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COURT OF APPEALS
DECISION
DATED AND RELEASED
February 18, 1997
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NOTICE
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats.
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports.
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No. 96-0577
STATE
OF WISCONSIN IN
COURT OF APPEALS
ADAM ANDERSON, BY HIS
GUARDIAN
AD LITEM, ARDELL W.
SKOW, BONNIE
ANDERSON AND LEROY
ANDERSON,
†Plaintiffs-Appellants,
v.
ALFA-LAVAL AGRI, INC.,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Barron County:
EDWARD R. BRUNNER, Judge. Affirmed.
Before Cane, P.J., Myse
and Carlson, JJ.
MYSE, J. Adam Anderson and his parents, Bonnie
and Leroy Anderson, appeal a judgment resulting from a jury verdict finding no
negligence on the part of Alfa-Laval Agri, Inc. The Andersons contend that the trial court erred by refusing to
give requested customized instructions regarding Alfa-Laval's duties, that the
no negligence verdict was contrary to the weight of the evidence and that the
trial court erred by advising the jury that the Andersons had settled their
claims with a series of other defendants.
Although we conclude that the requested customized jury instructions
better focus the issues in this specific case as to Alfa-Laval's duties, we
nonetheless conclude that the pattern jury instructions given are
adequate. We further conclude that
although the court erred by advising the jury of the Andersons' settlement with
other defendants, the error was not prejudicial to the Andersons and that there
is sufficient evidence for the jury to conclude that Alfa-Laval was not
negligent. Accordingly, we affirm the
judgment.
This tragic case
involves a claim for damages resulting from two-year-old Adam Anderson's
ingestion of an extremely caustic chemical that had collected in a cup from a
pump in Leslie Smith's milk house while Adam's mother, Bonnie Anderson, was
assisting Smith in milking Smith's dairy herd.
Smith was a dairy farmer near a farm the Andersons had been renting. Bonnie also assisted her brother-in-law,
Roland Anderson, as a herdsman on the farm he operated. Her duties included milking the cows and
cleaning the milking equipment which was manufactured by Surge, an Alfa-Laval
competitor. Smith asked Bonnie to
assist him with the milking of his herd several weeks before Adam's injury. Smith demonstrated his Alfa-Laval milk
cleaning equipment and how the equipment was to be operated. Bonnie was familiar with the Surge milk line
cleaning products because of the farm she and her husband, Leroy, rented, as
well as from her work as a herdsman on Roland's farm. The Surge system uses a caustic chemical to clean the milk line
similar to the Alfa-Laval unit Smith uses.
On the day of Adam's
injury, Smith called Bonnie and asked if she could assist in milking his
herd. Bonnie responded that she was
required to care for her five children and would only be able to assist if she
were able to bring the children to the Smith farm during the milking. Smith agreed and Bonnie arrived with her
five children, two of whom, Brent and Adam, were in the milk house with Bonnie
while the three girls were playing with kittens by the calf pen.
Smith had purchased the
Alfa-Laval milk line cleaning equipment in 1978. This system utilized one cup of an extremely caustic chemical to
flush and sanitize the pipes that transport the milk from the barn to the bulk
tank in the milk house. While
Alfa-Laval manufactures a "closed loop" milk line cleaning system
that automatically injects the chemical in a metered dosage, Smith's equipment
required the manual injection of the chemical into the system after each
milking, twice per day. The pump
through which the chemical was injected into the milk lines dripped the
chemical, a clear liquid, onto the floor.
Therefore, Smith placed the cup that was used to measure the liquid
injected into the system under the drip to catch the chemical so that it would
not spill on the floor.
Bonnie was aware of this
practice and on two previous milkings had entered the milk house to place the
cup away from the children's reach before she began her milking chores. On the day in question, however, she did not
remove the cup, which Adam apparently saw.
He ingested a small amount of the caustic chemical, which resulted in
the severe burning of his esophagus and stomach and other extremely serious
injuries.
The Andersons commenced
an action for the recovery of Adam's damages against Alfa-Laval Agri;
Pro-Chemicals, the manufacturer of the chemical solution and the drum in which
it was sold and stored; Beckson Industries, the manufacturer of the pump used
to take the chemical out of the drum where the chemical leak was located; Wally
Potter, the distributor of the Alfa-Laval system; as well as the distributor of
Pro Chemicals and Beckson and Smith. Prior
to the trial, the plaintiffs settled with each of the defendants, except
Alfa-Laval, although the document reflecting that settlement had not been
signed by all interested parties when the trial against Alfa-Laval started.
At the trial, counsel
for the Andersons asked the court to modify the caption to reflect the
settlements with the other defendants and moved in limine for a court order
eliminating reference to any settlement with the other defendants. The court denied the motion, advised the
jury of the full caption containing the names of each of the defendants and
informed the jury that a "negotiated resolution" had been reached
with the other parties in the case.
Reference to the negotiated settlement was also made to the jury by
Alfa-Laval's counsel.
At the conclusion of the
trial, the jury found that Alfa-Laval and Wally Potter, the distributor of the
system chemicals and pump, were neither negligent nor strictly liable. The jury concluded also that Smith was not
negligent and apportioned negligence among the other defendants by finding 50%
of the causal negligence to be attributable to Bonnie, 35% to Pro chemicals and
15% to Beckson. The jury awarded
damages of $73,000 for future medical expenses; $50,000 for past pain,
suffering and disability; and $100,000 for future pain, suffering and
disability. The loss of future earnings
was in the amount of $500,000, and the loss of society and companionship
awarded to Bonnie and Leroy was set at zero.
The Andersons filed
post-verdict motions requesting that the trial court change the answer of zero
negligence against Alfa-Laval because it was contrary to the weight of the
credible evidence, asking for a new trial based upon the assertion that the
verdict was perverse and that a new trial was required in the interest of
justice. The trial court denied all
motions and entered judgment upon the jury's verdict dismissing the Andersons'
complaint.
The Andersons first
contend that the trial court erred by refusing to submit to the jury a series
of proposed instructions specifically tailored to address various theories of
liability asserted under the specific facts of this case. The trial court declined to submit the
requested instructions after concluding that the instructions evidenced
partiality on behalf of the Andersons and that the standard jury instructions
adequately advised the jury as to the applicable law in the case.
A trial court has wide
discretion as to the instructions it will give to a jury in any particular
case. McMahon v. Brown,
125 Wis.2d 351, 354, 371 N.W.2d 414, 416 (Ct. App. 1985). Instructions must fully and fairly inform
the jury as to the applicable principles of law. Runjo v. St. Paul Fire & Marine Ins. Co., 197
Wis.2d 594, 602, 541 N.W.2d 173, 177 (Ct. App. 1995). As long as the instructions adequately advise the jury as to the
law it is to apply, the court has the discretion to decline to give other
instructions even though they may properly state the law to be applied. Northwestern Nat'l Ins. Co. v. Nemetz,
135 Wis.2d 245, 263-64, 400 N.W.2d 33, 41 (Ct. App. 1986). The instructions given are to be considered
in their totality to determine whether they properly state the law to be
applied. Steinberg v. Arcilla,
194 Wis.2d 759, 774, 535 N.W.2d 444, 449 (Ct. App. 1995).
If the instructions are
not erroneous and adequately inform the jury as to the law to be applied, the
court's exercise of discretion will be affirmed on appeal. Id. If an instruction is erroneous or the court erroneously refused
to give a proper instruction, a new trial will not be ordered unless the
court's error was prejudicial. Nowatske
v. Osterloh, 198 Wis.2d 419, 429, 543 N.W.2d 265, 268 (1996). An error is prejudicial only if it appears
that the result would have been different had the error not occurred. Id.
We start our analysis by
examining the Andersons' claim that in a complex fact situation involving
theories of liability of both negligence and strict liability, it is
appropriate to tailor specific instructions to the evidence. We agree.
Standard jury instructions are to assist the court but should not be
used as a substitute for the court developing appropriate instructions relating
to the specific facts of each case.
Indeed, the introduction to Wisconsin's civil jury instructions cautions
trial judges that pattern jury instructions are tools to assist the court, but
do not eliminate the court's need to refine the instructions based upon the
specific facts of any particular case. I Wisconsin J I—Civil, at xix (1995).
In this case, a series
of tailored instructions were requested involving the defendant's duty to
incorporate foreseeable safety features into its product and the defendant's
duty to all foreseeable persons who would have contact with the product,
including bystanders and not just the purchaser or consumer of the
product. Customized jury instructions
were also sought in regard to the defendant's post-sales and nondelegable
duties. The trial court, however,
denied these requested instructions.
Each of the requested
instructions seems appropriate under the specific facts of this case. The Andersons argue that the defendants
failed to incorporate feasible safety features into the product by marketing an
open rather than closed system. An open
system requires the caustic chemical used to clean the milk lines to be mixed
and injected from outside of the system itself. The Andersons further were concerned that the pattern jury
instructions did not specifically explain that the defendant had a duty to all
foreseeable persons including bystanders or children, such as Adam, who may be
injured by the product rather than merely the purchaser or user of the product.
The Andersons asserted
that after learning of information regarding the dangers the caustic chemicals
posed, Alfa-Laval should have sent an advisory warning after the sale even
though the sale was completed at some prior date. The Andersons were also
concerned that Alfa-Laval delegated the responsibility to warn of the dangers
of the caustic chemical to the distributor, which the Andersons contend
violated Alfa-Laval's duty to its consumers.
The evidence raised each of these issues, and appropriate instructions
as to each would have assisted the jury in its deliberations.
If the trial court was
concerned that the requested instructions evidenced partiality, the court
should have tailored instructions in a neutral way so as to address the
Andersons' legitimate concerns. The better practice is for trial courts to
customize the instructions based on the specific facts of the case to better
assist the jury in understanding the nature of the law and how the law is to be
applied to those specific facts. The
trial court's refusal to accept the requested instructions and failure to
develop its own instructions to address the areas of concern denied the jury
the benefit of instructions specifically tailored to the facts before
them. While we conclude that the better
practice would have required the trial court to customize at least some of the
instructions rather than to rely entirely on the standard jury instructions,
this is not the standard of review we are required to apply to this claimed
error.
We must examine the
instructions given in their totality and determine whether these instructions
sufficiently advised the jury as to the proper legal principles they were to
apply to the facts of this case. Steinberg,
194 Wis.2d at 774, 535 N.W.2d at 449.
The Andersons concede the instructions given by the trial court were
correct statements of law. The claimed
error is that they were incomplete because they were not specifically tailored
to the facts of this case. After
examining the instructions in their totality, we conclude that the trial
court's instructions were accurate and sufficiently complete to advise the jury
as to the proper legal principles it was to apply.
The court gave the
standard Wisconsin civil jury instructions.
The negligence jury instructions give were: 1005—definition of negligence, 1012—parents' duty to protect
minor children, 1019—evidence of custom and usage, 3240—duty of manufacturer,
3242—duty of manufacturer (supplier) to warn, and 3246—duty of manufacturer
(seller) who undertakes to give instructions to the use of a machine (product),
and an instruction on the negligence standard of corporate employees and
agents. The following strict liability
instructions were also given: 3260—duty
of manufacturer to ultimate user and 3262—duty of manufacturer (supplier) to
warn. These instructions are sufficient
to apprise the jury as to the nature of the legal principles to be
applied. Accordingly, we conclude that
the trial court adequately instructed the jury, even though it should have
better assisted the jury with instructions specifically tailored to the factual
issues raised in this case.
Even if the failure to
give the requested instructions was error, we conclude it was not
prejudicial. An error is prejudicial if
it appears that a different result would have been reached had there been no
error. Nowatske, 198
Wis.2d at 429, 543 N.W.2d at 268. This
requires a probability that the jury was misled and that a different result is
probable, not just a mere possibility. See
Strait v. Crary, 173 Wis.2d 377, 385, 496 N.W.2d 634, 637 (Ct.
App. 1992). As we discuss more
completely later in this opinion, the jury had sufficient evidence before it to
support its conclusions of negligence on the part of Bonnie, Beckson and Pro
Chemicals. Therefore, we cannot
conclude that a different result is probable had the requested instructions
been given. Because a different result is not probable, the Andersons were not
prejudiced by the failure to give the requested instructions.
The Andersons next
contend that the trial court erred by reading the entire caption of the case
including the defendants who were not present at trial because they had entered
into a Pierringer
settlement, and that the court erred by advising the jury of the existence of a
settlement between the Andersons and the other defendants named in the
caption. We disagree that the court
erred by reading the caption. We also
conclude that although the court did err by advising the jury as to the
existence of a negotiated resolution between the Andersons and the other
identified defendants, that error was harmless.
The caption to be read
to the jury is the caption as it exists on the day of trial. Stoppleworth v. Refuse Hideaway,
200 Wis.2d 512, 523-24, 546 N.W.2d 870, 874 (1996). The court can modify the caption to reflect settlements that
occur before trial. In this case, the
trial court had discretion to accept the parties' representations of a
settlement and amend the caption accordingly or to require the proper
documentation before entering the dismissal.
Here the court chose to require the proper documentation. This is properly left to the discretion of
the trial court. Once the court decided
to require the proper documentation, the caption included all of the parties,
including the settling defendants and, under Stoppleworth, the
court was required to read this caption to the jury. Further, the jury was not given any additional information. Because the jury had to assess comparative
negligence to those defendants, it was necessarily aware of them.
As to the references
made regarding the Andersons' settlements with other defendants, the trial
court appeared to accept Alfa-Laval's contention that advising the jury of
settlements existing between the plaintiffs and other defendants is authorized,
if not required, by Hareng v. Blanke, 90 Wis.2d 158, 279 N.W.2d
437 (1979). We conclude that Hareng
is inapposite to the facts of this case.
Hareng recognizes that settlement negotiations are not
privileged when introduced for another purpose such as demonstrating bias or
prejudice of a witness. Id.
at 167-68, 279 N.W.2d at 441. That is a
correct statement of the law but is inapplicable to the facts of this
case. There was no contention that the
settlement among the other defendants changed the testimony of any witness or
that the posture of any of the settling defendants was significantly different
as a result of the settlement. While we
recognize that under certain circumstances, it may be necessary to disclose the
existence of a settlement, we conclude that none of the circumstances
authorizing such a disclosure existed in this case.
We must now determine
whether the trial court's error resulted in prejudice to the Andersons. This task is confounded by our inability to
speculate as to the mental processes of the jurors as they reached their
verdict. We note that the jury not only
concluded that Alfa-Laval was not negligent but awarded zero damages for the
loss of society and companionship, notwithstanding the uncontradicted evidence
as to special care, medical treatment and transportation required by Adam's
parents in obtaining the necessary medical care required for this injury. We further note that although the trial
court made reference at the beginning of this long and complex case to a
"negotiated resolution," the jury was not advised that money had been
paid to the Andersons by any of the defendants named in the caption. Also, some care was taken to use language
which was as neutral as possible in light of the court's determination that it
was appropriate to identify the individual defendants who were not
participating in the trial.
Prejudice exists only if
a different result is likely to occur upon retrial. Nowatske, 198 Wis.2d at 429, 543 N.W.2d at 268; Hareng,
90 Wis.2d at 166-67, 279 N.W.2d at 441; § 904.08(2), Stats. In this case,
Alfa-Laval's liability is predicated upon its manufacture and sale of a milk
line cleaning system that involved the use of caustic chemicals. As will be more thoroughly discussed in the
following paragraphs, the circumstances resulting in Adam's injury were the
result of a leakage from a pump made by Beckson Industries, involving a caustic
chemical manufactured and sold by Pro Chemicals. This leakage was caught in a cup placed there by Smith. Bonnie's knowledge of the dangerous and
caustic nature of the chemical and her past practice of placing the cup out of
reach of children because of the danger presented to children permitted the
jury to conclude that the responsibility for Adam's injuries rested upon his
mother for improper supervision in failing to place the cup outside of Adam's
reach. The jury also found the
manufacturer of the pump that leaked and the manufacturer of the caustic
chemical who failed to appropriately warn as to its dangerous properties to be
negligent. Under these circumstances,
we cannot say that the jury made this determination based upon a conclusion
that the Andersons had received compensation from other sources.
The evidence is
sufficient to permit a jury to conclude that the responsibility for this injury
rests not upon the manufacturer of the system, but on others based on their
conduct. We, therefore, cannot conclude
that the jury was inappropriately induced to reach its determination based upon
its belief that the Andersons had already received compensation from other
sources. As a result, we cannot say
that a different result is likely to occur if a new trial is ordered. Consequently, we conclude that the Andersons
were not prejudiced by the court's erroneous disclosure that a negotiated
resolution had occurred.
The Andersons next
contend that the verdict finding no negligence on Alfa-Laval was contrary to
the evidence and requires a new trial.
In reviewing a claim that a verdict is contrary to the evidence, a
reviewing court is required to construe all evidence and inferences to be drawn
from the evidence in favor of the jury verdict. Black v. Gundersen Clinic, Ltd., 152 Wis.2d 210,
214, 448 N.W.2d 247, 249 (Ct. App. 1989).
If there is any credible evidence that will support the jury's verdict,
the verdict must be affirmed. Richards
v. Mendivil, 200 Wis.2d 665, 671, 548 N.W.2d 85, 88 (Ct. App.
1996). We must review a jury's verdict
with great deference and indulge in every presumption in support of the verdict. Id. This presumption is even more true when the verdict has the trial
court's approval. Id.
The Andersons argue that
Alfa-Laval is negligent as a matter of
law and that therefore a new trial is required. We agree that the evidence is sufficient to indicate that as to
Alfa-Laval's failure to warn about the caustic nature of the chemicals used in
its milk line cleaning system, Alfa-Laval could be found negligent. The manual Alfa-Laval furnished to
purchasers of the system makes no reference to the nature of the chemicals or
the extremely serious injury that could result from the chemical being ingested
or coming in contact with a person's eyes or other portions of the body. Alfa-Laval may not rely on the chemical
manufacturer for such warning and may not rely on the distributor who advised
purchasers of the system of the dangerous nature of the chemicals required to
be used in this system. See Shawver
v. Roberts Corp., 90 Wis.2d 672, 682-83, 280 N.W.2d 226, 231-32 (1979);
see also Westphal v. E.I. DuPont De Nemours & Co., 192
Wis.2d 347, 364-66, 531 N.W.2d 386, 391-92 (Ct. App. 1995). The absence of such a warning is negligence
as a matter of law. See Westphal, 192 Wis.2d at 365-66,
531 N.W.2d at 392.
Alfa-Laval
has a duty, at the very least, to advise users of the equipment as to the
dangerous nature of the chemicals required to be used in the cleaning of milk
lines by either the open or closed systems it manufactures. The evidence demonstrated that not only was
the information pamphlet given to customers when the machine is purchased
silent as to any such danger, no other warning or notice of the dangerous
nature of the chemical was provided by Alfa-laval to those who used or would
come in contact with this equipment.
Alfa-Laval was aware that young children were commonly present around
this equipment. Further, a study of
farm children ingesting similar chemicals was published in 1987, the year
before Adam was injured. Under the
facts of this case, we conclude that Alfa-Laval's failure to warn as to the
caustic nature of the chemicals required in their cleaning system is negligence
as a matter of law.
The existence of negligence
alone, however, is insufficient to impose liability upon this defendant. The negligence must also be the cause of the
injury. The jury determined that the
responsibility for Adam's injuries rested with his mother, who was fully aware
of the dangers of the chemicals used to clean the lines; Beckson, who
manufactured the pump from which the chemicals leaked; and Pro Chemicals, the
manufacturer of the chemicals. Bonnie
was fully aware of the nature of the chemicals used and Pro Chemicals did warn of
the chemical's dangerous property. The
caustic chemical Adam ingested was leaking from a pump Beckson manufactured and
caught in a cup Smith placed under the leak.
Because the chemical's dangerous nature was known to Bonnie and Smith,
Alfa-Laval's failure to warn was not the cause as a matter of law for Adam's
injuries. Accordingly, we conclude that
a new trial is not required based upon the jury's failure to find negligence on
Alfa-Laval.
Finally, the Andersons
contend that the jury verdict was perverse and that a new trial should be
ordered in the interest of justice. Our
previous discussions adequately demonstrate why we conclude that such
assignments of error are without merit.
This tragic case was tried fully and completely for eight full days. The jury was adequately instructed as to the
law to be applied and the circumstances of Adam's injury are sufficient to
support the jury's conclusion that Alfa-Laval was not negligent for Adam's
injury. Accordingly, we decline to
order a new trial based upon the assertion that the verdict was perverse and
conclude that a new trial in the interest of justice is not warranted. The judgment is affirmed.
By the Court.—Judgment
affirmed.
