Hansen by Llaurado v. Crown Controls Corp., 92-3214

• Decision Date: 21 October 1993
• Docket Number: No. 92-3214,92-3214
• Citation: 181 Wis.2d 673,512 N.W.2d 509
• Parties: , Prod.Liab.Rep. (CCH) P 13,768 Mark L. HANSEN, Carol Hansen, Melissa Hansen, a minor, By her Guardian ad Litem, Thadd J. LLAURADO, Aetna Casualty & Surety Company, Plaintiffs-Respondents, v. CROWN CONTROLS CORPORATION, a foreign corporation, and International Insurance Company, Defendants-Appellants. d . Oral Argument
• Court: Wisconsin Court of Appeals

Page 509

512 N.W.2d 509

181 Wis.2d 673, Prod.Liab.Rep. (CCH) P 13,768

Mark L. HANSEN, Carol Hansen, Melissa Hansen, a minor, By her Guardian ad Litem, Thadd J. LLAURADO, Aetna Casualty & Surety Company, Plaintiffs-Respondents, v. CROWN CONTROLS CORPORATION, a foreign corporation, and International Insurance Company Defendants-Appellants. ^d

No. 92-3214.

Court of Appeals of Wisconsin.

Oral Argument Oct. 21, 1993.

Opinion Released Dec. 7, 1993.

Opinion Filed Dec. 7, 1993.

Before SULLIVAN, FINE and SCHUDSON, JJ.

FINE, Judge.

Crown Controls Corporation and International Insurance Company, Crown's excess-liability insurer, appeal from a judgment against them. The judgment was entered on a jury verdict awarding damages to the plaintiffs for injuries sustained by Mark L. Hansen when the dockboard on which he was driving a forklift truck collapsed. Crown, which manufactured the forklift truck, asserts that the trial court erred: (1) in formulating its jury instructions and the special verdict; (2) by not ordering a new trial because of alleged juror misconduct; and (3) by not ordering a new trial because of the alleged perverse nature of the verdict. We affirm. ¹

I.

A dockboard is a metal plate that bridges the gap between a loading dock and a truck trailer so that goods may be moved between the loading dock and the trailer. Hansen was injured when the dockboard involved in this case collapsed. The forklift truck he was operating at the time required the operator to stand rather than sit. When the dockboard collapsed, the forklift tumbled off. Hansen's left leg, which did not remain within the safety of the cab compartment, was crushed by the falling forklift. The plaintiffs claimed that Crown was at fault because the forklift cab did not have a door, which, they argued, would have protected Hansen's leg from injury. ²

The trial court accepted plaintiffs' argument that the damage to Hansen's leg should be treated as an "enhanced injury" that was distinct from the injuries that he received from the fall alone. Accordingly, the trial court, over Crown's objections, instructed the jury that if it determined that Crown and either of the parties responsible for the dockboard were at fault in connection with their products, the jury should decide the percentage each party's fault contributed to the so-called "enhanced injury," the injury to Hansen's leg. ³ Although the jury determined that both of the parties responsible for the dockboard were at fault, the jury found that Crown alone was responsible for Hansen's leg injury.

II.

A. "Enhanced Injury" Theory.

Crown argues that by submitting to the jury plaintiffs' "enhanced injury" theory, the trial court improperly "prevented an allocation of fault among all substantial factors leading to [Hansen's] injuries." Crown's contentions of error are without merit.

A jury's specific apportionment of causation for separately-produced injuries makes sense and is consistent with Wisconsin law.

Liability based on enhanced injury has been recognized in Wisconsin cases,.... These include second collision or crashworthiness cases, seat-belt cases, and successive tort-feasors in medical malpractice cases. In all these situations, the successive tort-feasor was alleged to have enhanced or aggravated the plaintiff's injuries, but was not alleged to have caused the initial accident or damage. In these situations, the successive tort-feasor is not jointly liable for all the injuries to the claimant, but only for those injuries caused by the tortious conduct over and above the damage or injury that would have occurred as a result of the accident absent the successor tort-feasor's conduct.

Farrell v. John Deere Co., 151 Wis.2d 45, 60-61, 443 N.W.2d 50, 54-55 (Ct.App.1989) (footnotes omitted).

In Farrell, the plaintiff was first injured when his arm was drawn into a corn picker. Id., 151 Wis.2d at 56, 443 N.W.2d at 53. Farrell's legs and other arm were then pulled into the machinery. Ibid. In his action against Deere, the manufacturer of the corn picker, Farrell claimed two separate mechanisms of injury. First, he claimed that Deere's failure to equip the corn picker with an interlock device caused his initial entanglement. Id., 151 Wis.2d at 57, 443 N.W.2d at 53. Second, he claimed that the injuries to his legs and other arm were caused by Deere's failure to outfit the picker with a device that would stop the machine in an emergency. Ibid. Over Deere's objection that there was but one occurrence, the trial court permitted the jury to consider the legs-and-other-arm claim, the so-called "enhanced-injury" claim, separately from Farrell's entanglement claim. Id., 151 Wis.2d at 61, 443 N.W.2d at 54. This allowed the jury to compare Farrell's contributory negligence with Deere's fault on each claim, rather than as to the occurrence as a whole. Id., 151 Wis.2d at 57-58, 443 N.W.2d at 54-55. We affirmed, seeing "no reason in logic or law why application of enhanced injury law should be precluded merely because the successive tort-feasor is alleged also to have tortiously caused the initial accident." Id., 151 Wis.2d at 62, 443 N.W.2d at 55. ⁴

A defendant is not liable for its negligence unless that negligence was a substantial factor in producing plaintiff's injury as a natural and probable consequence. See Johnson v. Misericordia Community Hosp., 97 Wis.2d 521, 561, 294 N.W.2d 501, 521 (Ct.App.1980) ("[O]ne who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences of an act although an act of a third person contributes to the result."), aff'd, 99 Wis.2d 708, 301 N.W.2d 156 (1981). Stated another way, although in a metaphysical sense all things have a cause, the "substantial factor" test denotes something more, namely, "that the defendant's conduct has such an effect in producing the harm as to lead the trier of fact, as a reasonable person, to regard it as a cause, using that word in the popular sense." Merco Distrib. Corp. v. Commercial Police Alarm Co., Inc., 84 Wis.2d 455, 458-459, 267 N.W.2d 652, 654 (1978); see also Austin v. Ford Motor Co., 86 Wis.2d 628, 639, 273 N.W.2d 233, 237-238 (1979) (reason for one-car accident not necessarily "cause" of driver's death resulting from accident).

This case, even more than Farrell, concerns separate acts of alleged tortious conduct--the acts of the parties responsible for the dockboard were separate from anything Crown did or failed to do in connection with the forklift truck. Although it is true that if the dockboard had not collapsed, Hansen's leg would not have been injured, the jury was appropriately told that it could not find that the fault, if any, of those responsible for the dockboard was a "substantial factor" in causing Hansen's leg injury unless Crown proved "to a reasonable certainty, by the greater weight of the credible evidence" that the fault "had a substantial influence in producing" that injury. See Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis.2d 338, 354-359, 360 N.W.2d 2, 9-11 (1984) (not plaintiff's burden to prove what his injuries would have been if defendant was without fault). ⁵ Crown had ample opportunity to persuade the jury that the dockboard collapse was a substantial factor (as opposed to an in substantial factor) in Hansen's leg injury. It failed. ⁶ The trial court's decision to permit the jury to decide that issue is consistent with the law in this state. ⁷

In an argument related to its contention that the trial court should not have submitted the case to the jury on an "enhanced injury" theory, Crown suggests that the wording of the trial court's instructions required the jury to find, in effect, that the fault of those responsible for the dockboard was not a cause of Hansen's leg injuries. As pertinent to this argument, the trial court instructed the jury:

The Hansens allege that Crown was negligent and put into the commerce stream an unreasonably dangerous defective forklift. They further allege that this negligent conduct was a substantial factor in causing Mr. Hansen's injuries to be far greater or enhanced than they would have been had Crown not been negligent. These allegations are all denied by Crown.

The burden of proof on these allegations is upon the Hansens to convince you to a reasonable certainty by the greater weight of the credible evidence that "yes" should be your answers as to questions one through four. ⁸

Conversely, Crown alleges that others were responsible for these enhanced injuries to Mr. Hansen. Specifically, Crown asserts that the dock board [sic ] was an unreasonably dangerous, defective product and that [those responsible for the dockboard], [Hansen's employer] and/or Mark Hansen were negligent and that their respective negligent conducts were singularly or jointly substantial factors in causing Mr. Hansen's injuries to be far greater or enhanced than they would have been had the respective inquiree not been negligent. These allegations are all denied by the Hansens.

The burden of proof on these allegations is upon Crown to convince you to a reasonable certainty by the greater weight of the credible evidence that "yes" should be your answers as to questions five through fourteen. ⁹

The damage questions in the verdict form submitted to the jury by the trial court similarly focussed only on the so-called "enhanced injuries" sustained by Hansen.

Crown had requested jury instructions and a special verdict that focussed on Hansen's "injuries" as a whole. Thus, at the hearing during which the trial court and the parties summarized the instruction conference, Crown argued that the jury should be "simply asked to apportion responsibility among all persons and entities who were substantial factors in bringing about Mr. Hansen's injuries of whatever kind and nature." ¹⁰ The plaintiffs, on the other hand, suggested dividing the jury's task into two parts. The pivotal causation question as proposed by the...