The Ultimate Resolution

by Dave Sullivan

  "Let me go to the law school library at the University. That's my old research haven," said Charles. "I can start beefing up our legal research."

  "Right," said Jake. "Let's start with the Jury Instruction Guide on products liability and work backward, then expand into specific cases on tractors."

  "What about me?" asked Bert Hanson. "Is it time for me to do anything yet?"

  "You bet it is." Jake looked at Bert. "We need more fact investigation on the accident, the tractor and the manufacturer. We also need to build up a medical file."

  "I can get the medical records requested right away," said Bert. "The other investigation sounds like travel. If I go to Duluth to see witnesses, I can pick up the medical stuff while I'm there."

  "Great. We're getting started." Jake smiled as the three men walked along the edge of Lake Superior in the sunshine.

  Back on Resolution they sailed west past Sand Island and south along the shore to Cornucopia. They brought Resolution to a public dock in the quaint little harbor and walked up the hill to a bar and restaurant in the town.

  After a dinner of Lake Superior Whitefish and two games of pool, they left to return to the boat. The sky had a strange cloud cover that looked like quilted upholstery. Squares of the solid cloud cover were puffing downward toward the ground like the cloud cover was held up by some kind of wire grid.

  Charles looked up and spoke. "Those are funny looking clouds. I don't think I've seen that before. What are they?"

  Bert looked up at the sky. "Holy Christ! Biscuit clouds!" he bellowed. "Batten everything down! She's gonna blow!"

  They hurried down to the boat, checked the docking lines, and waited for the storm.

  "Don't plan on going back tonight, Jake," Bert warned.

  When the rain started, the three men climbed aboard Resolution and went below, out of the weather. Bert called Sandy on the marine radio to tell her they were in a safe harbor. She had confirmed Bert’s feelings by telling them to stay put.

  "You saw the biscuit clouds?" she asked.

  Bert grinned at his companions. "Yep," he answered.

  "Don’t fool with that kind of weather, Bert." Her voice crackled through the radio speaker. "Make sure you guys have that boat tied down tight."

  "Yes, dear." Bert smiled and hung the microphone back on the radio.

  "I'm glad we're not out on the lake," said Stanton as they could feel the boat pressing against the big white fenders that kept it away from the dock.

  "We should be well protected in this harbor here in Corny," said Bert. "About the most that happens here is that the level of the water goes up if there's a lot of wind off the lake pushing water into the entry."

  "We might as well get comfortable, then," said Jake, reaching into Resolution's cooler for three cans of beer.

  They sat at the dinette and finished their plans. They would spend the night in Corny and ride out the storm. The next day they would take Resolution back to Raspberry Bay. Charles and Jake would drive to the Twin Cities to begin their research. Bert would begin interviewing witnesses who had seen the accident.

  "I'll start with Bill Simpson and Mac McElroy here in the islands," Bert said. "Then I'll go to Duluth to talk to the work crew."

  Their first morning in the Twin Cities, Jake and Charles visited the law firm of Stratton, McMasters & Hines. The firm's management committee had already met, following an advance phone call from Jake to Jim Decker about the Pallmeyer case.

  It was agreed that the firm would advance expenses for Sarah Pallmeyer and provide typing and word processing services as needed. When necessary, lawyers and paralegals from the firm would be available to help on the case. In return, the firm would get half of any fee realized.

  With those arrangements made, Jake and Charles separated to begin their different types of research.

  Jake left Stanton at the law school. He took Como Avenue across to the farm campus in St. Paul. He approached the campus heading north on Cleveland. Circling the grassy mall, he drove up Eckles Avenue past the old buildings, the Architectural Engineering Building and Coffey Hall.

  Much smaller than the Minneapolis campus, it was a pleasant mixture of old and new structures set at the western edge of the fields of the Minnesota State Fairgrounds. The old buildings were stately with red or yellow brick, green tiled roofs and impressive entrances with concrete pillars and steps with wrought iron railings. Mixed in with the old were the more modern brick and glass flat roofed buildings. All were set on tree lined curving streets giving the image of a quiet college campus away from the hubbub and worries of the rest of the world.

  The buildings housed faculty and classes principally devoted to subjects of agriculture and biology, thus its nickname "farm campus." There were even crops, livestock, a veterinary hospital and an historic farm site.

  He drove down Buford Avenue past the library to the parking lot on Randall, adjacent to the fairgrounds.

  Jake planned his research as he walked up the hill past the Raptor Center, where they cared for injured or sick hawks, eagles and other birds of prey. The library was just beyond, back on Buford. He crossed a faculty parking lot and entered a covered walkway between buildings which led him to the library's main entrance.

  The reference section was just beyond the circulation desk. Jake found several periodical indexes related to agriculture. After a number of different approaches, he began to find references to articles on tractor safety in industry publications.

  Periodicals were in the stacks on the first floor, one floor above the ground floor where he had entered. Jake took his notes from the indexes to a carrel between stacks on the first floor and began reading.

  At five o'clock, Jake gathered his notes and the few photocopies he'd made and walked back across campus to his car.

  Stanton was waiting for him at the law school. They drove back out of the Minneapolis campus to Como Avenue and a few blocks east to Manning's, a restaurant and 3.2 beer tavern that was a popular college hangout. Over huge plates of spaghetti and large scoops of draft beer called "jumbos", they discussed the results of their day's work.

  "I don't think you'll like what I've found, Jake," said the professor. "These tractor cases are hard to win. At least the plaintiffs in the cases I read today didn't do very well."

  "That bad, eh?" Jake played with his spaghetti, twirling the noodles around his fork held against a large spoon.

  "Well, I realize that each product and each different brand has to be examined on its own. The results of one don't necessarily apply across the market or industry, but these courts' decisions aren't helpful."

  "What did you find?"

  Stanton reached for a file folder on the seat beside him. "Take this case for instance," He pulled out a photocopy from West's National Reporter System. This is a federal district court case from Ohio. Plaintiff sought strict liability in tort for a tractor rollover claiming defects for failing to have safety equipment to protect the operator."

  "Sounds great, so far," said Jake, reaching for his beer.

  Charles Stanton handed the case to Jake and addressed his platter of spaghetti. He gestured with his fork at Jake. "Plaintiff lost, Jake. What's more, that's a district court case. That is the trial judge writing his decision. He heard the evidence. He applied the same law we're dealing with, or pretty close. He decided the tractor wasn't hazardous and unsafe, and therefore not defective. Plaintiff's husband was killed, but no liability on the manufacturer."

  Jake studied the opinion.

  "There's more where that came from." Charles looked discouraged.

  "Tomorrow's another day, Charles," Jake looked across the booth at him, "Let's keep looking. You keep on the legal research. I'll keep on the product technical research." He held the photocopy up. "Maybe we'll use this case as instruction in how not to present our case."

  "It certainly didn't persuade that judge," agreed Stanton, "but what makes you think we can do better, or different?"

  "We'll see," Jake handed t
he case back to Charles, "I've got a hunch the answer is at the farm campus."

  "What did you find?"

  "I just got started, really," Jake answered. "I found the trade magazines and journals where I hope to find some answers."

  "Nothing helpful yet, though?"

  Jake sipped his beer. "I did find some articles that suggest what I hope to prove, that the industry and Cherokee Tractor & Implement Company knew of the dangers of front-to-rear rollover on this type of tractor before they designed, advertised and sold the T-350.

  "You make it sound good, Jake." Stanton bit into a large piece of garlic bread.

  "I'll start copying some stuff tomorrow. We'll see how good it looks," said Jake.

  Jake put down his fork. "Man! I ate too much. But it was good." He took a swallow of beer. "3.2 notwithstanding, the beer is always good here," he said, putting the large stemmed glass down beside his plate. "It always tastes like more."

  "Manning's has always been that way," Charles held his own stemmed glass beer scoop in the air. "There are two major secrets responsible. The first is that Manning never lets a keg go overnight. The pipes are cleaned and fresh kegs started each day. No stale beer here. The second is the free popcorn. That's salty enough to make anyone order another beer. It's a great marketing ploy."

  Charles raised his hand with two fingers spread apart. Somewhere in the crowd a waitress nodded and disappeared through the kitchen to the bar in search of two more jumbos.

  The next day they went back to their respective libraries. They were staying at a Holiday Inn in Roseville, just off I-35. Jake drove Charles to the law school again and returned to the farm campus.

  He returned to the carrel he had used the day before and began reading trade publications cited in the periodical index.

  Jake read about industry debates over the need for Roll Over Protection Systems (ROPS) in the late sixties and early seventies. Going back further, he found some articles on ROPS before that acronym had been adopted, when it was called a "safety arch," and before the Cherokee T-350 was designed.

  The "safety arch" was tested at the University of California at Davis in 1956 according to the November, 1956 issue of Farm Safety Review.

  Of considerable interest to Jake was a series of articles in Agricultural Engineering, the journal of the American Society of Agricultural Engineers (ASAE). The articles were entitled, "Kinematics and Dynamics of the Wheel Type Farm Tractor." They addressed the hazards of tractor front-to-rear rollover, the reasons it occurs and some possible protective designs. The articles were written by E. G. McKibben, a member of ASAE from the University of California. He wrote them in 1927!

  Then Jake found a National Safety Council Data Sheet entitled "Log Skidding by Tractor." He made copies of the articles he thought important and walked over to the student union for lunch.

  Jake got a sandwich and a diet coke in the cafeteria line. He chose a booth against the far wall of the large room that was filled with tables and students, some eating, some talking, and some studying.

  He read the Data sheet. It said,

  "The conventional heavy duty industrial wheel-tractor has two pairs of large driving wheels. It is not unusual, however, to find the two-wheel-drive agricultural tractor being used in small logging operations, usually in connection with portable sawmills where the timber is small and the log haul distance is short. The two-wheel-drive tractor has a serious inherent hazard of turning over backwards. If the drive wheels become stuck in mud or sand, continued applications of power causes the drive shaft pinion to rotate on the differential ring gear, thus winding the entire tractor over the rear wheels. This can occur so suddenly that the operator has no chance to escape. Backward overturning can also occur on the two-wheel tractor if the load is hitched above the center of the rear axle. The load acts on a high hitch-point as a lever, raising the front end."

  The date on the Data Sheet was 1954!

  Jake finished his lunch and returned to the library. He was feeling good about the material he was finding on the farm campus. It should work into Stanton's legal research over in Minneapolis, he thought.

  Back in the library, he continued his search of technical articles in the agricultural journals and periodicals. He felt he was making progress toward establishing some industry knowledge of the front to rear rollover tendencies of this type of tractor at the time of the design of the Cherokee T-350. Now they had to insure that they had the law to support responsibility and liability when such knowledge was shown.

  Stanton opened the door and waived as Jake pulled into the law school parking lot. Stanton carried a briefcase and some loose papers as he walked across the concrete towards the car.

  "It's Miller time, Jake," Stanton sighed as he forced his bulk into the Jeep. "I've had a tough day, but I think I'm making some progress. How did you do?"

  Jake eased the Jeep out of the parking lot and onto Tenth Avenue. "I'm very pleasantly surprised, Charles. I think we're going to have them right where we want them."

  "Wow! I should have been picking where you were. Sounds like you found all the berries." Stanton shifted himself in the seat. "I know the analysis and our legal approach, but there are still these tractor cases that plaintiffs lost. We've got to overcome those decisions."

  "Let's talk over a beer," said Jake. "How about Grandma's?" he gestured toward Grandma's Saloon & Deli on Washington Avenue.

  "Excellent!" Stanton responded.

  Jake steered the Jeep into a parking ramp next to the restaurant.

  At a booth in Grandma's, Stanton held out some of the loose papers he had carried from the law school. "Copies of some of those damned cases, Jake."

  As a waitress brought two steins of draft beer to them, Jake looked over the court decisions.

  "Take a look at the Gates case." Stanton referred to some notes on a legal pad. It's at 494 F. 2d, page 458. Plaintiff had expert testimony that the tractor was defective, but the lower court still granted summary judgment."

  Jake read the decision.

  "Here's another," said Stanton. "Dion v. Ford Motor Co., 804 S.W.2d 302 (Tex. App-Eastland 1991)." Stanton read from the opinion. "Ford's experts said, 'Ford did not know nor had any reason to know of any propensity. . . [of the tractors] . . .to rear up and roll over.' The tractor in question was manufactured in 1950." Stanton handed Jake the opinion.

  "I'd like to cross-examine those experts with what I found today," said Jake.

  "What've you got?" Stanton asked.

  Jake explained how he had found articles and reports clearly showing that at least some members of the industry knew about the problem of the kind of tractor rollover that injured Bobby Pallmeyer as early as 1927.

  "I've also got some studies showing the development of a ROPS called a safety arch as early as 1956."

  "But how do we show Cherokee knew?" asked Stanton, motioning the waitress for more popcorn and beer.

  "That's the interesting challenge," said Jake. "Here's one of your cases from Michigan where plaintiff's counsel used automotive engineers to establish defect and corrective measures." He held the photocopy in the air. "We can do better than that. I think the experts should be from the tractor industry . . . agricultural engineers, who know the industry knowledge and the state of the art. With people like that, I think we can establish either actual knowledge or at least constructive knowledge."

  Bert Hanson stood on the sidewalk in front of the main entrance to St. Mary's Hospital on Third Street in Duluth waiting for his wife to meet him. He had spent the morning looking at the medical records of Bobby Pallmeyer. Sandy's blue Oldsmobile Cutlass turned the corner from Fifth Avenue East and pulled up in front of Bert.

  As he got in the passenger seat he spoke to her. "Perfect timing. I just finished. Let me buy you lunch at the Pickwick and then you can drop me off at my meeting. I assume you'll be able to occupy yourself for an hour or two?" he grinned as he asked.

  "Well, let's see," Sandy began as she pulled into the westbound traffi
c on the one-way street, "after a nice Pickwick lunch on you, I think the Miller Hill Mall up the hill will suit me fine for a while. I can't let you get by with just lunch."

  "I figured," muttered Bert Hanson. "Just get back in time so we can get back to Raspberry Bay at a reasonable hour."

  After lunch, Bert met with Fred Slattery and his crew in a booth at Porter's restaurant downtown on Superior Street.. Paul Schlicting still worked with Slattery, although for a different log building contractor. Larry Mullin was a carpenter working out of a local union hall. They reviewed what happened on Otter Island. Bert Hanson made detailed notes and then reviewed his notes for accuracy with each witness.

  When they were done, Slattery asked, "Have you seen Bobby?"

  "Not yet," Hanson replied.

  "Well, that's an experience, I'll tell ya," said Slattery. "Expect the worst, and then expect worse. He's in bad shape."

  "I imagine it's tough," said Hanson. "I expect we'll go to see him soon. We want to do it so it's not too hard on Bobby's mother . . . or Bobby."

  "His mother is tough. She can take it." Slattery reached for the coffee pot. "She's been right there for Bob, since it happened."

  Bert described the meeting to Sandy as they drove along the south shore of Lake Superior on the way home.

  "When will you see him?" she asked.

  "I dunno, but I think it's time," he answered. "I'll mention it to Jake."

  Jake steered his Jeep north on Highway 63 in Wisconsin. Charles Stanton sat in the passenger seat reviewing his legal research notes and describing his conclusions to Jake. They had finished their respective research projects that morning and left to return to Bay Harbor hoping to be home for dinner.

  Charles spoke, looking at his notes. "As you suggested, we can use those bad federal cases to teach us how not to present the case. The real precedents are our Minnesota cases on products liability law, not limited to tractor cases."