Farrell by Lehner v. John Deere Co.

Decision Date24 May 1989
Docket NumberNo. 87-2084,87-2084
Citation443 N.W.2d 50,151 Wis.2d 45
CourtWisconsin Court of Appeals
PartiesGordon FARRELL, Rachel Farrell, Sara Farrell, James Farrell, By Michael P. LEHNER, their guardian ad litem, and Oshkosh Truck Corporation, a Wisconsin corporation, Plaintiffs-Respondents-Cross Appellants, v. JOHN DEERE COMPANY, a foreign corporation, and Deere & Company, a foreign corporation, Defendants-Third Party Plaintiffs-Appellants, d Ballweg Implement Company, Defendant, Navistar Company, a foreign corporation, Defendant-Cross Respondent, v. Gustave MUELLER, M.D., Third Party Defendant.

David J. Cannon & Toni L. Bonney of Michael, Best & Friedrich, on the brief, Milwaukee, for defendants-third party plaintiffs-appellants-cross respondents.

Frank J. Daily, Patrick W. Schmidt, Mark A. Kircher & Marsha J. Rabiteau of Quarles & Brady, on the brief, Milwaukee, for defendant-cross respondent.

Lynn R. Laufenberg of Cannon & Dunphy, S.C., on the briefs, Milwaukee, for plaintiffs-respondents.



This is a products liability/negligence action which was submitted to a jury in two phases in the special verdict. In the first phase, the jury apportioned responsibility among five parties, including the plaintiff, Gordon Farrell, for the damages caused to Farrell when he was seriously injured in a farm accident involving a John Deere corn picker. In the second phase, the jury found John Deere Company and Deere & Company (Deere) 65% responsible and Farrell 35% responsible for Farrell's damages. Deere appeals from the resultant judgment which awarded Farrell total compensatory damages of $966,459.65, plus interest. 1 Farrell cross-appeals as to one of the defendants, Navistar Company (Navistar).

Deere contends that the trial court erred by: (1) submitting Farrell's enhanced injury claim to the jury as a separate basis for Deere's liability, or, in the alternative, failing to compare the negligence of all the parties in the enhancement portion of the verdict; (2) giving erroneous jury instructions; (3) permitting expert testimony regarding the degree of Farrell's enhanced injury; and (4) granting Farrell's post-verdict motion for additur.

Farrell cross-appeals against Navistar. Farrell argues that: (1) the cumulative effect of an erroneous exclusion of evidence, incomplete jury instructions and an erroneous special verdict question prejudiced him; (2) the evidence does not support the apportionment of negligence between himself and Navistar; and (3) a new trial as between himself and Navistar is required in the interests of justice.

We are unpersuaded by both Deere's and Farrell's arguments and affirm the judgment.


Farrell was injured while using a Deere corn head and husker, powered by a tractor manufactured by Navistar. Both pieces of equipment were owned by Gustave Mueller, who had purchased them from Ballweg Implement Company (Ballweg). Farrell and the other plaintiffs sued Deere, Ballweg and Navistar. As to Deere and Navistar, Farrell's complaint sounded in products liability and negligence. Deere brought a third-party action against Mueller. Mueller and Ballweg settled with Farrell prior to trial and obtained a Pierringer release. Pierringer v. Hoger, 21 Wis.2d 182, 124 N.W.2d 106 (1963).

The evidence at trial showed that while Farrell was using the equipment to pick corn, both the corn head and husker suddenly stopped operating. Farrell got off the tractor to check on the picking equipment, leaving the tractor engine running. He does not remember if he shut off the tractor's power take-off (PTO) which powers the picker. The doors that usually cover the husking rolls on the husker had been wired open by Mueller, and when Farrell put his hand into the area of the rolls, the picker suddenly started up again, pulling his hand and arm into the mechanism. Farrell was unable to extricate his arm and eventually his other arm and both legs were also pulled into the rolls. Nearly an hour later, a neighbor found Farrell and stopped the picker by shutting off the PTO on the tractor. Farrell's injuries required amputation of his arms and legs.

Farrell's products liability and negligence claims against Navistar contended that the PTO device on the tractor was defective. Specifically, Farrell contended that the disengaged PTO spontaneously reengaged as Farrell was inspecting the husking rolls.

Farrell's products liability and negligence claims against Deere crystallized into two basic claims: (1) the corn picker was not equipped with an interlock device for the husking box so as to be unreasonably dangerous to the prospective user, thereby causing Farrell's initial entanglement; and (2) the corn picker was not equipped with an emergency stop mechanism near the rolls of the husker, thereby enhancing Farrell's injuries. Because of this "two-tiered" approach, the jury instructions and special verdict divided the accident into two phases: entanglement and enhancement.

As to the entanglement phase, the jury first determined that neither Deere nor Navistar was responsible under products liability law. The jury was then asked to determine whose negligence was responsible for Farrell's entanglement in the husking rolls and to apportion the negligence among the responsible parties. The jury found the following percentages of negligence:

                Farrell (contributory negligence) .... 70%
                Navistar ............................. 20%
                Ballweg ............................... 5%
                Mueller ............................... 5%
                Deere ................................. 0%

Thus, Farrell was determined to be legally responsible for causing his initial entanglement and Deere and Navistar were exonerated as to this phase of Farrell's claim.

Deere, however, retained exposure in the case because the next portion of the special verdict dealt with the enhancement phase of the accident. This phase concerned only Deere and Farrell. The jury was asked if Deere was responsible under products liability law and in negligence for failing to design and install an emergency shut-off switch on the husker. The jury answered these questions in the affirmative and determined such conduct to be causal of Farrell's enhanced injuries. The jury then apportioned 35% of Farrell's damages and injuries to the entanglement phase and 65% to the enhancement phase.

The jury fixed Farrell's total damages, exclusive of the derivative claims, at $992,000. $200,000 of this award was for "[p]ast and future mental and physical pain, suffering, disability and disfigurement" and $50,000 was for loss of future earnings.

Farrell brought a post-verdict motion for additur to the pain and suffering and future earnings awards. The trial court granted the motion, increasing the pain and suffering award from $200,000 to $750,000 and the future earnings award from $50,000 to $65,000. Deere accepted the additur. Judgment, exclusive of the derivative claims, was entered against Deere for $966,469.65, plus interest, representing 65% of the total damages after additur. (The 65% figure was utilized because the jury had determined that this percentage of the damages and injuries was attributable to Deere's failure to provide the emergency shut-off device.) Deere appeals and Farrell cross-appeals. 2

In the instant case, Deere is alleged to be responsible both in initiating the accident and, by separate conduct, in enhancing the plaintiff's injuries. This situation is unprecedented in reported Wisconsin case law and raises procedural and substantive issues not expressly addressed to date. These include: (1) what jury instructions and special verdict questions should be submitted when a manufacturer is alleged by separate acts to have both caused and enhanced the plaintiff's injuries? (2) can this type of case be presented to the jury in the "two-tiered" manner utilized in this case? and (3) how is the question of comparative negligence presented to the jury in such a case?

We certified this appeal to the supreme court believing these determinations to be beyond the error-correcting and limited law-declaring functions of this court, see State ex rel. Swan v. Elections Bd., 133 Wis.2d 87, 108, 394 N.W.2d 732, 741 (1986) (Abrahamson, J., dissenting ); State v. Grawien, 123 Wis.2d 428, 432, 367 N.W.2d 816, 818 (Ct.App.1985), and more properly within the institutional function of our supreme court, see State ex rel. Swan, 133 Wis.2d at 93-94, 394 N.W.2d at 735. The supreme court, however, declined to accept this appeal on certification.


On appeal, Deere argues that the trial court erred by allowing the jury to consider Farrell's enhanced injury claim as a separate issue from the entanglement claim. Deere claims that the enhanced injury theory is inapplicable to this type of products liability case.

Generally, the trial court has wide discretion in deciding what instructions will be given, so long as they "fully and fairly inform[ ] the jury of the rules and principles of law applicable to the particular case." D.L. v. Huebner, 110 Wis.2d 581, 624, 329 N.W.2d 890, 909 (1983). However, whether there were sufficient credible facts to allow the giving of the instruction in the first instance is a question of law to which we apply an independent standard of review which does not require us to defer to the ruling of the trial court. Walter v. Cessna Aircraft Co., 121 Wis.2d 221, 230-31, 358 N.W.2d 816, 821 (Ct.App.1984). Thus, the trial court here was required to decide, as a matter of law, whether there were sufficient credible facts to allow the enhanced injury claim to go to the jury. Because this is a question of law for the trial court, so it is with this court. Id. at 231, 358 N.W.2d at 821.

Liability based on enhanced injury has been recognized in Wisconsin cases, albeit not in the factual situation we have...

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