I. Introduction
Product liability is an area
of law that is intriguing to businesses,
consumers, and the media, but extremely
difficult in the real world of legal practice.
There is a common misconception that one can
easily win a lawsuit against the manufacturer of
a defective product simply because it does not
function properly and someone has been injured.
In order to win a product
liability case, the plaintiff must prove a
violation of the applicable design and
manufacturing safety standards. This
requires the hiring of very expensive expert
witnesses. Expert witnesses are usually
engineers. These experts are needed to
identify and explain and safety standards, to
test the product, and to analyze how the product
violated the standards. The goal is to
obtain admissible evidence that the product is
defective and unreasonably dangerous.
Expert witnesses in a product
liability case must have professional
credentials to convince the judge that they are
truly qualified to address the points at issue,
and to persuade the jury that the product is
defective and unreasonably dangerous. The
manufacturer and its insurer will surely hire
their own experts in opposition to the
plaintiff’s, at which point the jury’s
interpretation of opinions is simply a matter of
credibility. Most experts will charge
between $250 and $500 per hour for any time
spent reviewing the case, testing the product,
preparing for trial, and testifying. This
is a very important factor that plaintiffs must
consider when making a claim. Plaintiffs
must understand that these costs come directly
out of any judgment or settlement and must be
paid even if the case is lost. Plaintiffs’
attorneys realize that they will be liable for
any expert fees, which is why most are reluctant
to pursue a products liability claim unless
there is a potential for a large judgment.
For example, suppose a
plaintiff is injured by a defective product and
eventually obtains a verdict for $75,000.
Expert witnesses would need to be hired to
prepare the case. If all the experts
together spent 100 hours of time on the case,
charging their customary $500 an hour, their
fees alone would total $50,000. They would
require payment in advance. Attorney fees
at the ordinary contingency fee rate of
one-third of the judgment would be $25,000.
This leaves the plaintiff with nothing at all.
This would be the result if the plaintiff had
won! If the plaintiff lost the case, there
would be no attorney fees, but the attorney
would still be responsible for paying the
experts out of his or her own money, or the
client’s money. This is the biggest deterrent to
handling products liability cases.
However, many product
liability cases involving $50,000 worth of
expert witness fees will produce a larger
verdict than $75,000. In cases of this
magnitude, the injured plaintiff will usually
have incurred substantial medical bills as a
result of the defective product and have
sustained some sort of permanent disability or
loss of earning capacity. Additionally,
the injury will have caused a loss of society
and companionship to person’s parent, spouse, or
child. When these damages are large enough
to compensate for the expenses of trying the
case, then the claim is worthwhile and should
definitely be considered.
The next factor to consider
before filing a product liability claim is
merit. Even if the damages are substantial
enough to make the claim worth the expense of
trial, the facts must weigh heavily in favor of
the plaintiff, or no lawyer will want to handle
the case. There must be clear
liability on the manufacturer or seller to
justify the risk and expense of losing the case.
If the greater weight of
credible evidence supports the claim, and the
damages are large enough to justify the expense,
then the claim can be pursued under several
theories of law. These theories are
strict liability in tort,
negligence, and
breach of warranty.. Lawsuits can be
filed against several parties also. The
parties that can be found liable for product
liability include manufacturers, successor
manufacturers, distributors, retailers, sellers
of used equipment, and even lessors.
II. Parties Liable
In order to bring a product liability case,
the plaintiff must attempt to identify all
sellers of the product, from the
manufacturer to the distributors to the
retailer. All are subject to liability.
If any one is insolvent or unable to pay,
the others may be subject to liability and
collectible. Investigation of the
complete chain of distribution is necessary.
Plaintiffs may have
difficulty finding the correct manufacturer
of a product without a costly investigation.
Often, manufacturing companies are acquired
or merge into larger companies.
Obviously, this can complicate matters. The
acquisition or merger documents must be
reviewed to determine who is going to be
responsible for product liability claims.
The successor manufacturer may or may not
have agreed to be subject to liability for
products manufactured prior to the
acquisition or merger. In other words,
the new company may be liable for defective
products created by the predecessor company
under certain circumstances, but there may
be a dispute over that fact.
In Tift v. Forage King Industries, Inc., 108
Wis.2d 72, 322 N.W.2d 14 (1982), the
manufacturer of a chopper box, which injured
the plaintiff, was acquired by another
corporation. The plaintiff sued the
successor corporation for product liability.
Traditionally, when a corporation purchases
the assets of another company, the
liabilities do not succeed to the new
corporation. However, the court
acknowledged the exceptions under which
liability can be imposed upon a purchasing
corporation, listing them as follows:
(1) when the
purchasing corporation expressly
or impliedly agreed
to assume the
selling corporation’s liability;
(2) when the transaction amounts to a
consolidation or merger of the
purchaser and seller corporations;
(3) when the purchaser
corporation is merely a
continuation of the seller
corporation; or
(4) when the
transaction is entered into fraudulently
to escape liability for such
obligations.
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322 N.W.2d at 15. The
court applied exceptions two and three to
the case and found the successor corporation
to be a continuation of the predecessor
company. The court held the successor
corporation liable for the defective product
manufactured by the original business.
It should be noted, however, that courts
have strictly construed the exceptions to
the rule on this issue, and only impose
liability on successor manufacturers under
limited factual circumstances.
Distributors or retailers can also be
subject to product liability, despite those
products being developed by a separate
company. In most cases, a manufacturer
sells its product to a distributor or
retailer, who then makes the product
available to consumers without substantial
change in the product’s original condition.
However, many participants in the product or
supply chains, involving manufacturers,
distributors, and retailers, do make
considerable changes to the original product
before tendering it to the public. The
changes include not only overall design and
manufacturing additions, but also component
parts, packaging, labeling and warnings.
In Westphal v. E.I. du
Pont de Nemours & Co., Inc., 192 Wis.2d 347,
531 N.W.2d 386 (Ct. App. 1995), the
plaintiff brought a products liability claim
against a supplier of an industrial grade
product called Teflon, which was contained
in an implant device manufactured by a
company called Vitek. E.I. du Pont
supplied the Teflon and facts indicated that
the Teflon underwent an eight-step
manufacturing process by Vitek before being
implanted in the plaintiff. The court
noted that such substantial change in the
products condition barred recovery against
E.I. du Pont.
Even retailers of used goods can be sued
under product liability law. In Nelson
v. Nelson Hardware, Inc., 160 Wis.2d 689,
467 N.W.2d 518 (1991), the plaintiff brought
suit against a hardware store that had sold
him a used shotgun. In this case, the
used shotgun fell from a loft where it had
been placed and went off, shooting an
adolescent boy in his hand. The gun
had not been cocked and the safety lock was
in place. The plaintiff brought action
against the store that sold him the gun
after the manufacturer went bankrupt.
The trial court granted summary judgment in
favor of the store on grounds that a product
liability claim could not be made against a
seller of used goods. The court of
appeals reversed that decision and it was
appealed again to the Supreme Court.
The Supreme Court made it clear sellers of
used goods are just as subject to product
liability claims as sellers of new goods.
The court stated as follows:
The
conclusion of the court of
appeals that sec. 402A is
applicable is clearly
correct. The working of
sec. 402A, the policy for the
rule as set forth in the Restatement commentary, and the
explication of the reason for
sec. 402A and the policy
explanation set forth at length
in Dippel v.
Sciano impel our conclusion that
the buyers of used goods are not
precluded from the protection of
sec. 402A simply because the product
is not purchased new.
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467 N.W.2d at 522.
Plaintiffs have the right to sue a lessor of
a product as well as a manufacturer.
This possibility was recognized in Kemp v.
Miller, 154 Wis.2d 538, 453 N.W.2d 872
(1990). In this case, the plaintiff
was injured when her rental car broke down
on a highway and caused her to crash into an
abutment. The plaintiff sued the car
rental agency. The trial court denied the
claim, reasoning that the agency was not a
manufacturer or seller of the car, and that,
therefore, the plaintiff had no basis for a
claim. The Supreme Court reversed this
decision, though, and noted that a lessor
places products into the stream of commerce,
just as a manufacturer or seller.
Furthermore, a lessor is in a much better
position to insure against product liability
by adjusting prices. Lessors also
advertise and implicitly represent that
their products are safe for lessees.
The court ruled on this issue as follows:
Accordingly,
we hold that a commercial lessor
may be held strictly liable in
tort for damages resulting from
the lease of a defective and
unreasonably
dangerous product. We
further hold that such liability
extends not
only to design and manufacturing
defects but also to defects which
arise after the product leaves
the manufacturer’s control.
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453 N.W.2d at 879.
In many instances, the unique relationship
between the plaintiff and defendant is
controlling. For example, in Estate of
Cook v. Gran-Aire, Inc., 182 Wis.2d 330, 513
N.W.2d 652 (Ct. App. 1994), the court
dismissed a product liability claim brought
against a flight instruction and charter
service company. A man was killed
while taking a flight instruction by Gran-Aire
in one of its planes when a wing separated
from the plane. The court held that Gran-Aire
was not engaged in the business of leasing
the plane and that the pilot never obtained
complete control or possession of the plane.
Rather, the Gran-Aire instructor, who was
inside the plane instructing the pilot, at
least shared control of the plane.
Therefore, since the pilot failed to
establish a lessor-lessee relationship, his
estate’s claim was barred under strict
product liability.
III. Strict
Liability in Tort
The doctrine of strict liability in tort law
is probably the most frequent theory pursued
by a plaintiff in a products liability case.
Strict liability holds the manufacturer or
seller liable as a matter of law. In the
Restatement (Second) of Torts, §402A (1965),
strict liability is explained and its
elements are defined as follows:
(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 is product, and
(b)
the user or consumer has not bought the
product from or entered into any contractual
relation with the seller.
This definition was initially adopted in
Wisconsin, and explained in detail in Dippel
v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55
(1967). The issue before the court was
whether privity of contract was necessary in
order to make a claim for strict liability
in tort against the seller of a defective
product. The court decided that
privity of contract is not always required.
In this case, the plaintiff brought action
against the seller of a pool table that
broke and amputated part of the plaintiff’s
foot when it fell. The seller argued
that the plaintiff had no contractual
relationship with the seller. The
court opined that the product liability
claim could be brought under the theory of
strict liability in tort, and it enumerated
the five key elements of proof as follows:
(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 is was when he sold it.
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37 Wis.2d at 460.
The doctrine of strict liability was
recommended as the proper cause of action
because of its independence from contract
law as well as traditional notions of
negligence law. The court in Dippel stated
as follows:
From the
plaintiff’s point of view the
most beneficial aspect of the
rule is that
it relieves him of proving
specific acts of negligence and
protects him
from the defenses of notice of
breach, disclaimer, and lack of
privity in the implied warranty
concepts of sales and contracts.
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37 Wis.2d at 460.
The application of the
Restatement (Second) of Torts, section 402A
in Dippel was a landmark decision, in that
it established strict liability law in
Wisconsin for the first time. However,
it failed to address whether the strict
liability law would protect an injured
bystander from a defective product.
Howes v. Hansen, 56 Wis.2d 247, 201 N.W.2d
825 (1972), was the first case to decide
this issue. In this case a
two-year-old boy came into contact with a
lawnmower that amputated his right foot.
The lawnmower was owned and being operated
by another person. The boy’s family
sued the manufacturer of the lawnmower under
the theory of strict liability in tort.
Defendants argued that, according to Dippel,
strict liability extends relief to the
“user” or “consumer” of a product, not to
bystanders.
The court looked beyond
the express definition of strict liability
and into the reasons for the doctrine. In
Dippel, the court noted that the seller of a
defective product has liability in tort that
is completely unique from any contractual
obligations. The court was also quick
to remind the defendants that ordinary care
and foreseeability, which are factors of
negligence, play no part in strict
liability. See Haase v. Badger
Mining Corp., 2004 WI 97, 682 N.W.2d 389,
397 (2004)(holding that “Foreseeability is
not an element considered in strict product
liability claims, but instead is an element
of negligence”). As mentioned earlier,
strict liability is much more akin to the
doctrine of negligence per se, or negligence
as a matter of law. The court in Howes
also noted that a user is different than a
consumer, in that a user is not necessarily
one to whom warranties, promises of safety,
and reliability are assured.
Therefore, bystanders are have virtually the
same relationship to manufacturers as a
user, and should be protected under strict
liability. The court ruled as follows:
To date there
have been roughly 10
jurisdictions which have adopted
the extension of strict tort
liability to bystanders who are
innocently injured. The
prevailing reason for the
extension has been the feeling
that there is no essential
difference between the injured
user or consumer and the injured
bystander. The reasons for
the initial adoption of strict
liability are uniformly felt to
apply equally to the bystander.
. .
Thus we
conclude that the trial court
did not err in overruling the
appellant’s
demurrer on the grounds that the
concept of strict liability
applied for the protection of
the bystander here. In
extending this potential
liability, we are further
implementing the policy that a
manufacturer should be strictly
liable in tort when he places a
defective article on the market
“that causes injury to a human
being.”
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56 Wis.2d at 260.
As set forth in Dippel, one of the elements
of strict liability must be that the seller
is engaged in the business of selling the
product. Another element is that the
product must have been intended to reach and
did reach the user without substantial
change in its original condition. See
Hasse, supra (holding that silica sand
inhaled by plaintiff had undergone
substantial change in size from
pulverization by purchasing-employer since
its sale, thereby precluding a strict
liability claim against seller-mining
company). A manufacturer or seller is
held strictly liable when a defective
product is unreasonably dangerous and has
not changed substantially since it was sold.
This standard holds true for manufacturers
or sellers of component parts of a larger
product as well. In City of Franklin
v. Badger Ford Truck Sales, Inc., 58 Wis.2d
641, 207 N.W.2d 866 (1973), the court ruled
as follows:
Where there
is no change in the component
part itself, but it is merely
incorporated into something
larger, and where the cause of
harm or
injury is found, as here, to be
a defect in the component part,
we hold that,
as to the ultimate user or
consumer, the strict liability
standard
applies to the maker and
supplier of the defective
component part.
Where the component part is
subject to further proceeding or
substantial
change, or where the causing of
injury is not directly
attributable
to defective construction of the
component part, the result might be
different.
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207 N.W.2d at 869- 70.
Perhaps the most crucial
elements of strict liability are proving
that a product is both defective and
unreasonably dangerous. In order for a
product to be defective, it must not conform
to adequate specifications and industry
standards. That is, the product must
fail to perform its intended purpose or fail
to meet the expectations of the ordinary
consumer. This point was set forth in
Sumnicht v. Toyota Motor Sales, 121 Wis.2d
338, 360 N.W.2d 2 (1984). The court
acknowledged that Wisconsin is committed to
the consumer-contemplation test to evaluate
design defects, which was explained as
follows:
Under the
consumer-contemplation test, as
so stated in Section 402A of the
Second Restatement of Torts, a
product is defectively dangerous if
it is dangerous to an extent
beyond that which would be
contemplated by the ordinary
consumer who purchased it with
the ordinary
knowledge common to the
community as to the product’s
characteristics.
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30 N.W.2d at
15.
A product is unreasonably dangerous if it
presents an unforeseen, obscure, and
unobvious risk of harm to its consumer.
Such a risk of harm must also be without
adequate warning for it to be considered
unreasonable. Many products, such as
knifes and guns, are inherently dangerous.
Nevertheless, these products are not
considered unreasonably dangerous because
they are fit for the ordinary purpose of
their existence. In other words, an
ordinary consumer would reasonably
understand that a knife is dangerous and can
cause injury.
The case of Arbet v. Gussarson,
66 Wis.2d 551, 225 N.W.2d 431
(1975), involved a claim for
strict liability against the
manufacturer of an automobile.
The facts involved a rear-end
collision, which ruptured the
gas tank causing gas to spew
into the passenger compartment
and ignite. The fire
caused substantial injuries and
burns to the driver and
passenger. Experts
testified that the design of the
automobile was unsafe. The
court, in determining whether
the design was unreasonably
dangerous, stated as follows:
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, then [sic] a case
where a plaintiff sues the
manufacturer of a Volkswagen and
complains that the car was
designed to small to be safe.
Such a defect could hardly be
said to be hidden.
. . .
Thus, .
. . , 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.
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2225 N.W.2d at 435.
The court in Sumnicht
summed up the meaning of “defective and
unreasonably dangerous” as follows:
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.
Vincer, 69
Wis.2d at 332.
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Sumnicht v. Toyota Motor
Sales, 121 Wis.2d at 370, 360 N.W.2d at 16
(1984).
This test represents a
guideline to help determine whether a
product is “defective.” Such a
determination depends on the independent
facts and circumstances /font>
of each individual case.
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In Ransome v. Wisconsin Electric Power Co.,
87 Wis.2d 605, 275 N.W.2d 641 (1979), the
court ruled that electricity can be
defective and unreasonably
dangerous when it causes
substantial damages to people or property.
In this case, a lightning bolt led to a
surge of electricity inside a home, causing
a fire and /font>
ssubstantial property
damage. Plaintiffs brought a strict
products liability claim against the
electric company for the damages caused by
its product, electricity.
The court ruled that the
electricity passed through the electric
meter that was supposed to gauge the voltage
and failed to do so. The court
reasoned as follows:
To classify
electricity as a product, by
virtue of the definition we have
set forth
above, is warranted, indeed
mandated, by the social policies
which
underlie and justify the
imposition of strict liability
on sellers who place
dangerously defective products
into the stream of commerce.
We agree with
the trial court’s conclusion
that electricity can be a
product within the meaning of
sec. 402A and therefore subject
to principles of strict
liability in tort in appropriate
cases.
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275 N.W.2d at 648. /font>
AA product is unreasonably
dangerous if it is hidden and dangerous
beyond the extent contemplated by an
ordinary consumer. If a product is
known or should have been known to be
dangerous by the manufacturer, then the
manufacturer has a duty to warn. A
lack of an adequate warning can render a
product unreasonably dangerous. The
manufacturer must warn against all
foreseeable uses and misuses of the product.
Tanner v. Shoupe, 228 Wis.2d 357, 596 N.W.2d
805 (Ct. App. 1999).
As mentioned earlier, a product can be
rendered unreasonably dangerous despite a
manufacturer’s diligence in the design and
manufacture of that product. In Green
v. Smith & Nephew AHP, Inc., 245 Wis. 2d
722; 629 N.W.2d 727 (2001). Wisc. App.
LEXIS 741 (Ct. App. 2000), the court held
that a defective product, unreasonably
dangerous to a small percentage of people,
may still subject the manufacturer to strict
products liability. In this case, a nurse
suffered a severe allergic reaction to the
latex gloves she wore on the job. She
brought action under strict liability
against the manufacturer of the latex
gloves. Testimony revealed that only a
peculiar percentage of the population was
susceptible to allergic reactions from the
latex, and that all adequate and appropriate
preparation was used in manufacturing the
gloves. The court held, however, that
the gloves were still defective and
unreasonably dangerous to a
not-insignificant percentage of the
population, thereby imposing liability on
the manufacturer. The manufacture
contended that it followed all the
appropriate designs and utilized proper
production mechanisms. Nevertheless,
the court noted that a product may be
defective and unreasonably dangerous even
though there are no alternative, safer
designs.
The theory of strict liability in tort does
not automatically entitle victims to
damages, however. In other words, it
does not impose absolute liability.
Strict liability allows
the defendant to submit evidence in
opposition to the cause of action.
Defense testimony is permitted to show that
there may have been contributory negligence
on behalf of the plaintiff with any misuse
of a product. If the plaintiff is
found to have misused, abused, or altered
the product’s condition before being injured, his
or her claim may be barred.
In Hansen v. New Holland North America,
Inc., 215 Wis.2d 649, 574 N.W.2d 250 (Ct.
App. 1997), the court addressed available
defenses for the
defendant in a product
liability case. The court discussed
the open and obvious doctrine that had
previously granted immunity to
manufacturers, in that, if the danger was open and
obvious to the consumer, then it could not
have been unreasonably dangerous. The
court in this case, however, reasoned as
follows:
We agree with
the Hansens’ contention that
focusing solely on the user’s
conduct will frustrate public
policy considerations underlying
product
liability law. A danger
that is open and obvious to a
consumer is
equally apparent to the
manufacturer.
Concentrating only on the
user’s conduct ignores the
manufacturer’s responsibility
for producing
that danger, and indeed creates
an incentive for manufacturers
to ensure that hazards are in
fact open and obvious, possibly
minimizing needed safeguards and
exposure to liability for designing
dangerous products.
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574 N.W.2d at 254./font>
IIV. Negligence
Plaintiffs in a products
liability case can pursue their claim under
strict liability as well as under the theory
of ordinary negligence. A plaintiff is
not required to select one cause of action
over the other, despite their differing
elements of proof. In a subsequent
amended complaint to the Howes case
mentioned earlier, the trial court ruled
that strict liability in tort is closely
related to negligence per se, and cannot be
pursued simultaneously with an ordinary
negligence claim. On appeal, however,
the Supreme Court overruled the trial court
and noted its err as follows:
We here
declare that when two grounds of
negligence are alleged it does not
categorically follow that the
plaintiff must always elect one
of the two
grounds of negligence for
submission to the jury.
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Howes v. Deere & Co., 71
Wis.2d 268, 238 N.W.2d 76, 79 (1976).
A claim for product liability can be brought
under theories of negligent design,
manufacture or negligent inspection.
All of these theories stem from the doctrine
of ordinary negligence. In order to
prove negligence, the plaintiff must show
that a duty existed, that the duty was
breached, and that such breach was a
substantial factor in causing physical
injuries. These are the basic elements
of all negligence claims.
A duty is established when it can reasonably
be foreseen that an action or non-action
will result in probably harm.
Manufacturers have a duty to consumers to
produce reasonably safe products and to warn
of any known or foreseeable dangers
associated with the product. Unlike
strict liability in tort, foreseeability
plays an important role in negligence.
If a manufacturer can reasonably foresee a
danger with its product, it has the duty to
prevent that danger or at least to provide
an adequate warning. This duty to warn
is often presented by plaintiffs in product
liability cases. In Anderson v. Alfa-Laval
Agri, Inc., 209 Wis.2d 337, 564 N.W.2d 788
(Ct. App. 1997), a small child was seriously
injured after he ingested a caustic chemical
in a cup at a milk house. The
plaintiff brought action under negligent
design and failure to warn. The court
ruled that the absence of an adequate
warning of a known danger constitutes
negligence as a matter of law. The
court noted, however, that a breach of duty
does not in and of itself impose liability.
Substantial and proximate cause of actual
injuries must also be proven.
A claim for negligent design can be proven
even without proof that the product was
unreasonably dangerous. In fact, all
that needs to be shown is that the product
was designed with a lack of ordinary care
and that such lack of care caused actual
harm. This law was set forth in Greiten v. LaDow, 70 Wis.2d 589, 235 N.W.2d
677 (1975). In this case, a board that
unexpectedly retracted from its intended
position and fell on the plaintiff’s head
caused serious injury. Plaintiff
brought action under negligence to get
around having to prove the product was
defective and unreasonably dangerous.
The court noted this strategy and
acknowledged that it can be done, as long as
it can be proven that a lack of ordinary
care was utilized, which was a substantial
factor in causing the injury. Justice
Heffernan clarified the court’s
interpretation of negligence law and its
ruling in this case in his concurring
opinion as follows:
Accordingly,
in the instant case, where the
action is grounded on negligence,
it was necessary for the
plaintiff to show that the
respondent LaDow, in the
exercise of ordinary care,
should have foreseen that his design and
method of installation would be
unreasonably dangerous to others.
This, as the majority opinion
correctly points out, he did not
prove and,
therefore, he cannot recover.
It is boilerplate law that,
merely because a product or
an operation is not as safe as
possible, because there are
better methods
of manufacture or performing an
operation does not lead to the
conclusion that the method
employed was undertaken with a
lack of ordinary care or the
product was defective. But the
crucial question in the analysis
of this case is that, where
negligence is asserted, it is
necessary to prove what was done
and to prove that what was done
was foreseeably hazardous to
someone. The duty is one
of ordinary care.
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235 N.W.2d at 685.
In a later case involving a similar issue,
the court followed the precedent established
in Greiten. In Sharp v. Case Corp.,
227 Wis.2d 1, 595 N.W.2d 380 (1999), a minor
boy had both his arms gruesomely amputated
below both elbows by a hay baling tractor.
The boy was clearing loose hay from the
rollers when the tractor suddenly
self-started and pulled the boy’s hands and
arms into the baler. The boy’s
guardian brought a product liability action
against the manufacturer on several grounds,
including strict liability and negligence.
The jury found the tractor to not be
unreasonably dangerous, thereby baring the
strict liability claim. However, the
jury did find the manufacturer negligent and
awarded a large verdict. Defendants
argued that the jury’s verdict was
inconsistent and should be invalidated.
The Court responded by citing Grieten and
noted as follows:
In cases
subsequent to Greiten, this court
repeatedly rejected the contention
that
a jury’s findings were inconsistent
when the jury found that a
manufacturer’s conduct was negligent
with regard to a product but that
the product defect was not
unreasonably dangerous in the strict
products liability sense. |
595 N.W.2d at 387. The
court affirmed the trial court’s decision
and strengthened the precedent
distinguishing a strict liability in tort
claim from a negligence action.
As mentioned above, proof of negligence
requires a showing that a duty existed and
was breached by the manufacturer. This
is usually the most difficult aspect of a
negligence claim in product liability.
Courts and juries have differed in their
respective opinions regarding this issue.
In Morden v. Continental AG, 235 Wis. 2d
325; 611 N.W.2d 659, 2000 WI 51, 2000 Wisc.
LEXIS 392 (2000), the issue of whether a
duty existed and was subsequently breached
was the focus of the case. In this
case, the plaintiff was severely injured and
suffered quadriplegia when her vehicle
flipped over after her two rear tires blew
out on the highway. The plaintiff
brought action under strict liability and
negligence against the tire manufacturer.
Facts indicated that the tires were made
with insufficient adhesion at the point
where the tires ruptured. The strict
liability claim was barred because of the
jurors’ differing interpretations of the
facts, in that they could not agree on all
elements required of strict liability.
The jury did find, however, that the
manufacturer was negligent in its design and
manufacture of the tires, and found that
this negligence was the cause of the
accident. The trial court approved the
jury’s verdict, noting that it was
reasonably foreseeable to Continental that
its design posed an unreasonable risk of
injury.
Continental appealed the
trial court’s order. The court of
appeals then reversed the trial court’s
verdict, concluding that the ordens had not proved that
Continental breached a duty of care to them.
The court reasoned that the Mordens failed to
present evidence that Continental knew or should
have known the design or manufacture of the
tires was unsafe.
The plaintiff
then appealed to the Supreme Court on the issue
of whether the facts demonstrated of breach of
duty. The Supreme Court reversed the
decision of the court of appeals and reinstated
the trial court’s order of judgment. The
court ruled that the jury in this case
reasonably could have concluded that
Continental’s failure to take the available
precaution of using a double-wrap cap splice
constituted a lack of ordinary care, even if the
record is silent about whether Continental
conducted tests on the single-wrap cap splice.
V. Warranty
Liability
Product liability claims can also be based under
warranty liability. Warranties usually are
tendered along with a product to insure against
a product defect or underperformance.
Warranties can be created through written
contracts between the manufacturer or seller and
the consumer. They can also be created
orally when a seller expressly or implicitly
guarantees a certain performance or safety.
Regardless of how such warranty is created, a
consumer must be sure that it was not disclaimed
in a similar fashion. Often, ignorant
and/or arrogant sellers will promise a certain
function of a product in effort to make a sale,
but there will be a disclaimer to any promises
or guarantees made by the seller that is hidden
somewhere with the sale.
In order to bring an action under warranty
liability, the plaintiff must prove there was a
warranty established, whether contractual,
express, or implied, and that such warranty was
not disclaimed in any way. Next, the
plaintiff must prove a breach of such warranty,
and notice of such breach must be furnished
within reasonable time. The Uniform
Commercial Code (U.C.C.) governs almost all
sales. The U.C.C. governs merchants, which
it defines as manufacturers or sellers who hold
themselves out as having a particular knowledge
or skill of the specific trade involved.
The U.C.C. holds merchants subject to liability
for breach of implied warranties with every
sale. Wis. Stats. §402.314 and §402.315
hold merchants accountable for implied
warranties of merchantability with each sale,
i.e., that each product will be fit for the
ordinary purpose of its use. These
statutes intend to protect consumers from faulty
products notwithstanding an unsatisfactory
disclaimer.
The U.C.C. will protect merchant warranty
disclaimers, however, as long as they meet the
specifications of Wis. Stats. §402.316.
This statute allows merchants to exclude or
modify warranties by including the words
“merchantability” and “fitness for a particular
purpose” in conspicuous writing. Such
disclaimer must be open and obvious to the
consumer and disclaim all express or implied
warranties of merchantability and fitness for a
particular purpose. If these standards are
met, the consumer may be barred from recovery
for breach of warranty.
Determining whether a product is merchantable
can be a difficult issue. In Takera v.
Ford Motor Co., 86 Wis.2d 140, 271 N.W.2d 653
(1978), the plaintiff sued under warranty
liability. The plaintiff claimed that his
car was unmerchantable because of improper
corrosion treatment and other installation
problems. The court ruled that the car was
in fact merchantable at the time of sale.
Facts indicated that the car had been driven
over 75,000 miles in about 33 months. The
court held that the rust problems alleged did
not render the car unfit for driving, and
therefore, was not unmerchantable.
The court also addressed the
issue of timeliness of disclaimers in this case.
Facts indicated that Ford’s disclaimer of
implied warranties was given at the time of
delivery, which was subsequent to the time of
the purchase agreement. The court noted
that such disclaimer was ineffective because of
its tardiness, although such a determination was
not required given the aforementioned decision
regarding merchantability. The court made
the following remarks on this issue:
One of the
purposes for the disclaimer
requirement is to protect the buyer from
unexpected and unbargained language.
Sec. 402.316, Stats., official
U.C.C. Comment. This purpose would
be defeated if a manufacturer
could disclaim implied warranties
after the contract for sale has been
entered into and at a time when the
automobile is delivered. .
. This disclaimer was
ineffective because it was made
subsequent to sale. However,
even if this implied warranty did
survive,
as the trial court seems to have
concluded, the auto was in fact
merchantable,
so any implied warranty was not
breached.
|
271 N.W.2d at 656-57.
VI. Several, But
Not Joint Liability
Today, successfully prosecuted product
liability cases are rare in Wisconsin.
The reasons, as explained above, rest with
the burden of proof, the expense of
litigation, and the risk of losing.
Another important and very strong deterrent
of product liability cases has been the
recent enactment of Wis. Stats. §895.045,
regarding several liability. In 1995,
this statute was amended to replace the
doctrine of joint and several liability.
Under the old law, product liability cases
were far easier to win, and more lucrative
for plaintiffs. Joint and several
liability means that as long as one
defendant was held liable for any percentage
of damages, and the plaintiff’s contributory
negligence did not exceed the defendant’s
percentage of causal negligence, the
plaintiff could collect all damages from
that one defendant. A 1% causally
negligent defendant could conceivably owe a
multi-million dollar judgment for damages.
Wis. Stats. §895.045, however, now holds
that unless a defendant’s causal negligence
exceeds 50%, the defendant is only liable
for the portion of plaintiff’s damages up to
its respective percentage of fault.
That is, if a defendant was found only 10%
comparatively negligent, that defendant must
only pay 10% of the total damages.
This is a problem in most product liability
cases, as most develop into a third party
claim.
Many product liability cases emerge from
situations where an employee is injured at
work by an industrial machine, such as a
punch press or drill. In these
situations, a worker will be injured and sue
the manufacturer of the machine since
employers are relieved of any liability
beyond that governed by worker’s
compensation. The machine manufacturer
will certainly make a cross-claim against
the employer and any other entity along the
production or supply line. Usually,
the employer is allocated a substantial
percentage of comparative negligence, as it
often did not comply with safety standards
or OSHA regulations. For instance,
many employers will take off protection
guards on machines in order to speed up
production on an assembly line. This
substantially reduces the percentage of
fault assessed against the manufacturer.
Once all liability is allocated among the
parties, the manufacturer’s liability will
be diluted significantly. Thus, under
Wis. Stats. §895.045, the manufacturer will
only be responsible for paying that
diminished proportion of damages to the
plaintiff. This often is not enough to
compensate for the expenses of litigation,
which can escalate to incredibly high
amounts when expert testimony is needed.
In Fuchsgruber v. Customer Accessories,
Inc., 244 Wis.2d 758, 628 833 (2001), the
Wisconsin Supreme Court held that the
Wisconsin comparative negligence statute
requires a comparison of negligence between
the plaintiff and all sellers of a defective
product combined, rather than individually.
The defendant-sellers may have a separate
comparison of negligence between themselves
for contribution, but at trial, the
plaintiff's conduct is only compared against
the contribution of the product toward the
accident and injuries. This allows a
plaintiff to prevail in some cases where the
manufacturer cannot be sued and an innocent
wholesaler or retailer is the only seller on
the hook.
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