Arbet v. Gussarson

• Decision Date: 04 February 1975
• Docket Number: No. 462,462
• Parties: Jane ARBET et al., Appellants, v. Mark GUSSARSON et al., Defendants, American Motors Corp., Respondent.
• Court: Wisconsin Supreme Court

Page 431

225 N.W.2d 431

66 Wis.2d 551

Jane ARBET et al., Appellants, v. Mark GUSSARSON et al., Defendants, American Motors Corp., Respondent.

No. 462.

Supreme Court of Wisconsin.

Feb. 4, 1975.

Habush, Gillick, Habush, Davis & Murphy, Milwaukee, for appellants; Howard A. Davis, Milwaukee, of counsel.

Schoone, McManus, Hanson & Grady, S.C., Racine, for respondent; Kevin M. O'Donnell and Leah M. Lampone, of counsel.

WILKIE, Chief Justice.

This is a 'crashworthiness' products liability case arising from an automobile accident in which plaintiffs-appellants, Jane and Raymond Arbet were burned following the rupture of their vehicle's gasoline tank and ignition of the fuel. The Arbets sued defendant Mark Gussarson, the driver of the car that rear-ended their car, and defendant-respondent American Motors Corporation, the manufacturer of the Arbets' car. Gussarson is not a party to this appeal. The Arbets allege American Motors negligently designed and manufactured their car and that such negligence, while not causing the collision itself, did proximately cause the burn injuries. The trial court sustained American Motors' demurrer to plaitniffs' second amended complaint and judgment was entered accordingly. Plaintiffs appeal and we reverse.

The sole issue raised by this appeal is whether an automobile manufacturer may incur liability for injuries to occupants of a car arising from the manufacturer's negligence in designing the car such that it is unreasonably unsafe in an accident.

We conclude that the automobile manufacturer may, and we therefore uphold the complaint as against the demurrer of American Motors Corporation.

The second amended complaint alleges the following facts: On February 15, 1972, in Kenosha county, Raymond Arbet was driving and his wife Jane was a passenger in a 1967 Rambler Station Wagon that the couple had purchased new directly from American Motors. Raymond was waiting to make a left turn when the allegedly intoxicated defendant Gussarson allegedly negligently rammed his car into the rear of the Arbets' car. The sequence of events following the collision was as follows: The front seat failed, causing Jane Arbet to be propelled into the rearmost portion of the station wagon; all four doors jammed 'blocking all possibility of normal exit,' and preventing Raymond, who apparently escaped through a window, from quickly freeing his wife. The gas tank ruptured, spreading gasoline on the highway that was ignited by an unknown source; the heat from the fire melted a gas line 'plastic vent container in the passenger compartment' causing fire inside the car, severely burning Jane Arbet and also burning Raymond as he tried to free his wife. The complaint then alleges that 'neither plaintiff would have been injured by the fire if the station wagon had not been negligently designed.'

The second amended complaint attempts to state causes of action against American Motors based upon ordinary negligence and upon strict liability. ¹ The complaint contains substantially similar allegations of negligent conduct to support both theories: (1) design of the gas tank so that it would completely rupture following impact, despite feasible means within the then-existing state of the art to build a gas tank that would retard leakage upon impact; (2) design of body and frame resulting in buckling and jamming of doors upon impact; (3) use of plastic breather mechanism retaining gasoline in passenger compartment where plastic could melt from heat from fire below vehicle, thus spreading gasoline inside car. The plastic mechanism was allegedly only used on 1967 Rambler three-seater station wagons and was subsequently replaced with a breather that would not retain gasoline in the passenger compartment; (4) failure to properly manufacture and inspect to insure that cars sold were not unreasonably dangerous; (5) failure to test and to establish quality controls to insure that the plastic breather mechanism would operate properly; (6) failure to warn potential users of the car of the above hidden dangers in the event of a collision. In addition, to support the strict liability theory the complaint alleges the car was defective and unreasonably dangerous, that American Motors was in the business of selling automobiles, and that the car was expected to and did reach the Arbets in substantially the same condition as when it was sold. The complaint seeks total damages of $2,550,000.

This complaint states a cause of action for strict liability under Wisconsin products liability law.

The doctrine of strict products liability under sec. 402A of the Restatement of Torts 2d ² was first adopted by this court in Dippel v. Sciano ³ and was most recently restated in Powers v. Hunt-Wesson Foods, Inc. ⁴ Under this doctrine, where plaintiff shows that a manufacturer markets a product in a 'defective condition' which is 'unreasonably dangerous to the user,' the manufacturer then has the burden to prove lack of negligence.

In the instant case, plaintiffs primarily allege that the car was defectively designed so that it was unreasonably dangerous in an accident. Plaintiffs do not ask that cars be built like Sherman tanks; rather, merely that they not contain design features rendering them unreasonably unsafe in an accident.

There is no question that the complaint alleges facts showing the car to be 'unreasonably dangerous' in an accident--particularly the allegations concerning the plastic apparatus retaining gasoline in the passenger compartment indicate unreasonable danger.

The fact that the defect relates to design rather than negligent manufacture makes no difference. In Schuh v. Fox River Tractor Co. ⁵ this court held that a manufacturer could be liable under a strict products liability theory where it had designed a machine such that it was unreasonably dangerous. The plaintiff had tried the case under the theory that the defendant manufacturer had located the clutch lever on a crop blower machine in a place where the machine operator might be misled as to the lever's function. This court held that plaintiff had sustained his burden of proof that this design was unreasonably dangerous within the meaning of sec. 402A of the Restatement:

'We are of the opinion that there is credible evidence upon which the jury could find that the positioning of the lever was unusual and misleading. There is credible evidence that the location of the clutch lever contradicted the custom and practice of other manufacturers, who designed their machines in accordance with the accepted functional design engineering rule explained by Dr. Wardle. The jury could well have concluded that the placement of this lever could lead a potential user of the machine to believe he was stopping both the auger and the fan when he pulled the lever. In the absence of a warning to the contrary, the jury could well conclude that the machine was unreasonably dangerous and defective in its design by locating the control lever in such a misleading position without an appropriate warning.' ⁶

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 a case where a plaintiff sues the manufacturer of a Volkswagen and complains that the car was designed too small to be safe. Such a defect could hardly be said to be hidden. To be an 'unreasonably dangerous' defect for strict products liability purposes, comment i to sec. 402A, Restatement, 2 Torts 2d, says in part:

'. . . The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.'

Thus, under this definition, 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.

Additionally it is not important that the defect did not actually cause the initial accident, as long as it was a substantial factor in causing injury as alleged in plaintiffs' complaint. As this court held in Schnabl v. Ford Motor Co.: ⁷

'. . . Appellant is not suing for total injuries, but for the death alleged to have been caused by the incremental injury which occurred because of the faulty seat belt.

'This court has held that 'The test of cause in Wisconsin is whether the defendant's negligence was a substantial factor in contributing to the result.' It need not be the sole factor, the primary factor, only 'a substantial factor.' Whether the delivery in Wisconsin of a faulty seat belt could have been a substantial factor in causing the death of deceased, even if it played no part in the accident, is a question of fact to be determined by the trier of fact.'

Defendant argues that there can be no liability here because plaintiffs misused the car, i.e. cars were not intended to be 'used' to have an accident. Defendant argues that even though accidents are foreseeable, that does not establish a duty on the part of the manufacturer to design a reasonably safe car.

For two reasons, however, defendant is wrong. First, plaintiffs did not misuse the car. They did not intentionally have an accident or use the car to knock down trees in a forest. The accident occurred while plaintiffs were using the car for the purpose for which it was intended, normal driving on the highway. Second, even if the plaintiffs did misuse the car, that would not ipso facto defeat their claim if the misuse, or risk of an accident, was reasonably foreseeable. Clearly the risk that a car may be in a rear-end accident is reasonably foreseeable by defendant. Therefore, defendant has a duty to anticipate...