COURT OF APPEALS DECISION DATED AND FILED May 12, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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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. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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DISTRICT IV |
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Maureen Mellom, Plaintiff-Respondent, v. Schindler Elevator Corporation, Defendant-Appellant. |
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APPEAL
from a judgment and orders of the circuit court for
Before Vergeront, P.J., Lundsten and Higginbotham, JJ.
¶1 HIGGINBOTHAM, J. This is a strict products
liability case. Douglas Mellom was
performing a service call on a freight elevator at General Motors’ (GM)
Janesville plant when he fell from the unguarded top of the elevator car to his
death. The elevator was installed by
Schindler Elevator Corporation. Douglas’s
wife, Maureen Mellom (Mellom), sued Schindler and other defendants, alleging
that the elevator was defective and unreasonably dangerous because the top of
the elevator did not have a guardrail and its absence was a substantial factor
in causing
¶2 Schindler contends the trial court erred in denying its motion to dismiss, which alleged that GM had substantially and materially changed the design and function of the elevator, that the accident was the result of misuse of the elevator, and that the evidence established as a matter of law that the fall hazard on the elevator was an open and obvious danger. Schindler also argues the evidence was insufficient as a matter law to support the jury’s findings that GM’s negligence was not a substantial factor in causing Douglas’s death, that Douglas was not contributorily negligent in causing his own fall, and that Otis Elevator was not causally negligent. Finally, Schindler maintains the trial court erred in admitting into evidence and allowing Mellom to use for improper purposes at trial a citation the United States Occupational, Safety, and Health Administration (OSHA) issued to GM alleging it violated OSHA workplace regulations in maintaining the elevator top without a guardrail.
¶3 We conclude the trial court properly denied Schindler’s
motions to dismiss, and there was credible evidence that the fall hazard on top
of the elevator did not constitute an open and obvious danger. We further conclude there was sufficient
evidence to support the jury’s findings that GM’s negligence was not causal,
I. background
¶4 Schindler manufactures, installs and services elevators. In 1998, Schindler installed a freight
elevator in the GM plant in
¶5 As installed, the elevator included a hatch in the back left corner of the top of the elevator that opened from the outside of the elevator only. GM later modified the hatch so that it opened from the inside of the elevator and installed a ladder that went up to the hatch. This modification allowed GM millwrights to access the top of the elevator via the ladder by climbing onto the elevator top through the hatch. Because the hatch was located in the left rear corner of the elevator, persons emerging from the hatch were in close proximity to the fall hazard at the elevator’s edge.
¶6 The top of the elevator could also be accessed by use of a built-in service door. The elevator car would be sent to a lower floor and stopped manually when the top of the elevator was flush with the bottom of the service door, allowing the millwright to access the top of the elevator through the service door. According to Schindler, this was the only proper method by which millwrights and elevator mechanics should access the elevator top.
¶7
¶8 Cisneros called up to
¶9 OSHA investigated Douglas’s death, and issued a citation to GM, charging it with maintaining a raised work platform that was not guarded by standard guardrails, contrary to 29 C.F.R. 1910.23(c)(1).
¶10 Maureen Mellom sought damages for
¶11 The case was tried to a jury, with Schindler and Minnesota
Elevator as the only remaining defendants.
Schindler filed a motion in limine
to exclude evidence of GM’s OSHA citation, which the trial court denied. Schindler and Minnesota Elevator made motions
to dismiss at the end of Mellom’s case and at the close of all evidence, which
the trial court also denied. The case
was submitted to the jury, which found that the elevator was defective as designed
and provided by Minnesota Elevator and Schindler. Among the jury’s other findings were that GM
was negligent, but that its negligence was not a cause of Douglas’s death;
¶12 Minnesota Elevator settled with Mellom prior to the entry of judgment, and is not a party to this appeal. Schindler filed a motion to set aside the jury’s verdict, which the trial court denied. Schindler appeals. Additional facts are presented as necessary in the discussion section.
II. DISCUSSION
¶13 As we noted, Schindler presents three primary contentions. We organize our discussion of these contentions in the following manner. We first discuss Schindler’s contentions regarding the denial of its motions to dismiss. We next consider Schindler’s contention that the trial court erred by not setting aside the jury’s verdict on the grounds that GM was causally negligent, Douglas was contributorily negligent, and Otis Elevator was causally negligent. We then discuss whether evidence of the OSHA citation issued to GM should have been admitted and whether Mellom misused that evidence at trial.
A. Motions to Dismiss
¶14 Schindler contends the trial court erred in denying its motions to dismiss at the close of Mellom’s case and at the close of evidence because Mellom failed to prove: (1) that GM’s modification of the hatch on the top of the elevator and its addition of a ladder inside the elevator was not a substantial and material change to the elevator’s design and function and, thus, Schindler was relieved of liability under Glassey v. Continental Ins. Co., 176 Wis. 2d 587, 600, 500 N.W.2d 295 (1993); and (2) that Douglas’s misuse of the hatch as a service access to the elevator top was not a factor in his death. We reject both contentions.
¶15 A court may not grant a motion to dismiss for insufficient
evidence unless it is satisfied that, “considering all credible evidence in the
light most favorable to the party against whom the motion is made, there is no
credible evidence to sustain a finding in favor of such a party.” Weiss v. United Fire & Cas. Co.,
197
¶16 We give substantial deference to a trial court’s decision
whether to grant a motion to dismiss at the end of a plaintiff’s case or at the
end of all the evidence because the trial court is best situated to assess the
evidence and to decide the appropriate weight and relevancy to give to the
evidence.
1.
Substantial and Material Change
¶17
(1) that the product was in a defective condition when it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause (a substantial factor) of the plaintiff’s injuries or damages, (4) that the seller engaged in the business of selling such product or, put negatively, that this is not an isolated or infrequent transaction not related to the principal business of the seller, and (5) that the product was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was when he sold it.
Glassey, 176
¶18 It is undisputed that GM modified the elevator hatch by adding
a hinge and a ladder to allow millwrights to access the elevator top through
the elevator car. Prior to GM’s
modification, the hatch did not open from the inside of the elevator. Schindler argues that Mellom failed to prove
that this modification was not a substantial change. Schindler further argues Mellom failed to
prove that the substantial change to the elevator was not materially linked to
the accident and asserts that the only reasonable inference supported by the
evidence is that
¶19 The problem with this argument is that Schindler ignores other
evidence in the record that supports the inference that the hatch had nothing
to do with
¶20 The evidence adduced at trial supports two competing inferences
as to what caused
¶21 Ample evidence was presented to support the inference that
2. Misuse
¶22 A defense to a claim of strict product liability is that the product was not being “reasonably used for the purpose for which it was intended.” Dippel, 37 Wis. 2d at 443; see also Wis JI—Civil 3260 (manufacturer of an unreasonably dangerous product “is regarded by law as responsible for harm caused by the product … provided the product was being used for the purpose for which it was designed and intended to be used.”).
¶23 Schindler argues the trial court erred in denying its motions
to dismiss because the evidence at trial demonstrated that Douglas, by using
the modified hatch to access and exit the elevator top, did not use the
elevator in a manner for which it was designed to be used. According to Schindler, the hatch was
designed only as an emergency exit for trapped elevator passengers and Douglas (and
other millwrights) misused the hatch as an access door to the elevator top when
servicing the elevator. In response,
Mellom argues that there was no evidence of misuse by
¶24 We need not address the parties’ dispute about the modification
to the hatch and whether such use was foreseeable. As we have explained, the
jury could have reasonably determined on the credible evidence that
B. Special Verdict Questions
¶25 After trial, Schindler filed motions seeking an order from the trial court setting aside the jury’s answers to four questions on the special verdict form: (1) verdict question no. 3, relating to the defective and unreasonably dangerous condition of the elevator; (2) verdict question no. 8, finding GM’s negligence was not a substantial factor in causing Douglas’s death; (3) verdict question no. 11, finding Douglas was not contributorily negligent; and (4) verdict question no. 9, relating to whether Otis Elevator was negligent with respect to servicing the elevator. Schindler argues the trial court erred by not setting aside the jury’s answers to these verdict questions because the evidence was insufficient as a matter of law to support the jury’s findings. We address and reject each argument in turn.
¶26 When reviewing a trial court’s decision to grant or deny a
motion to set aside a jury’s verdict for lack of sufficient evidence, we will
affirm if there is any credible evidence, or any reasonable inferences drawn
from that evidence, to support the verdict.
See Foseid v. State Bank of Cross Plains, 197
1. Special
Verdict Question No. 3: Open and Obvious Danger
¶27 Schindler argues that the evidence adduced at trial established
that, although the top of the elevator presented an obvious fall hazard, the
hazard was not unreasonably dangerous because it was well recognized and fully
appreciated by the elevator mechanics and millwrights such as
¶28 A product is defective if, at the time it left the seller’s
possession, it is “in a condition not contemplated by the ultimate consumer,
which will be unreasonably dangerous to him.” Green, 245
¶29 Mellom’s complaint alleges a defect in the design of the
elevator, namely, the absence of guardrails on the top of the elevator. “A product has a design defect when the design
itself is the cause of the unreasonable danger.” Godoy, 319
¶30 A product is “unreasonably dangerous” when it is “dangerous to
an extent beyond that which would be contemplated by the ordinary consumer who
purchases it, with the ordinary knowledge common to the community as to its
characteristics.” Tanner v.
Shoupe, 228
¶31 As a general rule, a manufacturer is not liable for injuries
caused by a defective product when the danger posed by the defect is open and
obvious to the ordinary consumer. See Tanner, 228
¶32 Schindler argues that the fall hazard that existed on the top of the elevator was an open and obvious danger and therefore Schindler is shielded from liability. We disagree.
¶33 In Sumnicht, the supreme court identified five permissive factors a court may consider when determining whether a product is unreasonably dangerous. Sumnicht v. Toyota Motor Sales, U.S.A., Inc., 121 Wis. 2d 338, 372, 360 N.W.2d 2 (1984). In determining that the jury could have reasonably concluded that the elevator was unreasonably dangerous, we focus on two of these factors: “the ability of a manufacturer to eliminate danger without impairing the product’s usefulness or making it unduly expensive” and “the relative likelihood of injury resulting from the product’s present design” Id.
¶34 Turning to the first of these factors, ample evidence was presented that Schindler was aware at the time the elevator was designed and manufactured that: an unguarded elevator top created an obvious falling hazard; guardrails were available; guardrails would not impair the elevator’s function, and that they were not unduly expensive. For example, Schindler’s installation supervisor for the elevator, Andrew Zielke, testified guardrails were available and there was no practical reason they could not have been installed. Zielke testified that the cost of installing guardrails would have been relatively low compared to the total cost of the elevator. Schindler’s design engineer for the elevator, Kevin Asselin, testified that he understood the fall hazard that the elevator posed without handrails, but guardrails were omitted from the design in order to save money. The evidence at trial established that the cost of manufacturing and installing the elevator was approximately $250,000, and installing guardrails would have added no more than $2,000 to the total cost. Nonetheless, a Schindler employee directed Minnesota Elevator to delete guardrails from its blueprints for the elevator because guardrails were not required by the Wisconsin elevator code. In short, a jury could have reasonably concluded that Schindler was aware of the falling hazard, that safety measures could be taken to reduce or eliminate the hazard by installing guardrails at a minimal cost, but chose not to install the guardrails to save costs and because Wisconsin code did not require it.
¶35 Likewise, the trial record is replete with evidence
demonstrating the relative likelihood of injury resulting from the product’s
present design. For example, one of
Schindler’s own experts, Patrick Carajat, testified that it was likely
¶36 Because the evidence discussed above supports the jury’s
verdict that the elevator was defective and unreasonably dangerous despite the
millwrights’ awareness of the hazards presented by the unguarded elevator top,
we conclude the trial court properly denied Schindler’s motion for a directed
verdict on this question.[4]
2. Verdict Question No. 8: General Motors’ Negligence
¶37 The jury answered “yes” to the question of whether GM was
negligent, and “no” to the question of whether GM’s negligence was a cause of
¶38 Schindler contends that, by modifying the hatch, GM created an unsafe means of accessing and exiting the elevator top. Schindler further maintains that the evidence showed that GM failed to create a safe place of employment for Douglas by: (1) installing an unsafe ladder up to the hatch without handholds or extenders; (2) failing to provide lighting (other than flashlights) for accessing and exiting the elevator top from the hatch; (3) failing to provide tie-off anchor points for millwrights to secure a safety harness; (4) waiting until after the accident to establish a standard operating procedure for accessing and exiting the elevator top; and (5) failing to provide elevator safety training for its millwrights. Schindler asserts that Mellom failed to produce any evidence to support the jury’s verdict that GM’s negligence was not a substantial factor in Douglas’s death and that Douglas would not have died but for GM’s causal conduct. We disagree.
¶39 We reject Schindler’s contention that the jury could not
logically find GM negligent without also finding that its negligence was a
cause of
3. Verdict Question No. 11: Douglas Mellom’s Negligence
¶40 Special verdict question no. 11 asked the jury whether
¶41 We conclude, viewing the evidence in the light most favorable
to the verdict, that the jury could have reasonably determined that Douglas was
not negligent in causing his own death.
Based on Cisneros’s testimony, the jury could have reasonably believed
that
4. Verdict Question No. 9: Otis Elevator’s Negligence
¶42 Schindler next argues that the trial court erred by not setting
aside the jury’s verdict finding Otis Elevator was not negligent. Schindler points to an admission by an Otis
mechanic that he was aware that GM was violating
¶43 We conclude the trial court did not err by denying Schindler’s
motion to set aside the jury’s verdict finding Otis Elevator was not
negligent. We do so for the same reasons
we reject Schindler’s arguments with respect to the jury’s answers finding GM’s
negligence was not causal and finding Douglas was not contributorily negligent:
there was credible evidence supporting Mellom’s claim that the absence of
guardrails on the top of the elevator was the sole cause of
C.
Admission of the OSHA Citation
¶44 OSHA conducted an investigation of the accident and issued a citation to GM for a violation of OSHA workplace safety regulations. The citation charged GM with violating 29 C.F.R. § 1910.23(c)(1), which requires work platforms raised four feet or more above ground level to be guarded by standard railings.[5] “Platform” is defined within the regulations as “a working space for persons, elevated above the surrounding floor or ground; such as a balcony or platform for the operation of machinery and equipment.” 29 C.F.R. § 1910.21(a) (4).
¶45 Schindler contends that the OSHA citation was erroneously admitted into evidence at trial and that its admission was prejudicial. Specifically, Schindler advances three arguments for why the citation should not have been admitted into evidence: (1) the citation was issued by the agency upon an erroneous construction of its regulations and the trial court relied on the wrong legal standard in admitting the citation into evidence; (2) the trial court erred in treating the question of whether the top of an elevator is a work platform as a question of fact and not properly as a question of law; and (3) the citation was used by Mellom for improper purposes at trial.[6] Assuming for argument’s sake that the citation was erroneously admitted into evidence and that Mellom used the citation for an improper purpose at trial, we conclude that these errors were harmless.
¶46 Under the harmless error doctrine, “[a]n error does not require
reversal unless it affects the substantial rights of the party seeking to set
aside the judgment.” Hannemann
v. Boyson, 2005 WI 94, ¶57, 282
¶47 The record in this case is substantial. In the course of seven days, the jury heard testimony from twenty-two witnesses. Mellom’s case focused primarily on the following theories: (1) the absence of guardrails on the top of the elevator rendered it unreasonably dangerous; (2) the likelihood of serious injury resulting from the design defect was unreasonably high; (3) Schindler knew that elevator mechanics and millwrights would be exposed to the fall hazard without guardrails, but chose not to install guardrails simply because Wisconsin’s elevator code did not require them; (4) although both national and state elevator codes did not require installing guardrails on the tops of elevators, the codes did not prohibit it either; and (5) Schindler could have eliminated the unreasonable falling hazard without impairing the usefulness of the elevator and at minor expense.
¶48 In support of her theories, Mellom introduced testimony by her safety expert that the unguarded elevator top was an inherent and unreasonably dangerous condition and cross-examined Schindler’s and Minnesota Elevator’s employees, experts, and introduced the OSHA citation. When viewed in the context of the entire record, the OSHA evidence was cumulative and constituted a small part of Mellom’s case against Schindler. Even Schindler’s own attorney argued to the court at the motion in limine hearing that the OSHA evidence was not relevant because it was cumulative. We also see from our review of the transcript of Mellom’s closing argument that counsel paid little attention to the citation. To the extent that counsel discussed the citation, it was only to point out that OSHA apparently determined that the lack of guardrails created an unsafe work environment. Based on our review of the record, and contrary to Schindler’s assertions, it is apparent that the OSHA evidence was not the “centerpiece” of Mellom’s case. We are satisfied that the jury would have reached the same verdict even if the challenged evidence related to the OSHA citation had been excluded.
¶49 We make one final observation related to our conclusion that admitting evidence of the OSHA citation was harmless error. Schindler was able to blunt any suggestion by Mellom that Schindler violated OSHA regulations by presenting evidence that the OSHA citation was issued on improper grounds, specifically that the top of an elevator is not a “work platform” within the meaning of the OSHA regulation for which GM was cited for violating. Schindler also presented testimony from two of its employees that the elevator had complied with all applicable OSHA regulations at the time Schindler and Minnesota Elevator manufactured and installed it. Thus, Schindler had the opportunity to counter any suggestion by Mellom that Schindler had violated OSHA regulations by manufacturing and installing an elevator without guardrails on its top.[7]
CONCLUSION
¶50 For the foregoing reasons, we affirm in all respects the trial court’s orders and the judgment entered upon the jury’s verdict in favor of Mellom.
By the Court.—Judgment and orders affirmed.
Not recommended for publication in the official reports.
[1] A “millwright” is a “work[er] who erects the shafting, moves machinery, and cares for the mechanical equipment in a workshop, mill, or plant.” Webster’s Third New International Dictionary 1435 (1993).
[2] Mellom also sued Angus Young Associates, Inc., which provided architectural design services to GM in the installation of the elevator; James R. Bertling and National Elevator Inspection Services, Inc., who conducted annual inspections of the elevator; and John S. Eagon, PE, d/b/a Premium Plainview, who reviewed the elevator design plans. Mellom settled with Angus Young, Bertling and National Elevator prior to trial. Eagon was dismissed from the suit on summary judgment.
[3]
[4] Schindler acknowledges that the question of whether a
condition is an open and obvious danger is typically a question of fact for the
jury to determine. See Tanner v. Shoupe, 228
[5] Section 1910.23(c)(1) of 29 C.F.R. provides as pertinent: “Every open-sided floor or platform 4 feet or more above adjacent floor or ground level shall be guarded by a standard railing (or the equivalent as specified in paragraph (e)(3) of this section) on all open sides except where there is entrance to a ramp, stairway, or fixed ladder.”
[6] Schindler
also argues on appeal that the OSHA citation fails to meet the “trustworthiness”
requirements of Wis. Stat. § 908.03(8). However, Schindler failed to raise this issue
at trial or in its motion after verdict, and we therefore deem it
forfeited. See State v. Ndina, 2009
WI 21, ¶¶29-30, 315
[7] Schindler also asserts it is entitled to a new trial under Wis. Stat. § 805.15 because the cumulative effect of the trial court errors resulted in a verdict that is contrary to law and to the weight of evidence. Because we conclude that the trial court committed no reversible error or, with respect to admitting the OSHA evidence any error committed by the trial court was harmless, we reject this argument.
In the alternative, Schindler seeks a new trial in the interest of justice, pursuant to Wis. Stat. § 752.35. Schindler argues the real controversy was not fully tried and that justice has been miscarried because the trial court admitted evidence about the OSHA citation and Mellom had misused this evidence, thereby confusing and misleading the jury. Because we have concluded that to the extent the trial court erred the error was harmless, we deny Schindler’s request for a new trial.