Strasser v. TRANSTECH MOBILE FLEET SERVICE

• Decision Date: 07 July 2000
• Docket Number: No. 98-1581.,98-1581.
• Citation: 236 Wis.2d 435,613 N.W.2d 142,2000 WI 87
• Parties: Thomas STRASSER and Sandra R. Strasser, Plaintiffs-Appellants-Petitioners, LIBERTY MUTUAL INSURANCE COMPANY, Plaintiff, v. TRANSTECH MOBILE FLEET SERVICE, INC. and Heritage Mutual Insurance Company, Defendants-Respondents.
• Court: Wisconsin Supreme Court

236 Wis.2d 435

2000 WI 87

613 N.W.2d 142

Thomas STRASSER and Sandra R. Strasser, Plaintiffs-Appellants-Petitioners, LIBERTY MUTUAL INSURANCE COMPANY, Plaintiff, v. TRANSTECH MOBILE FLEET SERVICE, INC. and Heritage Mutual Insurance Company, Defendants-Respondents.

No. 98-1581.

Supreme Court of Wisconsin.

Oral argument May 2, 2000.

Decided July 7, 2000.

For the plaintiffs-appellants-petitioners there were briefs by Louis E. Baureis, Robert B. Erdmann and Daniel P. Kondos, S.C. Law Offices, Milwaukee, and oral argument by Robert B. Erdmann.

For the defendants-respondents there was a brief by Arthur P. Simpson and Simpson & Deardorff, S.C., Milwaukee, and oral argument by Arthur P. Simpson.

An amicus curiae brief was filed by David J. Hanus and Hannan, Siesennop & Sullivan, Milwaukee, on behalf of the Civil Trial Counsel of Wisconsin.

An amicus curiae brief was filed by D.J. Weis, Diane Hubler, and Habush, Habush, Davis & Rottier, S.C., Rhinelander, on behalf of the Wisconsin Academy of Trial Lawyers.

¶ 1. DAVID T. PROSSER, J.

Thomas and Sandra R. Strasser (Strasser) seek review of an unpublished decision of the court of appeals¹ that affirmed a decision of the Circuit Court for Milwaukee County, Patricia D. McMahon, Judge. The circuit court granted summary judgment to Transtech Mobile Fleet Service, Inc. and its insurer, Heritage Mutual Insurance (collectively Transtech), in a personal injury action brought by Strasser after he slipped and fell from a crane ladder that Transtech fabricated and installed.

¶ 2. Strasser alleged Transtech negligently failed to install safety step treads on the ladder rungs and negligently failed to warn him about the danger the ladder posed. In granting summary judgment to Transtech, the circuit court relied on this court's decision in Rolph v. EBI Cos., 159 Wis. 2d 518, 464 N.W.2d 667 (1991) and held that as a "reconditioner," Transtech was under no duty to bring the ladder into compliance with specific safety standards. The court also concluded that Transtech was under no duty to warn Strasser about an open and obvious danger.

¶ 3. The court of appeals affirmed, adopting a different theory. Strasser v. Transtech Mobile Fleet Serv. Inc., No. 98-1581, unpublished slip op. at 6, 2 (Wis. Ct. App. Aug. 31, 1999). The court held that Transtech was entitled to summary judgment because Strasser confronted an open and obvious danger. Id. at 8-9. Judge Curley concurred in the result but disagreed with the majority's reliance on the open and obvious danger doctrine. She instead found the holding of Rolph dispositive and declared that Transtech could not be held strictly liable for the repair of a product that it did not place into the stream of commerce. Strasser, unpublished slip op. at 1-2 (Curley, J., concurring). Judge Curley also concluded that Transtech could not be negligent for failure to warn because Rolph absolves reconditioners from the duty to warn about defects in original products. Id. at 2.

¶ 4. Strasser presents two issues for our review. First, does the open and obvious danger doctrine bar recovery in this case? Second, does our holding in Rolph, relating to the limited liability of reconditioners, preclude relief for this claim?

¶ 5. We frame our decision around the two claims Strasser presented in his pleadings, namely whether Transtech was negligent in its fabrication of the ladders, and whether Transtech was negligent in failing to warn Strasser about the condition of the ladders. We hold that summary judgment was inappropriate because our holding in Rolph does not apply to the particular facts of this case, and this case presents questions of material fact that require resolution by a factfinder. We also conclude that the claim for failure to warn cannot go forward because Transtech was not negligent in failing to warn Strasser about a condition known to be dangerous. Accordingly, we reverse the decision of the court of appeals and remand the case to the circuit court for trial or further proceedings consistent with this decision.

FACTS

¶ 6. Some of the facts in this case are in dispute. Strasser began working at Recycled Fibers in January 1993. Recycled Fibers is a Milwaukee company that collects bales of cardboard boxes from various locations, such as grocery stores, and recycles them at its plant. Strasser was a truck driver and crane operator for the company.

¶ 7. Strasser loaded large quantities of heavy baled cardboard using a crane mounted on the flatbed trailer of a truck. The trailer-mounted crane assembly was manufactured by a company that is not a party in this action, Transcraft. The crane featured two ladders, one mounted on each side. To operate the crane, Strasser, who weighed 180 pounds, would climb up one of the ladders. Upon reaching the top, he positioned himself on a seat situated about 13 feet in the air. From this seat, Strasser controlled the crane and collected the bales of cardboard boxes. During the course of this work, he climbed up and down the crane ladders about 30 times each day.

¶ 8. The crane Strasser used was maintained and repaired by Transtech, a mobile fleet repair service. In 1994, Transtech employed four to five people and had accounts with approximately 25 businesses, including Recycled Fibers. Transtech did not sell trailers, cranes, or parts to Recycled Fibers or any other business. Between 1993 and 1994, Transtech's owner and operator, Darryl Frick (Frick), personally supervised the Recycled Fibers account, providing services "constantly" by making several daily visits to the plant.

¶ 9. Frick was responsible for all the maintenance work, including the checking of hydraulic lines, hoses, brakes, and lights, and anything else requested to be repaired. At his deposition, Frick testified that he often made repairs at the request of the drivers and not always with the authorization of Recycled Fibers' regional or district manager, Tom Marzo (Marzo).

¶ 10. Frick and his employees frequently straightened and rebolted the crane ladders on several of the trailers Recycled Fibers owned. The rickety ladders often bent and twisted because the bolts that attached the ladders at the top and bottom to the crane assembly came out as the bales bumped and hit them. Although Frick wanted to make his repairs safe, he stated that Recycled Fibers "didn't give me a standard or I didn't give them a safety standard to keep up with."

¶ 11. After the two crane ladders on the trailer Strasser operated were destroyed, either by being hit by a bale or piece of machinery, Strasser's boss, Marzo, asked Frick to put better ladders on the crane. Frick never acted as a seller, distributor, or dealer for any type of ladder.

¶ 12. Both Strasser and Marzo told Frick they wanted a sturdier ladder and asked Frick to install "safety steps" or an "expanded metal step." Strasser described these steps as "stair treads" featuring U-shaped pieces of metal with holes punched through that "left prickers sticking out the top" to prevent slipping. Frick acknowledged that safety steps were important because hydraulic fluid sometimes leaked onto the steps. The existing rungs on the ladders had grooves cut into them, creating what Strasser called a "non-slip bar," not safety steps.²

¶ 13. Frick interpreted the discussion about safety steps as "more of a request.... They said, `if you can get this on there, that's what we'd like.'" Marzo told Frick, "It would be really nice to have steps like they put on the newer crane." Frick informed Strasser and Marzo he would not be able to meet the request: He did not have the materials and would not be able to obtain them in the time frame allotted for the job because his supplier did not stock them.³ Frick said Marzo told him that Recycled Fibers had materials for the safety steps in its mill. When Frick went to the mill as Marzo suggested, he found no one there willing to give him the material.

¶ 14. Strasser testified that Frick never verbally made any representations that he could bring the trailer into compliance with any safety standards. Moreover, Strasser never asked Frick to have the ladders comply with any government safety standards or be "up to code" with any specific safety rules. Similarly, Frick stated that Recycled Fibers made no demands to bring the ladders in line with any safety standards.

¶ 15. A March 29, 1994, invoice indicates that Transtech fabricated and installed ladders for the crane on Strasser's trailer. To Frick, "fabricate and install" meant that he was building new ladders to replace the old ones on the trailer, thus repairing the machine as a whole, not providing the machine with new parts. Strasser testified that Frick "built new uprights and put rungs in between."

¶ 16. The rungs on the new ladders were made from cut "U bolts" consisting of threaded metal. The threaded metal created grooves running about three-quarters of the way across the ten-inch long rungs. Thus, about two-and-one-half inches of each rung was smooth.

¶ 17. Strasser picked up the crane from Frick. Frick testified that Strasser told him "how great [the ladders] looked" and made no mention of the request for safety steps. Moreover, Frick did not remember any complaints directed to him about the ladders or requests for further modifications after he completed the work.

¶ 18. Strasser disputes Frick's account, stating that he telephoned Frick and told him to install nonslip stair treads on the rungs on "[t]he day he built the ladder." Strasser testified that Frick did not have the treads and did not know where to obtain them. Although Strasser knew the treads could be found at the Recycled Fibers power house, he conceded that he did not tell Frick to procure them there.

¶ 19. According to Strasser, the fabricated ladders had completely smooth treads. He stated that the new rungs provided a wider footing. But after he began using the ladders, Strasser found the steps slippery and attributed that condition...