Greiten v. LaDow

• Decision Date: 25 November 1975
• Docket Number: No. 555,555
• Citation: 235 N.W.2d 677,70 Wis.2d 589
• Parties: Allan GREITEN and Marion Greiten, his wife, Appellants, v. Arthur LaDOW a/k/a Art Ladow, d/b/a B & B Erectional Maintenance Service, Respondent. (1974).
• Court: Wisconsin Supreme Court

Page 677

235 N.W.2d 677

70 Wis.2d 589

Allan GREITEN and Marion Greiten, his wife, Appellants, v. Arthur LaDOW a/k/a Art Ladow, d/b/a B & B Erectional Maintenance Service, Respondent.

No. 555 (1974).

Supreme Court of Wisconsin.

Nov. 25, 1975.

While working for the Phillip Lithographing Company, the plaintiff-appellant, Allan Greiten, was injured on April 15, 1970. The plaintiff-appellant at the time of his injury was working with a printing press with the paper inserted at the feeder end and coming off the press at the delivery end. At the delivery end was a device called a retractable board holder, designed and installed by the defendant-respondent, Arthur LaDow. It consisted of two parallel angle irons, supported by four air cylinders which were mounted on brackets, and it was located directly below the delivery end of the press. The purpose of the angle irons was to support a plywood board so that printed material coming off the press would be deposited on the plywood board. By use of an electrical switch, mounted on the press, power was turned on and the pistons emanating from four air cylinders (two on each angle iron) would become energized from a solenoid valve and push the angle irons out to an extended position. If the power was turned off, or failed, the angle irons would retract and the plywood board and any paper on it would drop a minimal distance onto the wooden skid of the press. At the time of the accident the crew working on the press was changing a loaded skid. A hand truck had been pushed under the skid and had become stuck. When plaintiff-appellant reached under the skid to shake the hand truck loose, a circuit breaker, which controlled the circuit that the board holder device was on, opened and cut off the electricity, causing the angle irons to retract and the plywood board and paper to fall on the head of the plaintiff.

Plaintiff-appellant was entitled to receive workmen's compensation benefits from his employer, Phillip Lithographing Company, but sues, in a third-party action, the defendant, Arthur LaDow, for damages based on breach of duty to design without defect. The case was submitted to the jury on a negligence theory. The jury returned a verdict finding defendant LaDow 80 percent negligent; Phillip Lithographing Company 15 percent negligent; and Allan Greiten 5 percent negligent. Total damages found by the jury were $16,066.41. The trial court had reserved ruling on the motion for directed verdict made by defendant LaDow, and then granted such motion and entered judgment dismissing the action. Plaintiff appeals.

Shneidman & Myers, Milwaukee, for appellants; Michael J. Skwierawski, Milwaukee, of counsel.

Prosser, Wiedabach, Lane & Quale, S. C., Milwaukee, for respondent; David M. Quale, Milwaukee, of counsel.

ROBERT W. HANSEN, Justice.

Injured while working on a printing press for his employer, plaintiff started this action against the manufacturer and designer of the angle iron device attached to the press, alleging a defect in design of the device. ¹ Ordinarily, one would expect this to be a products-liability case. However, this approach would require the plaintiff to establish not only a defect in design but that such defect 'was unreasonably dangerous to the user or consumer.' ² Seeking to avoid this precondition to recovery, plaintiff brought and tried this case on the basis of negligence, claiming a breach of a duty to design without defect. This can be done, ³ but the threshold question is, whether, by so doing, the plaintiff has escaped the requirement that he establish that the product contained a defect that was 'unreasonably dangerous.'

The answering of this question requires review of exactly what this court did do and did not do in the case of Dippel v. Sciano, supra. As had been done earlier in negligence cases, ⁴ the Dippel holding abolished the requirement of privity of contract in breach of implied warranty cases. ⁵ Dippel extended the liability of the manufacturer of a product to situations where no privity of contract existed. It went further to reject the contention that the liability of the seller of a defective product is not negligence holding that '. . . it is much more akin to negligence per se.' ⁶ What was accomplished by the majority holding was capsulized in a concurring opinion by the Honorable Justice HALLOWS, as meaning that a seller who meets the conditions laid down for liability is '. . . guilty of negligence as a matter of law and such negligence is subject to the ordinary rules of causation and the defenses applicable to negligence.' ⁷ The holding in Dippel places products-liability cases in this state in the field of negligence, no longer in the field of contractual rights and duties.

The Dippel holding of products-liability in this state to be 'more akin to negligence per se' than to breach of contract leaves little room to argue that a breach-of-implied-warranty approach requires proof of an unreasonably dangerous defect, while a breach-of-duty-to-design approach does not require the identical precondition to recovery. If room there ever was, it vanished with the holding in the 1975 swimming pool case ⁸ where this court held: 'However, even under negligence law, the plaintiff still must prove that the product causing the injury was dangerous and defective,' ⁹ and added, 'Thus, the test in Wisconsin of whether a product contains an unreasonably dangerous defect depends upon the reasonable expectations of the ordinary consumer concerning the characteristics of this type of product.' ¹⁰ It follows that the preconditions for plaintiff recovery, laid down in Dippel, apply in a products-liability case whether the claim is one of breach-of-implied-warranty or a breach-of-duty-to-design. Thus, if this plaintiff did not establish that the alleged defect in design 'was unreasonably dangerous to the user or consumer,' he cannot recover.

With proof of an unreasonably dangerous defect a precondition to recovery, we search the record and find that nowhere is there direct testimony as to such degree of danger. The expert wintess for the plaintiff was not asked whether the device, as manufactured and installed, was unreasonably dangerous, or dangerous at all. He did not state that it was. He did state that there were theoretical alternatives as to design that he would consider to have greater operational and safety effectiveness. But proof offered by the plaintiff stopped at the claimed availability of different and allegedly superior methods of design. The testimony of an expert witness that he would have designed the device differently does not meet the precondition to recovery of establishing that the device, as manufactured and installed, was unreasonably dangerous to the user or consumer.

Even in the absence of contention or direct testimony as to danger plus defect, the trial court went further to analyze the entire record and to conclude that, under no view of the testimony could a finding be made that the device as manufactured and installed was unreasonably dangerous. Three factors were given weight. The first factor given consideration by the trial court was the matter of the theoretical alternatives as to design suggested by the expert witness for the plaintiff. The trial judge analyzed in detail each suggested alternative method of design, and found each '. . . fraught with the possibility of exposing one, working near the device, to serious injury.' The trial court concluded that the alternatives suggested, theoretical in nature, did not '. . . appeal to reason or good common sense.' The trial judge further concluded that '. . . the substance of Richardson's (the plaintiff's expert) testimony does not establish a defectively designed product within the meaning of the law.' Clearly, it did not. The second factor, considered by the trial court to be relevant, but not controlling, was the fact that there had been no prior accidents since the device was installed, a period of six years of daily use. This was a relevant factor, properly considered. ¹¹ The third factor considered by the trial court was the matter of foreseeability of the danger by the maker of the device. This was a relevant factor. ¹² The trial court held that the maker of the device could not on this record be found obliged to foresee '. . . the most unusual and highly coincidental circumstances that had to be present for somebody to be injured in the manner Greiten was.' The trial court found no other evidence in the record from which it could be reasonably inferred that the evidence did not function '. . . efficiently and safely for the very purpose for which it was designed and used.' ¹³

The test on appeal of a trial court's granting a motion for directed verdict is whether the trial court was clearly wrong. ¹⁴ As to the holding of the trial court here that the alternatives as to design suggested by the plaintiff were fraught with greater dangers than the design used and as to the foreseeability of the injury under these circumstances, we cannot hold that the trial court was clearly wrong. As to the trial court conclusion that the plaintiff here failed to meet the precondition to recovery of establishing that the product as designed was unreasonably dangerous, we hold that the trial court was clearly right.

Judgment affirmed.

HEFFERNAN, Justice (concurring).

I agree with the majority's conclusion that, under any theory of liability, the plaintiff should be denied recovery. I consider unfortunate, however, the interjection of Restatement 2d, Torts 2d, sec. 402 A standards, page 347, as modified by this court in Dippel v. Sciano (1967), 37 Wis.2d 443, 155 N.W.2d 55, in this negligence case.

This case was brought on a theory of negligence, not strict liability. Plaintiff alleged that the defendant was careless and negligent in the design and manufacture of the machine and that such negligence was the proximate cause of the accident and of the...