Anderson by Skow v. Alfa-Laval Agri, Inc.

• Decision Date: 18 February 1997
• Docket Number: No. 96-0577,ALFA-LAVAL,96-0577
• Citation: 564 N.W.2d 788,209 Wis.2d 337
• Parties: , Prod.Liab.Rep. (CCH) P 14,880 Adam ANDERSON, by his Guardian ad litem, Ardell W. SKOW, Bonnie Anderson and Leroy Anderson, Plaintiffs-Appellants, d v.AGRI, INC., Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 788

564 N.W.2d 788

209 Wis.2d 337, Prod.Liab.Rep. (CCH) P 14,880

Adam ANDERSON, by his Guardian ad litem, Ardell W. SKOW Bonnie Anderson and Leroy Anderson Plaintiffs-Appellants, ^d v. ALFA-LAVAL AGRI, INC., Defendant-Respondent.

No. 96-0577.

Court of Appeals of Wisconsin.

Submitted on Briefs Nov. 27, 1996.

Opinion Filed Feb. 18, 1997.

Opinion Released Feb. 18, 1997.

For the plaintiffs-appellants the cause was submitted on the briefs of Ardell W. Skow and Matthew A. Biegert of Doar, Drill & Skow, S.C., New Richmond.

For the defendant-respondent the cause was submitted on the brief of Peter J. Hickey and Jeffrey T. DeMeuse of Everson, Whitney, Everson & Brehm, S.C., Green Bay.

Before CANE, P.J., and MYSE, and Carlson ¹ JJ.

MYSE, Judge.

Adam Anderson and his parents, Bonnie and Leroy Anderson, appeal a judgment resulting from a jury verdict finding no negligence on the part of Alfa-Laval Agri, Inc. The Andersons contend that the trial court erred by refusing to give requested customized instructions regarding Alfa-Laval's duties, that the no negligence verdict was contrary to the weight of the evidence and that the trial court erred by advising the jury that the Andersons had settled their claims with a series of other defendants. Although we conclude that the requested customized jury instructions better focus the issues in this specific case as to Alfa-Laval's duties, we nonetheless conclude that the pattern jury instructions given are adequate. We further conclude that although the court erred by advising the jury of the Andersons' settlement with other defendants, the error was not prejudicial to the Andersons and that there is sufficient evidence for the jury to conclude that Alfa-Laval was not negligent. Accordingly, we affirm the judgment.

This tragic case involves a claim for damages resulting from two-year-old Adam Anderson's ingestion of an extremely caustic chemical that had collected in a cup from a pump in Leslie Smith's milk house while Adam's mother, Bonnie Anderson, was assisting Smith in milking Smith's dairy herd. Smith was a dairy farmer near a farm the Andersons had been renting. Bonnie also assisted her brother-in-law, Roland Anderson, as a herdsman on the farm he operated. Her duties included milking the cows and cleaning the milking equipment which was manufactured by Surge, an Alfa- Laval competitor. Smith asked Bonnie to assist him with the milking of his herd several weeks before Adam's injury. Smith demonstrated his Alfa-Laval milk cleaning equipment and how the equipment was to be operated. Bonnie was familiar with the Surge milk line cleaning products because of the farm she and her husband, Leroy, rented, as well as from her work as a herdsman on Roland's farm. The Surge system uses a caustic chemical to clean the milk line similar to the Alfa-Laval unit Smith uses.

On the day of Adam's injury, Smith called Bonnie and asked if she could assist in milking his herd. Bonnie responded that she was required to care for her five children and would only be able to assist if she were able to bring the children to the Smith farm during the milking. Smith agreed and Bonnie arrived with her five children, two of whom, Brent and Adam, were in the milk house with Bonnie while the three girls were playing with kittens by the calf pen.

Smith had purchased the Alfa-Laval milk line cleaning equipment in 1978. This system utilized one cup of an extremely caustic chemical to flush and sanitize the pipes that transport the milk from the barn to the bulk tank in the milk house. While Alfa-Laval manufactures a "closed loop" milk line cleaning system that automatically injects the chemical in a metered dosage, Smith's equipment required the manual injection of the chemical into the system after each milking, twice per day. The pump through which the chemical was injected into the milk lines dripped the chemical, a clear liquid, onto the floor. Therefore, Smith placed the cup that was used to measure the liquid injected into the system under the drip to catch the chemical so that it would not spill on the floor.

Bonnie was aware of this practice and on two previous milkings had entered the milk house to place the cup away from the children's reach before she began her milking chores. On the day in question, however, she did not remove the cup, which Adam apparently saw. He ingested a small amount of the caustic chemical, which resulted in the severe burning of his esophagus and stomach and other extremely serious injuries.

The Andersons commenced an action for the recovery of Adam's damages against Alfa-Laval Agri; Pro-Chemicals, the manufacturer of the chemical solution and the drum in which it was sold and stored; Beckson Industries, the manufacturer of the pump used to take the chemical out of the drum where the chemical leak was located; Wally Potter, the distributor of the Alfa-Laval system; as well as the distributor of Pro Chemicals and Beckson and Smith. Prior to the trial, the plaintiffs settled with each of the defendants, except Alfa-Laval, although the document reflecting that settlement had not been signed by all interested parties when the trial against Alfa-Laval started.

At the trial, counsel for the Andersons asked the court to modify the caption to reflect the settlements with the other defendants and moved in limine for a court order eliminating reference to any settlement with the other defendants. The court denied the motion, advised the jury of the full caption containing the names of each of the defendants and informed the jury that a "negotiated resolution" had been reached with the other parties in the case. Reference to the negotiated settlement was also made to the jury by Alfa-Laval's counsel.

At the conclusion of the trial, the jury found that Alfa-Laval and Wally Potter, the distributor of the system chemicals and pump, were neither negligent nor strictly liable. The jury concluded also that Smith was not negligent and apportioned negligence among the other defendants by finding 50% of the causal negligence to be attributable to Bonnie, 35% to Pro chemicals and 15% to Beckson. The jury awarded damages of $73,000 for future medical expenses; $50,000 for past pain, suffering and disability; and $100,000 for future pain, suffering and disability. The loss of future earnings was in the amount of $500,000, and the loss of society and companionship awarded to Bonnie and Leroy was set at zero.

The Andersons filed post-verdict motions requesting that the trial court change the answer of zero negligence against Alfa-Laval because it was contrary to the weight of the credible evidence, asking for a new trial based upon the assertion that the verdict was perverse and that a new trial was required in the interest of justice. The trial court denied all motions and entered judgment upon the jury's verdict dismissing the Andersons' complaint.

The Andersons first contend that the trial court erred by refusing to submit to the jury a series of proposed instructions specifically tailored to address various theories of liability asserted under the specific facts of this case. The trial court declined to submit the requested instructions after concluding that the instructions evidenced partiality on behalf of the Andersons and that the standard jury instructions adequately advised the jury as to the applicable law in the case.

A trial court has wide discretion as to the instructions it will give to a jury in any particular case. McMahon v. Brown, 125 Wis.2d 351, 354, 371 N.W.2d 414, 416 (Ct.App.1985). Instructions must fully and fairly inform the jury as to the applicable principles of law. Runjo v. St. Paul Fire & Marine Ins. Co., 197 Wis.2d 594, 602, 541 N.W.2d 173, 177 (Ct.App.1995). As long as the instructions adequately advise the jury as to the law it is to apply, the court has the discretion to decline to give other instructions even though they may properly state the law to be applied. Northwestern Nat'l Ins. Co. v. Nemetz, 135 Wis.2d 245, 263-64, 400 N.W.2d 33, 41 (Ct.App.1986). The instructions given are to be considered in their totality to determine whether they properly state the law to be applied. Steinberg v. Arcilla, 194 Wis.2d 759, 774, 535 N.W.2d 444, 449 (Ct.App.1995).

If the instructions are not erroneous and adequately inform the jury as to the law to be applied, the court's exercise of discretion will be affirmed on appeal. Id. If an instruction is erroneous or the court erroneously refused to give a proper instruction, a new trial will not be ordered unless the court's error was prejudicial. Nowatske v. Osterloh, 198 Wis.2d 419, 429, 543 N.W.2d 265, 268 (1996). An error is prejudicial only if it appears that the result would have been different had the error not occurred. Id.

We start our analysis by examining the Andersons' claim that in a complex fact situation involving theories of liability of both negligence and strict liability, it is appropriate to tailor specific instructions to the evidence. We agree. Standard jury instructions are to assist the court but should not be used as a substitute for the court developing appropriate instructions relating to the specific facts of each case. Indeed, the introduction to Wisconsin's civil jury instructions cautions trial judges that pattern jury instructions are tools to assist the court, but do not eliminate the court's need to refine the instructions based upon the specific facts of any particular case. I WISCONSIN J I--CIVIL, at xix (1995).

In this case, a series of tailored instructions were requested involving the defendant's duty to incorporate foreseeable safety features into its product and the defendant's duty to all foreseeable persons who would have contact with the product, including bystanders and not just the purchaser or consumer of the product. Customized jury instructions were also sought in regard to the defendant's post-sales and nondelegable duties. The trial court,...