Fuchsgruber v. Custom Accessories, Inc.

• Decision Date: 02 July 2001
• Docket Number: No. 98-2419.,98-2419.
• Citation: 2001 WI 81,244 Wis.2d 758,628 N.W.2d 833
• Parties: Anthony FUCHSGRUBER, Cynthia Fuchsgruber, Aurora Health Care, Inc., Lewis Sullivan, Secretary of HHS and United States Attorney Melvin Washington, United States Department of Justice, Plaintiffs-Respondents, v. CUSTOM ACCESSORIES, INC. and Zurich-American Insurance Company, Defendants-Appellants, CHINA INTERNATIONAL AERO-TECHNOLOGY IMPORT AND EXPORT CORPORATION, The Whitlock Corporation, ABC Insurance Company, The Travelers Insurance Company and Compcare Health Services Insurance Corporation, Defendants.
• Court: Wisconsin Supreme Court

244 Wis.2d 758

2001 WI 81

628 N.W.2d 833

Anthony FUCHSGRUBER, Cynthia Fuchsgruber, Aurora Health Care, Inc., Lewis Sullivan, Secretary of HHS and United States Attorney Melvin Washington, United States Department of Justice, Plaintiffs-Respondents, v. CUSTOM ACCESSORIES, INC. and Zurich-American Insurance Company, Defendants-Appellants, CHINA INTERNATIONAL AERO-TECHNOLOGY IMPORT AND EXPORT CORPORATION, The Whitlock Corporation, ABC Insurance Company, The Travelers Insurance Company and Compcare Health Services Insurance Corporation, Defendants.

No. 98-2419.

Supreme Court of Wisconsin.

Oral argument January 30, 2001.

Decided July 2, 2001.

For the defendants-appellants there were briefs by Stanley J. Lowe and White & Lowe, Waukesha, and oral argument by Stanley J. Lowe.

For the plaintiffs-respondents there was a brief by Michael W. Fleming and Law Offices of Michael W. Fleming, S.C., Milwaukee, and oral argument by Michael W. Fleming.

An amicus curiae brief was filed by William C. Gleisner, III, and Law Officers of William C. Gleisner, Milwaukee, and Rhonda L. Lanford and Habush, Habush, Davis & Rottier, S.C., Madison, and oral argument by Lynn R. Laufenberg and Laufenberg Law Offices S.C., West Allis, on behalf of the Wisconsin Academy of Trial Lawyers.

¶ 1. DIANE S. SYKES, J.

The question in this case is whether the 1995 amendment to the comparative negligence statute, Wis. Stat. § 895.045(1) (1999-2000),¹ applies to strict product liability actions. The answer is no.

¶ 2. Strict liability for injuries caused by defective and unreasonably dangerous products, as adopted by this court in Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967), is liability in tort, not liability for negligence. The Dippel adaptation of the comparative negligence statute to product liability theory was a conceptual expedient intended to ensure the availability of the defense of contributory negligence in the newly-recognized tort doctrine of strict product liability.

¶ 3. Although Dippel analogized strict product liability to negligence per se, it did not establish the tort as a species of negligence such that the comparative negligence statute applies to require a comparison of the plaintiff's negligence to the defendant's, as in an ordinary negligence action. Rather, the comparison in a product liability action is plaintiff-to-product, and secondarily, in multiple defendant cases, the defendants to each other, for purposes of contribution. As such, the 1995 amendment to the comparative negligence statute—codifying the requirement that the negligence of the plaintiff is compared against the separate rather than the combined negligence of the defendants, and modifying joint and several liability in negligence cases—does not apply to strict product liability actions.²

I

¶ 4. Anthony Fuchsgruber purchased a Model 58887 Hydraulic Jack at the Whitlock Auto Parts store in St. Francis, Wisconsin. The jack was manufactured by China International Aero-Technology Import and Export Corporation, which sold the jack to Custom Accessories, Inc., which in turn sold it to Whitlock. The jack had originally been shipped in a shrink-wrapped box with the handle detached. When Fuchsgruber bought it, the box was secured by staples, but no shrink wrap. Some weeks after making the purchase, Fuchsgruber opened the box, grabbed the jack by its handle (which was now attached), and attempted to life it out of the box. The handle broke, injuring him.

¶ 5. Fuchsgruber sued China International, Custom Accessories and Whitlock (the manufacturer, distributor, and retailer, respectively). He alleged theories of negligence and strict product liability. He was unable, however, to obtain service of process on China International, and Whitlock had previously filed for bankruptcy. Custom Accessories and its insurer, therefore, were the only viable defendants in the case.

¶ 6. Fuchsgruber had the jack examined by an engineering expert who concluded that the handle broke because of a manufacturing defect. The expert did not criticize the design of the jack, its packaging, or the written materials that accompanied it, but did say it would have been better to ship the jack with the handle detached rather than attached. ¶ 7. Custom Accessories moved for summary judgment, claiming that the 1995 amendment to the comparative negligence statute, Wis. Stat. § 895.045(1), required dismissal. Custom Accessories argued that the new statute required comparison of Fuchsgruber's contributory negligence separately against each defendant in the chain of distribution, rather than against the product, as is usually the case in product liability actions. Further, Custom Accessories argued that, based upon Fuchsgruber's expert's opinion, no reasonable jury could possibly find that it was more than 51 percent causally negligent, and so the new statute's elimination of joint and several liability for defendants found less than 51 percent negligent required dismissal.

¶ 8. Fuchsgruber argued that the 1995 amendment to the comparative negligence statute did not apply to strict product liability claims. The Milwaukee County Circuit Court, the Honorable Lee E. Wells, agreed, and denied the motion for summary judgment. Custom Accessories successfully sought leave to file an interlocutory appeal, and the court of appeals certified the case to us.

II

[1, 2]

¶ 9. We review a circuit court's decision on a motion for summary judgment independently, applying the same methodology as the circuit court. Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 536, 563 N.W.2d 472 (1997). A motion for summary judgment is granted when the pleadings and supporting materials establish that there is no genuine issue of material fact in dispute and the moving party is entitied to judgment as a matter of law. Id. at 537; see also Wis. Stat. § 802.08(2).

[3, 4]

¶ 10. The circuit court denied summary judgment, rejecting Custom Accessories' interpretation of the amended Wis. Stat. § 895.045(1). We review questions of statutory interpretation de novo. Nelson v. McLaughlin, 211 Wis. 2d 487, 495, 565 N.W.2d 123 (1997). Statutory interpretation begins with—and, absent ambiguity, is confined to—the language of the statute, and that language, with the exception of specifically defined or technical terms, is given its ordinary and accepted meaning. Id.

¶ 11. Custom Accessories argues that the legislature's enactment of 1995 Wis. Act 17, § 1, amending the comparative negligence statute, Wis. Stat. § 895.045(1), brought about a change in the doctrine of strict product liability as adopted by this court in Dippel. Custom Accessories contends that the new statute, as applicable to product liability cases, operates to protect from liability a defendant who is merely an "innocent member of the chain of distribution," who did nothing to cause or contribute to the defective condition of the product. We disagree.

¶ 12. The amended comparative negligence statute provides as follows:

(1) COMPARATIVE NEGLIGENCE. Contributory negligence does not bar recovery in an action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51% is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51% or more shall be jointly and severally liable for the damages allowed.

Wis. Stat. § 895.045(emphasis added).

¶ 13. The 1995 amendment had two apparent purposes: 1) the codification of the pre-existing requirement in negligence actions that, where there are multiple defendants, a plaintiff's negligence is compared against the separate rather than the combined negligence of the defendants for purposes of determining liability;³ and 2) the modification of joint and several liability. As to the latter, under the new statute, only a defendant found 51 percent or more causally negligent can be jointly and severally liable for a plaintiff's total damages (adjusted for any contributory negligence). The liability of a defendant whose causal negligence is less than 51 percent is limited to the percentage of causal negligence attributed to that defendant.

¶ 14. On the face of it, there is nothing in the language of the statutory amendment to indicate that it was intended to work a change in product liability law, as distinct from ordinary negligence law. Dippel adopted the rule of strict liability as set forth in the Restatement (Second) of Torts § 402(A) (1965) for use in product liability cases in this state. Under Dippel, pursuant to § 402(A), a plaintiff alleging a claim for strict product liability must prove the following five elements:

(1) that the product was in defective condition when it left the possession or control of the seller,

(2) that it was unreasonably dangerous to the user or consumer,

(3) that the defect was a cause (a substantial factor) of the plaintiff's injuries or damages,

(4) that the seller engaged in the business of selling such product or, put negatively, that this is not an isolated or infrequent transaction not related to the principal business of the seller, and

(5) that the product was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was when he sold it.

Dippel, 37 Wis. 2d at 460.

[5, 6]

¶ 15. Strict product liability theory allows recovery where, although there is no proof of...