Del Rojas v. Lindsay Manufacturing Co. , 108 Idaho 590 ( 1985 )

HUNTLEY, Justice.

Pedro Del Rojas, Sr., had brought an action for personal injuries against Lindsay alleging that the company was liable for injuries sustained by his son, Pedro Rojas, Jr., when the son became entangled in an unguarded drive-shaft of a Zimmatic Center Pivot Irrigation System (hereinafter “the irrigation system”) manufactured by Lindsay.

Rojas argues that the trial court erred in giving certain instructions, by improperly commenting on evidence, by permitting improper comment by Lindsay’s counsel, and by failing to admit certain evidence. He also contends that the jury’s verdict was not supported by the evidence.

On June 22, 1975, Pedro Rojas, Sr., his family and the families of other itinerant workers were employed by Kenneth Marshall to thin a beet crop in a field serviced by the Lindsay irrigation system. The system was not operating when the beet thinning commenced. As the workers drew near the system, it became necessary for them to either go around it, under it, or over it.

The pivot was not running as these workers were passing it. Marshall, in order to get the equipment out of the workers’ way, activated the system. The workers were not informed that the system would be activated.

Pedro Rojas, Jr., was following his parents in the field. He leaned against the pipe with his sleeves and arms hanging down over the drive-shaft. When the machine was activated, his sleeves were caught in the drive-shaft and he sustained injuries.

The drive-shafts of the system lacked shields or guarding. The system had been sold to Marshall without guards. However, guards which had been designed by Lindsay to cover the drive-shaft cover assembly were available for distribution to purchasers of the equipment as early as 1973. The cover assembly was designed to prevent crops from wrapping around the drive-shaft and doing structural damage to the equipment. The accident could not have happened if the drive-shafts had been guarded with the cover assembly.

Rojas brought action against Marshall, the farmer/owner of the irrigation system, upon the theory of negligence. He also brought action against Lindsay Manufacturing Company, the designer, manufacturer and distributor of the system, upon the alternative theories of strict liability and negligence. At the opening of the second day of trial, Marshall and Rojas entered into a settlement agreement and the case proceeded against Lindsay. The case was submitted to the jury upon special verdict. The jury found in favor of Lindsay and against Rojas, fixing the negligence of Rojas, Sr., at 20%, the boy at 0%, Lindsay at 0% and Marshall at 80%.

We first address Rojas’ contention that the trial court erred in giving both Instruction 19 and Instruction 21.

Instruction 19 provided:

A product is in a defective condition when the product does not meet the reasonable expectation of the ordinary user as to its safety. A product is unreasonably dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary user who purchases it with the ordinary knowledge common to the community as to its characteristics. For purposes of this case, you are instructed that the ordinary user is defined to be a farmer or qualified maintenance person. (Emphasis added).

Instruction 21 provided:

A product is in a defective condition unreasonably dangerous to person or property if it is more dangerous than would be expected by an ordinary person who may reasonably be expected to use it. The law does not say what would be expected by an ordinary person or who may reasonably be expected to use the product. Both of these issues are for you to decide.

Rojas submits that by giving both of the above instructions, the trial court improperly limited the classes of persons who might maintain an action for defective design or manufacture by limiting the class to a farmer or qualified service person. He urges this Court to accept the proposition that Instruction 19 limits the right to recovery to a farmer or qualified maintenance person. We do not agree. The instruction states the law as to the perspective from which it is to be determined that a product is “unreasonably dangerous”. See Restatement (Second) of Torts, § 402A (1965), Comments (i) and (i). The proper perspective is that of the ordinary user or consumer for whose use the product is intended, i.e., for whose use it must be safely designed. Hence, we find no error in the challenged instructions.

We next consider whether Rojas was denied a fair trial because Lindsay’s counsel, in closing argument, alluded to the settlement between Marshall and Rojas. Following jury selection and opening statement by Rojas, the trial court stated:

... As you probably have noticed, ladies and gentlemen, Mr. Marshall is no longer at the counsel table. And I can advise you that Mr. Marshall and Mr. Rojas have compromised their difficulties and have settled their portion of this case. Therefore, Mr. Marshall is no longer a party defendant.

During final argument, Lindsay’s counsel stated:

Now, you will be asked on the verdict form whether Mr. Marshall was negligent; and I submit to you that he was negligent. And I submit to you that his, his action was what caused this accident. Otherwise why would he have settled? I can tell you — and I don’t feel real good right now; but it is not very much fun trying lawsuits. It is hard work. And if you can settle, it is a lot easier. But if you think you are right, you have a right to defend yourself.

He also argued:

Anything can hurt you if used improperly. And we submit that the cause of the accident was the improper use of the machine by Kenneth Marshall; and Kenneth Marshall recognized the use of the machine when he injured Pedro Rojas because he settled this case. He got out.

Rojas contends that counsel’s comment was inappropriate and prejudicially influenced the jury. He maintains that offers of settlement or compromise are inadmissible and privileged. Lindsay claims that counsel’s remarks regarding a pre-trial consummated settlement between the plaintiff and another defendant were proper under the circumstances.

The rule is well established that an offer made in an effort to compromise a cause of action cannot be legally admitted in evidence over the objection of the opposing party. Kroetch v. Empire Mill Co., 9 Idaho 277, 74 P. 868 (1903). Likewise, all statements made in the course of settlement negotiations are inadmissible. Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980). These rules are grounded upon two theories: (1) that the offer is of dubious relevance on the issue of liability since it may merely imply a desire for peace and not a concession of wrong-doing and (2) the policy of promoting settling of disputes would be discouraged if offers of compromise were admitted in evidence. McCormick on Evidence, § 274, Third Ed. (1984) and 4 Wig-more, Evidence § 1061(c) Chadbourn rev. (1972). However, assuming, without deciding, that Lindsay’s counsel improperly drew the inference that Marshall admitted guilt by settling with Rojas, since Rojas’ counsel failed to object, move for a mistrial, or seek a cautionary instruction, the issue has not been preserved for appeal. Annau v. Schutte, 96 Idaho 704, 535 P.2d 1095 (1975); Johnson v. Emerson, 103 Idaho 350, 647 P.2d 806 (Ct.App.1982).

Rojas insists that the verdict was not supported by the evidence. We disagree. Conflicting evidence was presented as to whether the drive-shaft on the irrigation system was guarded by location and as to whether the product was unreasonably dangerous; however, there was substantial evidence to support the jury’s verdict. A jury verdict will not be overturned where there is substantial although conflicting evidence to support it.

As to the other issues raised on appeal, we have considered them and find them to be without merit.

Judgment affirmed.

Costs to respondent. No attorney’s fees.

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