Johnson v. Serra

• Decision Date: 30 June 1975
• Docket Number: 74-1760,Nos. 74-1721,s. 74-1721
• Citation: 521 F.2d 1289
• Parties: Janet R. JOHNSON, Trustee, Plaintiff-Appellee, v. Richard SERRA, et al., Defendants-Appellees, and Milgo Industrial, Inc., a corporation, and Milgo Art(s) Systems, Inc., Defendants and Third-Party Plaintiffs-Appellants, v. Pratt's Express Company, Third-Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1289

521 F.2d 1289

Janet R. JOHNSON, Trustee, Plaintiff-Appellee, v. Richard SERRA, et al., Defendants-Appellees, and Milgo Industrial, Inc., a corporation, and Milgo Art(s)

Systems, Inc., Defendants and Third-Party Plaintiffs-Appellants, v. Pratt's Express Company, Third-Party Defendant-Appellee.

Nos. 74-1721, 74-1760.

United States Court of Appeals,

Eighth Circuit.

Submitted March 10, 1975.

Decided June 30, 1975.

John E. Castor, and Robert J. McGuire, Minneapolis, Minn., for appellants, Milgo Art(s) Systems, Inc., and Milgo Industrial, Inc.

Charles T. Hvass, Minneapolis, Minn., for appellee, Janet R. Johnson.

Robert M. Wattson, Minneapolis, Minn., for appellee, Richard Serra.

Graham Heikes, St. Paul, Minn., for appellee, Pratt's Express Co.

Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired, ^* and LAY, Circuit Judge.

GIBSON, Chief Judge.

Defendants Milgo Industrial, Inc., a steel fabricator, and Milgo Art(s) Systems, Inc., its broker, ¹ fabricated a massive steel sculpture using plans developed by defendant Weidlinger Engineering from a design of defendant artist Richard Serra. Serra's "Sculpture No. 3" consisted of two 21/4 inch thick, 8 foot square steel plates weighing 5,212 pounds each, standing in slots in a 7-inch diameter, 121/2 foot long cylindrical steel floor bar. Plaintiff's husband, Raymond Johnson, was a rigger-mover for the third party defendant, Pratt's Express Company, who contracted to assemble the sculpture at the Walker Art Center in Minneapolis. Johnson was killed November 18, 1971, when one of the plates broke loose from its support and fell on him. Plaintiff brought this diversity suit against the above defendants under the Minnesota wrongful death statute, Minn. Stat. § 573.02 (1971).

The case was tried to a jury which found Serra and Weidlinger free of negligence. However, it determined that Milgo and Pratt's were negligent and apportioned negligence between them at 85 percent and 15 percent respectively under Minnesota principles of comparative negligence. The jury awarded $505,092 in damages. The District Court granted judgment to Pratt's on Milgo's third party complaint despite the jury's finding that Pratt's was 15 percent causally negligent.

Milgo contends on appeal that (1) despite negligent fabrication it is not liable for Johnson's death because of Pratt's superseding negligence in failing to follow written assembly instructions; (2) the admission of expert economic testimony as to the impact of future inflation on damages was error, causing the jury to return an excessive verdict; and (3) the District Court's denial of contribution or reduction of the judgments against Milgo in view of Pratt's 15 percent comparative negligence was violative of due process. We affirm the judgment of liability but reverse and remand for a remittitur or new trial solely on the issue of damages.

The fatal sculpture was designed to convey a precarious "house of cards" appearance through arrangement of its large steel plates, although the plates were designed to be firmly and safely connected when assembled so that people could walk around and between them. The primary notched support bar was designed by Weidlinger to be made from solid steel and was intended to be able to safely accommodate plates four times the weight of those actually used.

Milgo, however, because of scheduling difficulties, did not cut the notches into the bar with heavy machinery but instead flame-cut large sections through the bar and welded the remaining pieces to form notches. This considerably lessened the tensile strength of the support bar. Additionally, the plaintiff offered proof that Milgo's notch-welds were defective and deceptively camouflaged with rust to make the support bar appear solid as shown in the plans. Milgo had fabricated two prior Serra sculptures using the same technique without difficulty or objection.

Serra's "Sculpture No. 1" was erected by Pratt's at the Walker Art Center without incident six months prior to the accident, using the same crew of which Johnson was a member. The Weidlinger assembly instructions called for the plates of both sculptures to be braced during assembly and for shims to be inserted into the support slots to hold the plates in place until connected to each other. No plate braces were used by the Pratt's crew on either occasion. On the second occasion the crew had difficulty positioning the plates to touch each other and chose to further disregard the instructions by removing shims from the slot holding one of the plates. This was done in order to shift the plate to its proper position so that both plates would meet to form the apex of a triangle. The plate left standing free fell when one of Milgo's defective slot-welds failed. The jury apportioned negligence for the accident 85 percent to Milgo's defective welds in the base of the sculpture and 15 percent to Pratt's failure to observe suggested precautions in assembly.

I. Proximate Causation.

Milgo seeks to avoid all liability for the negligently constructed support bar under the doctrine of superseding intervening cause. It claims Pratt's foreman's negligent failure to follow the Weidlinger assembly instructions was the sole proximate cause of the accident or, alternatively, that the court should have submitted the causation issue to the jury by instructing on superseding or intervening cause. It argues that if both plates had been braced and shimmed as provided in the instructions, ² the fatal steel plate could not have fallen, even assuming Milgo's notch-welds were faulty.

We believe there was sufficient evidence from which the jury could find that the defective rewelding of the support bar was an ongoing continuous cause that combined with Pratt's negligence to bring about the accident. ³ Pratt's slight (15%) negligence did not break the chain of causation to relieve Milgo of liability.

A superseding cause is an intervening act of a third person that cuts off the original actor's liability for harm to another which his antecedent negligence was a substantial factor in bringing about. Restatement (Second ) of Torts § 440 (1965). The Minnesota courts have discussed superseding cause as a question of continuation of the duty owed by the original defendant to the injured plaintiff:

(W)as the duty of the first wrongdoer a continuing one or was it something that had come to rest? If it was a continuing duty, the first wrongdoer would not be relieved from the consequences of his negligence merely because another concurring act of negligence came into play to bring about the result.

Mikes v. Baumgartner, 277 Minn. 423, 430, 152 N.W.2d 732, 737 (1967).

For Pratt's negligence to supersede that of Milgo under Minnesota law, four elements must have been satisfied: (1) its effects must have occurred after the effects of Milgo's negligence; (2) it must not have been brought about by Milgo's original negligence; (3) it must have actively worked to bring about a result that would not otherwise have followed from Milgo's original negligence; and (4) it must not have been reasonably foreseeable by Milgo. Kroeger v. Lee, 270 Minn. 75, 78-79, 132 N.W.2d 727, 729-30 (1965); See Restatement (Second) of Torts §§ 442B and 447(a) (1965).

In the instant case all four elements are missing in varying degrees. Milgo's negligence preceded Pratt's but was continuous and ongoing. Its effects were concurrent with the effects of Pratt's lesser negligence. The accident would likely have followed from Milgo's negligence alone. Moreover, Pratt's negligence was reasonably foreseeable by Milgo, as was the resulting accident. Thus, Milgo's negligence was a direct and concurring cause of the fatal accident and it is not relieved of liability by Pratt's lesser culpability.

II. Expert Economic Testimony on Future Inflationary Trends.

Milgo challenges the admission of plaintiff's expert economic testimony projecting future inflationary trends to estimate the decedent's lost future earnings. Milgo recognizes that expert economic testimony as to lost future earnings is generally admissible, but contends that plaintiff's expert, Dr. Edward M. Foster, Associate Professor of Economics at the University of Minnesota, led the jury to return an excessive verdict. Milgo argues that the jury speculated on unfounded assumptions concerning possible future inflation in place of calculating damages on presently known facts.

Plaintiff responds that sufficient foundation was laid for the testimony and that it was necessary to help the jury assess economic factors affecting the measure of damages. ⁴ Moreover, she argues, defendants had ample opportunity to cross-examine Dr. Foster more thoroughly and to present their own counter experts but failed to do so. While the latter contention may have merit, our task is limited to determining whether the trial court abused its discretion in admitting Dr. Foster's testimony as relevant on the issue of damages or that the verdict is otherwise excesive. Krall v. Crouch Brothers, Inc., 473 F.2d 717, 719 (8th Cir. 1973). We believe the court did abuse its discretion in admitting Dr. Foster's testimony as it was too speculative and conjectural, thus lacking sufficient probative value to outweigh the danger that it would lead the jury to assess damages on an improper basis. ⁵ Riha v. Jasper Blackburn Corp., 516 F.2d 840 (8th Cir. 1975); Bach v. Penn Central Transportation Co., 502 F.2d 1117 (6th Cir. 1974).

Decedent Johnson, age 34, was survived by his wife, age 36, and four children, age 13 and under. Although he wore a hearing aid, he was otherwise in good health at the time of his death. He was a member of the Teamsters Union, trained in auto mechanics at a vocational high school, and worked as a rigger-mover for Pratt's for nine years prior to his death. According to plaintiff's economic expert, Johnson would have earned $18,516 from all sources in 1971, the year of his death. The jury was...