*1 judgment type specify in the divorce courts should lien awarded. case, the lien find that in this we on the record Based judgment divorce Wozniak to William awarded Accordingly, mortgage under lien. a real estate Kolosky death, upon Opal 700.24, Stats., Wozniak’s sec. subject property William Opal’s interest took lien. Wozniak’s court circuit judgment of the
By the Court. —The affirmed. Plaintiff-Respondent,
Vernon C. Sumnicht, Toyota Inc., Toyota U.S.A., Motor Dis Sales, Motor
tributors, Inc., Company, Motor Sales Ltd., Defendants-Appellants.†
Supreme Court Argued September No. 83-812. 5, 1984. Decided December 1984.
(Also reported 2.) in 360 N.W.2d Motion for † denied, reconsideration costs, February 5, Steinmetz, 1985. J., dissents.
For defendants-appellants by there were briefs Robert Scott, D. Ross Frisch, Anderson A. Dudek Slattery, Ltd., Milwaukee, by argument and oral Mr. Scott. plaintiff-respondent by
For there was a brief Kay, J. Kay, Robert Mark C. Williamson and Geisler & S.C., Madison, argument by Kay. and oral Robert J. by
Amicus filed curiae briefs were Alan Gesler E. Rotter, Tarnoff, Warshafsky, Reinhardt, Gesler & S.C., Milwaukee, Academy of for the Trial Wisconsin Lawyers; and, Kluwin, Dunphy James D. Ghiardi and Liability Hankin, Milwaukee, & for The Product Ad- visory Council, Inc. and The Motor Vehicle Manufac- States, H. turers’ William Association United Michigan, Crabtree, Detroit, of counsel. CECI, this appeal before court J. J. This
LOUIS pursuant appeals from the court on certification judgment 809.61, Stats.,1 from a (Rule) and is Sec. Stats., 809.61, Section reads follows: upon appeals (Bypass or mo- certification of court “Rule jurisdic- court). may supreme supreme take court tion appeals proceeding appeal in the court of an or other tion of upon appeals supreme upon the court of certification supreme may to take court refuse motion. court’s own *6 county, for and order of the circuit court Walworth denying Byrnes, judge, appellants’ circuit John J. mo- granting respondent’s tions after verdict and motion judgment against appellants on the verdict in the judgment $2,350,000. affirm and amount of We the order. appeal: presented are on
Four issues jury’s finding the (1) the Whether sup- cause of Sumnicht’s is was a seat ported by evidence. credible finding the defect jury’s
(2) Whether the danger- unreasonably was by evidence. supported credible ous (3) prejudicial for the trial Whether it was error concerning Toyota’s testimony opinion court to allow negligence dismissing then, after and testimony claim, opinion to and in- refuse strike the disregard jury it. struct (4) prejudicial for the trial it error Whether was Toyota’s duty on warn. court to instruct automobile accident arises from an This case May 16, 1976, 2:00 a.m. on after occurred sometime awas C. Sumnicht the vehicle in which Vernon when roadway collided with passenger on a curve left the quadriplegic a re- a was rendered Sumnicht tree. accident. sult of this Highway 89, approximately
The accident occurred on Whitewater, miles The evi- five south of Wisconsin. accident, immediately prior dence is clear lying down, was with his head behind Sumnicht Toyota seat, Corolla seat of a driver’s the back O’Connor, Jr. operated Edmund C. two-door sedan using seat belt. the available Jack Sumnicht was not Vallerugo seat of the passenger’s riding in the front jurisdiction proceeding certified to appeal or an other appeals.” court Toyota, equipped which was with bucket seats. Sum- Vallerugo nicht, O’Connor, returning were University Wisconsin-Whitewater, they where were students. Highway 89, on
The vehicle headed north when it large roadway. Toyota curve entered highway, traveling approximately off drifted along drainage shoulder. It then crossed a feet grass hitting before ditch and climbed incline tree, impact the moment of with the tree head-on. At traveling thirty to be between was estimated fifty per hour. miles *7 O’Connor injuries, sustained chest from which he fully Vallerugo recovered. also received chest hospital. and died en route Sumnicht suffered a spine C6-7, fractured dislocation of his cervical quadriplegia. which caused his than his Other severed spinal cord, relatively injuries, Sumnicht had minor chipped teeth, possible a two frac- consisted of leg rib, lacerations. tured and two initially against Sumnicht commenced suit driver the of Toyota, the father, insurers,2 his and their later amending complaint his to three include sellers and dis- Toyota tributors of the 1975 in involved accident the (collectively referred “Toyota”).3 to herein as The 2 trial, Pierrmger-type Prior to the O’Connors received a re lease from exchange $800,000, subsequently, and; Sumnicht the O’Connors and their insurers were from this action. dismissed joined Toyota Sumnicht never the manufacturer alleged complaint involved in this accident. The amended Toyota Inc., Sales, U.S.A., Toyota Motor and Motor Sales Com Ltd., pany, engaged manufacturing, were the business selling, distributing Toyota and, specifically, and automobiles they Toyota. answer, manufactured the In their these Toyota they Toyota auto defendants manufactured admitted that Toyota. having Prior mobiles but denied manufactured the 1975 they trial, their to withdraw moved amend answer alleged complaint of action on the theories of causes liability negligence. products and strict January 31, lasting commenced on trial liability case revolved three Sumnicht’s over weeks. the theories that front around dangerous unreasonably Toyota and was both defective designed negligently His and manufactured. reconstructionist, a experts mechan- included an accident engineer, safety engineer, engineer, a biomedical ical metallurgist. neurosurgeon, collision, experts that, at time These testified lying seat, was with his Sumnicht down the back They Toyota. head toward driver’s side of impact upon tree, of the car with the Sum- theorized propelled en- nicht head became forward his was portion trapped in the back of the driver’s cutout forward, smashing seat, swung while his lower torso passenger’s in- seat. The into back the front loose, hinge passenger’s allow- on seat broke board ing wrap around the seat. Sumnicht’s lower torso torso, forward of his lower continued movement shearing stationary, created while his head was his spinal injured and resulted his cord forces which quadriplegic condition. experts opined
Sumnicht’s *8 dangerous negligently unreasonably and and designed the and manufactured insofar as the back any energy-absorbing material did have bucket seat not vinyl Instead of bucket seat cover. beneath permitted serving absorber, Sum- seat’s shock captured in the hollow cutout head to become nicht’s seat. portion of the driver's back connect hinges passenger’s seat The on the criticized. were also back the seat to the seat bottom trial, during court did admission, and, of the course finally permit to the answer. the amendment testimony There was that the inboard bracket on the passenger’s upon impact seat broke because it was made of the weakest steel available. This allowed Sumnicht’s propel lower torso to around and enter the front seat Toyota. experts area of the Sumnicht’s concluded that designed had the seat not backs been so and had the broken, bracket would not Sumnicht have sustained paralyzing injuries. Toyota Conversely, opinion of the was the seat system did was not defective and not cause Sumnicht’s engineer injuries. Toyota’s liability experts included an specializing analysis, engineer, in crash a biomechanical reconstructionist, metallurgist. an accident and These experts did not theorized head become Sumnicht’s entrapped just seat at It was all. reasoned prior collision, injured up sat was to the and Sumnicht when he was thrown over and between the front buck- striking seats, of the et his head on the dashboard area automobile.
At phase trial, the verdict formulation of the the court negligence Toyota’s dismissed the claim at request, and jury solely theory the ease went on of strict liability. jury The found that the 1975 automo- bile contained such a defect of the seat system dangerous unreasonably prospective toas to a passenger in the rear automobile found that such defective was a cause of plaintiff over and above those which he probably would have sustained as a result of the collision design. without jury such defective found that also O’Connor negligent at the time of the collision negligence plaintiff’s his in- was also a cause of juries. jury negligent found that was not prior in his conduct own to the collision. The apportioned fifty percent to the de- driver, fifty Ed- percent fective seat *9 million O’Connor, The awarded 4.7 Jr. mund C. including personal injuries, plaintiff’s for the dollars future; permanent suffering, past and his pain and his future; earnings, past and and disability; his loss nursing care, past drugs, and medical, hospital, his damages specifically for awarded were These future. in- sustained over above injuries which juries probably which he have from would sustained design system. without the the seat collision damage per- trial court reduced the award The centage O’Connor, denied attributed judgment Toyota’s verdict, after and entered motions against in the amount of 2.35 million dollars. appeals. Toyota now
I.
A. Introduction
This suit commonly falls within cases re class of “crashworthy” ferred to “second collision” or cases.4 imposes liability upon crashworthiness doctrine 4 Although interchangeably are these terms used most courts, suggests one commentator there is differ a subtle liability. states, ence between these theories of He “Second physical secondary impact collision be cases involve an actual injured party specfic part tween the or and a the interior which, defect, in exterior of the vehicle because of . . . creases enhances the sustained. ‘crashworthy’ hand, case, . an al “A on the . . involves other occupy legation that a defect in the vehicle made unsafe plaintiff’s during were a foreseeable collision thereby allegation directed enhanced. defect is not part, injury, specific with causes but instead contact gives passengers protection a vehicle its concerned the overall Injury: Foland, Problems Enhanced in a collision.” Proof “Crashworthy” Cases, L.J. Collision” and Washburn “Second (1977) (footnotes omitted). 600, 606-07
21] design
manufacturer vehicular collision case for do not defects which cause the initial accident which but injuries additional or more severe cause when the driver passenger subsequently impacts or with the defective interior or exterior of the vehicle.5 This double-collision following: distinction is clarified “An the first really automobile collision is two plaintiff’s In collisions. phase accident, automo bile collides with another automobile or with a sta tionary object. property damage Most of the results from the hicle collision, first occupants but of the ve usually injury stage. sustain little or no at in the second this injuries Personal frequently occur most collision, occupants against in which the thrown are part collide with some of their Courts automobile. will plaintiff’s hold the manufacturer the second for liable loss only if collision of the auto injury. Yet, mobile plaintiff’s caused or exacerbated the if a court finds that defective automobile did determining injury, cause some where one defendant’s virtually liability begins may im ends another’s possible. Both manufacturer those for causes, to other should be liable and those attributable such as the Apportionment during negligence, occurred another driver’s Note, very span collision.” brief time of the second Damages the “Second Collision” (1977) (footnotes Case, 475, L. Rev. 63 Va. omitted).
The instant
can
case
be termed a “second collision”
respondent’s
Toyota’s
case
because
claim is
not
(“first
defective seat
caused the accident
col-
lision”), but, rather,
that as a
impact
result of his
(“second
defective seats
collision”), he sustained in-
juries which he otherwise would not have sustained.
generally, Ropiequet,
See
“Current
Issues Under
the ‘Second
Doctrine,”
Defense,
Collision’
For
(DRI
vol.
No.
at 12
1983) ;
Annot.,
Oct.
(1981).
stressed accident, long actually initial as fect cause the did causing injury. it was a factor substantial quoted approval Arbet, 2d 557. We Wis. Schnabl, from “ Appellant suing ‘. . injuries, . is not for total but alleged death to have been caused the incre- injury faulty
mental which occurred seat because belt. “ ‘This court has held that “The test of cause Wis- consin stantial is whether the defendant’s was sub- contributing It factor the result.” need factor, factor, only primary “a sub- not stantial the sole delivery in factor.” Wisconsin Whether faulty factor of a in could have been a substantial belt causing deceased, played if it no of is even the death accident, question be deter- part of fact ” Arbet, 2d at 557- fact.’ 66 Wis. the trier of mined Schnabl, 2d quoting at 353-54. from Wis. pleadings,
Arbet and, this before court on the therefore, problems the decision did not deal with the *12 proof of went trial. instant case to the on theory liability.7 products the of strict this doc- Under 7 (Second) Restatement Torts (1965) 402 A sec. was first of adopted as a liability by rule of strict in tort court this in Dippel Sciano, 459, (1967). 2dWis. N.W.2d provides, Section 402 A Special Liability “Section 402 A. of Seller of Product for Physical Harm to User or Consumer “(1) any product One who sells in a defective un- condition reasonably dangerous property to the user or consumer or to his subject liability is physical thereby to for harm caused to the consumer, user property, ultimate or or to his if “(a) engaged selling the seller is in the such of business product, and “(b) expected it is the consumer to and does reach user or change without substantial in the in it is sold. condition which “(2) although (1) applies The rule in stated Subsection strictly trine, may a manufacturer be held liable product unreasonably harm caused a defective dan- gerous the user or consumer.
B. Burden Proof of proof prod- in
The standard of issue “second collision” being liability phrased by cases has been some as ucts party proving an which the of issue of bears burden the damages.8 damages apportionment Apportionment of of plaintiff's prov- should not burden of be confused ing explains, causation. One author it conduct “Once is determined that the defendant’s damage plain- of the has been a cause tiff, some suffered question portion may as the of a further arise damage may properly as- the total which be sustained distinguished signed defendant, from other to the as primarily not fact question one of the causes. The feasibility practical con- causation, and the but of separate up splitting total harm into the venience parts or more may each of attributed to two preparation possible “(a) care the has exercised all seller product, his sale of bought product from “(b) has not user or consumer the seller.” any relation with or contractual entered into adopted Dippel, of strict the rule Under “(1) following prove [T]hat to recover: must possession left product condition when was dangerous unreasonably seller, (2) it was that or control of (a a cause (3) was consumer, the defect to the user or (4) damages, plaintiff’s or factor) of the substantial or, product selling such engaged in the business the seller infrequent trans- negatively, put this is not an isolated seller, and principal business not related action expected seller product one which (5) change substantial or consumer without the user did reach at 460. Dippel, 2d 37 Wis. he sold it.” was when condition it Damages “Second generally, Note, Apportionment See *13 (1977). Case, Rev. L. 475 63 Va. Collision” causes.” Prosser and Keeton on Torts 52 at sec. (footnote omitted) .9
The Arbet decision
us
tells
has a
Sumnicht
cause
against
of
liability
action in strict
Toyota for all in-
juries
system
which
defective seat
awas
substantial
causing.
factor
Arbet,
prem-
harm proof apportionment upon is each actor. as to the such tortious, “(3) two or more actors Where the conduct of plaintiff by proved been caused and it is that harm has only them, uncertainty one has one as to which but there is prove upon that he it, each burden is such actor to caused has the harm.” not caused *14 354 damages properly apportionment pre- raised. The of party is bears the burden of
cise issue here damages apportioning involving joint in cases tort- feasors, plain- quantum but what of evidence must a liability bring products tiff forth in a “second collision” injuries proximately prove were case to that his caused by the manufacturer’s defect. divergence opinion
A
on this issue stems from
Corpora-
following language in Larsen v. General Motors
tion,
of the damage injury probably that over above the impact or colli- have occurred as a result would design.” (Emphasis Id. at 503. sion absent the ; Arbet, added.) 2d at 561. cited in 66 Wis. position language, appellants Based on this take the that plaintiff in a must not “second collision” case the only prove product the defective was a substantial causing injuries, prove factor must but also what been no would have been had there liability defect. asserts that its is nonexistent until to which the Sumnicht shows the extent were enhanced defect. plaintiff’s opposing
Two views on standard Levin, proof Huddell v. F.2d are set forth in Co., (3d 1976), and Fox v. Ford Motor 575 F.2d Cir. Huddell, (10th 1978).10 Toyota relies on where- Cir. 1 0 suggested be has been one court the difference It as it has the Huddell Fox decisions is not as extensive tween “The decisions are not as irreconcilable been made out to be. agreement they may appear, are in however. The decisions only injuries, the enhanced is liable the manufacturer alleged plaintiff prove causation must some between that a departure point injuries. is Their defect and the enhanced Volkswagen required.” proof degree Caiazzo on 1981). (2d A.G., 241, 250, n. 16 Cir. werk F.2d prove that court held that must three crashworthy in a
elements order recover case. “We have forth, supra, set proof basic elements in an orthodox strict Jersey case under New *15 law: a product causing injury. simplicity general difficulty formulation apply- belies the of ing it in the variety infinite of cases that arise. Unlike products orthodox litigation, crashworthy or impugning design second collision cases of an invariably require highly automobile a refined and almost presentation proof difficult of in three as- pects. First, establishing question in defective, plaintiff proof must offer of an al- ternative, practicable design, safer under the circum- Second, stances. . . . plaintiff proof must offer of injuries, any, what if would have resulted had al- ternative, agree safer ... been used. We regard Judge Rajeski, this Yetter Barlow in v. 105, absolutely Supp. (D.N.J. 1973) F. necessary as to the extent ‘it is jury presented that the with some evidence any, injuries, if which would have of plaintiff’s hypothetical de- been suffered . . . had the Third, corollary sign been . . .’ as a installed. aspect plaintiff offer some proof, must second method of establishing enhanced extent of design.” at 737-38. Id. attributable to the defective original.) (Emphasis in requiring
The Huddell court has been criticized for
plaintiff
impossible
proving
to assume an
burden
negative
Appeals
a
fact.11 The United States Court of
Eighth
declares,
for the
Circuit12
primary
“The
difficulty we have with [the Huddell]
analysis is that
only
parties
forces not
but the
try
hypothetical
well to
Liability
a
case.
damage questions
enough
are difficult
within orthodox
principles of
extending
tort
law without
consideration
1 1
for the “second collision” doctrine. hypothetical realistically, to a case of a More victim. parties juries should direct their attentions to might actually happened what happened. rather than what have .“. . write to reaffirm that Larsen was not in- We requires plaintiff to a tended create rule which negative impossible proving assume an fact. burden of requires prove A rule law which what party portion and what pen harm was caused each of indivisible might hap- happened in of what did have lieu speculation proof requires of the im- obvious possible. governing approach the common law rules This converts legal a morass causation into principles of Volkswagen- uncertainty.” Mitchell of confusion and 1982). (8th AG, 1199, Cir. werk, 1204-05 669 F.2d approach
Sumnicht relies on a second
to the standard
proof
case,
in a
“second collision”
enumerated
Fox,
places
significantly
575 F.2d
lesser
proof
plaintiff.
Fox,
on a
In
the tenth circuit
burden
require plaintiffs
found no
reason
second collision
*16
bring
proof
required
cases to
in addition to that
forth
plaintiffs
cases, i.e.,
plaintiff
of
in all tort
that
suf-
cognizable
by
injury
legally
proximately
fered a
caused
reasoned,
the defendant. The court
“Generally
duty
prove
this
to
so-called enhanced dam-
ages
simply
part
is
plaintiff’s
responsibility
prove proximate
to
cause,
is,
the defendant
in such a
only
damages
case is liable
for those
which are
within
the orbit
him,
of risk created
but Ford would
say
plaintiffs
required
have us
prove
were
to
specificity
injuries
specifically
which flowed
from its deficiencies.
“The
case which is relied on
to illustrate
Ford
position
its
Levin,
(3d
is Huddell v.
the other jury. in a sense must Each one’s contribution causal be Damages may apportioned between the established. be or a reasonable if there distinct harms two causes basis are determining injury. the causes of Restatement for Torts, Second, A.” Id. at 787. sec. 433 apportion- The tenth circuit then addressed the issue of holding damages, not a ment of that death “is divisible injury appropriate or apportionment is either possible.” Id.
For the Fox, reasons set out in Mitchell and this court rejects requirements also the two enumerated in Huddell plaintiff that the in a case “second collision” must offer proof injuries, any, of what if have resulted would alternative, had an safer and that been used establishing plaintiff must offer some method of extent of enhanced attributable to the defective design. approach contrary Huddell strict Wisconsin’s
products liability law.13 The law of this has never state required prove negative fact of what had would have been there been no defect. change This court does not intend the law at this Second, proven time. in a that must elements state, clearly strict are this case established in uniquely and we will not create new rules tailored liability, second The rule of strict collision cases. *17 adopted product Wisconsin, requires proof in that dangerous, unreasonably condition, inwas a defective long-standing plaintiff’s harm. The which caused the 13 See, n. above. 7
358
test for cause in Wisconsin is whether the defect was
producing
injury.
substantial
factor
Howes
v.
Company,
268, 273,
&
71
2d
Deer
Wis.
Blashaski v. Classified Ve- v. Leisure 174, 175, (1970).” Clark 179 N.W.2d 617-18, 292 N.W.2d hicles, Inc., 2d 96 Wis. (1980). prove plaintiff requirement in Huddell cases, would, in some extent of enhancement portion of require isolate may an be solely by This the manufacturer. caused of this the law required impossible and is not task the substantial applicability affirm the state. We proving causation. test factor keeping state, hold that In we the law of this plain- products case, the in a “second collision” a sub- product was prove that the defective tiff must damages causing the harm from stantial factor in degree plaintiff will are claimed. The to which distinguish injuries sustained required between the the “sec- and those sustained in the “first collision”
359 governed by proving ond collision” will be his burden of require- causation via the substantial factor test. This necessarily dependent upon particular ment is facts Toyota’s instance, case. For defective seat case, and, therefore, did not cause accident this solely is not for from liable caused However, recognize plaintiff collision.” we that a “first distinguish every will have to between case because not all “second collision” cases involve injuries capable multiple division. any event,
In plaintiff proven once the has injuries, defect was a prove cause of his he need not portion what solely of indivisible harm is attributable to the manufacturer. If is more one there than tort- injury, feasor who contributed to the Wisconsin’s law concerning joint liability applies. and several “ negligently two actors conduct themselves so ‘When injure another, jointly,and severally they as to liable become time to if concur in other their actions directly produce situation. See: injury-producing injury to create an Hospital Butzow v. Wausau Memorial 281, 288, 289, (1971), 349. 51 2d 187 N.W.2d Wis. 302, Heintz, Johnson v. 2d 243 N.W.2d Wis. 73 Ford, Bacon & (1976).’” 815 Wis. Natural Gas 314, 331, Constr., 291 N.W.2d Davis 2dWis. (1980). in Butzow situation This similar to the fact case is Butzow, Heintz, In tortfeasors. successive both of which involved only original was liable not tortfeasor we held negligence, for the proximately by also damages but caused his physician. negligence aggravation of a damages caused jointly physician and sev were original and the The tortfeasor physician damages. aggravation only erally for the liable solely by the damage caused was not liable for the original tortfeasor. Heintz, which court this was reached The same result subsequent accident. automobile collision a double involved above, only As discussed after the establishes joint appor- there are tortfeasors can the issue of damages tionment of be raised. *19 Sufficiency
C. Evidence reviewing In jury’s verdict, the test is whether there any credible evidence in the record on which the jury could have based its decision. The evidence is light viewed in the verdict; most favorable to sustain the we do not look for credible evidence to sustain a verdict jury could, not, Huebner, but did reach. D.L. v. 581, 634, ; 110 (1983) Wis. 2d 890 N.W.2d sec. 805.14(1), Stats.15 credibility weight given “The of witnesses and the to testimony
their
jury’s judgment,
are matters left to the
and where more than
can
one inference
be drawn from
evidence,
the
by
accept
this court must
inference
drawn
jury.”
524,
Keane,
536,
Roach v.
2d
Wis.
(1976),
approval
N.W.2d 508
American
cited with
Johnson
644,
Family
Co.,
Mut. Ins.
2d
93 Wis.
(1980).
Question special in this case number two of the verdict asks, only damages tortfeasor was held liable for the in the sustained Likewise, Toyota second collision. in this case is not liable for injuries collision,” sustained in the “first because defect injuries did cause the accident. is liable sustained in the “second collision” if the defect a substantial factor causing injuries. those 805.14(1), Stats., provides Section Mo as follows: “805.14 challenging sufficiency evidence; tions verdict. motions after sufficiency op challenging (1) No motion Test of evidence. sufficiency support evidence as a matter of law verdict, verdict, granted or an answer in a shall be unless considering
court that, is satisfied evidence and all credible light reasonable inferences most favorable therefrom party against made, credible evi whom the motion is there is no finding party.” dence to sustain a in favor of such “Was such cause prob- over and above those he ably would have sustained as a result of the collision without such defective ?” this, language The “over and above” ques- verdict specifically objected tion was Sumnicht at trial. argued He there was no basis in Wisconsin’s law language for this question simply should operative ask whether the defect was a substantial factor causing injury. agree specifically reject We language the use of the “over and above” contained in question. the causation The correct test of causation is Toyota’s whether defective seat awas “sub- producing quadriplegia. stantial factor” Sumnicht’s *20 Given the question, erroneous verdict we must decide granted. whether a new trial must be A trial new is not if, warranted special “. . . questions verdict ade- instructions
quately conveyed necessary jury information jury and the findings necessary made the to allow the circuit recovery.” Foley, court plaintiffs’ to calculate 2d at Wis. 494. We hold that the instructions and the verdict were adequate under the jury given circumstances. The jury standard instruction for cause16 and instructed 16 Wis. J (1977), provides I—Civil 1500 which as follows: questions inquire “The cause as to whether or not there was a causal negligence any connection person, between the as by you, found (collision) (accident) (accident (injury) injury). questions Notice that these do not ask ‘the about cause’, may but ‘a rather cause.’ The reason for this there he more (collision) (injury). than one (accident) cause of a negligence person may (collision) (accident) (in- one cause a jury) negligence may persons the combined of two or more you person’s cause it. (any) (a) negligence Before can find that negligence that the defect or the of the defendants need actually accident, long cause the initial as the defect or such was a substantial factor causing injury plaintiff. Subsequently, jury ques- returned an affirmative answer to the cause conclude, positions tion. It is reasonable to based on the parties and the trial, evidence adduced at that the injuries considered the “over and above” those injuries probably would have been sustained as a result of the collision without such defective quadriplegia. be Sumnicht’s The issue now is whether there is support finding credible evidence to Toyota’s system defective seat was a substantial factor causing quadriplegia. Sumnicht’s We conclude that there is.
Toyota first contends injuries that Sumnicht’s were by not caused system defective seat because Sumnicht did not receive his becoming his head en- trapped in the legs driver’s seat while wrapped his passenger’s around the seat, by flying but between the hitting bucket seats and his head on the dashboard of Toyota. Alternatively, Toyota avers that even if the defective seat did contribute to Sumnicht’s injuries, respondent’s proof was insufficient to sus- tain question an affirmative answer to number two of verdict, experts because Sumnicht’s did not render testimony respect to the extent to which Sumnicht’s system. were enhanced the defective seat *21 was (collision) (accident) (injury), you a cause of the must find negligence factor, that is, his was a substantial that that it had influence, producing (collision) a substantial (accident) in the (injury). words, real, In other there must be such a con- causal negligence (collision) (accident) nection between the the (injury) that the under consideration was a factor actually operating producing which had a substantial effect (collision) (accident) original.) (injury).” (Emphasis jury
Toyota properly believes that was instructed proof injuries concerning required in a “second argues case,17 the trial court erred collision” but that evaluating sufficiency plaintiff’s proof. injuries asserts that his were caused Sumnicht first system, by Toyota’s seat which allowed his defective portion entrapped in the hollow cutout head to become legs propel to the driver’s seat and his of the back of Second, he passenger’s around seat. believes bring required evidence of enhance- not to forth he was theory Toy- injuries his ment is not because injuries system his enhanced defective seat ota’s but, rather, fractured, spine was where his cervical injury. entire proximately caused his the defect part “This is crash- was instructed in as follows: Toyota plaintiff claim that worthiness case. The does not plain any way to occur. The defendants in caused collision design of the tiff does claim that one or more defects injuries system which he would front him sustain seat caused not in the accident. have otherwise sustained injuries, “Question refer to such No. of the verdict you injuries.’ they find If ‘enhanced are sometimes called defective, system ‘enhanced Toyota the term seat injuries over injuries’ applies portion of Mr. Sumnicht’s probably any injuries have received , would and above that he system not had if the seat the tree result of the collision with been defective. plain- you Toyota “If find that the are liable to defendants only damages tiff, that will their to those is limited injuries any fairly compensate caused plaintiff for additional words, system. seats were if the the defective In other seat compensate defective, liable to are not not defendants any damage as a which occurred the tree. result of the collision with have “By token, you would Sumnicht that Mr. the same if find injury a differ- or even similar the same or a sustained injury the seats even if equally the accident serious ent but Question your No. defective, answer then had been Mr. cause did not because a should ‘No’ injury.” any Sumnicht of such enhanced *22 spinal his cord, respondent Besides severed suffered inconsequential injuries. experts during testify
Six were called to course Testimony significant of case in Sumnicht’s chief. Enz, the issue of causation included that of Bruce engineer safety reconstructionist; and accident Dr. Sanees, engineer; Anthony a biomedical Dr. Patrick Walsh, neurosurgeon; Brenner, and Dr. Robert engineer. safety Enz, president Safety
Bruce vice of the Institute Analysis, regarding testified the accident reconstruction respondent’s and the kinematics18 the time of the thorough collision. Based on his examination Toyota, that, he impact, concluded at the time of the respondent lying in the back of the vehicle seat side, on his left with his head side. toward driver’s upper In progression, a simultaneous his torso struck entrapping seat, por the driver’s his head in the cutout seat, legs forward, tion of the driver’s while his flew striking passenger’s con seat. His lower torso then tinued forward as a result of the failure of the seat’s together bracket back rest and holds seat’s body bottom. movement caused to ro This Sumnicht’s upper tate around his thorax area. Enz’s examination Toyota possible kinematic eliminated other his could have sustained scenarios which Sumnicht concluded, injuries. Enz my opinion entrapment capturing
“It’s capability bracket backs and the failure of the injury enhanced and created the mechanism.” Anthony Dr. Sanees concerning also testified his analysis injury sequence. Sumnicht’s Based on his dynamics Defined as “a aspects branch of that deals with (as of motion apart velocity) acceleration and from considera tions mass and force.” Webster’s Third New International Dic tionary (1967).
inspection and his evaluation of the medi- *23 reports, upper cal portion Sanees attested that spinal legs swung column Sumnicht’s became fixed as his This forward. created a shear force sixth between the subsequently ripped and seventh cervical elements that spinal opined cord. He that Sumnicht would injuries paralyzing have sustained his if the driver’s entrapped and seat had not allowed his head to become if had the seat’s bracket not failed. mainly
Dr. respondent’s Walsh testified from the X-rays. injuries He paralyzing claimed that Sumnicht’s by were caused spine, a number of forces on his includ- ing flexion, compression, shear, possible rotation. importantly, findings More Walsh stated that these hypothesis respon- were consistent with the that entrapped dent’s head became the back of the driver’s seat while his lower torso continued to move forward.
Finally, Brenner, president Robert of the Institute design Safety Analysis, respect with testified assigned Toyota’s system. initially Mr. Enz seat He apart taking responsibility the crash vehicle with the analyze happened He subse- in the crash. what reports and quently studied a number of documents analyze crashworthi- himself to examined the vehicle opinion Toyota’s system. He was of ness design factor awas substantial the defective seat injuries. causing Sumnicht’s support hold that We there is credible evidence to finding the defective seat was a substantial causing injuries. separate factor Two Sumnicht’s presented at as to how Sumnicht’s theories were trial spinal Toyota opined the re- cord was severed. hitting injuries spondent’s caused were Sumnicht’s jury Toyota. The his head on the dashboard theory and, Toyota’s in- obviously chose not to believe theory We of causation. stead, relied on Sumnicht’s agree jury’s determination, supported which is by expert testimony physical and the facts of this case.
Second, although required Sumnieht prove was not what injury extent of his any was over and above in- probably which he would have sustained as a result of the collision without design, the defective proven essence this was at trial. There is sufficient support theory evidence to portion Sumnicht’s of indivisible harm solely attributable to the defective spine. was his respondent fractured cervical adequately distinguished between the he would have (his sustained without injuries) defect minor (his those caused the defect fractured *24 spine). court, The trial verdict, motions after held jury that the did make a concerning determination en- injuries. hancement of found, The trial court and we agree, that say it is reasonable to rea- soned that if the seats properly had been engineered, respondent would have practically sustained no in- juries. Technically, system defective seat did not “enhance” because, Sumnicht’s but for the de- fect, there were no to enhance. The defect in this case was latent until activated car; acting together, driver of produced this quadriplegia. Toyota’s Sumnicht’s defective seat did respondent’s injury; not enhance the it was a sub- causing stantial factor in it.
II. Sumnicht’s liability entire case on concentrated alleged design Toyota’s system. defects in “The fact the defect relates rather negligent than In makes no difference. manufacture Fox River Tractor Co. 2d Schuh Wis. [63 (1974)] manufacturer this court held that a N.W.2d theory liability products could where a be liable under strict un- designed it was it had a machine such reasonably dangerous.” Arbet, at 556. 2dWis. (Emphasis original.) requires proof rule of strict in Wisconsin product was in a defective condition when it possession left the or control of the seller and that unreasonably dangerous user consumer.19 Determining product a is whether whether product unreasonably dangerous separate a is are two inquiries. emerged separate approaches
Two have to evaluate consumer-contemplation defects —a test danger-utility approaches been dis- test. These have tinguished as follows: consumer-contemplation test, “Under the as so stated Torts, in Section 402A of the Second Restatement of product dangerous dangerous defectively is if it beyond to an by ordinary knowledge the contemplated extent that which would be ordinary purchased consumer who it with community as to common to the product’s characteristics. danger-utility approach, “. . . Under [the test] product designed only if, if, but is defective as magnitude product. virtually that there is outweighs utility danger the theory underlying *25 approach is that this and products all and benefits have both risks evaluating go haz- way about no danger against intelligently weighing ards without ways of utility. different There have been somewhat But in es- articulating or test. this ultimate standard attor- sence, neys, ing danger-utility attention test directs weigh- necessity for juries judges, and trial prod- danger-in-fact particular feature of a
19 See, n. 7 above.
368 against utility.”
uct Torts, its Prosser Keeton on (footnotes omitted). sec. 99 at 698-99 consumer-contemplation Wisconsin is committed to the determining product test for whether a is defective.20 Co., In Vincer v. Esther All-Alum. Wms. S. Pool 69 Wis. 326, (1975), adopted 2d 230 this court com- N.W.2d 794 g (Second) ment to the Restatement Torts 402 sec. part 351, A at which defines “defective condition” as follows: “ ‘g. condition. The rule stated in this Sec- Defective only is, applies product time it tion where the contemplated hands,
leaves in a condition not the seller’s unreasonably consumer, the ultimate which will ” dangerous Vincer, 2d at 330. to him.’ 69 Wis. Conversely, comment h to sec. 402 A the Restatement product defines when a is not defective. product “h. A is not in a defective condition when
it
statement
handling
consumption.”
is safe for normal
Re-
(Second)
A,
Torts
402
h at
sec.
comment
351.
Although these comments
guideline,
serve as a
the term
“defect”
susceptible
any general
definition,
and a decision on whether a defect exists must be made
on
case-by-case
Dept.
basis. Keller v. Welles
Store of
Racine,
24, 32,
88
2dWis.
(Ct.
276
App.
N.W.2d 319
;
1979) Ransome
Co.,
v. Wisconsin Electric Power
605, 621,
Wis. 2d
(1979);
Jagmin
N.W.2d 641
v. Simonds Abrasive Co.,
60, 66,
2dWis.
211 N.W.2d
(1973).
The second element that
proven
must be
is that
product
is “unreasonably dangerous.” Comment
i
20 See, e.g., Priske v.
Corp.,
General Motors
642,
89 Wis. 2d
(1979),
N.W.2d 227
and Kozlowski v. John E. Smith’s Sons
Co.,
87 Wis. 2d
(1979).
sec. 402
dangerous”
“unreasonably
part
in
as follows:
defines
Unreasonably dangerous.
“i.
The rule stated
this
applies only
Section
where the
condition of
dangerous
product
unreasonably
it
makes
Many products
possibly
user or consumer.
cannot
be
any
entirely
consumption,
made
for all
food
safe
drug necessarily
only
harm,
or
from
poison
risk of
if
involves some
Ordinary sugar
deadly
over-consumption.
a
diabetics,
and castor oil found use under
Mussolini as an
is meant
torture. That is not what
instrument of
by ‘unreasonably dangerous’
this Section.
beyond
dangerous
must
to an extent
The article sold
be
ordinary
contemplated by
con-
that
sumer who
would be
knowledge
ordinary
purchases it,
with the
community as to its characteristics.”
common to the
Vincer,
added.) ;
approval
(Emphasis
cited with
language
emphasized
cited
2d at
Wis.
331.
Co., 51
approval
Wis.
in Netzel v. State Sand & Gravel
Arbet,
2d
1, 11,
(1971), and
66 Wis.
2d
In this court commented that for a defective dangerous, unreasonably it must condition to be be found to hidden and not an defect. obvious “It must be noted also that characteristics complained of in dangers, the instant case were hidden apparent not buyer car, and not the sub- ject warning. of a manufacturer’s This is a different case, therefore, than a case where a sues Volkswagen complains manufacturer of a designed car was too small to be safe. Such defect hardly could ordinary be said . . . to be hidden. [S]ince Volkswagen expect consumer would to be than, say, Cadillac, less safe in an accident the small- danger ness of the car with the attendant would per dangerous. inherently se render Rather it must dangerous ordinary presence contain a consumer would not an defect whose reasonably expect.” Id. applicable fol- summarized as test Wisconsin is lows: *27 “Thus, product the test of whether a Wisconsin dangerous unreasonably depends up- an contains on the reasonable defect ordinary expectations of the consumer concerning type product. this reasonably anticipate characteristics of average If the consumer would dangerous fully product appre- the ciate the attendant condition of the injury, un- risk of it would not be reasonably dangerous an This is ob- defective. knowledge jective of edge may dependent upon and is not test although particular injured consumer, his knowl- contributory under evidence of be (foot- Vincer, at
the circumstances.” 2d Wis. omitted). note Question special number one of the asks, verdict Toyota “Did the 1975 automobile contain such a defect design system unreasonably as to be dangerous prospective passenger to a in the rear seat ?” automobile jury’s We must now decide whether affirmative question supported by answer to this credible evidence. We hold that it is.
Toyota contends that there is no credible evidence to support jury’s finding the defect in the dangerous unreasonably of the seat was because respondent brought proof forth no of “an alterna- tive, design, practicable safer under the circumstances.” Huddell, disagree 537 F.2d at for 737. We although First, two reasons. of an alternative evidence design may safer prod- be in a relevant and admissible21 904.01, Stats., provides Section as “Definition of follows: having ‘relevant evidence.’ ‘Relevant evidence’ means evidence any tendency any to make the existence fact is of con sequence probable to the determination of the action or less more probable than it would be without the evidence.” 904.02, provides Stats., Section “Relevant evidence follows: generally admissible; irrelevant evidence inadmissible. All rele- liability case,
ucts products our state’s strict rule does product may not mandate such evidence.22 A unreasonably dangerous though be defective and even designs alternative, See, there are no safer available. Huebner, D.L. v. 2dWis. where we held industry may negligent failing whole adopt question new and available is not devices. any produced whether other manufacturer has a safer design, product specific question whether but unreasonably dangerous. Second, is defective and al- though required, proves the evidence this case that there an alternative safer available *28 system. Toyota’s by seat There was a confirmation one energy-absorbing witness that there are numerous ma- terials to fill in the section of the driver’s available cutout being used in the these materials were industry. Also, another witness stated bracket passenger’s it made of on the seat failed because low-grade up instead of a material that would stand steel reasonably in collision. to forces foreseeable adopting This court has mandatory refrained from weighed determining factors that must be when if a product unreasonably dangerous. is defective and Since product unique case, defects are in each the factors that admissible, except provided by vant evidence is as otherwise Wisconsin, by constitutions of the of United States and the state by statute, adopted by supreme rules, by these or other rules Evidence not court. which is relevant admissible.” is 22 See, e.g., Dow, 597, 589, 235 Greiten v. La Wis. 2d 70 (1975), N.W.2d court considered theoretical where the trial design press suggested printing that were alternatives to the of a plaintiff’s expert granted The trial court defendant’s witness. verdict, finding motion for a directed failed unreasonably defectively designed product that was establish a dangerous. of the trial court’s dismissal This court affirmed the action. assessing and unrea- defectiveness
will be beneficial case. The United sonableness will differ from case to Circuit, ap- Appeals for the Seventh States Court suggested law, five factors which has plying Wisconsin determining the reasonable- when should be examined design. plaintiffs may This list be beneficial ness of clearly case, per- proving these factors are their but factors are: missive. relevant “1) practices [C]onformity defendant’s industry at the time of of other manufacturers its manufacture; 2) open nature of the and obvious alleged danger; 3) ... the extent of claimant’s alleged product the in- very to have caused use of the jury period in such use time involved and the any prior injury without claimant and others ability 4) of the manufac- ... harmful turer incident. prod- danger impairing the without to eliminate 5) unduly expensive; making uct’s usefulness resulting injury from likelihood relative Ridge Tool design.” Com- Collins v. product’s present 1975). 591, (7th pany, Cir. 520 F.2d product’s The existence of a dangerous through unreasonably can be established expert testimony an opinion after exam- that was formed Drag & product. Bob’s Chutes ination of the Barris v. 1982). Equipment, (3d Four F.2d Cir. *29 Brenner, respondent’s experts Enz, Sanees, and Weiss — —gave opinions respect defectiveness to the their with design. Toyota’s and unreasonableness of seat that the seat and Enz examined stated the dangerous, spe- unreasonably system defective and was seat, driver’s cifically, open the cutout section entrapping, capturing and capability which the has bracket, which inadequate metal selected for and the also testi- upon impact. Dr. Sanees it to allowed break and unreason- was defective fied that the seat dangerous energy-absorbing ably many and that ma- portion were cutout terials available cover the safety Brenner, an the driver’s seat. Dr. automobile engineer credentials,23 great substantial testified length designed system properly seat as to how a would compartmentalize occupant an unbelted rear seat manage energy caused in a foreseeable collision. opinion It his was, was that the seat failed therefore, unreasonably dangerous defective and because portion seat, the hollow cutout driver’s energy-absorbing section, lack of material in the cutout weak steel from the bracket was made. Weiss, metallurgist, Finally, Stanley a testified with respect that had He seat bracket failed. stated performed analysis fraetographic (to that he deter- fracture), analysis, mine the nature of stress He and a hardness test on the bracket. concluded bracket defective made of seat because was would not the weakest steel available and withstand impacting occupant’s it in the force of a rear seat reasonably crash. foreseeable
In
expert
addition
testimony,
presence
of a
product’s
unreasonably danger-
presentation
ous can be established
of circum-
Barris,
stantial evidence.
III. previously stated, theories of As Sumnicht’s negligence. products liability strict included both objections, Testimony allowed, appellants’ over the was designed Toyota’s negligently front seat Toyota objected testimony, to this and manufactured. contending they did not or manufacture They automobile, merely it. assert but distributed negligence “the action is the since heart of conduct,” negligence requires proof any claim actor’s activity actually participated in the the defendant Therefore, Huebner, 2d D.L. v. 110 Wis. at 610. issue. argued, respondent’s claim was in- participated appellants appropriate never because *32 negligent design alleged manufacture of the and Toyota. negligence testimony regarding the hold that the
We because, time the it initially claim was admissible having ad- Toyota the record elicited, was on was manufacturing they of in the business that mitted were whether the issue becomes Toyota automobiles.24 from the this evidence stricken court have trial should disregard it the once jury to the record and instructed negligence dismissed. claim was Stats., provides, 901.03(1),
Section
may
pred-
ruling.
Error
not be
“Effect
of erroneous
upon
ruling
evidence
icated
which admits
excludes
right
party
. .
affected.
.”
unless a
of
substantive
error”
with the oft-stated “harmless
This is consistent
admitting
unless
testimony is harmless
rule. Error
party com-
prejudicial
to the
appears
to have been
Employers L.A.
Chippewa
v.
Hotel Co.
plaining.
Falls
(1932).25
Corp.,
86, 89,
(1973). system probative the seat Toyota’s was responsibility liability, under strict (b) judge both the trial respondent’s conveyed counsel this belief jury. question negligence
No on the presented count was jury special to the' verdict, and, thus, on the jury considering negligence was foreclosed from evidence respect. only possibility prejudice appellants by negli- the trial court’s refusal to strike the gence testimony would have been if the had utilized evidence to determine that the defect in danger- unreasonably of the seat ous. assuming
Even
it was erroneous for
court
testimony,
previously
to refuse to strike the
we have
determining
necessity
held that
for a
trial
new
prejudicial evidence,
due to the admission of
the effect
weighed against
of the inadmissible evidence should be
totality
supporting
the sufficient credible
evidence
Newark,
Ins.
the verdict. Strelecki
Firemans
Co. of
464, 481,
(1979), citing
88 Wis. 2d
IV. it appeal is whether and final issue on The fourth to instruct prejudicial trial court error the was hearing on duty At the jury Toyota’s to warn. on Toyota verdict, held the trial court after motions duty giving to of the prejudiced had not been Toyota warning contends that instruction. warn prejudicial erroneous and because were instructions any connection be- causal to establish failed Sumnicht warning plain- warning and the a a or lack tween gave warning a the court and because tiff’s though negligence duty, even incorporating a instruction at the close were dismissed claims argument also without is this hold evidence. We merit. jury was discussed duty to instruct
The court 743, 235 2d Co., Shelby Mut. Ins. 70 Wis. Lutz v. stated, (1975), we wherein N.W.2d general rule, course, a trial should “As court regard jury to the facts of instruct due (1949), N.W.2d case. Benz 255 Wis. Zobel to instruct It error for a court either to refuse 713. is give or to on an the evidence issue which is raised support finds no erroneously an instruction on an the evidence. Where issue given has court however, give instruction, a new trial to an refused not warranted to error is determined unless the > determining prejudicial. applied in to be is test probability prejudicial is the an whether such error jury there- possibility was misled and not mere that the giving relating by. or it way, an error Stated another prejudicial if give refusing is not an instruction had different not be appears result would (foot- Lutz, 2d 750-51 error not notes occurred.” Wis. omitted) .26 need not error We reach the issue of whether was jury Toyota’s duty for the trial court to instruct on warn, was not because we find such instruction prejudicial Toyota. applicable test to determine whether
prejudiced of the verdict would is whether the outcome given have been different trial court not had the question instruction. The was never asked verdict *34 Huebner, Accord, D.L. v. 2d at 628. Wis. Toyota’s negligence give on failing warning, a and, therefore, jury did not consider the instruction respect. Second, in that possible Toyota’s it is that jury’s failure to warn did enter into the deliberations concerning Toyota’s system. the defectiveness of so, Even support there is sufficient credible evidence to thoroughly the verdict. This evidence was reviewed in opinion. section II of this probable jury
We hold that it is not that was misled this instruction or verdict would alleged have been had the error not different occurred. Accordingly, a trial new warranted.
By judgment the Court. —The and order of the circuit court are affirmed. (concurring).
HEFFERNAN, CHIEF JUSTICE argued separate parties in this have raised and two case proof first, is the standard of of causation issues: what products on the claim a case based design second, party defect; and, has the burden which injuries proof damages apportioning sus- between accident itself and of the as result automobile tained a result of de- injuries sustained the additional design. fective majority holding correctly states the law in plaintiff prove
Wisconsin that a
must
defect
was
producing
injury.
a substantial
factor
P.
supra.
358,
Gussarson,
See Arbet v.
2dWis.
557-58,
(1975).
present case,
damages sustained were caused the defective seat majority system. As the states: found, agree, trial that it is rea- “The court we say jury if the seats sonable to reasoned engineered, respondent properly had would been injuries. practically Technically, have sustained no system in- ‘enhance’ Sumnicht’s did not defect, because, no juries there were but for the 366, supra. P. to enhance.” damages Consequently, or are no distinct harms there therefore, court, apportion need not This this case. proof apportioning of address the issue burden damages cases.2 in “second collision” that, the facts separately
I to state because write apportion- present the issue of this case do not majority opinion’s damages, discussion of ment of proof of enhanced the Huddell3 standard damages apportionment of law on and of Wisconsin holding. unnecessary to the constitutes dicta Shirley S. 1 to state Justices am authorized join in this A. Bablitch and William Abrahamson concurrence.
STEINMETZ, (dissenting). return case I would J. the issue court for a new trial on to the trial striking court, by not evi- I find the trial because dismissing the when negligence of defendants dence of giving an erroneous negligence of action and cause 485-86, Allis, City 2d Foley 113 Wis. In West of this logical stated, is a (1983), “when there court N.W.2d 824 incidents damages more two between basis to allocate opinion attempt to do so.” among parties, courts various 443A, Torts, (Second) sec. Restatement then cited the apportioned Damages to be “(1) harm are specifies that: (a) harms are distinct there among where causes two or more negative logical supplied.) 486. The (Emphasis Id. . .” . . among apportioned causes damages cannot inference is separate harms. or distinct are where there 1976). (3d Levin, Cir. F.2d 726 Huddell v. duty instruction on the to warn as to the use of seat belts, prejudicial committed error and that on retrial probable. a different result majority holds there prejudice though was no even possibly could have considered the evidence of in determin- ing that the defect in of the seat unreasonably dangerous possibly it could have en- *36 jury’s tered into concerning the deliberations the de- system. fectiveness of the seat legal This difficult is a case made more difficult by majority’s opinion I confusing which find to be precedential and without value, respect, and in this I agree concurring opinion. with the injuries The plaintiff are awesome and due deliberations should be given right to allow him the to a fair trial and to damages receive if he is entitled to them. I find it incomprehensible that the found under the facts of plaintiff negligent this case the not was for his own safety failing by care and to wear the available rear seat finding negligence belt. The of no is inconsistent speed the facts of a head-on crash at a of 30 to 50 per wearing miles hour while not seat belt sus- taining very being pro- serious as result pelled plaintiff forward. The fact was affected by finding his failure to wear a seat belt is obvious and a of no is inconsistent with the evidence and perverse. therefore is arriving
In at decision, majority its has unneces- sarily confused the impact law this state as to second injury enhanced adequate doctrine. The evidence was presented by plaintiff’s as experts plaintiff’s quadriplegia design was sustained as a result of the defect. entrapment Bruce Enz testified that capturing capability of backs and the failure injury. of the bracket “enhanced” and caused the Dr. Anthony Sanees also testified that would paralyzing injuries except have his sustained for the design defects. Corp., (8th v.
Larsen
General Motors
In the seat belt was and we impact plaintiff was not restrained on the causing factor in it could have been a substantial held separa- Again plaintiff. no there was the death part of the impact and the defective tion from the one impact case. the second in instant automobile as in the occurred both in Arbet and Schnabl impact after separate no impact was and there initial process stop in the or were to a vehicles came the pleadings with the also concerned stopping. Schnabl was by was caused plaintiff alleged the death of the which faulty a seat belt. In Schnabl held we trier the of fact delivery must decide the issue of whether of a faulty seat belt could have a been substantial factor causing played part the death if even no Id. at issue, accident. 353-54. To determine this the jury would have had to decide whether the death was by faulty caused the or accident the seat belt. The injury sustained in Schnabl death in- was which was part divisible so that there could be issue no as to what injury the was caused the or accident the defective belt. was seat The issue whether the accident the or causing belt or both were substantial factors death. citing
In Arbet, majority states: this “Under doctrine, a may strictly manufacturer held liable for harm caused product unreasonably dan- gerous Pages 351, 352, supra. user consumer.” (Emphasis added.) discussing Arbet, In further majority states: “The Arbet decision tells us that Sumnicht has against cause Toyota of action in strict for system
all sub- defective seat was a causing. Arbet, stantial factor 2d at 557. Wis. premise against recovery This forecloses injuries Toyota’s solely in sustained ‘first because collision/ proximate defective seat cause Requiring distinguish be- of tween accident. Sumnicht damages collision’ sustained in ‘first part parcel and the of is of his ‘second collision’ burden Page proving 353, supra. causation.” acceptance That second reads to me like an impact injury doctrine in defendant —enhanced damages only (injuries) sustained in liable for his separate impact must second *38 injuries in first proof the sustained the and second impact. majority quotes proposition: Larsen for the portion that be he manufacturer should liable
“[T] design by damage injury caused the defective the or damage injury probably the over and above impact or colli- a result have occurred as would design.” Larsen, 391 F.2d at defective absent the sion injury Page supra. doc- 354, That is enhanced 503. correctly its it, Toyota on asserts that trine and based plaintiff ex- until the shows the is nonexistent by the defect. tent to which the were enhanced Levin, holding rejects Huddell v. majority in 1976). three (3d I find the elements F.2d Cir. necessary appropriate by required Huddell to be They injury product case. in an enhanced are: “First, defective, establishing design question plaintiff proof must offer of an alterna- tive, design, practicable safer under the circumstances. Second, plaintiff proof . in- . offer of what . must juries, alternative, any, if would resulted had have agree regard safer with been . . We this used. . Judge Supp. Rajeski, v. Barlow in Yetter 364 F. necessary 105, absolutely (D.N.J. 1973) ‘it is presented as to evidence with some any, injuries, would have been the extent suffered if of . . hypothetical plaintiff’s . had Third, corollary to second
been . .’ as a installed. . aspect of plaintiff some method proof, offer must establishing attrib- enhanced the extent of design.” Id. at utable to 737-38. the defetcive require
None of prove these elements negative fact as Huddell was criticized Mitchell Volkswagenwerk, AG, (8th F.2d 1204-05 Cir. 1982) majority. relied on All of the factors required by Huddell were satisfied evi- Sumnicht’s according majority’s analysis. experts dence His designs testified there were alternative available which *39 i.e., stronger safe, were support metal in the seat bracket hinge broke, filler material was for available opening cushioning seats, between the material was support experts available for the critical area. The plaintiff’s quadriplegia also testified was caused over injuries and above the other sustained in the accident due requirements defect. These are the Huddell.
Fox v.
Co.,
Ford Motor
(10th
Neither Mitchell nor yet Fox disavow Huddell and majority reject relies on them to two three requirements requirements Huddell. rejected are that in a “second collision” case must proof offer injuries, of what any, if would have resulted had alternative, an safer been used and that plaintiff must establishing offer some method of attributable to the of enhanced extent design. in- rejecting enhanced majority states it is necessary proof, special rules of as to doctrine *40 357, 358, supra) then states:
(pages and Wisconsin, adopted liability, rule of strict “The condi- requires product was in a defective proof that the plain- unreasonably dangerous, the tion, which caused long-standing for cause Wis- test harm. The tiff’s consin is whether factor a substantial defect was the Company, Deer injury. & producing Howes v. the (1976).” 273, 268, 2d 238 N.W.2d 71 Wis. very requires application But of is the issue that injury question the enhanced is which doctrine. The injuries by impact and were caused the first by inquiry impact. what harm the second The same being in Clark is considered was discussed Vehicles, Inc., 607, 617-18, v. Leisure 2dWis. by (1980), majority. cited the N.W.2d majority applicability affirm the states: “We proving How- the substantial factor test causation.” considering begs ever, cause of the issue of the what harm. disavowing any Huddell rules tailored
After and 358, 359, (pages uniquely for second collision cases supra), the then court states: state, hold we this keeping the law of “In case, plain- the products in a ‘second collision’ a sub- product was prove that the defective
tiff must damages causing from which harm factor in stantial plaintiff will be degree to which are claimed. required injuries sustained distinguish between ‘second in the sustained those ‘first collision’ proving by governed burden his will be collision’ factor test.” the substantial causation via injuries distinguish between jury this, must doTo the second due to those collision the first due plaintiff’s injuries collision and therefore what would alternative, have been without the defect but with the design. proof plaintiff’s safer That was submitted experts If in this case. there is no safer avail- possible, products able or then defendant should majority instance, Toy- not be liable. The states: “For ota’s did not cause accident case, and, therefore, Toyota in this liable ” injuries solely (Page caused from the ‘first collision.’ supra.) jury That statement admits that will have to decide what were first caused collision so that is not held for them. liable why injury part That is a the enhanced doctrine factor is not sufficient unless usual substantial test distinguish proof is sufficient to allow the defect and what between the sustained with safer, would alternative have been sustained with *41 design product. condition of the or opinion rejects majority p. the use of
The the jury’s language contained of the “over above” pages analyzing the to evidence and then devotes verdict jury answer to sustain to see if it sufficient Toyota’s de- is whether question not and that asked causing factor system was a substantial fective seat quadriplegia. plaintiff’s collision that a second case no doubt this
There is body the rear plaintiff’s hit the when was involved 30 to initial after seat as did the front against ex- impact tree. The per mile hour head-on jury pur- convincingly that one for the perts testified compartmentalize tois front seat rear of the pose of the sitting lying on are hurtling human bodies impact. the first the time seat at the rear support only therefore, seat, is not front also but conditions passenger in normal the front im- car occupants injuries all to limit the pact safely situations. The must be to control as possible passengers in all directions movement in the rear of the automobile in normal and violent circumstances. majority p. states at opinion 364 of the
plaintiff inconsequential suffered injuries besides his spine. by plaintiff’s severed This was testified to ex- perts and serves as the injury basis for the enhanced rejected by majority. doctrine proof That was not necessary, according majority, agrees since it plaintiff’s attorney who stated this was not an enhanced injury plaintiff’s case since the seat defect caused entire injuries. judge But the trial treated the case as one of injury enhanced say since he found it reasonable to jury prop- believed that if the had seats been erly engineered, plaintiff prac- would have sustained tically injuries. no p. opinion, on Later 366 of the majority position returns to its inconsistent defective seat plaintiff’s did not “enhance” in- juries because, defect, but “there no were to enhance.” partially proving relied on “an design,
alternative, practicable safer under the [was] plaintiff’s experts testify circumstances.” But did as to availability of a desired use of filler between the seats, padding stronger material and metal for the seat hinges alternative, safer, practicable all of which are designs proof. accept as the could conclusion,
In I am disturbed majority’s un- necessary treatment of the law of enhanced confusing analysis. and its *42 I would order a new trial during as to because errors committed the trial jury misled the as to the evidence of disregard, should have been stricken and the told to given because an erroneous jury, instruction was lastly, jury’s finding answer, plain- because the regard negligent tiff not failure to wear a seat his safety, care and belt his own was inconsistent with the facts this violent accident. Wisconsin, Plaintiff-Appellant,
State Dunn, Defendant-Respondent-Petitioner. Ronald J.
Supreme Court Argued No. 83-1129-CR. October 3, 1984. Decided December 1984.
(Also reported 151.) in 359 N.W.2d