Krueger v. Tappan Co.

• Decision Date: 15 September 1981
• Docket Number: No. 80-2084,80-2084
• Citation: 104 Wis.2d 199,311 N.W.2d 219
• Parties: Jon KRUEGER, a minor, by Robert G. Lee, his Guardian ad Litem, Earl H. Krueger, Jr. and Elizabeth A. Krueger, Plaintiffs-Appellants, v. TAPPAN COMPANY, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 219

311 N.W.2d 219

104 Wis.2d 199

Jon KRUEGER, a minor, by Robert G. Lee, his Guardian ad

Litem, Earl H. Krueger, Jr. and Elizabeth A.

Krueger, Plaintiffs-Appellants, v. TAPPAN COMPANY, Defendant-Respondent.

No. 80-2084.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 6, 1981.

Opinion Released Sept. 15, 1981.

Opinion Filed Sept. 15, 1981.

Richard J. Phelan and Phelan, Pope & John, Ltd. of Chicago, Ill., and H. Robert Kilkelly and Lee Johnson, Kilkelly & Nichol, S.C., Madison, for plaintiffs-appellants.

Richard A. Hollern, Richard K. Nordeng and Thomas M. Pyper and Stafford, Rosenbaum, Rieser & Hansen, Madison, for defendant-respondent.

Before GARTZKE, P.J., and BABLITCH and DYKMAN, J.

GARTZKE, Presiding Judge.

This products liability case arises out of a fire in August 1976 in which the plaintiff-appellant, then seven years old, was severely burned. ¹ Gasoline used to clean a kitchen floor was ignited, according to plaintiff by a 1970 model Tappan gas range, which is claimed to have been defective. The trial court dismissed the complaint following a verdict finding that the range was not defective.

The theory of plaintiff's case is strict liability in tort. The issues are whether the evidence supports the verdict that the range was not defective and unreasonably dangerous; whether the court properly excluded from evidence the 1979 Tappan gas range owner's manual which warns of the danger of using flammables near lighted pilot lights; and whether the use of a 1979 publication of the United States Consumer Product Safety Commission was properly limited. We affirm the judgment dismissing the complaint.

1. Sufficiency Of Evidence

Appellate review of jury findings is limited to whether the record contains "any credible evidence that under any reasonable view supports the verdict and removes the issue from the realm of conjecture." Coryell v. Conn, 88 Wis.2d 310, 315, 276 N.W.2d 723, 726 (1979). To succeed on appeal, the appellant must show that there is such a complete failure of proof that the verdict could only be based upon speculation. Ernst v. Greenwald, 35 Wis.2d 763, 773, 151 N.W.2d 706, 711 (1967). We must view the evidence in the light most favorable to the respondent and affirm if there is any credible evidence on which the jury could have based its decision, particularly where, as here, the verdict has the approval of the trial court. Roach v. Keane, 73 Wis.2d 524, 536, 243 N.W.2d 508, 515 (1976).

Mrs. Danz used gasoline to facilitate removal of carpet backing from her kitchen floor. She set a closed gas can next to the refrigerator after taking all precautions she thought were necessary. The windows were open, no lights were on and no stove burner was lighted. She did not know that gasoline fumes sink and would not disperse through the windows, and she forgot that gas stoves have continuous pilot lights. Mrs. Danz testified that before the incident she knew the stove had three pilot lights and that she had lighted them in the past. She testified that when she used gasoline in the area of the stove she "just didn't think" about the fact that the stove had operating pilot lights. The fumes ignited and a fire resulted, burning plaintiff who was in the kitchen.

According to plaintiff's expert, the gasoline fumes were ignited by the hidden flame of one of the three pilot lights on the 1970 model Tappan gas stove. The owner's manual for the stove did not mention the existence of the three pilot lights and the dangers they presented in the presence of flammable fumes. The stove bore no such warning. In the expert's opinion, a warning on the stove was necessary to remind the consumer of the existence and location of the pilot lights and to warn of dangers in using flammables near a lighted pilot light.

On motions after verdict, the trial court found that there was ample evidence, when viewed in the light most favorable to respondent Tappan, to support the finding that the stove was not defective and in a dangerous condition. We agree.

Tappan's officer in charge of research and development was a member of the American National Standards Institute, which promotes products standards. A division of the institute consists of representatives from gas utilities and manufacturers, consumer products groups, and consumers unions, as well as home economists and government representatives. One subcommittee of that division is concerned with domestic gas ranges. Tappan's officer was a member of that subcommittee from approximately 1966 to 1976. The subcommittee creates safety and performance standards as to gas ranges, and utilizes information from stove manufacturers and utilities which install and sell gas ranges. During the period 1966 through 1970 the Tappan officer received no information from the committee of any occurrence in which a person was injured by virtue of having used a flammable liquid in a kitchen near a gas range, and at no time during that same period did he receive any such information through the Tappan organization.

Plaintiff contends that the testimony of his expert was not contradicted by any expert or even by a lay person. The jury is not bound by the opinion of an expert, however, even if the opinion is uncontradicted. Capitol Sand & Gravel Co. v. Waffenschmidt, 71 Wis.2d 227, 234, 237 N.W.2d 745, 749 (1976), citing Pautz v. State, 64 Wis.2d 469, 476, 219 N.W.2d 327, 331 (1974). As stated in Pautz, an expert's "testimony must pass through the screen of the fact trier's judgment of credibility," quoting from United States v. Pittman, 449 F.2d 623, 628 (7th Cir. 1971). The jury could well accept or reject the expert's opinion, in view of the testimony of Mrs. Danz and the defendant's director of research and development. The jury could conclude that Mrs. Danz needed no warning and that Tappan need not have foreseen that the pilot lights would be dangerous, and therefore had no duty to warn. See Restatement (Second) of Torts sec. 402A, comment j at 353 (1965), discussed later in this opinion.

Plaintiff asserts that reversal is necessary because no evidence was presented to show that the Tappan range was not defective. The burden, of course, was upon the plaintiff to establish that the gas range was defective.

2. Evidence Of Subsequent Warnings

Plaintiff offered in evidence a 1979 Tappan gas range owner's manual. The manual contains the following statement: "Do not store or use gasoline or other flammable vapors and liquids in the vicinity of this (gas range) or any other appliance." The court rejected the exhibit on grounds that it did not pertain to feasibility of a design change and the 1979 manual was too remote from the 1970 model claimed to be defective.

Plaintiff contends that the 1979 manual was admissible because it is evidence of a step taken to promote safety and proved not only the feasibility of a warning but also Tappan's knowledge of a possible danger and the lack of obviousness of the hazard.

The admissibility of post-accident remedial measures is governed by Rule 904.07, Stats., which provides in relevant part:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted....

Tappan has not denied that it was feasible for it to have given a warning in its 1970 manual or on the stove. The feasibility of a warning not being controverted, the 1979 manual is inadmissible under the plain wording of Rule 904.07, Stats.

The reason for prohibiting the admission of post-accident remedial measures to show, for example, feasibility when feasibility is uncontroverted, is stated as follows in McCormick on Evidence sec. 275 at 668-69 (2d ed. 1972):

(T)he extrinsic policy of encouraging remedial safety measures is the predominant reason for holding evidence of these measures to be privileged. It is apparent that the free admission of such evidence for purposes other than as admissions of negligence is likely to defeat this paramount policy. It is submitted that before admitting the evidence for any of these other purposes, the court should be satisfied that the issue on which it is offered is of substantial importance and is actually, and not merely formally in dispute, that the plaintiff cannot establish the fact to be inferred conveniently by other proof, and consequently that the need for the evidence outweighs the danger of its misuse. (Footnotes omitted.)

Plaintiff nevertheless contends that Chart v. General Motors Corp., 80 Wis.2d 91, 258 N.W.2d 680 (1977), establishes that evidence of a remedial change is admissible in products liability actions. Chart does not stand for so broad a proposition. Chart involved an action for injuries arising out of the defective design of an automobile. The trial court admitted evidence relating to changes in the design of later models of the automobile. The Chart court adopted the holding in Ault v. International Harvester Co., 13 Cal.3d 113, 117 Cal.Rptr. 812, 528 P.2d 1148, 1151 (1974), that "if the (design) changes occur closely in time they may well illustrate the feasibility of the improvement at the time of the accident, one of the normal elements in the negligence calculus." Chart, like Ault, was a product design case and not a product warning case. That fact was critical to the decision in Chart, where the question was whether changes illustrating the feasibility of precautionary measures are admissible in a products liability case under Rule 904.07, Stats.

The Chart court concluded that the purpose of Rule 904.07, Stats., is to exclude evidence of remedial changes "so as not to deter a potential or present defendant from...