Date: 09-12-1997

Case Style: Joseph A. Haag v. Alfred M. Bongers, et al.

Case Number: S-97-1243

Judge: William H. Norton

Court: District Court, Butler County, Nebraska

Plaintiff's Attorney: M.J. Bruckner and John W. Ballew, Jr. of The Bruckner/Ballew Law Firm, P.C., Lincoln, Nebraska

Defendant's Attorney: Kevin R. McManaman and Thomas J. Culhane of Erickson & Sederstrom, P.C., Omaha, Nebraska and Brien M. Welch of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, Nebraska

Description: Products liability and personal injury negligence claims - Leo Bongers died intestate on October 8, 1992. Subsequently, Bongers and Kuhl, Leo Bongers' nephew and niece, were appointed as personal representatives of his estate. Upon his death, Leo Bongers left substantial real and personal property, including more than 120 antique cars, trucks, and motorcycles.

In late October 1992, Russ Moravec of Bauer-Moravec contacted the Estate and offered his services as auctioneer. Upon doing so, Moravec learned that Bill Dolan of Dolan had also contacted the Estate. On November 2 or 3, the Estate concluded that Bauer-Moravec and Dolan should conduct the auction of the vehicles jointly and split all of the expenses and commissions relating to the sale. On November 3, the Estate, Bauer-Moravec, and Dolan signed a written agreement to this effect. Therefore, in this opinion, Bauer-Moravec and Dolan will be referred to collectively as "the auctioneers."

Moravec recommended that the auction be held in May, June, or July 1993, at an airstrip in Butler County. This arrangement would have allowed the parties to line up the vehicles in a row outside in good weather so that people attending the auction could go from car to car and the vehicles would not need to be moved during the auction. Moravec was concerned that some of the older vehicles would not be in operating condition if the sale were held earlier, and Moravec favored having the auction at this site in this fashion because it would allow the parties to conduct the auction in a safe manner. The Estate rejected Moravec's recommendation and insisted that the sale be conducted in January 1993.

The auction was held on property owned by the Estate, a farm located 1 1/2 miles south of David City on the west side of Highway 15. The Estate and the auctioneers decided that the auction would be held inside because of probable bad weather, in a building owned by the Estate that opens at both ends.

In order to prepare for the sale, the Estate was to put the vehicles in running order, while the auctioneers attempted to locate all of the titles for the vehicles and to arrange for volunteer assistants to held with the sale. The Estate specifically approved the use of assistants for the auction. One of the assistants, Doug Reznicek, had previously assisted Bauer-Moravec in preparing for other auctions. Reznicek assisted in making arrangements to move the vehicles into and out of the sale building. The evidence shows that initially, the Estate was unsure that it would pay the assistants, but that after the sale, the Estate paid Reznicek, as well as all of the other assistants, except one, out of Estate funds.

Prior to the sale, the auction was heavily advertised at the Estate's insistence. As the auction approached, the parties were flooded with telephone calls regarding the sale. A joint decision was made by the Estate and the auctioneers to open both ends of the auction building and add tents on either side to accommodate more people. A joint decision was made to charge each person wishing to enter the bid barn $25, and a separate tent was set up with a remote broadcast of the auction so that people could watch the auction without paying the $25 fee. If a bidder actually purchased a vehicle, the Estate refunded the $25 fee.

As the auction grew closer, it became apparent that the Estate would not have many of the vehicles in running order in time for the sale. A joint decision was made to tow the vehicles into the building. The vehicles were towed with small tractors which the auctioneers borrowed from farmers in the surrounding community. In order to attach the antique vehicles to the tractors, Scot Bauer, of Bauer-Moravec, purchased Putnam hitch balls and Bauer's wife purchased ropes. Mylar-type ropes were used instead of chains to tow the vehicles so that the antique vehicles which were not in running order would not be harmed.

The auction took place on January 30, 1993, beginning at 9:30 a.m. Throughout the auction, 1,300 people paid the $25 bid fee. The Estate and the auctioneers planned to sell a vehicle every 3 minutes. It was very cold on the day of the sale, with temperatures well below freezing. The bid barn was crowded, and the vehicles were towed on a path through the crowd into an area for viewing and bidding. The crowd was standing shoulder to shoulder. There were no barriers to separate the crowd from the vehicles. Given the configuration of the barn and the bidding area, it was necessary for the assistants to physically move people back in order to pull the vehicles through the building.

Before the sale, Reznicek met with the assistants and instructed certain of them to attach the hitch balls to the drawbars of the tractors with a rope in order to tow the vehicles. At trial, Reznicek testified that he did not directly or indirectly tell anyone how to install a hitch ball on a drawbar and that he gave the hitch balls to persons who presumably knew how to properly attach a hitch ball to a tractor drawbar. Reznicek stated that during the preauction meeting, he gave the assistants general safety instructions. The evidence shows that it is common knowledge within the Butler County farming community that all threads on the nut of a hitch ball must be engaged for proper installation.

Approximately 1 hour into the sale, with approximately 700 to 800 people in the bid barn, an antique Studebaker truck was towed through the crowd into the building and sold. After the sale, assistants attempted to tow the Studebaker truck out of the building and experienced difficulty in doing so. As the assistants attempted to tow the vehicle, the hitch ball became detached from the drawbar, flying off the tractor and hitting Haag, who was standing at the back left of the tractor. Because of the accident, Haag suffered serious injuries to his head, which are not contested on appeal.

The evidence shows that the drawbar on this tractor was double the size of a drawbar normally found on this type of tractor and that all threads on the shank of the hitch ball had not been engaged. Reznicek did not inspect the tractors prior to the sale to see if the hitch balls were properly attached to the drawbars, nor did the auctioneers or the Estate. The evidence shows that Bongers was on the premises during most of the auction.

After the accident, the assistants used chains and not ropes to tow the vehicles in and out of the building. No other accidents occurred during the sale.

Haag alleged that he was injured when the hitch ball came loose from the drawbar of the tractor towing the Studebaker truck. Haag alleged that the towrope propelled the hitch ball through the air and that it struck Haag on the right side of his skull and his right eye.

Haag alleged that the hitch ball was installed in a negligent manner by one of the assistants utilized by the Estate, Dolan, and Bauer-Moravec to assist in the auction. Haag alleged that this individual was negligent in several regards: (1) in using the hitch ball in a manner for which it was not intended; (2) in placing the shank or screw of the hitch ball in a drawbar hole which was too large; (3) in placing the hitch ball in a drawbar which was too thick for the hitch ball that was being used; (4) in failing to fully engage the nut with the screw of the hitch assembly; and (5) in using a Mylar-type towrope, which created an unreasonable risk of harm to Haag and the other occupants of the building because it acted like a slingshot when the hitch failed. Haag alleged that the negligence of this individual was imputed to the Estate, Dolan, and Bauer-Moravec, under the doctrines of respondeat superior and vicarious liability. Additionally, Haag alleged that the towing procedures engaged in at the auction constituted unreasonably and inherently dangerous activities and that therefore, the Estate had a nondelegable duty to make sure that the auction was conducted in a safe manner on its premises.

Haag alleged that the Estate was negligent in the following ways: (1) in failing to correct the manner in which the hitch balls were being used to tow the vehicles into the bid barn when they knew, or in the exercise of reasonable care should have known, that the manner in which the hitch balls were being used was unreasonably dangerous and created an unreasonable risk of harm to the occupants of the bid barn; (2) in failing to limit the number of people in the bid barn so that the bidders could be kept at a safe distance from the towing process; and (3) in failing to warn Haag and the other business visitors that the vehicles were being towed in an unreasonably dangerous manner.

Haag alleged that Dolan was negligent in conducting the auction when he knew, or by the exercise of reasonable care should have known, that the vehicles were being towed in an unreasonably dangerous manner in close proximity to the bidders and that the bid barn was too crowded to carry out the auction in a reasonably safe manner. Haag alleged that Dolan was also negligent in failing to warn Haag and the other bidders that the vehicles were being towed in an unreasonably dangerous manner.

Haag alleged that Bauer-Moravec was negligent (1) in arranging to have the vehicles, and in particular, the Studebaker truck, towed in an unreasonably dangerous manner; (2) in selecting a Mylar-type rope instead of a chain to provide the connection between the towing tractor and the towed vehicles; (3) in failing to inspect the drawbar and the hitch of the tractor that was towing the Studebaker truck; (4) in conducting the auction when it knew, or in the exercise of reasonable care should have known, that the bid barn was too crowded to carry out the auction in a reasonably safe manner; and (5) in failing to warn Haag and the other bidders that the vehicles were being towed in an unreasonably dangerous manner.

Haag alleged that at the time of the accident, Bauer-Moravec was acting as an agent for the Estate and that Bauer-Moravec's negligence was imputed to the Estate under the doctrines of respondeat superior and vicarious liability.

Haag also alleged that Putnam was strictly liable for Haag's injuries in manufacturing, designing, and placing on the market a hitch ball manufactured of nonfree machine steel which was inadequate to support the foreseeable forces to which the hitch ball would be subjected. Additionally, Haag alleged that Putnam was strictly liable in failing to provide the following instructions and warnings with its hitch ball: (1) Use the hitch ball only for towing trailers or vehicles connected to the ball with a socket-type coupler that matches the ball size; (2) attach to a platform at least three-eighths of an inch thick; mounting hole must not exceed ball shank diameter by more than one-sixteenth of an inch thick; (3) do not exceed gross trailer weight shown on ball; (4) always use a lock washer and position next to nut; (5) threaded shank must protrude beyond bottom of nut when tightened; (6) check nut tightness every time the trailer is hooked up and at the beginning of each towing day; tow only if nut is tightened as specified; (7) replace any damaged or worn part; (8) never attach a towrope, chain, cable, or stretch-type elastic rope to hitch ball or safety chain or other attachment or with a ball; and (9) lubricate ball and coupler to minimize wear and friction; coupler must not bind on ball.

Haag alleged that the various alleged acts were the direct and proximate cause of his injuries and that he sustained serious personal injuries consisting of the loss of his right eye; fractured periorbital bones, including the frontal bone, the zygomatic bone, and the maxillary bone; and multiple lacerations and abrasions. Haag requested special damages in the amount of $41,846.48, general damages as determined by law, and costs of the action. Specifically, Haag requested damages for past and future physical pain and mental suffering; current and future medical expenses; past and future loss of income; permanent injury and disability; permanent disfigurement; and permanent impairment of earning capacity.

Outcome: Plaintiff's verdict in the amount of $600,000.00.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Affirmed by the Supreme Court of Nebraska. See: 589 N.W.2d 318 (Neb. 1999).