Kozlowski v. John E. Smith's Sons Co.

Plaintiff-Appellant, E. Smith’s Kozlowski, John Defendants-Respondents. Company, Sons Supreme Court Argued January No. 1979. 76-368. February 27, 1979. Decided (Also reported 915.) in 275 N.W.2d appellant Bunde, For the there were briefs Peter W. Quarles Wallenfang Brady Ronald L. & of Milwau- kee, argument by and oral Mr. Bunde and Mr. Wallen fang. respondent by Joseph

For D. Mc there was brief Devitt, Terry Borgelt, Powell, E. Peterson Johnson C., Milwaukee, argument by Frauen, & S. and oral Mr. McDevitt.

COFFEY, February 27, J. Andrew Kozlow- On employer’s ski killed in an his industrial accident at Cudahy, plant, Cudahy, Inc., Patrick Wisconsin. brought product’s liability wife of the decedent action against (hereinafter Smith’s), E. John Smith’s Sons Co. stuffing sausage the manufacturer machine cleaning Mr. process Kozlowski was in the time at the Following testimony of his death. the conclusion jury trial, granted in the the the defendant’s mo- court tion for directed verdict and dismissed the case. The plaintiff’s motions for ver- reconsideration, for directed plaintiff dict favor of the and a trial on new dam- ages plaintiff judgment appeals were denied. The 15, dismissal on entered November 1976. February 27, approximately

On 1974 at 6:30 a.m. Mr. cleaning eight sausage Kozlowski was the last of stuffers located in his work area. Mr. Kozlowski had six five to years experience job sausage in the classification required sausage stuffer. His duties him to clean each stuffing being put daily operation. machine before into cleaning required The was because after the machines nightly, paraffin applied were down hosed a oil was rusting prevent cylinders in the of the machines. stuffing by The Cudahy used machines Patrick were by manufactured the defendant Smith’s and were known in the trade as the Series Buffalo air stuffers. lb. large cylinder The machine consists of a cast iron mea- suring by high; feet diameter 4 feet inside the cylinder piston weighing is a conformed over lbs. piston rod, is not connected to a tie but rather floats cylinder. piston by free pres- within the is moved air sure, and, operating, pressure may when the machine is high per sq. maintained as 125 lbs. inch. The ma- pressure capacity chine’s full per sq. 150 lbs. inch. However, pressure per when the is raised above 140 lbs. sq. pressure inch a prevent release valve takes over to reaching top At its maximum. of the cylinder ring safety there is a 200 lb. which has a smaller piston cylinder. inside diameter than of the When operation operated by the stuffer inis a metal cover clamps top screw mechanism cover over the pressure regulator An air machine. is located on the side controlling pressure by the unit to facilitate hand. During cleaning of the Buffalo air stuffer the ma- chine’s piston cover is removed and the is raised to the cylinder, rings top keeping piston place. George Sawchuk, co-employee, described prior events explained to and after the accident. He Mr. piston Kozlowski had raised wiping was through piston ring. off when burst Saw- immediately engulfed chuk stated the room was in am- spilling ceiling. monia fumes and water was from the ground Mr. Kozolowski had been knocked to the ef- by employees forts to remove him were futile as the saturation ammonia at a fumes fatal level. He eventually wearing oxygen removed firemen pronounced and was masks dead on arrival at a local hospital. Upon body, of examination the the medical ex- aminer determined the cause of death was ammonia asphyxiation.

Located above the pipes machine the were ammonia sausage products. used to cool the At the time of machine’s pressure, malfunction while under maximum cylinder jutted piston beyond and safety line fracturing machine, safety ring of the into five pieces, Upon ruptured pipes. one of which the ammonia following accident, examination the work area five of pieces safety ring were on the floor. At found resting piston position time the this was in a tilted at the top cylinder. Although of the the medical examiner found swelling head, an area of on the decedent’s no medical testimony hit established that Kozlowski had been pieces flying safety ring. of the age particular malfunctioning

The Series 38 dispute. Buffalo is in stuffer It was testified to that the machine first in 1938 underwent no marketed change design until At time a substantial 1971. that by-pass incorporated valve was de- into the machine’s sign equipment economy as standard as aswell by-pass developed optional reasons. valve was an The piece equipment July, 1946. time the Since publications valve was in trade and was listed advertised repair parts optional on list as Smith’s device. The purpose by-pass prevent pressure of the is to air rising per sq. above 10 inch lbs. when the machine is being lbs. cleaned. is sufficient to raise piston cleaning. Cudahy representative A stated company knowledge safety by-pass no had availability valve’s until after the accident. pointed

It representative should be out that a sales making Cudahy two Smith’s testified to on the sales calls plant between 1971 and February, but he had any Cudahy employ- not discussed device Allegedly, Cudahy ee. respective because the engineer purchasing personnel, an agent, were other- occupied wise at the time of his He calls. further stated practice that it was the in the trade not to make advance appointments calling upon plant personnel. when anytime did up Smith’s salesman not at follow the sales explaining calls with purpose letters his visits during the time referred to.

The record discloses between 1943 and 1960 Cudahy purchased had from Smith’s Buffalo stuffers equipped none of these machines came safe- ty valve invented 1946. Plaintiff’s Exhibit 9 indicates that five purchased Series 38 Buffalo had been stuffers by Cudahy January, 1946, between before the by-pass However, incomplete valve was marketed. Cudahy prevented business records and files of the liti- gants ascertaining purchase the actual dates of all machines, including but five of ques- the machine in tion whose serial number could not be determined.

Evidence was opera- received that the manufacturer’s tion and maintenance failed to instructions set forth per sq. pressure requirement inch necessary for the employee cleaning simple when A the machine. warning was contained in the instruction booklet and “Always read: pressures they apt avoid excessive are product.” be harmful to the pro- The instructions do procedures conducting vide for to be when full used pressure engineer, test. Smith’s head one Harold Schal- ler, pressurizing piston operat- testified that the of the ing conditions with the open machine cover was a misuse stuffer, ring as the machine’s was not de- signed any under pres- circumstances to withstand full capacity piston open sure position. in an Despite suggested the absence of a pro- manufacturer’s pressurization during cleaning, cedure the machine’s sausage Cudáhy evidence reveals that stuffers at had practice safety established procedures custom and known employees. to Kozlowski and other full Mr. time following procedure Sawchuk stated the was used: raise piston top cylinder to the of the pres- under 5-10 lbs. sure; completely pressure then turn the off. Sawchuk explained specific there was no rule on whether to turn the cleaning off before or after the piston. Adolph Cudahy’s Drobka, processing department superintendent, pre-accident testified to the existence during procedures pressurization

verbal for safe clean- ing; every specify procedure he did not but stated safety stuffer knew Treat, of the instructions. James engineer Cudahy plant, director and utilities at the testi- investigation post-accident fied that that revealed con- trary accepted practice to the the air throttle open position. Cudahy was found in a Lex, wide Robert plant engineer, gave opinion Cudahy post- if that procedure pressurization followed, accident had been the accident would not have occurred. ques-

Evidence was also introduced that the in machine disrepair tion had year. been in a state of for at least one piston slowly Mr. stated Sawchuk would rise top then stick 8-10 inches from the and then “kind go up quite you a bit faster so had to be careful.” brought This malfunction was the attention department maintenance on more than one occasion and problem remained unsolved. Sawchuk stated he knew (cid:127) problem. that Mr. Kozlowski was aware of the Waldburger, safety specialist One Gerald for the Relations, Department Industry, and Human Labor making investigation testified to He into the accident. properly concluded if had main- the machine been by Cudahy prevented. could tained the accident have been concerning Further, he considered his conclusion employer’s good keep repair failure to the machine in possibility excludes the that Kozlowski acci- caused the design adequacy dent. He saw no reason to evaluate the of the machine as he had concluded the machine’s dis- repair Cudahy was the cause of the accident. cited by safety OSHA for violations failure to exercise gas light precautions supplying masks in presence of ammonia. Issues: directing

1. Did the trial court err a verdict for the upon plaintiff’s defendants based failure to introduce jury question evidence sufficient to raise a on whether: unreasonably a. dan- the defendant manufactured an gerous failing by product equip particular machine safety by-pass prevents with a ably dangerous valve which an unreason-

condition created when the machine fully pressurized covering protective place without ? its ordinary

b. the defendant failed to care to exercise by manufacturing render its safe the machine without the device?

c. the defendant manufactured an dan- gerous failing machine users of the defective warn operating pressure? condition when maximum air under d. the defendant caused the of an unreason- existence ably dangerous by failing condition to inform users of availability the defective condition of a designed prevent device to that condition? plaintiff erred,

2. If the trial court is the entitled to a against directed verdict on issues ? defendant denying 3. Whether trial court de- erred plaintiff’s fendant’s motion to at dismiss the close of the evidence? products liability

The case at bar is a action wherein alleged Smith’s, it is defendant-manufacturer, that the designed dangerous and marketed an air compression sausage stuffer and that the manufacturer additionally give adequate warning to failed dan- ger by design created defect. In Schuh v. Fox River (1974) Co., 728, Tractor 63 Wis.2d 218 N.W.2d 279 allegations against the manufacturer were the same. appeal Thus, that case similar to this wherein the court upon granting called also to review a motion directed verdict in favor the defendant. In Schuh the directed verdict was affirmed as was sufficient evidence to there support plaintiff’s the trial court’s determination that the negligence contributory equal was a matter of law to or greater causing plaintiff’s than the defendant’s

890 caught supra leg crop fan of blower.1 become at 743-44. by applied a trial standard this court when

The review challenged, directed verdict is has been succinct- court’s ly stated as: IN

THE IS REVIEWED THE LIGHT EVIDENCE THE PARTY FAVORABLE TO OPPOSING MOST THE DIRECTED VERDICT. “ determining ‘In whether not the trial court failing verdict, in error in court must direct the take' that the be directed. Schumacher which most view of evidence favorable against sought party . . . whom verdict was (1963), Klabunde 19 Wis. 83, (2d) (1935), 457; O’Leary N.W.(2d) Mueller v. 119 585, 587, Tombal v. 216 Wis. 161.’” N.W. Exchange, 64, 68, Farmer’s Insurance Wis.2d (1974). N.W.2d A trial court a motion reviews for directed verdict applying following standards:

1) THE PLAINTIFF’S EVIDENCE IS INSUFFI-

CIENT TO A IN SUSTAIN VERDICT THAT PARTY’S FAVOR “ only against ‘. . . A verdict plain- should be directed plaintiff’s giving tiff where evidence, it the most favor- reasonably able bear, construction it will is insufficient plaintiff’s to sustain a verdict favor. omit- [Citations ’ ” Co., supra Schuh v. Fox River Tractor ted.] at 733-34. differently, or stated 1 Co., supra, Schuh v. Fox litigated prior River Tractor 895.045,

to the 1971 Stats., permitting plain amendment to sec. recovery contributory negligence equal tiff’s if his to is of a defendant’s.

891 2) BE DIRECTED VERDICT SHOULD GRANTED REASONABLE MINDS CAN REACH

WHERE ONLY ONE CONCLUSION “ jury ‘A case should be taken and verdict against party: directed “ ‘ only gives . . when to dis- the evidence no rise pute is so clear and only as to material or when the evidence issues convincing reasonably permit un- impartial biased and to but one conclu- come minds ” ’ (1964), sion.’ v. Anderson Joint School 24 Dist. Wis. 580, (2d) 583, (2d) 545, (2d) 105, 129 N.W. 130 N.W. citing (1940), 489, Smith v. Pabst 288 N.W. Wis. 780, (1933), 530, and Rusch Sentinel-News Co. 212 Wis. 533, 250 405.” Ex- N.W. Tombal v. Farmers Insurance supra change, at 68.

Dippel Sciano, (1967) Wis.2d N.W.2d controlling upon liability prod- is a manufacturer’s in a ucts adopted liability action. Therein this court the strict in tort (second) standards announced the Restatement Torts, 402A, pp. sec. 347-48 which recite the follow- ing: Special Liability “Sec. 402A. Seller Product

Physical Harm to or User Consumer “(1) any product One who sells in a defective condi- unreasonably dangerous tion to his thereby his to the user or consumer property subject physical harm consumer, caused the ultimate user or toor property, if “(a) engaged selling the seller is in the business product, such a and “(b) expected to and does reach the con- user or change sumer without substantial in the condition in which isit sold. “(2) The rule (1) applies stated in subsection al- though “(a) the seller has possible exercised all care in the preparation product, sale his “ bought product (b) the has not the user or consumer any the relation with or into contractual

from entered seller.” explained impact Re- Dippel of the the decision a that and five

statement standards enumerated elements plaintiff products claim: must establish might liability misconstrued “The term strict in tort and, so, liability not does if would be misnomer. Strict does it make the impose view the or an insurer nor manufacturer seller liability. point of plaintiff’s absolute From aspect that it re- of the rule is most beneficial specific negligence proving and him of acts of lieves breach, protects him of notice of dis- defenses warranty claimer, privity implied con- and of in the lack cepts of sales and contracts. rule, reading plain language that From a of the plaintiff prove (1) product in defec must possession condition when it left or control tive dangerous seller, (2) to the that it was consumer, (a (3) user or that the defect was a cause injuries dam factor) plaintiff’s substantial engaged ages, (4) ing in the business of sell the seller that product or, put negatively, not an to the such is infrequent isolated or principal related transaction seller, (5) that the business expected was one which seller to and did reach the change the con user or consumer without dition substantial supra, Dippel Sciano, it when he sold it.” at 459-60.2 sausage appellant contends Series 38 by design permits stuffer was defective the existence argued unreasonably dangerous of an condition. It ring will that there is a substantial risk that the continually fracture as it did in this when struck case piston fully pressurized its while the machine It was akin observed strict Wisconsin is negligence purposes applying per se, treated for the “safety comparative negilgence statute similar violation supra 461-62. statutes.” at

893 allega- sought open. appellants proof cover The of this by- by development of a tion virtue of pass prevents pressurization valve of the stuffer beyond safety removed. standards when the cover is argument claiming pres- full rebuts this that the Smith’s its is a surization with cover removed machine alleged of the machine as the hazard is nonexis- misuse operating tent if procedures normal are followed. manufacturer maintains that the hazard created when open the machine full an and obvi- under unreasonably not ous defect that does render the stuffer dangerous. Swimming Pool

Vincer Esther Aluminum Williams Co., (1975) adopted N.W.2d 794 Wis.2d following explanation to Restatement comments as an meaning of a of the first strict element dangerous “product unreasonably in a defective condition to the user”: “ ‘g. condition. Sec- The rule stated Defective applies only

tion is, where the at the time it hands, leaves the contemplated unreasonably seller’s in a condition not by the ultimate will consumer, which be dangerous to him.’ “ ‘i. Unreasonably dangerous. The rule in this stated applies only Section where defective condition of the product consumer. dangerous makes to the user or Many products possibly cannot made en- tirely any drug safe for all consumption, and food or necessarily harm, only some risk involves if over-consumption. Ordinary sugar poison deadly is a diabetics, and castor oil found use under Mussolini as an instrument torture. That is not what is meant dangerous” “unreasonably sold must be would be in this The article Section. dangerous beyond extent that which contemplated by ordinary who consumer purchases it, ordinary knowledge common to the community (Emphasis sup- its characteristics.’ plied.)” pp. at Id. 330-31. design argument for a is answered defect Schaller, testimony

plaintiff’s of Harold case with the Engineer. that the Smith’s Chief Schaller testified ring designed impact piston of 40 to withstand a per pounds sq. 45 thousand inch but that machine designed pressure impact to resist a full while engineer- cover is also that the removed. Schaller stated ing permitted feasibility in 1938 state of the art re- safety by-pass a the valve with minimal utilization of George Sawchuk, experienced an piping unit. sausage Lex, Cudahy stuffer, a vice President and Robert engineer, the have been and concluded that accident could sausage equipped prevented stuffer had been if the safety by-pass the valve. open support

In of their contention that the defect was testimony upon that obvious, relies Schaller’s and Smith’s practice to a of the machine it is an and misuse unsafe (80- capacity pressurize operating normal a stuffer to inch) open sq. position. an per with the in 125 lbs. cover testimony also offered the The manufacturer as evidence Cudahy supervisory personnel 5 to that of Sawchuk and required the pressure all that to raise lbs. of cleaning. piston the that this was Sawchuk testified practice customary procedure and this was followed super- prior date of the accident. deceased visory explained on employees stuffer received each training cleaning job as described the machine by Sawchuk. 557, Gussarson, 66

In Arbet v. 225 N.W.2d Wis.2d (1975) highlighted a de- it was that for defective sign dangerous be to be it must condition hidden not an defect: found to a and obvious be “ design . It must noted also that character- complained of in the hidden istics dangers, instant case were buyer car, apparent not and not subject warning. a of manufacturer’s This a dif- case, therefore, plaintiff ferent than a case a sues where Volkswagen complains a the manufacturer of designed the car was too a defect small be safe. Such hardly ordinary could consumer would be said to be hidden. . . . since the Volkswagen expect be less safe than, say, an accident a Cadillac, smallness of the car danger per with the attendant would se render it not inherently dangerous. danger- Rather it contain a must presence ordinary defect ous not whose an consumer would ” reasonably expect.’ Id. at 557. this court Were able to conclude that evidence in case demonstrated obvious defect not unreason- ably dangerous, the manufacturer would be auto- matically liability. Dippel Sciano, relieved from In supra 461-62, negli- contributory at indicated we gence proper products liability defense to a claim. testimony In this case there was substantial that Mr. customary procedures Kozlowski had not followed the by sausage cleaning used stuffers while machine. The post-accident investigations found the valve open position, contrary safety practices a wide to all procedures Cudahy Sawchuk, plant. followed co- at employee, necessary cleaning stated that was not procedure pressure up to allow the to build to maximum capacity.

Despite foregoing evidence cannot hold we negligent a matter of law Kozlowski was than more Co., supra defendant. In Schuh v. Fox River Tractor at recognized duty there is a on manu- product: to facturer foresee reasonable abuses “ ‘. . . adaptation is “Intended use” but a convenient foreseeability” basic of the test of “reasonable framed to specifically more fit the factual out which situations questions negli- of a arise manufacturer’s for gence. “Intended is not an use” inflexible formula to be every apodictically applied Normally to case. a seller or anticipate to manufacturer is entitled that the he only purposes is for which it in for deals will be used reasonably expected sold; is thus he

manufactured and foresee arising only injuries in of such use. the course “ ‘However, expected anticipate he must also be prod- of his environment which is normal uct. the use “Every machinery to used manufacturer intends his necessarily complete safely. defense to But it being liability to machine used other- show that the may circumstances, consti- wise. tute certain misuse Under negligence contributory in the be a factor and thus negligence.” comparison Id. at 741. operating appellant accom- claims the instruction panying permits pressurization the stuffer the full of the unit without the cover. Smith’s the use of the claims pressure at machine maximum a blatant misuse of operating machine. fol- instructions outline lowing language steps pressure full four for a test: pressure test, desired, “IMPORTANT —A full when should be conducted as follows: Arrange height spacers equal “1. at least 6 such as edge piston. six 1" machine nuts laid on around the piston slowly spacers “2. Raise the until these are firmly top: piston seated between the of the and the bot- safety ring. tom of the top piston pres- “8. Pour water on and raise the operating pressure. sure to normal Any escaping “4. will leaks be indicated air bubbles piston.” around the It may is conceivable that reasonable men differ on permitting whether these instructions a full test allowing piston continually strike the ring potential obscures the hazard that caused fatal- ity respondents prove this case. The do not their obvious defect contention with reliance on their may record. While Smith’s never have been sued injuries resulting safety ring, jury from a fractured may infer that the “few near referred misses” testi- mony put should have the manufacturer of a on notice danger. hidden Cudahy may

The record also reflects that have been negligent causing found plaintiff’s death. Testi- mony given Cudahy permitted was knew malfunctioning of this machine to continue more than year. a The malfunction was described as a condition piston slowly, point wherein the would rise then at a hold ring 8-10 propelled inches from the then at high against ring. speed safety inspector A state found the sole accident was ma- cause Furthermore, chine’s disrepair. state of it was estab- Cudahy lished that cited for for its OSHA violations gas provide working failure to masks in a area surround- piping. negligence ed with ammonia do not hold the We Cudahy attributable to relieves the manufacturer of all responsibility for death and on the Kozlowski’s state record, jury present there sufficient evidence question. apparently

The trial court withdrew this case from the jury’s finding year consideration that a 35 old machine constantly propelling pound piston a 500 under per sq. against ring of 140 inch lbs. a 200 lb. metal consti- Volkswagen-type tuted a defect as described Arbet v. Gussarson, supra. Upon a review of the entire record we cannot appellant conclude that as a matter of law the establishing failed to introduce evidence the existence of jury question on whether there condi- defective unreasonably dangerous. tion Nor is the evidence suffi- by cient to conclude that the evidence offered Smith’s prove supports only obvious defect that inference. We disposition believe that the of this case is controlled following: determining “The standard for court whether the trial directing erred in a verdict was in Zillmer v. stated Miglautsch (1967), 691, 699, 35 Wis.2d 741: N.W.2d 898 “ of evidence must take that view court ‘[T]his (the party plaintiff which is favorable to most sought to case) against be whom this the verdict a any If evidence to sustain directed .... there is action, submitted or of the case must be defense a cause weight ... sufficiency jury. to the . . . The given weight jury to evidence is as is the for the negative testimony . . . positive to the or witness’ credibility Furthermore, of the evi- it is basic that mat- to therefrom are dence and inferences be drawn any If other jury. is

ters than mere ... there evidence support conjecture to or incredible evidence contrary jury. . verdict, go . . a to the the case must uni- in conflict Incredible evidence with evidence fully con- or form course or established of nature ’ ” ceded facts. . . . omitted] [Citations Riesing, 698, 705-06, Samson v. 662 Wis.2d N.W.2d (1974). and, further: “ ‘ ought if, taking “A con verdict to into be directed they appear sideration all the facts and circumstances as evidence, or there is but one inference conclusion by can be reached reasonable man.” Milwaukee N.W.2d ante,

Bichel, p. 66, 150 419.’ Tombal v. Farmers Exchange, supra Insurance at 68.” Accordingly, we hold more in- that because than one or ference conclusion could be drawn from evidence whole, reviewed the case should have as been submitted jury. required to the on Factual determinations were design interrelationship the issue of defect and its Cudahy’s negligence. im- abuse and Due to the case, portance by as the issue raised facts proceed will on we to discuss whether strict basis negligence, law failed to common Smith’s alleged warn hazardous condition. duty alleged a manufacturer to warn of de- dangerous,

fective condition de- has been fined follows: “ duty warning give duty ‘The to warn ... is a adequate appropriate

which is under circum- Liability Duty stances.’ Annot. Products (1961), — Warn, A.L.R.2d, p. 15, Moreover, generally 2. it is sec. recognized: “ general against warning ‘Various criteria which a adequacy be measured to determine its have been Thus, stated must the courts. has been said that seller give warning purchaser dangerous the aof article a accurate, strong, is readily that clear, and noticeable. “ ‘Any language ambiguity warning in a the of fur- nished in connection the sale of a to chattel is against “construed the who one chose the words used.” “ warning ‘The appropriate; implicit must be in the duty duty degree to warn is the a to warn with of in- tensity that would cause a reasonable man to exercise for safety his poten- own the caution commensurate with the danger. tial From this it follows that of an likelihood taking place accident’s of the seriousness con- sequences always pertinent are to be considered matters warning respect duty provide with label, warning to the to a sufficient need particular and that is a there a sufficient representation where there is a that the question dangerous.’ 2d, in Liability, p. 62, is not 63 Am. Jur. Products Co., 53.” v. Fox Point Tractor sec. Schuh supra at 739. Heretofore, this court has not or stated whether not there duty against every is a to warn a It is obvious defect. knowledge Volkswagen matter of common does not have to crashworthy warn that their are as a cars as average person Cadillac nor does the have to be warned sugar dangerous that excessive amounts of is to a dia- However, betic. as we have earlier concluded the exis- tence opposed of a hidden as an defect obvious question. properly jury Series 38 Buffalo was. a stuffer Therefore, duty potential of Smith’s to warn of the presented jury. hazard should have been Even virtue the environment of the machine’s usage industry home, rather than we believe rea- may differ as to sonable men whether not Smith’s warning. provided adequate operating instruc- The warning. only “Always avoid excessive tions this recite they product.” apt are to be harmful to the warning general In on a case we noted a Schuh crop keep away parts power driven blower limbs danger was the nature a insufficient disclose causing amputation of the resulted in the accident leg. danger causing plaintiff’s case, In actual operate harm fan continued to after machine’s gear. power take-off was taken out of lever Smith’s danger warning an ex- is of similar character. ring safety may ploding not be revealed because of the general inadequacy warning. jury may of the A reach say conclusion, different but we cannot as matter warning apprise law sufficient the user to. the hazard. aspect

The most troublesome of this case whether continuing duty alleged there to warn of an defec- light availability tive condition in of a July by-pass device. valve was marketed equipment of 1946 and became standard on all Smith’s sausage stuffers sold after 1971. safety fea- evidence that introduced

Smith’s publications ture in trade reached advertised also in the customers. The device was listed of its 100% safety company’s repair parts brochure as a attachment. jury reasonably have It that a could is court’s belief this product availability in- that this notice of concluded adequate. in- The record demonstrates that because of Cudahy adequate by and files maintenance of records they knowledge of existence had no actual of Smith’s safety prevented which would have Kozlowski’s device death. sausage stuffer a market sale of is to limited companies know of all

wherein the manufacturer should product. Therefore, that own upon its whether based theory duty, of strict in tort or a common law jury accident, a could persuasive prior find it to the only a representative Smith’s sales two visits made Cudahy plant. each On occasion he failed for one Cudahy safety by-pass reason or inform another to designed prevent. valve and the hazard it was representative’s testimony own is that these calls sales safety by-pass were made after when the had valve equipment become standard on all new machines. do We this decision there is an hold that abso- continuing year duty, year, lute after for all manufac- turers to warn of a new which device eliminates potential sausage hazards. A stuffer and the nature of industry similarity bears no to the realities of manu- facturing marketing goods fans, such as household snowblowers or lawn mowers which become have increas- ingly succeeding proof hazard with each model. It is beyond good judgment reason and to hold manufacturer duty warning responsible annually items, produced hazards on household mass and used in every home, years American when the 6 to 35 equipped old and outdated some newer models every imaginable safety innovation known the state place the art. duty upon It would an unreasonable they required if these manufacturers were trace the ownership annually of each unit sold and warn of new safety improvements year over period. a 35 noted, sausage industry

As stuffer machine far jury scope. Consequently, in deter- more limited mining duty in area must a manufacturer’s restricted warnings industry, given, look to the nature of the machine, safety improvements, life intended marketing practices, number of units sold reasonable expectations with consumer inherent there- combined in.

902 legislature the noted review recommend

We Presently, liability. open-ended product problem of products runs from the claim statute of limitations for 893.205, light injury. of the bur- Stats. In date of Sec. being liability geoning product filed number of actions may to manufacturer’s year, limit a each it be advisable following liability manu- specified period ato date substantially Legislation nature of this would facture. litigation clarify products liability it would define the as art, work hard- scope of defense state of the claims—the ening,3 product and a failure to normal user’s make wear given timely recognize repairs. problem was that this We legislature during ses- the 1977-78 consideration six-year proposed it was that a statute sion wherein placed limitations be on actions.4 legislature particular propose has invited us to changes judiciary statutes, in the and has directed committee, committees, permanent monitor one its especially appro- opinions purposes.5 our for such It is accept here, prob- priate where, the invitation made, for the lem is court but solution is a matter legislature.6 893.205, Stats., before Section enacted 3 Jagmin Co., Abrasive See: Sinonds 61 Wis.2d 211 (1973). N.W.2d Bill 1977 Senate 440. Stats, 13.83(4) (a), provides: Sec. regarding judiciary “The committee shall make recommendations supreme opinion statutes which the state an states those court in ambiguous or or or are in conflict unconstitutional legislative particular proposal change is a matter. The com- concerning shall make recommendations those statutes mittee opinion appeals conflict, which the court states are ambiguous unconstitutional, is reversed unless the decision supreme disagrees finding or the court or statement of appeals relating (Emphasis the court statutes.” supplied.) concurring opinion argues presumptuous specific change any court statute.. The recommend adopted liability Dippel we the doctrine of strict supra. Sciano, though language Even of the literal the product liability statute actions, covers it is obvious contemplated application no one its to an action for dam ages by years caused the malfunction of a machine 35 after manufacture. Legislature

We commend to the Wisconsin for its con- running sideration a statute from date the of manu- suggestion may facture. This be the course wiser than proposal the to have the of run statute limitations from person engaged the date of sale to a in the business selling product.7 of First, the for as a manufacturer’s liability, accurately represents requirement more the Dippel supra v. Sciano, “product at 459 the in a defective possession condition it left when the Second, tolling control of the seller.” the statute of as presents proof problems any plain-, date sale for requiring tiff. Rather than every consumers to save receipt, provide sales producer both the consumer and with serial number identification to ascertain the date formulating In manufacture. this new statute of limita- tions, legislature should into take account reasonable periods product when inventory will held manufacturer, wholesaler and retailer. legislature hand,

On the other may in its wisdom running find that a statute of limitations from the date problem manufacture does not solve the and that justice concurring has, himself, opinion authored at least recent one specific changes for court in which in statutes were recom- legislature. State, mended to Kubart v. 70 Wis.2d (1975). N.W.2d 404 However, Supra, footnote 4. we note that on 9/26/77 proposed calling amendment was the statute of limitations running years purchase from “6 after the date of initial years consumption, use or or 10 after the date of manufacture product, whichever is earlier.” legislation required, providing enactment of at time the enters the stream commerce ex- limitation on commence. For future shall years ample, period of 6 to 10 time the manu- goods shipped facturer or has ultimate purchaser years sale, or 6 to 9 of the date lease delivery possession peri- of to the initial user. The time sug- proposal merely ods to in the are referred above gestions. myriad problems in of and solutions this complex products liability area of law should be subject legislature hearings of in and debates in justice order to of manu- balance the between the scales facturer and consumer. throughout opinion, indicated this the issues of de-

As duty design, warn, product fective misuse and the timely required repairs jury failure to make determina- Thus, party tion. neither was entitled to a directed ver- appeal dict. order a new trial on all issues. This We presents example a classic of a “close case” which re- ruling quires trial court to reserve on motions for jury a directed until after submission and deter- verdict Riesing, supra mination. Samson v. at 700.

By Judgment reversed and cause remanded Court. — for a new trial. (concurring). agree

HEFFERNAN, J. I with the disposition However, court’s of this case. I disassociate myself respect from the obiter dictum in to a modification period of the of limitations.

It apparent open-ended period indeed which on limitations commences to run in- the date of jury problems may, cases, causes in some result injustice. Nevertheless, any change substantial in the determining method period commencement of a policy limitations must be the result of a determination legislature. reserved for the presumptuous It is for this court, which cannot have the benefit does hearings public expression opinion, and constituent sponte any change specific appli- “commend” sua in the enough period of limitations. note cable It us to period of a in re- determination of limitations spect liability presents products problem, a substantial worthy legislature’s consideration.

I Justice am authorized to state that Justice Day, join and Justice Callow concur- this Abrahamson, rence. HANSEN, (dissenting). respect- T. I

CONNOR J. fully I dissent for same reason dissented Chart General Corp., Motors Wis.2d N.W.2d 680 (1977). again application Once this of the law court’s making perilously of strict comes close to product. manufacturer an absolute insurer of its denominating case,” inappropriate In a “close verdict, majority implies jury a directed the that a could found, presented, have on based the evidence condition, in a machine was sold defective dangerous. support The here do not such a conclu- facts parties in sion and the does a the court disservice to sending through testimony them a new trial. If the same subsequent is adduced in the trial the ultimate result again same; must be the the manufacturer will be ab- majority’s penalizes solved. The decision the manufac- requesting turer for a in it directed verdict a case which clearly had won. frequently

The court trial courts has admonished ruling practice it in is the better close cases to a reserve jury on a motion for a directed until has verdict after considered the evidence rendered a verdict. Samson 698, 705, Riesing, 704, v. 62 215 662 Wis.2d N.W.2d (1974). majority’s The decision has the effect hold- longer ing guideline appli- admonition is that this no a only cases, mandatory pro- cable to close but a rule applicable If cedure to even the clearest of cases. qualify court instant case cannot as one which the trial taking jury, judges can from the trial safe in take are not any products liability jury. case a reviewing question

In a directed verdict for this wrong. clearly A court is whether the trial court was may against plaintiff a trial court direct verdict giving plaintiff’s evidence, it the most favor- where bear, reasonably able construction will insufficient plaintiff’s to sustain a favor. verdict Schuh 728, 734, Co., Fox River 733, Tractor Wis.2d N.W. (1974). 2d 279 plaintiff proving that

The here had the burden of condition, unreasonably machine in a was sold defective dangerous. plaintiff had to rebut evidence that also negligence outweighed employee’s contributory the manu liability. Schuh, supra, facturer’s at 744. plaintiff’s following case contained the evidence. purchased

The machine was between 1943 and 1960. The accident occurred in when the machine was between thirty-one years Through fourteen and old. facts plaintiff the accident itself the was able to show that at pressure pound piston full off the cover through ring. broke The manufacturer had developed valve 1946 which would maintain pressure pounds at maximum of 10 while the cover equipment off. This valve'was made standard working plant 1971. Personnel at the in 1974 were un- aware valve’s existence. The manufacturer’s in- gave procedure testing structions the machine at pressure, full but did indicate what to use cleaning while the machine. simply

These do not make a facts case defective unreasonably dangerous condition, design on account majority apparently defect failure warn. The has agreed danger plaintiff’s theory with that unreasonable can be from the inferred fact that an accident occurred and the machine could have been made I safer. submit jury that if a so found on it be an these facts would deny abuse of discretion for the trial de- court or,judgment fendant’s motion for not- directed verdict withstanding the verdict. being capable op

The fact instrument is way injury erated in such as to inflict fatal does not dangerous. make it The fact that an acci proof dent does result from such use not defec rules, tive condition existed. If are the car manu these facturers take heed to it should and see their products m.p.h. cannot be driven in excess of 55 The re together case, supra, Chart, sult in this the result inexorably leads to the conclusion that this court has adopted liability rule of absolute manufacturers products prevent negligently that do not the user from injuring appears plaintiff himself. It that all do need is show that as safe could be. follow, The manufacturer’s will unaffected plaintiff’s negligence using product. Co., In Vincer Esther Wms. All-Alum. S. Pool (1975), quoted Wis.2d 230 N.W.2d 794 court following 402A, definitions from the comments to sec. Torts, 2d, Restatement “ ‘g. . condition. . in a condition not con- Defective

templated by consumer, the ultimate which be un- will dangerous reasonably to him.’ “ Unreasonably dangerous. ‘i. . . The sold article dangerous must be beyond to an extent that which would contemplated by ordinary purchases consumer who it, ordinary knowledge with the common to the commu- nity as Vincer, supra, to its characteristics.'' . . .” at 330, 331. the industrial

Given context in which this machine was training operators underwent, used and the which its though unreasonably dangerous the even machine was fully pressurized The could cover off. with the danger running pressure inherent the machine at full ma- with the cover off In normal use the was obvious. customary operated chine was The the cover on. practice operated known to all who the machine those cleaning. was run to the machine at low while Very specific procedures out in the instructions were set high pressure in order to conduct a without test warning necessary put No to cover. device was acceptably this machine in an safe condition. “ give warning duty duty ... to ‘The warn is a adequate appropriate

which is stances.’ .... under circum “ taking ‘. . place . likelihood of an accident’s consequences always pertinent the seriousness of the are respect duty pro- matters to be considered with to the ” warning label, supra, Schuh, vide a sufficient . .’ . at 739. any

In the absence of indication that the machine was dangerous safety valve, without making manufacturer cannot be for not faulted equipment Buyers valve standard until in- 1971. were availability through ads, flyers formed valve heading parts majority’s and a boldface on the list. opinion suggest per- seems that a must manufacturer sonally buyer optional safety demand that a install an protect buyer device order to itself when denies knowledge widely of a advertised that has device twenty-eight years. been available for given Furthermore, danger, the obviousness of the negligence view, couldn’t, any manufacturer’s under outweigh employee’s. Schuh, supra, In this court sustained directed verdict where it was evident that plaintiff’s negligence greater than the manu- employee facturer’s as matter of law. The in the in- employed stant operate case had been the machine for years cleaning responsible eight six and every day. plant machines in his area well- had procedures cleaning operation established for the which using only pounds involved five to ten raise piston. employee procedures knew these particular also knew that machine had been mal- functioning year. undisputed for a It over that follow- ing the accident the found machine was to be set at full pressure. employee’s contributory As a matter of law the negligence greater any liability than that could be assigned to the manufacturer. majority suggests legislature consider

enacting products liability a statute of limitations majority actions. This must mean that considers it inequitable strictly somewhat to hold a manufacturer thirty years liable for a that could as much be agree I may necessary old. statute of limitations provide against protection manufacturers with some judicial expansion liability. Unfortunately, of their such flexibility judicial limitations lack the decisions and good must Properly applied, bar and bad claims. both through industry prac- evidence state-of-the-art tice, age 402A sec. can take of a machine into account determining whether the machine is dangerous.

In view of span the court’s concern time in for the may applica volved here this be a suitable for the case public policy tion of liability. cut reasons to off Certain ly recovery place allowance of will here too unreasonable on burden the manufacturer and will enter a field that just has no stopping point. Coffey sensible or v. Mil waukee, 526, 541, (1976). Wis.2d 247 N.W.2d legislative possibility

In addition to the of a enactment suggested by majority, of a statute of limitations as possible problem there are other to this solutions by appropriately legislature. could be considered panels or administra- These would include creation fact-finding agencies perform tive function. Thus expertise necessary the technical evidence evaluate products liability developed in- could be cases dependent fact-finding agency. judi- panel or Unless ciary point just stopping is able to define “a sensible and legislative products liability solution is actions some necessary. directing

I would affirm the court order of trial the verdict the defendants.

Case Details

Case Name: Kozlowski v. John E. Smith's Sons Co.

Court Name: Wisconsin Supreme Court

Date Published: Feb 27, 1979

Citation: 275 N.W.2d 915

Docket Number: 76-368

Court Abbreviation: Wis.