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Lutz v. National Crane9/1/1994
Rehearing Denied November 29, 1994.
, 51 St.Rep. 810
Submitted March 16, 1994.
This is an appeal and cross-appeal from a jury verdict in a wrongful death/products liability lawsuit in the Eighteenth Judicial District Court, Gallatin County, Montana. The jury returned a verdict of $815,400 in favor of Gerald Lutz's estate. Lutz was killed by electrocution when the crane cable with which he was working contacted a power line. The jury apportioned 20 percent liability to Lutz and 80 percent liability to National Crane, the crane manufacturer. We affirm in part and remand in part.
Although National Crane raises eighteen issues on appeal, we consolidate and restate the issues as follows:
1. Did the District Court err by submitting the affirmative defense of misuse to the jury?
2. Did the District Court err by submitting the affirmative defense of assumption of risk to the jury?
3. Did the District Court err by allowing Lori's expert witnesses to testify?
4. Did the District Court incorrectly instruct the jury on strict liability and negligence?
5. Did the District Court err by allowing Lori Lutz to present rebuttal testimony?
6. Did the District Court err by excluding evidence relating to causation?
7. Did the District Court err by excluding evidence of OSHA and ANSI standards?
8. Did the District Court Judge err by not recusing himself or granting a mistrial based on a fee splitting arrangement with one of Lori Lutz's attorneys?
9. Did the District Court err by not granting a mistrial based on comments from the bench or on comments by Lori's counsel?
10. Did the District Court err in its evidentiary rulings relating to Lori Lutz's miscarriage and remarriage?
On April 28, 1989, Gerald Lutz (Lutz) was killed when the crane cable he was using contacted a 7,200 volt power line. Lutz, then 28, was a trained and licensed groundman with Montana Ready-Mix. At the time of the accident, Lutz and his supervisor, crane operator Jim Lees (Lees), were retrieving drilling pipe which spilled from a semitrailer on Highway 191, outside of Bozeman.
Before lifting the pipes, Lees and Lutz discussed the task before them. They planned to extract several 40-foot pipes. Each pipe weighed between 300 and 400 pounds. Lees and Lutz were aware of overhead power lines in the area; that the crane cable with which they worked had no insulated link; and of the potential for electrocution. Lees and Lutz selected pipes that they believed could be safely removed. Because Lees did not feel they could safely remove some of the pipes which were located beneath the power lines, they placed a two-by-four board on the ground to delineate between the safe and unsafe "pick" areas. They then called in a wrecker to drag the pipe that they believed could not be safely removed.
Lutz's job entailed hooking metal chains, which were attached to the uninsulated crane cable, around the ends of the pipe and guiding the pipes to a waiting semi-trailer. Lees operated the crane.
Evidently, on the fatal pick — as the slack in the cable was eliminated — the taut cable, apparently no longer directly beneath the tip of the crane's boom, contacted the power line. The cable conducted electricity from the power line to the pipe, electrocuting Lutz.
On behalf of Lutz's estate, Lutz's widow, Lori Lutz (Lori), filed suit against National Crane, M & W Repair and Americo Trucking on March 9, 1990. M & W Repair and Americo Trucking elected to settle
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