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03/29/83 PETER GIESE AND SUE GIESE v. MONTGOMERY

March 29, 1983

PETER GIESE AND SUE GIESE, INDIVIDUALLY AND AS PARENTS OF MISSY GIESE, PLAINTIFFS AND CROSS-APPELLANTS, MISSY GIESE, A MINOR, BY HER GUARDIAN AD LITEM, ARNOLD J. WIGHTMAN, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT-PETITIONER,
v.
MONTGOMERY WARD, INC., A FOREIGN CORPORATION, DEFENDANT AND CROSS-RESPONDENT, MICHAEL SHANAHAN, A MINOR, BERNARD SHANAHAN, INDIVIDUALLY, AND D/B/A SHANAHAN'S TAVERN, AND DOROTHY SHANAHAN, INDIVIDUALLY, AND D/B/A SHANAHAN'S TAVERN, DEFENDANTS-RESPONDENTS AND CROSS-APPELLANTS AND CROSS-RESPONDENTS AND CROSS-PETITIONERS



Review of a decision of the Court of Appeals. Reversing and remanding Beilfuss, C. J.

The opinion of the court was delivered by: Beilfuss

This is a review of an unpublished decision of the court of appeals which affirmed in part the judgment of the trial court in a personal injury action.

This action arises out of an accident involving a riding lawn mower. Bernard and Dorothy Shanahan own Shanahan's Tavern near Loganville, Wisconsin. The tavern is located next to the Shanahans' home. On August 7, 1977, Peter and Sue Giese and their daughter, Missy Giese, arrived at the tavern in the early evening. Peter planned to spend the evening at the tavern tending bar while Sue intended to have one drink and then return with Missy to their home in Prairie du Sac. Dorothy and Bernard Shanahan were in the tavern when the Gieses arrived. Missy, then age six, entered the tavern with her parents but shortly thereafter left the tavern without them. There is substantial dispute regarding who accepted responsibility for Missy's supervision when she left the tavern. Her parents testified that Dorothy Shanahan offered to fix supper for Missy and that Dorothy left the tavern with or about the same time as Missy. Dorothy testified that she left the tavern shortly after the Gieses' arrival to go to the house to shower prior to going out for the evening. She testified that she did not offer to fix supper for Missy, but rather asked Sue Giese to keep an eye on the children.

Prior to the Gieses' arrival, Bernard Shanahan directed his son, Michael Shanahan, then age fourteen, to mow the lawn in front of the house. Bernard Shanahan owned a seven-horsepower Montgomery Ward riding lawn mower manufactured in 1973 or 1974. Michael had operated this lawn mower several times prior to the day of the accident. When the Gieses arrived Michael had not yet started to mow the lawn but was filling the mower's gas tank. Peter and Sue Giese testified that they did not see Michael before they entered the tavern and did not know he was mowing the lawn until they were informed of the accident. After they entered the tavern Michael began mowing the lawn in front of the house.

As stated earlier, Missy left the tavern and was playing in the yard in front of the house with the two other Shanahan children, Anna Marie and Kevin. The three children began racing toward the tavern, with Missy out in front, when Kevin saw Michael operating the lawn mower in front of them. Michael had been operating the mower in reverse, with the blade engaged, for a distance of 200 feet. He was looking backwards over his right shoulder while operating the mower in this fashion. Just prior to the accident, after negotiating a turn, he looked forward to check his position. Kevin saw Missy running toward Michael and the lawn mower and yelled "Missy" because he "saw danger." This caused Missy to turn and look over her shoulder at Kevin and caused Michael to turn back in the direction he was mowing. Michael then saw Missy within one foot of him. Missy collided with the left rear of the lawn mower and fell. The mower continued moving backward, riding partially over Missy. Michael attempted to lift the mower off Missy and Kevin ran to the mower and disengaged the blade.

Missy suffered serious injury as a result of the accident, including amputation of her right hand at midpalm, multiple lacerations to and a fracture of the right forearm, and severe lacerations to her right thigh requiring two skin grafts resulting in permanent scarring. On May 9, 1978, Missy and her parents brought this action against Montgomery Ward, Inc., alleging strict liability and negligence, and against Michael and his parents alleging negligence. All the defendants cross-complained against each other, and counter-claimed against Missy's parents for contribution.

Trial to a jury was commenced on September 10, 1979, Judge Howard Latton, presiding. Missy presented evidence that the mower was defective and unreasonably dangerous and negligently designed in that the lawn mower could be operated in reverse with the blade engaged, thus being susceptible to "back over" accidents because of the operator's lack of vision and control. She also presented evidence that the mower should have had a guard over the blade underneath the mower, or a "bumper" that stops the blade on contact. Montgomery Ward offered evidence that the guard and bumper were not feasible design alternatives. It also presented evidence that the design was safe because it gave the operator the choice of whether he or she wished to engage the blade while moving backwards, that customers want to be able to mow backwards, and that the law mower met or exceeded applicable standards at the time of manufacture and up to the time of trial. Additional facts will be set forth in the opinion.

The trial court submitted a 17-question special verdict to the jury. The jury answered the strict liability question in the negative, but found that Montgomery Ward was causally negligent in the design or manufacture of the lawn mower. Bernard and Dorothy Shanahan were absolved of negligence as to Bernard's control over Michael, and Dorothy's responsibility for the safety of Missy. The jury found Peter and Sue Giese causally negligent with respect to their daughter's safety. The trial court directed a verdict that Michael acted as Bernard Shanahan's agent and the jury found that he was also acting as Dorothy's agent. These findings by the jury were unanimous.

In answering the comparison negligence question the jury allocated 52 percent to Montgomery Ward, 10 percent to Michael Shanahan, and 38 percent to Peter and Sue Giese. No negligence was allocated to Missy and her name did not appear in the comparison because she was under seven at the time of the accident. *fn1 Two jurors, Luprue and Gollmer, Dissented to this apportionment. The jury awarded Missy $165,000 with jurors Gollmer and Goodman Dissenting. Juror Goodman also Dissented from the amount of damages awarded to Missy's parents for future medical expenses and loss of society and companionship. *fn2

The trial court found the verdict defective and ordered a new trial. The court found the damages awarded to be reasonable and limited the second trial to liability issues only. The court also stated that it would not resubmit the issues of the negligence of Dorothy Shanahan or agency. A second trial was held in September of 1980. The jury again answered the strict liability question in favor of Montgomery Ward. The jury found that Montgomery Ward was negligent "in the design or warnings relating to the lawn mower in question," but found such negligence not to be causal. The jury again found Michael Shanahan and Peter and Sue Giese causally negligent and absolved Dorothy and Bernard Shanahan of negligence. Thirty-five percent of the negligence was allocated to Michael Shanahan and 65 percent to Peter and Sue Giese. The trial court entered judgment on the verdict in favor of Missy and against Michael, Dorothy and Bernard Shanahan, *fn3 with the Shanahans having contribution rights against Peter and Sue Giese. *fn4

The court of appeals affirmed the order granting a second trial and affirmed the judgment with the modification that there was no liability on the part of Dorothy Shanahan because the master-servant relationship did not exist between Dorothy and Michael. *fn5 Missy petitioned this court for review of this decision claiming that it was error to order a second trial and that even if the second trial was appropriate the lower courts erred in failing to find that Montgomery Ward's negligence was a cause of her injuries as a matter of law. Bernard Shanahan cross-petitioned, also contending that the second trial was inappropriate, and further asserted that the lower courts erred in holding him vicariously liable for his son's negligence. We granted these petitions.

The first issue on review is whether the trial court, after the first trial, correctly ordered a new trial. Sec. 805.15, Stats. 1977-78, allows a trial court to order a new trial on the following grounds: (1) errors in the trial; (2) verdict is contrary to law or the weight of evidence; (3) damages are excessive or inadequate; (4) newly discovered evidence; or (5) in the interest of Justice. In resolving this issue we must therefore examine the trial court's grounds for ordering a new trial. If any one ground is sufficient then the order must be affirmed.

Our examination of the trial court's memorandum decision and order leads us to the Conclusion that the primary reason the trial court ordered a new trial was because it determined that the jury's verdict was contrary to law because it did not meet the five-sixths requirement. Art. I, sec. 5 of the Wisconsin Constitution provides for the right to a jury trial in all cases at law "rovided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five sixths thereof." Pursuant to this provision of the constitution the legislature enacted sec. 805.09(2), Stats., which provides:

"(2) Verdict. A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than one question must be answered to arrive at a verdict on the same claim, the same five-sixths of the jurors must agree on all the questions."

It is well established in Wisconsin law that this statute requires not that five-sixths of the jury agree on all questions in the verdict, but rather that this number must agree on all questions necessary to support a judgment on a particular claim. Scipior v. Shea, 252 Wis. 185, 190, 31 N.W.2d 199 (1948). Thus a verdict must be reviewed on a claim-by-claim basis rather than as a whole. Krueger v. Winters, 37 Wis. 2d 204, 212, 155 N.W.2d 1 (1967); United States F. & G. Co. v. Milwaukee & S. T. Corp., 18 Wis. 2d 1, 117 N.W.2d 708 (1962); Augustin v. Milwaukee E. R. & T. Co., 259 Wis. 625, 49 N.W.2d 730 (1951). Dissents important to one claim may be immaterial to another when the verdict is reviewed in this fashion. Scipior, 252 Wis. at 190.

The lower courts, however, failed to apply this claim-by-claim analysis. Instead they looked at the verdict as a whole in concluding that it violated the five-sixths rule. In analyzing the validity of the verdict in light of the Dissents, the trial court stated only:

"All parties agree that a problem exists because the same ten jurors have not agreed on all of the questions in the verdict. . . .

"As to Dissenting jurors, the problem arises because on the comparative negligence question there were two Dissenting jurors and on the damage question for Missy Giese there were a different two jurors. In other words we have ten jurors on all negligence questions, and we have ten jurors on all damage questions."

The court of appeals affirmed the trial court, holding that the trial court properly ordered a new trial because ten jurors did not agree "on damages as well as liability." Both lower courts failed to analyze the ...


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