GREITEN and wife, Appellants, v. LA Dow, d/b/a B & B Erectional Maintenance Service, Respondent.
No. 555 (1974)
Supreme Court of Wisconsin
Argued September 30, 1975. Decided November 25, 1975.
235 N.W.2d 677
589
For the respondent there was a brief by Prosser, Wiedabach, Lane & Quale, S. C., attorneys, and David M. Quale of counsel, all of Milwaukee, and oral argument by David M. Quale.
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 precondi-
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.
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.
This case was brought on a theory of negligence, not strict liability. Plaintiff alleged that the defendant was careless and negligent in the design and manufacture of the machine and that such negligence was the proximate cause of the accident and of the plaintiff‘s injuries. Dippel v. Sciano was brought upon an entirely different theory. In Dippel, plaintiff alleged that the manufacturer of the pool table “expressly and impliedly warranted” that the table was reasonably fit for the purpose for which it was used. Plaintiff did not allege or attempt to prove that the pool table was negligently constructed.
Dippel discusses with great thoroughness the reason why, in finding that the plaintiff stated a cause of action, the previous Wisconsin law requiring privity of contract in an action for a breach of implied warranty should be abrogated. That case points out that the ultimate consumer has the right to rely on the safety of a product placed in the stream of commerce. If in fact the product proves to be unsafe, that constitutes a breach of the warranty.
The principal effect of Dippel was to relieve the plaintiff from proving specific acts of negligence and to protect him from the defenses of notice of breach, disclaimer, and privity of contract. All plaintiff is required to show is that the product reached the consumer “in a defective condition unreasonably dangerous” to the user. The rule adopted from sec. 402 A, Restatement, 2 Torts 2d, is, in its original form, not a device for imposing liability for negligence. This is clear from sec. 402 A (2)
Negligence per se, however, as Dippel points out, is not grounded upon the failure to exercise ordinary care, which includes within its compass the element of foreseeability.1 Under the implied warranty, 402 A rationale of Dippel, foreseeability is not a factor. The policy purpose so effectuated is apparent. The intent of the Dippel rationale is to permit a plaintiff to recover under such circumstances where it is impossible or unduly burden-
Dippel did not intend to apply the dangerously defective standard to an ordinary negligence case. It was not intended to modify or to limit a plaintiff‘s right to recover, but to extend that right to those circumstances where it was impossible to allege the particulars of negligence. It was not intended that Dippel be transplanted to negligence actions. It is interesting to note that the respondent in this case relies not at all upon Dippel or sec. 402 A. Neither is cited. This is because those authorities are totally irrelevant to this action.
This action is governed by Smith v. Atco Co. (1959), 6 Wis. 2d 371, 94 N. W. 2d 697, referred to in the majority opinion. In Smith v. Atco Co., we said:
“We deem the time has come for 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. The question of liability should be approached from the standpoint of the standard of care to be exercised by the reasonably prudent person in the shoes of the defendant manufacturer or supplier.” (P. 383)
Accordingly, under the well-established rules of negligence in Wisconsin, the plaintiff is simply required to prove that the defendant failed to exercise ordinary care and the act or omission complained of was the cause, in the legal sense, of the plaintiff‘s injury. That latter consideration, of course, carries with it the entire panoply
The fundamental question of ordinary care, however, carries with it the concept of foreseeability. Osborne v. Montgomery (1931), 203 Wis. 223, 234, 234 N. W. 372, discussing foreseeability, states:
“The liability of the actor may therefore depend upon whether or not the actor as an ordinarily prudent and intelligent person should reasonably have foreseen as a consequence of his act that injury would probably result.”
Accordingly, in the instant case, where the action is grounded on negligence, it was necessary for the plaintiff to show that the respondent La Dow, 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 boiler-plate 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. The failure to exercise ordinary care constitutes a breach of the duty; and if harm is caused by that breach of duty, liability results. This is obviously an onerous task for a plaintiff. If the lack of ordinary care results in a defective design, it is indeed true that the product may well be unreasonably dangerous even in the sense of Dippel v. Sciano. As Comment a to sec. 402 A, page 348, of the Restatement, 2 Torts 2d, says:
“The rule stated here is not exclusive, and does not preclude liability based upon the alternative ground of negligence of the seller, where such negligence can be proved.”
Sec. 402 A does not impose liability for negligence at all. It imposes liability for tort, and it is only for the purposes of fitting the Dippel rationale into the framework of our comparative negligence statute that we refer to it as negligence, albeit, a legal-policy type of negligence per se. In the Dippel type of case, the burden of proof that the product was in a defective condition at the time it reached the hands of the ultimate consumer is upon the plaintiff; and in the event he meets that burden of proof, there is liability. It is not necessary to show any specific acts of negligence. It is not necessary to show duty in terms of foreseeability. It is enough to prove, irrespective of due care, that, because of its dangerously defective nature, the product caused harm.
Where a plaintiff proves negligence—in this case, the lack of ordinary care in the design of a product—there is no doubt that there may be recovery in the event the defective design results in an unreasonably dangerous product,2 but there may be recovery for the negligent design of a product even though it is not unreasonably dangerous in the 402 A sense. All that it is necessary to prove is that the product is designed with a lack of ordinary care and that lack of care resulted in injury. No test of negligence has been called to the attention of this writer that requires that the product be unreasonably dangerous in order to predicate lia-
“If a manufacturer or supplier is hereafter to be relieved from liability as a matter of law by the courts, such result should be reached on the basis there was no causal negligence established against the defendant rather than that the product was not inherently dangerous.” (Pp. 383, 384)
The same rule is applicable in the instant case. While I completely agree with the majority opinion that the proof was insufficient, I am satisfied that the threshold question is not whether the product was unreasonably dangerous but whether the defendant exercised ordinary care and whether that lack of ordinary care was the legal cause of the injuries. It is obviously desirable to attempt to do what the majority strives for—to have some uniformity of rules between the Dippel concept and the ordinary negligence concept. I believe, however, it is a matter of comparing apples and oranges, for Dippel is based upon the public-policy premise that a seller is socially responsible for what he puts into the stream of commerce irrespective of his degree of care. That liability is absolute unless diminished by our concept of contributory negligence. On the other hand, negligence is based upon a theory of fault. We look in the ordinary negligence case not only to the result of the defendant‘s action, but rather to his conduct in attaining that result. It is, accordingly, erroneous to conclude that the threshold question in each case is whether the end product is dangerously defective.
I am authorized to state that Mr. Chief Justice WILKIE, Mr. Justice BEILFUSS, and Mr. Justice DAY join in this concurrence.