Netzel v. State Sand & Gravel Co.

• Decision Date: 04 May 1971
• Docket Number: No. 33,33
• Citation: 51 Wis.2d 1,186 N.W.2d 258
• Parties: Richard NETZEL, Respondent, v. STATE SAND & GRAVEL CO., Appellant.
• Court: Wisconsin Supreme Court

Page 258

186 N.W.2d 258

51 Wis.2d 1

Richard NETZEL, Respondent, v. STATE SAND & GRAVEL CO., Appellant.

No. 33.

Supreme Court of Wisconsin.

May 4, 1971.

On Rehearing June 29, 1971.

On November 18, 1968, the plaintiff-respondent, Richard Netzel, sustained first, second and third-degree burns on his ankles while employed by Peters Construction Company as a 'puddler,' leveling off concrete delivered to a construction site. The defendant-appellant, State Sand and Gravel Company, delivered the concrete involved to the job site in its sealed redi-mix trucks.

On the day he sustained the bursn, plaintiff had begun working in the concrete at 7:30 a.m. He testified that he noticed nothing abnormal about the concrete except that it had the appearance of being wetter than usual. Plaintiff testified that he did not pay any particular attention to whether concrete was overflowing the tops of his boots during the day. Plaintiff recalled that another worker, John Lampada, was excused from work at about noon, complaining that his legs hurt. The plaintiff testified he imagined Lampada's complaints were the result of concrete burns. The plaintiff first complained of his legs hurting at approximately 2 p.m., after he had worked in the concrete continuously, except for a half-hour lunch, for six hours. The burns he sustained were approximately two-inch bands about both ankles extending from eight to ten inches from the floor. About seven weeks' hospitalization, skin grafts, permanent scarring and susceptibility to reinjury were established.

The foreman for the construction company, Stanley Jahr, testified that he had been associated with concrete work for 35 years, had known that concrete could burn but had never observed a burn under similar conditions. He testified that, on the day of the injury, water from the concrete splashed on him and caused a burn, the first he had sustained in his years of working with concrete.

The accountant for the construction company, Leonard Helminiak, testified that he had received injury reports on the plaintiff and other workers who had worked with plaintiff on the job on November 18, 1968. He testified that all reported burns. He testified he had reviewed the records of the company and had been unable to find any injury reports concerning concrete burns during the ten or eleven years of his employment as company accountant.

The quality control manager for appellant, James Strode, testified that over a six-year period it had never been reported to him that workmen working in concrete furnished by appellant had received second and third-degree burns. He testified that company records indicated there were no additives in the concrete furnished on the day of injury. He testified that contamination of concrete was possible. He testified that certain additives could be added to cement, one which, calcium chloride, possessed caustic qualities. He testified that company records indicated it was not added to the concrete delivered on the day of injury to the job site involved. He testified the presence of such additive would be noticeable to the job superintendent and would require a different 'setting time.'

Qualified as an expert, Donald R. Buettner testified as an expert witness for appellant. He testified that burns, such as sustained by the plaintiff, could have been the result of exposure of the skin to plain, ordinary cement. He testified that concrete in contact with the human body over prolonged periods of time will result in burns unless the skin is washed or the wet clothing removed within a reasonable period of time. He testified that the concrete in question exhibited none of the imperfections that would be present if caustic additives were present. He testified that he had been in contact with concrete for sustained, uninterrupted periods of several hours, and had not suffered second or third-degree burns.

The jury returned a verdict finding the appellant 100% negligent and the plaintiff free from negligence. $15,000 was awarded as damages; $3,287 for medical expenses $2,059 for loss of earnings. Motions after verdict were made and denied. On February 16, 1970, judgment was entered. From that judgment this appeal is taken.

Gibbs, Roper & Fifield, Milwaukee, for appellant; Samuel Goldenberg, Milwaukee, of counsel.

Meldman & Kahn, Clifford K. Meldman, Milwaukee, for respondent.

ROBERT W. HANSEN, Justice.

This appeal asks two questions: Does this record justify the jury verdict finding the appellant negligent at all? Does it support a jury verdict finding the respondent entirely free from negligence? This court answers the first question in the affirmative, the second in the negative.

On the issue of the negligence of the cement-furnishing company, this case was tried and submitted to the jury under the doctrine of strict liability. The strict liability rule requires that the plaintiff must prove that the product was in defective condition when it left the possession or control of the seller; that it was unreasonably dangerous to the user or consumer; and that the defect was a cause (a substantial factor) of the plaintiff's injuries or damages. ¹ As to the jury finding of defect and being unreasonably dangerous, appellant contends that the only expert testimony offered contradicted such findings and, since no expert witness was produced by the respondent, there is no basis in this record for finding either defect or danger. This contention is wrong for two reasons.

The first flaw is that, before expert testimony can be held to be a prerequisite to a trier of fact making a finding of fact as to an issue of fact, it must be found that the matter involved is '* * * not within the realm of the ordinary experience of mankind * * *.' ² One starts with the recognition that expert testimony is not required for proof of negligence in every situation. Whether expert testimony is required in a given situation must be answered on a case-by-case basis. ³ Thus this court has held expert testimony to be required as to whether an injury was permanent, ⁴ whether pain would persist and for how long, ⁵ whether future medical expenses would be required, ⁶ and whether a fall occurred because of a prior leg injury. ⁷ On the other hand, expert testimony was held not required or even admissible as to whether a particular machine or mode of doing business was dangerous, ⁸ whether certain inferences could be drawn from answers to questions on an application form, ⁹ and whether defendant's negligence was a substantial factor in injurying plaintiff when defective bleachers collapsed. ¹⁰ In Cramer, from which the above summary of citations is taken, whether a hospital in the care of its patients exercised such ordinary care as their condition required was held to be a question not requiring was testimony. ¹¹ In any given situation, the requirement of expert testimony is an 'extraordinary one,' and is to be applied by the trial court 'only when unusually complex or esoteric issues are before the jury.' ¹² We do not find the reference to complexity and esoteric character describes the situation here. Rather we find that that evidence submitted by plaintiff in light of the ordinary experience of mankind is sufficient to establish that an unreasonably dangerous defect existed in the concrete furnished by appellant.

In part, this holding is based upon a second flaw we find in the appellant's position on this point. Appellant appears to view as an expert only a person whose education or near-professional status qualifies him to describe or evaluate a situation. In the area of medical testimony, it may well be that the expert witness, qualified to express an opinion as to permanency of injuries, can only be a physician or surgeon, educated and licensed as a member of the medical profession. But we deal with cement, not medical diagnosis or prognosis, here, and special experience can qualify a person as an expert in the field as well as academic studies or baccalaureate degrees. This court recognizes the role and status of what might be termed a lay expert, meaning a person whose expertise or special competence derives from experience working in a field of endeavor rather than from studies or diplomas. ¹³ The testimony of the job foreman who had 35 years' experience of working in and with concrete on a daily basis was the testimony of such lay expert. Such foreman testified that neither he nor any employees he worked with had ever been burned by concrete. He testified that he had worn far less protective clothing than the plaintiff and had worked in thicker pours and not been burned until the day of this injury when he was burned by the splashing of water from the concrete onto his clothing. The plaintiff testified that he had been working in concrete supplied by appellant for two months, had gotten wet concrete on his pants and hands, elbows and face, and had not been burned. Seven other workers had been burned the same day. Appellant's quality control manager testified that it had never been reported to him that workmen working with appellant's concrete had suffered second or third-degree burns. Additionally, appellant's expert witness testified that though he had been splashed by concrete and maintained substantial contact with wet concrete, he had never received second or third-degree burns as plaintiff did. While not holding that the mere occurrence of a damaging event provides proof of either defect or unreasonably dangerous factors, the unexplained event when combined with evidence rebutting the existence of other probable causes is sufficient to warrant a jury finding of a defect in the concrete that was unreasonably dangerous. Respondent's evidence was sufficient to create an issue as to appellant's contention that the damage was the normal result of prolonged exposure to ordinary concrete. The inference drawn by the jury that the concrete furnished was defective and unreasonably dangerous...