Vannoy v. Uniroyal Tire Co.

726 P.2d 648, 111 Idaho 536, 1986 Ida. LEXIS 516

• Court: Idaho Supreme Court
• Decided: September 10, 1986
• Docket: 15529
• Status: Published

Opinions

BAKES, Justice.

Uniroyal, a tire manufacturer has appealed from a judgment awarding damages to plaintiffs in a products liability action stemming from a tire explosion accident. Plaintiffs have cross appealed from an order for remittitur of a portion of damages for loss of consortium or, in the alternative, granting a new trial. We reverse in part and remand for a new trial limited to the question of liability.

Jerry Vannoy was a tire manager for a business which sold and repaired tires. On October 6, 1980, Vannoy was attempting to mount a 16-inch tire on a 16.5-inch rim with the use of a tire mounting machine. Vannoy testified that on this occasion he was not aware of the difference in size; however, he further testified that, had he been aware, he would have still attempted to mount the tire since he had successfully mounted 16-inch tires on 16.5-inch rims on previous occasions. While Vannoy was filling the tire with air and attempting to get the tire bead to properly seat against the rim, the tire exploded. The explosion propelled the tire and rim into the ceiling and seriously injured Vannoy, leaving him with a'permanent impairment to his right arm.

Vannoy and his wife filed a complaint for damages against the tire manufacturer, Uniroyal; the wheel rim manufacturer, Kelsey-Hayes Co.; the mounting machine manufacturer, The Coats Co., Inc.; a trade association, The Tire & Rim Association, Inc.; and the seller of the rim wheel, Terry Brennan. Brennan was granted summary judgment and was dismissed from the case. Vannoys dismissed the Tire & Rim Association without prejudice, and Coats and Kelsey-Hayes settled separately with the Vannoys prior to or during trial.

The case proceeded to trial against the single defendant, Uniroyal. The major claim at trial against the defendant Uniroyal was whether the tire contained a design defect consisting of an alleged weak spot in the bead of the tire. Other issues included the adequacy of warnings, Vannoy’s alleged misuse of the product, and the alleged contributing factors of the rim and the tire mounting machine. Although the plaintiffs’ case originally included a negligence claim, that theory was dropped during the trial and the case was submitted to the jury solely on the theory of strict liability for the alleged defective design of the tire and the alleged inadequate warnings.

The defendant Uniroyal requested a special verdict form which would have allowed the jury to assign a percentage of fault or causation to Coats for the allegedly defective tire mounting machine, and to Kelsey-Hayes for the allegedly defective wheel rim. The trial court denied the request.

The jury returned a verdict finding that Uniroyal “contributed to the cause of the accident” by 90% and Vannoy by 10%. The jury also found Vannoy’s total damages to be $224,688, with his wife’s loss of consortium damages at $74,895. All post trial motions were denied with the exception of a motion for a remittitur on the damages awarded for loss of consortium. The trial court ruled that the evidence would not support the jury’s award of $74,895 for loss of consortium and therefore granted a new trial unless the plaintiffs accepted a remittitur which reduced the loss of consortium damages to $20,000. Vannoys accepted the remittitur claiming a reservation of rights on appeal.

Uniroyal has appealed assigning several points of error, the principal assignment being the refusal of the trial court to allow the special verdict form to list Coats and Kelsey-Hayes for the purpose of having all or a portion of the causation for the accident and injuries attributed to the mounting machine and wheel rim. Vannoys have cross appealed from the order granting the new trial unless plaintiffs accept a remittitur of a substantial portion of the loss of consortium damages.

I

We first address the issue of whether the trial court erred by refusing to submit a special verdict form which would have permitted the jury to consider and compare the percentage of causation which Coats’ and Kelsey-Hayes’ mounting machine and wheel rim contributed to the accident. Both had previously settled out of the case. The trial court ruled that the “jury can only attribute fault under the strict liability law in this action on one of two parties, Uniroyal and the plaintiff.” Even though the trial court permitted Uniroyal to argue to the jury that the other two manufacturers, and not Uniroyal, had proximately caused the accident, there was no place on the verdict form for the jury to reflect such a conclusion, and the verdict form directed that the plaintiffs’ and Uniroyal’s contributing cause must add up to 100%. We hold that in refusing to include Coats and Kelsey-Hayes on the verdict form, the trial court erred.

In several of our prior cases we have held that, in tort actions based on negligence,

“It is established without doubt that, when apportioning negligence, a jury must have the opportunity to consider the negligence of all parties to the transaction, whether or not they be parties to the lawsuit and whether or not they can be liable to the plaintiff or to the other tortfeasors either by operation of law or because of a prior release.” Lasselle v. Special Products Co., 106 Idaho 170, 172, 677 P.2d 483, 485 (1983), quoting from Pocatello Industrial Park Co. v. Steel West, Inc., 101 Idaho 783, 787, 621 P.2d 399, 403 (1980).

“... [Tjrue apportionment cannot be achieved unless that apportionment includes all tortfeasors guilty of causal negligence either causing or contributing to the occurrence in question, whether or not they are parties to the case.” Pocatello Industrial Park Co. v. Steel West, Inc., 101 Idaho at 787, 621 P.2d at 403, quoting from Heft & Heft, Comparative Negligence Manual § 8.131 (1978).

While we have not addressed this issue in tort cases based solely upon strict liability rather than negligence, many courts have addressed the problem of how responsibility should be allocated for damages in tort cases based upon strict liability, or a mixture of negligence and strict liability. The Supreme Court of Texas, in its recent decision of Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984), has made a comprehensive analysis of the cases dealing with that issue. In analyzing the cases, the court stated:

“In recent years, products liability litigation has spawned so many intractable problems of loss allocation between negligent plaintiffs and negligent and strictly liable defendants that our brief expression of concern in [General Motors Corp. v. ] Simmons [558 S.W.2d 855 (Tex.1977) ] now seems understated. [Citations omitted.] ... Courts have had to wrestle with various problematic indemnity doctrines and to recognize ‘shadowy distinctions between defenses in products cases and negligence cases.’ Thus, manufacturers have often borne accident costs generated in part by the substandard conduct of the plaintiff or some third party. [Citation omitted.]

“Product liability suits which are not based on negligence are treated anomalously because the system of allocation provided in Art. 2212a [the Texas comparative negligence statute, similar to I.C. § 6-802] does not apply, and there is no other comprehensive system for loss allocation under existing law. This court has previously attempted to ameliorate the harsh and inequitable consequences stemming from this anomalous treatment of loss allocation in products liability actions. Thus, instead of recognizing ‘all or nothing’ issues in product misuse and breach of implied warranty cases, we created comparative apportionment schemes. [Citation omitted.] Nevertheless, our limited efforts in [past cases], though positive, have not substantially alleviated the intolerable confusion, unmanageability, and inherent unfairness in this area of Texas products law. [Citation omitted.] As a result, we have been implored repeatedly to recognize some form of comparative fault in strict products liability actions. [Citations omitted.] ____

“A significant majority of the numerous commentators addressing the question have strenuously urged the implementation of comparative fault, also referred to as comparative responsibility or comparative causation, as a means of distributing accident costs among negligent plaintiffs, negligent defendants, and strictly liable defendants. [Citations omitted.] They have pointed out on the one hand that strict products liability is not absolute liability — that is, product suppliers are not insurers of the safety of their products. On the other hand, ‘all or nothing’ strict liability defenses are outmoded and undesirable doctrinal throwbacks resulting in unfairness to plaintiffs, to defendants, and to other product purchasers who ultimately absorb the less through price setting. [Citations omitted.] In the absence of apportionment, some manufacturers bear the total expense of accidents for which others are partly to blame, while other manufacturers totally escape liability even though they have sold defective products. Either result is unacceptable.

“Unfairness, however, is not the only serious flaw of virtually ignoring plaintiff and third party misconduct in strict products liability actions. The failure to allocate accident costs in proportion to the parties’ relative abilities to prevent or to reduce those costs is economically inefficient. [Citation omitted.] An ideal tort system should impose responsibility on the parties according to their abilities to prevent the harm. Existing law, however, encourages manufacturers to make safety improvements that are not cost justified, while failing to deter the substandard conduct of other tortfeasors. [Citation omitted.] Thus, equitable and rational risk distribution, a fundamental policy underlying the imposition of strict products liability, logically depends on the existence of some system for comparing causation in cases involving plaintiff or third party misconduct.

“For these reasons, most of the courts addressing the issue have decided to adopt some form of comparative causation for strict liability in tort. These decisions have often been preceded by extensive discussions of the procedural and policy benefits of proportionate loss allocation. [Citations omitted.] We agree with these courts that applying principles of comparative apportionment to strict products liability not only furthers the policy goals of [the Restatement (Second) of Torts] § 402A, but also simplifies the submission of products cases.

“Courts applying comparative fault in strict liability actions have taken several valid approaches. In Daly v. General Motors Corp., 20 Cal.3d 725, 575 P.2d 1162, 144 Ca.Rptr. 380 (1978), the California Supreme Court, unencumbered by a comparative negligence statute, extended its judicially formulated comparative negligence system to actions involving both negligence and strict liability claims because ‘logic, justice, and fundamental fairness’ required it. Id. 575 P.2d at 1172, 144 Cal.Rptr. at 390.....

“Several other courts have interpreted comparative negligence statutes as encompassing strict liability in tort. In the leading case of Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967), for example, the Wisconsin Supreme Court characterized strict liability as negligence per se, or negligence as a matter of law, because it arises from a violation of a standard of safety and requires no showing of foreseeability of harm. It followed, then, that the Wisconsin comparative negligence statute must apply to strict liability as well. Minnesota has adopted the ‘Wisconsin rule.’ See Busch v. Busch Construction Co., 262 N.W.2d 377, 393 (Minn.1977); see also Jensvold, A Modern Approach to Loss Allocation Among Tortfeasors in Products Liability Cases, 58 Minn.L.Rev. 723, 748-51 (1974); Uniform Comparative Fault Act § 1 comment (1977).

“In Suter v. San Angelo Foundry & Machine Company, 81 N.J. 150, 406 A.2d 140, 145-46 (1979), the New Jersey Supreme Court also applied its comparative negligence statute to strict liability in tort. Instead of characterizing strict liability as negligence per se, however, the court determined that the New Jersey legislature intended to allow the apportioning of accident costs according to ‘fault,’ a concept subsuming negligence. Id. at 145. One reason given for this conclusion was that New Jersey adopted the provisions of the Wisconsin comparative negligence statute after the Wisconsin Supreme Court in Dippel had already applied its statute to strict liability. The court then observed that distributing an unsafe product is a departure from a required standard of conduct — in other words, fault. Accordingly, the court held that the statute required the comparison of fault between negligent and strictly liable parties. Other courts have used similar reasoning in applying comparative negligence statutes to strict liability actions. See Sun Valley Airlines, Inc. v. Avco-Lycoming Corp., 411 F.Supp. 598, 603 (D.Idaho 1976); Kennedy v. City of Sawyer, 229 Kan. 439, 618 P.2d 788, 796-97 (1980); Baccelleri v. Hyster Company, 287 Or. 3, 597 P.2d 351, 354-55 (1979).

“Finally, some courts in jurisdictions with comparative negligence statutes have declined to interpret those statutes to encompass strict products liability cases, but have nevertheless judicially adopted separate comparative causation systems for such cases. In Thibault v. Sears, Roebuck & Co., 118 N.H. 802, 395 A.2d 843 (1978), for instance, the New Hampshire Supreme Court held that its comparative negligence statute did not apply to strict liability cases because the statute referred only to actions for negligence, but ‘judicially recognize[d] the comparative concept in strict liability cases parallel to the legislature’s recognition of it in the area of negligence.’ 395 A.2d at 848, 850. See also Stueve v. American Honda Motors, 457 F.Supp. 740, 751-56 (D.Kan.1978) (predicting that the Kansas Supreme Court would not apply its comparative negligence statute, but would probably instead adopt a comparative system in strict liability cases as a principle of common law).

“Many courts and commentators have labeled this type of loss allocation system comparative fault. We choose comparative causation instead because it is conceptually accurate in cases based on strict liability and breach of warranty theories in which the defendant’s ‘fault,’ in the traditional sense of culpability, is not at issue. The trier of fact is to compare the harm caused by the defective product with the harm caused by the negligence of the other defendants, any settling tortfeasor and the plaintiff.” Duncan v. Cessna Aircraft Co., 665 S.W.2d at 424-27 (emphasis in original).

In 1971 the legislature enacted Chapter 8, Title 6, Idaho Code, which provides for comparing of contributory negligence between parties on a percentage basis, and states:

“6-801. Comparative negligence — Effect of contributory negligence. — Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence or gross negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence or gross negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.”

This comparative negligence scheme was held applicable to products liability actions based on negligence. See Henderson v. Cominco American, Inc., 95 Idaho 690, 518 P.2d 873 (1973). With this Court’s adoption of strict liability in 1973, it was held that “contributory negligence in the sense of misuse of the product, or in the sense of voluntarily and unreasonably proceeding in the face of a known danger are good defenses to strict liability.” Shields v. Morton Chemical Co., 95 Idaho 674, 677, 518 P.2d 857, 860 (1974). This necessity of comparing the contributory negligence of one party with the strict liability of a defendant resulted in the well-reasoned conclusion of the United States District Court for the District of Idaho that:

“The rationale of comparative negligence was meant to apply as well in a products liability action, such that misuse may not be an absolute bar to recovery. Applying Idaho’s comparative negligence statute in this way is consistent with the policy underlying strict products liability, namely the spreading of loss to manufacturers who are best able to absorb it. Upon a finding of blameworthy conduct, the jury in this case was asked, consistent with Idaho law, to assign a percentage to the causative conduct of the parties to this lawsuit.⁵

Subsequent to the Sun Valley decision, in Odenwalt v. Zaring, 102 Idaho 1, 624 P.2d 383 (1980), this Court was faced with a specific issue of interpretation of the comparative negligence statute, I.C. § 6-801. The Court stated:

“The above statute, enacted in 1971, is virtually identical to the Wisconsin comparative negligence statute in effect in 1971. Wisconsin was one of a few states which pioneered the concept of comparative negligence____ This court has consistently held that ‘[a] statute which is adopted from another jurisdiction will be presumed to be adopted with the prior construction placed upon it by the courts of such other jurisdiction.’ Nixon v. Triber, 100 Idaho 198, 200, 595 P.2d 1093, 1095 (1979). State v. Miles, 97 Idaho 396, 545 P.2d 484 (1976); Doggett v. Electronics Corp. of America, 93 Idaho 26, 454 P.2d 63 (1969). Therefore, in the absence of some other legislation which would clearly suggest a different result, we should follow the interpretation which the Wisconsin Supreme Court had placed upon their comparative negligence statute prior to 1971.” 102 Idaho at 4-5, 624 P.2d at 386-87 (footnotes omitted).

Prior to the enactment of I.C. § 6-801, the Wisconsin Supreme Court had already construed its comparative negligence statute as being equally applicable to the theory of strict liability as well as the theory of negligence, just as the United States District Court for Idaho held in the Sun Valley case. See Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967). Accordingly, comparative responsibility or comparative causation in strict liability cases was consistent with, and indeed probably mandated by the prior interpretation placed upon the Wisconsin version of I.C. § 6-801, which the Idaho legislature adopted. Odenwalt v. Zaring, supra.

In Idaho’s scheme of comparative responsibility:

“ ‘It is established without doubt that, when apportioning negligence, a jury must have the opportunity to consider the negligence of all parties to the transaction, whether or not they be parties to the lawsuit and whether or not they can be liable to the plaintiff or to the other tortfeasors either by operation of law or because of a prior release.’ Connar v. West Shore Equipment of Milwaukee, Inc., 68 Wis.2d 42, 227 N.W.2d 660, 662 (1975).

“ ‘The reason for such [a rule] is that true apportionment cannot be achieved unless that apportionment includes all tortfeasors guilty of causal negligence either causing or contributing to the occurrence in question, whether or not they are parties to the case.’ Heft & Heft, Comparative Negligence Manual § 8.131, at 12 (1978).” Pocatello Ind. Park Co. v. Steel West, Inc., 101 Idaho 783, 787, 621 P.2d 399, 403 (1980).

The practice of having the jury list or find all contributing causes has even been applied where the parties are unknown. Jensen v. Shank, 99 Idaho 565, 585 P.2d 1276 (1978). The practice has been approved or adopted in many of our cases involving different circumstances. See, e.g., Runcorn v. Shearer Lumber Products, Inc., 107 Idaho 389, 690 P.2d 324 (1984); Lasselle v. Special Products Co., 106 Idaho 170, 677 P.2d 483 (1983); Pocatello Ind. Park Co. v. Steel West, Inc., 101 Idaho 783, 621 P.2d 399 (1980); Tucker v. Union Oil Co. of Calif., 100 Idaho 590, 603 P.2d 156 (1979); Jensen v. Shank, 99 Idaho 565, 585 P.2d 1276 (1978). While we have never considered the practice in a specific products liability action based solely on the theory of strict liability, the policies underlying the practice of attributing responsibility to every alleged tortfeasor, whether or not a party to the action, are equally applicable to products liability actions based upon strict liability as well as actions based on negligence or other tort theories.

“Once culpability, blameworthiness or some form of fault is determined by the trier of fact to have occurred, then the labels denoting the ‘quality’ of the act or omission, whether it be strict liability, negligence, negligence per se, etc., becomes unimportant. Thus, the underlying issue in each case is to analyze and compare the causal conduct of each party, regardless of its label.” Sun Valley Airlines, Inc. v. Avco-Lycoming Corp., 411 F.Supp. 598, 603, n. 5 (1976). (Emphasis supplied.)

Products liability actions usually include all theories of liability including both negligence and strict liability. In the present case, both negligence and strict liability theories were pursued by the plaintiff until nearly the end of the trial, when the negligence theory was dropped. The use of differing allocation schemes, depending upon whether the theory was negligence or strict liability, would merely add to the confusion existing in this already complicated area of the law.

The products liability act, Chapter 14, Title 6, Idaho Code, states:

“The previous existing applicable law of this state on product liability is modified only to the extent set forth in this act.” I.C. § 6-1401.

Nothing in the products liability act modifies the approved and required practice of comparing the responsibility of all alleged tortfeasors on a special verdict form, whether or not those alleged tortfeasors are parties to the action. Although products liability claims based on strict liability are a common law innovation of this Court emanating from the Shields case, the legislature did address the issue of comparative responsibility in the Products Liability Act of 1980. In that act the legislature adopted the same scheme of comparative responsibility for products liability actions as it had enacted in 1971 in the comparative negligence statute. Compare I.C. §§ 6-1304 and 6-801. We have interpreted I.C. § 6-801, the comparative negligence statute, to require all negligent actors contributing to the causation of any accident or injuries to be listed on the jury verdict form, whether or not they are parties to the action. Lasselle v. Special Products Co., supra; Pocatello Ind. Park Co. v. Steel West, Inc., supra. Reason and consistency in statutory interpretation dictate that products liability cases based on strict liability should be treated the same. I.C. § 6-1304, providing for comparative responsibility in products liability actions, is substantially identical to I.C. § 6-801 which provides for comparative responsibility in negligence actions.¹ They should be treated the same.

Plaintiffs argue that the evidence did not support the listing of Coats and Kelsey-Hayes on a special verdict form since a prima facie case of strict liability was not shown against each manufacturer. This argument requires a review of the evidence. The plaintiffs’ own expert witness supplied detailed evidence to the effect that the tire mounting machine manufactured by The Coats Co. and the wheel manufactured by Kelsey-Hayes contained design defects and inadequate warnings which contributed to the accident. In the expert’s opinion the tire mounting machine should have been designed with a pressure line regulator and an over-pressurization alert system which would have helped to avoid the accident. He also testified that the machine was defective in that it acted as a “launching pad” as a contributing factor to the accident. The expert also testified that the wheel involved in this case manufactured by Kelsey-Hayes contributed to the accident. He described the “anomaly in the design” of the 16.5-inch wheel which permitted an improper but similarly sized 16-inch tire to be mounted on the wheel without a safety feature preventing the tire from being introduced on the wheel. This defect in design was a precondition of the explosion and was the “fuse of the bomb,” as stated by the expert. Finally, the expert testified that the warning and size markings on the wheel were inadequate.

The evidence detailed above was much more extensive than the evidence presented in Fouche v. Chrysler Motors Corp., 107 Idaho 701, 692 P.2d 345 (1984), which we there held to be sufficient to submit to the jury on the issue of strict liability. In Fouche, the only evidence presented by the plaintiff was that, prior to the accident, plaintiff had performed a test which consisted of sitting in the driver’s seat and leaning forward to find that the seat belt did not allow his body to touch the steering wheel. There was further evidence that in the accident his body impacted on the steering wheel and the windshield. The Court held that the inference from that evidence, together with testimony that the seat belt and collapsible steering wheel were designed to prevent such impact and injuries, was sufficient to present to the jury the issues of defects in the seat belt and steering column which were proximate causes of Fouche’s injuries. Regarding the quantum of evidence necessary to raise a jury issue, the Court in Fouche stated:

“Finally, we note that where, as in the present case, the motion for directed verdict concerns the issue of proximate cause, it is only in the rare situation in which reasonable minds could not reach different conclusions that the trial court is justified in removing the issue from the consideration of the jury. [Citation omitted.] The issue of causation is generally reserved for the jury unless the proof is so clear that all reasonable minds would construe the facts and circumstances in the same manner. [Citation omitted.]

“The question is merely whether, giving full consideration to the evidence produced by the plaintiff and every legitimate inference which can be drawn therefrom, the product defect was a substantial factor in causing the injuries suffered. [Citations omitted.] The conduct of the manufacturer need not be the sole factor or even the primary factor, in causing the plaintiff’s injuries, but merely a substantial factor therein.” Fouche v. Chrysler Motors Corp., 107 Idaho 701, 704, 629 P.2d 345, 348 (1984) (emphasis in original).

In the present case, based upon the evidence submitted by plaintiffs’ own expert and the standard applied in Fouche v. Chrysler, supra, the jury would have been entirely justified in allocating to the mounting machine manufactured by Coats, and to the wheel rim manufactured by Kelsey-Hayes, some or all of the responsibility for proximately causing the damages to the plaintiffs. Accordingly, it was reversible error for the trial court to refuse to include them on the jury verdict form. Lasselle v. Special Products Co., 106 Idaho 170, 677 P.2d 483 (1983).

Plaintiffs nevertheless assert that a prima facie case against the Coats Company and Kelsey-Hayes would require a showing, among other things, of when the tire mounting machine or wheel rim were manufactured; the standard in the industry at that time; and whether or not they had been altered or changed without their knowledge or consent prior to the accident. Plaintiffs assert that failure to make such a showing would have precluded a judgment being rendered against Coats and Kelsey-Hayes, and thus they should not have been listed on the special verdict. However, our prior decision in Fouche v. Chrysler, supra, did not require such a showing. More importantly, however, in determining comparative responsibility or comparative causation it is not necessary to establish that all persons included on the verdict form would be liable for some or all of the damages attributable to their conduct or their product. Indeed, in many instances, it will not be possible to establish liability for various reasons including immunity, settlement, failure to join as a party, unknown identity, statute of limitations, or numerous other possible causes. In determining whether or not to include additional parties on the verdict form, the question is not whether a judgment would or could be rendered against that person, but whether or not his conduct or his product caused or contributed to the accident and injuries. Thus, in the case of the Coats Company and Kelsey-Hayes, the issue is Whether the tire mounting machine and the wheel rim were the cause, in whole or in part, of the accident and injuries to the plaintiffs. If they were, the special verdict form should require the jury to allocate that causation to them, regardless of whether the Coats Company and Kelsey-Hayes could have a judgment rendered against them as a result of the damage caused by their tire mounting machine and the wheel rim.

Accordingly, we conclude that the trial court was required to include their names on the jury verdict form in order for the jury to evaluate and attribute to their products (the tire mounting machine and the wheel rim) that portion of the cause of the accident which those two items contributed or were responsible for. Lasselle v. Special Products, Inc., supra; Pocatello Ind. Park Co. v. Steel West, Inc., supra. It is enough in the present case that evidence in the record identified Coats and Kelsey-Hayes as manufacturers of products containing defects which proximately caused or contributed to, in whole or in part, the damages complained of. We need not, and do not, decide in this action to what extent the judgment or the issues actually litigated would be binding upon the non-parties, Coats and Kelsey-Hayes, in subsequent litigation.²

II

Since we are reversing for a new trial on the issue of liability, it is unnecessary for us to address all of the other issues raised by Uniroyal on appeal. However, we will address Uniroyal’s assignments of error on appeal which may reoccur on retrial.

A.

Prior to trial one of the defendants, the Tire & Rim Association submitted requests seeking an admission that plaintiff was aware that mounting a 16-inch tire on a 16.5-inch rim could result in an explosion, and that he would not have attempted to mount the tire had he realized the difference in size. The association was subsequently dismissed from the action, and the requests for admissions were not answered or denied. Just prior to trial, the plaintiffs made a motion to have the requests for admissions “discarded.” The defendant argued that the requests should be deemed admitted since they were not answered or denied within fifteen days as required by I.R.C.P. 36(a). The trial court granted the motion to discard the requests for admissions under the circumstances of the case. We find no error in the trial court’s ruling. The plaintiffs’ motion was in essence a motion pursuant to I.R.C.P. 36(b) which permits the trial court to withdraw admissions under appropriate circumstances. No prejudice occurred to Uniroyal since plaintiffs’ statements in depositions and interrogatories set out plaintiffs’ position which adequately denied the substance of the requests for admissions submitted by the association.

B.

We also find no error in the trial court’s allowance of Dr. Surbaugh to testify in place of plaintiff’s treating physician who was unavailable at trial. Dr. Surbaugh was an associate of plaintiff’s treating physician, and his testimony was offered as being substantially the same as the treating physician’s testimony would be, and further testifying from the same medical records which the treating physician would have testified from. Uniroyal objected to the testimony on the basis that Dr. Surbaugh was a surprise witness and that Uniroyal had no opportunity to prepare for the testimony. The trial court admitted the testimony, subject to being later excluded upon Uniroyal’s showing of prejudice. Uniroyal did not cross examine Dr. Surbaugh, nor did it ever take the opportunity to articulate any basis of prejudice to the trial court. Neither has Uniroyal articulated to this Court on appeal how it was prejudiced by the doctor’s testimony. The trial court’s decision to allow such a witness is discretionary. I.R.C.P. 26(e)(4) states, “If a party fails to seasonably supplement his responses as required in this rule 26(e), the trial court may exclude the testimony of witnesses____” We conclude that the trial court did not abuse its discretion by refusing to exclude the testimony since the testimony was substantially similar to that which Uniroyal was notified of and supposedly was prepared to cross examine.

Ill

We now address the question of whether the trial court erred in granting a new trial unless plaintiffs accept a remittitur reducing the damages for loss of consortium from $74,895 to $20,000. Plaintiffs argue on cross appeal tha the trial court abused its discretion in granting the remittitur and, in the alternative, a new trial. Uniroyal argues on appeal that the loss of consortium damages should have been reduced to zero and that no substantial competent evidence was submitted to sustain any finding of loss of consortium damages. The trial court found that “the actual evidence introduced on loss of consortium was very sketchy and would not justify an award of damages in the amount of $74,895.81____ Accordingly, I will grant defendant’s motion for a new trial unless plaintiffs agree to reduce the damages award to Nadine Vannoy for loss of consortium to $20,000.” Plaintiffs accepted the remittitur attempting to reserve its rights on appeal.³

An award of damages for loss of consortium should be supported by substantial competent evidence of the loss of services, society, companionship, sexual relations, etc. See 41 Am.Jur.2d Husband & Wife §§ 455, 456, 457 (1968). However, we agree with plaintiffs that an award for loss of consortium damages may also be supported by circumstantial evidence such as the extent of the injury and hospitalization. In the present case, plaintiffs presented no direct evidence of the husband and wife relationship or the losses to that relationship. The loss of consortium damages could only be supported, if at all, by circumstantial evidence of the extent of the injury, hospitalization and an inference from Mrs. Vannoy’s very limited testimony which states that “our home lifestyle changed after the accident____”

When considering defendant’s motion for a new trial or reduction of damages based upon the defendant’s assertion that the damages were excessive and motivated by passion or prejudice, the trial court properly weighed the evidence to consider what he would have awarded had he been a juror.

“The question is answered only by a weighing of the evidence, and considerations of doing substantial justice. That is the function of the trial court, conferring upon that court a power and commensurate obligation unequaled elsewhere in civil cases tried to a jury.

“... Trial courts, unlike jurors, have the advantage of having heard and determined many hundreds of damage claims. A trial court in a jury trial hears exactly the same evidence as the jury hears, and makes his own inward assessments of credibility and weight. So, when after a trial the jury returns a verdict which is thereafter assailed, either as excessive or as inadequate, the trial court’s judgment is then called into play, requiring of him a weighing of the evidence____

“Where a motion for a new trial is premised on inadequate or excessive damages, the trial court must weight the evidence and then compare the jury’s award to what he would have given had there been no jury. If the disparity is so great that it appears to the trial court that the award was given under the influence of passion or prejudice, the verdict ought not stand.” Dinneen v. Finch, 100 Idaho 620, 624-25, 603 P.2d 575, 579-80 (1979) (emphasis in original).

Therefore, on plaintiffs’ cross appeal we find that the trial court did not abuse its discretion in weighing the evidence and concluding that the damages were excessive and the evidence could only support a finding of $20,000 damages for loss of consortium. The order did not infringe upon plaintiffs’ right to a jury trial since plaintiffs could have elected to accept a new jury trial.

Since we have found no basis for error affecting the evidence of damages or the jury’s formulation of a damage amount as properly remitted by the trial court and accepted by the plaintiffs, we reverse the judgment of the trial court and remand the case for a new trial consistent with this opinion but limited to the issue of liability.

Costs to appellant. No attorney fees on appeal.

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

5 "[Footnote] 5. Once culpability, blameworthiness or some form of fault is determined by the trier of fact to have occurred, then the labels denoting the 'quality’ of the act or omission, whether it be strict liability, negligence, negligence per se, etc., becomes unimportant. Thus, the underlying issue in each case is to analyze and compare the causal conduct of each party, regardless of its label.” Sun Valley Airlines, Inc. v. Avco-Lycoming Corp., 411 F.Supp. 598, 603 (1976).

1 . The identical nature of those two comparative responsibility statutes is clearly evident when they are viewed in tandem:

“6-801. Comparative negligence — Effect of contributory negligence. — Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence or gross negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence or gross negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.”

"[6-1404] 6-1304. Comparative responsibility. — Comparative responsibility shall not bar recovery in an action by any person or his legal representative to recover damages for product liability resulting in death or injury to person or property, if such responsibility was not as great as the responsibility of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of responsibility attributable to the person recovering."

2 . Plaintiffs have settled with those manufacturers. However, a settling tortfeasor is not necessarily released from liability to other joint tortfeasors for actions in contribution or indemnification. I.C. §§ 6-804, -805, -806; Annot., 8 A.L.R.2d 196 (1949) (contribution between joint tortfeasors as affected by settlement with one or both by person injured or damaged); Holve v. Draper, 95 Idaho 193, 505 P.2d 1265 (1973). The issue of how the Coats and Kelsey-Hayes settlement agreements may affect any obligation for contribution or indemnity to Uniroyal is not at issue in this case, and we venture no opinion on the resolution of that issue.

3 . Uniroyal does not contest the right of plaintiffs to cross appeal the grant of the new trial after having accepted the remittitur. Therefore, we accept plaintiffs’ cross appeal without addressing the issue of whether a party can accept a remittitur and then appeal from it.