Greiten v. La Dow

235 N.W.2d 677, 70 Wis. 2d 589, 1975 Wisc. LEXIS 1350

• Court: Wisconsin Supreme Court
• Decided: November 25, 1975
• Docket: 555 (1974)
• Status: Published

Opinions

Robert W. Hansen, J.

Injured while working on a printing press for his employer, plaintiff started this action against the manufacturer and designer of the angle-iron device attached to the press, alleging a defect in design of the device.¹ Ordinarily, one would expect this to be a products liability case. However, this approach would require the plaintiff to establish not only a defect in design but that such defect “was unreasonably dangerous to the user or consumer.”² Seeking to avoid this precondition to recovery, plaintiff brought and tried this case on the basis of negligence, claiming a breach of a duty to design without defect. This can be done,³ but the threshold question is, whether, by so doing, the plaintiff has escaped the requirement that he establish that the product contained a defect that was “unreasonably dangerous.”

The answering of this question requires review of exactly what this court did do and did not do in the case of Dippel v. Sciano, supra. As had been done earlier in negligence cases,⁴ the Dippel holding abolished the requirement of privity of contract in breach of implied warranty cases.⁵ Dippel extended the liability of the manufacturer of a product to situations where no privity of contract existed. It went further to reject the contention that the liability of the seller of a defective product is not negligence holding that “. . . it is much more akin to negligence per se.”⁶ What was accomplished by the majority holding was capsulized in a concurring opinion by the Honorable Justice Hallows, as meaning that a seller who meets the conditions laid down for liability is “. . . guilty of negligence as a matter of law and such negligence is subject to the ordinary rules of causation and the defense applicable to negligence.”⁷ The holding in Dippel places products liability cases in this state in the field of negligence, no longer in the field of contractual rights and duties.

The Dippel holding of products liability in this state to be “more akin to negligence per se” than to breach of contract leaves little room to argue that a breach of implied warranty approach requires proof of an unreasonably dangerous defect, while a breach of duty to design approach does not require the identical precondition to recovery. If room there ever was, it vanished with the holding in the 1975 swimming pool case⁸ where this court held: “However, even under negligence law, the plaintiff still must prove that the product causing the injury was dangerous and defective,”⁹ and added, “Thus, the test in Wisconsin of whether a product contains an unreasonably dangerous defect depends upon the reasonable expectations of the ordinary consumer concerning the characteristics of this type of product.”¹⁰ It follows that the preconditions for plaintiff recovery, laid down in Dippel, apply in a products liability case whether the claim is one of breach of implied warranty or a breach of duty to design. Thus, if this plaintiff did not establish that the alleged defect in design “was unreasonably dangerous to the user or consumer,” he cannot recover.

With proof of an unreasonably dangerous defect a precondition to recovery, ■ we search the record and find that nowhere is there direct testimony as to such degree of danger. The expert witness for the plaintiff was not asked whether the device, as manufactured and installed, was unreasonably dangerous, or dangerous at all. He did not state that it was. He did state that there were theoretical alternatives as to design that he would consider to have greater operational and safety effectiveness. But proof offered by the plaintiff stopped at the claimed availability of different and allegedly superior methods of design. The testimony of an expert witness that he would have designed the device differently does not meet the precondition to recovery of establishing that the device, as manufactured and installed, was unreasonably dangerous to the user or consumer.

Even in the absence of contention or direct testimony as to danger plus defect, the trial court went further to analyze the entire record and to conclude that, under no view of the testimony could a finding be made that the device as manufactured and installed was unreasonably dangerous. Three factors were given weight. The first factor given consideration by the trial court was the matter of the theoretical alternatives as to design suggested by the expert witness for the plaintiff. The trial judge analyzed in detail each suggested alternative method of design, and found each “. . . fraught with the possibility of exposing one, working near the device, to serious injury.” The trial court concluded that the alternatives suggested, theoretical in nature, did not “. . . appeal to reason or good common sense.” The trial judge further concluded that “. . . the substance of Richardson’s [the plaintiff’s expert] testimony does not establish a defectively designed product within the meaning of the law.” Clearly, it did not. The second factor, considered by the trial court to be relevant, but not controlling, was the fact that there had been no prior accidents since the device was installed, a period of six years of daily use. This was a relevant factor, properly considered.¹¹ The third factor considered by the trial court was the matter of foreseeability of the danger by the maker of the device. This was a relevant factor.¹² The trial court held that the maker of the device could not on this record be found obliged to foresee . . the most unusual and highly coincidental circumstances that had to be present for somebody to be injured in the manner Greiten was.” The trial court found no other evidence in the record from which it could be reasonably inferred that the device did not function “. . . efficiently and safely for the very purpose for which it was designed and used.”¹³

The test on appeal of a trial court’s granting a motion for directed verdict is whether the trial court was clearly wrong.¹⁴ As to the holding of the trial court here that the alternatives as to design suggested by the plaintiff were fraught with greater dangers than the design used and as to the foreseeability of the injury under these circumstances, we cannot hold that the trial court was clearly wrong. As to the trial court conclusion that the plaintiff here failed to meet the precondition to recovery of establishing that the product as designed was unreasonably dangerous, we hold that the trial court was clearly right.

By the Court. — Judgment affirmed.

1 The defect alleged is that, in the event of a power cutoff or failure, the angle irons retracted, permitting what was placed on them to fall a short distance to the pallet below. The claim is that a better design would have been to have the angle irons, in the event of power failure, to continue to support what had been placed on them by remaining in an extended position instead of returning to a retracted position.

2 See: Dippel v. Sciano (1967), 37 Wis. 2d 443, 460, 155 N. W. 2d 55, holding that in products-liability cases, “. . . the plaintiff must prove (1) that the product was in defective condition when it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause (a substantial factor) of the plaintiff’s injuries or damages, (4) that the seller engaged in the business of selling such product or, put negatively, that this is not an isolated or infrequent transaction not related to the principal business of the seller, and (5) that the product was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was when he sold it.” (Emphasis supplied.)

3 See: Vincer v. Esther Williams All-Aluminum Swimming Pool Co. (1975), 69 Wis. 2d 326, 330, 230 N. W. 2d 794, this court holding: “Where a plaintiff is unable to prove the elements necessary to recovery under a theory of strict liability, the manufacturer or seller may still be liable under a negligence theory where the plaintiff is able to prove specific negligent conduct.”

4 See: Smith v. Atco Co. (1959), 6 Wis. 2d 371, 383, 94 N. W. 2d 697, 74 A. L. R. 2d 1095, this court holding: “We deem that the time has come ior this court to flatly declare that in a tort action for negligence against a manufacturer, or supplier, whether or not privity exists is wholly immaterial.”

5 Dippel v. Sciano, supra, footnote 2, at page 459.

6 Id. at page 461.

7 Id. at page 464.

8 Vincer v. Esther Williams All-Aluminum Swimming Pool Co., supra, footnote 3.

9 Id. at page 330.

10 Id. at page 332.

11 See: Netzel v. State Sand, & Gravel Co. (1971), 51 Wis. 2d 1, 9, 186 N. W. 2d 258, this court stating: “‘Evidence of other accidents or similar occurrences at the same place or under similar conditions and circumstances may be admissible to show the probability of the defect in question, that the injury was caused by the defect and that the person responsible knew or should have known of the existence of the defect.’ ” (Quoting from 1 Jones, Evidence (5th ed.), p. 323, sec. 185.)

12 See: Betehia v. Cape Cod Corp. (1960), 10 Wis. 2d 323, 332, 103 N. W. 2d 64, this court holding: “The test as applied to an action for breach of the implied warranty is keyed to what is ‘reasonably’ fit. ... As applied to the action for common-law negligence, the test is related to the foreseeability of harm on the part of the defendant.”

13 The trial court quoting Campo v. Scofield (1950), 301 N. Y. 468, 472, 95 N. E. 2d 802, the court there holding: “If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands.”

14 Merz v. Old Republic Ins. Co. (1971), 53 Wis. 2d 47, 56, 191 N. W. 2d 876, this court holding: “On appeal this court will affirm a directed verdict unless the trial court is clearly wrong.” (Citing Topel v. Correz (1956), 273 Wis. 611, 613, 79 N. W. 2d 253.)