Keller v. Welles Dept. Store of Racine, 78-032

• Decision Date: 26 January 1979
• Docket Number: No. 78-032,78-032
• Citation: 88 Wis.2d 24,276 N.W.2d 319
• Parties: Stephen KELLER, a minor by David Monson, his guardian ad litem, and Ervin Keller, Plaintiffs-Respondents, v. WELLES DEPARTMENT STORE OF RACINE, a division of Miller-Wohl Company, Inc., a Foreign Corporation, and Edward Can Company, a division of Huffman Manufacturing Company, Inc., a Foreign Corporation, Defendants-Appellants, Sherrill Sperry, Defendant.
• Court: Wisconsin Court of Appeals

Page 319

276 N.W.2d 319

88 Wis.2d 24

Stephen KELLER, a minor by David Monson, his guardian ad litem, and Ervin Keller, Plaintiffs-Respondents, v. WELLES DEPARTMENT STORE OF RACINE, a division of Miller-Wohl Company, Inc., a Foreign Corporation, and Edward Can Company, a division of Huffman Manufacturing Company, Inc. a Foreign Corporation, Defendants-Appellants Sherrill Sperry, Defendant.

No. 78-032.

Court of Appeals of Wisconsin.

Argued Dec. 14, 1978.

Opinion Released Jan. 26, 1979.

Opinion Filed Jan. 26, 1979.

David M. Monson and Duane L. Arena, Racine, of counsel, for plaintiffs-respondents.

James P. Reardon, of Kasdorf, Dall, Lewis & Swietlik S. C., and Thomas H. Knoll, of Law Offices Ronald L. Piette, Milwaukee, for defendants-appellants.

Before MOSER, P. J., and BROWN and BODE, JJ.

BODE, Judge.

This is a products liability case. On October 21, 1971, two and one-half year old Stephen Keller was playing with two year old William Sperry in the basement of the Sperry home. The boys were playing with a gasoline can which had been filled with gasoline by Wayne Sperry, William's father. The can was manufactured by Huffman Manufacturing Company, Inc. (Huffman) and was purchased by Wayne Sperry at Welles Department Store (Welles). The children were near a gas furnace and a hot water heater when gasoline, which they had poured from the can, was ignited. Stephen Keller was severely burned. Although Mrs. Sperry was home at the time of the accident, the two boys were unsupervised.

The plaintiff originally sued the home builder and the manufacturers of the hot water heater and the furnace alleging that the pilot lights in those devices were the ignition source. Those actions were compromised and settled.

The remaining defendants are Huffman and Welles, the manufacturer and retailer, and Mrs. Sperry. The cause of action against Huffman and Welles is pleaded both in negligence and strict liability. The defendants, Huffman and Welles, moved to dismiss the complaint for failure to state a claim upon which relief could be granted. The motion was denied and an order to that effect was entered on April 14, 1978. The defendants appeal.

The sole issue before this court is whether the complaint states a cause of action against the manufacturer and retailer of a Since a motion to dismiss for failure to state a claim upon which relief may be granted has replaced the demurrer, Judicial Council Committee's Note, 1974 to sec. 802.06(2), Stats., the rules relating to demurrers are applicable to the new pleading. The pertinent rules relating to the review of orders overruling or sustaining demurrers were set forth in Weiss v. Holman, 58 Wis.2d 608, 614, 207 N.W.2d 660, 662-63 (1973), as follows:

gasoline can, in either strict liability or negligence, for injuries sustained by Stephen Keller resulting from the ignition of gasoline poured from a gasoline can without a child-proof cap.

(1) Pleadings are to be liberally construed with a view to substantial justice between the parties and are entitled to all reasonable inferences in favor of the pleadings which may be drawn from the facts pleaded; (2) all material well-pleaded facts are to be taken as true; . . . . (Footnotes omitted.) Cited with approval in State v. Ross, 73 Wis.2d 1, 3-4, 242 N.W.2d 210, 211 (1976).

Thus, the complaint is given a liberal construction in favor of stating a cause of action. Continental Bank & Trust Co. v. Akwa, 58 Wis.2d 376, 384, 206 N.W.2d 174, 179 (1973). The court is not to be concerned with whether the plaintiff can actually prove the allegations; that task is left to the trier of fact. Instead, a complaint will be upheld against a motion to dismiss on these grounds when the facts alleged, if proven, would constitute a cause of action. See International Found. of Emp. Ben. Plans, Inc. v. City of Brookfield, 74 Wis.2d 544, 549, 247 N.W.2d 129, 131 (1976). The underlying facts alleged are taken as true, and only the legal premises derived therefrom are challenged. Ritterbusch v. Ritterbusch, 50 Wis.2d 633, 636, 184 N.W.2d 865, 866 (1971).

In this case, plaintiff attempts to state causes of action both in strict liability and in negligence. Each theory will be considered separately.

STRICT LIABILITY

In Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967), the Wisconsin Supreme Court adopted sec. 402A of Restatement, 2 Torts 2d, ¹ thereby accepting the concept of strict liability. The court immediately hastened to add, and has since reiterated, that strict liability makes a manufacturer neither an insurer nor absolutely liable for any harm resulting from the use of his product. Howes v. Deere & Company, 71 Wis.2d 268, 273, 238 N.W.2d 76, 80 (1976); Powers v. Hunt-Wesson Foods, Inc., 64 Wis.2d 532, 536, 219 N.W.2d 393, 395 (1974); Dippel, 37 Wis.2d at 459-60, 155 N.W.2d at 63. On the contrary, to recover under the theory of strict liability the plaintiff must still prove:

(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 . . ., 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, 155 N.W.2d at 63.

To state a cause of action under strict liability then, the plaintiff must essentially However, while it is readily apparent that the proper elements were pleaded, the complaint cannot automatically be said to be valid. The allegations relating to the defective and unreasonably dangerous condition of the product involve conclusions of law which are not admitted as true. Thus, whether the gasoline can was defective and unreasonably dangerous was a question to be initially answered by the court. As stated above, the complaint must be liberally construed, and all reasonable inferences must be drawn from the facts in favor of the complaint. If the trial court could have concluded as a matter of law that no jury could reasonably find that the gasoline can without a safety cap was defective or unreasonably dangerous, then the complaint failed to state a cause of action and the motion to dismiss should have been granted. On the other hand, if the trial court could not reach that conclusion, then a cause of action was stated and the motion was properly denied.

allege that the product was defective and unreasonably dangerous. In the present case, the complaint clearly alleges that the defendants respectively manufactured or sold a gasoline can which was defective and unreasonably dangerous to children such as the plaintiff. The defect complained of was the failure to design the can with a cap sufficient to prevent children from removing it.

The defendants contend that the motion to dismiss should have been granted because, as a matter of law, no jury could have reasonably concluded that the gasoline can was either defective or unreasonably dangerous. In support of their argument, the defendants rely on Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 69 Wis.2d 326, 230 N.W.2d 794 (1975).

In Vincer, a young boy was visiting his grandparents' home. While unsupervised, he fell into a swimming pool, remained there for a prolonged period of time, and sustained severe brain damage. The allegation was that a retractable ladder to the aboveground pool had been left in the down position, thereby providing easy access to the pool. The parents brought suit against the manufacturer of the swimming pool claiming that the pool was defectively designed in that it failed to provide a self-latching and closing gate to prevent entry to the pool. The Esther Williams Company demurred to the complaint for failure to state a cause of action. The trial court sustained the demurrer and the supreme court affirmed.

In its opinion, the court determined as a matter of law that the pool did not contain an unreasonably dangerous defect. The defendants believe the principles enunciated in Vincer mandate a similar outcome in the instant case. We disagree.

Comment G to sec. 402A of Restatement, 2 Torts 2d, states that a product is in a defective condition when "at the time it leaves the seller's hands, (it is) in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." While this comment serves as a guideline, there is no general definition for "defect," and a decision on whether a defect exists must be made on a case-by-case basis. Jagmin v. Simonds Abrasive Co., 61 Wis.2d 60, 66, 211 N.W.2d 810, 813 (1973).

The Vincer court concluded that the swimming pool could not have been defective for failure to have the suggested gate because it had a retractable ladder which rendered the pool "as safe as it reasonably could be." Vincer, 69 Wis.2d at 331, 230 N.W.2d at 798. The product at issue here, a gasoline can, was not as safe as was reasonably possible since the cap was not designed in such a way as to prevent young children from removing it. Equipping the gasoline can with a child-proof cap would have rendered the can substantially safer and entailed only a nominal additional cost. The practical value of such a cap may readily be seen since gasoline cans, while not intended to be used by children unable to appreciate the attendant dangers of gasoline, are customarily stored in places accessible to children.

The second element to be considered is whether the defective product, the gasoline Vincer noted the patent-danger rule discussed in Arbet and stated that the Wisconsin test of whether a product contains an unreasonably dangerous defect was as follows: "If the average consumer would reasonably anticipate the dangerous condition of the product and fully appreciate the attendant risk of injury, it would...