DeSantis v. Parker Feeders, Inc.

• Decision Date: 18 November 1976
• Docket Number: No. 76-1332,76-1332
• Citation: 547 F.2d 357
• Parties: Joseph S. DeSANTIS, by his guardian ad litem, et al., Plaintiffs-Appellees, v. PARKER FEEDERS, INC., Defendant and Third-Party Plaintiff-Appellant, v. Jeanne DeSANTIS and Richer DeSORCY, as Special Administrator of the Estate of Arthur C. Schrank, Third-Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 357

547 F.2d 357

Joseph S. DeSANTIS, by his guardian ad litem, et al., Plaintiffs-Appellees, v. PARKER FEEDERS, INC., Defendant and Third-Party Plaintiff-Appellant, v. Jeanne DeSANTIS and Richer DeSORCY, as Special Administrator

of the Estate of Arthur C. Schrank, Third-Party

Defendants-Appellees.

No. 76-1332.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 17, 1976.

Decided Nov. 18, 1976.

John W. Fetzner, Hudson, Wis., for plaintiff-appellant.

Eugene O. Gehl, Madison, Wis., for plaintiffs-appellees.

Before FAIRCHILD, Chief Judge, and CUMMINGS and TONE, Circuit Judges.

FAIRCHILD, Chief Judge.

This is a diversity suit brought by Joseph S. DeSantis, a 12-year old boy, and his father, John T. DeSantis, against Parker Feeders, Inc. for injuries sustained by the boy in an accident occurring on May 6, 1969. ¹ On that date, Joseph DeSantis, while playing with younger brothers, became entrapped in the sharp blades of the auger part of his father's automatic cattle feeder. As a result, the boy lost his left leg from the knee joint down, his big toe and a portion of the second toe on his right foot, and suffered deep lacerations to the back of his left thigh and hip.

The cattle feeder involved in the accident was constructed entirely from parts manufactured by defendant. Though defendant sold these parts separately, one from the other, and though Mr. DeSantis was free to have substituted the parts of another manufacturer for those of defendant, he was not free to omit any part purchased from the cattle feeder. Each was absolutely necessary to the assembly of a working feeder system. ²

The only part manufactured by defendant that was not so absolutely necessary to a working cattle feeder system was a cover for the trough and auger parts that could be obtained by special order. The cattle feeder in which Joseph DeSantis was injured did not have a trough/auger cover. There is no evidence that defendant made any effort to insure that Mr. DeSantis or any purchaser of its cattle feeder parts, especially of its trough and augers, also purchased such safety covers. In fact, pictures in defendant's promotional advertising never depicted an operating cattle feeder equipped with a cover. As a result, the district court held Parker Feeders strictly liable for the boy's injuries. Defendant appeals from the judgment of the district court, charging as error the denial of its motions for a directed verdict, judgment notwithstanding the verdict and a new trial.

MOTIONS FOR DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT

Defendant makes two arguments for reversing the trial court's denial of its motions for a directed verdict and judgment notwithstanding the verdict: (1) that, as a matter of law, the products it manufactured were neither defective nor unreasonably dangerous, and (2) that it is not liable for injuries sustained when its products are not used for their intended purpose.

A directed verdict is appropriate " 'only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion.' " Anderson v. Joint School Dist., 24 Wis.2d 580, 583, 129 N.W.2d 545, 547 (1964), citing Smith v. Pabst, 233 Wis. 489, 288 N.W. 780 (1940) and Rusch v. Sentinel-News Co., 212 Wis. 530, 533, 250 N.W. 405 (1933). See also Tombal v. Farmers Insurance Exchange, 62 Wis.2d 64, 68, 214 N.W.2d 291 (1974). Thus, in determining whether or not the trial court erred in failing to direct a verdict or in denying judgment notwithstanding the verdict, this court must consider the evidence in the light most favorable to the party against whom the verdict was sought to be directed. Lambie v. Tibbits, 267 F.2d 902, 903 (7th Cir. 1959); Tombal v. Farmers Insurance With respect to the issue of defect and dangerousness, defendant's argument on appeal focuses on its assertion that it was but one manufacturer of component parts from which cattle feeders could be assembled. Which of these parts did and did not find their way into the DeSantis' feeder, it argues, was a matter completely out of its hands and completely up to Mr. DeSantis and Mr. Schrank, his supplier, who together designed and assembled the feeder in question. Accordingly, ultimate responsibility for any defect or dangerousness in the feeder should rest with Mr. DeSantis and Mr. Schrank.

Exchange, supra, 62 Wis.2d at 68, 214 N.W.2d 291. The proper inquiry, then, is whether the DeSantis' evidence is such that the jury could reasonably have found the defendant's product was defective or unreasonably dangerous and that it was being used in a way intended by defendant. For the reasons set forth below, we are persuaded such evidence was presented and, accordingly, we affirm the ruling of the trial court.

We are unpersuaded by this argument for two reasons. First, viewing the evidence in the light most favorable to the plaintiff, it was not unreasonable for the jury to conclude that Parker Feeders was in fact the manufacturer, not simply of the parts that comprised the DeSantis' feeder, but of the feeder itself. As already observed, every part that Mr. DeSantis purchased to construct his feeder was dependent on every other part to accomplish any useful purpose, and each of these parts was manufactured by Parker Feeders. Thus, if it was deemed a defect in design or unreasonably dangerous for the DeSantis' feeder to operate without a cover, we do not consider it unreasonable for the jury to have decided that Parker Feeders, as manufacturer of all its parts of what in essence then was a "Parker King-O-Matic Cattle Feeder," a product always depicted uncovered in defendant's promotional literature must be held strictly liable for injuries resulting from such defect or danger.

Second, Parker Feeders' argument is unpersuasive because, even if the jury believed it to be simply the manufacturer of component parts, the rule in Wisconsin is that,

Where there is no change in the component itself, but it is merely incorporated into something larger, and where the cause of harm or injury is found . . . to be a defect in the component part, . . . as to the ultimate user or consumer, the strict liability standard applies to the maker and supplier of the defective, component part. City of Franklin v. Badger Ford Truck Sales, Inc., 58 Wis.2d 641, 649, 207 N.W.2d 866, 870 (1973).

The evidence supports the conclusion that no material change was made in the trough, auger, or any other Parker Feeders' part in assembling the DeSantis' feeder, that each was "merely incorporated into" the whole feed system. As such, it would have been reasonable for jury to conclude that it was a defect in the design of, or a danger in, the auger, trough, or some other part, for Parker Feeders to sell such part without a cover attached or without strong clear warnings that such part only be incorporated into feeder systems provided with covers.

With respect to the issue of intended use, Parker Feeders argues that it should not be expected to have foreseen that young children would use a cattle feeder to play a game involving hiding squirt guns. We cannot agree. We do not consider it unreasonable that the jury, presented with evidence of defendant's promotional material advertising, "Even a child can do your feeding" found exposure of Joseph DeSantis to the cattle feeder something defendant should have foreseen. Nor are we persuaded that the feeder was being misused by the boy at the time of the accident. The plaintiff was injured because, while climbing over the feeder's trough and auger, he misjudged the distance, failed to step widely enough, and found himself caught in the mechanism's whirling blades. It was irrelevant to this accident that the boy and his brothers had turned on the

cattle feeder with the assistance of a pitchfork. It was irrelevant that their reason for turning on the machine was to play a game involving squirt guns. What is relevant is that a child whom defendant purported was capable of operating the cattle feeder had turned on the machine; that the machine at the time of the accident was operating in exactly the same manner and with no greater risk than if feed were being transported in it; and that when the child sought to cross over the feeder, its failure to be covered made it possible for him to become caught in the device. It was for the jury to decide whether defendant should have foreseen that a user might step across the cattle feeder in the course of its operation. We cannot say it was unreasonable for them to have decided such use was foreseeable.

MOTION FOR A NEW TRIAL

Defendant charges eight errors committed below warrant this court's grant of a new trial: (1) that the court's instruction regarding standard of care in reference to strict liability was inappropriate; (2) that the court's use of the term "Parker King-O-Matic Feeder" in the instruction on strict liability was unduly prejudicial; (3) that the court's use of the singular word "product" in Question 1 of the special verdict was similarly prejudicial; (4) that the trial court's instruction on duty to warn was inappropriate given the open and obvious nature of the danger; (5) that the trial court erred in not giving defendant's suggested instruction on the duty of care owed by the installer of the feeder; (6) that the court's instruction on the possibility of plaintiff's suffering posttraumatic personality disorder was unnecessarily duplicitous; (7) that the testimony of plaintiff's witness, Mr. Wrage, subjected defendant to undue surprise and prejudice; (8) that the damages awarded to the plaintiff were excessive; and (9) that the answers to Questions 1-9 of the special verdict were not supported by the weight of the evidence.

The trial court has already considered most of these charges of error, either in the course of trial objections, or as motions after trial. We...