Gabrielson v. K-Mart Corp., K-MART
| Decision Date | 31 March 1994 |
| Docket Number | K-MART,No. 93-0777,93-0777 |
| Citation | 516 N.W.2d 20,183 Wis.2d 430 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. David GABRIELSON, Sandra Gabrielson, Lance Gabrielson, and Karen Gabrielson, minors by their Guardian ad Litem, James R. Long, Plaintiffs-Appellants, v.CORPORATION, Defendant-Respondent, ABC INSURANCE COMPANY, EXEL ARMS OF AMERICA, INC., DEF Insurance Company, Defendants, James L. Felbinger, Defendant-Respondent, AETNA CASUALTY & SURETY CO., Defendant, Lanber ARMAS, S.A., Defendant-Respondent, GHI INSURANCE COMPANY, and Waupaca County Department of Human Services, Defendants. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.
David Gabrielson, his wife and children (we refer to them collectively as "Gabrielson"), appeal from judgments dismissing their products liability action against the manufacturer and seller of a shotgun that exploded when fired, causing David Gabrielson severe and permanent injuries. They also appeal from an order denying their postverdict motions.
Gabrielson was an avid and experienced hunter and gun enthusiast and owned many weapons. He was injured when his shotgun exploded while being fired by a friend standing next to him. On that day, as he often did, Gabrielson was using reloaded shells that he had prepared himself on a reloading machine he had owned and used for many years.
Gabrielson sued all parties in the shotgun's chain of distribution. He did not sue the manufacturer of the reloading machine, Lee Precision, Inc.
By the time of trial the only remaining defendants were Lanber Armas, S.A., who had manufactured the shotgun, and K-Mart Corporation, who sold the gun to Gabrielson. The case was tried solely on the theory of strict liability, and the jury returned a verdict finding that the gun was defective and unreasonably dangerous and assessed substantial damages. The jury also determined, however, that Gabrielson was negligent and apportioned sixty percent of the total causal negligence to him, which resulted in his recovering no damages. The trial court denied Gabrielson's motion to change the jury's answers and entered judgment dismissing the action. This appeal followed.
Gabrielson argues first that the trial court erred when it failed to include questions in the special verdict inquiring into the possible negligence of the reloading machine manufacturer, Lee Precision. He also contends that the court erred in refusing to allow an expert witness to testify as to the expertise of a deceased acquaintance of Gabrielson, who assisted Gabrielson in setting up the reloading machine, and in similarly disallowing Gabrielson's testimony as to what the acquaintance may have said to him during the set-up process. He claims that this evidence was highly relevant to the issue of his contributory negligence. Finally, he contends that the award of damages to his family for loss of society and companionship was inadequate.
We conclude that the trial court properly declined to include Lee Precision in the verdict and that it did not erroneously exercise its discretion in sustaining defense objections to the admission of the proffered evidence. Because we affirm on these issues, we need not consider Gabrielson's challenge to the damage award. Other facts will be discussed in the body of the opinion.
The supreme court has held that, because "jur[ies] must have the opportunity to consider the negligence of all parties to [a] transaction," they should be allowed to assess and apportion the negligence of all such parties, regardless of whether the parties are named as defendants in the action. Connar v. West Shore Equip. of Milwaukee, Inc., 68 Wis.2d 42, 44-45, 227 N.W.2d 660, 662(1975). The test for inclusion is whether "there [is] evidence of conduct which, if believed by the jury, would constitute negligence on the part of the person or other ... entity inquired about." Id. at 45, 227 N.W.2d at 662.
The reason for the rule was explained by the court in Hauboldt v. Union Carbide Corp., 160 Wis.2d 662, 681, 467 N.W.2d 508, 515(1991): "The reason that the jury should be given an opportunity to consider the negligence of all persons involved is that adding in the causal negligence of the omitted tort-feasor(s) may affect the amount of recovery by the injured party." Thus, in Connar, the court held that, where there was evidence of a nonparty's negligence, it was reversible error not to include the nonparty in the verdict because the jury may have apportioned the negligence differently had the omitted party been included in the questions. Connar, 68 Wis.2d at 46, 227 N.W.2d at 663.
While it is well settled that the form of the special verdict is committed to the discretion of the trial court, Meurer v. ITT Gen. Controls, 90 Wis.2d 438, 445, 280 N.W.2d 156, 160 (Ct.App.1991). It is equally well settled that we review such questions de novo. Id. at 454, 163 Wis.2d 439, 471 N.W.2d at 528.
Gabrielson argues that the trial court should have included Lee Precision in the verdict because there was ample evidence presented regarding Lee's negligence in preparing the instruction manual accompanying his reloader and in manufacturing the device. He points to the following evidence: The "load capacity chart" available to Gabrielson when he purchased the reloader in 1976 or 1978 indicated that 21.4 grains was the maximum load that would be dispensed into a shell casing using a .189 bushing, the size used by Gabrielson to load the shell that was in the shotgun when it exploded. 1 Gabrielson compares that to the chart accompanying the 1992 model, which indicates that the machine is capable of dispensing loads of 21.9 grains with a .189 bushing--a half-grain higher than that specified in the earlier instructions. And on one of several tests performed on Gabrielson's reloader by his own expert, Stanton Berg, the machine dropped a load of 21.9 grains. Gabrielson also points to the testimony of Edward Matunas, an expert witness for the defense, who also experimented and measured the "powder drops" of the reloader. According to Matunas's tests, the amount of powder "dropped" reached as high as 24.2 grains. Matunas also testified that he tested the pressure levels of several shells believing that, at the levels of powder charges reported by Berg, the pressure would be "dangerously" high. Matunas was also critical of Lee's instruction manual and stated that the reloading machine "could have contributed to the accident."
Citing Zintek, K-Mart argues that a nonparty should not be included in the verdict where "there was no expert testimony to a reasonable degree of certainty " that the nonparty had breached the applicable standard of care. (Emphasis in original K-Mart argues that that rule is applicable in this case.
Zintek, however, was a medical malpractice action, and, as we recognized in our opinion in that case, it is well settled that "medical negligence cannot be established without expert testimony." Zintek, 163 Wis.2d at 455, 471 N.W.2d at 528 (emphasis in original). Indeed, we noted in Zintek that Connar "did not involve allegations of professional negligence," and that "[t]he Connar standard [for determining whether a nonparty should be included in the verdict], while applicable to any tort action, takes on a different look in the medical malpractice setting" where, "[w]ithout expert testimony, the jury ... has no standard which enables it to determine whether a [physician] failed to exercise the [required] degree of care...." Id. And, to the extent K-Mart is arguing that the experts' testimony should be disregarded because they did not state their opinions to the required degree of professional certainty, Gabrielson points out that during the trial defense counsel stipulated, presumably as a time-saving measure, that the opinions of all experts testifying in the case would be considered as being stated to a reasonable degree of professional certainty.
K-Mart also argues that, except in cases in which a res ipsa loquitur instruction is appropriate--and we agree that this is not such a case--expert testimony is necessary to establish that a product is defective, unreasonably dangerous and a cause of the accident. It argues that Gabrielson elicited no expert testimony that the reloader manufacturer was negligent or that the reloader was a cause of the accident.
As a general rule, expert testimony is permitted in cases where it will "assist the trier of fact to understand the evidence." Section 907.02, STATS.; State v. Whitaker, 167 Wis.2d 247, 255-56, 481 N.W.2d 649, 652(Ct.App.1992). However, "expert testimony is required only if the issue to be decided by the jury is beyond the general knowledge and experience of the average juror." Whitaker, 167 Wis.2d at 255, 481 N.W.2d at 652 (emphasis in original).
Even so, the evidence offered by Gabrielson as justifying Lee's inclusion in the verdict is not the type of evidence requiring expert testimony under the standards just discussed. The evidence relating to the instruction manuals and the fact that the machine may have been capable of discharging powder in excess of the amounts stated in the manuals--and the possible dangers involved in overloading--do not, in our view, involve matters beyond the general knowledge or understanding of average jurors. Whether that evidence warrants inclusion of Lee in the verdict is another question, however.
First, as to the claimed negligence in preparing the manual accompanying Gabrielson's machine--which, as indicated, is based on the fact that the 1992 manual stated a maximum powder drop one-half grain greater than that stated in the manual available when Gabrielson purchased his reloader--K-Mart asserts that that evidence provides "no basis ... to assume that the older manual was wrong, and the newer...
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