611 F.2d 224 (8th Cir. 1979), 79-1188, Wagner v. International Harvester Co.

Docket Nº:79-1188, 79-1201.
Citation:611 F.2d 224
Party Name:Charles P. WAGNER, Appellee/Cross-Appellant, v. INTERNATIONAL HARVESTER COMPANY, Appellant/Cross-Appellee, v. BRECKENRIDGE ELECTRIC, INC., and Arnold's Equipment, Inc., Appellees.
Case Date:December 05, 1979
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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611 F.2d 224 (8th Cir. 1979)

Charles P. WAGNER, Appellee/Cross-Appellant,




BRECKENRIDGE ELECTRIC, INC., and Arnold's Equipment, Inc., Appellees.

Nos. 79-1188, 79-1201.

United States Court of Appeals, Eighth Circuit

December 5, 1979

Submitted Sept. 11, 1979.

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John E. Castor, Castor, Ditzler & Klukas, Minneapolis, Minn. (argued), and Ann J. McGee, Minneapolis, Minn., on brief, for International Harvester.

Peter G. Van Bergen, Cousineau, McGuire, Shaughnessy & Anderson, Minneapolis, Minn., for appellee, Breckenridge, etc.

Eugene J. Flick, Jardine, Logan & O'Brien, St. Paul, Minn., for appellee, Arnold, etc.

William D. Flaskamp, Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, Minneapolis, Minn. (argued), Gary W. Hoch, Robert R. Barth and Roger L. Meller, Jr., Best & Flanagan, Minneapolis, Minn., on brief, for appellee, Wagner.

Before BRIGHT and HENLEY, Circuit Judges, and MARKEY, Chief Judge. [*]

BRIGHT, Circuit Judge.

Charles Wagner brought this products liability action against International Harvester Company (IHC) to recover damages for bodily injuries sustained in the rollover of an IHC Model 500C crawler tractor which Wagner had been operating. 1 IHC in turn filed a third party complaint seeking contribution or indemnity against Wagner's employer, Breckenridge Electric, Inc. (BEI), and Arnold's Equipment, Inc. (Arnold's), the local IHC dealer that had leased the tractor to BEI. These actions were joined for trial. On a special verdict the jury found IHC entirely responsible for Wagner's injuries and assessed damages at $1,600,000. The district court 2 entered judgment against IHC in accordance with this verdict and dismissed IHC's third party complaint against BEI and Arnold's. Subsequently, the district court denied motions by IHC for judgment notwithstanding the verdict or, in the alternative, for a new trial. IHC brings this timely appeal from the judgment of the district court. (No.

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79-1201.) Wagner cross-appeals from the judgment, contending that the trial court erred in rejecting as a matter of law Wagner's claim for punitive damages. (No. 79-1188.) Having reviewed the record, we affirm.

I. Factual Background.

In August 1971, BEI was engaged in burying telephone cable in northwestern Minnesota. Its equipment at that time included a large crawler tractor that dug and then laid cable in a narrow trench, and the small Model 500C crawler tractor in issue here, which smoothed the ground behind the larger tractor. IHC had sold the 500C crawler to Arnold's on May 25, 1971; Arnold's in turn leased it to BEI on August 2, 1971. Arnold's employees at that time showed Allen Lindseth, a BEI employee assigned to operate the unit, how to handle the controls. Lindseth ran the crawler approximately forty hours.

When Lindseth decided to leave BEI, Frank Burton, BEI's field supervisor, offered Wagner the job of operating the 500C. Wagner until this time had worked at guiding the cable into the ground. He, like Lindseth, was twenty years old. He had been raised on a farm and had driven many different wheeled tractors, but never a crawler tractor. Burton told Lindseth to instruct Wagner in the operation of the 500C. For three to four hours on August 16, Lindseth worked with Wagner, first demonstrating the various control mechanisms and then observing and directing Wagner as he operated the crawler.

At about 5:00 p. m. on August 16, Wagner backed the crawler down a ditch, worked there for a while, and then attempted to ascend to the road. As the front of the dozer blade reached the top of the ditch, the left track began to slip, the crawler turned to the left, and then it rolled over. Wagner was pinned beneath the heavy crawler; in addition to being crushed, he was severely burned by hot transmission fluid flowing from a breather cap located in front of the operator's seat and between his legs.

In his lawsuit Wagner claimed breach of warranty, 3 negligence and strict liability chiefly with respect to the instability of the crawler, the absence of rollover protection, and the design and placement of the transmission fluid filler pipe and breather cap. The jury found IHC negligent in all three respects. The jury also determined that the crawler was in a defective condition when it left IHC's control because it was not equipped with a rollover protective device as standard equipment, and it found that the type or location of the transmission fluid filler pipe and breather cap was a design defect. The jury determined, however, that use of a left-foot decelerator pedal on the crawler did not constitute a design defect, and it also found that IHC had provided adequate warnings and instructions for the operation of the crawler. The jury absolved Wagner, BEI, and Arnold's of any negligence, attributing fault solely to IHC.

II. IHC's Appeal.

A. The Stability Issue.

In the first of its answers to special verdict questions, the jury found IHC to have been "negligent in its design, testing, or manufacture of the 500C tractor with reference to its stability Or the use of a left foot decelerator." (Emphasis added.) However, the jury's third special verdict answer found that the design of the 500C was not defective insofar as it incorporated a left-foot decelerator. 4 IHC argues that

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because Wagner failed to prove any other instability in the crawler, these two special verdict answers are inconsistent, entitling IHC to a new trial. See, e. g., Fugitt v. Jones, 549 F.2d 1001 (5th Cir. 1977). We reject this contention.

We agree that, in light of the jury's finding of nondefectiveness, the installation of a left-foot decelerator on the 500C must be considered not to have been negligent. Halvorson v. American Hoist & Derrick Co., 307 Minn. 48, 240 N.W.2d 303 (1976). Under Minnesota law, however, a verdict of nondefectiveness does not preclude a finding of negligence based in part on other grounds E. g., failure to warn. Bigham v. J. C. Penney Co., 268 N.W.2d 892, 896 (Minn.1978). 5 In this case, the disjunctive and general form of the first special verdict question directly suggests an alternative basis for the jury's initial finding of negligence. Because the record in this case contains substantial evidence of negligence in the "design, testing, or manufacture of the 500C tractor with reference to its stability" apart from possible instability due to the left-foot decelerator, we find that the jury's first and third answers here are reconcilable.

The record reflects that IHC failed to conduct certain tests that may have been relevant to the crawler's stability. This evidence can be viewed apart from plaintiff Wagner's claim that a sudden release of the decelerator pedal made the 500C dynamically unstable. Moreover, one of plaintiff's expert witnesses testified that smaller crawlers like the 500C were less stable than large ones, and that consequently they could tip over more easily. A second expert witness echoed this testimony and stated that the diminished stability of a small tractor made rollover protection imperative. In light of this evidence, the jury's verdict regarding stability should be read in conjunction with its findings on the issues of rollover protection and the placement of the transmission breather cap and filler pipe. Rather than demonstrating any inconsistency, the verdict of negligence "with reference to stability" is entirely consistent with, and indeed reinforces, the jury findings addressing the adequacy of protection afforded crawler operators in the event of upset. 6

B. The Claim of Misuse.

IHC argues that the district court should have found as a matter of law that the 500C crawler was not defective and that IHC was not negligent. This follows, IHC contends, because the crawler was misused in a manner not reasonably foreseeable by IHC, and misuse was the proximate cause of Charles Wagner's injuries. See Restatement (Second) of Torts § 402A, comments g and h; Magnuson v. Rupp Manufacturing, Inc., 285 Minn. 32, 171 N.W.2d 201, 206 (1969). Specifically, IHC argues that Wagner's employer misused the crawler by permitting its operation by an unskilled and poorly trained operator under unsafe circumstances, whereas IHC anticipated use by a properly instructed operator in safe circumstances.

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Contrary to IHC's argument, we believe the record supports a finding that IHC should have reasonably foreseen use of the 500C by operators having limited training and experience. Further, the evidence does not establish that there was product misuse in this case as a matter of law. Wagner received some training, and at the time of the accident he was operating the crawler in customary fashion upon a moderate slope. The parties disputed the cause of this accident. Reasonable people could differ on the conclusions to be drawn from the evidence. Thus, the district court did not err in refusing to dismiss this action on the basis of product misuse.

C. Rollover Protection and Placement of the Breather Cap.

At trial Wagner asserted that he would not have suffered such extensive injuries when the 500C crawler tipped over if IHC had provided rollover protection for the operator and if it had not located the transmission breather cap between the operator's legs. In its special verdict the jury found the crawler defective and IHC negligent on both counts. Notwithstanding the testimony of three expert witnesses in support of Wagner's allegations, IHC argues that the proof underlying the jury's conclusions was insufficient. We disagree.

This court has held that a manufacturer must consider the environment in which its product is used. Where a product cannot be used as intended without a known risk of accidents, the manufacturer must design that product...

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