Petition — Collins v. Ridge Tool Co.
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Sup. -ne Court, U. &
FiLED
JAN 12 1976
- saa sie
ROR, CLERK |
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
BERNARD J. COLLINS and MARIAN COLLINS,
Petitioners,
VS.
THE RIDGE TOOL COMPANY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
for the Seventh Circuit
WILLIAM L. McCUSKER
: 25 West Main Street, Suite 731
: Madison, Wisconsin 53703
(608) 256-1841
Counsel for Petitioners
St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477
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INDEX
Page
Pn 7 cu rate Sere eaters pies ko cecy use l
EE ee ee ee ee ae 2
eas als a his cite ed RKO SAYS On 4:0 2
Constitutional and Statutory Provisions Involved ........ 3
gt PP TICE TCT CC TOTTe Tree 3-5
Reasons for Granting the Writ ................0.0085 6-17
ST Wb bbaaw ec Ube sddeverdaceek Se Sieve eves 17
Appendix:
A—Decision of Trial Judge James E. Doyle of Western
District of Wisconsin dated January 26, 1973 in
Ge EE UC. obi cede cet sceeccteus A-1
B—Decision of 3 judge panel of Circuit Court of Ap-
peals in Collins v. Ridge Tool dated August 13,
oS id re A-5
C—Order of Seventh Circuit Court of Appeals dated
September 22, 1975, recalling prior mandate to per-
mit consideration of Petition for Rehearing in
DE Sues Cree REC OUR Ee TEES CAR se ueeoes A-17
D—Order of Seventh Circuit Court of Appeals denying
Petition for Rehearing in Banc dated October 14,
SPUR GE PU PUSS ecw bokrtetebedéeraceast A-18
E—Decision of Seventh Circuit Court of Appeals in
McPhee v. Corinth Machinery Co. dated April 30,
1971 on appeal from Judgment in Western Dis-
I vac as wa caka nae eeauees A-20
F—Opinion and Order of Trial Judge James Doyle
(W.D.Wis.) in McPhee v. Corinth Machinery Co.
GUNES Se Be HD hb unos wascsavupinsader A-23
G—Decision of Seventh Circuit Court of Appeals in
Sievers v. Keebler Company, dated November 30,
1971, on appeal from a judgment entered in the
U.S. District Court for Western District of Wis-
SED 66 0k 406 oe 46500.05 446095 chEKCET ROR A-31
H—Decision of Trial Judge Doyle (W.D.Wis.) in Sievers
v. Keebler Company dated Nov. 30, 1971........ A-35
I—Decision of Trial Judge James E. Doyle (W.D.Wis.)
in Sievers v. Keebler Company, dated March 30,
1972, also involved in that appeal ............. A-40
Cases Cited
A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355 (1962) 15
Bishop v. Johnson, 36 Wis.2nd 64, 152 N.W. 887 (1967) 12
Bruno v. Biesecker, 40 Wis.2nd 305, 177 N.W.2nd 388
ED Leet es So oes Shee C ree terre as br eeeeeee ee 10
Colson v. Rule, 15 Wis.2nd 374, 113 N.W.2nd 14 (1962) 12
Davis v. Skille, 12 Wis.2nd 482, 107 NW2nd 458 (1961) 10
Dazenko v. Hunter Machine Co. (7CCA, 1970), 420 F.2nd
Sy -.c0 suntan Gt bt whbede ek cca eee Geis ss 10
Dick v. New York Life Ins. Co., 359 U.S. 437 (1958) ..9, 16
Dippel v. Sciano, 37 Wis.2nd 443, 155 N.W.2nd 55
i citcaivds.dctuneadee ech dae eee beeen 12, 13
Etling v. Sander (7th CCA), 447 F.2nd 593 (1971) ...... 11
Howes v. Hansen, 56 Wis.2nd 247, 201 NW2nd 825
SPE ceatitwcnas (6) >a bae Wktahi ed eaahas 13
Johnson v. Sipe, 263 Wis. 191, 56 NW 2nd 852 (1952) .. 10
McConville v. State Farm Mut. Ins., 15 Wis.2nd 374, 113
ee he EE «Gas dca c chee celt'n's abe 7, 11, 12
McPhee v. Corinth Mach. Co. (7th CCA, 1971, not re-
ES oer rr yr rrk TELE e tee eee 7,8
Maichle v. Jonovic, 69 Wis.2nd 622, 230 N.W. 2nd 760
Nese as ag dbbans (hea b6ere ss 6.644 saw 10
Mercer v. Theriot, 377 U.S. 152 (1964) ............. 16
Neely v. Eby Constr. Co., 386 U.S. 317 (1967) ........ 14
Sayen v. Rydzenski (7th CCA, 1967), 387 F2nd 815... 10
Sievers v. Keebler Company (7th CCA, 1973, decision not
published,) reported affd. 487 F2nd 1404 .......... 8
Smith v. Uniroyal (7th CCA, 1970), 420 F. 2nd 438 .... 10
Valiga v. Nat. Food, 58 Wis.2nd 232, 206 N.W.2nd 377,
EI a ee ee ee 1]
Wisniewski v. U.S., 353 U.S. 901 (1957) .............. 6,9
Texts or Articles Cited
Fairchild, Recent Developments in (Wis) Tort Law, 1962,
ff Le ke PPrrerrreerr rrr TiTerere er 12
Harlan, “Manning the Dikes”, 18th Annual Cardozo
ete oR Cann bakes eaneseeees 6
SA, Moore’s Fed.Prac., Sec. $0.02 ....... .....s000. 1]
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
eee
BERNARD J. COLLINS and MARIAN COLLINS,
Petitioners,
VS.
THE RIDGE TOOL COMPANY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
To the United States Court of Appeals
for the Seventh Circuit
Your Petitioners, Bernard J. Collins and Marian Collins, pray
that a Writ of Certiorari issue to review the Judgment of the
Circuit Court of Appeals entered on September 15, 1975, which
reversed a jury verdict and judgment in favor of the plaintiffs
entered in the United States District Court for the Western Dis-
trict of Wisconsin on February 19, 1972.
OPINIONS BELOW
The Opinion of the United States District Court for the West-
ern District of Wisconsin sustaining the jury verdict in favor
of plaintiffs dated January 26, 1973, is not reported but is
annexed as Appendix A.
a
The Opinion of the Seventh Circuit Court of Appeals is re-
ported in 520 F. 2nd 591 (1975) without reference to the
pendency or disposition of a Petition for Rehearing In Banc and
is annexed as Appendix B.
On Petition for Rehearing In Banc, the Court of Appeals
denied rehearing on October 14, 1975 by a vote of 7 to 3 with-
out opinion. The Order Denying Rehearing is annexed as
Appendix D.
JURISDICTION
The Opinion of the Court of Appeals was entered on August
13, 1975. A timely Petition for Rehearing In Banc was filed,
which was denied by a vote of 7 to 3 without opinion. This
Court has jurisdiction under 28 U.S.C., Section 1245 (1).
QUESTIONS PRESENTED
1. Whether an intra-circuit conflict was created by the divided
decision (2-1) in this case with prior decisions of the same Court
of Appeals construing Wisconsin negligence and comparative
negligence law. If there was such a conflict created, did the 7-3
vote on Petition for Rehearing En Banc, without opinion, fail
to resolve the conflict, contrary to prior decision of the Supreme
Court?
2. Did the divided-decision of the Court of Appeals misapply
and conflict with applicable Wisconsin negligence and compara-
tive negligence law and applicable Wisconsin and federal law
as to sufficiency of the evidence to support jury findings?
3. Whether a Court of Appeals may redetermine questions of
fact determined by a properly instructed jury, in the face of
unifies
conflicting credible evidence, and absent any error by the trial
court, without depriving litigant-petitioners of their Seventh
Amendment rights to a jury trial?
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
AMENDMENT VII, Constitution of the United States, pro-
vides:
“In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall
be preserved, and no fact tried by a jury, shall be other-
wise reexamined in any Court of the United States, than
according to the rules of the common law.”
The Wisconsin Comparative Negligence statute created in
1931 is also involved, and at the time of the accident in ques-
tion, it was section 895.045 Wis.Stats., reading as follows:
“895.045 Contributory Negligence; when bars recovery.
Contributory negligence shall not bar recovery in an ac-
tion by any person or his legal representative to recover
damages for negligence resulting in death or in injury to
person or property, if such negligence was not as great as
the negligence of the person against whom recovery is
sought, but any damages allowed shall be diminished in
the proportion to the amount of negligence attributable to
the person recovering.”
STATEMENT OF THE CASE
Petitioner, Bernard Collins, was injured on November 28,
1967, while using a pipe threading machine manufactured by
respondent, when his jacket became entangled in a rotating pipe
at the front of the machine where the pipe protruded. As the
—
result of the injuries, his left arm was ultimately amputated.
Petitioner, Marian Collins, is his wife.
The machine in question had a power switch located on the
side of the machine, recessed and under a housing, towards the
rear. Collins was not injured until about 10 seconds after he
first became entangled and after the machine tipped over, dur-
ing which time he could not reach the power-switch. There was
evidence that if there had been a top or near top mounted
switch, or a foot switch, he could have cut off the power and
avoided injury. Experts testified that the machine was unrea-
sonably dangerous as to design because of the location of the
power-switch, that top or near-top mounted switches were fea-
sible and were used by respondent's major competitors, and a
foot-switch was feasible. Substantial expert testimony was pre-
sented at the trial by both parties as to whether the machine
was Or was not unreasonably dangerous and the negligence of
the manufacturer with respect to warnings and instructions.
Petitioners commenced an action in the United States Dis-
trict Court for the Western District of Wisconsin under Wis-
consin products liability law, claiming that the manufacturer was
negligent because the machine was unreasonably dangerous as
to design, failure to warn, and inadequate imstructions.
On February 19, 1972, a unanimous 12 man jury returned a
verdict in favor of plaintiffs for damages in the total sum of
$247,737.75. The jury found defendant-manufacturer causally
negligent and allocated 65% of the total negligence to it. The
jury found Bernard Collins causally negligent and allocated
35% to him. Defendant's motions for judgment n.o.v. and for
a new trial were denied by the trial court by an Opinion and
Order dated January 26, 1973 (App. A), stating that the jury's
findings were not against the weight of the evidence. (App. A,
A-2).
<-
a ts
In accordance with Wisconsin Comparative Negligence Law,
the District Court entered judgment in favor of plaintiffs for
$161,029.54.
Defendant made timely appeal to the Seventh Circuit Court
of Appeals, and the case was argued in February. 1974. In a
three-judge panel decision dated August 13, 1975, Indiana Dis-
trict Judge Grant, and Circuit Judge Pell, appointed from Indi-
ana, weighed the conflicting testimony and concluded that de-
fendant’s product was safe. Senior Illinois District Judge Wil-
liam Campbell surveyed the conflicting evidence, and, in a strong
dissent, concluded that the verdict should be affirmed.
Plaintiff made timely Petition for Rehearing In Banc, which
was denied by a vote of 7 to 3 on October 14, 1975 without
opinion.
Petitioners herein seek review of the reversal by the Seventh
Circuit Court of Appeals of the Judgment in favor of plaintiffs.
REASONS FOR GRANTING THE WRIT
I. The Majority Decision Herein (2-1, Judges Grant, Pell,
with Campbell Dissenting) Created an Intra-Circuit Conflict
With Prior Decisions of the Seventh Circuit Court of Appeals
in McPhee v. Corinth Machinery Co. (Judges Hastings, Fair-
child and Campbell; See App. E and F), and Sievers v. Keebler
Company (Judges Fairchild, Sprecher, and Reynolds; See App.
G and H) Construing Wisconsin Negligence and Comparative
Negligence Law in Products Liability Cases. The Intra-Circuit
Conflict Was Not Resolved.
1. If an intra-circuit conflict was created, as will be shown,
the Supreme Court has directed that the Court of Appeals should
resolve the conflict. Wisniewski v. U.S., 353 U.S. 901 (1957).
Justice Harlan stated his view that such intramural conflicts
should be avoided through later panels customarily deferring to
decisions of prior panels. “Manning the Dikes,” 18th Annual
Cardozo Lecture, p. 19.
On Petition for Rehearing in Banc herein, decided October
14, 1975, Chief Judge Fairchild, then Judge John Paul Stevens,
and Judge William Campbell, who wrote the strong dissenting
opinion in this case, voted for rehearing. It is a reasonable con-
clusion that these votes for rehearing implicitly indicated that
the divided decision of the three-judge panel either (1) created
an intra-circuit conflict with prior decisions of the same Court
construing Wisconsin law, or (2) that the evidence was not
such that the Court could say—as the majority did—as a matter
of law that defendant-manufacturer was not negligent.
2. There was an intra-circuit conflict created by the majority
decision in this case with prior decisions of the same Court con-
struing Wisconsin law.
_— we
Uniquely, Wisconsin has had comparative negligence since
i931, while no other State in the Seventh Circuit has it (Laws,
Wis. 1931, c. 242).
In Collins v. Ridge Tool Co., as in McPhee v. Corinth Ma-
chinery Co. and Sievers v. Keebler Company—all arising in the
U.S. District Court for the Western District of Wisconsin—the
jury found plaintiff less negligent than the defendant-manufac-
turer, and the trial judge (James E. Doyle) sustained the jury
findings as to causal and comparative negligence and granted
judgment to plaintiffs.
In Collins the majority of the Court of Appeals overturned
the verdict and judgment thereon, grounding the decision prin-
cipally upon the basis that the danger of the rotating pipe was
open and obvious, that Collins was fully cognizant of the hazards
of his work (App. B-A 12) and he failed to exercise ordinary
care to protect himself from a danger which he should have ap-
preciated (App. B-A 13).
Although the foregoing reasoning of the majority relied upon
assumption of risk principles, Wisconsin abolished assumption
of risk in the leading case of McConville v. State Farm Ins. Co.,
1S Wis.2nd 374, 113 N.W.2nd 14 (1962), written by then-
Wisconsin Supreme Court Justice Fairchild.
The majority decision was so unpalatable to Judge William
Campbell that, in this strong dissent, after reviewing evidence
to support the jury’s and trial court's findings, he commented
that the majority had substituted their evaluation of the record
for the jury's, and “In my opinion the result reached by the
majority improperly and inexcusably invades the province of
the jury” (App. B, A-16) (Emphasis added).
The conflict of the majority decision with prior decisions con-
struing Wisconsin products liability laws, is irrefutable when
prior decisions of the same court are considered. In McPhee
v. Corinth Machinery Co. (7th C.C.A. decision unpublished,
April 30, 1971, No. 18568, App. E), McPhee, a sawyer, lost
both legs when he stepped on to a track ahead of a saw-carriage
to dislodge the splinter from near the saw (App. E, A-20-21.)
The trial court found plaintiff causally negligent as a matter of
law in proceeding into the carriage area of the mill in the-man-
ner he did, but left to the jury the questions of negligence of the
manufacturer, cause, and comparative negligence. The jury found
causal negligence on the manufacturer, allocated 80% negligence
to it, and 20% to plaintiff. The trial court sustained the verdict.
On appeal, the Court of Appeals affirmed, and held that it “can-
not be said as a matter of law that McPhee’s causal negligence
was equal to or greater than defendant's” (App. E, A-22). The
reasons given by the majority in Collins for overturning the ver-
dict, if applied to the facts in McPhee, would have resulted in
reversal in McPhee. The noteworthy difference is that the Court
of Appeals in McPhee did not exonerate the manufacturer be-
cause the danger was open and obvious to the plaintiff.
In Sievers v. Keebler Company (7th Cir., decision not pub-
lished, Nov. 9, 1973, No. 69-C-155, reported affirmed 487 F.
2nd 1404, see App. G, H, 1), plaintiff was injured in an in-
dustrial accident when his arm was caught in a machine man-
ufactured by defendant. There was a verdict for plaintiff on
comparative negligence, and the trial judge found that the find-
ings were based upon substantial evidence, granting plaintiff
judgment (App. I, A-41). The Court of Appeals, with two
Wisconsin judges on the three-judge panel, affirmed, “adopted”
the lower court decision (App. G, A-34), and, with respect to
comparative negligence choice of law, cited Senior District Judge
Campbell's opinion in Elston v. Morgan, 440 F.2nd 47, 50.
In McPhee and Sievers, as contrasted to the majority in Col-
lins, the Court of Appeals did not exonerate the manufacturer
and impose all the causal negligence on plaintiff upon the basis
that plaintiff's familiarity with the hazard of an open and obvi-
ous danger required absolution of the manufacturer.
_
The conflict created by the majority decision herein is mani-
fest, real, and devastatingly confiscatory. The collision of that
decision with Wisconsin law and prior decisions of the same
Court of Appeals is fortified by the fact that the decisions in
McPhee and Sievers involved a Wisconsin trial judge and Court
of Appeals panels including Wisconsin Judges. It was consid-
ered important in Dick v. New York Life, 359 U.S. 437, 447
(1958) by the Supreme Court, in reversing the Court of Ap-
peals which had overturned the jury verdict, that “after all the
evidence was in, the district judge, who was intimately concerned
with the trial, and who has a first hand knowledge of the appli-
cable state principles, believed that the case should go to the
jury”.
3. The 7-3 vote on Petition for Rehearing In Banc, denying
rehearing without opinion, did not resolve the conflict discussed,
contrary to directives in Wisniewski v. U.S., supra. What dis-
tinguishes the situation in Collins from that in McPhee or
Sievers? Each involved a workman at his employment injured
by an open and known hazard. The principles to be applied to
jury verdicts and trial court judgments in all three cases should
have been the same with the same result. A divided vote with-
out opinion does not resolve the conflict. No distinction has
been shown.
The failure to resolve the manifest conflict, and the irrecon-
cilability of the majority decision herein with the prior decisions,
calls for intervention of the Supreme Court to correct a mani-
fest injustice.
Il. The Majority Decision Herein Collides With ana Is In-
compatible With Wisconsin Law and Applicable Federal Law.
1. The decision of the court below fails to give effect to ap-
plicable decisions of Wisconsin and federal courts as to the
weight to be accorded jury findings and sufficiency of evidence
to support the verdict.
pa te
The test of sufficiency of the evidence to support jury findings
is substantially the same in Wisconsin as in the Seventh Circuit,
viz., that where a jury verdict is attacked, the Court must con-
sider the evidence and all inferences reasonably arising there-
from in the light most favorable to the prevailing party; and if
there is any credible evidence, which, under any reasonable view,
supports the jury’s findings, the findings shouid not be set aside.
Bruno v. Biesecker, 40 Wis.2nd 305, 312, 177 N.W.2nd 388
(1970); Smith v. Uniroyal (7th C.C.A.1970), 420 F.2nd 438,
440; Dazenko v. Hunter Mach. Co. (7th CCA 1968), 393 F.
2nd 287; Sayen v. Rydzewski (7th C.C.A. 1967), 387 F.2nd
815.
The Statement of the Case herein and the dissenting opinion
of Judge Campbell in Collins (App. B, A-14-16) state evi-
dentiary facts in support of the jury findings.
2. The decision of the Court below fails to give effect to ap-
plicable decisions of Wisconsin and the Seventh Circuit Court of
Appeals as to changing jury answers or granting a directed ver-
dict.
The majority in Collins in effect change the answers to the
jury verdict, so that the manufacturer’s negligence is redueed
from 65% to 0 and Collins’ causal negligence is increased to
100%. In Wisconsin, the rule governing when it is proper to
change a jury’s answer is that only if the record is devoid of evi-
dence that would sustain the verdict, or if the evidence is in-
credible, is it within the province of the trial court or the Su-
preme Court to substitute its view of the evidence for that of the
jury. Johnson v. Sipe, 263 Wis. 191, 56 N.W.2nd 852 (1952);
Maichle v. Jonovic, 69 Wis.2nd 622, 626, 230 N.W.2nd 760
(1975). The comparison of negligence is peculiarly within the
jury's province. Davis v. Skille, 12 Wis.2nd 482, 107 N.W.2nd
458 (1961).
In effect, the majority in Collins direct a verdict in favor of
the manufacturer. In view of the evidence, this could not have
been done by the trial court or the Court of Appeals under prior
decisions of the Seventh Circuit. 5A, Moore's Fed.Prac. § 50.02,
pp. 3320-3330. The Seventh Circuit Rule, in diversity cases, is
that State law controls as to when a verdict can be directed.
Etling v. Sander, 447 F.2nd 593, 594 (1971). In Wisconsin
“an issue should be taken from a jury only when the evidence
gives rise to no dispute, or is so clear and convincing as reason-
ably to permit unbiased and impartial minds to come to but one
conclusion.” Valiga v. Nat. Food., 58 Wis.2nd 232, 206 N.W.
2nd 377, 382 (1973).
The Statement of the Case and Judge Campbell's dissent in-
clude evidentiary basis compelling denial of a change of an-
swers or direction of verdict in favor of defendant-manufac-
turer, rather than the result improperly accomplished by the
majority.
3. The decision of the majority herein militates against ap-
plicable Wisconsin negligence and comparative negligence law
in products liability cases.
The majority reversed because of Collins’ knowledge of the
dangers in the operation of the machine, the hazards of his
work, and his failure to exercise ordinary care to protect him-
self from danger which he should have appreciated. This is
applying assumption of risk to completely bar the plaintiff. That
reasoning is repudiated in the decisions in McPhee and Sievers,
supra, with Wisconsin judges on the appellate panels. Chief
Judge Thomas Fairchild, then on the Wisconsin Supreme Court,
wrote the decision in the leading case of McConville v. State
Farm Mutual, 15 Wis.2nd 374, 113 N.W.2nd 14 (1962) which
abolished assumption of risk.
In McPhee, supra, the same Judge Fairchild, then on the
Seventh Circuit Court of Appeals, voted for affirmance of the
=
verdict for the plaintiff where the latter was found negligent as
a matter of law in proceeding into a known danger. In Collins
the majority reaches a contrary result
Emphatically corroborating our contention that the majority
erroneously applied assumption of risk principles in conflict with
Wisconsin law is the comment by then-Wisconsin Supreme Court
Justice Fairchild in 46 Marq.L.R. 1, 5 (1962) that “In McCon-
ville v. State Farm, supra, and Colson v. Rule, 15 Wis.2nd 374,
113 N.W.2nd 14 (1962) the Court abolished the defense of as-
sumption of risk at least where the assumption is implied from
conduct. The Court pointed out that one’s unreasonable ex-
posure of himself to a particular hazard is negligence and sub-
ject to the comparative negligence statute”.
The disharmony of the majority with Wisconsin law is further
demonstrated by the Wisconsin decisions that “conduct formerly
called assumption of risk is also subject to the same rule of
comparison as any other type of negligence; that McConville
(abolishing assumption of risk) did more than change labels.”
Bishop v. Johnson, 36 Wis.2nd 64, 152 NW 2nd 887 (1967).
Wisconsin law following McConville v. State Farm, supra,
said that an “obvious reason " why McConville abolished as-
sumption of risk “was to extend the benefit of our comparative
negligence statute to the plaintiff’. Dippel v. Sciano, 37 Wis.2nd
443, 461, 155 N.W.2nd 55 (1967).
Conflictingly, the majority in Collins applied assumption of
risk reasoning to deprive, rather than give, Collins the “benefit
of our comparative negligence statute.”
Further conflicting with Wisconsin law, the majority errone-
ously construed the “duty” of the manufacturer to depend on the
facts of the injury-causing event and the conduct and experi-
ence of the plaintiff. This is not the law of Wisconsin. The duty
aw 43 a»
of defendant-manufacturer in Wisconsin is separately prescribed
by law and is the same as to all users of products—even non-
users. Howes v. Hansen, 56 Wis.2nd 247, 201 N.W.2nd 825
(1972).
Insofar as the majority was concerned, the abolition of as-
sumption of risk by McConville and the subjecting of such con-
duct to comparative negligence, as provided by Dippel, did not
change Wisconsin law. The majority decision is at war with
Wisconsin law.
Wisconsin law and Federal law in the Seventh Circuit re-
quired that the jury verdict and judgment of the trial court be
affirmed if there was any credible evidence to support the jury's
findings, and the evidence has to be construed most favorably
in support of the verdict. There was such evidence. The ma-
jority of the Court did not construe the evidence in conformity
with these rules.
If Wisconsin law had been correctly applied in Collins, and
if Wisconsin law had been applied consistent with prior decisions
of the Seventh Circuit Court of Appeals construing the same
law, an affirmance of the jury verdict and judgment of the trial
court was required. Petitioners are the victims of inconsistency
and the misapplication of Wisconsin law by the majority.
—
III. The Redetermination of Facts by the Majority, in Con-
flict With Applicable Wisconsin Law on Negligence and Com-
parative Negligence, in Conflict With Prior Decisions of the
Seventh Circuit Court of Appeals Construing the Same Law,
in Conflict With Wisconsin and Federal Law as to Sufficiency
of Evidence to Support Jury Findings, in the Face of Support-
ing Credible Evidence, Without Error Committed by the Trial
Court, Deprives Collins of Their Seventh Amendment Rights
to a Jury Trial.
The discussions in preceding sections of this Petition sup-
port the contentions concerning the conflicts of the majority
in the respects above mentioned.
The majority finds no error in admission of evidence, no
error in jury instructions, no error committed by the trial
court, no misconduct by the jury, but undertook a de novo
review of the evidence and found “error in the verdict.”
A reading of the majority and dissenting opinions of the
three judge panel of the Court of Appeals in this case leaves
no doubt but what there was substantial conflict in the evi-
dence in this case, mostly in the form of competing expert
opinions as to the safety of the product which injured the
plaintiff. Although this Court has held that the Court of Ap-
peals may enter judgment n.o.v. on behalf of a verdict loser
(Neely v. Eby Construction Co.) 386 U.S. 317 (1967), no
decision of this Court has permitted an appeals court a lesser
standard of review of a jury verdict than that imposed on the
trial court.
The majority did not disclose precisely whether it intended
to apply a standard of review based upon state or federal law,
but rather used terms such as “We are convinced,” “Accord-
ingly, it is our opinion,” and “since we find.” (App. B, A.
13-14) The trial court, on the other hand, in affirming the
—_— we
verdict applied the following standard as to the defendant
motion for judgment n.0o.v.:
“For the purpose of this motion, I must determine whether
the evidence along with all of the inferences to be rea-
sonably drawn therefrom, when viewed in the light most
favorable to the plaintiff, is such that reasonable persons
in a fair and impartial exercise of their judgment might
reach different answers to questions | and 2 of the spe-
cial verdict . . .”
(p. 1, App. A.)
It is apparent that the panel of the Court of Appeals applied
a standard of review which gave /ess weight to the verdict and
the evidence than that applied by the trial court.
In A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355, 359
(1962) this court pointed out that:
“.. . neither we nor the Court of Appeals can redetermine
facts found by the jury any more than the District Court
can predetermine them. For the Seventh Amendment says
that ‘no fact tried by a jury, shall be otherwise reexamined
in any Court of the United States, than according to the
rules of the common law.’ ” (Emphasis supplied )
It is respectfully submitted that the test applied by the trial
court in this case is a necessary “minimum” test of the suf-
ficiency of the evidence under the Seventh Amendment. The test
of the majority, couched in terms of being “convinced” or of
“finding” facts from the evidence presented to the jury, is a test
of a jury verdict not “according to the rules of the common law.”
The test of the majority is particularly inadequate where no
error is found in the admission of evidence, jury instructions,
conduct of counsel, or conduct of the jury.
—
The necessity for determining a reasonable minimum standard
for review of evidence in diversity cases is pointedly shown by
examining what “reasonable persons in a fair and impartial ex-
ercise of their judgment” have concluded concerning the evi-
dence in this case. Twelve properly selected, properly-instructed
jurors, the trial judge, and a senior district judge found evidence
to support the verdict. A district judge and an appellate court
judge, viewed the evidence favorably to the defendant. On mo-
tion for rehearing, two more appellate judges joined the plain-
tiffs’ view of the evidence, but the defendant still prevailed. The
result in this case is precisely the wrong which the Seventh
Amendment was intended to prevent.
If substantial and uniform deference is not accorded the ver-
dicts of juries in error-free trials in diversity cases, then the
rights accorded to litigants by the Seventh Amendment are
severely eroded. These rights of Collins were demolished by the
majority decision.
This Court has noted on two occasions the necessity of con-
sidering in a definitive fashion whether a state or federal stand-
ard should be applied in diversity cases in reviewing the suf-
ficiency of evidence. Dick v. New York Life Ins. Co., 79 S. Ct.
921, 359 U. S. 437, 3 L.Ed. 2d 935 (1959); Mercer v. Theriot,
377 U. S. 152, 156 (1964). This undecided issue could be re-
solved by the Court in one of at least two ways. (1) The Court
could decide whether a state or federal standard should be uni-
formly applied, or (2) the Court could determine a standard of
review which meets the requisites of the Seventh Amendment
in all cases. Petitioners submit that the standard of review ap-
plied by the District Court in this case is a necessary minimum
standard which the Court should determine must be applied in
all diversity cases—whether in the name of state or federal
law. In the case at bar the Court of Appeals has found no error
whatsoever on the part of the trial court and has isolated for de
— =
termination the peculiar issue relating to the review of evicence
in a diversity case. The review by the majority is incompatible
with any permissible authority under Wisconsin Law or current
law in the Seventh Circuit.
Under the circumstances of this case, the majority decision
in the Court below violates Collins’ Seventh Amendment rights.
CONCLUSION
Certiorari is warranted and should be granted in this case for
the following reasons:
1. The decision of the Court of Appeals creates and fails to
resolve substantial conflict with prior decisions of the Seventh
Circuit in construing Wisconsin products liability and compara-
tive negligence law.
2. The decision of the Court of Appeals manifestly conflicts
with applicable Wisconsin products liability and comparative
negligence law.
3. The decision of the Court of Appeals ignored applicable
Federal standards applicable on appeal under law of the Seventh
Circuit, Wisconsin law, and the Seventh Amendment.
4. The lower Court’s test of the sufficiency of the evidence to
support the jury verdict and judgment raises the unresolved prob-
lem of whether, in diversity cases, the state or the federal test of
sufficiency of the evidence applies, and what the minimum stand-
ard of the applicable test should be.
5. In the interests of justice, and in view of applicable Wiscon-
sin and Federal law in the Seventh Circuit, the decision of the
—_— =
Court below should not be permitted to stand, and the judgment
of the trial court should ultimately be reinstated.
Respectfully submitted
WILLIAM L. McCUSKER
25 W. Main Street, Suite 731
Madison, Wisconsin 53703
(608) 256-1841
Counsel for Petitioners
APPENDIX
=
APPENDIX A
In the United States District Court
For the Western Distiixi of Wisconsin
Bernard J. Collins and Marian Collins,
Plaintift
Vv.
> 69-C-216
The Ridge Tool Company, a foreign
corporation,
Defendant. /
OPINION AND ORDER
Following the return of a special verdict by a jury herein, and
the entry of judgment pursuant to the verdict, defendant has
moved for judgment notwithstanding the verdict and, in the al-
ternative, for a new trial.
Motion for Judgment Notwithstanding
the \ dict
This motion is made on the grounds: (1) that there is no
credible evidence that the defendant was negligent, that the
product was unreasonably dangerous to the user, that the oper-
ator was not provided instruction by the defendant and was not
fully knowledgeable as to the proper operation procedures and
positions, and that the hazard associated with the rotating pipe
was not open and obvious and known to the plaintiff so as to
render the absence of a specific warning meaningless, and (2)
that as a matter of law the causal negligence of the plaintiff
was greater than the causal negligence of the defendant.
——_ *
For the purpose of this motion, I must determine whether the
evidence, along with all of the inferences to be reasonably drawn
therefrom, when viewed in the light most favorable to the plain-
tiff, is such that reasonable persons in a fair and impartial exer-
cise of their judgment might reach different answers to questions
1 and 2 of the special verdict, and different answers to whether
the causal negligence of the plaintiff was greater than the causal
negligence of the defendant (question 5). Here the evidence was
clearly not sufficient to require reasonable persons to answer
those questions only in the manner urged by the defendant.
Motion for a New Trial
Defendant's alternative motion is made on six grounds, three
of which are that the verdict is against the weight of the evidence,
that the amount of the damages is excessive, and that the inter-
ests of justice require a new trial. Unless and except as a new
trial may be required on any of the other three grounds, dis-
cussed below, I am aware of no interest of justice which requires
a new trial. The injuries sustained by the plaintiff Bernard Col-
lins were severe; the resulting injury to the plaintiff Marian Col-
lins was genuine; the sum awarded for loss of earning capacity
was not unreasonable in view of the nature and extent of the
plaintiff's injury and in view of his age, and in the verdict in
this respect the jury demonstrated that it could not accept the
glib estimate embodied in the bland, condescending, and sim-
plistic testimony of plaintiff's expert; the amounts entered by the
jury in answer to questions 6(a) and 6(b) were not unreasonably
high. In determining whether the jury’s answers to any of the
questions in the special verdict were against the weight of the
evidence, I am not simply to substitute my responses for those
of the jury; in the exercise of my discretion, I cannot say that my
responses differed from the jury’s in such degree that I can hold
its answers to be against the weight of the evidence.
I will take up in sequence the remaining three grounds of the
motion for new trial.
=
Defendant contends that it was error to receive certain evi-
dence, over its objection. The disputed evidence related to: a
“bossed” switch on a Ridgid 700; a foot switch improvised by
the witness Nachreiner; and certain opinion testimony. There
was no unfairness in permitting testimony concerning the Ridgid
700 simply as an illustration of the use of a boss to guard a
switch button, and the testimony and demonstrations concerning
the footswitch, all the subject of lively cross-examination, also
fairly raised the question of a workable alternative to defendant's
design as to switch location. The opinion testimony of the wit-
nesses Nachreiner, Bollinger, and Skogen was well within per-
missible limits; Nachreiner’s practical experience was consider-
able; the limits on Bollinger’s and Skogen’s competence, and the
infirmities in the bases for some of their opinions were ade-
quately explored: the jury's award for reduced earning capacity
is reasonable enough to indicate that defendant was not preju-
diced by the testimony of George Delehanty.
I do not understand the basis of defendant's motion with re-
spect to the testimony of the witness Weibel concerning the re-
fusal to receive opinion evidence of the witness Weibel regard-
ing the “normal” operating positions of an operator during the
cutting operation. For a witness to testify how the machine has
been normally used by those who have been operating in the
trade it would be necessary to establish the necessary foundation
in terms of opportunity widely to observe such operations.
I consider that the grounds for the defendant's motion which
relate to instructions are serious grounds deserving of careful
scrutiny and consideration. I accorded these contentions such
scrutiny and consideration during the discussions with counsel
while the instructions were being formulated. I have carefully
reviewed these questions in considering the post-trial motions.
I am not persuaded that the instructions were erroneous or preju-
dicial to the defendant, and I believe the trial record adequately
reveals the bases of my views.
—"
Order
Upon the basis of the entire record herein, it is ordered that
defendant’s motion for judgment notwithstanding the verdict
and defendant’s motion for a new trial are hereby denied.
Entered this 26th day of January, 1973.
By the Court
‘s/ JAMES E. DOYLE
District Judge
ee
—
APPENDIX B
520 F.2nd 591 (1975)
***Note: Reported opinion makes no reference to Petition
for Rehearing In Banc or Decision Thereon.
In the
United States Court of Appeals
For the Seventh Circuit
No. 73-1337
Bernard J. Collins and Marian Collins,
Plaintiffs-A ppellees,
vs.
The Ridge Tool Company,
Defendant-A ppellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 69-C-216
James E. Doyle, Judge
Argued February 19, 1974—Decided August 13, 1975
Before Pell, Circuit Judge; Campbell, Senior District Judge;*
and Grant, Senior District Judge.**
* Senior District Judge William J. Campbell of the Northern Dis-
trict of Illinois is sitting by designation.
** Senior District J Robert A. Grant of the Northern Dis-
trict of Indiana is sitting by designation.
—_>
Grant, Senior District Judge. Appellees Bernard J. Collins
and Marian Collins brought the present action against appellant,
The Ridge Tool Company, for injuries sustained by Bernard
Collins while he was using a Rigid 300 Power-Drive designed,
manufactured, and sold by appellant. The Rigid 300 is a port-
able machine used by plumbers for cutting, reaming, and thread-
ing pipe. When the machine is used to cut pipe in accordance
with the instructions set forth in the Operator's Manual, the pipe
is inserted into the unit, the speed chuck (a securing clamp)
and centering devices are tightened, and the cutter is applied
to the pipe and its blade tightened until it contacts the pipe.
Then the power is turned on, and the cutter blade is tightened
until the cut is completed. Appellee, a master plumber, had used
the Rigid 300 and machines similar thereto on many occasions
prior to the accident. Nevertheless, on 28 November 1967,
while appellee was using the machine to cut a 12-inch section
of pipe, the front of his jacket became entangled in the rotating
pipe. The machine toppled over, and appellee sustained severe
injuries to his left arm. Subsequently, the arm had to be ampu-
tated immediately above the elbow.
In the district court, the jury found both appellant and ap-
pellee causally negligent; attributed 65% of the negligence to
appellant and 35% to appellee; and assessed total damages in
the amount of $247,737.75. After the damages were reduced
to reflect the contributory negligence of appellee, judgment was
entered against appellant in the amount of $161,029.54 to-
gether with costs and interest. Thereafter, an order denying
appellant’s Motion for Judgment Notwithstanding the Verdict or
for a New Trial was entered. Appellant thereupon instituted the
present appeal from the judgment and order in the court below.
In support of its position on appeal, appellant Ridge Tool
argues initially that it breached no duty to appellee as a matter
of law. In this regard, appellant claims that it cannot be held
liable where the danger associated with the Rigid 300 was open
—*< pon
and obvious and since the possibility of injury from contact with
a moving part of the machine was readily apparent to appellee,
a man who had owned and operated the machine “hundreds of
times”. Further, the fact that the dangers inherent in the Rigid
300 were open and obvious, argues appellant, rendered unneces-
sary the giving of any warning to the user. Finally, with respect
to the issue of appellant’s duty to appellee, it is argued that the
alleged lack of written instructions as to how to operate the
Rigid 300 cannot support a finding of liability, given appellee's
pust experience in using the Rigid 300 as well as his knowledge
of its operating characteristics.
Appellant also charges that the district court erred in ad-
mitting expert testimony that the Rigid 300 was unreasonably
dangerous; in admitting testimony with respect to the design
features of the Rigid 700 and a foot switch device; and in its in-
structions to the jury.
Finally, appellant asserts that there is no credible evidence
which supports the jury’s apportionment of negligence. In this
r ,ard, it is argued that appellee’s negligence was clearly equal
to or greater than any negligence of appellant; therefore, the
jury’s verdict, including the individual damage awards, is so ex-
cessive as to be unconscionable. Accordingly, appellant urges
this Court, for the above-stated reasons, to set aside the verdict
and judgment in the court below or, in the alternative, order a
new trial.
In response, appellees Bernard and Marian Collins claim that
the Rigid 300 was unreasonably dangerous by reason of its de-
sign, because the power switch was located in a place where it
was inaccessible to anyone operating the machine from the front
or left front. Additionally, they contend that under Wisconsin
products liability law, the defense of “open and obvious danger”
is not available to appellant as a complete bar to recovery.
Rather, appellees argue that the conduct on the part of a user
of an unreasonably dangerous product is subject to a compara-
—_
tive negligence standard. It is asserted that the doctrine of com-
parative fault takes into account defenses which would other-
wise be absolute and treats them for the purpose of comparison
under the name of negligence. In any event, appellees main-
tain that even if the “open and obvious danger” defense does
apply, the inaccessibility of the power switch on the Rigid 300
was a dangerous condition that was not open and obvious to
appellee. Rather, it was a condition, says appellee, which most
users would not discover, and a danger which most users would
not appreciate until they were already entangled in the rotating
pipe. Further, because of the inaccessibility of the switch, ap-
pellees contend that the potential operator should have been
warned to stand near the switch while running the machine. At
the very least, appellees argue that appellant had an obligation
to provide full and adequate instructions to potential users of
the Rigid 300 regarding its safe operation.
In further response to appellant's position in this appeal,
appellees contend that the trial court did not err in admitting
expert testimony that the Rigid 300 was unreasonably dangerous;
in admitting testimony relating to the Rigid 700 and the foot
pedal device; and in its instructions to the jury.
Finally, appellees emphasize that the jury’s allocation of causal
comparative negligence is supported by the evidence. In this re-
spect, it is urged that the damage awards were neither excessive
nor in disregard of applicable law, but rather accurately reflected
and compensated appellees for the loss which they sustained.
Accordingly, appellees ask this Court to affirm the verdict and
judgment entered in the court below.
It is axiomatic in products liability law, and appellant con-
cedes, that a manufacturer is legally bound to design and build
products which are reasonably fit and safe for the purpose for
which they are intended. Nevertheless, it is equally clear that
a manufacturer is under no duty to produce accident or fool-
proof products. Zahora v. Harnischfeger Corporation, 404
—Y
F.2d 172, 175 (7th Cir. 1968). Neither is the manufacturer an
insurer that its product is incapable of producing injury. Garri-
son v. Rohm and Haas Company, 492 F.2d 346, 351 (6th Cir.
1974). In determining the reasonableness of design, certain
factors which should be examined include: 1) conformity of de-
fendant’s design to the practices of other manufacturers in its
industry at the time of manufacture; 2) the open and obvious
nature of the alleged danger; and 3) the extent of the claimant's
use of the very product alleged to have caused the injury and the
period of time involved in such use by the claimant and others
prior to the injury without any harmful incident. Ward v. Ho-
bart Manufacturing Company, 450 F.2d 1176, 1182 (Sth Cir.
1971). Other relevant factors, which are practical or economic
in nature, include: 4) the ability of the manufacturer to eliminate
danger without impairing the product's usefulness or making it
unduly expensive: and 5) the relative likelihood of injury result-
ing from the product's present design. Magnuson v. Rupp Manu-
facturing, Inc., 171 N.W.2d 201, 208 (1969). As to the latter
two factors, although we realize, upon our careful review of the
record, that there was ample testimony in the court below by
appellee’s experts that the switch on the Rigid 300 could have
been relocated, or that a different switching system could have
been incorporated into its design,there was also testimony elicited
which indicated that there were no other machines similar to
the Rigid 400 utilizing emergency control systems and that the
incorporation of such a cut-off device would be costly as well as
affect the utility of the product. While we believe that this
testimony as to the feasibility or non-feasibility of installing
alternative switching systems or relocating the switch on the
Rigid 300 is indeed relevant to, and will not be overlooked in
arriving at our decision in the present appeal, we are inclined to
attach more significance to, and thus we now focus our attention
upon, the issue which we believe, because of the particular cir-
cumstances involved herein, will ultimately determine the out-
come of the instant appeal; and that issue involves the alleged
duty on the part of appellant herein to appellee in light of the
— A-10 —
argument that the danger to appellee, a master plumber with
many years experience, was open and obvious.
Appellant would have us follow what is generally known as
the “open and obvious” rule enunciated in Campo v. Scofield,
301 N.Y. 468, 95 N.E.2d 802, 804 (1950), and the equivalent
of which this Court applied in Posey v. Clark Equipment Com-
pany, 409 F.2d 560 (7th Cir. 1969). The “open and obvious”
rule, simply stated, holds that a manufacturer of a product is
under no duty to guard against or give notice of dangers which
are obvious or patent to the user. Campo, supra, 95 N.E.2d at
804. In effect, Campo stands for the broad proposition that
liability will not be imposed on the manufacturer unless there is
a “latent defect”, irrespective of whether or not the injury was
incurred by accidental or voluntary contact. Dyson v. General
Motors Corporation, 298 F.Supp. 1064, 1072 (E.D.Pa. 1969).
Although this doctrine has received wide support and has been
applied in many jurisdictions,’ including this Circuit,’ there is
an indication that the more recent trend of the cases evidences
an increasing dissatisfaction with the Campo doctrine and opts
instead in favor of an approach which reflects an effort to “dis-
courage misdesign rather than encouraging it in its obvious
form”, Palmer v. Massey-Ferguson, Inc., 3 Wash.App. 508, 476
P.2d 713, 719 (1970), and which further recognizes that “manu-
facturers ought to make safer not more dangerous products.”
Dorsey v. Yoder Company, 331 F.Supp. 753, 759 (E.D.Pa.
1 Stevens v. Durbin-Durco, Inc., 377 $.W.2d 343 (Mo., 1964);
Parker v. Heasler Plumbing & Heating Co., 388 P.2d 516 (Wyo.,
1964); Bradshaw v. Blystone Equip. Co. of Nevada, 79 Nev. 441,
386 P.2d 396 (1963); Tyson v. Long Mfg. Co., 249 N.C. 557, 107
S.E.2d 170 (1959); Standard Conveyor Co. v. Scott, 221 F.2d 460
(8th Cir. 1955); Jamieson v. Woodward & Lothrop, 101 U.S.App.
D.C. 32, 247 F.2d 23 (1957); Brown v. General Motors Corp., 355
gh (8th Cir. 1966); Bowman v. Kaufman, 387 F.2d 582 (2nd
Ir. ).
2 Evans v. General Motors Corp., 359 F.2d 822 (7th Cir. 1966):
Neusus v. Sponholtz, 369 F.2d 259 (7th Cir. 1966).
— A-ll —
1971). These and other authorities take the view, in general,
that no distinction should be made between products whose
dangers are obvious or latent to the user, in order to discourage
misdesign even in its obvious form. Other commentators have
said that the Campo doctrine should apply only when plaintiff
appreciates the danger inherent in the product. | Frumer &
Friedman, Products Liability § 702, p. 117 (1974).
Although we take notice of the fact that this Court has in the
past aligned itself with the so-called Campo rule, Posey, supra,
409 F.2d at 563-564 and Downey v. Moore's Time-Saving
Equipment, Inc., 432 F.2d 1088, 1092 (7th Cir. 1970), we
would be remiss if we failed to note that both of those cases were
based upon and involved the application of Indiana law. In the
present appeal, nevertheless, it is undisputed that Wisconsin law
governs the issues at bar. Erie R. Co. v. Tompkins, 304 U.S. 64
(1938). Accordingly, we are constrained to determine the is-
sues herein presented as we believe the Wisconsin courts would
under the circumstances.
The leading Wisconsin case in the area of products liability
appears to be Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55
(1967), interpreting the earlier holding of McConville v. State
Farm Mutual Automobile Ins. Co., 15 Wis.2d 374, 113 N.W.2d
14 (1962). In McConville, the Wisconsin Supreme Court stated
that the defense of assumption of risk should be treated as con-
tributory negligence. Dippel, in turn, explained that the reason
for this was to subject the conduct of the user of an unreason-
ably dangerous product to a comparative negligence standard.
Appellee argues, then, that his duty “to use ordinary care to
protect himself from known or readily apparent danger”. Dippel,
supra, 155 N.W.2d at 63, defines his duty with respect to open
and obvious hazards, and that any negligence on his part should
be, and properly was in the trial court, treated as an item of
contributory negligence for purposes of comparison with the
causal negligence or fault of the appellant under Wis. Stats. §
on £83
895.045 (1969). On the other hand, appellant urges us to
follow Yaun v. Allis-Chalmers Mfg. Co., 253 Wis. 558, 34
N.W.2d 853 (1948), as standing for an adoption by the Wis-
consin Supreme Court of the open and obvious rule concerning
products liability.
While we have no quarrel with appellee's interpretation of
the law of Wisconsin as it applies to this case, and while we
must not in applying that law to the case at bar subscribe to
the Campo doctrine in its pure sense, we are of the opinion
that the question of whether a danger is open and obvious to
a user of a particular instrumentality is not a matter which
should be determined in a vacuum. Rather, the unique facts of
each case should bear on the question, and thus, in our opin-
ion, includes the status, intelligence, and more importantly, the
training of the particular user involved. In this regard, we be-
lieve that the facts of the instant case require us to consider
additional factors, some of which have been noted above, in
determining whether, under the circumstances of the instant
case, the dangers associated with the Rigid 300 were indeed
open and obvious to the appellee, Bernard Collins. The first of
these factors which we consider to be particularly applicable to
the facts of this case is “the extent of [appellee's] use of the
[Rigid 300, the product] alleged to have caused [his] injury and
the period of time involved in such use by [appellee] . . ._prior
to the injury without any harmful incident.” Ward, supra, 450
F.2d at 1182. Second, we are persuaded that a manufacturer's
duty to impart information as to the safe use of its product,
whether it be by warnings or instructions, is significantly mini-
mized where the user is a member of a particular trade or pro-
fession with regard to a danger that is generally known to that
trade or profession. Littlehale v. E. 1. duPont de Nemours &
Co., 380 F.2d 274 (2nd Cir. 1967); Lockett v. General Elec-
tric Company, 376 F.Supp. 1201, 1209 (E.D.Pa. 1974). Cer-
tainly the intended user's training and experience must be con-
sidered where the issue of a manufacturer's duty to guard against
— A-13 —
and apprise of danger is concerned. Helene Curtis Industries,
Inc. v. Pruitt, 385 F.2d 841, 858 (Sth Cir. 1967).
With regard to the first factor, it is undisputed that appellee
herein had, at the time of the accident, “owned five Rigid
300’s", and prior thereto had accomplished a pipe operation
with the Rigid 300 “hundreds of times”. Appellee further tes-
tified that he appreciated and was fully aware of the danger of
being entangled in the pipe while it was turning in the machine.
As to the second factor, it is uncontested that appellee was a
master plumber for several years prior to the date of the acci-
dent. Therefore, he had many years of training and experience
in using and operating the machinery indigenous to his business,
and had attained enough expertise, in fact, to have risen to the
Status of a master plumber. We are convinced, then, that ap-
pellee was a professional in his trade who, because of past ex-
perience, had to be fully cognizant of the hazards involved in
his work. Accordingly, it is our opinion that although there
were no emergency switches or warnings directly on the Rigid
300 itself, and even though there were no warnings or instruc:
tions in the Operator's Manual which was furnished with the
unit telling the operator where to stand while cutting pipe (ex-
cept for a photograph which depicts an operator in the process
of cutting pipe), we have no alternative but to conclude, on the
basis of our review of the record herein, that there is no evi-
dentiary basis, given appellee's knowledge and background, for
finding that appellee's injuries resulted from the negligence of
the manufacturer. In this regard, we hold that appcllee’s injury
did not result from any inherent defect in the Rigid 300 either
in design or faulty construction. Rather, it is inescapable that
the unfortunate injury to appellee, which we indeed acknowl-
edge as grave, in our opinion resulted solely from a careless
mistake in operation. We have no doubt. therefore, that appel-
lee failed to use ordinary care to protect himself from a danger
which he, of all people, should have readily appreciated. Dippel,
supra, 155 N.W.2d at 63. Accordingly, since we find that the
= fp6<
Rigid 300 was reasonably safe for its intended use, taking into
account the training and experience of the persons for whose use
the machine was intended, and that appellee’s negligence was
the sole cause of the injuries sustained, we find error in the
verdict in the court below. We conclude, therefore, because of
our holding that the sole cause of the accident was the negli-
gence of appellee Bernard Collins, that it is unnecessary to ad-
dress the other issues which the appellee has raised before this
Court.
Accordingly, the judgment of the district court is Reversed
and the cause is Remanded for the entry of judgment in favor
of appellant, The Ridge Tool Company.
CAMPBELL, dissenting. I would have affirmed the judgment
of the district court “from the bench” following oral argument,
in view of the clear absence of any isswe of law upon which
reversal might conceivably be premised.
The product in question is a portable machine used by plumb-
ers for cutting, reaming and threading pipe. Its motor is en-
cased in a housing which is mounted on a tripod. The power
switch is located in a recessed area on the underside of-the
housing. If the operator is standing on this side of the ma-
chine, the switch is easily within his reach; however, if he is
operating the machine from the front or opposite side, the
switch is not readily accessible. When Collins’ jacket became
entangled in the rotating pipe, he was unable to reach the power
switch. By the time one of his employees turned the power off,
Collins’ left arm had been broken, dislocated and mangled, re-
quiring amputation above the elbow.
The Rigid 300 is not equipped with any kind of emergency
power cut-off device. Neither the machine nor the operator's
— A-15 —
manual furnished by the manufacturer contains any warnings
alerting the potential user to operate the machine from the
power switch side or cautioning against the danger that loose
clothing might become entangled.
It was plaintiff's contention that such warnings should have
been given and that the Rigid 300’s design rendered defendant's
product unreasonably dangerous. The design defects alleged by
the plaintiff related to the location of the power switch and the
absence of any emergency cut-off device. Plaintiff introduced
a considerable amount of expert testimony to support these con-
tentions, including evidence regarding the feasibility of relocat-
ing the power switch on the machine so that it would be ac-
cessible from all operating positions, and evidence that it would
have been feasible and relatively inexpensive to equip the ma-
chine with an emergency cut-off device (“kill-switch”), located
either on the top of the machine or in the form of a foot switch.
Without extensively reviewing the evidence introduced by plain-
tiff, suffice it to say that a considerable amount of evidence, in
the form of expert testimony and otherwise, was introduced in
support of plaintiff's claim that the Rigid 300’s design rendered
it unreasonably dangerous, and that the danger of injury was
enhanced by the manufacturer's failure to post warnings on the
machine or in the operator’s manual.
The jury was properly charged with the task of determining
whether the design of defendant's product rendered it unrea-
sonably dangerous, and if so, whether this dangerous condition
was the principal cause of Collins’ injuries. The jury concluded
that plaintiff's injuries were caused by the dangerous condition
of the product and by the negligence of the plaintiff, apportion-
ing 65% of the responsibility to the defendant and 35% to
plaintiff, in accordance with Wisconsin law.
The conclusion reached by the majority is not based upon a
finding that the trial court improperly instructed the jury or
that plaintiff's theory of liability was legally insufficient. Nor
— A-16 —
is it grounded upon a finding that evidence was improperly ad-
mitted, or that some other trial error was committed. It is
based solely on the majority's factual determination that defend-
ant’s product “was reasonably safe for its intended use . . . and
that appellee's negligence was the sole cause of the injuries sus-
tained .. .”.
After reviewing a cold record, the majority thus substitutes
their evaluation of the evidence for that of-a jury which saw
the witnesses and heard their testimony at trial. In my opinion,
the result reached by the majority improperly and inexcusably
invades the province of the jury. I would affirm.
—_
APPENDIX C
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
September 22, 1975
By the Court:
Bernard J. Collins and Marian )
Collins, Appeal from the United
Plaintiffs-A ppellees, States District Court
for the Western District
No. 73-1337. vs. of Wisconsin.
(69 C 216)
Tus Ridge Tool Company,
Defendant-Appellant. }
In light of the fact that the mandate in this cause was in-
advertently issued on September 12, 1975 during the pendency
of this Court’s consideration of appellees’ petition for rehear-
ing en banc,
It Is Ordered that the mandate in this case be, and the
same is hereby, Recalled.
— A-18 —
APPENDIX D
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
October 14, 1975
Before
Hon. Thomas E. Fairchild, Chief Judge
Hon. Luther M. Swygert, Circuit Judge
Hon. Walter J. Cummings, Circuit Judge
Hon. Wilbur F. Pell, Jr., Circuit Judge
Hon. John Paul Stevens, Circuit Judge
Hon. Robert A. Sprecher, Circuit Judge
Hon. Philip W. Tone, Circuit Judge
Hon. William J. Bauer, Circuit Judge
Hon. William J. Campbell, Senior District Judge*
Hon. Robert A. Grant, Senior District Judge*
Bernard J. Collins and Marian )
Collins, Appeal from the United
Plaintiffs- Appellees, States District Court
. for the Western District
No. 73-1337. VS. of Wisconsin.
No. 69-C-216.
The Ridge Tool Company, James E. Doyle, Judge
Defendant-Appellant. -
On consideration of the petition for rehearing and sugges-
tion that it be heard en banc filed in the above-entitled cause,
a majority of the panel having voted to deny the petition for
* Senior District Judge William J. Campbell of the Northern Dis-
trict of Illinois and Senior District Judge Robert A. Grant of the
Northern District of Indiana are sitting by designation.
— A-19 —
rehearing,’ and a majority of the active members of the court
having voted to deny a rehearing en banc,?
It Is Ordered that the petition for rehearing and suggestion
that it be reheard en banc be, and the same is hereby, Denied.
? Judge Campbell voted to grant the petition for rehearing.
* Chief Judge Fairchild and Judge Stevens voted to grant a re-
hearing en banc.
— A-20 —
APPENDIX E
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
April 30, 1971
Before
Hon. John S. Hastings, Senior Circuit Judge
Hon. Thomas E. Fairchild, Circuit Judge
Hon. William J. Campbell, Senior District Judge’
John McPhee, Jr., and Sheri McPhee, )
Plaintiffs-Appellees, | Appeal from the
No. 18,568 vs. | United States
| District Court
The Corinth Machinery Company, | for the Western
a/k/a Corinth American Machinery District of
Company, Wisconsin.
Defendant-Appellant. ”
ORDER
This is a diversity action for personal injury. Plaintiff John
McPhee, Jr., was injured while working as a sawyer. Plaintiff
Sheri McPhee is his wife. Defendant Corinth Machinery Com-
pany had supplied McPhee’s employer with components of a
saw mill. A unit of the machinery, called the carriage, which
runs on a track, unexpectedly moved forward and pushed
McPhee into the saw. McPhee had been at his station, from
which movement of the carriage is controlled, but, leaving the
control lever in neutral, had stepped onto the track ahead of
1 The Honorable William J. Campbell, Senior District Judge,
Northern District of Illinois, is sitting by designation.
— A-21 —
the carriage to dislodge a splinter from near the saw. Both
McPhee’s legs were cut off.
By special verdict the jury found defendant causally negli-
gent in respect to (a) failing to provide a locking device (to hold
the control lever in neutral) and (b) failing properly to inspect
and supervise the installation. The court had answered ques-
tions of the special verdict so as to find as a matter of law that
John McPhee was causally negligent in respect to proceeding
into the carriage area in the manner that he did. The jury
found that John McPhee was not negligent in respect to activat-
ing the control lever after proceeding into the carriage area and
attributed 80% of the total causal negligence to defendant and
20% to John McPhee. Judgment was entered in favor of plain-
tiffs for 80% of the damages found. The court denied defend-
ant’s motions after verdict, and motions on which ruling had
been reserved, except with respect to $111,000 awarded by
the jury for impairment of earning capacity, which the court
determined was greater than the evidence would support. The
court found that $53,800 would reasonably compensate John
McPhee for impairment of earning capacity and ordered a new
trial on that issue unless John McPhee should accept an amended
judgment based on the reduced amount. He so elected. De-
fendant appealed from judgment in favor of Sheri McPhee for
$120,000 and amended judgment in favor of John McPhee for
$354,349.46, plus, in each case, interest and costs.
We have considered defendant's arguments that the verdict
cannot be sustained as a matter of law. We are satisfied that
the evidence created jury issues as to the particulars in which
defendant was found causally negligent and plaintiff was found
not causally negligent. There was evidence from which the
jury could find that defendant should reasonably have foreseen
need for a locking device. Although the contract between de-
fendant and McPhee’s employer did not expressly obligate de-
fendant to inspect and supervise the installation of the com-
— A-22 —
ponents it supplied, there was evidence that in fact defendant
sent its salesman out after the installation “to inspect to make
sure that the equipment had been installed properly” and with
authority to comment about any modification which had been
made in the course of installation which would affect the opera-
tion of the unit. Liability may be predicated upon negligence
in performing services so volunteered. American Mutual Lia-
bility Ins. Co. v. St. Paul Fire & Marine Ins. (1970), 48 Wis2d
305, 179 NW2d 864; Hartford Steam Boiler Inspection & Ins.
Co. v. Pabst Brewing Co. (7th Cir., 1912), 201 F. 617; Wulf
v. Rebbun (1964), 25 Wis2d 499, 131 NW2d 303. See Re-
statement of Torts 2d, Sec. 324A, p. 142.
We are also satisfied, as was the trial court, that it cannot be
said as a matter of law that McPhee’s causal negligence was
equal to or greater than defendant's. In the light of the serious
injuries sustained by Mr. McPhee, the permanent impairment
of the capacity to enjoy life, as well as economic loss, physical
and emotional consequences shown, and the impact of all this
upon Mrs. McPhee, we conclude that none of the damage awards
(after reduction of one of them by the district court) is excessive.
We have also considered the defendant’s several claims of
error upon the trial. We find no prejudicial error.
Accordingly, upon our review of the record, the briefs sub-
mitted, and the oral argument,
It Is Ordered that the clerk of this court enter judgment
affirming the judgment and amended judgment appealed from.
—_.
APPENDIX F
In the United States District Court
For the Western District of Wisconsin
John McPhee, Jr., and Sheri McPhee, .
Plaintiffs,
v.
The Corinth Machinery Company, f 68-C-71.
a/k/a Corinth American Machinery
Company,
Defendant. |
OPINION AND ORDER
This diversity action for damages for personal injuries was
tried to a jury which returned a special verdict. The jury found
that the defendant had been negligent in failing to provide a
locking device on a sawmill machine and in failing properly to
inspect and supervise the installation of the machine; and that
this negligence in both respects had been a cause of the injuries
of the plaintiff John McPhee. The court found as a matter of
law that the plaintiff John McPhee had been negligent in pro-
ceeding into the carriage area of the sawmill in the manner he
had just prior to the accident, also found as a matter of law
that his negligence had been a cause of his injuries, and
entered answers to this effect upon the special verdict form.
The jury found that the plaintiff John McPhee had not been
negligent in another respect, namely, in activating the carriage
control lever after he had proceeded into the carriage area.
The jury apportioned 80% of the total causal negligence to
the defendant and 20% to the plaintiff John McPhee.
—_—S
The court found that $17,136.83 was the sum which would
reasonably compensate the plaintiff John McPhee for his medical
and hospital expenses, and the court entered this sum on the
special verdict form. The jury found that $11,000 would rea-
sonably compensate the plaintiff John McPhee for his loss of
past wages, $111,000 for impairment of his earning capacity,
and $361,000 for his pain, suffering and disability in the past
and in the future. The jury found that $150,000 would reason-
ably compensate the plaintiff Sheri McPhee for the loss of the
society and companionship of her husband John.
At the close of the plaintiffs’ case, the defendant moved for
a directed verdict, and renewed this motion at the conclusion
of all the evidence. The court reserved rulings on both motions.
Judgment has been entered awarding $400,109.46 (80% of
his gross damages) to plaintiff John McPhee, and $120,000
(80% of her gross damages) to plaintiff Sheri McPhee.
Defendant has moved for judgment notwithstanding the ver-
dict (which motion is available to it, by reason of its motion
for a directed verdict at the close of all the evidence) and, in
the alternative, has moved for a new trial.
Motion for Judgment Notwithstanding the Verdict
The grounds for this motion are: (1) that there was no evidence
of negligence on the part of the defendant; (2) that there was no
evidence that the product of the defendant was in a defective
condition when it left its possession or control, or that it was
unreasonably dangerous to the user thereof when used as it
was intended to be used; and (3) that as a matter of law the evi-
dence showed that at least 50% of the total causal negligence
was attributable to the plaintiff.
The plaintiffs clearly chose to proceed at the trial on a com-
mon law negligence theory, to the extent this theory is to be
—_—~
distinguished from the so-called “strict liability” theory, Dippe/
v. Sciano, 37 Wis.2d 443 (1967). Therefore, I consider ground
(2) of defendant's motion only as it bears on the negligence of
defendant, referred to in ground (1).
I test defendant's motion by inquiring whether, viewing the
record most favorably to the plaintiff, there is credible evidence:
from which negligence on the part of the defendant could rea-
sonably be inferred; and from which it could reasonably be in-
ferred that less than 50% of the total causal negligence was at-
tributable to the plaintiff. I conclude that there is credible evi-
dence to support both inferences.
There is credible evidence from which the jury might reason-
ably have inferred the following facts, among others: While
Operating the machine, the plaintiff (“the plaintiff’ will mean
plaintiff John McPhee hereinafter, unless otherwise stated)
brought the log carriage to a stationary position on the tracks
by placing the hand lever in a neutral position; that he then pro-
ceeded down into the carriage track area to a point between the
Stationary carriage and the revolving saw blade; that without
any force being applied to the hand lever by plaintiff or by any
other person, the carriage began to move toward him, struck
him, and forced him into the saw blade. In similar situations
other sawyers in the industry entered comparable areas in which
the unexpected movement of the log carriage would create a
danger to persons in its path on its tracks. A manufacturer of
such equipment might reasonably have been expected to be
aware of this practice. Certain component parts of the saw-
mill equipment sold by defendant to plaintiff's employer were
not designed so as to render the equipment safe for its intended
use, particularly with respect to the danger that the carriage,
while stationary, might begin to move without human interven-
tion. Defendant accepted and actually undertook to discharge
certain responsibilities in inspecting and supervising the installa-
tion of the machine in the plant of plaintiff's employer, and in so
— A-26 —
doing it failed to perform its duty to exercise reasonable care to
give adequate warning of dangers attendant upon the proper use
of the machine or warning of the facts which made such dangers
likely. The danger that the carriage might move, although the
hand lever had been placed in a neutral position, was not open
and obvious to an operator.
Since the court had found the plaintiff casually negligent, as
a matter of law in proceeding into the carriage area in the man-
ner that he did, it became the duty of the jury to compare his
causal negligence with the causal negligence of the defendant.
It is a rare occasion on which the court is permitted to set aside
the comparison determined by the jury. This should be particu-
larly rare in situations in which the kinds of causal negligence to
be compared are so dissimilar. For example, to compare the
failure of lookout on the part of one automobile driver with the
failure of lookout on the part of another may sometimes be an
exercise simple enough to permit the court to conclude that the
jury has performed it wholly erroneously. But it is difficult to
draw a similar conclusion when the jury is called upon to com-
pare the causal negligence of the defendant in design and in
inspecting and supervising the installation of the machine with
the causal negligence of the plaintiff in entering the carriage area
in the manner he chose. I cannot conclude, as a matter of law,
that the latter equalled or exceeded the former.
Motion for a New Trial
In the alternative, defendant has mceved for a new trial on 14
grounds. The comments I have made with respect to defend-
ant’s motion for judgment notwithstanding the verdict are gen-
erally applicable to grounds numbered | through 5, and 13. It
is necessary only to add a conclusion, which I now do, that not
only was there credible evidence from which the jury’s answers
to the special verdict could reasonably be inferred, but that this
evidence was substantial; I exclude for the present the answers
to the damage questions, which I will discuss below.
—_
The record of the trial adequately discloses the court's rea-
sons for the rulings now challenged by the defendant in grounds
numbered 7, 8, 10, 11, and 12 which relate to the empaneling
of the jury, evidentiary rulings, a refusal to give certain re-
quested instructions, a motion for mistrial because of allegedly
improper behavior by the attorney for the plaintiff, and the form
of the special verdict.
Ground 9 is a contention that the court erred in giving certain
instructions, over objection. The principal contention here ap-
pears to relate to an instruction that it was the duty of the de-
fendant to determine that the equipment it sold was designed
“sO as to render it safe for its intended use.” Form instruction
1370 promulgated by the Board of Circuit Judges of the State
of Wisconsin includes this language: “[I]t is the duty of a manu-
facturer to exercise ordinary care in the design, construction,
and manufacture of its product so as to render such product
safe for its intended use.” The instruction given with respect to
the defendant manufacturer’s duty to warn is a virtually ver-
batim repetition of Wisconsin form instruction 1371. Defendant
also objects to an instruction which the court gave explaining
the operation of the Wisconsin Workmen’s Compensation Act.
The trial record will disclose that the matter of workmen's
compensation wove its way into the trial, in significant part on
the defendant's initiative, to such an extent that the wisest and
most practical course ultimately appeared to be to make its
operation accurately known to the jury.
Ground 14 is that “the interests of justice” require a new
trial. Except for the matter next to be discussed in ground 6, I
believe that the interests of justice do not so require.
Ground 6 includes a contention that the verdict of the jury as
to damages is excessive and perverse, that the percentage of
causal negligence attributed to plaintiff is contrary to the law
and the evidence, and that the jury's verdict in these two respects
— A-28 —
appears to have been given under the influence of passion, bias
and prejudice. I have already concluded that there was sub-
stantial credible evidence to support the jury’s comparison of
the causal negligence of the plaintiff and the defendant.
I turn now to the jury’s answers to the damage questions.
I conclude that none of the answers to the damage questions
was perverse, and that none appears to have been given under
the influence of passion, bias, and prejudice. Except for the
jury's answer with respect to the impairment of the earning ca-
pacity of plaintiff John McPhee, I conclude that none of the
damages awarded by the jury to either plaintiff was excessive.
There was substantial credible evidence to support the award
for loss of past wages. It would be difficult to overvalue the
damages suffered by the plaintiff John McPhee in the past, and
certain to be suffered in the future, with respect to pain and
suffering; impairment of health, physical ability, and bodily
functions; disfigurement; humiliation, embarrassment and worry:
and deprivation of usual activities, benefits and enjoyments. The
same can be said of the damages suffered by Sheri McPhee by
deprivation of her husband’s aid, assistance, comfort, and so-
ciety, past and future.
I conclude that the award of $111,000 to plaintiff John-Mc-
Phee for impairment of his earning capacity is excessive. At
the time of the accident, based on an hourly rate of $1.60 an
hour, and a work week of 40 hours, his annual gross income
would have been about $3300. The jury might reasonably have
concluded that his earnings as a sawyer or in other active em-
ployment would increase over the years. An estimated annual
average of $5000 gross income over his working life would have
been reasonable. Despite his extreme disability, it would have
been unreasonable to suppose that he would be totally unable
to earn money during his life. An average annual impairment
in the sum of $3500 would have been reasonable. His life ex-
— A-29 —
pectancy was 37 years. It would have been reasonable to assume
that at least 30 of these would have been productive. The present
value of $3500 per year for 30 years, at a rate of five per cent
per annum, is about $53,800.
I conclude that the jury award of $111,000 for impairment of
earning capacity was not due to perversity or prejudice, and
was not the result of error occurring during the course of the
trial. I conclude that it was excessive, probably because the jury
encountered difficulty with the factor of economic inflation and
with the concept of reducing to present value an award for
future loss of earnings.
I conclude that $53,800 is a sum which will reasonably com-
pensate plaintiff John McPhee for impairment of his earning
capacity.
Order
It is ordered that the defendant’s motion for a directed verdict,
made at the close of plaintiffs’ case, is hereby denied; that the
defendant's motion for a directed verdict, made at the close of all
the evidence, is hereby denied; and that the defendant’s motion
for judgment notwithstanding the verdict is hereby denied.
It is further ordered that the verdict with respect to the award
for impairment of earning capacity of plaintiff John McPhee is
hereby set aside, and that the judgment herein in his favor is
hereby amended by being reduced by the sum of $88,800 (which
is 80% of $111,000) and that the defendant's motion for a new
trial is hereby granted with respect to the issue of damages for
impairment of earning capacity, and that the defendant’s motion
for a new trial as to all other issues is hereby denied; provided,
however, that the plaintiff John McPhee may elect, in lieu
thereof, to have an amended judgment entered herein in his
favor, reduced from the present judgment by $45,760 (which
is 80% of the difference between $111,000 and $53,800) if the
— A-30 —
plaintiff, John McPhee, by his attorney, notifies the court within
20 days hereafter by letter, with a copy to opposing counsel,
that elects to accept the entry of an amended judgment, reduced
by said sum of $45,760, and to remit to defendant any sum
which he may already have received in excess of the total
amount awarded to plaintiff John McPhee by said amended
judgment. Should plaintiff John McPhee elect to appeal from
this order, the time within which he may notify the court of
such election will be automatically extended until 20 days fol-
lowing the date of notification to counsel for the plaintiff that the
mandate of the appellate court has been received by the clerk
of this court.
Entered this 2nd day of March, 1970.
By the Court:
/s/ JAMES E. DOYLE
District Judge
APPENDIX G
(Note: Opinion not published; noted in 487 F.2nd 1404,
lower court affirmed.)
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Oral Argument May 30, 1973
November 9, 1973
Before
Hon. Thomas E. Fairchild, Circuit Judge
Hon. Robert A. Sprecher, Circuit Judge
Hon. John W. Reynolds, District Judge*
James A. Sievers,
Plaintiff-Appellee, |
No. 72-1628 VS.
Keebler Company, a Foreign Corpora-
tion,
Appea! from the
United States Dis-
trict Court for the
Western District of
Defendant-Appellant, ] Wisconsin.
VS. No. 69-C-155
James E. Doyle,
McCleary Industries, Inc., Judge
Third-Party Defendant. )
ORDER
It ls Ordered and Adjudged by this court that the judgment
of the United States District Court for the Western District of
Wisconsin entered in this cause be affirmed on the opinion and
order of the said district court. Sievers v. Keebler, Case No.
69-C-155 (W.D. Wis., Nov. 30, 1971).
* Chief District Judge John W. Reynolds of the Eastern District
of Wisconsin is sitting by designation.
— A-32 —
The district court determination that Wisconsin’s compara-
tive negligence law is “better” law than Illinois’ contributory
negligence is consistent with prior decisions of this court and
the Illinois and Wisconsin Supreme Courts. Judge Campbell
discussed the issue in Elston v. Morgan, 440 F.2d 47, 50
(1971), stating:
“* * * It is, of course, regrettable that the State of
Illinois here bars one of its citizens so seriously injured
from any recovery whatsoever simply because of its con-
tinued adherence to this cruel and antiquated doctrine, in-
herited long ago from the courts of England and long since
discarded by that country. The harsh Illinois doctrine of
contributory negligence barring any recovery was recently
again before the Supreme Court of Illinois in Maki v.
Frelk, 40 Ill.2d 193, 239 N.E.2d 445 (1968). In that
case the majority opinion recognized that the doctrine
should be discarded in favor of a more modern compara-
tive negligence doctrine, but felt compelled to defer to the
legislature to make the change. The excellent dissenting
opinion written by Mr. Justice Ward, with Mr. Justice
Schaefer concurring, took the position that the contribu-
tory negligence doctrine was judicially created in Illinois
and that therefore the court had the responsibility to make
the change. In his dissent, the learned Justice stated:
“I am unpersuaded by the argument that there are prac-
tical considerations which dictate a retention of the con-
tributory negligence rule. We are told that the adoption
of comparative negligence would increase litigation and
court congestion, encourage negligent driving and cause
insurance rates to be raised. The reply to such “practical”
argument is that the dominating questions before our court
are whether the old rule contended for is one often of
harshness and unfairness and whether the rule proposed
for adoption would better serve to attain more just dis-
positions in negligence cases. The so-called practical
— A-33 —
considerations advanced must properly be considered as
subordinate to the primary concern for more just judicial
dispositions of these cases. Secondly, and persuasively, the
evidence assembled of life under a comparative negligence
form fails to confirm the fears expressed by the defendant
and the amicus. See Maloney, From Contributory to Com-
parative Negligence: A Needed Law Reform, 11 U.Fla.L.
Rev. 135, 162 (1958); Bress, Comparative Negligence,
43 A.B.A.J. 127, 130 (1957); Peck, Comparative Negli-
gence and Automobile Liability Insurance, 58 Mich.L.Rev.
689, 726 (1960); and Rosenberg, Comparative Negligence
in Arkansas Before and After Surgery, 13 Ark.L.Rev. 89,
108 (1959). 40 Ill.2d at 203-204, 239 N.E.2d at 451.
“Indeed in our own Circuit, Wisconsin, with its en-
lightened comparative negligence doctrine has completely
confirmed the conclusion of Mr. Justice Ward in rejecting
the so-called ‘practical’ arguments against the adoption of
a comparative negligence standard by Illinois. Although
it is to be hoped that the Illinois Legislature or the Illinois
Supreme Court may soon heed Justice Ward’s admonition
and consider anew whether the best interests of its citizens
are served by permitting such unfortunate results as are
presented here, it is beyond our power to do anything but
follow the existing law of Illinois as was done by the trial
judge.”
The appellants argue that the recent Wisconsin Supreme
Court decision in Hunker v. Royal Indemnity Co., 57 Wis.2d
588, 204 N.W.2d 897 (1973), requires a different result from
that reached by the district court. We disagree. Neither of the
concerned parties in Hunker were residents of Wisconsin. The
court pointed out that no Wisconsin citizen suffered by the ap-
plication of Ohio law. Id. at 610, 204 N.W.2d at 908. Sievers,
the plaintiff in this action, was a Wisconsin resident. In addition,
the Wisconsin Supreme Court held that the legal trend is to-
wards laws, such as Ohio’s, which bar suits against coemployees.
—_
Id. at 607, 204 N.W.2d at 907. Illinois’ contributory negligence
law, which appellant seeks to have applied in this case, is, how-
ever, anachronistic, and the legal trend is toward comparative
negligence. In short, the Wisconsin Supreme Court held in
Hunker that a recently enacted Ohio law should be applied in
that suit between Ohio residents. It does not follow that Wiscon-
sin would apply an anachronistic foreign law which bars re-
covery to a Wisconsin citizen. We feel that the district court
opinion, which we have adopted, is consistent with Wisconsin
law and that the Hunker decision does not change that result.
— A-35 —
APPENDIX H
In the United States District Court
For the Western District of Wisconsin
James A. Sievers,
Plaintiff,
v.
Keebler Company, a Foreign Corpo-
ration, | 69-C-155.
Defendant and
Third-Party Plaintiff,
Vv.
McCleary Industries, Inc.,
Third-Party Defendant. -
OPINION AND ORDER
This is a civil action for damages for personal injuries al-
legedly arising out of an industrial accident in which plaintiff
caught his arm in a machine designed and manufactured by
the defendant in the State of Illinois and located at the plant
of the third-party defendant in the State of Illinois. At the
time of the accident and at the time of the commencement of
this action, plaintiff was a citizen of the State of Wisconsin.
Defendant is a Delaware corporation with its principal place
of business in Illinois. The third-party defendant is an Illinois
corporation with its principal place of business in Illinois.
Jurisdiction is asserted under 28 U.S.C. § 1332.
A pre-trial conference was held, at which time the question
was considered whether the substantive law of Illinois or that
of Wisconsin should be applied to the tort aspects of the case.
— A-36 —
Briefs have been filed on the above question, with which this
opinion now deals.
In determining whether to apply the substantive law of Illi-
nois or that of Wisconsin, I must follow the choice-of-law rule
that a Wisconsin Court would follow. Klaxon v. Stantor Elec-
tric Mfg. Co., 313 U.S. 487 (1941); Korth v. Mueller, 310
F. Supp. 878 (W.D. Wis. 1970); Satchwill v. Vollrath Co.,
293 F. Supp. 533 (E.D. Wis. 1968); Castonzo v. General
Casualty Co. of Wisconsin, 251 F. Supp. 948 (W.D. Wis.
1966).
Under Wisconsin law, the determination of which substan-
tive law applies requires a two-step analysis. See Wilcox v.
Wilcox, 26 Wis. 2d 617 (1965). The first step—a determina-
tion of whether a true conflict of law exists—requires an
analysis of the number of contacts with each of the competing
jurisdictions and of the qualitative significance of those con-
tacts. The second step—choosing which law is to apply—
requires an analysis of the contacts of each jurisdiction in light
of the “choice-influencing considerations” set forth in Heath
v. Zellmer, 35 Wis. 2d 578, 596 (1967). The second step
begins with a “weak presumption” in favor of the law of the
forum. Heath, supra, at 597; Zelinger v. State Sand & Gravel
Co., 38 Wis. 2d 98 (1968); Conklin v. Horner, 38 Wis. 2d
468 (1968).
The contacts of the competing jurisdictions are not evenly
distributed: Wisconsin is the forum state and the residence of
plaintiff; Illinois is the place of business of defendant and of
the third party defendant, place of accident and place of em-
ployment of plaintiff. Although the location of the forum and
residence of one of the parties are not facts which call for the
application of the substantive law of one jurisdiction over that
of the other, their presence in the instant case indicates that
Wisconsin has a “significant interest” in the outcome of the
—*
controversy. Inasmuch as Wisconsin and Illinois have dispa-
rate laws regarding the effect of a finding of negligence on the
part of plaintiff,' and inasmuch as both jurisdictions have a
significant interest in the outcome of the dispute, I find that
a true conflict exists in the present action.
Since a true conflict exists, it is not appropriate to decide
which state’s negligence law shall apply simply by counting
the number of contacts of each jurisdiction. Rather, resort
must be had to the “choice-influencing factors” set forth in
Heath v. Zellmer, supra, at 596:
(1) predictability of results;
(2) maintenance of interstate and international order;
(3) simplification of the judicial task;
(4) advancement of the forum’s governmental interests; and
(5) application of the better rule of law.
The Wisconsin Supreme Court has held consistently that the
first factor has little relevance in tort actions. Heath, supra at
596. Although the Wisconsin Supreme Court has also generally
found the second factor to be of little significance, defendant
Suggests that the imposition of Wisconsin law in the present
action might lead to a refusal of Illinois employers to employ
Wisconsin residents because of the greater likelihood of em-
ployee recovery under Wisconsin law.
The third factor prompts no clear response. This court's
greater familiarity with Wisconsin comparative negligence law
In Illinois, a —» of contributory igence may bar any re-
covery by the plaintiff. Maki v. Frelik, 40 Ill. 2d 193, 239 N.E. 2d
495 (1968); Prill v. City of Chicago, 317 Ill. App. 202, 46 N.E. 2d
119 (1942). Wisconsin, on the other hand, has a comparative neg-
ligence statute under which the plaintiff's own negligence will bar
his recovery only if it is as t as, or greater than, the negligence
of the defendant. Section 895.045 Wis. Stats. (1969). (Statute in
force at the commencement of this action).
= AGG
is balanced by the arguably easier applicability of a rule of law
in which a plaintiff's negligence acts as a bar to recovery. See
Heath, supra, at 600.
In considering the importance of the advancement of the
forum’s governmental interest, I must give this factor as much
weight as would a state court. The Wisconsin Supreme Court
States in Heath, supra, at pages 600-01:
“It is the duty of our court to further Wisconsin's govern-
mental interest as exemplified in the policies behind its law.
The policy of our tort law is to provide compensation for
persons who are injured by negligent conduct . . . To
deny recovery for ordinary negligence is to defeat Wiscon-
sin policy of compensating victims of ordinary negligence.
It is the policy of Wisconsin to provide compensation to
those persons whether they be residents of this state or
whether they come from another jurisdiction.”
Wisconsin's deeply entrenched commitment to the policy of
comparative negligence is reflected in over 40 years of legisla-
tive history.” Furthermore, recent pronouncements of the Wis-
consin Supreme Court underscore Wisconsin’s commitment. See
Heath, supra; Zelinger, supra; Conklin, supra. 1 conclude that
the application of Illinois law which bars recovery for contribu-
tory negligence would frustrate a longstanding and deeply rooted
governmental interest of the State of Wisconsin.
The fifth factor—application of the better rule of law—pre-
sents different but somewhat overlapping considerations from
those taken into account when advancing the forum's govern-
mental interest. Contributory negligence has been described as
* Further evidence of Wisconsin's commitment to the compara-
live negligence principle is the enactment of an amended compara-
tive negligence statute which liberalizes recovery for ordinary neg-
ligence by the automatic 50 per cent bar rule. See Ses-
sion Laws, ch. 47, 1971.
— A-39 —
a “discredited doctrine which automatically destroys all claims
of injured persons who have contributed to their injuries in any
degree, however slight.” Pope & Talbot, Inc. v. Hawn, 346 US.
406, 409 (1953). Comparative negligence law, however, im-
plements a social policy of spreading the risk of loss due to ordi-
nary negligence and of compensating its victims. While the
doctrine of contributory negligence has its adherents, I find
that Wisconsin law of comparative negligence is the “better rule
of law.” See e.g., Decker v. Fox River Tractor Co., 324 F. Supp.
1089 (E.D. Wis. 1971); Frummer v. Hilton Hotels International, |
Inc., 314 N.Y.S. 2d 335 (1969); Clough v. Liberty Mutual In-
surance Co., 282 F. Supp. 553 (E.D. Wis. 1968).
Accordingly, upon the basis of the entire record herein, It Is
Hereby Ordered that Wisconsin substantive law shall apply to
the tort aspects of the present action.
Entered this 30th day of November, 1971.
By the Court:
/s/ JAMES E. DOYLE
District Judge
In the United States District Court
For the Western District of Wisconsin
James A. Sievers,
Plaintiff,
Vv.
Keebler Company, a foreign corpo-
ration,
Defendant and 69-C-155
Third-Party Plaintiff,
v.
McCleary Industries, Inc.,
Third-Party Defendant.
ORDER
Defendant Keebler has moved, timely, for judgment notwith-
standing the verdict. The principal basis for the motion is that
lilinois law of contributory negligence, rather than Wisconsin
law of comparative negligence, should have been applied. -This
question was considered and decided prior to trial and I ad-
here to that decision.
In the alternative, defendant Keebler has moved for a new
trial. I find and conclude that the verdict was based upon sub-
stantial evidence. My reasons for denying defendant leave to
introduce portions of the deposition of John Richmond are em-
bodied in the record, and I adhere to them. The same is true of
my reasons for choosing the form of the special verdict, and my
reasons for applying the Wisconsin rule of comparative negli-
gence rather than the Illinois rule of contributory negligence.
— A-41 —
Defendant objects to the instructions relating to the duty of a
workman, the duty of a manufacturer to warn, and the duty of
an installer or servicer of a product; the contention, among
others, is that these instructions reflected Wisconsin law, rather
than Illinois law; but there is no showing by defendant that IIli-
nois law differs on any of these points, nor was such a contention
made during the trial, so far as I can now recall. With respect
to the instructions on each of these points, I conclude that there
was substantial credible evidence which made each of them ap-
propriate.
For the reasons stated herein and elsewhere in the record, It Is
Hereby Ordered that the motion for judgment notwithstanding
the verdict is denied and the motion for a new trial is denied.
Entered this 30th day of March, 1972.
By the Court:
/s/ JAMES E. DOYLE
District Judge
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