Mulhern v. Outboard Marine Corp.

Mulhern, Nancy MULHERN and H. James Plaintiffs-Respondents, CORPORATION, Defendant- MARINE OUTBOARD and Cross- Plaintiff-Appellant Third-Party Respondent,† KROGGEL, Third-Party Defendant Edward

Cross-Appellant. Appeals

Court August on 1988.—Decided Submitted No. 87-2320. briefs 27, 1988. September (Also 130.) reported in 432 N.W.2d Petition to review † denied. was sub-

For the cause plaintiffs-respondents Shneidman, Myers, Dowling & of mitted on the briefs G. Dowling Robert of Milwaukee. Blumenfield plaintiff-appellant the defendant-third-party For Peterson, cause submitted on the briefs was by Donald R. Murray, Johnson & S.C. Peterson and A. Christenson Craig Milwaukee. defendant-cross-appellant For the third-party & Brennan on was submitted the briefs cause K. Brennan of Milwaukee. by Joseph Brennan Moser, P.J., Fine, Before Sullivan and JJ. SULLIVAN, Corporation J. Outboard Marine (OMC) appeals judgment granting compensatory (Mulhern) damages to H. Mulhern punitive James and Kroggel (Kroggel) Mulhern.1 Edwin cross Nancy dismissing third-party OMC’s appeals judgment against denying postverdict him and his motion action fees sec. attorney’s reasonable costs and under 814.025, Stats. purchased

In 1971 Mulhern a used from horsepower Johnson outboard motor thirty-five brother-in-law, as Kroggel. Kroggel was employed his department. In Evinrude service a mechanic OMC’s Mul- Kroggel offered service approximately service department. hern’s motor at Evinrude motor, Kroggel discovered that inspecting After parts He replace parts. several used necessary motors, make year, different with varying from decision, only purposes 1For the of this we will refer to James Mulhern’s claim. brought salvaged into the from motors been

which had Kroggel warranty. department reinstalled a under start-in-gear mechanism that had limited throttle designed OMC, same manufactured and been type in the motor before he had been of mechanism returning began the motor to it. Before to rebuild gave Kroggel Mulhern, to the motor tester the motor operating if the motor was to determine at OMC according The motor tester standards. OMC’s approved returned to and the motor was the work charge parts. labor or with no Mulhern complaints until the motor no about Mulhern has inadvertently time, Mulhern started 1976. At that gear injured. it in but he was not while was motor designed to start the motor was he believed that Since Kroggel, Kroggel. only, who in he contacted neutral only start while in the motor could that also believed neutral, spring replaced in the interlock mechanism a August 6, Mulhern. On the motor to and returned cottage, boating Mulhern at his lake while gear causing accidently in the outboard motor started pulling lunge suddenly forward, him the boat partially leg right was Mulhern’s the boat. out of injured severely with the in contact when came propeller. accident, Mulhern’s of the As a result motor amputated. leg surgically right was complaint, Mulhern al- amended In his second system, leged interlock limited throttle that defectively incorporated motor, de- in had been signed to start while the motor it allowed because power. varying gear Mulhern with amounts injuries under liable for his contended OMC negligence. liability the theories of strict Krog- against brought third-party action rebuilding negligent alleging gel he had been his were the and that actions cause Mulhern’s motor OMC liable for jury Mulhern’s The found injuries. of the theories of strict liability under injuries Mulhern’s Kroggel The found that had negligence. also jury and granted court judgment The trial negligent. not been motion postverdict and denied OMC’s on verdict Kroggel’s It denied motion for a new trial. also for and fees under the frivo- attorneys costs reasonable statute, 814.025, Stats. claims sec. lous (1) five raises issues: Whether appeal, On OMC applied in a liability of strict can be the doctrine (2) context; the Federal Boat Safety whether nonsale (3) law; state tort whether trial court preempts Act it its when submitted instructions abused discretion were to the which limited to questions jury and verdict device, interlock design manufacture and (4) whole; whether the trial than the motor as a rather when it admitted tests abused its discretion court after the motor had been performed had been which (5) reassembled; is credible whether there punitive dam- uphold award jury evidence in his appeal: raises one issue cross ages. Kroggel against Kroggel claim third-party Whether OMC’s was frivolous. IN

STRICT LIABILITY NONSALE TRANSACTIONS Kroggel at OMC’s Evin- rebuilt Mulhern’s motor using salvaged parts, includ- department rude service throttle interlock mecha- ing a limited However, not Mulhern charge nism. OMC did alleges on the OMC that it was parts labor motor. Mulhern’s motor performed unaware of the service on approve argues did it. OMC inapplicable strict is because it liability doctrine of sales transaction. Since Mulhern requires an actual OMC, parts or its purchase did not motor from contends the trial court erred when disagree. the doctrine to this case. We applied of strict to the facts of application of law. This decides question this case court questions independently of law and without deference to the trial court’s decision. Ball v. District No. Area Bd., (1984). Wis. 2d Court, v. Sci- Dippel Supreme

The Wisconsin ano, 443,155 (1967), adopted N.W.2d the in in liability rule of strict tort as set forth the (Second) (1965).2 Torts 402A Restatement of sec. To plaintiff prove: recover under strict a must liability, (1) product that the was in defective condition seller, possession when it left the or control of the (2) unreasonably dangerous it to the user that was (3) (a consumer, cause or that the defect a factor) plaintiffs injuries of the or substantial (Second) 402A 2Restatement of Torts sec. states: Special Liability Physical 402A. of Seller of Product for Sec. Harm to User or Consumer (1) any product in condition who sells a defective One unreasonably dangerous his the user or consumer or to to physical thereby property subject liability caused to is to harm consumer, property, or to his if the ultimate user or (a) selling engaged such a is in the business of the seller product, and (b) expected it reach the user or consumer is to and does change in it is sold. in the condition which without substantial (1) (2) although applies in The rule states Subsection (a) possible prepara- care in the the seller has exercised all product, tion and sale of his (b) bought product or the from the user or consumer has not with the seller. entered into contractual relation (4) engaged damages, in the business that the seller or, negatively, product put that this selling such of infrequent transaction not or is not an isolated seller, principal business the to the related (5) the product was one which seller that reach the user or consumer expected to and did change in the condition it was substantial without it. when he sold 460, 155 at 63. 2d at

Dippel, Wis. 402A(1) because sec. of the alleges that product who sells any Restatement states "[o]ne dangerous to unreasonably defective condition ... an subject liability,” or user consumer occur it transaction must before can be actual sales theory liability. liable under strict held provides: 1 of 402A Comment sec. for the rule stated in or In order

User consumer. necessary apply, is not this Section acquired have ultimate user or consumer It is product directly from the seller .... not even purchased have necessary that the consumer tort, one product all.... The stated is at relation, require any contractual and does not contract, plaintiff privity and the between defendant. occur

The issue of whether a technical sale must has liability the doctrine of strict can not apply before However, in been before Wisconsin. addressed doctrine in the nonsale context applied has been other jurisdictions. (2d F.2d Cir. Delaney Corp., v. Towmotor

In 339 4 1964), gave of forklift truck a manufacturer plaintiff to the plaintiffs employer. demonstrator the vehicle. The Second subsequently injured by was 612 although Circuit concluded that no technical sale had occurred, the manufacturer was liable under of strict it responsible doctrine because placing product the defective in the "stream of 6. commerce.” Id. at Accord First Nat’l Bank Mobile (Ala. Co., 1978). 966, 365 v. Cessna So. 2d 968 Aircraft The terms "sell” and "seller” as stated in sec. 402A merely descriptive product are and "the need not be if it actually sold is into injected the 'stream of Co., other by commerce’ means.” Link v. Sun Oil 312 (Ind. 126, 1974); N.E.2d 130 Ct. App. Henderson v. (S.C. Gould, Inc., 806, 1986). 341 S.E.2d App. Ct. requirement The "stream of commerce” is consis- application tent with the 402A sec. In Wisconsin. Barter v. General Motors Corp., Wis. 2d (1975), supreme N.W.2d 523 applied court a third-party doctrine sale and rental. Krager manufactured a motor home which it sold to Allen Industries. Allen Industries sold the home to Dawson passengers who rented to Otis. Otis and other were when a wheel came off the injured vehicle. The court Krager found liable for Otis’ strictly injuries, although he had purchased Krager. the motor home from

The Barter court concluded that: important While the factor of sale is in establish- seller, ing underlying predicate that marketing product, his undertook and assumed the special consuming public, responsibility toward the only the sale is relevant to the extent it is probative of the "business” of the manufacturer selling” seller. It is the "business significant. 803, 235

Id. at N.W.2d at 526. See also Howes v. Hansen,

(1972) (seller found liable for bystander’s injuries, although there was no sale between the defendant and Therefore, of is not product the sale the plaintiff). the in the long the defendant business as as important placed product it the selling product such a commerce.” "stream of the case, this interlock device had In Kroggel from a motor that was salvaged by been original motor returned on OMC sold the warranty. placed doing so by with the interlock system Also, in the "stream commerce.” interlock system system, the interlock Kroggel had installed after inspected the deter- OMC motor and motor tester at it met motor was mined that OMC’s standards. approval to Mulhern with the of OMC’s returned then Therefore, although did not sell the motor agent. OMC Mulhern, placed the motor "in the stream of commerce” other means. applied court correctly

We conclude that trial this liability rule of strict case. FEDERAL PREEMPTION postverdict the first time on argued, motions, Boat Act Safety Federal (1984) numbered [previously 4301-4311 U.S.C. secs. 1451-1489], preempted Mulhern’s U.S.C. under contends that because it strict claim. OMC liability specified 33 C.F.R. regulations the federal met 183.701, apply. in tort does not section strict disagree. We state court of deprives preemption

Federal Therefore, may jurisdiction. issue matter subject time, time on including for the first be raised at Follette, La Ry. & W. appeal. Chicago N. Corp. Moreland (1965); 135 N.W.2d Union, 499, 502, 16 2dWis. Retail Store Employees

v. (1962). 876, 114 878 N.W.2d gives of the Constitution clause supremacy law. U.S. Const. preempt to state Congress power Lueck, 471 U.S. VI, 2; Corp. cl. Allis-Chalmers art. (1985). preempt law state law may 208 Federal three ways:

[1] when which it intends to congress explicitly defines the extent preempt state law; ^[2] when congress indicates an intent occupy regulation; an entire field of ^[3] when state law conflicts with federal law impossible. compliance with both laws is Homes, DILHR, 125 Wis. 2d Inc. v. Liberty (Ct. 1985), App. affirmed, N.W.2d (1987). 368, 401 appellate An court 2d N.W.2d Wis. Congress intended to to determine whether required 511-12, 374 id. at authority. state See supersede at 152. Act Safety Federal Boat 4306 of the Section states: specifically preemption

Federal Secretary under section permitted by the Unless title, political a State or subdivision 4305 of this establish, effect, or may not continue a State regulation establishing a recrea- a law or enforce performance equipment or associated tional vessel imposing requirement or safety other standard (except insofar as the equipment associated may, in the absence of political State or subdivision regulate carrying Secretary’s disapproval, uniquely safety marine articles to meet or use of within the or circumstances hazardous conditions State) pre- regulation to a is not identical [Emphasis this under section 4302 of title. scribed added.] has the field of Congress preempted argues requirements for manufactur- safety boat

regulating application of the precludes therefore ers and However, read Act claim. we state strict differently. the Act was to uniform purpose of establish

The safety minimum standards for boats and associated Sess, 248, Cong., 92nd 1st Rep. S. No. equipment. in 1971 U.S. Code Cong. Admin. News & reprinted 1333, promulgat- The are to be safety 1333. standards (the Id. Coast Transportation. the Secretary ed Department Transporta- within the operates Guard tion). not expressly Federal Boat Act does Safety law. The Act states that: state tort

preempt standards, regula this or chapter with "[compliance tions, this prescribed chapter under does not orders or at common law under person liability relieve a from 4311(g) 46 [previously 46 U.S.C. sec. U.S.C. State law.” Rubin Brutus Corp., See v. Savings 1489 Provision]. (Fla. 360, 1986), review Ct. App. 487 363 Dist. So. 2d (Federal denied, 543 Boat Act held Safety 500 So. 2d basis manufacturer’s not to be exclusive v. Gryc Dayton-Hudson Corp., also See liability). denied, (Minn. 727, 1980), cert. U.S. (The (1980) Act, 15 Safety Consumer Products 2051, which provision

U.S.C. had a similar did sec. remedies). private exclude argues Congress impliedly also

OMC state liability remedy strict because preempted act compliance with both federal state law alleges impossible. Coast would be 183.710,3 regulation, in 33 C.F.R. sec. codified Guard inapplicable. However, section state law leaves starting applies only motors and to "outboard 183.710 August 1982, and to after manufactured controls manufacturers, installing such or dealers distributors equipment 183.701. Be- Id. at sec. that date.” after in Mulhern’s motor was device cause prior this section and installed manufactured inapplicable. applicable, regulation com- had been if the Even regulation pliance would not have the federal with preempted because the action strict the state safety regulation only are minimum and the Act provide private tort remedies. which do not standards Also, regulations compliance does not with federal finding liability. preclude necessarily See of strict (1984) Corp., 464 U.S. 238 e.g., Kerr-McGee Silkwood Energy Act, 42 U.S.C. (compliance Atomic with the preclude for tort remedies state not did sec. 183.710, provides: part, 3Section required. protection Start-in-gear developing (a) capable a Any of motor which outboard operating speed pounds more at motor or thrust of static shipped or jet for any propeller attachment recommended or with manufacturer, equipped with a by must be the with the motor being set so prevent when controls are started the motor device to level, follows: thrust as attain that as to (1) starting designed must have a local motors Outboard start-in-gear protection device. built-in (2) starting designed have must for remote motors Outboard start-in-gear protection or be installed device either a build-in containing An outboard starting this device. with remote controls starting designed not have a built-in that does for remote motor sale, tag must, start-in-gear protection have a at the time device .... the control connection the location of label attached at 297 N.W.2d at injuries); Gryc, radiation nuclear damages pre- not punitive (compensatory 734-35 clause). preemption cluded Act Federal Boat did Safety the conclude We claim in this action. the strict preempt AND VERDICT INSTRUCTIONS JURY QUESTIONS its the trial court abused argues the instructions jury it limited when discretion limited throttle interlock to the questions4 verdict disagree. We the motor as a whole. rather than system pertinent special questions were: verdict 4The (hereafter Corp. QUESTION Did Marine NO. 1: Outboard business, "OMC”), part the its manufacture limited a as start-in-gear mechanism on outboard motor interlock throttle the Mulhern accident? involved in Question you "yes,” QUESTION No. 1 2: If have answered NO. question: this then answer start-in-gear interlock mechanism on Did limited throttle Mul- involved in accident reach James the outboard motor original change in its condition? hern without substantial Question QUESTION you 3: If answered both 1 and NO. have question: "yes,” then answer this start-in-gear mechanism Was the throttle interlock limited accident, involved in Mulhern when on outboard motor OMC, possession be in such a defective condition as to left prospective unreasonably dangerous to user? Question you "yes,” QUESTION No. NO. 4: If have answered question: this then answer plaintiffs Was such defective condition a cause of injuries? respect QUESTION negligent with to the NO. 5: Was OMC design and manufacture of the limited throttle the on the outboard motor involved in interlock mechanism accident? of question The form a verdict is within the sound court, discretion of the trial and this court will not long interfere so as all material of issues fact are v. ITT appropriate covered by Meurer questions. Gen. Controls, 438, 445-46, 156, 160 280 N.W.2d (1979).

The central issue at trial was whether OMC’s limited throttle start-in-gear interlock device was it pounds defective because allowed more than produced thrust to be when the motor was started in gear. argued start-in-gear Mulhern design However, caused injuries. his OMC argued that mixture of and parts change the substantial to the motor injuries. caused Mulhern’s component part theory was established City Sales, Inc., Franklin v. Ford Truck Badger (1973). 641, 207 Wis. 2d N.W.2d 866 There the court held that: change part

Where there is no component itself, it incorporated is merely something but into larger, injury and where the cause of harm or found, here, component as to be a defect in the that, part, we hold to the as ultimate user or consumer, applies strict standard supplier component the maker and defective part.

Id. at 869-70. N.W.2d at

The Mulherns submitted the the compo- case on nent part argued theory. They mechanism was defective unreasonably danger- ous. We conclude that the trial court did abuse its discretion when limited jury instructions start-in-gear questions interlock mecha- to the verdict nism. EVIDENCE

ADMISSION OF thirty- accident, he sold Mulhern’s After co-worker, horsepower Adam Hausk- to his motor five (Hausknecht). Believing the motor was necht designed only, at- Hausknecht in neutral

to start tempted repair throttle the limited to purchased He and installed the motor. on mechanism attempting parts fix the to in motor while new gear, to continued start the motor Because device. start mechanism and an electric Hausknect installed start-in-gear device. removed inspected commenced, OMC was After this action the interlock device and discovered that the motor Kroggel missing. to instructed Mulhern’s counsel start-in-gear interlock mechanism an OMC reinstall expert, by could be tested Mulhern’s so that the device (Richardson), professor me- Richardson Bobbie engineering Marquette at and electrical chanical University. objected trial, of the At OMC evidence tests The trial court overruled conducted Richardson. appeal, objection the evidence. On and admitted argues its that the trial court abused discretion disagree. admitting the tests. We is within the Whether to admit relevant evidence balancing court, sound discretion of the trial after probative possible prejudice. appellate value and An court will not interfere with the trial court’s decision appropriate Independent if it exercised discretion. Milk Producers Co-Op Stoffel, Wis. 2d (Ct. 1980). App.

Evidence if it is relevant has a tendency make a material fact probable the case "more or less it probable than would be without the evidence.” Sec. 904.01, Stats. All relevant evidence will be admitted unless probative value of the evidence substan- tially outweighed possible 904.03, prejudice. Sec. Stats.

The tests conducted on the motor were relevant to explain the design defective of the start-in-gear inter experiments lock Pretrial system. may be admitted enough important the obviously factors in the "[i]f duplicated case are in the experiment, and if the failure to control other relevant possibly variable is .” Maskrey v. Volkswagenwerk Aktienge explained... 145, 165, sellschaft, Wis. 2d 370 N.W.2d (Ct. 1985). App. informed, The was jury through that Hausknecht testimony, had removed the original interlock mechanism and Kroggel that reinstalled new mechanism for the purpose performing tests. argue

Mulhern did not the interlock system, which had been in his motor at the time of the accident, was defective because it did not work accord- ing to design. He contended that the design itself was Thus, long defective. as as Mulhern sufficiently dupli- motor, cated the accident and tests were relevant and not prejudicial. The trial court did not abuse its discretion. DAMAGES

PUNITIVE $150,000 in punitive Mulhern awarded jury no credible argues there damages. OMC damages. punitive support award evidence disagree. We a matter of law must determine as

The trial court allow a sufficient credible evidence to there is whether damages are warranted. punitive to find that jury Co., Walter Cessna Aircraft 1984). (Ct. "Because is a App. court, so it is with this for the trial question of law holding.” no the trial court court. We owe deference Id. plaintiff punitive damages,

To be awarded convincing evidence that clear and must establish wanton, in a was "willful the conduct defendant’s Brown v. right of or interests.” disregard reckless 677, 426, 433, 369 N.W.2d 681 Maxey, 124 2d Wis. (1985). will an award of uphold An court appellate evidence from which damages any if there punitive the reasonably the have concluded jury could Id. "outrageous.” evi- defendant’s conduct to in a most favorable dence will be construed manner Id. verdict. jury punish the designed Punitive are to damages v. Eli deterrent. Collins a wrongdoer and to act as 37, Co., 166, 201, 54 Lilly 116 Wis. 2d 342 N.W.2d (1984). Furthermore, denied, 469 (1984), cert. U.S. 826 product in a punitive damages may be recovered if defendant’s conduct was "outra liability suit Co., geous.” Wangen v. Ford Motor 2d 97 Wis. (1980). 437, 294 N.W.2d In Wheeler General Tire (Ct. Co., Rubber 142 Wis. 2d & N.W.2d 331 1987), App. recognized this court several factors be determining considered in whether a manufacturer’s outrageous justify punitive conduct was so as to a damage award:

(1) magnitude product the existence and in the public;

danger to the (2) the manufacturer’s awareness of the magni- danger;

tude of (3) feasibility and the cost reducing

danger acceptable to an level. (quoting 818-19, Walter, Id. at 419 N.W.2d at 339 820). 228-29, 2dWis. at 358 N.W.2d at Essentially, plaintiff must establish that knowledge had manufacturer of the defect and that the steps at manufacturer was fault because failed to take remedy danger. harm in face of serious Walter, 227-28, at N.W.2d at 819-20. early trial, At Mulhern established that as as internally recognized thirty-five OMC that the horse- power high motors caused a acceleration start- when ed, and that dealers and users should be warned always Despite the motor should be started in neutral. knowledge, explain purpose this did dangers mechanism or its owners or service manuals. Because of OMC’s failure explanation publica- to include an of the in device its employees tions, owners OMC and motors OMC were unaware that the mechanism was installed to gear. the allow motor to be started Furthermore, only that a neutral was aware available, it the on since used device mechanism mechanism would only The neutral larger motors. its danger which the eliminated completely have Also, dangers presented. device of unstable were serious because the motor users of the water. conditions that there was sufficient evidence conclude

We punitive damage award. support CLAIMS

FRIVOLOUS appeals dismissing Kroggel judgment cross against him complaint denying and third-party OMC’s costs attor- motion for reasonable postverdict his 814.025, The trial fees, to sec. Stats. pursuant ney’s OMC’s action was not frivolous. that court concluded 814.025(3)(b), Stats., is a claim frivo- Under sec. or the party court finds that if the trial lous "[t]he knew, known, have or should party’s attorney or reasonable basis law ... was without action good faith supported not be and could equity extension, modification or reversal argument for an an action is determining When whether existing law.” frivolous, can party is whether will or the issue is so party’s position rather whether prevail, but and the should party frivolous indefensible Carr, v. 2d known it. Sommer 99 Wis. have (1981). 856, 859 299 N.W.2d would or should attorney Whether a reasonable without reasonable that a claim is have concluded presents question a mixed of law equity basis in law Adriansen, fact. Stoll 1984). (Ct. App. question 182, 187 of what litigant attorney or reasonable would or should have regard requires know with to the facts the trial court question to ascertain the This facts. is a fact. Id. at appellate 513, 362 N.W.2d at 187-88. An court will not upset findings they a trial court’s of fact unless are clearly Dimiceli’s, Inc., erroneous. Noll v. (Ct. 1983). App. 575, 340 N.W.2d How question presented construing

ever, a law when legal significance findings, of those in terms of knowledge whether of those facts would lead a reason attorney litigant able to conclude that the claim Stoll, was frivolous. 122 Wis. 2d at 362 N.W.2d at 188. third-party alleged Krog- action,

In OMC’s that gel entirely negli- had rebuilt Mulhern’s motor in a gent changes manner that the to the motor caused injuries. Kroggel Mulhern’s negligent, To establish that was prove Kroggel had OMC that failed to use reasonable care trial, under the circumstances. At presented changes OMC evidence of the made Kroggel. presented The trial court found OMC legal theory. in evidence accordance with its Based on finding, legal its the trial court made a conclusion reasonably bringing against acted OMC the action Kroggel and therefore the claim frivolous. questions independently

This court reviews of law and without trial deference court’s decision. Ball, Here, 2d Wis. at 345 N.W.2d at 394. presented Kroggel evidence to establish that had negligent changes and that been the motor had injuries. Therefore, Mulhern’s caused we conclude that the action was not frivolous and affirm the trial court’s decision.

CONCLUSION (1) The trial determine that: we summary, In strict to this applying in correct court was (2) preempt Boat Act does not Safety case; Federal (3) the trial of strict liability; tort remedy state it limited the its discretion when abuse court did not to the special question verdict and instructions jury (4) trial did device; court interlock of the admitting in evidence not abuse its discretion (5) Richardson; expert, Mulhern’s by test conducted uphold credible evidence is sufficient there (6) award; damage third-party and OMC’s punitive not frivolous. We therefore Kroggel was against action the judgment. affirm

By the Court. — Judgment affirmed. I deci-

FINE, in the court’s (concurring). join J. whether on the issue of separately but write sion is waived when is not pre-emption defense of federal correctly as explains, clearly Congress’ powers "[i]t Davis is within adjudicate to establish an exclusive federal forum to particular Congress issues federal law in a area that authority regulate has the to under the Constitution.” Congress specifies Id. When an exclusive federal jurisdiction extinguished.” forum, "state is Id. 391. at subject jurisdiction may a Since court’s matter not be parties, by pre-emption conferred "forum” not is Corp. Employees waivable. v. Moreland Retail Store Union, 499, 502, 876, 16 2dWis. 114 878 (1962). pre-emption Congress’

The second barrel of is power "lay to down a substantive rule of law to be competent apply enforced tribunal to law parties,” generally to state or federal. Garner v. (1953); Teamsters, 485, 346 U.S. 490 see also v. Kaski Madison, First Fed. Sav. & Loan 72 Ass’n Wis. 2d (1976). 132, 140-42, 367, 240 N.W.2d 372-73 This pre-emption ordinarily "standards” "is de federal plaintiffs Metropolitan suit,” fense Co. Ins. Life Taylor, (1987), 1542, 107 Ct. v. S. 1546 be and will Hughes waived if not asserted in trial court. 627 (Ct. 273, Rptr. 282 Calif., N. Cal. Blue Cross of (1988) 1988), Rptr. granted, review Cal. App. 976). Hughes’ Court, (see Rule Rules of California rule of law based on a that a defense recognition may be pre-emption of "standards” the ambit within rule that the Wisconsin is consistent with waived first raised for the be may defenses affirmative Jax, 802.06(2), Stats.; Jax v. See Rule appeal. on time 831, (1976); 572, 583-84, 243 N.W.2d 2d 73 Wis. Bank, 129 Wis. 2d County v. Polk Bushweiler 1986). (Ct. App. 384 N.W.2d recognizes, here Wisconsin the court As pre-emp- a "standards” permitted has Court Supreme time on to be raised for first defense tion-based Follette, at 135 N.W.2d at La appeal. authority La Follette cites However, only 273. Moreland, however, which, support proposition proposi- pre-emption case. LaFolletté’s a "forum” re- footings and should be rests on tenuous tion thus in an Supreme Court by the Wisconsin examined case. appropriate court. The court notes the trial raised before Supreme Court has held that the Wisconsin and that the issue jurisdictional pre-emption federal Ry. v. La Chicago & N. W. time. any raised at be may Follette, 505, 512, 135 2d Wis. cases, however, (1965). not specifi- do The Wisconsin pre-emption, "forum” which distinguish between cally may be goes jurisdiction to the state court’s waived, applies which pre-emption, "standards” and, according to the in federal court equally state or waived. Even may be jurisdictions, rule in other case, are pre-emption we though ours is "standards” Supreme Court precedent. bound Wisconsin pre-emption rests on of federal The doctrine States article VI of the United "supremacy clause” of Longshoremen’s Ass’n., Constitution. International (1986). Davis, AFL-CIO v. 476 U.S. That provides "constitution, clause that the and the laws of pursuance the United States which shall be in made supreme ... thereof shall be the land; law of the and any every judges thereby, state be shall bound thing in the constitution or laws of state to the contrary notwithstanding.” pre-emption Federal ais double-barreled doctrine. deprive jurisdiction First, it can a state court of particular Congress hear a matter when "vest[ed] has jurisdiction particular] controversy [a exclusive over body.” Davis, Thus, another 476 U.S. at 388.

Case Details

Case Name: Mulhern v. Outboard Marine Corp.

Court Name: Court of Appeals of Wisconsin

Date Published: Sep 27, 1988

Citation: 432 N.W.2d 130

Docket Number: 87-2320

Court Abbreviation: Wis. Ct. App.