Appeal from the United States District Court for the Eastern District of Wisconsin, No. 83-C-1554-John W. Reynolds, Judge.
Before POSNER and FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
FLAUM, Circuit Judge. This diversity action is a personal injury suit arising from an automobile accident that occurred in Milwaukee, Wisconsin. Plaintiff tried the case to a jury on the theories of negligence and products liability. At the close of the evidence, defendants moved for a directed verdict on both claims. The district court allowed the products liability claim to go to they jury, but directed a verdict for defendants on the negligence claim. The jury found for defendants on the products liability claim. Plaintiffs moved for a new trial, challenging the directed verdict on the negligence claim as erroneous. The motion was denied and the plaintiffs appeal. We reverse the judgment of the district court.
The automobile accident that gave rise to this suit occurred at approximately 2:00 a.m. on October 30, 1981, at the intersection of 24th and Wells Streets in Milwaukee, Wisconsin. Plaintiff Lauren Chaulk was the front seat passenger in a 1977 Volkswagen Rabbit. As the Volkswagen entered the intersection, it was broadsided on the passenger side by a 1978 Ford LTD. The drivers of both cars sustained minor injuries. Chaulk, however, was ejected from the car and thrown to the ground some 65 feet away from the estimated point of impact. She was knocked unconscious and remained in a coma for several months.
At trial, plaintiffs argued that the door latch system of the 1977 Volkswagen Rabbit was designed in such a way that the force of a side impact collision could release the latch, and that Chaulk was ejected from the car as a result of just such an inadvertent release. In plaintiffs' view, this latch system was both negligently designed and inherently dangerous.
At the close of the evidence, defendants moved for a directed verdict on both the negligence and the products liability claims. The court granted the motion as to the negligence claim, but permitted the products liability claim to go to the jury. On September 26, 1985, the jury returned a verdict in favor of defendants on the products liability claim. Plaintiff filed a motion for a new trial on October 4, 1985. The district court denied this motion on December 13, 1985, and the plaintiffs have appealed.
In diversity cases, this court applied the state standard of review to the trial court's decision to grant or deny a directed verdict. Gonzalez v. Volvo of America Corp. 752 F.2d 295, 301 (7th Cir. 1985); Davis v. FMC Corp., 771 F.2d 224, 229 (7th Cir. 1985); McMahon v. Eli Lilly & Co., 774 F.2d 830, 832 (7th Cir. 1985). Because the law of Wisconsin governs in this case, we must apply the Wisconsin standard. In Wisconsin, the standard of review for an appellate court when passion on the correctness of the trial court's decision to direct a verdict is "whether the trial court was clearly wrong." State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240, 249 (1985); Greiten v. LaDow, 70 Wis. 2d 589, 235 N.W.2d 677, 683 (1975).
A Wisconsin trial court should not direct a verdict if there is "any credible evidence which under a reasonable view would support a verdict contrary to that which is sought." State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240 (quoting Thompson v. Howe, 77 Wis. 2d 441, 253 N.W.2d 59, 62 (1977)).*fn1 In this case, plaintiffs' evidence of negligence was not only credible but substantially uncontroverted by defendants. We therefore conclude that the trial court's decision to direct the verdict on the negligence claim in favor of defendants was "clearly wrong."*fn2
In design defect cases, "[a]ll that it is necessary to prove [negligence] is that the product is designed with a lack of ordinary care and that lack of care resulted in injury." Greiten, 235 N.W.2d at 685; see also Fischer v. Cleveland Punch & Shear Works, 91 Wis. 2d 85, 280 N.W.2d 280, 283 ("A cause of action in negligence requires proof that the defendant failed to exercise ordinary care and that the act or omission complained of was the cause of the plaintiff's injury."). "Ordinary care" involved the concept of foreseeability. Greiten, 235 N.W.2d at 685; Fischer, 280 N.W.2d at 283. Therefore, for plaintiffs to be entitled to a new trial on the issue of negligence, the record must clearly show credible evidence as to (1) a lack of ordinary care, including the foreseeability of the accident; (2) causation; and (3) injury.*fn3 We hold that the plaintiffs presented some credible evidence as to each of these issues.*fn4
That there was some credible evidence as tot he issues of causation and injury is not seriously disputed here. At trial, plaintiffs' negligence case rested on the testimony of one expert witness, Mr. Jack Martens. Martens, an engineer with expertise in automobile safety, testified that in his opinion the cause of Chaulk's ejection from the car, and therefore the cause of her injuries, was a negligently designed latch system. The latch system is designed so that in theory, if the door were pushed inward in a side impact collision, the inward movement could release the latch. In Martens' opinion, such an inadvertent release cause Chaulk's ejection for the automobile. Although defendants presented opposing testimony that Chaulk was ejected through the passenger window ...