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Kramer v. J.I. Case Manufacturing Co.8/26/1991
Garey Kramer appeals a judgment of dismissal entered on a defense verdict in his product liability action against J.I. Case Manufacturing Co. (Case). Kramer contends that the trial court erred in treating this case as one filed under the tort reform act, in refusing to instruct the jury on several alternative liability theories, in limiting his discovery, and in making several
evidentiary rulings. He also asserts that the trial court erred in denying his motion for a new trial. We affirm.
Kramer is a former construction worker . On October 3, 1985, he worked as a cement cutter on a water line installation job . Using a concrete saw, Kramer made cuts down the length of a slope on 7th Avenue West. As a result of these cuts, the slope was covered with slurry, a very fine, slippery mud.
While Kramer worked cutting the concrete, another worker , Steve Nelson, operated a Case backhoe near the top of the slope. During a repositioning maneuver in which Nelson used the pavement breaker attached to the backhoe's boom as an anchor, the backhoe went out of control and slid or rolled down the hill. The backhoe's shovel knocked Kramer down and dragged him 50 feet. Kramer suffered injuries to his left heel, both ankles and back, as well as numerous scrapes and bruises. Kramer was unable to return to his former employment.
On July 31, 1986, Kramer filed a product liability action in King County Superior Court against several defendants, including Case. He alleged that the backhoe was not reasonably safe in design or construction, and that inadequate warnings were provided. Kramer filed an amended summons and complaint on October 29, 1986, before any defendant filed an answer, and evidently before any defendants were served. Kramer paid a second filing fee at this time. Presumably because of the filing fee payment, the court clerk assigned the amended complaint a new cause number. Case was served with a copy of the amended summons and complaint on October 31, 1986.
The matter went to trial in December 1989. The jury entered a defense verdict, finding that Case did not "supply a product in which the boom was not reasonably safe as designed or was not reasonably safe because adequate warnings or instructions were not provided with the product". Consequently, the jury did not reach questions
of contributory negligence or damages. Kramer moved for a new trial. The court denied his motion. This appeal followed.
Adequacy of Record
A preliminary issue concerns the adequacy of the record. In an effort to limit his expenditures, Kramer had only a partial verbatim transcript prepared. Case thought the record inadequate and obtained from the trial judge an order requiring Kramer to supplement the existing transcript. Kramer did not do so, and Case moved in this court for an order mandating compliance with the trial court order or dismissing the case. On January 4, 1991, the commissioner denied Case's motion. He ordered that:
The Kramers' appeal on the merits may proceed on the record they have provided. This ruling in no way finds that record sufficient for purposes of appellate review. If a panel later agrees with the trial court that additional record is necessary, it may refuse to consider the issue on appeal. State ex rel. Dean v. Dean, 56 Wash. App. 377, 382, 783 P.2d 1099 (1989).
Case attacks this ruling in its respondent's brief filed 1 month after the commissioner's order. Its attack is untimely. A party aggrieved by a commissioner's ruling can only object by a motion to modify filed no later than 10 days after the ruling is filed. RAP 17
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