Kutsugeras v. AVCO Corp.
| Decision Date | 01 September 1992 |
| Docket Number | 91-3092,Nos. 91-2966,s. 91-2966 |
| Parties | Prod.Liab.Rep. (CCH) P 13,292 Kent KUTSUGERAS, Kathleen Kutsugeras, Kurt Kutsugeras, a minor by Kenneth J. Quincey, his Guardian ad Litem, Plaintiffs-Appellees, Cross-Appellants, v. AVCO CORPORATION, a Delaware Corporation, Paul Revere Corporation, a Delaware Corporation, Textron, Incorporated, a Delaware Corporation, Allied Products Corporation, a Delaware Corporation, New Idea Corporation, a Delaware Corporation, Defendants-Appellants, Cross-Appellees, and Aetna Life Insurance Company, a Connecticut Insurance Corporation, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Lynn R. Laufenberg (argued), Mark Thomsen, Cannon & Dunphy, Milwaukee, Wis., for plaintiffs-appellants.
Frank M. Coyne (argued), Madison, Wis., for defendants-appellees AVCO Corp., Paul Revere Corp., Textron, Inc., Allied Products Corp. and New Idea Corp.
Joseph B. Tyson, Jr., Michael P. VanAlstine, Foley & Lardner, Milwaukee, Wis., for defendant-appellee.
Before BAUER, Chief Judge, RIPPLE, Circuit Judge, and BURNS, Senior District Judge. *
On November 12, 1986, Kent Kutsugeras was maimed in a dreadful accident on his brother-in-law's farm near Neosho, Wisconsin. At the time of the accident, Kutsugeras was picking corn for his brother-in-law with the aid of some powerful machinery, specifically an AVCO New Idea Model 323 corn picker that was pulled by a Model 4020 John Deere tractor. See Appendix. Power was supplied to the picker by means of a power take off ("PTO") unit running from tractor. A PTO on/off lever located inside the tractor's cab was the only way to engage or disengage power to the picker. There was no mechanism that would permit a person standing near the actual picking chains and rollers to turn off the picker.
Kutsugeras' injuries resulted from a bizarre series of events. Kutsugeras testified that, while he was driving the tractor with the picker operating, he felt the need to urinate. He stopped the tractor, keeping its engine idling while he dismounted from the cab. He did not disengage power to the picker. The picker's rollers and chains still were operating. Kutsugeras went into the corn in front of the tractor to relieve himself. When he heard the sounds of dogs barking and something crashing toward him through the corn, he moved nearer to the front of the picker believing that the noise of the picker would keep the dogs and their quarry--he suspected a deer--away from him.
As he turned to watch what he believed was a deer run past in the corn, a dog struck him on the legs from the rear. He recognized the dog that bumped him; it belonged to his brother-in-law. The bump from the dog caused Kutsugeras to fall. In falling, Kutsugeras' right hand became entangled in the picker's gathering unit. The picker's gathering chains caught his hand and pulled it into the snapping rollers. In an effort to gain leverage to yank his hand free, Kutsugeras brought one leg and then the other into the picker's gathering area. The gathering chains, however, caught first his right leg, then his left, and pulled them into the snapping rollers as well.
Kutsugeras testified that he was caught in the running machine for some time before a motorist passing on the highway adjacent to the field noticed him. The motorist shut off the machine and called for emergency services. Kutsugeras specifically testified that he was not attempting to unclog the picker when his hand became entangled. Nevertheless, certain emergency personnel, who spoke with Kutsugeras as they performed the rescue, testified that Kutsugeras explained the events leading up to his injury somewhat differently. At any rate, the lasting result of the accident is clear: the physicians treating Kutsugeras determined that it was necessary to amputate both legs approximately six inches below the knee and his right arm just above the wrist.
On October 2, 1989, Kutsugeras, his wife, and their son filed suit against defendants-appellants-cross-appellees AVCO Corporation, Paul Revere Corporation, Textron, Inc., Allied Products Corporation, New Idea Corporation, and defendant-appellee Aetna Life Insurance Company. Suffice to say that through a network of subsidiaries, and various asset sales and purchases, AVCO, Paul Revere, Textron, Allied, and New Idea Corporations (collectively, the "defendants" or simply "AVCO") all were engaged in the design, manufacture, assembly, distribution, or sale of the Model 323 corn picker. Because Aetna Life Insurance Company paid hospital and medical bills for Kutsugeras' treatment, it has a subrogation interest in this lawsuit. Because the citizenship of the parties are diverse and the amount in controversy exceeds $50,000, federal jurisdiction is premised upon 28 U.S.C. § 1332.
The complaint alleged that the "corn picker was defective and unreasonably dangerous at the time it was designed, manufactured, distributed, and sold in that it presented a foreseeable and unreasonable risk of injury to persons using the machine, including aggravation and enhancement of injuries in the event of foreseeable entanglement...." R.Doc. 1, Complaint p 20. Kutsugeras also claimed that AVCO was negligent "with respect to the design, manufacture Following Wisconsin common law, the district court submitted a special, two-tier verdict form to the jury. This special form required that the jury assess liability for Kutsugeras' injuries in two phases: the entanglement phase and the enhancement phase. The entanglement phase primarily involved injuries to Kutsugeras' right arm as a result of getting caught in the picker; the enhancement phase involved the aggravated injuries that were inflicted after those caused by the entanglement, specifically, the injuries to his legs.
distribution, and sale of the New Idea Model 323 corn picker in that it failed to exercise proper care with respect to, among other things, the design of the machine from a safety standpoint, including the failure to provide a means by which the machine could be stopped in an emergency by a person who accidentally became entangled...." Id. AVCO denied the allegations and the case was tried to a jury in April 1991
The jury found no causal negligence on the part of AVCO with respect to Kutsugeras' original entanglement in the picker. Notwithstanding that finding, the jury assigned 15% causal negligence to AVCO in the numerical comparison. In its answers to further questions in the special verdict, the jury found AVCO negligent in failing to provide an emergency stop on the picker that could be used by someone, like Kutsugeras, who became entangled in the machine. The jury found that the absence of an emergency stopping device was a cause of Kutsugeras' enhanced injuries, and rendered the picker defective and unreasonably dangerous. The jury also found that Kutsugeras was not negligent after his original entanglement. Nevertheless, in the numerical comparison, the jury assessed 25% negligence to Kutsugeras with respect to his enhanced injuries.
Because Wisconsin's comparative negligence scheme forbids recovery if the plaintiff is more negligent than the defendant, the district court was not concerned about the jury's first inconsistent finding--i.e., that the jury found AVCO not negligent with respect to Kutsugeras' getting caught in the machine, but still assigned AVCO 15% of the causal negligence for the initial injuries resulting from entanglement. The jury's second inconsistency--that Kutsugeras was not negligent with respect to his enhanced injuries, but still was assessed 25% in the numerical comparison, however, was more disconcerting. That 25% negligence on the part of Kutsugeras meant that full damages for his enhanced injuries would be reduced by one-quarter.
After discussing the matter with counsel, the district court sent the jury back for further deliberation. The jury then crossed out the 75% AVCO/25% Kutsugeras negligence comparison for enhanced injuries and instead found that the absence of an emergency stopping device did not render the picker defective and unreasonably dangerous to users. The jury did not disturb, however, its initial finding that AVCO was negligent in the design of the picker by not providing a means to stop the machine in an emergency. The jury then apportioned 67% of Kutsugeras' injuries to enhancement. By the remaining questions on the special verdict form, the jury totaled $4,200,000 in damages to the Kutsugeras, his wife, and their son for various aspects of injury. The district court entered judgment on the verdict, awarding Kutsugeras 67% of the total damages. AVCO appealed.
The critical issue on appeal involves the bifurcation of injuries in the special verdict. As we have discussed, the special verdict form sent to the jury separated Kutsugeras' cause of action into two sections, "original entanglement" and "enhanced injuries." AVCO argues that this two-tier verdict form illegitimately splits Kutsugeras' single cause of action into two claims, thereby immunizing him from responsibility for his enhanced injuries. When AVCO raised this objection at trial, the district court dismissed it:
With respect to the objection to the entanglement issue, I realize that counsel like many other students of the law have objected to the enhancement theory. However, it has been applied over a number of years to automobile and I believe Transcript of Proceeding at Trial ("Trial Trans.") at 1043. On appeal, AVCO contends that the case upon which the district court relied should not have been followed and urges us to find that the submission of the two-tier verdict form, instead of a single negligence comparison between AVCO and Kutsugeras for all of his injuries, was erroneous.
malpractice cases. The Court is of the opinion that the highest court, which in this case is the Appellate Court [of Wisconsin], did approve that in a case
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