Staskal v. Symons Corp.

• Decision Date: 01 September 2005
• Docket Number: No. 2004AP663.,2004AP663.
• Citation: 706 N.W.2d 311,2005 WI App 216
• Parties: Terry STASKAL and Teressa Staskal, Plaintiffs-Respondents, Wausau General Insurance Company, Subrogated-Plaintiff-Respondent, v. SYMONS CORPORATION, American International Specialty Lines Insurance Company and Evanston Insurance Company, Defendants-Appellants.
• Court: Wisconsin Supreme Court

Page 311

706 N.W.2d 311

2005 WI App 216

Terry STASKAL and Teressa Staskal, Plaintiffs-Respondents, Wausau General Insurance Company, Subrogated-Plaintiff-Respondent, v. SYMONS CORPORATION, American International Specialty Lines Insurance Company and Evanston Insurance Company, Defendants-Appellants.

No. 2004AP663.

Court of Appeals of Wisconsin.

Submitted on Briefs May 23, 2005.

Opinion Filed September 1, 2005.

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On behalf of the defendants-appellants, the cause was submitted on the briefs of Lori M. Lubinsky, Axley, Brynelson, LLP, Madison; John W. Patton, Jr., Patton & Ryan, Chicago; and Edward M. Kay and Barbara I. Michaelides, Clausen Miller P.C., Chicago.

On behalf of the plaintiffs-respondents, the cause was submitted on the briefs of Daniel W. Hildebrand, Joseph A. Ranney, and Eric A. Farnsworth, DeWitt Ross & Stevens, S.C., Madison.

Before VERGERONT, DEININGER and HIGGINBOTHAM, JJ.

¶ 1 VERGERONT, J

This action arises out of the collapse of two sections of concrete form work that occurred while concrete was being poured to form the fourth floor of the University of Wisconsin-Madison pharmacy building. Terry Staskal, a construction worker employed by the general contractor, Kraemer Brothers, LLC, was seriously injured. He and his wife sued the manufacturer of the concrete forming system, Symons Corporation and its insurers, seeking compensatory and punitive damages. The jury found both Kraemer and Symons causally negligent, apportioning 80% to Symons, and found Symons liable on the products liability claim. The jury awarded Staskal $8,821,610.13 in compensatory damages, $500,000 to his wife, and $15,000,000 punitive damages against Symons. Symons appeals, contending: (1) the circuit court erred in excluding the OSHA¹ report and related documents; (2) the compensatory damages were perverse and excessive; (3) there was insufficient evidence for the punitive damages claim to go to the jury; (4) the circuit court erred in its ruling on the admissibility of evidence of Symons's insurance coverage; (5) the amount of punitive damages is excessive and therefore violates Symons's right to due process; and (6) Symons is entitled to a new trial under WIS. STAT. § 752.35 (2003-04).²

¶ 2 We conclude: (1) the circuit court properly exercised its discretion in excluding the OSHA report and related documents; (2) the award of compensatory damages is not perverse or excessive; (3) under the standard established in Wischer v. Mitsubishi Heavy Industries America, Inc., 2005 WI 26, 279 Wis.2d 4, 694 N.W.2d 320, and Strenke v. Hogner, 2005 WI 25, 279 Wis.2d 52, 694 N.W.2d 296, the evidence was sufficient for the punitive damages claim to go to the jury; (4) the circuit court did not err in its ruling on Symons's insurance coverage; (5) the amount of punitive damages does not violate Symons's right to due process; and (6) we decline to award a new trial under WIS. STAT. § 752.35. Accordingly, we affirm.

BACKGROUND

¶ 3 The concrete forming system manufactured by Symons consists of aluminum trusses supported by adjustable legs. Plywood and forms provided by the contractor are placed on top of the trusses to make a table upon which concrete is poured to form the floors. Symons provides the contractors with plans for the assembly and use of the system. Each floor is poured in sections between concrete columns that are cast before the floors are poured. After the concrete is hardened it becomes the foundation; the trusses are then "flown" by crane to the next level, where the process is repeated.

¶ 4 The standard adjustable leg specified for the system is composed of a single steel tube with a screw jack at the bottom that has an 8"x10" base (standard base). The screw jack allows adjustment of the height of the leg up to a maximum of twelve feet. On this project, Symons specified two-piece legs in order to achieve a greater height — sixteen feet on the first three floors of the building and eighteen feet on the fourth floor. The two-piece legs consist of two pieces of steel tube joined by two screw jack-end plates bolted back to back. We will refer to the connecting assembly on the two-piece leg as the "knuckle."

¶ 5 The accident occurred when a section of the fourth floor collapsed while the cement for another section of that floor was being poured. Staskal was pinned under the rubble for three-and-a-quarter hours before being extricated. He sustained severe physical injuries and suffered post-traumatic stress syndrome.

¶ 6 The cause of the collapse was disputed at trial. Staskal's engineering expert, Dr. Howard Hill, testified that the accident occurred because the two-piece legs had inadequate capacity to carry the load of the system. The legs, he testified, did not provide anywhere near the capacity that the applicable minimum standards required. Dr. Hill opined that the legs needed bracing to give them adequate capacity, and he referred to Symons's engineering manual that showed both cross-bracing of the leg on the sides with two-inch by eight-inch elements and a wide-base jackstand, which has a larger base than the standard base as well as four support pieces. When bracing is needed to make the legs safe, Dr. Hill testified, it is a key structural element and must be included in the plans given the contractor, but it was not included in the plans given Kraemer. In Dr. Hill's opinion the two-piece legs without bracing was a defective design that was unreasonably dangerous, and in providing Kraemer these legs without specifying adequate bracing, Symons's conduct did not meet the standard of care.

¶ 7 Symons's engineering expert, Dr. William Corley, agreed that the two-piece legs were not adequately braced, but he did not agree that caused the collapse. In his opinion the collapse was caused by changes Kraemer made in the configuration of the legs without Symons's approval, such that one leg was placed on an I-beam spanning a hole in the third floor. In Dr. Corley's opinion, Kraemer's failure to secure the leg to the beam to make sure it was centered on the beam and its failure to reinforce the beam's web (the vertical piece of the beam between the top and bottom horizontal pieces, which are called flanges) caused the beam web to bend and the leg to lose capacity, triggering the collapse.

ANALYSIS

I. Exclusion of OSHA Report

¶ 8 Dr. Hsiang-Jen Yen of OSHA investigated the collapse. In his report he concluded that the following factors caused the collapse: Kraemer failed to properly brace the beam and the load was eccentrically placed; the top flange could not resist the applied load and slanted away from its horizontal position; and the leg slipped off the flange. OSHA cited Kraemer with four "serious" violations of the Occupational Safety and Health Act: requiring employees to walk under formwork while it was being loaded; inadequate protection from falls; changing Symons's plans without approval from a qualified designer; and use of the beam, which was not capable of supporting the maximum intended load. Kraemer contested the citations and eventually entered into a settlement agreement with OSHA. The agreement eliminated the second and third violations, reduced the monetary penalties for the first and fourth violations, reclassified the fourth to an "other than serious" violation, and redefined the fourth violation without reference to the beam: "The ... Form System, which was not designed by the employer [Kraemer] was not capable of supporting the maximum load at the floor opening of Column E6 on the third floor."

¶ 9 OSHA notified Symons "of the following hazards that the system designer would be responsible for" and recommended correction of them: (1) the legs used did not have the requisite safety factor in terms of load bearing, and (2) the two pieces used in the leg made plumbing not possible. However, this letter stated, OSHA was not issuing a citation for these hazards because there were no applicable OSHA standards and OSHA did not consider it appropriate to invoke the "general duty" clause of the statute.

¶ 10 Further investigation revealed that it was not the top flange but the bottom flange of the beam that was deformed. In Dr. Corley's opinion, this did not alter the validity of his theory that the collapse originated over the hole on the third floor because of Kraemer's misplacement of the leg on the I-beam and failures to secure the leg to the beam and reinforce the beam. In Dr. Hill's view, the fact that the bottom flange rather than the top flange was deformed supported his view that use of the beam was not a cause of the collapse.

¶ 11 Prior to trial, Staskal moved for a ruling that the OSHA report should be excluded. In his motion, Staskal pointed out that under federal law an OSHA investigator could not be called as a witness by private litigants; thus, Staskal could not cross-examine this investigator about the report. Staskal argued that the report was hearsay and the requirements of the public report exception in WIS. STAT. § 908.03(8) were not met. That statute provides:

(8) PUBLIC RECORDS AND REPORTS. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law, or (c) in civil cases and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

Symons responded that the report was admissible under this hearsay exception and was also admissible under WIS. STAT. § 907.03 because it was the type of data reasonably relied on by experts investigating industrial accidents in forming their opinions.

¶ 12 The court granted Staskal's motion, concluding that the report was not trustworthy for these reasons: it was based on an...