 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Krivanek v. Fibreboard Corp.12/13/1993
nstructing the jury under standards of liability predating the product liability act of 1981. RCW 7.72.030. OCF asserts that when the 1981 act applies, jury instructions on negligence and strict liability must include consideration of state-of-the-art evidence on asbestos (evidence about custom in the industry, and historical, medical, and scientific knowledge about asbestos). Crittenden v. Fibreboard Corp., 58 Wash. App. 649, 656-59, 794 P.2d 554, 803 P.2d 1329 (1990).
Where the harm results from exposure, and it appears that substantially all of the injury -producing events occurred prior to the adoption of the 1981 act the 1981 act does not apply. Koker v. Armstrong Cork, Inc., 60 Wash. App. 466, 472, 804 P.2d 659, review denied, 117 Wash. 2d 1006 (1991). The jury is not required to consider the asbestos industry's state-of-the-art evidence where a shipyard worker's products liability action against asbestos products manufacturers arose before the 1981 act.
Ben Krivanek was exposed to asbestos in the 1950's and 1960's and was diagnosed in 1987. Medical experts testified that most people with mesothelioma are found to have their first exposure to asbestos 20 or 30 years before diagnosis, clearly placing Ben Krivanek's exposure and inhalation substantially before the act. Because the harm results from continuous exposure, it appears that the injury -producing events occurred before the effective date of the act, July 26, 1981. Thus, because the claim arose prior to the act, the trial court was correct in giving the jury instructions based on pre-act law.
Damages
Mrs. Krivanek claims that the verdict was outside the range of the evidence, and therefore, the court should have granted her a new trial. She asserts that the jury awarded a low verdict because it ignored the evidence.
[2, 3] Denial of a new trial on grounds of inadequate damages will be reversed where the trial court abuses its discretion. Wooldridge v. Woolett, 96 Wash. 2d 659, 668, 638 P.2d 566 (1981). A trial court abuses its discretion when its exercise of discretion is manifestly unreasonable or based on untenable grounds. Allard v. First Interstate Bank of Wash., N.A., 112 Wash. 2d 145, 148, 768 P.2d 998, 773 P.2d 420 (1989). In determining whether a new trial should be granted because of inadequate damages, the trial court and this court are entitled to accept as established those items of damage which are conceded, undisputed, and beyond legitimate controversy. Hills v. King, 66 Wash. 2d 738, 741, 404 P.2d 997 (1965); Singleton v. Jimmerson, 12 Wash. App. 203, 205, 529 P.2d 17 (1974) (citing King). Where special damages are undisputed, and the injury and its cause is clear, the court has little hesitancy in granting a new trial when the jury does not award these amounts. See Jimmerson . We reverse a jury award of damages which is outside the range of substantial evidence in the record. Washburn v. Beatt Equip. Co., 120 Wash. 2d 246, 279-80, 840 P.2d 860 (1992).
Dr. Finch testified to economic losses of $401,919 that Mrs. Krivanek would suffer as a result of Mr. Krivanek's death. Mrs. Krivanek's award, $30,000, was less than the lost value of the pensions alone. While the jury was not bound by Dr. Finch's expert testimony, it was bound by the unrebutted, uncontradicted evidence which formed the basis for those opinions and calcul
Page 1 2 3 Washington Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|