Forsythe v. Indian River Transp. Co.

• Court: Wisconsin Court of Appeals
• Writing for the Court: BLANCHARD
• Citation: Forsythe v. Indian River Transp. Co., 344 Wis.2d 520, 822 N.W.2d 737, 2012 WI App 118 (Wis. App. 2012)
• Decision Date: 27 September 2012
• Docket Number: No. 2012AP58.,2012AP58.
• Parties: Donald L. FORSYTHE and Geraldine Forsythe, Plaintiffs–Appellants, Ocean Spray Cranberries, Involuntary–Plaintiff, v. INDIAN RIVER TRANSPORT COMPANY and State National Insurance Company, Inc., Defendants–Respondents, Brenner Tank, LLC and Caledonia Haulers, LLC, Defendants.

344 Wis.2d 520

822 N.W.2d 737

2012 WI App 118

Donald L. FORSYTHE and Geraldine Forsythe, Plaintiffs–Appellants,Ocean Spray Cranberries, Involuntary–Plaintiff,

v. INDIAN RIVER TRANSPORT COMPANY and State National Insurance Company, Inc., Defendants–Respondents,Brenner Tank, LLC and Caledonia Haulers, LLC, Defendants.

No. 2012AP58.

Court of Appeals of Wisconsin.

Sept. 27, 2012.

OPINION TEXT STARTS HEREAppeal from a judgment of the circuit court for Monroe County: J. David Rice, Judge. Affirmed in part; reversed in part and cause remanded for further proceedings.

Before LUNDSTEN, P.J., BLANCHARD and KLOPPENBURG, JJ.¶ 1BLANCHARD, J.

Donald and Geraldine Forsythe appeal a circuit court judgment dismissing their claims for negligence and strict products liability against Indian River Transport Company.¹ The claims arise out of an incident in which Donald Forsythe was injured while attempting to repair a leaking valve on a tanker truck owned and operated by Indian River. The Forsythes argue that the court erred in granting summary judgment to Indian River on their claims. We agree as to the negligence claim but not as to the strict products liability claim. Accordingly, we affirm the judgment in part, reverse it in part, and remand for further proceedings.

BACKGROUND

¶ 2 Indian River is in the business of hauling freight and food-grade liquid products. It is undisputed that Indian River owns and operates tanker trucks for this purpose.

¶ 3 The type of tanker involved in Forsythe's injury is equipped with a valve that is used in loading and unloading product. When the tanker is not being loaded or unloaded, the valve is sealed by a plunger. In order to load the truck, a worker pulls the plunger out by hand and inserts a pin into a hole in the plunger to keep the valve open.

¶ 4 Forsythe was employed by Ocean Spray on the day he was injured. He was loading liquid product into an Indian River tanker truck through the valve, using a hose-and-pump system. Indian River did not supply a pin for the valve's plunger, so Ocean Spray workers used a pin from the Ocean Spray facility to keep the valve open.

¶ 5 During the loading process, Forsythe noticed a steady stream of product leaking from the valve area. He also noticed that the plunger was unusually loose and attempted to adjust it. While he did so, the vacuum force of the valve sucked in the plunger and sheared the pin. As a result, Forsythe's left index finger was crushed and the tip of his finger severed off.

¶ 6 The Forsythes sued Indian River and other defendants for negligence and strict products liability. The circuit court dismissed their claims against Indian River on summary judgment. The court concluded, as a matter of law, that the Forsythes' negligence claim against Indian River failed because harm to Forsythe was not foreseeable, and that the Forsythes' strict products liability claim failed because Indian River is not in the business of supplying to others any product involved in the accident, but instead only uses those products to provide services.

¶ 7 The Forsythes appeal. We reference additional facts as needed below.

DISCUSSION

¶ 8 We review summary judgment de novo, applying the same methods as the circuit court. Brownelli v. McCaughtry, 182 Wis.2d 367, 372, 514 N.W.2d 48 (Ct.App.1994). Summary judgment should be granted only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Voss v. City of Middleton, 162 Wis.2d 737, 748, 470 N.W.2d 625 (1991). A genuine issue of material fact exists “if a reasonable jury could find for the nonmoving party.” See Central Corp. v. Research Prods. Corp., 2004 WI 76, ¶ 19, 272 Wis.2d 561, 681 N.W.2d 178.

¶ 9 Thus, if reasonable but differing inferences can be drawn from undisputed facts, summary judgment is inappropriate. Delmore v. American Family Mut. Ins. Co., 118 Wis.2d 510, 516, 348 N.W.2d 151 (1984). “Whether an inference is reasonable is a question of law, as is whether there is more than one reasonable inference.” Wisconsin Chiropractic Ass'n v. Chiropractic Exam. Bd., 2004 WI App 30, ¶ 33 n. 12, 269 Wis.2d 837, 676 N.W.2d 580.

¶ 10 Applying the above summary judgment standards, we first address the Forsythes' negligence claim. We then turn to their strict products liability claim.

A. Negligence

¶ 11 “Negligence is ordinarily an issue for the fact-finder and not for summary judgment.” Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶ 2, 241 Wis.2d 804, 623 N.W.2d 751. The four elements of negligence are: “(1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant's breach of the duty of care and the plaintiff's injury, and (4) actual loss or damage resulting from the injury.” Gritzner v. Michael R., 2000 WI 68, ¶ 19, 235 Wis.2d 781, 611 N.W.2d 906.

¶ 12 The parties' primary dispute regarding the Forsythes' negligence claim is not expressly framed in terms of the negligence elements, but instead in terms of whether Indian River's acts or omissions created a foreseeable risk of harm. As stated above, this was the ground on which the circuit court dismissed the negligence claim, apparently concluding that under no reasonable view of the facts, construed in the light most favorable to Forsythe, could Indian River have foreseen injury to him.

¶ 13 The issue of foreseeability has been identified as a potentially confusing area of Wisconsin's negligence case law. See Nichols v. Progressive N. Ins. Co., 2008 WI 20, ¶¶ 34–47, 308 Wis.2d 17, 746 N.W.2d 220 (identifying and explaining potential confusion as to the role of duty and foreseeability in analyzing negligence). We need not repeat the entire explanation in Nichols; it is enough for our purposes here to note the court's statement in Nichols that “ ‘[t]he test of negligence is whether the conduct foreseeably creates an unreasonable risk to others.’ ” See id., ¶ 13 (citation omitted); see also Alvarado v. Sersch, 2003 WI 55, ¶ 13, 262 Wis.2d 74, 662 N.W.2d 350 (“[A] duty to use ordinary care is established whenever it is foreseeable that a person's act or failure to act might cause harm to some other person.”).

¶ 14 The Forsythes argue that the circuit court erred because a jury could reasonably infer from the summary judgment evidence that Indian River's failure to provide a pin for the valve plunger suitable to the task created a foreseeable risk of harm, in particular a foreseeable risk of harm that a worker using the valve would be injured. Viewing the evidence in a light most favorable to the Forsythes, we agree that this is a reasonable inference from the evidence as discussed in the following paragraphs.

¶ 15 In reaching this conclusion, we focus in particular on the following evidence: Indian River employee Steve Ferguson's affidavit, Ferguson's deposition testimony, and Donald Forsythe's affidavit.²

¶ 16 Ferguson was Indian River's maintenance director for approximately twenty years, before becoming its human resources manager and acting safety director. He averred that, as maintenance director, he oversaw Indian River's equipment and the maintenance of that equipment. Ferguson also averred that the type of valve at issue on Indian River's tankers is operated by the workers at the facilities where product is being picked up or delivered.

¶ 17 At his deposition, Ferguson testified that Indian River knew and expected that Ocean Spray workers would attempt to repair by hand excessively leaking valves. He also testified that Indian River does not test its tanker valves for leakage during tanker inspections; instead, valves are repaired when workers bring valve leakage problems to Indian River's attention.

¶ 18 Ferguson additionally testified that, when workers attach the hose-and-pump system to load or unload the tanker, the valve can become dangerous. He further testified that the hole and pin are the only safety mechanism on the valves. Ferguson also testified that, if the valve that injured Forsythe had been properly pinned, Forsythe's injury would not have occurred.

¶ 19 Forsythe averred in his affidavit that his injury occurred while he was attempting to stop a leak from a valve on an Indian River tanker, and that Indian River failed to supply a pin for the valve. He also averred that newer tanker trucks come with an attached valve pin that provides a safer method for ensuring that an adequate pin is available. Forsythe also averred that, before his injury occurred, Ocean Spray workers reported problems with leaking Indian River truck valves to Indian River.

¶ 20 When we view the evidence and the reasonable inferences from that evidence in a light most favorable to the Forsythes, we agree with the Forsythes that a jury could reasonably infer that Indian River's acts or omissions created a foreseeable risk of harm. More specifically, a fact finder could reasonably infer that Indian River's failure to provide a pin for the valve plunger created a foreseeable risk of harm that a worker using the valve would be injured, particularly given the evidence that Indian River was aware at the time of the accident that workers' hands come into contact with the valve and that operation of the valve with the hose-and-pump system can, in the words of Indian River's acting safety director, make the valve “dangerous.” Stated another way, we cannot say that the only reasonable inference from the evidence, if viewed in a light most favorable to the Forsythes, is that Indian River's conduct did not create a foreseeable risk of harm.

¶ 21 We recognize, of course, that there may be competing reasonable inferences that a fact finder could draw from the evidence discussed, or from conflicting evidence in the record. But that is not the test for whether summary judgment was appropriately granted in Indian River's favor. The question is whether, viewing the evidence in a light most favorable to the Forsythes, there is a reasonable...