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10/14/94 RONALD EVANS v. FRUEHAUF CORPORATION

October 14, 1994

RONALD EVANS
v.
FRUEHAUF CORPORATION



Appeal from Jefferson Circuit Court. (CV-88-8342). Kenneth O. Simon, TRIAL JUDGE.

Released for Publication January 17, 1995.

Houston, Maddox, Shores, Steagall, and Ingram, JJ., concur.

The opinion of the court was delivered by: Houston

HOUSTON, JUSTICE.

Ronald Evans sued Fruehauf Corporation, alleging liability under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") and seeking damages for personal injuries. The jury returned a verdict for Fruehauf, and the trial court entered a judgment on that verdict. Evans appealed. We affirm.

Evans, a truck driver, alleged in his complaint that he had injured his back in 1987 while attempting to use a "converter dolly" that Fruehauf had manufactured and sold. The converter dolly, which Fruehauf sold to Evans's employer in 1984 and which Evans alleged was "defective," within the meaning of that term as it is used in our cases establishing the AEMLD, was a device used to connect two semi-trailers so that they could be pulled in tandem by one truck. The primary basis for Evans's claims, as stated in his brief, was that "the converter dolly ... should have been equipped with a counterweight system in order to reduce the tongue weight (the effective weight required to be lifted by the truck driver)." After it sold the converter dolly to Evans's employer (1984), but before Evans was injured (1987), Fruehauf redesigned its line of converter dollies so as to provide a counterweight. The sole issue presented on this appeal is whether the trial court erred in excluding from the evidence an internal memorandum prepared by a Fruehauf employee in 1986. That memorandum read, in pertinent part, as follows: "SUBJECT:

"EL-FL1 Dolly Counterbalance

"REASON FOR REQUEST--PRODUCT AFFECTED AND ANNUAL VOLUME:

"Customers are complaining that the tongue weight on our dolly is excessive making it extremely hard for one person to maneuver during hook-up operations. In most cases a crank down type device or single support leg has to be added in order to raise and lower the tongue. This device adds weight and cost.

"WHAT ACTION SHOULD BE TAKEN:

"Add counterbalance as standard similar to that shown on the attached sketch provided by Detroit Engineering. Do not extend frame rearward any more than is necessary -- thereby maintaining proper clearance for supports on trailing unit. This should reduce tongue weight to 100 lbs. or less, which is what customers are requesting. Stiff leg support should be retained to keep lunette eye from dropping to the ground.

"COST IMPACT: NO CHANGE

"(DESCRIPTION)

"Cost of counterbalance is about the same as one stiff leg support.

"....

"COMMENTS:

"Minor change -- should not take long. Will give us a feature to sell."

Fruehauf initially contends that the issue concerning the admissibility of its internal memorandum was not preserved for appellate review. In the alternative, Fruehauf contends that evidence of a modification made to the design of a product after the product has been sold, but before the occurrence of an accident allegedly caused by that product, should fall under the general rule requiring exclusion of evidence of subsequent remedial measures. Citing several cases, Fruehauf argues that its internal memorandum would be inadmissible under that rule. *fn1 Evans argues that the issue presented was properly preserved for appellate review and, citing a number of cases and legal authorities, contends that the Fruehauf memorandum was not evidence of a subsequent remedial measure because it showed that Fruehauf had made the design change to its converter dollies before Evans was injured. In other words, Evans takes the position that a remedial measure must have been taken subsequent to the accident giving rise to the lawsuit in order to fall under the general rule governing the admissibility of evidence of subsequent remedial measures. *fn2

After carefully reviewing the record in this case, we find it unnecessary to determine whether the Fruehauf memorandum was inadmissible under the general rule excluding evidence of subsequent remedial measures. Although the trial court stated in its order denying Evans's new trial motion that the Fruehauf memorandum was inadmissible under that rule, we agree with Fruehauf that during the trial Evans's trial counsel waived the issue of the memorandum's admissibility. *fn3

The trial court granted Fruehauf's pre-trial motion in limine to exclude evidence that Fruehauf had redesigned its converter dollies after 1984. In Bush v. Alabama Farm Bureau Mutual Casualty Ins. Co., 576 So.2d 175, 177-78 (Ala. 1991), this Court stated:

"We recognize that the trial court has broad discretion in evidentiary matters. The general rule was stated in State v. Askew, 455 So.2d 36 (Ala.Civ.App. 1984), citing C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala.L.Rev. 1 (1981), as follows:

"'In keeping with the vesting of broad discretion in the trial court in this area, it is generally held that the granting of a motion in limine can never be reversible error. The non-moving party may repeat at trial, preferably out of the hearing of the jury, his request for permission to prove the contested matter. This offer of proof is required in order to isolate the error for appeal. It is this refusal at trial to accept that proffered evidence, not the granting of the pretrial motion in limine, that serves as the basis for reversible error. Of course, this ability to bring up the matter a second time would not be available if counsel had requested and the Judge had granted a prohibitive-absolute motion in limine.'

" 455 So.2d at 37 (Ala.Civ.App. 1984). In Perry v. Brakefield, 534 So.2d 602, 607 (Ala. 1988), this Court cited Professor Gamble and stated: 'The clear holding of these cases is that unless the trial court's ruling on the motion in limine is absolute or unconditional, the ruling does not preserve the issue for appeal.' 534 So.2d at 606."

(Emphasis in original.) Evans acknowledges that there is no indication in the record that the trial court's ruling on Fruehauf's motion in limine was absolute or unconditional. Therefore, Evans had to offer the contested memorandum at the trial and obtain a specific adverse ruling in order to preserve the issue for appellate review.

One of the issues at the trial was whether Fruehauf had had a counterweight available as optional equipment for use on its converter dollies in 1984. Fruehauf argued that a converter dolly equipped with a counterweight was available in 1984, but that Evans's employer had chosen not to order one. To rebut that argument, and to counter the testimony of an adverse witness, Billy Harris, a former Fruehauf branch manager whom Evans had called to testify and who had stated that Fruehauf offered a counterweight as "optional" equipment in 1984, Evans sought to introduce the Fruehauf memorandum, as well as certain portions of the deposition testimony of Brian Stafford, Fruehauf's director of engineering, that, according to Evans, contradicted Harris's testimony. During extensive arguments by counsel for both parties and during a lengthy Discussion among counsel and the trial court as to whether Evans was attempting to improperly impeach his own witness (Harris) ...


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