733 F.2d 463 (7th Cir. 1984), 83-2164, Flaminio v. Honda Motor Co., Ltd.

Docket Nº:83-2164.
Citation:733 F.2d 463
Party Name:Forrest A. FLAMINIO and Gloria Flaminio, Plaintiffs-Appellants, v. HONDA MOTOR COMPANY, LTD., a Japanese corporation, et al., Defendants-Appellees.
Case Date:May 02, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 463

733 F.2d 463 (7th Cir. 1984)

Forrest A. FLAMINIO and Gloria Flaminio, Plaintiffs-Appellants,

v.

HONDA MOTOR COMPANY, LTD., a Japanese corporation, et al.,

Defendants-Appellees.

No. 83-2164.

United States Court of Appeals, Seventh Circuit

May 2, 1984

Argued Jan. 17, 1984.

Page 464

[Copyrighted Material Omitted]

Page 465

Robert L. Habush, Habush, Habush & Davis, S.C., Milwaukee, Wis., for plaintiffs-appellants.

Robert D. Scott, Frisch, Dudek & Slattery, Ltd., Milwaukee, Wis., for defendants-appellees.

Before CUMMINGS, Chief Judge, and WOOD and POSNER, Circuit Judges.

POSNER, Circuit Judge.

This appeal in a personal-injury diversity suit brings up a variety of interesting substantive and procedural questions. In 1978 a middle-aged man named Forrest Flaminio bought a "Gold Wing" motorcycle, a large and powerful touring motorcycle manufactured by the Honda Motor Company of Japan (Japanese Honda) and distributed in the United States by its wholly owned subsidiary, American Honda Motor Company (American Honda). The motorcycles are shipped from Japan partially assembled, but assembly is completed by the dealers to whom American Honda distributes the motorcycles rather than by American Honda itself. Three days after taking delivery, and shortly after a dinner at which he had one or two drinks, Flaminio was driving the motorcycle down a two-lane road at night when he came up behind a car traveling at about 40 miles per hour. He passed it at a speed of somewhere between 50 and 70 m.p.h. (the speed limit was 50), and as he did so felt a vibration in the front end of the motorcycle. He tried to look at the front wheel to see what was wrong. This was an awkward maneuver because his feet were up on the motorcycle's "highway pegs" (supplied and installed by the motorcycle dealer rather than by either of the defendants), so that he was leaning backward. By his own admission the effort in this position to see the front wheel probably brought him up off the seat. In any event the motorcycle began to wobble uncontrollably and then it shot off the road and crashed, inflicting injuries that have left Flaminio a paraplegic.

Joined by his wife, who is seeking to recover damages for loss of consortium, Flaminio sued Japanese Honda and American Honda, alleging that either the wobble was due to the defective design of the motorcycle, which should have been corrected, or the defendants should have warned users about the motorcycle's propensity to wobble. The jury exonerated Japanese Honda from all liability but found that American Honda had been negligent and that its negligence had been 30 percent responsible for the accident, and that Flaminio had also been negligent and that his negligence had been 70 percent responsible for the accident. Since under Wisconsin law, which the parties agree governs the substantive issues in this suit, a contributorily negligent plaintiff cannot recover any damages unless his negligence "was not greater than the negligence of the person against whom recovery is sought," Wis.Stat. Sec. 895.045; see, e.g., Brunette v. Employers Mutual Liability Ins. Co., 107 Wis.2d 361, 364, 320 N.W.2d 43, 44 (Wis.App.1982),

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judgment was entered for the defendants, and the plaintiffs have appealed.

The substantive issues on appeal relate to Japanese Honda's liability for the allegedly defective design that allowed the motorcycle to wobble, or alternatively for failing to warn consumers of the danger of wobble. The issue with respect to the failure to warn is whether the judge should have given a strict liability instruction. He instructed the jury that if a product is dangerous when used as intended and the average consumer would not know this, "it becomes the manufacturer's or the distributor's duty to exercise ordinary care to give adequate warnings .... The failure to perform such a duty constitutes negligence." Flaminio argues that the judge should have instructed the jury instead that "A manufacturer or supplier of a product must give warning of any dangerous propensity of an article produced or sold by him inherent in the product or in its use of which he knows or should know, and which the user of the product would not ordinarily discover." This instruction, unlike the instruction the judge actually gave, did not refer explicitly to negligence or duty of care.

Since the jury found American Honda liable for the accident to Flaminio, it might seem irrelevant whether Japanese Honda should also have been found liable. But if, under different instructions, the jury had found Japanese Honda as well as American Honda liable, even if just for failing to warn of wobble, this might have affected the jury's apportionment of responsibility for the accident between Flaminio and the defendants. It is true that under Wisconsin's comparative-negligence statute (on which see the interesting recent discussion in Jensen v. Intermountain Health Care, Inc., 679 P.2d 903, No. 17980 (Utah S.Ct. Feb. 15, 1984)) Flaminio probably could get no damages unless he showed that he was less blameworthy than at least one of the defendants; it would not be enough that he was less blameworthy than both of them together. See, e.g., Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Construction Corp., 96 Wis.2d 314, 326-27, 291 N.W.2d 825, 831 (1980). We say "probably" because the fact that one of the defendants is the other's wholly owned subsidiary might conceivably make a difference. Compare Reber v. Hanson, 260 Wis. 632, 637-38, 51 N.W.2d 505, 507-08 (1952), with Reiter v. Dyken, 95 Wis.2d 461, 467-68, 290 N.W.2d 510, 513-14 (1980). But we need not decide that question. It is enough that if the jury had found Japanese Honda liable, it might have concluded that Flaminio's fault was less than that of at least one of the defendants, and if so Flaminio would have gotten substantial damages.

The parties agree that Wisconsin law makes manufacturers and distributors strictly liable for personal injuries caused not only by defects in their products but also by inherent conditions that make the products unreasonably dangerous, though in the latter case the manufacturer's or distributor's duty is not to correct the condition but to warn potential users of the danger. But as we suggested recently in Gracyalny v. Westinghouse Elec. Corp., 723 F.2d 1311, 1317 n. 11 (7th Cir.1983), the strict liability duty to warn, as usually formulated (for example in DeLuryea v. Winthrop Laboratories, 697 F.2d 222, 228-29 (8th Cir.1983); Young v. Up-Right Scaffolds, Inc., 637 F.2d 810, 814 (D.C.Cir.1980); Werner v. Upjohn Co., 628 F.2d 848, 858 (4th Cir.1980), and Restatement (Second) of Torts Sec. 402A, comment j (1965)), is hard to distinguish in practice from the duty to warn imposed by a negligence standard. This is because the defendant, to be held strictly liable, must have been able to foresee that the product would be unreasonably dangerous unless there was a warning. "[T]he duty to warn [in a strict liability case] arises if the seller has, or should have, knowledge of a dangerous use." Krueger v. Tappan Co., 104 Wis.2d 199, 206-07, 311 N.W.2d 219, 223 (Wis.App.1981).

The Wisconsin Supreme Court, in D.L. v. Huebner, 110 Wis.2d 581, 614, 329 N.W.2d 890, 905 (1983), explicitly declined

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to say whether Krueger had been correctly decided; but we think that Krueger states Wisconsin law correctly at least on the point for which we have cited it. As is widely recognized in Wisconsin and elsewhere, "strict liability" is something of a misnomer in products cases. See Dippel v. Sciano, 37 Wis.2d 443, 459-60, 155 N.W.2d 55, 63 (1967). There is liability only if a product is defective or unreasonably dangerous, and the concepts of "defect" and "unreasonableness" bring into play factors of cost and risk similar to those that determine negligence, an objective standard that is independent of what the particular defendant knew or could have done. "In defining unreasonably dangerous, a balancing test is mandated: if the likelihood and gravity of harm outweigh the benefits and utility of the product, the product is unreasonably dangerous." Brown v. Link Belt Division, 666 F.2d 110, 115 (5th Cir.1982); see also Epstein, Modern Products Liability...

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