Appeal from the United States District Court for the Eastern District of Wisconsin. No. 72-C-582 - John W. Reynolds, Judge .
Before Fairchild, Chief Judge, Wisdom, Senior Circuit Judge,*fn** and Wood, Circuit Judge.
This is an appeal by defendant Ford Motor Company (Ford) from a judgment entered upon a jury verdict in April, 1977, in favor of plaintiff, Sheryn Kautz Fietzer. The total judgment is $469,303.19 plus costs. Jurisdiction was based on diversity of citizenship under 28 U.S.C. § 1332.
This action arose out of a two-car accident on the evening of October 4, 1969, in New London, Wisconsin. Plaintiff Fietzer was driving a 1964 Mercury Comet which was rear-ended by a 1969 Plymouth driven by Douglas Hilker. Plaintiff's most serious injuries were burns caused by ignited gasoline in the passenger compartment.
Plaintiff's claim against Ford is that the design of the fuel tank in the Comet was unreasonably dangerous.
Although there was conflicting testimony on various details, the following recital of facts will suffice for present purposes. Where the accident occurred, Highway 45, is a two-lane highway running north and south. Plaintiff and a passenger were leaving a drive-in restaurant which was located on the west side of the highway. The speed limit was 45 m. p. h. Fietzer testified that after looking out for traffic, she completed her entry onto Highway 45, and drove north. She proceeded about 75 feet and was moving at 15 to 20 m. p. h. She looked in her rearview mirror and saw headlights. She remarked to her passenger, Judy Rohloff, that the other car "was coming awfully fast." She did not remember the impact or what happened immediately after impact.
The driver of the Plymouth, Douglas Hilker, had six "whiskey and sours" and "a couple of beers" during the late afternoon and early evening before the accident. Hilker testified that his speed was between 45 and 60 m. p. h. before impact. He also testified that he did not see the Comet in the driveway, but all of a sudden saw it in front of him; that he could not brake quickly enough to avoid the accident.
Rohloff testified that immediately after impact there was fire coming from the rear of the passenger compartment of the Comet. It spread to the entire interior within seconds.
Plaintiff's injuries were burns to 80% Of her body. There was also testimony that she received contusions, abrasions, and cervical and lumbar strain.
Plaintiff presented testimony that the fuel system was defective in that: the gas tank was flange mounted; the top of the tank was the floor of the trunk; the filler neck was located in the trunk and easily separable from the tank; that there was no firewall between the tank and the passenger compartment.
The expert testimony concluded that the fuel tank was defective and unreasonably dangerous; and the defective fuel system and the absence of the firewall were a cause of plaintiff's burns.
There was little dispute at the trial regarding the damage to the Comet. The passenger side of the car was pushed into the tank; the tank was pushed forward about ten inches; the tank was crushed about twelve inches; the back end of the car was pushed up into the wheel housing on the left side; the trunk lid was pushed into the rear window.
In a special verdict, the jury found Hilker negligent, but that his negligence was not a cause of plaintiff's injuries. The jury found the 1964 Comet in a defective condition which made it unreasonably dangerous to its users, and that such defect was a cause ...