Morden v. Continental AG

Decision Date16 June 2000
Docket NumberNo. 98-0073.,98-0073.
Citation235 Wis.2d 325,611 N.W.2d 659,2000 WI 51
PartiesChristine MORDEN, Plaintiff-Respondent-Cross-Appellant-Petitioner, Thomas MORDEN, Plaintiff-Respondent-Petitioner, CITY OF MILWAUKEE, Wisconsin Health Organization and Compcare, Plaintiffs, v. CONTINENTAL AG, Defendant-Appellant-Cross-Respondent, MR. P'S IDEAL TIRES CORPORATION, Defendant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-cross appellant-petitioner and the plaintiff-respondent-petitioner there were briefs by Robert A. Slattery, Alan E. Gesler, and Slattery & Hausman, Ltd., Waukesha, and M. Nichol Padway and Padway & Padway, Ltd., Milwaukee, and oral argument by Robert A. Slattery.

For the defendant-appellant-cross respondent there was a brief by Frank J. Daily, Francis H. LoCoco, Daniel J. LaFave and Quarles & Brady, LLP., Milwaukee, and oral argument by Frank J. Daily.


Christine and Thomas Morden (the Mordens) seek review of an unpublished, per curiam decision of the court of appeals2 that reversed a judgment of nearly $7 million entered in their favor by the Circuit Court for Milwaukee County, Francis T. Wasielewski, Judge. The circuit court ordered the judgment after a jury found Continental AG (Continental) negligent in the design or manufacture of two mud and snow tires mounted on the rear of the Mordens' vehicle.

¶ 2. This action arose from an accident in which Christine Morden suffered spinal cord injuries that rendered her a quadriplegic. In March 1991 Christine was traveling with her family to a Florida vacation in a Volkswagen (VW) Vanagon. She and her husband, Thomas, had shared the driving responsibilities during the course of the 23-hour drive from Milwaukee. Shortly before entering Florida, Christine took over at the wheel. When the Vanagon crossed an overpass, the Mordens felt a dip in the road and heard a pop. They assumed that their tires had blown out. Christine Morden lost control of the Vanagon. The Vanagon rolled over onto the grass median, landing on its left side. The roof of the vehicle crushed, and Christine Morden was not able to move.

¶ 3. The Mordens pursued both negligence and strict liability claims against Continental for the testing, design, and manufacture of the rear tires. The Mordens also sought recovery from VW, the manufacturer of the Vanagon, Ernie von Schledorn Imports, Inc. (EvS), the dealer that serviced the Vanagon, and Mr. P's Ideal Tire Corp. (Mr. P's), the retailer that sold the tires to the Mordens. Less than two weeks before the jury trial began, the Mordens reached an agreement with VW, under which the Mordens received a settlement of $500,000 in exchange for a covenant not to sue VW.

¶ 4. After a four-week trial, the jury unanimously found Continental negligent in the design or manufacture of the tires. It also determined that Continental was strictly liable for producing tires that were unreasonably dangerous. The circuit court, however, found the strict liability verdict defective because the same 10 jurors did not agree on answers to the questions relating to strict liability and damages. The jury also concluded that Christine Morden was negligent in the operation of the vehicle and that her negligence was a cause of the accident. Although the jury decided that Thomas Morden was negligent in the maintenance or selection of the tires, it answered that Thomas Morden's negligence was not a cause of the accident. The jury determined that Mr. P's and EvS were not negligent. The jury did not hear evidence about the covenant-not-to-sue agreement with VW, and therefore the court submitted no question about VW's negligence to the jury. The jury awarded $10,467,408 in damages to Christine Morden and $1,237,830 to Thomas Morden. It also apportioned 50 percent of the causal negligence to Continental and the other 50 percent to Christine Morden.

¶ 5. The circuit court approved the jury's verdict, with the exception of the strict liability determination, and entered a judgment on the Mordens' negligence claim. Taking into account the 50 percent negligence allocated to Christine and adding additional costs and interest, the circuit court ordered that Continental pay $6,206,699.91 to Christine Morden and $636,328.04 to Thomas Morden.

¶ 6. Continental appealed. The court of appeals reversed, holding that the evidence presented at the trial was not sufficient to maintain the jury's finding that Continental was negligent. The court concluded that the Mordens had not proved that Continental breached a duty of care to them. The court reasoned that the Mordens failed to present evidence that Continental knew or should have known the design or manufacture of the tires was unsafe.

¶ 7. We frame four issues in this case. First, the Mordens ask this court to address numerous questions underlying the broad issue of whether the evidence offered at trial was sufficient to sustain the jury's finding that Continental was negligent in the design or manufacture of the tires. Second, the Mordens would like us to determine whether the jury returned a defective verdict for the strict liability claim. The Mordens present this second issue as an alternative to the first and ask us to consider it only if we affirm the court of appeals on the negligence claim. Third, the Mordens propose that this court revise the rules of appellate procedure to prevent the court of appeals from filing per curiam, unpublished decisions in complex cases that reverse judgments entered after a jury verdict. Fourth, in its cross-response, Continental maintains that the circuit court erred when it did not advise the jury about the covenant not to sue negotiated between VW and the Mordens. Continental argues that the exclusion of this evidence prevented it from receiving a fair trial. Consequently, Continental asks that we grant its request for a new trial if we reverse the decision of the court of appeals.

¶ 8. We conclude that the evidence presented at trial was sufficient to sustain the jury's finding that Continental was negligent. Under a reasonable view of this record, we find credible evidence to support the determination of the jury. Accordingly, we reverse the court of appeals. Because we decide this case based on this first issue, we do not reach the Mordens' second, alternative issue relating to the validity of the strict liability verdict. Similarly, we do not address the third issue pertaining to the scope of per curiam opinions because our decision today reverses the decision of the court of appeals. For the fourth issue, we hold that the circuit court appropriately exercised its discretion when it declined to admit the evidence of the covenant not to sue. We also find a new trial is not warranted because Continental has not shown that the real controversy at issue was not tried or that the trial resulted in a miscarriage of justice.


¶ 9. The record in this case is extensive and reflects the protracted and acrimonious nature of the litigation. Although the underlying facts are not in dispute, the parties challenge the inferences and conclusions drawn from those facts.

¶ 10. On March 21, 1991, Christine and Thomas Morden left Milwaukee in their 1985, four-cylinder, VW Vanagon with two of their children, Melissa and Matthew, for a spring vacation in Florida. They had made this trip about 15 times before in the years between 1977 and 1990, usually timing the vacation so that it would coincide with the Easter holiday. The Mordens hoped to spend one week to ten days in Bonita Springs, a Gulf-side location where their parents have cottages.

¶ 11. The Mordens began the trip at about 6:00 p.m. on the Thursday preceding Easter. Christine worked as a daycare provider, and the Mordens waited to depart until the client parents had picked up their children at the end of the day. Thomas returned from his job at 8:00 a.m. that morning after completing a 24-hour shift as a firefighter for the Milwaukee Fire Department. Neither he nor Christine slept during the day of the departure, but Thomas testified that he was not tired and that he typically was able to sleep at work during an 11-hour period between fire calls. Each Morden expected to sleep during those portions of the trip when the other drove.

¶ 12. The Mordens planned to drive straight through to their Florida destination, taking turns at the wheel in 200-mile shifts between tanks of gas. Thomas Morden estimated they would travel between 26 and 28 hours. They had driven straight through in this manner during their previous 15 road trips to Florida.

¶ 13. Thomas Morden loaded the Vanagon for the vacation. Having made the trip before, he testified that over time the family had been taking fewer things with them. In addition to four suitcases, Thomas Morden packed a 10-pound microwave oven, a cooler containing a 12-pack of soda, a few board games, and pillows and blankets. He also mounted a Lazer, a one-person 14-foot sailboat, to the roof of the Vanagon. The Lazer is a flat-decked, fiberglass craft, similar to a surf-board, that weighs about 135 pounds.3 Thomas Morden also attached a Hobie Cat, a lightweight sailboat consisting of a canvas stretched across two catamaran pontoons, to a trailer at the rear of the Vanagon. VW had advertised a Vanagon/Hobie Cat package in the mid-1980s. One such promotion, apparently targeting VW retailers, featured a Hobie Cat perched on the roof of a Vanagon and promised that "these Vanagons will be sailing out of your showroom."4 Although VW promotional materials were not shown to Thomas Morden during the trial, Thomas recalled seeing a Vanagon/Hobie Cat advertisement, and he believed that the Vanagon was designed for the purposes advertised, namely family trips and vacations.

¶ 14. During the drive, the Mordens traveled through Illinois, Indiana, Kentucky, Tennessee, and Georgia. They had followed this route on previous trips, and, depending...

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