Haase v. Badger Mining Corp.

• Decision Date: 02 July 2004
• Docket Number: No. 02-1681.,02-1681.
• Citation: 2004 WI 97,682 N.W.2d 389,274 Wis.2d 143
• Parties: Laverne HAASE, Plaintiff-Appellant-Petitioner, Larry BRAATZ, Norb Braun, Fidel Castillo, Gregory Ebel, Lawrence Ferge, Leon Fuerst, Carol Guyette, Estate of Ray Guyette, David Hamilton, Floyd Hanson, Jerald Heuer, Daniel Janiak, Rick Knudsen, Wesley Kupsky, Sr., James Mohrman, James Maroney, Terry Olejnik, Robert Parry, Donald Quaintance, Delores Radtke, Estate of Marvin Radtke, Candelario Rodriguez, Dale Sittman, Alois Steger, John Stilp, William Surprise, Jacob Vertz, Richard Weber and Arthur Zinkel, Plaintiffs, v. BADGER MINING CORPORATION, Defendant-Respondent, MINE SAFETY APPLIANCES COMPANY, Minnesota Mining & Manufacturing, North Safety Products Company, The Norton Company, Textron Inc., Liberty Mutual Insurance Company, Travelers Casualty and Surety, American Optical Corporation, Dalloz Safety Inc. and Employers Insurance Company of Wausau, Defendants.
• Court: Wisconsin Supreme Court

274 Wis.2d 143

2004 WI 97

682 N.W.2d 389

Laverne HAASE, Plaintiff-Appellant-Petitioner, Larry BRAATZ, Norb Braun, Fidel Castillo, Gregory Ebel, Lawrence Ferge, Leon Fuerst, Carol Guyette, Estate of Ray Guyette, David Hamilton, Floyd Hanson, Jerald Heuer, Daniel Janiak, Rick Knudsen, Wesley Kupsky, Sr., James Mohrman, James Maroney, Terry Olejnik, Robert Parry, Donald Quaintance, Delores Radtke, Estate of Marvin Radtke, Candelario Rodriguez, Dale Sittman, Alois Steger, John Stilp, William Surprise, Jacob Vertz, Richard Weber and Arthur Zinkel, Plaintiffs, v. BADGER MINING CORPORATION, Defendant-Respondent, MINE SAFETY APPLIANCES COMPANY, Minnesota Mining & Manufacturing, North Safety Products Company, The Norton Company, Textron Inc., Liberty Mutual Insurance Company, Travelers Casualty and Surety, American Optical Corporation, Dalloz Safety Inc. and Employers Insurance Company of Wausau, Defendants.

No. 02-1681.

Supreme Court of Wisconsin.

Oral argument April 26, 2004.

Decided July 2, 2004.

For the plaintiff-appellant-petitioner there were briefs by Brian Hamill, Ronald L. Lampe and Dempsey, Williamson, Young, Kelly & Hertel, LLP, Madison; and Louis L. Plotkin, Rodney P. Vincent and Gertler, Gertler, Vincent & Plotkin, LLP, New Orleans, LA, and oral argument by Louis L. Plotkin.

For the defendant-respondent there were briefs by Michael J. Cohen, Catherine R. Grogan and Meissner Tierney Fisher & Nichols, S.C., Milwaukee; and Cathy R. Gordon and Swartz Campbell LLC, Pittsburgh, PA, and oral argument by Cathy R. Gordon. An amicus curiae brief was filed by Jeffrey O. Davis, Nora M. Platt, O. Thomas Armstrong and Quarles & Brady LLP, Milwaukee, on behalf of Wisconsin Manufacturers & Commerce.

An amicus curiae brief was filed by Tene S. Davis and Shook, Hardy & Bacon, L.L.P., Kansas City, MO; and Victor E. Schwartz, Leah Lorber, Kimberly D. Sandnr and Shook, Hardy & Bacon, L.L.P., Washington, D.C., on behalf of Coalition for Litigation Justice, Inc.

¶ 1. ANN WALSH BRADLEY, J.

The petitioner, Laverne Haase, seeks review of a decision of the court of appeals that affirmed an order of the circuit court dismissing his products liability claim against Badger Mining Corporation.¹ Haase contends that the court of appeals erred in adopting and applying Restatement (Third) of Torts § 5 (1998) and using it as the basis to defeat his strict liability claim. Additionally, he maintains that he presented sufficient evidence for a strict liability claim under Restatement (Second) of Torts § 402A (1965).

¶ 2. We agree with Haase that Restatement (Third) of Torts § 5 (1998) is inapplicable to the case at hand. However, we disagree with his assertion that he presented sufficient evidence to support a strict liability claim under Restatement (Second) of Torts § 402A (1965). Because we determine that Badger's product, silica sand, underwent a material and substantial change after leaving its possession, we conclude that Badger cannot be held strictly liable. Accordingly, we affirm the decision of the court of appeals.

I

¶ 3. Haase was employed at the Neenah Foundry from 1955 to 1996. In 1999, he was diagnosed with silicosis, a lung disease caused by prolonged inhaling of silica particles. It is undisputed that Haase was exposed to harmful silica particles while working at Neenah.

¶ 4. Upon learning his diagnosis, Haase filed suit against Badger and several respirator manufacturers, alleging that he had contracted silicosis as a result of his exposure to silica sand at Neenah.² Because Badger's sand is central to this case, it is important to understand where it comes from, how it was used at Neenah, and the nature of Haase's exposure to it.

¶ 5. From 1980 to 1996, Badger supplied silica sand to Neenah. Badger begins its process of mining sand by drilling holes in the earth to locate sandstone. After locating the sandstone, Badger uses various techniques to loosen it, such as blasting, drilling, and ripping. It then places the crushed sandstone in a slurry box with water to remove clays and other impurities. The sand, which is over 99% pure silica, is dried in large kilns. After cooling, Badger screens and blends the sand so that its size conforms to its customers' specifications.

¶ 6. At Neenah, the silica sand is mixed with benonite, clay, and sea coal and compressed into molds. Molten iron is then poured into these molds to create iron castings, such as manhole covers. Once the molten metal cools and solidifies, the mold is broken apart and the casting comes out. The compacted sand surrounding the casting is vibrated, shaken out, and often reused in the process. The castings, meanwhile, go through a shot blast process where BB's are fired at them to remove any excess sand. Workers remove additional burned sand from the castings by grinding it off with machines.

¶ 7. During his tenure at Neenah, Haase held several positions. From 1955 to 1993, he worked in the molding department. This is where the silica sand is compressed into molds for the iron castings. While working on the rollover molding line, Haase was not required to wear a respirator and did not wear one.

¶ 8. In addition to the rollover molding line, Haase periodically worked on the cleanup crew. There, he would shovel and sweep excess silica sand and dust left over from the foundry process. Haase would also shovel sand down in pits where there was a large amount of fine, black dust. At trial, he explained that this was very dusty work and at times he could not even see the end of his shovel. Haase stated that he wore a respirator when working cleanup.

¶ 9. Finally, from 1993 until his retirement in 1996, Haase worked as a grinder. He would grind burned silica sand and other imperfections off the iron castings. Again, he testified that this was a dusty job and that he wore a respirator at all times while working.

¶ 10. Haase asserted two theories of liability in his case against Badger: negligence and strict liability.³ At the close of his case-in-chief, Badger moved for dismissal based on insufficiency of the evidence. The circuit court granted the motion.

¶ 11. In dismissing Haase's strict liability claim against Badger, the circuit court relied on Haase's own expert witnesses, Dr. Henry Anderson and Dr. Yehia Hammad. Both experts acknowledged that when the silica sand left Badger, it could not cause silicosis because the granules were too large to be inhaled.

¶ 12. The circuit court also adopted and applied the Restatement (Third) of Torts § 5 (1998). It reasoned that because a raw material such as silica sand could not be defectively designed, Badger could not be held strictly liable. In reaching this conclusion, the circuit court correctly recognized that Wisconsin courts had yet to adopt the Restatement (Third) of Torts § 5 (1998).

¶ 13. The court of appeals affirmed the dismissal of Haase's claims. Like the circuit court, the court of appeals adopted and applied the Restatement (Third) of Torts (1998) § 5. Haase v. Badger Mining Corporation, 2003 WI App 192, ¶ 29, 266 Wis.2d 970, 669 N.W.2d 737. It observed that " § 5 is the logical extension of Restatement (Second) of Torts § 402A (1965)." Id. The court explained, "[i]n essence, § 5 recognizes that a raw material such as sand is inherently safe in its design and is not an unreasonably dangerous product." Id.

¶ 14. Additionally, the court of appeals concluded that Haase's strict liability claim would have failed even if the circuit court had applied the Restatement (Second) of Torts § 402A (1965). Id., ¶ 27, 669 N.W.2d 737. The court emphasized the testimony of Haase's expert witnesses, who noted that Badger's sand was too large to become respirable and harmful in its natural form. Id., ¶ 28, 669 N.W.2d 737. Accordingly, it determined that there was no evidence that the sand was in any way unreasonably dangerous at the time Badger delivered it to Neenah. Id.

II

¶ 15. A motion challenging the sufficiency of the evidence may be granted when "the court is satisfied that, considering all credible evidence in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such a party." Weiss v. United Fire and Casualty Co., 197 Wis.2d 365, 388, 541 N.W.2d 753 (1995) (quoting Wis. Stat. § 805.14(1)).

¶ 16. In ruling upon a motion made at the close of a plaintiff's case, a circuit court may grant the motion if it finds, as a matter of law, that no jury could disagree on the proper facts or inferences to be drawn therefrom, and that there is no credible evidence to support a verdict for the plaintiff. Id. (citing American Family Mut. Ins. Co. v. Dobrzynski, 88 Wis.2d 617, 625, 277 N.W.2d 749 (1979)).

¶ 17. Because circuit courts are better positioned to decide the weight and relevancy of the testimony, we accord them substantial deference. Id. at 388-89, 541 N.W.2d 753 (citing James v. Heintz, 165 Wis.2d 572, 577, 478 N.W.2d 31 (Ct.App.1991)). Thus, we will not overturn a circuit court's decision to dismiss for insufficient evidence unless the record reveals that it was "clearly wrong." Id. at 389, 541 N.W.2d 753 (quoting Helmbrecht v. St. Paul Ins. Co., 122 Wis.2d 94, 110, 362 N.W.2d 118 (1985)). A circuit court is "clearly wrong" when it grants a motion to dismiss despite the existence of "any credible evidence" to support the claim. See id.

III

¶ 18. This case presents us with two issues. First, we must decide whether the court of appeals erred in adopting and applying the Restatement (Third) of Torts § 5 (1998). Second, we must determine whether Haase presented sufficient evidence for a strict liability claim under Restatement (Second) of Torts § 402A (1965).

¶ 19. Our discussion begins with an examination of the Restatement (Third) of Torts § 5 (1998). Section 5 is entitled "Liability of Commercial Sellers or Distributors of Product Components For Harm Caused by Products Into Which Components Are Integrated" and...