Court Trashes Argument that Garbage Carts are Inherently Dangerous

Rubbish! That’s what a Wisconsin jury effectively said when it slammed the lid on a lawsuit claiming that a garbage cart is an inherently dangerous product. Refusing to find the manufacturer either negligent or strictly liable, the panel returned a verdict in favor of the company.

Otto Environmental Systems of North America Inc. manufactures the Otto Edge 95, a 95-gallon, two-wheeled, hinged-lid garbage cart designed for use with automated garbage trucks. Otto sells the carts to local governments and waste haulers, which provide them to residential users for trash and recycling pickup. The cart lids are prominently embossed with this warning—“CLOSE LID BEFORE MOVING”—an industry standard for such cautionary advice.

Linda Wachholz, a resident of Oshkosh, Wisc., was injured while moving an Edge 95 cart with its open lid hanging down. When she stepped on the lid, the cart flipped backwards and landed on her. She suffered spinal cord syndrome and needed neck surgery, according to court papers.

Linda and her husband Ronald filed suit in the circuit court for Winnebago County alleging that Otto was negligent in designing its cart, in failing to adequately warn and provide use instructions, and in providing an unreasonably dangerous product. After a seven-day trial in 2014, a jury rejected their claims.

The Wachholzes appealed, alleging that the trial court made numerous prejudicial and incorrect rulings. An intermediate level appeals court disagreed and affirmed the judgment for Otto stemming from the verdict.

Among other arguments the Wachholzes made on appeal, they claimed the judge mistakenly allowed "negative evidence"—that is, evidence that there were no similar accidents or claims involving a particular product. They contended Otto should not have been allowed to present evidence that it had no records of injuries, creating an inference that Otto's carts in fact caused few injuries.

The trial court allowed Otto to present, through deposition testimony of two employees, "product feedback type information" the company received from its direct customers, municipalities and waste haulers, regarding reports of injuries. “Allowing product feedback testimony carried with it an implicit finding that the two employees were in a position to testify on the basis of personal knowledge that no reports had been made,” said the appeals court. “Such ‘negative evidence’ is admissible.”

The Wachholzes also argued that the trial court erred in allowing two of Otto's witnesses to present evidence of the cost of implementing design alternatives. Such testimony, they contended, is not permitted under Wisconsin product liability law and is not relevant to the Edge 95's safety or to whether this particular cart was defective when Linda was injured.

The propriety of the court’s action, according to the appeals court, would be judged under a legal test that asks whether the product was defective or dangerous to an extent beyond that which an ordinary, reasonable consumer would have contemplated. Under the test, when determining whether a product is unreasonably dangerous, a court may consider five factors, including whether a manufacturer can eliminate a danger without impairing the product's usefulness or making it unduly expensive. The trial judge’s “permit[ing] limited questions in regard to economic considerations that might factor into product modifications” was within his discretion, the appellate panel concluded.

In addition, the Wachholzes contended the court erred by limiting the testimony of their expert, Kim Brokaw. After being injured in an incident similar to Linda’s, Brokaw invented and patented two devices to prevent or reduce cart-related accidents. He also commissioned a study (Vernon report) of other alleged cart-tipping incidents.

The trial court limited Brokaw's testimony to his own injury experience, descriptions of his inventions, and his opinions that the carts are unsafe and that the rate of injury is greater than what Otto claimed. However, he was not permitted to recite the bases for his opinions by reference to the interviews and investigative methods in the Vernon report, which was ruled inadmissible hearsay. (Broadly defined, “hearsay” is testimony or documents quoting people who are not present in court. Such words or material cannot be offered as evidence during a trial in attempting to prove the truth of what is asserted in the statements.) “Limiting Brokaw’s opinion testimony was a proper exercise of the [trial] court’s discretion,” said the appeals court. “Information in the Vernon report about other alleged cart-related injuries is hearsay.”

For good measure, the Wachholzes also complained that the trial judge permitted Otto employee Jack Lutes to testify as an expert about what it cost to make the garbage carts safer. With his extensive sales and bidding experience in the waste industry, Lutes intended to testify that installing devices such as the Brokaw latch would result in additional costs and, inevitably, lost bids. However, Lutes was not offered as an expert and did not testify as such. Indeed, testimony from an expert was not necessary as the impact of increased costs was within a juror’s common knowledge and comprehension.

During the pre-trial phase, the plaintiffs’ lawyer attempted to question Lutes on whether Otto’s engineering department had taken steps to develop a lid latch similar to what Brokaw had devised. Lutes refused to respond because he said his answer would divulge proprietary information. The attorney suspended the questioning to ask the judge for an order that would compel Lutes to answer and preserve the confidentiality of his testimony. The trial judge declined the request on the basis that the question was beyond the scope of Lutes' intended testimony, and the appeals court upheld his ruling.

But really, how much of a difference could there have been between Lutes’ planned testimony about how much it would cost Otto to accommodate the Brokaw latch and whether Otto considered modifying its lid latch? Yes, a small point, but perhaps an indication that the appeals court wanted no part of undoing a verdict where an injured plaintiff, by her own negligent if not reckless behavior, significantly contributed to her condition.

Wachholz v. Otto Environmental Systems of North America, Inc., No. 2015AP187, Wis.App., Feb. 10, 2016.