Connar v. West Shore Equipment of Milwaukee, Inc., 308
| Decision Date | 10 April 1975 |
| Docket Number | No. 308,308 |
| Citation | 227 N.W.2d 660,68 Wis.2d 42 |
| Parties | Loretta CONNAR, Plaintiff-Respondent, v. WEST SHORE EQUIPMENT OF MILWAUKEE, INC., Defendant-Respondent, Melroe Co., a Foreign Corp., Defendant-Appellant. |
| Court | Wisconsin Supreme Court |
Simarski, Goodrich, Brennan & Stack by James P. Brennan, Milwaukee, for defendant-appellant.
Richard J. Steinberg, Wauwatosa, for plaintiff-respondent.
The question presented on appeal is whether it was error to exclude from the special verdict a question relating to the negligence of the employer, when the employer was not a party to the negligence action and could not be liable by reason of the exclusivity of the workmen's compensation remedy.
The trial judge erred in failing to grant the request of the two party-defendants to include the question of the employer's negligence in the proposed jury's verdict. We reverse and remand for a new trial.
Edward C. Connar was employed by the Druml Company when, on June 10, 1969, he was killed during the course of his employment.
The record shows that, at the time, Connar was engaged in spreading gravel on the floor of an underground box sewer, having a height of approximately six feet. Just prior to his death, according to his foreman, Evert Kamuchey, who was working with him, Connar was operating a small Melroe Bobcat front-end loader. Kamuchey announced that it was lunchtime and left the construction site. When he returned, he found Connar hanging suspended from the arm of the Bobcat with his head pinned against the ceiling of the box sewer. Connar was pronounced dead on arrival at a local hospital.
A workmen's compensation award was apparently made prior to the commencement of this lawsuit. An action for wrongful death was brought by the widow of Edward C. Connar against Melroe Company, the manufacturer of the Bobcat, and West Shore Equipment of Milwaukee, Inc., the distributor which sold the machine.
The cause of action against Melroe was based upon an allegation that the Bobcat was unsafe. The action against West Shore was based on the alleged failure of West Shore to warn of the dangerousness of the vehicle and failure to equip it with available safety devices.
Prior to submission to the jury, both defendants requested that the pleadings be amended to allege the negligence of the employer, Druml, and also requested that the jury be directed to consider the proportion of Druml's negligence when apportioning the negligence. These requests were refused.
The jury returned a verdict apportioning 34 percent to the deceased Connar, 25 percent to West Shore, and 41 percent to Melroe.
Judgment was entered for Loretta Connar, the wife of the deceased. That judgment dismissed the complaint against West Shore, and adjudged damages against Melroe. The amount was computed by reducing the total damages by the percentage of negligence (34 percent) attributable to Connar.
Melroe has appealed, claiming that it was prejudicial error to fail to ask the jury to consider the negligence of Druml, the employer. That it was error to fail to make the inquiry of the jury is clear. It is established without doubt that, when apportioning negligence, a jury must have the opportunity to consider the negligence of all parties to the transaction, whether or not they be parties to the lawsuit and whether or not they can be liable to the plaintiff or to the other tort-feasors either by operation of law or because of a prior release.
Only one question must be affirmatively answered by the trial judge before submitting a negligence question to the jury: Is there evidence of conduct which, if believed by the jury, would constitute negligence on the part of the person or other legal entity inquired about.
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