Judy L. Gammon appeals from the denial of her motion for a new trial or judgment notwithstanding the verdict in connection with this wrongful death action. She raises several instructional, procedural and evidentiary errors, and also alleges that the jury's answers to the special
On October 13, 1978, Richard Gammon was killed when a Bobcat 720 loader, which he was using in conjunction with a backhoe to clear a house foundation, tipped over on its side. Although there were no witnesses to the accident, it appears that the backhoe lift arms were fully extended, rendering the Bobcat unstable. Two laborers heard a loud noise, ran to the other side of the house, and found Gammon impaled by the backhoe stabilizers. Gammon died on October 15.
The Bobcat and backhoe were manufactured by Clark Equipment Company, distributed by Star Machinery Company, and leased by AA Rentals of Bothell. Gammon rented the Bobcat from AA Rentals on October 12, and was given instructions by an employee regarding the Bobcat's operation. Gammon was not, however, given a copy of the owner's manual.
In December 1978, Gammon's wife, Judy Gammon, brought this wrongful death action against Clark, Star Machinery and AA Rentals. By way of amended complaint, Gammon asserted causes of action based upon negligence, strict liability, and breach of implied warranties. The case was tried to a jury, which returned a verdict in the form of answers to interrogatories.
Gammon unsuccessfully moved for a new trial or for judgment notwithstanding the verdict, and this appeal followed.
VIOLATION OF DISCOVERY ORDER
Gammon first assigns error to the trial court's denial of her motion for a new trial based upon Clark's failure to comply with a pretrial discovery order to produce certain accident reports. Gammon contends that the trial court's sanction for the alleged discovery abuse — a $2,500 award of terms against Clark — was inadequate under the circumstances, and that a new trial at this point is the only effective remedy. We agree.
The circumstances surrounding Clark's refusal to turn over the accident reports are as follows. Gammon submitted her first set of interrogatories to Clark on May 9, 1979, over 2 years before trial. Interrogatory 20 asked Clark if it had notice of any personal injuries arising out of the use of "any similar or substantially similar products" which it manufactured, designed or distributed.
Nothing happened during the next 2 years, and Clark made no attempt to supplement its answers to the interrogatory or to provide additional accident reports. See CR 26(e). In early June 1981, however, during the depositions of Clark's design and safety engineers, Gammon received information suggesting that Clark had not fully answered interrogatory 20. It was ascertained that the Bobcat 720 had been manufactured since 1972, that the Bobcat line of loaders as a whole are similar in style and operation, and
When trial began on July 6, 1981 and before the jury was empaneled, Gammon's counsel advised the trial judge that he still did not believe that Clark had turned over all of its accident reports involving the tipping over of a Bobcat or similar equipment. Counsel's suspicion was fueled when, purely by happenstance, a Mr. Reimers came to his office and informed him that he had also experienced a tip-over accident involving a Bobcat. Neither an accident summary nor a product accident report form for the Reimers accident was included in Clark's initial response to interrogatory 20. Gammon did, however, receive an accident summary for the Reimers accident in response to Judge Sullivan's order. In addition, Gammon's counsel stated that because he had "called around the United States" he was aware of accidents for which no reports had been produced. At this point, Clark's counsel did not deny that additional reports existed, but took the position that the reports were not relevant because they involved different equipment
On July 7, Gammon's counsel raised anew the discovery issue, and complained about having received only the accident summary for the Reimers accident. He then informed the court that AA Rentals' counsel had shown him a more comprehensive product accident form for the Reimers accident. The report was turned over to Gammon's counsel, and the trial court noted that sanctions could be imposed later if bad faith became evident.
On July 8, following jury selection, Gammon's counsel again raised the issue of Clark's noncompliance. Counsel contrasted the skimpy Reimers accident summary with the product accident report form produced by AA Rentals, and asked the court to order Clark to turn over all accident reports. Counsel also requested terms in the event of noncompliance. In order to resolve the issue, Clark's counsel offered to have the Clark employee who reviewed the reports testify as to how they were maintained. The employee indicated that Clark maintained two accident "books" in which both the accident summaries and product accident report forms were filed. The court ordered that both books be flown out immediately from Clark's headquarters in North Dakota. Gammon did not move for a continuance.
After examining the accident books over the weekend, Gammon's counsel complained that the indices to the accident books referred to accidents for which there were no accident reports, including an accident involving a Bobcat 720. Moreover, during a deposition taken over the weekend of Mr. Leroy Brooks, Clark's product safety manager, Gammon learned that two boxes of accident reports had been turned over to Clark's attorneys before the weekend. Clark's counsel indicated that he had the boxes of reports in the courtroom, and the trial court ordered Clark to allow Gammon's counsel to inspect or copy them. Gammon's counsel suggested that the reports had been deliberately withheld, and requested terms. The court stated that it appeared that Clark was unilaterally determining what
The Supreme Court has noted that the aim of the liberal federal discovery rules is to "make a trial less a game of blindman's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." United States v. Procter & Gamble Co., 356 U.S. 677, 682, 2 L.Ed.2d 1077, 78 S.Ct. 983 (1958). The availability of liberal discovery means that civil trials
Hickman v. Taylor, 329 U.S. 495, 501, 91 L.Ed. 451, 67 S.Ct. 385 (1947).
Violation of a discovery order without a reasonable excuse constitutes a willful violation of the discovery rules. See Anderson v. Mohundro, 24 Wn.App. 569, 574, 604 P.2d 181 (1979). Our review of the discovery process in this case leaves little doubt that there has been willful noncompliance on the part of either Clark or Clark's attorneys. No
As previously noted, although Clark received interrogatory 20 over 2 years before trial, the vast majority of accident reports that were ultimately produced were not produced until the trial was already underway. Clark's initial response to interrogatory 20 was to turn over only five accident reports. Clark obviously had not fully answered the interrogatory at that point, as it produced 50 more accident reports in response to Judge Sullivan's order. Moreover, Clark persisted in its dilatory conduct after trial began, when the existence of two boxes of additional reports was revealed only through Mr. Brooks' deposition.
Clark's unwillingness to turn over all accident reports involving Bobcat tip-overs was apparently a product of its insistence throughout the proceedings that it was required to produce only reports of accidents that occurred under identical circumstances and involved identical types of equipment. The trial judge himself noted that "it appears Clark made its own determination of what it thought was relevant." By any fair reading, interrogatory 20 required Clark to apprise Gammon of any reported accidents involving similar products, even if the accidents did not involve tip-overs. Judge Sullivan's order required Clark to produce all accident reports involving a tip-over of any Bobcat machine and to fully answer interrogatory 20. It was not up to Clark to unilaterally determine what was relevant to Gammon's claim. Clark's remedy, if any, was to seek a protective order pursuant to CR 26(c).
Accord, Rozier v. Ford Motor Co., 573 F.2d 1332, 1346, 50 A.L.R. Fed. 914 (5th Cir.1978); Rock Island Bank & Trust Co. v. Ford Motor Co., 54 Mich.App. 278, 220 N.W.2d 799, 801 (1974).
An award of $2,500 is cheap at twice the price in the context of a $4.5 million wrongful death case. Approval of such a de minimis sanction in a case such as this would plainly undermine the purpose of discovery. Far from insuring that a wrongdoer not profit from his wrong, minimal terms would simply encourage litigants to embrace tactics of evasion and delay. This we cannot do.
Clark contends that Gammon cannot now object to the trial court's choice of sanction because she did not request a continuance or move for a mistrial. This argument is meritless. It was Clark's responsibility to timely answer interrogatory 20 and produce the accident reports. Requiring Gammon to disrupt her trial presentation to accommodate Clark would reward noncompliance. See Lampard v. Roth, 38 Wn.App. 198, 684 P.2d 1353 (1984). A new trial is the only practical remedy at this stage.
Gammon next assigns error to several instructional matters. Because these issues may appear again on retrial, we
Gammon excepted to this instruction on the basis that it did not individually set forth her theories of negligence; i.e., failure to give adequate directions for use of the machine, failure to warn of dangers, failure to provide safe equipment, and failure to design safe equipment. Accordingly, Gammon contends that the trial court should have given her proposed instruction 2 because "it explains what the basis is for the `plaintiff's claims that defendants were negligent.'"
Wiehl, Instructing a Jury in Washington, 36 Wash. L. Rev. 378, 381 (1961). Thus, although it is generally true that instructions are sufficient if they allow a party to argue his theory of the case, accurately state the law and are not misleading, Crossen v. Skagit Cy., 100 Wn.2d 355, 360, 669 P.2d 1244 (1983), a party is entitled to an instruction as to the particular acts of negligence alleged if there is evidence to support them. Woods v. Goodson, 55 Wn.2d 687, 689-90, 349 P.2d 731 (1960).
Here, Gammon based her negligence claim upon several theories, principally the defendants' failure to provide adequate warnings and Clark's failure to design a safe machine. These acts also formed the basis for her cause of action in strict liability. While instruction 6 distinguished these theories for purposes of Gammon's products liability claim, it did not do so for purposes of her negligence claim. The instruction merely stated that Gammon had the burden of proof to show that the defendants were negligent "in one of the ways claimed by the plaintiff". Thus, Gammon was entitled to a more specific "issues" instruction.
Gammon next assigns error to the court's refusal to give her proposed instruction 10, which reads:
Gammon argues that the instructions as given did not explain that liability could be based on providing an unreasonably dangerous product notwithstanding the defendants' exercise of reasonable care.
Gammon next assigns error to the trial court's refusal to grant her motion in limine to exclude any evidence regarding the availability or use of a seatbelt in the Bobcat loader. Specifically, the motion encompassed
The motion, argued extensively before trial, was based upon Amend v. Bell, 89 Wn.2d 124, 570 P.2d 138, 95 A.L.R.3d 225 (1977), which held that evidence regarding the plaintiff's use of a seatbelt in an automobile negligence case is inadmissible. The trial court denied the motion in part on the basis that it was not clear that Amend applies to accidents involving industrial equipment such as the Bobcat. Thus, Mr. James Bauer, a vice-president of Clark and chief designer of the Bobcat 720, was allowed to testify that Mr. Gammon would not have died had he been wearing his seatbelt.
Here, the trial court did not abuse its discretion in denying the motion. As noted above, Gammon's motion sought to exclude "any evidence regarding a seatbelt". Amend v. Bell, supra, upon which the motion was based, held only that evidence that the plaintiff was not wearing a seatbelt should be excluded. Amend, 89 Wn.2d at 134. Accordingly, even if Amend were deemed applicable outside the automobile negligence context, it is far from clear that Amend would render inadmissible evidence regarding the availability of a seatbelt, or regarding warnings to use a seatbelt. Obviously, such evidence would be of crucial importance in determining if the Bobcat was reasonably safe. As it cannot be said that the evidence sought to be excluded by Gammon's motion was clearly inadmissible, the trial court did not abuse its discretion in denying the motion.
Finally, Gammon assigns error to the exclusion of a portion of a videotape showing the Bobcat being tested, and also to certain expert testimony. We find no error.
The judgment is reversed and the case is remanded for a
CALLOW and ANDERSEN, JJ., concur.
Reconsideration denied September 6, 1984.
Remanded by Supreme Court to the Court of Appeals December 7, 1984.
(a) The name and address of the injured party;
(b) the date and character of the notice;
(c) a description of the type of product involved;
(d) a description of the claimed mechanical failures involved;
(e) a description of the injuries sustained;
(f) whether or not a lawsuit was filed indicating the court, document number, and the names and addresses of the parties, including the plaintiff's counsel;
(g) the resolution of the litigation;
(h) any and all paperwork concerning the notices or the resolution.
The first sentence of this instruction indicates that Gammon premises the defendants' liability on providing a product "that was not safe". The next sentence then states that the listed theories of recovery are raised in support of "said claim". "[S]aid claim" obviously refers to Gammon's allegation that the defendants provided an unsafe product. Providing an unsafe or unreasonably dangerous product does not itself constitute negligence, but does give rise to a cause of action in strict products liability. Thus, in the context of this instruction, the specific acts listed appear to be alternative bases for Gammon's strict liability claim.