"Right," acknowledged Jake slowing the Jeep as they entered Cumberland.
"Right," echoed Charles, "so we follow the ‘JIGS,’ the Minnesota standard jury instructions from the Jury Instruction Guide and cite the appropriate authorities supporting them."
"What have you got?" asked Jake.
Charles shifted in his seat and adopted his most professorial voice. "We start with the JIGs, 117 and 119 on defective products. 117 deals with design defects. 119 deals with failure to warn. Then," he referred to his notes, "we make sure to cite the old standard in Minnesota on products liability, which is McCormack v. Hankscraft Co., 278 Minn. 322, 154 N.W.2d 588 (1967). You remember the case involving the steamer left in the child's room which was upset and scalded the child?"
Jake smiled. "You taught it to me," he replied, "and I have applied it and its principles many times."
"Right, well some people think McCormack was new law in Minnesota at the time, part of the 'assault on the citadel' for which Professor Prosser is so well known, starting with MacPherson v. Buick. However, we have some pretty old law that still provides strict liability in tort in the right kind of defective product case. In fact, it was the law when this tractor was designed and built, which might be helpful. That case is Hartman v. National Heater Co., 240 Minn. 264, 60 N.W. 804 (1953). Here's a quote." He read from a photocopy:
"'A manufacturer of a chattel such as we have here is under a duty to exercise reasonable care in adopting a safe plan or design for his chattel. See Restatement, Torts, §§ 395, 398. Where a manufacturer undertakes by printed instructions to advise of the proper method of using his chattel, he assumes the responsibility of giving accurate and adequate information with respect thereto, and his failure in this respect may constitute negligence.’"
Charles said, "There are some other old cases that uphold this language before our tractor was made, Johnson v. West Fargo Manufacturing in 1959 in 95 N.W.2d and the Lovejoy case in 1956. I think those cases, McCormack, and the JIGs get us where we want to be."
"Agreed," said Jake. "We should start our trial brief soon, while we have this analysis fresh in our minds, even as we draft the Complaint to start the lawsuit."
They drove on in silence, north on 63 through the small Wisconsin towns, enjoying the pleasant scenery. Each man reviewing the legal analysis in his own mind, outlining the way it would be presented in an organized persuasive trial brief to the trial judge that would support their requested jury instructions and their arguments in support of their evidence and expert testimony. After several miles, Jake broke the silence.
"Let's review my research now. I think I have a surprise you'll like."
"Oh?" said Stanton, reaching to the back seat for Jake's notes.
"I told you before about the articles in industry trade journals and magazines from the fifties and the real old ones from the twenties," said Jake.
"Yes," acknowledged Charles, "I thought they were very good. If we can get them in with the right witness, they'll fit right into our legal analysis with the Minnesota cases."
"Well look at the photocopy of the article under the top yellow sheet on my legal pad, there. Do you see it?" Jake pointed with his right hand, taking his eyes off the road for a second.
"Is this it?" Charles held up several pages stapled together.
Jake glanced. "That looks like it. It's by three agricultural engineers. They are the ones that tested the safety arch at the University of California at Davis. Lamouria, somebody and Parks, I think."
"Lorenzen."
"What?"
"Lorenzen. That's his name, Coby Lorenzen."
"Who?"
"The third guy, the other engineer," explained Charles. "This is the article. It is entitled 'Design Criteria for a Driver-Safe Tractor Frame,' by Lamouria, Lorenzen and Parks."
"That's it," Jake confirmed. "Now, read the first paragraph . . . aloud."
Charles Stanton obliged:
"’Agricultural engineers in the United States indirectly contribute to more farm deaths than any other agricultural engineering group in the world. A lack of accident awareness by U. S. engineers is most apparent. In no instance does a U. S. tractor manufacturer provide the farmer with a tractor designed to minimize injury in accidents. How can we explain our callous indifference to the hundreds of annual deaths to which we have contributed through inadequate design? Educating tractor operators on the dangers involved is insufficient. Man must be protected from himself! Only when the tractor or other machine approaches a fool-proof state can the engineer consider the design complete.’"
Charles Stanton sat staring at the photocopy for a moment. Finally, he looked at Jake. "Is this for real?" he asked.
"Jake grinned, his eyes on the road ahead. "I told you you'd like it," he said.
"Like it?" Charles looked at him. "Like it?" he repeated. "This is incredible! Where the hell did you find this?" He waved the article in the air.
Jake laughed. "The hard part was keeping it quiet all this way." He pointed to the article in Charles' hand. "I think the cite is right on it. There." He pointed with his index finger at the top of the title page."
"Here it is," said Charles, reading. "Paper No. 62 - 633, American Society of Agricultural Engineers, December, 1962."
"And that's by the same guys who tested the safety arch in 1956!" added Jake. "It was in the Farm Safety Review in November, 1956."
"Wow!" Stanton was still stunned. "Can we use it?" he asked.
"I hope so. It was certainly part of the industry literature in 1962. Our tractor was built in 1965."
As they continued on their way back to Raspberry Bay, they continued their discussion of the presentation of this case and the industry information evidenced, buoyed by Jake's discovery of the Lamouria, Lorenzen and Parks paper.
PART SIX: THE LAWSUIT
CHAPTER FIFTEEN
It was Sunday morning, July 19, as Resolution slipped quietly out of the Bayfield harbor. A very light southerly breeze blew across flat water under a cloudless sky.
Jake wore white shorts, no shirt and no shoes as he stood at the helm looking out toward Basswood and Madeline Islands. Outside the harbor, he brought Resolution's bow to the wind and raised the sails. He headed Resolution towards Madeline's northeast corner on a gentle broad reach.
As Resolution glided softly over the calm water, Jake sat in the sunshine thinking about the pleadings to be drafted to start the Pallmeyer lawsuit. With Charles Stanton, he had reviewed their legal and product research with the client, Sarah Pallmeyer. They were all satisfied it was reasonable to proceed. Sarah gave her approval. Now the Summons and Complaint were to be drafted along with a fairly good outline of how they intended to proceed with discovery, future investigation, anticipated discovery and motions from defendant, and, of course, the trial itself.
It was late morning when Jake brought Resolution around Presque Isle Point to anchor in Julian Bay on Stockton Island. He rowed the dinghy in to shore for a swim and a walk along the "singing sand beach."
Refreshed by Lake Superior's cold water and relaxed by the relative solitude of Julian Bay, Jake returned to Resolution to begin drafting. Working with a laptop computer borrowed from his old law firm, Jake sat in the cockpit and began by laying out the caption of the action. At the very top of the page, he typed a note to the secretary who would eventually produce the final draft: "Normal 20 day Summons --orig. & 5 copies," he typed for the secretary.
Because of Bobby Pallmeyer's condition, he was not legally competent to sue. Following Rule 17 of the civil procedure rules, Jake drafted a Petition for the appointment of a Guardian ad Litem. Before sending the Summons and Complaint out for service, the Petition and an Order would be submitted to a Hennepin County District Judge for signature appointing Sarah as guardian to bring the lawsuit.
Charles and Jake had already discussed venue and decided the suit could be venued in Minnesota state court in Hennepin County. The manufacturer, Cherokee Tractor & Implement Company, although
principally located in St. Louis, had offices in Minneapolis and a resident agent for service there and therefore could be sued there.. Since Bobby and Sarah Pallmeyer were Minnesota residents, the suit would be state rather than federal court, there being no diversity of citizenship upon which to base federal court jurisdiction. Also the possibility of defendant impleading the contractor/owner, Northland Logbuilders, a Minnesota corporation, would eliminate any idea of diverse citizenship.
Jake had considered federal court in Wisconsin. However, he felt that Sarah would do better in Minnesota courts, as a Minnesota resident against an out-of -state corporate defendant. A Wisconsin jury, he felt, might be less sympathetic toward a non-resident tourist or vacationer. He had considered starting the action in Duluth in the Sixth Judicial District in St. Louis County because of the Pallmeyers' residence in adjacent Hermantown. He chose Hennepin County because he felt the juries there were more generous and more likely to find for an injured plaintiff than the conservative juries of northeastern Minnesota.
Who really knew? he mused. Nevertheless all such matters were carefully considered and then a judgment call had to be made. Jake's judgment in this case was Hennepin County. He also consulted his cousin, Duluth lawyer Mike Reynolds, who agreed.
The matter of conflict of laws was also to be considered. The injury occurred in Wisconsin, but the trial would be in Minnesota. Which state's law would apply? Generally, procedural matters were decided by the law of the forum, but the substantive law of the state where the injury occurred was normally applied.
However , in this case, Jake thought the court would apply Minnesota law. All the parties were from Minnesota or had substantial contacts there. Wisconsin's only connection to the case was the location of the accident itself, and that was in a national park. Wisconsin had no overriding interest in the litigation, while Minnesota did. In any event he didn't believe there were significant differences in products liability law between the two states which would affect this case.
A Mallard and three young swam by Resolution's stern looking up curiously, waiting for handouts. Jake obliged by throwing them some bread scraps.
He began typing the Complaint on the laptop computer. Jake had never liked dictating initial pleadings in a lawsuit. If he didn't have the laptop, he would be writing the Complaint out in longhand. He had to see the allegations as he drafted them. He had to see the whole document as it was being completed.
He took his time. The Complaint might be the most important job of drafting in the lawsuit. And Jake was in no hurry. He had no appointments or other files pressing for his time.
When he was done, he reviewed the Complaint on the screen of the laptop. Mentally, he checked off the elements of each cause of action. For negligence he pleaded negligence, proximate cause and damage. As separate causes of action, he also pleaded strict liability in tort and breach of warranty with causation and damage allegations for each. He finished with the standard ad damnum clause with its prayer for relief and the required acknowledgment about the possible imposition of attorneys' fees for suits brought without merit or in bad faith.
The signature line was set up for "Jacob R. Kingsley, Attorney for Plaintiff, Bay Harbor, Wisconsin," and showed him to be "Of counsel to: Stratton, McMasters & Hines, Attorneys at Law, Minneapolis, Minnesota." He added a signature line for Professor Charles Stanton and reminded himself to ask Charles if he had kept his license.
When he was satisfied, Jake saved the document on the computer and started Resolution's diesel to head home to Raspberry Bay.
The morning's breeze had died. As Resolution motored out of Julian bay around Presque Isle Point, Jake saw calm water in the hot sunshine. A few sailboats rested on the flat water with white sails hanging loosely from the rigging. Jake could see a few power boats motoring across the water, their trailing wakes the only movement on the water's surface. The excursion boat from Bayfield could be seen going north past Hermit Island in the North Channel.
Jake eased the shift lever into reverse and touched the throttle to stop Resolution as she pulled into her slip at Hanson's Marina. After cleating the bow and stern lines and adding two spring lines, Jake took the laptop to the marina office.
"Is Bert around?" He asked at the counter in the ship's store.
"Back in the office, Jake," said the young woman at the counter. "Go right back."
"Thanks," Jake smiled.
"Jake! Good afternoon!" bellowed Bert Hanson. He was sitting at the large office desk from which Sandy Hanson usually ran the marina operations.
"Where’s Sandy?" asked Jake.
"Gone to the Cities. Shopping. Left me with the paperwork." He looked at the pile on the desk in front of him. "What's up?" he asked.
Jake held up the laptop. "I need your printer."
They connected the laptop to Hanson's laser printer and printed several copies of the Complaint.
Later, over dinner at Charles' cottage, Jake, Bert and Charles reviewed the case and Jake's Complaint.
Charles, playing host, refilled stemmed wine glasses with a dry red California Zinfandel as the men worked on large rare porterhouse steaks.
"Pretty fine cooking for an aging bachelor like yourself," said Bert, returning his fork to his plate and reaching for his wine glass.
"Thank you," beamed Charles, lifting his own glass in response. "I'll accept the first part of your compliment."
As the three men enjoyed their meal, watching dusk settle on the Apostle Islands, Bert Hanson reported on the progress of his investigation.
"I've talked to Bill Simpson, McElroy from the Park Service, and the crew from the log construction contractor," explained Hanson. "They all tell pretty much the same story."
"How about written statements?" asked Jake.
"Not yet." Bert Hanson looked at Jake. "They are all friendly and anxious to do whatever they can for young Pallmeyer. I told 'em we would want statements after I reviewed my notes with you. Okay?"
"Good idea," Jake nodded.
"What is their story?" asked Stanton.
"About what we've already heard," answered Hanson, who went through the detail of his conversations with the witnesses, referring to his notes.
"How did they seem as witnesses?" Jake held his glass out to Stanton who rose to reach the Zinfandel on the sideboard.
"Seemed straightforward, honest, and credible to me," replied Bert.
"Anything unusual?"
"No." Hanson looked at his notes and thought back to the interviews in Bay Harbor and Duluth. "Well, maybe one thing."
"What?" Stanton returned to his seat.
"They all had statements taken by an insurance investigator right after the accident," said Bert, "and none of them liked him very much."
"What?" Charles Stanton looked at Hanson. "Why not?"
"They said he was very thorough, took a lot of pictures including pictures of them." Bert said. "But they all thought they were helping Bobby Pallmeyer. After they got through they weren't so sure they had."
"Really," said Jake. "What happened?"
"Well, he seemed to be blaming the accident on them or Bobby or their boss, the tractor's owner. Fred Slattery said he used a tone that seemed almost accusing when he found out they didn't have an operator's manual or something called a drawbar. Asked a lot of questions about how they had the logs hooked up."
"Did they sign statements?" asked Jake.
"Yep."
"Did they show you copies?"
"They never got copies," said Bert. "None of 'em."
"Hmm!" Charles Stanton raised his eyebrows.
"Interesting," Jake remarked.
"Did they give you his name?" asked Stanton.
"Mac had his name and address." Bert Hanson read from his notes. "George Horvath, Investigator, Hobbs, Vance, Bruckman & Rosen, attorneys in St. Louis."
"Even more interesting," said Jake. "Doesn't sound like your typical insurance investigator to me."
"Why not?" asked Bert.
"Wel
l, an insurance company has lots of adjusters and investigators without going to a fancy, expensive law firm before there's even a lawsuit." Jake rose from the table and crossed the room to Stanton's bookshelves. He selected a thick volume from a tan and red several volume set.
"This edition of Martindale-Hubbell isn't perfectly current." He winked at Hanson and grinned at Charles Stanton, who looked properly offended at the challenge to the quality of his library.
"Please," Stanton spoke. "It is pretty good considering where you are."
Jake put the heavy book on the table. "Well, it should do the job, just the same," he said. He paged through the thick lawyer's directory. At the biographical section for St. Louis, Missouri, he found the firm.
"Here it is," he said. "Hobbs, Vance, Bruckman & Rosen. Looks like your typical established big city law firm. Looks like over a hundred lawyers."
"Ever hear of 'em before?" Bert Hanson asked.
"Nope," said Jake.
"What can you tell about the firm from the Martindale-Hubbell biography, Jake?" asked Charles Stanton.
"Oh, the usual." Jake was reading. "They do have a lot of specialists in insurance defense, big in the defense lawyers’ organizations and they list a number of insurance company clients and ... whoa! One of their listed representative clients is Cherokee Tractor & Implement Company!"
"Now that's very interesting, indeed," said Charles. "Why would the tractor manufacturer send its law firm all the way to the Apostle Islands only a week after an accident?"
"Sure seems they were concerned about something," said Jake. "Let's keep it in mind."
"Let's take a look at the pleadings, Jake," said Charles, clearing their dishes from the table. He brought coffee as Jake put a copy of the Complaint at each of their places. They read in silence.
When they were done, Jake looked at them for comment.
The Ultimate Resolution Page 19