ALARID v. AMERICAN APPLIANCE MFG., 2002 UT App 376


Anna Marie Alarid, Plaintiff and Appellant, v. American Appliance Manufacturing, Inc.; American Water Heater Co.; and Rudy Gomez, Defendants and Appellees.

Case No. 20020026-CA.Utah Court of Appeals.
FILED November 15, 2002. (Not For Official Publication)

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Third District, Salt Lake Department, The Honorable Michael K. Burton.

Attorneys: Mitchel Zager, Salt Lake City, for Appellant.

John R. Lund and Julianne P. Blanch, Salt Lake City, and Michael S. Sutton, Mission Viejo, California, for Appellees.

Before Judges Jackson, Bench, and Davis.

MEMORANDUM DECISION
BENCH, Judge:

Appellant argues that the trial court erred by requiring her to select either her strict liability theory or her negligence theory to submit to the jury. The trial court’s ruling requiring Appellant to select only one of the two theories is essentially a ruling on the sufficiency of the evidence. After hearing the evidence, the trial court determined that Appellant had not presented sufficient evidence to independently support both theories of liability. Appellant claims that both theories were “supported by evidence,” but does not cite to the evidence in the record or identify it in any other way. See Utah R.App.P. 24(a)(9). Appellant’s only legal analysis of the issue refers to Barson v. E.R. SquibbSons, Inc., 682 P.2d 832 (Utah 1984). The decision in Barson upheld the validity of a general verdict, where both breach of warranty and strict liability theories were submitted to the jury, but the verdict did not indicate which theory the jury relied on. See id. at 835-37. We find no support in Barson for Appellant’s argument that the trial court committed reversible error by requiring Appellant to select one theory of liability to submit to the jury.

Appellant argues that the trial court erred (1) by ruling that Mr. Moore’s testimony in a different case could not be read into evidence, (2) by deciding against reopening discovery so Appellant could take Mr. Moore’s deposition, and (3) by limiting Mr. Fandey’s testimony to his opinions on the water heaters’ designs. Appellant represented to the trial court that Mr. Moore’s testimony “is not really specific in nature,” but would establish that Appellees “didn’t take steps to make their product safer because it would have cost them and would have cut into their profits.” Likewise, Appellant represented to the trial court that Mr. Fandey’s testimony “goes to the knowledge of the [Appellees]” as to the potential defects in the water heaters. Thus, as argued by Appellant below, both Mr. Moore’s testimony and Mr. Fandey’s testimony relate only to the issue of punitive damages.

The jury found that Appellees’ products were not defective, a finding Appellant does not challenge. Even if we were to conclude that the trial court erred in its rulings regarding Mr. Moore and Mr. Fandey, our reversal of the trial court’s rulings would not affect Appellant’s rights because the issue of punitive damages could not properly be placed before the jury. See Utah Code Ann. § 78-18-1(1)(a) (Supp. 2002) (providing “punitive damages may be awarded only if compensatory or general damages are awarded”). The evidentiary rulings are therefore moot. See Burkettv. Schwendiman, 773 P.2d 42, 44 (Utah 1989) (stating that an issue “is deemed moot when the requested judicial relief cannot affect the rights of the litigants”). Likewise, Appellant’s argument relating to the trial court’s failure to give a jury instruction on punitive damages is moot.

Appellant’s arguments regarding Mr. Long’s testimony are also moot because his testimony went to causation, an issue not reached by the jury because the jurors found no defect in the water heaters’ design. Similarly, Appellant’s arguments relating to the trial court’s failure to give a Summers v. Tice, 199 P.2d 1 (Cal. 1948), instruction, which goes to causation, is moot.

We will consider a moot issue only if it is one that “affects the public interest, is likely to recur, and because of the brief time that any one litigant is affected, is capable of evading review.” Burkett, 773 P.2d at 44. We cannot conclude, and Appellant does not argue, that the moot issues presented here are the type that affect the public interest, are likely to recur, or are capable of evading review. See id. Thus, we do not address them.

Appellant was permitted to freely and completely present her evidence as to the water heaters’ defect, which the jury rejected. Having found no defect in the products, the jury could not reach the issues of punitive damages and causation. Thus, we conclude that Appellant was not prejudiced by the trial court’s rulings challenged on appeal.

We therefore affirm.

WE CONCUR: Norman H. Jackson, Presiding Judge, and James Z. Davis, Judge.