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Weyerhaeuser Company v. Thermogas Company12/20/2000
ct liability and breach of implied warranty of merchantability, (2) instructed the jury to disregard the cause of the fire in considering Weyerhaeuser's claims against Thermogas, and (3) instructed the jury on res ipsa loquitur. Its failures in each of these instances were prejudicial and warranted a new trial. The district court's failure to grant a new trial was error. We therefore reverse and remand for a new trial.
Although we have not addressed all of the parties' contentions, we have carefully considered them. Those we have not addressed either lack merit or were not preserved for our review.
REVERSED AND REMANDED.
All justices concur except Ternus and Cady, JJ., who concur in part and dissent in part. McGiverin, S.J.,* participates in place of Carter, J., who takes no part. *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).
TERNUS, J. (concurring in part and dissenting in part).
I concur in the majority opinion in all respects except Division V. I think the trial court correctly refused to instruct on the res ipsa loquitur doctrine. Although expert testimony established that the explosion would not have occurred unless there was a defect in the tank, I do not think this testimony establishes that the explosion would not have occurred in the absence of Thermogas's negligence. There was no evidence that a defect would not have existed unless Thermogas was negligent or that the defect would have been discovered had Thermogas exercised ordinary care in its inspection or recertification of the tank. Therefore, I think there was insufficient evidence that the accident would not ordinarily occur in the absence of Thermogas's negligence.
Cady, J., joins this concurrence in part and dissent in part.
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