*1 separated that the belt properly or acted belt inju- his which decreased point time addition, the Court notes In
ries.6 the third element not establish did
Whitted the seat belt case: prima, of his facie injuries (e.g., the enhanced his
proximately might have body against the belt
force of injuries than those more severe
caused separated). not We had the belt
sustained Indiana Strict Product that under the
find plaintiff may use circumstan-
Liability Act a that a manufactur- to establish
tial evidence only when the existed defect expert by way of testimo-
presents evidence reasonably way negating other
ny, by causes, by way of some combina-
possible
tion two. enough sum, produce failed Whitted issue of fact that to raise a material
evidence broke due Nova seat belt
the 1987 Chevrolet Accordingly, any we sort.
to a defect holding in full. court’s
affirm the district CADEK, Plaintiff-Appellant,
Roy DRAGAWAY, LAKES
GREAT Defendant-Appellee.
INC.,
No. 94-3266. Appeals,
United States Court Circuit.
Seventh 27, 1995.
Argued March 29, 1995.
Decided June Admin., Safety 49 C.F.R. Highway parties, Nat’l Traffic Although argued we are 571.208, S4.1.1.3.1(c) S4.1.1.3.1(c) (1994) 571.208, (emphasis § add- 49 C.F.R. aware that suggests However, speed should hold. at which seat belts ed). speed limit is not to clear that the It is m.p.h. is a demarcation the Code’s 30 accidents, apply it is not an absolute. all car testing conditions: function of the overall instance, weigh might the driver of a car For shall,] perpendicularly When it vehicle [The dummies,” which the “test more or less than barrier, moving while impacts longitudinally collision a fixed specific design requirements. their own up any speed forward case, weighed approximately 265 the driver including m.p.h. under the test conditions m.p.h. traveling pounds at least and was anthropomorphic devices at each test S8.1 with conditions, Given these he left the road. before by Type position restrained front outboard seat the 1987 Nova it is reasonable infer assemblies, complete experience no seatbelt separation it should have. belt acted as load-bearing any element of a assembly anchorage. seatbelt
Bradley (argued), Foley S. Block & Lard- ner, IL, Chicago, for plaintiff-appellant. (argued),
Bruce L. Carmen D. Kendall Griffith, Burke, Bonanno, Kevin J. Steven R. Culbertson, IL, Hinshaw Chicago, & for de- fendant-appellee. FLAUM,
Before CUMMINGS Circuit Judges, WALTER, Judge.* District
CUMMINGS, Judge. Circuit operates drag strip in Un Grove, ion July Wisconsin. On Roy Cadek, Illinois, a citizen of paid a fee and signed a release in funny order to run his car, Asset,” “Risky on the track. It was not good funny run. Cadek’s car collided with his own parked van which the side of the track. The damage from the collision minor, itself was but fuel leaked and an ensuing engulfed funny car, fire the van protective Cadek. Cadek’s fire suit him saved injury. substantial His fun ny car fortunate, and van were so suffer $45,000. damage combined of over Dragaway
Great Lakes had a fire truck parked the track which Cadek had seen prior Cadek, visits. Unfortunately for it was unmanned and its were empty. Great Lakes’ functional fire-extin- guishing equipment garden consisted of a hose spigot. attached to an exterior Had the operational, been the fire could quickly extinguished been and damages greatly reduced.
On March Cadek filed a five-count complaint against alleging Great Lakes contract, rescue, negligent breach negli- *The Honorable Donald E. Walter Western sitting by District of designation. Louisiana is fraud,” say “no termites. misrepresenta- strict
gent only porous life- represent porous lifeboats $45,000 in com- seeking tion, and fraud silently someone who consider boats. Or $150,000 pensatory Obviously, rep- bill. a counterfeit passes Lakes moved May resulting resentation signed re- on the summary judgment based *3 on depends set of facts given conduct or the district February On lease. expecta- and reasonable circumstances the grant- order and a memorandum issued court accepting person parties: did the of the tions judgment on Ca- summary Lakes Great accepting he think was counterfeit bill the denying the mo- count and negligence dek’s interesting bartering for an legal tender counts. four other on tion Cadek’s in the question the piece paper? of Thus moved to Lakes Great April On person a reasonable case is present whether Rules under remaining counts the dismiss drag strip at parked a seeing a fire truck 15, 1994, 12(b)(6). August 12(b)(1) and functional the truck was believe would complaint for the dismissed court of a form fight or was fires and there holding jurisdiction, subject matter lack of wayward dal- home for sculpture or outdoor dam- punitive not entitled was that Cadek matians. not thus could and of law a matter ages as flamma- highly involves Drag racing, which controversy requirement in the amount meet nitro-meth- alcohol including ble appeals fuels— jurisdiction. Cadek diversity for high pres- large in volumes pumped ane — sures, dismissal. of fire. risk a tremendous presents strip with- drag a absurdity operating of The Discussion fire- equivalent truck or operable fire out an fact Misrepresentation 1. that a great therefore so capability is fighting basis for dismiss an alternative As at a track parked seeing a fire truck person 12(b)(6), argues Lakes Rule Great under al operable it is inevitably assume would misrepresenta a allege failed to that Cadek inop- parking an fight fires. and there necessary by Lakes —a Great of fact tion track, side of truck erable undisput It is a claim of fraud. for element fire-fighting misrepresented law, can that under ed specta- competitors and capability to both fact. misrepresentation a constitute as the certain a tors —as Vojvodich, Wis.2d Goerke Cadek’s bill. counterfeit passing silent dispute between survives allegation therefore Lakes’ conduct— what Great parties is over Rule challenge- under Lakes’ by drag truck a inoperable fire parking an misrepresented as strip represented — damages Availability of 2. be. com- dismissed Cadek’s district court presence argues that 12(b)(1) holding that Rule under plaint at the the fire truck a mat- as damages not recover could alone: one fact fact and “represents one remaining claim law ter of extinguisher and fire truck is a fire ‘there short damages fell $45,000 compensatory in ” 4], That the premises,’ [Def.Br. diversity jurisdic- $50,000 required for filled extinguishers are and the manned is 1332(a). 28 U.S.C. tion. inferences are, they argue, mere rep- only the facts because representations, dam actual both “Where the facts. resent each complaint under a are recoverable ages claimed extent to the be considered a must silly Consider very argument. is This a Bell amount.” jurisdictional determining the rows ship who sees boarding a cruise Society, 320 U.S. look The lifeboats of lifeboats. and rows Life Preferred (1943); Sharp L.Ed. knows, fact, S.Ct. captain as functional but Plus, Copy Corp. v. Electronics thou- cheese with like they pierced Swiss are Cir.1991). (7th Where 513, 515 seagoing by left microscopic holes sands damages required satisfy jurisdic jury can “potential consider damage that diversity case, tional amount in a two-part might been by done such acts as well as inquiry necessary. is The first is the actual damage.” Jeffers, 297 N.W.2d at damages are recoverable as Though property damage suffered a matter of state law. If the yes, answer is insubstantial, Cadek was not potential subject the court has matter un personal injury spectators Cadek or less it is “beyond legal clear certainty that obviously greater far properly and could no under circumstances be jury considered in awarding punitive entitled to recover the amount.” damages. Considering Wisconsin law and Woodard, Risse v. allegations complaint, it can- Cir.1974). beyond not be said certainty that he *4 could not recover over in $5000.00 Applying analysis pres to the complaint His was therefore im- case, ent the answer to the first is properly dismissed under Rule law, that under punitive damages Wisconsin may be awarded for fraudulent misrepresen Nysse, tation. See 543, v. 98 Wis.2d Negligent rescue claim 495, (1980)
297 N.W.2d
499
(permitting puni
remand, if
Cadek is able to back
damages
tive
when seller of
misrepre
home
up
allegations,
costs).
the district court
heating
Therefore,
should
sented
grant
reconsider its
summary
judgment
court had
unless it could deter
against
mine to a
Cadek on his
certainty
negligent
that a
rescue claim.
verdict
(the
awarding
The district
court based its decision on
$5000.01
amount neces
the
sary to
$50,000)
enforceability
exceed
in
of the
damages
signed
release Cadek
“would be excessive and set
order to run
aside for
on the
that
track.
Sharp,
reason.”
(quoting
939
at 515
Bell,
243,
7)
320
U.S.
64
(quoting
S.Ct. at
law,
Under Wisconsin
exculpatory
Edmunds,
Barry v.
116 U.S.
6 S.Ct.
strictly
contracts
disfavored and
con
(1886)).
where the seller misrepresented applica the activity covered). and location of events building Mis ble code to purchaser of an representations in the exculpa context of an apartment building, the Supreme tory contract render it void even when the Court held that damages prop were plaintiff prove is unable to all the elements of injured “if party er shows a reckless fraud. indifference disregard to or rights part others on the wrongdoer.” Lun though Even all the misrepre- elements of Shimanski, 175, din v. 124 Wis.2d 368 sentation or proved mistake cannot be in a 676, (1985). N.W.2d 687 juryA could cer involving (and exculpatory an contract tainly find that misrepresenta Great Lakes’ in this case specifically, more defendants tion of their inadequate fire-fighting capabili assert that the prove cannot she ties disregard showed reckless rights for the relied on misrepresentation), their relief safety and of competitors spectators. granted should be exculpatory safety issue, Where is at the Wisconsin probability contract when the of unfairness Supreme Court has damage allowed exists.... [W]e that it conclude would be recoveries even in cases of non-intentional contrary public to policy to enforce an Wangen torts. v. Ford Company, Motor 97 exculpatory contract bargaining when the (1980) (court 294 N.W.2d process involves a deception mistake or allowed damage products claim in which is relevant to a person’s reasonable liability case where defendant knew of de- decision to execute a release allocating fects). In determining the size of an award losses. Cadek, reviewing the alle- representations Nathan, 108 Wis.2d v. Merten Cadek, most favorable light in the Merten, gations re- N.W.2d Artisoft, v. required because Gould it was stated lease placing Cir.1993), Lakes’ conduct horse- for- his no insurance had defendant location, keeping it equipment on he did in fact when back-riding operation affirma- dysfunctional, it became to en- there after court refused insurance. engine the fire misrepresented that though tively even contract exculpatory force operation- on was manned reliance not establish plaintiff could Lundin al. See Shimanski misrepresentation. (“a (1985) n. 5 misrepre- above, As discussed in one’s conveyed can be misrepresentation capability. Whether fire-fighting sented words”); Goerke by spoken as as well actions gar- truck or has manned track 102, 226 N.W.2d 67 Wis.2d Vojvodich, reason- to a is fight relevant fires hose den (1975) conduct can (recognizing his car to run whether person’s decision able fact). The misrepresentation serve as liability sign a track could at the presence fire truck’s as as material is at least do so and release to believe a reasonable lead in Mer- no insurance functional extinguishers were truck and evidence Therefore, produces if Cadek ten. *5 fires. fighting capable of should the release allegations, his support to negli- his bar and not held unenforceable alleged Lakes’ that Great agree I also claim. gence physical endangered Cadek’s fraud, which warrant potentially could safety,
Conclusion
him to meet the
thereby allow
damages, and
require
for lack
controversy
claims
of Cadek’s
amount
jurisdictional
dismissal
1332(a),
is reversed.
and survive
§
subject
ment,
matter
28 U.S.C.
see
for
12(b)(1).
court
to Wiscon
to the district
lookWe
is remanded
under
dismissal
opin-
with
dam
determining
consistent
proceedings
law
further
sin
alleged
damages for the
ages
recoverable
ion.
Plus,
Copy
Corp. v.
Elecs.
Sharp
tort. See
concurring in the
FLAUM,
Judge,
Cir.1991).
Circuit
Under
513,
Inc.,
515
939
judgment.
available
damages are
law, punitive
this state
543,
Nysse, 98
Wis.2d
fraud.
improp
court
that
I too believe
(1980);
Sharp,
495,
see also
of 297
for lack
N.W.2d
claims
erly dismissed
con
alleged tortious
While
F.2d at 515.
Fed. 939
jurisdiction under
subject matter
wilful
level of
ordinarily
to a
rise
must
facts
duct
pled sufficient
Cadek
R.Civ.P.
to
rights or interests
disregard
wanton
engaged
had
Lakes
allege that Great
to
damages, see Loehrke
he
recover
and that
by its
695,
Builders,
damages, Wanta
entitled
therefore
miscon
(1989),
717,
the level
in N.W.2d
the amount
enabling him
meet
thus
actions
defendant’s
lower when
duct is
controversy requirement.
safety of others
life and
endanger
by al-
sufficiently pled fraud
First, Cadek
poten
knowledge of
defendant has
by Great
of fact
leging a
Ford
Wangen v.
tially dangerous situation.
(1)
alleged that:
expressly
Lakes. Cadek
Co.,
294 N.W.2d
97 Wis.2d
Motor
race
operated an automobile
Aircraft, 121
(1980);
v. Cessna
Walter
(2)
at race
hazard
track;
is a common
fire
(Ct.App.
816, 823
(3)
truck and
had a fire
tracks;
Lakes
Great
alleged
case, Cadek
1984).
the instant
track on
race
fire
in:
engaged
facts that
sufficient
(4)
Lakes’
accident; and
date
or should
knows
the defendant
conduct
not include
capabilities did
fighting
fire
know,
only that his
reason
only
but
extinguishers,
or the fire
fire truck
risk
unreasonable
an
creates
garden hose.
spigot
exterior
included an
strong prob-
is a
harm,
also that there
but
any oral
make
Lakes did not
Although Great
ability, although not a substantial certain-
not rise to the level of
misrepre-
fraudulent
ty,
but,
that the harm will result
neverthe-
sentation as defined
law.
less,
proceeds
with this conduct in reck-
Though no employee of the defendant
disregard
less
conscious
of the conse-
any representation
voiced
regard-
quences ...
truck,
the fire
conduct alone
suffice
Lundin,
368 N.W.2d at
n. 14 (quoting J.
representation.
as a
Vojvodich,
Goerke v.
Damages
Kirchner,
Ghiardi and J.
Punitive
226 N.W.2d
Practice,
ch.
5.01 at 8-9
Law
Goerke, the Wisconsin Supreme Court stated
(1984)).
sufficiently
Cadek
pled that Great
three
necessary
elements
for fraudulent mis-
recognized
Lakes should have
the risks that
(1)
representation:
(2)
representation,
false
accompany the
adequate
absence
made with the intent to defraud and for the
fighting capabilities on an active
purpose of inducing
it,
another to
upon
act
and, in light of
frequency
of fires on
(3)
that the other
rely
must
on it
tracks, proceeded
automobile race
with its
act,
and be induced to
injury
or dam-
disregarded
conduct and
potential harms,
age.
Id. Even if this
accepts plain-
Court
ultimately
which
reality. Thus,
became a
argument
tiffs
parking
that
a fire truck on a
adequately alleged
Cadek
facts and circum
raceway
anyone
would lead
to believe the
showing
stances
disregard
wilful
for his
operated
properly,
proves only
rights, making it
clear
he “could recover
first
It
element.
does not demonstrate any
punitive damages under the circumstances
malice or intentional inducement on
part
alleged in
complaint,”
Sharp, 939 F.2d at
of the defendant. Nor does it demonstrate
515, and
meet
require
so
relied on
supposedly
func-
ments.
tional truck that it induced him to race there.
WALTER,
Judge,
District
dissents.
*6
Other Wisconsin cases which found fraudu-
alleged only $45,000
Plaintiff
in compensa-
lent
involved much
tory damages.
more
If he
plead
failed to
facts
devious
Shimanski,
behavior.
In Lundin v.
sufficient to
legal
show a
punitive
basis for
prospective
buyer
home
sought
damages,
pro-
income
jurisdic-
dismissal
lack of
ducing property.
tion stands.
argues
Cadek
pled
suffi-
(1985).
N.W.2d 676
Cognizant
cient
fact,
facts to
show that
defendant had en-
gaged
by
misrepresented
seller
applicable
zon-
thus
entitling him
codes
induce
buyer
purchase
property.
Id.
Nysse,
v.
pro-
Jeffers
recognizes
Wisconsin law
fraud misrep-
spective
buyer
home
asked
seller what
ground
resentation as a
dam-
heating expense
be.
98 ages.
Nysse,
98 (1980).
diction, grant reversed. claim should negligence dissent. reasons, respectfully I
For these CORPORATION, RAND
REXFORD
Plaintiff-Appellee, Defendant-Appellant. ANCEL,
Gregory
No. 94-2529. Appeals, Court States
United Circuit.
Seventh 25, 1995. April
Argued 30, 1995. June
Decided