Fietzer v. Ford Motor Co.

• Decision Date: 13 May 1980
• Docket Number: No. 79-1872,79-1872
• Parties: Sheryn Kautz FIETZER and Oward Kautz, Plaintiffs-Appellees, v. FORD MOTOR COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 281

622 F.2d 281

Sheryn Kautz FIETZER and Oward Kautz, Plaintiffs-Appellees, v. FORD MOTOR COMPANY, Defendant-Appellant.

No. 79-1872.

United States Court of Appeals Seventh Circuit.

Argued Dec. 6, 1979.

Decided May 13, 1980.

Paul E. Schwemer, Milwaukee, Wis., for defendant-appellant.

Peter S. Nelson, Appleton, Wis., for plaintiffs-appellees.

Before SWYGERT, BAUER and CUDAHY, Circuit Judges.

SWYGERT, Circuit Judge.

Defendant Ford Motor Company (Ford) appeals from a jury verdict finding the defendant eighty-five percent comparatively negligent for the injuries suffered by plaintiff Sheryn Kautz Fietzer when the Ford Mercury Comet which she was driving was struck from behind by an automobile driven by Douglas Hilker. ¹ The jury found Hilker was fifteen percent negligent for plaintiff's injuries. Ford seeks a new trial on the grounds that the trial court improperly restricted the reception of evidence on the issue of the comparative causation between Ford and Hilker and that the jury's allocation of causal negligence was unreasonably disproportionate. Additionally, Ford challenges the trial court's conduct of the voir dire proceedings and its method of computing the interest on the damage award. We reverse the judgment entered on the jury's verdict and remand the cause for a new trial.

I

The parties appear before us for the second time in this products liability case arising from a two-car collision that occurred more than ten years ago.

On the evening of October 4, 1969, Hilker was driving his car north on Highway 45, a two-lane, north-south highway between New London and Clintonville, Wisconsin. Fietzer, who was driving a Mercury Comet manufactured by Ford, was executing a left turn from a driveway on the west side of Highway 45 into the northbound lane of traffic when the Hilker car struck the Comet in the rear end. Upon impact, both cars flew into the air and Fietzer's automobile burst into flames. Among other injuries, Fietzer suffered burns to eighty percent of her body, the most serious ones caused by ignited gasoline in the passenger compartment.

Fietzer and her father Oward Kautz brought this diversity suit against Ford, alleging that the design of the fuel tank in the Comet was unreasonably dangerous. Plaintiff also had brought an action against Hilker, but settled. By the terms of the settlement, Hilker's liability to plaintiffs was disposed of and any right Ford might have to contribution from Hilker was cut off. Hilker's degree of responsibility for Fietzer's injuries, therefore, was an issue in the trial of the action against Ford only for the purpose of decreasing the amount of Ford's liability to plaintiffs to compensate for its loss of a right to contribution from Hilker. The jury, in the form of a special verdict, found Hilker negligent but that his negligence was not a cause of plaintiff's injuries. Rather, the jury made a finding that the Comet was dangerously defective and that plaintiff's injuries were caused solely by the defective condition in the product. Plaintiff was found not negligent. Ford appealed from the jury verdict maintaining that Hilker's negligence was, as a matter of law, a cause of plaintiff's injuries. In agreement with Ford, this court reversed the judgment entered on the verdict and remanded the case for a new trial on the limited issue of the comparative negligence of Hilker and Ford. Fietzer v. Ford Motor Co., 590 F.2d 215 (7th Cir. 1978) ("Fietzer I ").

On retrial, the jury found that Ford's negligence in causing the injuries was eighty-five percent and the remaining percentage of causal negligence was apportioned to Hilker. Damages were assessed against Ford in the amount of $398,907.71 (eighty-five percent of the verdict from the first trial). Additionally, seven percent post-verdict interest from the date of the verdict in the first trial was awarded to plaintiffs. This appeal followed.

II

The first issue presented by Ford on appeal is that the trial court committed prejudicial error by unreasonably restricting the voir dire examination. It is maintained that as a result of the trial court's limited questioning of the jury panel, Ford was denied the opportunity to inquire into areas which might have uncovered grounds for challenge for cause and was unable to exercise intelligently its peremptory challenges. Having examined the record, we are compelled to agree with Ford.

Rule 47(a), Federal Rules of Civil Procedure, permits the trial court to conduct the examination of jurors but requires that ". . . the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall by itself submit to the prospective jurors such additional questions of the parties or their attorneys as it deems proper." ²

It is well settled that the trial court has great discretion in determining what questions may be asked venirepeople. See generally 5A J. Moore, Federal Practice P 47.06. The substance of voir dire, however, is subject to the right of the parties to have an impartial jury. Courts have consistently held that the trial court, when endeavoring to preserve that right, should permit a reasonably extensive examination of prospective jurors so that the parties have a basis for an intelligent exercise of the right to challenge. In Kiernan v. Van Schaik, 347 F.2d 775 (3d Cir. 1965), a personal injury case, the court addressed the policy which supports probing voir dire examination:

A jury's impartiality may not be assumed without inquiry, as in the case of a judge. Jurors are drawn from the general body of the community for a short term of service, usually lasting a few weeks, and then return to their customary occupations with neither training nor traditions of impartiality. They must often be unaware of their own disqualification in specific cases, especially since the standards for jury service differ in various parts of the country. Litigants therefore have the right, at the least, to some surface information regarding the prospective jurors. Such information may uncover ground for challenge for cause. If it does not, it will be available in the intelligent use of the peremptory challenge, which is the antithesis of challenge for cause. The traditional right of peremptory challenge recognizes that matters of bias or prejudice may be sensed or suspected without possibility of proof, and therefore permits counsel to exercise his inarticulate instinctive judgment, which he need not, if he could, attempt to justify.

Id. at 779 (footnotes omitted).

Our court "has been zealous in its protection of probing voir dire." Beard v. Mitchell, 604 F.2d 485, 501 (7th Cir. 1979). In United States v. Lewin, 467 F.2d 1132 (7th Cir. 1972), a criminal case in which voir dire was conducted pursuant to Rule 24(a), Federal Rules of Criminal Procedure, ³ this court held that the trial court may abuse its discretion when limitations placed on the parameters of voir dire threaten to undermine the purpose for conducting an examination of prospective jurors. Specifically, we stated that the trial court "must exercise its discretion so as not to block the reasonable exploration of germane factors that might expose a basis for challenge, whether for cause or peremptory." Id. at 1138. And, in United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973), we held that the trial court has the affirmative duty to pose questions that go beyond what may bring out information that would disqualify the juror for cause. "Thus it is essential to explore the backgrounds and attitudes of the jurors to some extent in order to discover actual bias, or cause." Id. at 367, citing Kiernan v. Van Schaik, supra, 347 F.2d at 779. In its entirety, the examination must reveal inquiry adequate "to call to the attention of the veniremen those important matters that might lead them to recognize or to display their disqualifying attributes." United States v. Lewin, supra, 467 F.2d at 1138.

The trial court chose to conduct voir dire in this case. In addition to asking the prospective jurors certain stock questions such as name, age, address, occupation, spouse's occupation, level of education, and acquaintance with the attorneys involved in the case, the extent of the court's interrogation of the jurors was as follows.

1. Would the juror be available for a trial lasting one week or more?

2. Were any jurors hard of hearing?

3. Did they work for or have close dealings with Ford?

4. Whether the juror had had a claim for personal injuries either as the result of an automobile accident or any other kind of an incident?

5. Whether there was any reason whatsoever why the person could not sit as a juror and decide the case fairly and impartially based upon the evidence submitted?

6. Whether any juror worked on a swing shift or the night shift?

Additionally, the parties pursuant to local rules received questionnaires filled out by the jurors. ⁴ The questionnaires revealed information concerning the juror's job, education, health, criminal record, and vital statistics.

Ford requested the trial court to ask the jurors several additional questions which focused on the particular facts of the case. Those included whether any juror had been in a rear-end collision, whether any juror had been a witness to an accident involving fire, and whether any juror or member of his or her family had ever suffered burn injuries, whether any juror or member of his or her family had been involved in an automobile accident producing injury, whether any juror ever owned a Mercury Comet and his or her experiences with it, whether any juror had experience in engineering or automotive maintenance, and whether any juror was employed on a swing shift. With the exception of the last question, the court refused to inquire into those areas. The trial court also denied Ford's request to ask the jurors whether they...