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From Products Liability Law Daily, January 16, 2019

Appeal in recreational airbag case falls flat after court bounces ‘perverse’ jury verdict claim

By Wendy Biddle, J.D.

In a case stemming from a man’s injuries following his jumping onto an inflatable airbag at an outdoor music festival, the Wisconsin Court of Appeals rejected the injured man’s claim that the jury’s award of $0 was perverse, finding that based on the facts in evidence, the jury could have concluded that while the airbag manufacturer was negligent, the manufacturer’s negligence was not "causal" due to the man’s level of intoxication at the time of the incident. As such, a monetary award was not warranted. In addition, the man’s arguments that the trial court had erroneously exercised its discretion in instructing the jury also failed because the issue was not raised at the time of jury instruction and, as such, was forfeited (Turner v. Bounce Back LLC d/b/a/ US Airbag, LLC, January 15, 2019, per curiam).

The 58 year-old man had attended Chippewa Valley’s Country Fest and had participated in an attraction that involved jumping onto an airbag that was 10 feet off the ground. When he jumped off the platform, he decided to do a flip, which he had never done before, and landed headfirst. He suffered multiple spinal fractures that resulted in spinal fusion surgery. At the time of the jump, the man’s blood alcohol level was 0.11, which was over the legal limit to operate a motor vehicle in Wisconsin. The injured man and his insurance company filed suit against the entity that designed, owned, and operated the airbag—Bounce Back LLC, d/b/a US Airbag, LLC (US Airbag)—as well as the entity that had sewn the airbag, Great Air, Inc., d/b/a N-Flatables, Inc. (N-Flatables). Also named was the Chippewa Valley Music Festival (Chippewa Valley). The complaint asserted negligence and products liability claims against all three defendants.

After a trial, the jury found that US Airbag was negligent, but that its negligence was not causal; N-Flatables was not a manufacturer of the airbag and, therefore, was not negligent, while Chippewa Valley was not negligent in failing to provide a safe premises. The jury further found that the injured man was negligent and that his negligence was causal; therefore, it awarded him $0 in damages. The injury victim and his insurer appealed, arguing that the jury’s verdict was perverse and that they should be awarded a new trial. They also contended that the jury instructions regarding his contributory negligence were improper and repetitive.

Perverse verdict. The injured man argued that the jury verdict was perverse because three of the jury’s findings were contrary to evidence: (1) the conclusion that US Airbag was not causally negligent; (2) the determination that N-Flatables was not the manufacturer of the airbag; and (3) the award of $0 damages. The appellate panel determined that there was no merit to the assertion that the jury’s finding concerning US Airbag not being causally negligent was perverse. The panel further noted that even though US Airbag was found to be negligent in its design and operation of the airbag, there was ample evidence showing that the injured man had been the cause of his own injury based on his blood-alcohol level and his decision to do a flip. The operators of the airbag at the festival even instructed the man to "land on your butt and back like you’re [in a] sofa chair." However, his choice to run and do a flip was enough evidence for a reasonable jury to find his choices to be the cause of his injury.

The panel also was not persuaded that the jury’s conclusion that N-Flatables was not a manufacturer of the airbag was a perverse finding. Both N-Flatables and US Airbag testified that N-Flatables neither had designed the airbag nor had any input in the design process. Based on the evidence, the jury reasonably could have found that N-Flatables merely had sewn the airbag involved in the accident based on US Airbag’s specifications. As such, it was reasonable that the jury could have concluded that N-Flatables was not a manufacturer.

Lastly, the court rejected the man’s argument that the jury’s finding of $0 in damages was perverse. Similar to the issue of US Airbag’s negligence, there was ample evidence that supported the jury’s decision that US Airbag was not causally negligent, that the actions of the man caused his injuries, and that an award of $0 was appropriate. Therefore, the appellate panel denied the motion for a new trial based on a perverse verdict.

Jury instructions. The injured man argued that the trial court erred in its instruction of the jury: (1) on the definition of the term "manufacturer"; (2) on the man’s contributory negligence; and (3) on damages. Because the special verdict asked the jury to determine if N-Flatables was negligent, the man contended that the trial court should have defined the term "manufacturer" for the jury. However, the appeals court observed that the man had failed to ask the trial court to include any such instructions to the jury. Nor had the man objected at the time for a lack of instruction. By having failed to raise the objection at trial, the man forfeited his right to appeal the issue. The man also forfeited appeal of the issue of a lack of definition of the term "manufacturer" because he did not include the issue in any of his post-verdict motions.

Next, the injury victim argued that trial court gave three separate instructions on contributory negligence that were repetitious and unduly emphasized the defense theory that he was partially responsible for his own injuries. The appellate panel rejected that argument, finding that the three instructions showed the complicated nature of the case and were not unduly repetitious.

In addition, the injured man argued that the evidence at trial did not warrant the trial court’s addition of a special instruction about the responsibilities of people participating in recreational activities maintaining control of their bodies, as Wisconsin law instructs. However, as there was evidence that the jury could rely upon—such as the consumer’s choice to run and flip versus doing what the airbag operators instructed—the appellate panel found that the circuit court did not overstep in providing instruction based on state law.

Finally, on the issue of the jury instructions, the injured man asserted that the trial court erred in answering the jury’s question about damages. The jury asked, "[i]f there is no negligence do we still assign damages?" The court responded that the jury must fill in damages if they decide to award any damages regardless of liability questions previously answered. The man argued that the court erred in telling the jury that it could award any amount of damages. However, the court again noted that the man failed to raise this issue at trial at the time the instruction was given, and, thus, he forfeited his right to appeal the issue. Therefore, the appellate panel declined to hear it.

The case is No. 2018AP352.

Attorneys: Thomas K. Guelzow (Guelzow Law Offices Ltd.) for Colin Turner. Michael D. Hutchens (Meagher & Geer, PLLP) for Bounce Back LLC, and Seekjoy Productions, LCC.

Companies: Bounce Back LLC; Seekjoy Productions, LCC

MainStory: TopStory DefensesLiabilityNews DesignManufacturingNews DamagesNews JuryVerdictsNewsStory SportsandRecEquipmentNews WisconsinNews

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