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Estate of Williams v. Schwarze Industries, Inc.

Court of Appeals of Arkansas, Division IV

April 26, 2017

ESTATE OF ANDERSON DALE WILLIAMS, DECEASED, AND TWYLA A. WILLIAMS, ADMINISTRATOR APPELLANTS
v.
SCHWARZE INDUSTRIES, INC., AND ARKANSAS POWER STEERING AND HYDRAULICS APPELLEES

         APPEAL FROM THE DESHA COUNTY CIRCUIT COURT [NO. 58CV-14-59-1] HONORABLE SAM POPE, JUDGE

          Gibson Law Office, by: Charles Sidney Gibson and Chuck Gibson, for appellant.

          Friday, Eldredge & Clark, LLP, by: Elizabeth Robben Murray and Joseph McKay, for appellee.

          ROBERT J. GLADWIN, Judge

         Appellant, the Estate of Anderson D. Williams, appeals the October 15, 2015 order of the Desha County Circuit Court denying its motion for judgment notwithstanding the verdict (JNOV) regarding the September 11, 2015 order that found appellees Schwarze Industries, Inc. (Schwarze), and Arkansas Power Steering and Hydraulics (APSH) not liable in the death of Williams. Appellant contends that the jury verdict is against a preponderance of the evidence and thus lacks substantial evidence to support it and that the trial court erred by not granting its motion for JNOV on appellees' liability. We affirm.

         Williams, a highway employee, was killed on June 2, 2011, when a highway-department sweeper ran over him as he lay unconscious on the asphalt behind it. Appellant, through its administrator (Williams's widow), Twyla A. Williams, contended that the sweeper was defectively designed because it had a rear-end blind zone where Williams lay unconscious, unable to react to the back-up beepers as the sweeper traveled in reverse. Appellant initially sued Navistar, Inc., and APSH for products liability, breach of warranty, and negligence in the wrongful death of Williams. Schwarze was brought in via a third-party complaint as the manufacturer of the completed sweeper. Appellant filed an amended complaint on November 21, 2014, and Schwarze filed an answer on December 1, 2014, in which it admitted that it sold the unit to the highway department through its dealer, APSH, and that Navistar designed, manufactured, and distributed the cab and chassis. Schwarze denied that the design was unreasonably dangerous and pled comparative negligence. APSH filed a separate answer on January 5, 2015.

         On January 23, 2015, an order granting Navistar's motion for summary judgment was entered, which dismissed with prejudice appellant's cause of action against it. Appellees Schwarze and APSH filed their motion for summary judgment on July 23, 2015, contending that appellant did not have expert testimony of a design defect. Appellant responded on August 8, 2015, and appellees filed a reply on August 21, 2015. The motion for summary judgment was denied by the trial court during a telephone pretrial conference that was held on August 26, 2015.

         The jury trial commenced on September 1, 2015. Jury instructions were submitted, and a verdict form reflected that the jury found that appellees did not supply the sweeper in a defective condition that caused the accident, that there was no negligence on the part of appellees that caused the accident, and that appellees did not manufacture a sweeper that was unfit for ordinary purposes for which it was used.

         A judgment was entered on September 11, 2015, in favor of appellees on appellant's complaint and amended complaint. Appellant filed a motion for JNOV and for a new trial on damages on September 18, 2015. Schwarze responded on September 25, 2015. Appellant requested an extension to reply to Schwarze's response on September 29, 2015, and an order entered on October 1, 2015, granted an extension until October 7, 2015; a subsequent order set the motion for hearing for October 13, 2015. After that hearing, an order entered on October 15, 2015, denied appellant's motion for JNOV and upheld the jury verdict submitted on interrogatories, finding that there was substantial evidence to support appellees' verdict. Appellant filed its timely notice of appeal on October 28, 2015.

         We hold that appellant failed to preserve its point for appeal because it did not properly move for a motion for directed verdict at trial. Arkansas Rule of Civil Procedure 50(b) requires that a party move for a directed verdict as a prerequisite to subsequently filing a JNOV motion. Rule 50(a) states that the motion should be made at the close of the opposing party's case and specifically state the grounds for the motion. After appellees renewed their motions for directed verdict, the sum and substance of appellant's purported motion for directed verdict was as follows:

         The Court: Yes, ma' am. Thank you. Mr. Gibson?

Mr. Gibson: Your Honor, as I have previously stated, the evidence is in a posture at best for counsel's motion, there are facts in dispute. And the jury could -- The evidence could support a verdict on all theories, three theories of liability.
And I will address that we have alleged that the sweeper was not fit for its intended purpose which satisfies the pleading in this case and the proof under that pleading.
Now, I will say this: We think that we have gotten very close to a directed verdict ourselves on the issue that a convex mirror would have prevented this accident because their testimony from their expert said ...

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