Meurer v. ITT General Controls

• Citation: 280 N.W.2d 156,90 Wis.2d 438
• Decision Date: 29 June 1979
• Docket Number: No. 76-561,76-561
• Parties: Francis J. MEURER, Lorraine Meurer, Richard Meurer, Robert Meurer and Francis Meurer, Jr., a partnership, d/b/a Meurer Bakery, Francis J. Meurer, Lorraine Meurer, Richard Meurer, Robert Meurer, and Francis Meurer, Jr., d/b/a Meurer Realty, and the Fidelity and Casualty Company of New York, an insurance corporation, Plaintiffs-Appellants, v. ITT GENERAL CONTROLS, Ranco, Inc., and Annetsberger Bros., Inc., foreign corporations, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 156

280 N.W.2d 156

90 Wis.2d 438

Francis J. MEURER, Lorraine Meurer, Richard Meurer, Robert Meurer and Francis Meurer, Jr., a partnership, d/b/a Meurer Bakery, Francis J. Meurer, Lorraine Meurer, Richard Meurer Robert Meurer, and Francis Meurer, Jr., d/b/a Meurer Realty and the Fidelity and Casualty Company of New York, an insurance corporation, Plaintiffs-Appellants, v. ITT GENERAL CONTROLS, Ranco, Inc., and Annetsberger Bros Inc., foreign corporations, Defendants-Respondents.

No. 76-561.

Supreme Court of Wisconsin.

Argued May 30, 1979.

Decided June 29, 1979.

Francis J. Meurer, Lorraine Meurer, Richard Meurer, Robert Meurer and Francis Meurer, Jr., a partnership, doing business as Meurer Bakery; Francis J. Meurer, Lorraine Meurer, Richard Meurer, Robert Meurer and Francis Meurer, Jr., doing business as Meurer Realty; and The Fidelity and Casualty Company of New York, their insurer, plaintiffs-appellants, commenced an action to recover damages they sustained as a result of a fire in one of the Meurer take-out bakery establishments in Milwaukee.

The fire occurred in the area of a deep fryer and this is a products liability case with an alleged cause based on negligence and strict liability. The plaintiffs commenced an action against Annetsberger Bros., Inc., the manufacturer of the deep fryer. Annetsberger impleaded ITT General Controls and Ranco, Inc., manufacturers of component parts of the deep fryer. The plaintiffs subsequently amended their complaint to include ITT General Controls and Ranco, Inc., as party defendants.

The parties stipulated as to the amount of damages sustained by the plaintiffs and the negligence issues were tried to a jury. The jury found that the deep fryer and its component controls were not in such a defective condition as to be unreasonably dangerous to the prospective user of the fryer.

The jury also found the plaintiffs were negligent with respect to the care and protection of their property and that such negligence was the cause of the fire damage they sustained. Judgment was entered on the verdict dismissing the complaint, and the plaintiffs have appealed.

James G. Forester (argued), Brookfield, and Donald C. Fellows (argued), Milwaukee, for plaintiffs-appellants; Kenney, Krembs, Fellows & Wolfe, Milwaukee, and Forester, Carroll & Rupke, Brookfield, on the brief.

Paul E. Schwemer (argued), Milwaukee, for Annetsberger Bros., Inc.; Walter L. Merten and Merten, Connell & Sisolak, S.C., Milwaukee, on the brief.

Robert D. Sullivan (argued), Milwaukee, for Ranco, Inc.; Riordan, Crivello, Sullivan & Carlson, Milwaukee, on the brief.

Dale N. Miracle (argued), Wauwatosa, for ITT General Controls.

HANSEN, Justice.

Robert W. Meurer, vice-president and partner in the bakery and realty companies, and Ronald Couturier, supervisor of the plaintiffs' carry-out business, had installed the new Annetsberger deep fryer several days before the fire. They had installed such equipment before and did not look for any installation or operating instructions.

The fryer was installed adjacent to two broasters in a tiled cooking area which was covered by an exhaust hood with a fan which had been in use about a year. The fryer was filled with shortening and Meurer and Couturier both agreed that the fryer worked fine when they tested it. The fryer temperature control was set at 350o and the timer was set for three minutes. Employees were instructed not to change these settings. All employees were instructed on the fryer's operation. The fryer was turned on each morning about 11 a. m. by means of a toggle switch on the front panel. After the oil had reached 350o , as indicated by a light on the front panel, the basket would be filled with french fries and a button would be pushed that raised and lowered the basket automatically. Employees were also told to turn the fryer off if the oil became smoky or wavy. However employees were not told how to turn the fryer off using either the gas valve or circuit breaker.

Couturier was in charge of maintaining the cooking equipment. He filtered and changed the oil when necessary and cleaned and changed the hood filters. This maintenance was done on a regular schedule and the equipment, walls and floors were cleaned by the employees each day. Couturier said the employees had complained of heating problems with the original fryer but that there had not been any complaints about the new fryer.

Meurer said the building had been constructed about a year previously and that the cooking area was included in the original plans. Both he and Couturier agreed that there were no fire extinguishers in the building, and that employees had not been given any instructions as to what action to take in case of a fire.

A fire started in the area of the fryer at about 5:45 p. m. Rosina Stefan, a bakery clerk working at the store the evening of the fire, testified that she first noticed a brightness in the cooking area as she was working at an adjacent counter. When she turned she saw flames coming from the fryer and going up into the hood. The other employee asked for a fire extinguisher and Rosina replied that she hadn't seen one. She said they left the building when the flames reached a decorative wood fence above the hood.

She said the fryer had been used to make one or two orders earlier that evening but that there had not been any customers for five or ten minutes before the fire and the fryer wasn't being used then. She did not know how long the fire had been burning when she saw it, and she did not see any smoke or smell anything unusual before noticing the fire. It was her opinion that the employees kept the cooking area pretty clean.

She further testified she had heard complaints about the fryer but admitted that she did not know a new unit had been installed. She had not been given any instructions on what to do in the case of such a fire and she said that she supposed she would have tried to use a fire extinguisher if there had been one but that she did not know if she could have extinguished the fire. She said she wouldn't have gotten as close as necessary to turn off the fan or fryer.

Diane Musinsky, the other employee present at the time of the fire, testified that she did not notice the fire until Rosina Stefan yelled to her. She then saw smoke and flames on top of the grease in the fryer as well as on the wall and the top of the fryer. She said the flames were two or three feet high at first and did not reach the hood which was four feet above the fryer. She ran to adjoining stores looking for a fire extinguisher and failing that ran to the back of the store looking for the circuit breakers, which she also could not find. This took one or two minutes. She had used the fryer that evening without any problems and did not remember making an earlier statement that first shift employees had told her that there had been a problem with smoke and that someone had come in to check the fryer.

Karl P. Schuh, the fire department battalion chief who responded to the fire, said that this was an ordinary restaurant fire with the heaviest charring above the deep fryer. He listed the cause of the fire as grease igniting at the unit. He testified that a flash fire can occur in an exhaust hood if there is an accumulation of grease and vapors with a heat buildup of 400o to 500o , and said he was unable to tell whether this fire originated in the fryer or the hood. He said that he considered fire extinguishers a must in a restaurant with a deep fryer, that a dry chemical extinguisher was recommended for extinguishing a grease fire and that many restaurants had this type of extinguisher. This type of extinguisher would have put this fire out even if the fire were fed by gas. He said he was assuming that someone would be trained to use the extinguisher but that they were very easy to use.

Phillip Stollenwerk, the city of Milwaukee building inspector assigned to plaintiffs' store, testified he conducted fire prevention inspections three times a year. The store was not in violation of any code provisions and the store was not required to have a fire extinguisher, sprinkler system or fire protective hood system because its cooking area was under 500 square feet. This testimony was confirmed by George Kuetemeyer, a supervisor in the city building inspector's department.

Several expert witnesses were called by the respective parties. Three separate components were discussed: the thermostat, manufactured by Ranco, which controlled the heat at which the oil was held; the high-limit control, also manufactured by Ranco, which prevented the oil from heating over 475o ; and the ITT gas valve which provided gas to both the pilot light and the burner which heated the oil. As might be expected, their methods of testing the components varied and the conclusions they reached as to the cause of the fire were in conflict. Their testimony will be further considered in our discussion of the issues, which are:

1. Did the trial court abuse its discretion in refusing to submit a special verdict question on the cause of the fire?

2. Did the trial court abuse its discretion in the instruction it gave on the plaintiffs' duty to protect their property?

3. Is there credible evidence to support the verdict?

4. Did the trial court err in allowing Annetsberger's expert to testify and in restricting plaintiffs' cross-examination of this expert?

SPECIAL VERDICT.

The special verdict questions inquired as to whether the defective components or the negligence of the plaintiffs was the cause of the fire damage. All parties submitted requested special verdict questions and the trial court, in the exercise of its discretion, concluded that based upon the evidence presented a special verdict question requiring the jury to determine the cause of the fire would be inappropriate. The trial court concluded that a question as to the cause of the fire would create a potential for improper...