Powers v. Hunt-Wesson Foods, Inc.
| Decision Date | 28 June 1974 |
| Docket Number | HUNT-WESSON,No. 130,130 |
| Citation | 219 N.W.2d 393,64 Wis.2d 532 |
| Parties | Robert J. POWERS, Respondent, v.FOODS, INC., a foreign corp., Appellant. |
| Court | Wisconsin Supreme Court |
Walter Eugene Brown, Milwaukee, for appellant.
Hersh & Stupar, Milwaukee, for respondent.
Hunt argues there is not sufficient evidence to sustain the verdict finding it liable for the injuries sustained by Powers. Hunt raises two other questions, i.e., the verdict is contrary to law or evidence and it was error not to grant its motion to dismiss and for a directed verdict. These latter two questions are premised upon the insufficiency of the evidence. Powers was employed as a cook at Curley's Restaurant and it was his duty to make noon lunches and to order food stuff necessary therefor. He regularly ordered food stuff from Dairy State Buttler and Egg Company which included a case of Hunt's ketchup per week. The ketchup was delivered in a sealed cardboard carton with sheets of cardboard separating the 24 bottles contained therein. The cartons were carried into the basement storeroom by the deliveryman and placed on the floor. The case was opened and inspected and the bottles placed on the shelf in the storage room by the porter of Curley's. Each day the porter or a waitress would carry as many bottles of ketchup as were needed from the storage room and place them on a shelf upstairs in the restaurant between the grill and the lunch counter.
On Saturday, May 7, 1966, while engaged in making the noon lunch, Powers took a full bottle of Hunt's ketchup from the shelf and tried to turn the cap to open the bottle; he was unsuccessful and so tapped the cap end of the bottle twice lightly on his cutting board, then tried to turn the cap again but was unsuccessful. He then lightly tapped the bottom of the bottle with the palm of his hand and 'the bottom of the bottle went right up inside and the bottle went in my hand and cut it.' Powers testified he sustained a circular cut in the hand, and in tapping the bottom of the bottle he exercised no more force than any customer would in tapping the bottom of the bottle to cause the ketchup to run out. Powers was taken to the hospital and upon his return he and the porter visited the store room and checked the cardboard box from which the bottle had been taken. The box was not damaged. Powers checked the top, bottom and sides and saw no marks on the box. The bottle was not produced at trial because upon its cutting Powers it had fallen to the floor and broken in pieces and while he was in the hospital someone cleaned the floor up and threw the broken pieces of the bottle away. The porter also testified to the undamaged case; that none of the bottles appeared broken or damaged when he removed them from the case and there was no drainage in the carton. Neither Hunt nor Dairy State put in any proof at the trial but rested on their motions to dismiss. In submitting the case to the jury, it was stipulated it should be done solely on the theory of strict liability and the res ipsa loquitur instruction need not be given. Motions after verdict were denied by the court.
In Dippel v. Sciano (1967), 37 Wis.2d 443, at p. 459, 155 N.W.2d 55, at p. 63 this court adopted the rule of strict liability in tort as set forth in sec. 402A of Restatement, 2 Torts 2d, pp. 347, 348:
"Sec. 402 A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a produce, and
(b) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."
In adopting the rule of this section, this court neither accepted nor rejected any of the comments. The rule as stated is broad enough to cover as its basis public policy to support absolute liability or negligence to support strict liability. The court was careful to point out in Dippel that the term 'strict liability' might be misconstrued as 'absolute liability' and, if so, would be a misnomer. It was clearly pointed out that strict liability does not make the manufacturer or seller an insurer nor does it impose absolute liability. Absolute liability is imposed for public policy reasons and admits of no exceptions or defenses. Strict liability in this state at least means negligence as a matter of law or negligence per se, and the effect of the adoption of the rule of strict liability based on this negligence in effect shifts the burden of proof from the plaintiff of proving specific acts of negligence to the defendant to prove he was not negligent in any respect. In this respect, the rule in Wisconsin impliedly qualifies the Restatement of Torts in sec. 402A 2d, which states the rule of subsec. (1) 'applies although (a) the seller has exercised all possible care in the preparation and sale of his product.' One must read this section as meaning the Restatement rule in sec. 402A(1) is the starting point and is prima facia liability based on negligence but does not foreclose the defendant from proving he was not negligent.
Consequently, in Wisconsin where we have comparative negligence, many defenses including contributory negligence and unilateral assumption of risk as a part of contributory negligence are available in determining the apportionment of the negligence by the manufacturer of the alleged defective product and the negligent use made thereof by the consumer. Thus the ordinary rules of causation and defenses applicable to negligence are available under our adoption of the Restatement rule. If this were not so, this court would have abolished the doctrine of comparative negligence which in Dippel this court said it would not do. Under the rule of strict liability as adopted in Wisconsin, this court stated what the plaintiff must prove to recover, i.e. (p. 460, 155 N.W.2d p. 63):
'. . . the plaintiff must 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 or, put negatively, that this is not an isolated or infrequent transaction not related to the principal business of the seller, 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.'
There is no question from the evidence that the defect in the bottle was a substantial factor in the case of Powers' injuries or that Hunt engaged in the business of selling such product and this was not an isolated or infrequent transaction not related to the principal business of Hunt. Likewise, the ketchup bottle was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was when it was sold. This leaves for consideration the question of whether the product was in a defective condition when it left the possession or control of Hunt and whether it was unreasonably...
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