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378 N.W.2d 307

Hardy v. Britt-Tech Corp.

Court of Appeals of Iowa

Decided August 29, 1985

Court of Appeals of Iowa · decided 1985-08-29

Key passage — most relied on by later courts

“1. Present worth or value of the estate which Kevin Thacker would reasonably be expected to have saved and accumulated as a result of his own efforts from the date of his death if he had lived out the term of his natural life. This is not the sum which, when placed at interest, would yield an amount equal to the income of the decedent at the time of his death, but as heretofore stated, is that amount which estimated at its present worth under all the circumstances, as disclosed by the evidence, would have come to his estate from the date of his death to the end of his natural life. In estimating such damages, if any, you may and should consider the evidence on the expectancy of life of Kevin Thacker, his health and physical condition, his age and occupation at the time of his death, his education, his ability to earn money, the amount of taxes, both state and federal, which would be payable out of his earnings, his habits as to industry, thrift and economy, the contingencies of life, such as ill health, unemployment, increase or diminution of earning capacity as age advance, and all other facts and circumstances in the evidence tending to show the amount, if any, that his estate might have accumulated if he had not met death in the incident involved in this case. (emphasis supplied). 2. The fair and reasonable value of medical and ambulance expenses incurred as a result of the accident, but not to exceed $11,310.43, as shown by the evidence. 3. An award of interest on the rea”

quoted by 1 later decision, including Thacker v. Eldred

Relies on Schmitt v. Jenkins Truck Lines, Inc. · Osborn v. Massey-Ferguson, Inc. · Meeker v. City of Clinton

Good law ✅— No negative treatment on recordhow we know

Decided 1985-08-29

How this case has been cited

Cited by 6 later decisions — most recently January 2000

6 state decisions

40198519902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

SACKETT, Judge.

¶1Plaintiff appeals from the trial court’s order granting a judgment notwithstanding the verdict and sustaining a motion for new trial in the plaintiff’s product liability suit.

¶2In reviewing the grant of a judgment notwithstanding the verdict, we view the evidence in the light most favorable to the plaintiff and consider “only evidence favorable to the plaintiff whether or not it is contradicted.” Loudon v. Hill, 286 N.W.2d 189, 192 (Iowa 1979); Miller v. Young, 168 N.W.2d 45, 50 (Iowa 1969). If there is substantial evidence from which the jury could properly draw an inference in favor of the plaintiff, the court will reverse the judgment notwithstanding the verdict. Meeker v. City of Clinton, 259 N.W.2d 822, 828 (Iowa 1977); Kohlstedt v. Farm Bureau Mutual Insurance Co., 258 Iowa 337, 341, 139 N.W.2d 184, 186 (1965). The grant of a judgment notwithstanding the verdict is proper where there is no substantial evidence concerning one of the elements plaintiff must prove. Dennett v. *309City of Des Moines, 347 N.W.2d 691, 692 (Iowa App.1984). However, if reasonable minds could differ regarding the issue, it is proper to send the question to the jury and their verdict will be upheld. Id.

¶3Decedent, Duane Hardy, purchased a device called a “power washer” or “industrial pressure washer.” The machine was manufactured by Defendant, Britt-Tech Corporation. The machine delivers a high-powered stream of water or water combined with soap for the purpose of cleaning large machines. It consists of electrical and mechanical components encased in a cover and a long hose with a “wand” or gun at the end which contains a device for controlling the spray of water. Within the enclosed portion of the machine is a motor and a transformer. The purpose of the transformer is to change the 220 volts from which the machine operates to a safer 24 volts, which is then carried to the switches in the handle. In 1982 Duane purchased the machine from his brother Russell, who had bought it new in 1973.

¶4A few months after he obtained the machine, Duane was using the washer when his sister heard him scream. When she and Duane’s wife found him, they discovered he had been electrocuted. They could not resuscitate him and he was pronounced dead at the hospital.

¶5Duane’s widow and administrator, Jane, brought suit against the defendant. The plaintiff’s and defendant’s experts both agreed that Duane was electrocuted because there was a short in the transformer. Plaintiff’s expert testified at trial that the short occurred because of pressure from tape outside a terminal protector which caused the protector to come in to contact with low-voltage wiring. He concluded the insulation was insufficient and that the transformer was defective at the time it was manufactured. The expert further testified that the wand could have been grounded and the switches in the wand could have been made safer by enclosing them, at a low cost. With these precautions, even if the transformer had shorted, electrocution could have been avoided.

¶6At sometime prior to his death, Duane had taken the handle apart and repaired a loose wire with a nonfactory crimp. The cover enclosing the motor and transformer was not used at times, thus exposing the transformer. Plaintiff’s expert testified the repairs on the washer did not cause Duane’s electrocution.

¶7I. Motion For Judgment Notwithstanding The Verdict

¶8In order to prevail, the plaintiff must prove that the machine was manufactured by the defendant in a defective condition which is unreasonably dangerous when used in a foreseeable manner. Osborn v. Massey-Ferguson, Inc., 290 N.W.2d 893, 901 (Iowa 1980). It must also be shown the defendant was in the business of manufacturing such products and that the product was expected to and did reach the consumer without substantial change in condition. Id.Further, plaintiff must prove both proximate cause and damages. Id.Defendant claims that plaintiff has not sufficiently shown that the machine was in a defective condition when it reached the plaintiff, and argues that there were a considerable number of repairs and alterations. It further claims there is not enough proof to show the machine was unreasonably dangerous.

¶9If the machine had been altered, the defendant can still be held liable but only if the plaintiff can show it is foreseeable that the alteration would be made and the change does not unforeseeably render the product unsafe. See Craven v. Niagara Machine and Tool Works, Inc., 425 N.E.2d 654, 655 (Ind.App.1981).

¶10Defendant points out that the machine was extremely dirty and appeared to have been subjected to a great deal of use, that it was operated without the lid in place, that it had holes and gouges in the container, that the O rings had been replaced, and that antifreeze apparently had not been put in the unit.

¶11The trial court, after the return of a jury verdict, sustained defendant’s motion for directed verdict made at the time of trial and defendant’s motion for judgment not*310withstanding the verdict. In sustaining the motions, the trial court ruled the plaintiff failed to establish:

(1) The power washer was unreasonably dangerous at the time of sale.
(2) The power washer reached plaintiffs decedent without a substantial change in its condition. The basis of this reasoning included the general appearance of the machine, the hole made in the cover of the box housing the transformer which coincided with a hole in the washer housing, the evidence of arcing on the transformer, and the reconnected terminal wires.

¶12We agree with the trial court that there is substantial evidence in the record that the machine itself was altered during its life. However, we do not determine that to be the issue here.

¶13Plaintiff’s cause of action is predicated on an alleged defect in one component part —“the transformer.” Even though the trial court determined that changes had been made to the machine, defendant’s expert testified those changes would not have affected the function of the transformer.

¶14Considering the evidence in the light most favorable to plaintiff, the jury can determine that the changes were not made to, nor did they affect, the function or operation of the transformer. The motion for judgment notwithstanding the verdict should be reversed.

¶15II. Motion For New Trial

¶16Prior to deciding this appeal, we ordered a limited remand directing the trial court to rule on the motion for a new trial by defendant in compliance with Iowa Rule of Civil Procedure 248(a). Defendant made, in addition to a motion for judgment notwithstanding the verdict, a motion for a new trial. Iowa R.Civ.P. 244, which governs the new trial motion, provides:

The aggrieved party may, on motion, have an adverse verdict, decision or report or some portion thereof vacated and a new trial granted, for any of the following causes, but only if they materially affected his substantial rights; # …
(d) excessive or inadequate damages appearing to have been influenced by passion or prejudice; # …
(f) That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law;

¶17The trial court held:

[T]he court finds ... the verdict to be the result of passion and prejudice on the part of the jury in that only $10,000 was awarded to the estate of plaintiff’s decedent. Such verdict was contrary to the evidence and instructions.

¶18After making such findings, the trial court determined the motion for new trial was moot and failed to rule on it. A conditional ruling on the new trial was required by Iowa R.Civ.P. 248(a):

If the motion for judgment notwithstanding the verdict provided for in R.C.P. 243 is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial.

¶19The trial court on remand sustained the motion for a new trial. The jury awarded Jane $1,500,000 personally, $225,000 to her as administrator of the estate on behalf of her three children, and $10,000 to her as administrator of the estate. The trial court determined that the award to Jane and the children was influenced by passion and prejudice because the award to the estate was less than the award to the family.

¶20In ruling upon a motion for new trial, broad but not unlimited discretion is vested in the trial court. We are slower to interfere with the grant of that relief than with its denial. However, the discretion so accorded must have some support in the record. See Lappe v. Blocker, 220 N.W.2d 570, 572 (Iowa 1974). One of the elements of damage in a wrongful death action is the *311present worth or value of the estate decedent would reasonably be expected to have saved and accumulated as a result of his or her efforts between the time of death and the end of his or her natural life had he or she lived. Iowa-Des Moines National Bank v. Schwerman, 288 N.W.2d 198, 201 (Iowa 1980).

¶21In Schmitt v. Jenkins Truck Lines Inc., 170 N.W.2d 632, 661 (Iowa 1969), the supreme court outlines the measure of damages under section 613.15:

1. The present worth or value of the estate which decedent would reasonably be expected to have saved and accumulated as a result of his efforts between his death and the end of his natural life had he lived.
2. An award of interest on the reasonable funeral expenses of decedent for such length of time as it was prematurely incurred, not to exceed either the reasonable cost of the funeral for a person of decedent’s social and financial standing or the amounts claimed therefor.
3. Recovery for all elements of damages sustained by the wrongfully injured person from the time of injury until the date of his death including those elements of damages permitted by Fitzgerald v. Hale, 247 Iowa 1194, 78 N.W.2d 509 (1956).
4. The present worth of the value of the services and support which he presumably would have contributed to his wife and children, or both, but for his untimely death.

¶22The jury awarded the estate $10,000. The $10,000 amount included items 1, 2, and 3. The award to the wife and children was item 4.

¶23The funeral expense was $6,456.56. Because decedent’s life expectancy was 46.93 years, the funeral expense is less than the interest for premature payment. The medical bills were $898.70. The funeral expense (item 2) and medical expense (item 3) would total $7,355.26, leaving the award for item 1 to be only $2,644.74.

¶24The jury determined the present worth of the support decedent would provide his family to be $1,725,000. They determined the present day worth of his accumulated estate to be $2,644.74. There is support for the trial court’s determination that the award to Jane and the children was influenced by passion. The trial court did not abuse its discretion in granting a new trial. We affirm the trial court on that ground and remand for a new trial.

¶25III. Cross-Appeal

¶26Defendant has further cross-appealed claiming error in submitting certain instructions, refusing a special instruction, and overruling an objection made by defendant.

¶27In listing elements to be proven by the plaintiff, the court told the jury the product could be considered defective if it “permitted electrical current to contact the user in sufficient quantities as to injure said user.” Defendant claims this instruction put Britt-Tech in the position of being an insurer of the product’s safety and this is contrary to the law. However, defendant pulls this statement out of context. The entire instruction indicated the burden of proof was on the plaintiff to show “each and all” of the following propositions:

1. That the defendant sold the power washer;
2. That the defendant was engaged in the business of selling power washers.
3. That the power washer was in a defective condition in that it permitted electrical current to contact the user in sufficient quantities as to injure said user;
4. That such defective condition was unreasonably dangerous to the plaintiff;
5. That the plaintiff used the power washer in the intended manner or in a manner reasonably foreseeable by defendant;
6. That the power washer was expected to and did reach the plaintiff without substantial change in its condition, *312that is, that the defect existed at the time defendant sold the power washer; and
7. That such defect was a proximate cause of personal injury or property damages suffered by plaintiff.

¶28Taken as a whole, we find the instruction properly reflects the law of this state as reviewed in Osborn v. Massey-Ferguson, Inc., 290 N.W.2d 893, 901 (Iowa 1980).

¶29Defendant further claims it was error to refuse an instruction which would have told the jury that it was not to consider whether the wand should have been grounded, claiming the “undisputed testimony in the record from all experts is that grounding the wand or handle would not make the product safer for the consuming public.” Plaintiff’s expert did not so indicate and the court properly refused such an instruction.

¶30The last claim of defendant is that the testimony of Jane’s brother, Jon Reed, should not have been permitted concerning his opinion whether the power washer should have been grounded. Reed had been an electrician and defendant says there was insufficient foundation to allow him to express an opinion. Defendant cites no cases in support of its claim.

¶31Reed testified he had been an electrician since 1976 and had done residential, farm, commercial, and small industrial electrical work. We find the trial court properly overruled the objection.

¶32REVERSED IN PART, AFFIRMED IN PART, AND REMANDED FOR NEW TRIAL.

¶33All Judges concur except OXBERGER, C.J., who concurs in part and dissents in part.

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