Vincer v. Esther Williams All-Aluminum Swimming Pool Co.

230 N.W.2d 794, 69 Wis. 2d 326, 1975 Wisc. LEXIS 1529

• Court: Wisconsin Supreme Court
• Decided: June 30, 1975
• Docket: 454
• Status: Published

Opinions

Connor T. Hansen, J.

The sole issue on this appeal is whether the complaint states a cause of action against the Esther Williams All-Aluminum Swimming Pool Company and the Banner Builders, Inc., and their insurers. We conclude that it does not. Therefore, we affirm the trial court in its decision sustaining the demurrer.

In Dippel v. Sciano,1 this court adopted sec. 402A of Restatement, 2 Torts 2d,² pertaining to strict liability in tort. Under this section, where the plaintiff proves he was injured by a product “in a defective condition unreasonably dangerous to the user" and establishes the other requisite elements listed in the section, he is relieved of the burden of proving specific acts of negligence by the manufacturer who is then deemed negligent per se.³ 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. However, even under negligence law, the plaintiff still must prove that the product causing the injury was dangerous and defective.

Comment g to sec. 402A of Restatement, 2 Torts 2d, defines “defective condition" in part as follows:

“g. Defective condition. The rule stated in this Section applies only where the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." ⁴

The particular defect in the design of the swimming pool, as alleged in the complaint, is the absence of a self-latching and closing gate to prevent entry to the pool. We are satisfied that the swimming pool is not defective in this respect because, as a matter of law, the swimming pool was as safe as it reasonably could be since it did contain a retractable ladder, which unfortunately was allegedly left down and led to the injury of the small child.

Even if a product is defective, it must be shown to be unreasonably dangerous to the user or consumer. Comment i to sec. 402A of the Restatement defines “unreasonably dangerous” in part as follows:

“i. Unreasonably dangerous. The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and 3jiy food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by ‘unreasonably dangerous’ in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.” (Emphasis supplied.) 5

This emphasized language has been cited with approval in the strict liability cases of Netzel v. State Sand & Gravel Co.6 and Arbet v. Gussarson.7

In Arbet the court upheld as against a demurrer the complaint of two automobile accident burn victims alleging that their car was unreasonably dangerous and defective because of a plastic gas line apparatus retaining gasoline in the passenger compartment. The court commented that the alleged defect in the car was a latent defect:

“. . . It must be noted also that the design characteristics complained of in the instant case were hidden dangers, not apparent to the buyer of the car, and not the subject of a manufacturer’s warning. This is a different case, therefore, than a case where a plaintiff sues the manufacturer of a Volkswagen and complains that the car was designed too small to be safe. Such a defect could hardly be said to be hidden. . . . since the ordinary consumer would expect a Volkswagen to be less safe in an accident than, say, a Cadillac, the smallness of the car with the attendant danger would not per se render it inherently dangerous. Rather it must contain a dangerous defect whose presence an ordinary consumer would not reasonably expect.”⁸

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. If the average consumer would reasonably anticipate the dangerous condition of the product and fully appreciate the attendant risk of injury, it would not be unreasonably dangerous and defective. This is an objective test and is not dependent upon the knowledge of the particular injured consumer, although his knowledge may be evidence of contributory negligence under the circumstances.⁹ In Schuh v. Fox River Tractor Co.10 for example, the court held that the positioning of the clutch lever on a crop blower machine constituted an unreasonably dangerous defect because a potential user might be misled as to its function. However, the court held the particular injured plaintiff’s contributory negligence greater than any negligence of the manufacturer because the plaintiff was an experienced operator of the machine and knew of the potential dangers, yet failed to exercise due care.

Based upon the principles discussed above, we conclude that the swimming pool described in plaintiffs’ complaint does not contain an unreasonably dangerous defect. The lack of a self-latching gate certainly falls within the category of an obvious rather than a latent condition. Equally important, the average consumer would be completely aware of the risk of harm to small children due to this condition, when the retractable ladder is left in a down position and the children are left unsupervised. We conclude, therefore, that plaintiffs’ second amended complaint fails to state a cause of action.

By the Court. — Judgment and order affirmed.

1 (1967), 37 Wis. 2d 443, 459, 156 N. W. 2d 55.

2 This section provides:

“Special Liability of Seller of Product for Physical Harm to User or Consumer

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

“(a) the seller is engaged in the business of selling such a product, and

“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

“(2) The rule stated in subsection (1) applies although

“(a) the seller has exercised all possible care in the preparation and sale of his product, and

“(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.” (pp. 347, 348)

3 Powers v. Hunt-Wesson Foods, Inc. (1974), 64 Wis. 2d 532, 536, 219 N. W. 2d 393; Dippel v. Sciano (1967), 37 Wis. 2d 443, 460, 464, 155 N. W. 2d 55.

4 Restatement, 2 Torts 2d, comment g, p. 351.

5 Id. comment i, p. 362.

6 (1971), 51 Wis. 2d 1, 11, 186 N. W. 2d 258.

7 (1975), 66 Wis. 2d 551, 557, 225 N. W. 2d 431.

8 Id. at page 667.

9 Dippel v. Sciano (1967), 37 Wis. 2d 443, 460, 461, 155 N. W. 2d 55, held that contributory negligence is a defense and indicated that the unreasonable assumption of risk can be considered contributory negligence.

10 (1974), 63 Wis. 2d 728, 218 N. W. 2d 279.