Gies v. Nissen Corp.

• Decision Date: 27 February 1973
• Docket Number: No. 52,52
• Citation: 204 N.W.2d 519,57 Wis.2d 371
• Parties: Mary Evelyn GIES et al., Plaintiffs, v. NISSEN CORP., a foreign corp., Defendant, Mount Mary College et al., Defendants and Third-Party Plaintiffs-Appellants, C. A. Burghardt & Sons, a Wisconsin corp., Third-Party Defendant-Respondent, Milwaukee Sporting Goods Co., Third-Party Defendant.
• Court: Wisconsin Supreme Court

Page 519

204 N.W.2d 519

57 Wis.2d 371

Mary Evelyn GIES et al., Plaintiffs, v. NISSEN CORP., a foreign corp., Defendant Mount Mary College et al., Defendants and Third-Party Plaintiffs-Appellants C. A. Burghardt & Sons, a Wisconsin corp., Third-Party Defendant-Respondent Milwaukee Sporting Goods Co., Third-Party Defendant.

No. 52.

Supreme Court of Wisconsin.

Feb. 27, 1973.

Borgelt, Powell, Peterson & Frauen, Milwaukee, for appellants; Kurt H. Frauen and Thomas N. Klug, Milwaukee, of counsel.

Kluwin Dunphy, Hankin & Hayes, Milwaukee, for respondent; Norman J. Baker, Milwaukee, of counsel.

CONNOR T. HANSEN, Justice.

We set forth the facts pertinent to this appeal. Plaintiffs, Mary Evelyn Gies and her mother, Mary J. Gies, brought suit against the defendants and third-party plaintiffs--appellants, Mount Mary College and Colleen Jacobson, and the defendant, Nissen Corporation. This action seeks to recover damages for personal injuries sustained by the plaintiff, Mary Evelyn Gies, while performing on a trampoline at a time when she was a student at Mount Mary College. Colleen Jacobson was the instructor of the gym class during which the plaintiff, Mary Evelyn Gies, was injured. Nissen Corporation was the manufacturer of the trampoline.

Plaintiffs alleged that the injuries suffered by the plaintiff, Mary Evelyn Gies, were caused by the negligence of the defendant. The complaint states that the defendant Mount Mary College was negligent in failing to properly instruct, supervise or control their student activities; in failing to provide the necessary safety devices; in failing to warn their students and the students' parents as to the inherent dangers involved in using such equipment; in requiring the plaintiff, Mary Evelyn Gies, to participate, knowing she was incapable of performing the activity, and in failing to offer an alternative activity; in furnishing an unqualified instructor; and in permitting the use of a defective trampoline. Defendant, Colleen Jacobson, is alleged to be negligent in her manner and method of conducting the activities upon the trampoline. Plaintiffs further alleged that Nissen Corporation was negligent in misrepresentations as to the trampoline's safety; in failing to give adequate warnings as to the trampoline's safety; in failing to furnish adequate instructional material; in failing to design the trampoline so as to prevent such injury; and in failing to provide and instruct, at the time of sale, as to the necessary safety equipment.

February 4, 1970, answer was filed by appellants denying all allegations of negligence and alleging, as an affirmative defense, the negligence of the plaintiff, Mary Evelyn Gies.

Burghardt is a corporation engaged in the business of selling, at retail, sporting goods equipment. Approximately nine years before Mary Evelyn Gies was injured, Burghardt sold the trampoline to Mount Mary College.

November 9, 1970, the appellants moved for an order impleading Burghardt as third-party defendant, alleging indemnification, breach of warranty and/or contribution. The motion was granted. After certain motions by Burghardt, not relevant to this appeal, and on March 16, 1971, appellants served a 'third-party complaint' ¹ on Burghardt. This complaint was filed March 23, 1971.

March 11, 1971, the plaintiffs filed an amended complaint naming Burghardt as a party-defendant to the original action. In addition to the allegations of negligence as to the defendant, Nissen Corporation, and appellants, Mount Mary College and Colleen Jacobson, as previously stated, the complaint alleged that Burghardt was negligent in certain misrepresentations as to the trampoline's safety; in selling the trampoline without adequate warnings as to the danger in the use thereof; in failing to furnish adequate instructional material; in selling a defective trampoline; and in failing to provide adequate safety equipment and instructions as to their use.

August 23, 1971, Burghardt's answer to plaintiffs' amended complaint was filed denying liability for any injuries suffered by the plaintiff, Mary Evelyn Gies.

September 1, 1971, Burghardt moved for summary judgment to dismiss plaintiffs' amended complaint as to Burghardt. Notice of this motion and time of hearing was given to all parties, including the appellants. An affidavit of Carl A. Burghardt, president of Burghardt, was filed in support of said motion for summary judgment. No affidavits were filed by the plaintiffs or the appellants in opposition to Burghardt's motion for summary judgment.

September 13, 1971, following the submission of briefs and a hearing at which all parties, including the appellants, appeared, the trial court granted the motion of Burghardt for summary judgment dismissing the complaint of the plaintiffs as to Burghardt. Judgment was entered October 8, 1971. No appeal was taken from this judgment.

September 20, 1971, Burghardt, as 'third-party' defendant, moved for summary judgment to dismiss the 'third-party complaint' of the appellants. For the purpose of the motion, appellants' complaint was treated as a cross complaint for contribution and/or indemnity. The affidavit of Carl A. Burghardt was again filed in support of the motion, and affidavits by the appellants were filed in opposition thereto. Appellants also filed a motion for default judgment against Burghardt for failing to file a responsive pleading to the 'third-party complaint.'

January 11, 1972, the trial court ordered that the motion of Burghardt for summary judgment be granted, dismissing appellants' 'third-party complaint' on its merits, and denied appellants' motion for default judgment. Judgment was entered January 24, 1972. The appellants have appealed from this judgment. The plaintiffs, Mary Evelyn Gies and Mary J. Gies, are not parties to this appeal.

ISSUE.

The dispositive issue on the appeal is whether the prior judgment, granting Burghardt's motion for summary judgment against the plaintiffs and dismissing their complaint as to it, is res judicata and determinative of all issues raised in Burghardt's subsequent motion for summary judgment as to the 'third-party complaint' of the appellants.

In granting Burghardt's motion against the plaintiffs for summary judgment and dismissing their complaint as to Burghardt, the trial court determined that Burghardt, as the retailer and seller of the trampoline, did not cause and owed no liability to the plaintiffs for the injuries they sustained. No appeal was taken from this judgment and the time for such has now run. What effect this prior judgment has upon the issues raised in appellants' 'third-party complaint' must be determined on this appeal.

Appellants, after alleging various negligent acts and omissions on the part of Burghardt, including furnishing a defective trampoline, alleged that in the event it was found at trial that they sustained any liability to the plaintiffs and that said liability arose out of the condition of the trampoline or related equipment or of any acts or omissions with regard to the operation and use thereof, that they would be entitled to contribution from Burghardt toward the amount of any such liability.

Under the amended complaint of the plaintiffs, the appellants and Burghardt were alleged to be joint tort-feasors. One alleged to be a joint tort-feasor may by cross complaint have the issue of contribution settled in the same action which determines the liability to the plaintiffs. Michel v. McKenna (1929), 199 Wis. 608, 227 N.W. 396. The relief demanded is that in the event the defendants are found to be jointly guilty of actionable negligence, and the appellants pay the judgment, that the defendant, Burghardt, be required to pay its proportionate share of the judgment to the appellants. It is well settled that common liability to a third person is an essential element of contribution. Bauman v. Gilbertson (1959), 7 Wis.2d 467, 96 N.W.2d 854; Neuser v. Thelen (1932), 209 Wis. 262, 244 N.W. 801; Michel v. McKenna, supra.

The issue presented in this case is whether the trial court's finding, upon the summary judgment motion of Burghardt against the plaintiffs' complaint, that Burghardt is not liable to the plaintiffs, is determinative of the issue of contribution between the codefendants, Burghardt and the appellants, on Burghardt's subsequent motion for summary judgment to dismiss the cross complaint of the appellants.

Appellants correctly argue that joint liability is based upon the facts as they existed at the time of the accident and not at the time one tort-feasor seeks contribution from another tort-feasor. ² However, this general statement is of no avail to the appellants.

It is evident that the trial court based its dismissal of plaintiffs' amended complaint as to Burghardt upon the fact that Burghardt was not liable to the plaintiffs at the time of the accident, and that the dismissal was not based upon a defense of Burghardt arising subsequent to the accident. We reach this conclusion after examination of Burghardt's affidavit in support of their motion for summary judgment to dismiss the plaintiffs' amended complaint and the trial court's decision upon Burghardt's motion for summary judgment to dismiss appellants' cross complaint. Thus, as to the injuries sustained by the plaintiffs, the trial court determined that no liability ever existed as to Burghardt. Therefore, such a judgment, if binding upon the appellants would defeat their claim for contribution.

In determining the criteria for the application of the doctrines of res judicata and collateral estoppel to subsequent actions between codefendants as to their liability inter se where in a prior action they were jointly sued for the injury to another person, it is generally held that a prior judgment is not conclusive in the subsequent action unless the codefendants occupied adversary positions in the prior action and actually litigated therein the issue of their liability...