Blaw-Knox Construction Equipment Co. v. Morris

MOTZ, Judge. During the course of his employment by Genstar Stone Products, Ernest L. Morris, Sr. was crushed to death while ⁶⁵⁹ operating a heavy construction paver manufactured and sold by Blaw-Knox Construction Equipment, Inc. (“BlawKnox”). Rita I. Morris (“Mrs. Morris”) and Ernest L. Morris, Jr., the personal representative of the decedent's estate (collectively “appellees”) brought a wrongful death and survival action against appellant Blaw-Knox in the Circuit Court for Frederick County (Stepler, J). A jury awarded Mrs. Morris damages in the total amount of $132,-000 and the estate damages in the amount of $70,000.

On appeal, Blaw-Knox contends that the judgment should be reversed because: 1. The circuit court erred in allowing evidence of Gens-tar’s subsequent remedial measures to the paver. 2. The circuit court erred in barring Blaw-Knox’s expert from testifying as to accident reconstruction. 3. The circuit court erred in failing to give a misuse instruction. 4.

There was insufficient evidence as to proximate cause to support the jury verdict. 5. The circuit court erred in giving its second instruction on proximate cause. 6. The circuit court erred in allowing the jury to omit verdicts on three of the liability issues. 7. Rita Morris was not entitled to wrongful death or solatium damages because she was not the wife, or a dependent, of the decedent.

We affirm. FACTS At the time of his death on April 13, 1985, Mr. Morris had been employed by Genstar and its predecessors for more than twenty years. He was an experienced and safe user of the paver and had been operating it for 20 to 30 minutes immediately before the accident. Blaw-Knox manufactured this paver and sold it to one of Genstar’s predecessors in 1967.

The paver used by Mr. Morris on the day he died reached him without substantial ⁶⁶⁰ change in the condition in which it was sold by Blaw-Knox. The paver is operated by pushing a dump truck that is filled, with stone and is backed up to the front of the machine. The truck dumps stone into the hopper of the paver which then spreads the stone. The paver unloads in first gear and moves on treads, approximately twenty feet per minute.

The paver has an operator’s platform in its center, which includes gears, accelerator, brakes, a seat, and a waist-high protective guardrail, which extends across the front of the platform but not across the sides or back of the platform. When Mr. Morris was last seen alive, he was standing in the middle of the operator’s platform, behind the controls at the front protective guardrail, backing up the paver. He was next seen on the treads at the back of the machine which was moving forward; he was pinned between the forward-moving tread and the back of the platform. For a period of roughly a minute, no one witnessed Mr. Morris.

During that period, Mr. Morris became caught between the left tread of the paver and the bottom of the operator’s platform and was crushed to death. The jury found that Blaw-Knox was strictly liable to Mrs. Morris and the estate for defective design of the paver, i.e. failure to include a guardrail on the rear of the operator’s platform. Other facts will be set forth within as necessary. LEGAL ANALYSIS 1.

Evidence of Subsequent Remedial Measures The circuit court permitted three witnesses to testify that, after the accident, Genstar placed a guardrail on the back of the paver’s platform. Relying on Troja v. Black & Decker Mfg. Co., 62 Md.App. 101 , 488 A.2d 516 cert. denied, 303 Md. 471 , 494 A.2d 939 (1985), Blaw-Knox claims that admission of this subsequent remedial measure evidence was error. In Troja , adopting the standard set forth in the Federal Rules of Evidence (Fed.R.Evid.), we held that evidence of subsequent remedial measures, taken by a defendant, is not ⁶⁶¹ admissible to prove culpable conduct, but need not be excluded if offered “for another purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or impeachment.” Id. at 115 , 488 A.2d 516 (iquoting Fed.R.Evid. 407).

We noted that the policy reason for excluding this evidence is that “people would be less likely to take subsequent remedial measures if their repairs or improvements would be used against them in a lawsuit arising out of a prior accident. By excluding this evidence, defendants are encouraged to make such improvements.” Id. at 113-14 , 488 A.2d 516 quoting Werner v. Upjohn, 628 F.2d 848 , 857 (4th Cir.1980). The principle set forth in Troja and Fed.R.Evid. 407 only requires exclusion of evidence of remedial measures taken by a defendant. See, e.g., Dixon v. International Harvester Co., 754 F.2d 573, 583 (5th Cir.1985); Farner v. Paccar, Inc., 562 F.2d 518 , 528 n. 20 (8th Cir.1977); Louisville & Nashville R.R. v. Williams, 370 F.2d 839, 843-44 (5th Cir.1966); Brown v. Quick Mix Co., 75 Wash.2d 833 , 454 P.2d, 205, 210 (1969).

This is so because when “a person other than the defendant has taken remedial measures, and the evidence is not offered as an admission of the actor’s [here Genstar’s] culpability, the policy reason for exclusion [encouraging the defendant to do repairs] is inapplicable ...” L. McLain, Maryland Evidence (1987) § 407.1. Accord Farner, 562 F.2d at 528 n. 20. Here the remedial measures were not taken by the defendant, Blaw-Knox, but by a third party, Genstar; and it was not offered as evidence of Genstar’s culpability. Accordingly, admission of evidence as to these measures was not contrary to any rule barring evidence as to subsequent remedial measures.

Although not expressly stated in its briefs, it became clear at oral argument that Blaw-Knox was also maintaining that the evidence of remedial measures should have been excluded because it was irrelevant and so its potential for prejudice outweighed its probative value. This evidence may have prejudiced Blaw-Knox in the sense that it hurt its case; however, this is not the “unfair” prejudice ⁶⁶² which courts have held may prevent admission of otherwise relevant evidence. See United States v. Figueroa, 618 F.2d 934 , 943 n. 4 (2d Cir.1980). See also McLain, § 403.1; M. Graham, Handbook of Federal Evidence (1981) § 403.1 at 183-84 (unfairly prejudical evidence has “an undue tendency to suggest the decision on an improper basis, commonly but not necessarily an emotional one, such as sympathy, hatred, contempt, retribution or horror”).

Accordingly, the essential inquiry is whether this evidence was relevant. Notwithstanding Blaw-Knox’s claim to the contrary, it clearly was. It demonstrated one of the' elements of the negligence claims, i.e. the scope of the duty of care owed by . Blaw-Knox to Mr. Morris.

See Wilson v. Morris, 317 Md. 284, 297-301 , 563 A.2d 392 (1989). Moreover, it also demonstrated the elements necessary to “carry a case to the jury” on a strict liability claim, i.e. [T]he technological feasibility of manufacturing a product with the suggested safety device at the time the suspect product was manufactured; the availability of the materials required; the cost of production of the suggested device; price to the consumer, including that of the suggested device; and the chances of consumer acceptance of a. model incorporating such features. Troja 62 Md.App. at 109 , 488 A.2d 516 . See, Polansky v. Ryobi America Corp., 760 F.Supp. 85, 86-88 (D.Md.1991).

Thus, it was properly admitted. See Exxon Corp. v. Yarema, 69 Md.App. 124, 170 , 516 A.2d 990 (1986) (the “well settled rule in Maryland” is that “evidence is admissible if it has some probative value and that this determination is left to the trial judge’s discretion”). See also, Leeson v. State, 293 Md. 425, 435 , 445 A.2d 21 (1982); Haile v. Dinnis, 184 Md. 144, 152 , 40 A.2d 363 (1944). 1 ⁶⁶³ 2. Expert Testimony as to Accident Reconstruction Blaw-Knox offered an engineer as an expert in (1) engineering and design and (2) accident reconstruction.

The trial court permitted him to testify as an expert as to the former, but not the latter. The admissibility of expert testimony is a decision well within the broad discretion of the trial court and that decision will “seldom constitute a ground for reversal”; indeed, it may be reversed only “if it is founded on an error of law or some serious mistake, or if the trial court clearly abused its discretion.” Impala Platinum v. Impala Sales, 283 Md. 296, 332 , 389 A.2d 887 (1978). See also I. W. Berman Properties v. Porter Bros., Inc., 276 Md. 1, 14-15 , 344 A.2d 65 (1975); Troja, 62 Md.App. at 110 , 488 A.2d 516 . Blaw-Knox concedes that this is the proper standard of review but maintains that this is the rare case requiring reversal.

Specifically, it claims that because the witness it offered had “significant experience in accident construction,” the trial court’s refusal to permit him to testify was a clear abuse of discretion. The engineer offered by Blaw-Knox, as an expert in accident reconstruction, had never taken any courses of study in reconstruction of accidents involving heavy construction equipment or even of accident reconstruction in general. Moreover, prior to this case, he had extremely limited experience with reconstruction of an accident involving heavy construction equipment. For these reasons, the trial court refused to qualify him as an expert on accident reconstruction.

This decision was not “manifestly erroneous.” Troja, 62 Md.App. at 110 , 488 A.2d 516 (“To qualify ⁶⁶⁴ as an expert, a witness must have such skill, knowledge or experience in the field in question that his opinion will aid the trier of fact.” The decision to exclude expert testimony “will be sustained on appeal unless it is shown to be manifestly erroneous.”) 3. The Misuse Instruction Blaw-Knox next argues that the circuit court erred in failing to give the following instruction on misuse: The defendant is not liable when injury results from abnormal handling or use of the product where mishandling or alteration of the product renders it unsafe, or if warnings or instructions supplied with the product are disregarded by the consumer, where, if used in accordance with these warnings, the product would be safe. A product is not in defective condition when it is safe for normal handling or use. If you find that Ernest Morris used the product (P-150 paving machine) in the manner and for a purpose which was not reasonably foreseeable by the manufacturer or the seller, and if you find that this particular use of the machine which was not reasonably foreseeable was a direct cause of injury to Ernest Morris, then your verdict should be in favor of the defendants.

It is true that a litigant is entitled to have his theory of the case presented to the jury, but this is so “only if that theory is a correct exposition of the law and there is testimony in the case which supports it. ” Sergeant Co. v. Pickett, 285 Md. 186, 194 , 401 A.2d 651 (1979) (quoting Levin v. Rendler, 272 Md. 1, 13 , 320 A.2d 258 (1974)) (emphasis supplied). Here there was no “testimony in the case which supports” the theory that Mr. Morris misused the paver. The only testimony Blaw-Knox offered on this point was that of its engineer, speaking as an expert on accident reconstruction. 2 Since the circuit court, as dis ⁶⁶⁵ cussed supra, did not err in refusing to admit that testimony, there was no evidence of misuse in this case. Accordingly, an instruction on misuse was not warranted.

See Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 598 , 495 A.2d 348 (1985). 4. Sufficiency of Evidence as to Proximate Cause Blaw-Knox claims that there was insufficient evidence to support the jury’s verdict because there was “no proof that any defect” in the paver was “the cause of Mr. Morris’ death.” The appellees’ expert opined that the absence of a rear guardrail on the paver meant that the paver was designed with a “defective condition,” which was “unreasonably dangerous.” It was stipulated by the parties that there was no substantial change in the paver from the date of its design and manufacture through April 13, 1985, the date of the accident, and there was testimony that Mr. Morris was a careful and experienced employee. Finally, appellees’ expert testified, without objection, that if this defect had been remedied by provision of a rear guardrail, the accident would have been prevented. Thus, there clearly was sufficient evidence for a jury to conclude that a defect in the paver was the proximate cause of Mr. Morris’ death.

See C. & K. Lord, Inc. v. Carter, 74 Md.App. 68, 87-92 , 536 A.2d 699 (1988). Blaw-Knox’s claim that the evidence was insufficient because there was no evidence as to how Mr. Morris, who ⁶⁶⁶ had been on the platform, “got on the tracks,” is meritless. In light of the evidence just summarized, particularly the expert’s testimony that the addition of a rear guardrail would have prevented the accident, it simply does not matter how Mr. Morris “got on the tracks.” Whatever the cause of the accident — whether he slipped, fell, tripped, lost his balance, was distracted, etc. — there was expert testimony that it could have been avoided if the paver had a rear guardrail and that without a rear guardrail the paver was dangerous. 5. The Second Proximate Cause Instruction After the jury retired for deliberations 3 the circuit court gave the following second instruction, stating that proximate cause is: no more than a showing by the plaintiff of a reasonablé connection between his injuries and the act or omission of the defendant.

In laymen’s terms you might say proximate cause is the negligence that caused the accident. So what I have said to you is that proximate cause is no more than a showing by plaintiff for a reasonable connection between his injuries and the act or omission of the defendant and it could be defined simply as the negligence that caused the accident. (emphasis supplied). Blaw-Knox objects to the underscored language, claiming it “strongly implied to the jury that causation was an insignificant hurdle” (emphasis in original).

It is not clear whether Blaw-Knox properly objected to the instruction in the court below. 4 See Md.R.