts § 99 (4th Ed. 1971). Section 402A of the Restatement (Second) of Torts, which was adopted by this Court in Shields v. Morton Chemical Co., 95 Idaho 674, 518 P.2d 857 (1974), states these elements as follows:

“402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
“(2) The rule stated in Subsection (1) applies although

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Bluebook (online)
693 P.2d 1038, 107 Idaho 836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mortensen-v-chevron-chemical-co-idaho-1985.