Tanner v. Shoupe

• Decision Date: 20 May 1999
• Docket Number: No. 97-1566.,97-1566.
• Parties: Greg TANNER, Plaintiff-Appellant, v. Clifford S. SHOUPE, Richard J. Riniker, and Allstate Insurance Co., Defendants, EXIDE CORPORATION, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

228 Wis.2d 357

596 N.W.2d 805

Greg TANNER, Plaintiff-Appellant, v. Clifford S. SHOUPE, Richard J. Riniker, and Allstate Insurance Co., Defendants, EXIDE CORPORATION, Defendant-Respondent.

No. 97-1566.

Court of Appeals of Wisconsin.

Submitted on briefs May 11, 1998.

Decided May 20, 1999.

On behalf of the plaintiff-appellant, the cause was submitted on the brief of Joseph A. Bradley of Eisenberg, Weigel, Carlson, Blau, Reitz & Clemens, S.C. of Milwaukee.

On behalf of the defendant-respondent, the cause was submitted on the brief of Roberta F. Howell and Mark A. Neuser of Foley & Lardner of Madison.

Before Vergeront, Roggensack and Deininger, JJ.

VERGERONT, J.

This is a products liability case involving an automobile battery that exploded and injured Greg Tanner. Tanner appeals the order granting Exide Corporation's motion for a directed verdict after Tanner presented his case to the jury, and the resulting judgment. There are two issues: (1) did the trial court erroneously exercise its discretion in refusing to allow Tanner's expert witness to testify, and (2) did the trial court err in directing a verdict in favor of Exide on Tanner's claims for strict liability and negligence. We conclude the trial court erroneously exercised its discretion in excluding the testimony of Tanner's expert witness regarding the damage to the vent cap and the adequacy of the warnings. We also conclude that with this testimony there was sufficient evidence to create a jury question on whether the battery was defective due to the failure to warn against a foreseeable misuse. We therefore reverse.

BACKGROUND

Tanner, who had some training and experience in working with batteries, agreed to help an acquaintance get his automobile started. He observed some corrosion on the negative terminal of the automobile's battery and proceeded to scrape it off with a penny. Tanner admitted he did not read the warnings on this particular battery and, although he was familiar with general safety warnings on batteries to wear eye protection, he did not have safety glasses available to him at the time and did not wear any eye protection. At some point after Tanner reconnected the negative terminal, the battery exploded. Battery acid and shrapnel from the top of the battery injured his eyes and face.

Tanner's complaint alleged both negligence and strict liability. At trial he attempted to introduce evidence of the defective design of the battery, the cause of the explosion and the inadequacy of the warnings through his witness, Stanley Runyan, an experienced auto mechanic and consultant. However, the court ruled that Runyan was not qualified to testify as an expert in these areas. (We discuss the details of the testimony Runyan would have offered later in the opinion.)

Tanner called Exide's expert witness, Eugene Rutkoski, adversely.¹ Rutkoski is a consulting metallurgist who previously worked at a battery company doing laboratory testing of batteries and smelting (melting down junked batteries and converting them back into lead to make new batteries). Rutkoski examined the two vent caps and the piece of the battery cover retrieved from the exploded battery after the accident. Vent caps cover internal parts of the battery (cells) that contain potentially explosive materials. Rutkoski explained that the vent caps are designed to be removed and they can then be replaced by pushing each vent cap slowly into the cell to make a good seal. Rutkoski opined that someone had "hit [one of the vent caps] with great force trying to force it into the holes and it caught up on the sides and it has spread the vent barrels out." Rutkoski further explained that the bent and deformed vent cap allowed an opening where a spark could enter the cell and cause an explosion. He opined that this was a "possible cause" of the explosion in this case. He noted two other "holes" on the vent cap that could have caused the explosion. Both of those holes, he concluded, were also caused by the vent cap being struck. Rutkoski explained that vent caps are very tight fitting and when people are unable to align them properly, they use whatever is at hand to pound them in, not realizing this will cause damage.² Rutkoski testified that the spark could also have entered the battery by the negative terminal if the terminal was broken out on the negative side. However, Tanner testified that he did not take the battery out of its casing.

The pertinent part of the warning on the battery stated:

Danger, explosive gases. Sparks, flames, cigarettes may explode battery causing severe injury or blindness. Shield eyes and face from battery. Tools and cable clamps can make sparks. Do not use without instructions. Keep battery well ventilated.

There was not a warning on the battery advising against pounding on the vent caps or informing consumers that a spark or flame could access the explosive gases if a vent cap were damaged.

At the close of Tanner's case, Exide moved for a directed verdict on the ground that there was no evidence in the record indicating the battery was negligently designed, the warnings on the battery were inadequate, or the warnings on the battery had any causal connection to the explosion of the battery. The trial court granted the motion and entered judgment in favor of Exide.

On appeal, Tanner contends the trial court erroneously exercised its discretion in excluding Runyan's testimony, and, even without that testimony, the trial court erred in directing a verdict in favor of Exide. Tanner contends the battery was in a defective condition when it left Exide's control—that the design was defective in that there was not a warning alerting the consumer that pounding on the vent caps could damage them, and that damaged vent caps could cause an explosion. He asserts there was sufficient evidence to go to the jury on the question whether the warning on the battery was inadequate and thus made the product unreasonably dangerous when used, or misused, in a foreseeable manner.

DISCUSSION

Applicable Law—Strict Products Liability³

[1, 2]

Under the theory of strict products liability, a manufacturer is liable for the harm caused by a product to the user or consumer if: (1) the product was in defective condition when it left the possession or control of the seller, (2) it was unreasonably dangerous to the user or consumer, (3) the defect was a cause of the plaintiff's injuries or damages, (4) the seller engaged in the business of selling such product (it was not an isolated transaction unrelated to the principal business of the seller), and (5) the product was one that the seller expected to, and that did, reach the user or consumer without substantial change in the condition it was in when he or she sold it. Dippel v. Sciano, 37 Wis. 2d 443, 460, 155 N.W.2d 55, 63 (1967); see also Kozlowski v. John E. Smith's Sons Co., 87 Wis. 2d 882, 892, 275 N.W.2d 915, 919 (1979)

. In this case we are concerned only with the first three factors, because it is undisputed that Exide engaged in the business of selling batteries and that Exide expected its battery to reach the consumer without substantial change. Although determining whether a product is defective and whether a product is unreasonably dangerous are two separate inquiries, see Sumnicht v. Toyota Motor Sales U.S.A., Inc., 121 Wis. 2d 338, 367, 360 N.W.2d 2, 15 (1984), as a practical matter courts usually address them together. See, e.g., id. at 370-74, 360 N.W.2d at 16-19.

[3-5]

In order for a defective design to render a product unreasonably dangerous the defect must be hidden from the ordinary consumer, that is, not an open and obvious defect. Kozlowski, 87 Wis. 2d at 894, 275 N.W.2d at 920. Wisconsin has adopted comments "g" and "i" to section 402A of the Restatement of Torts, which explain that a product is defective if it is "in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him"; and that for a product to be considered "unreasonably dangerous," it "must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Id. at 893, 275 N.W.2d at 920 (quoting RESTATEMENT (SECOND) OF TORTS § 402A, cmts. g and i (1965)). Typically, whether a condition is an open and obvious danger is a question of fact for the jury to determine. Hansen v. New Holland North America, Inc., 215 Wis. 2d 655, 667, 574 N.W.2d 250, 254 (Ct. App. 1997), review denied, 217 Wis. 2d 521, 580 N.W.2d 690 (1998); see also Gracyalny v. Westinghouse Elec. Corp., 723 F.2d 1311, 1322 (7th Cir. 1983)

(applying Wisconsin law).

[6-8]

If a product is designed and manufactured to be as safe as possible, but still contains a hidden danger, the manufacturer has a duty to warn the consumer of the hidden danger. See Kozlowski, 87 Wis. 2d at 899,

275 N.W.2d at 922-23. The warning must be adequate and appropriate under the circumstances. See Schuh, 63 Wis. 2d at 739, 218 N.W.2d at 285. A manufacturer must "anticipate the environment which is normal for the use of his product." Kozlowski, 87 Wis. 2d at 896, 275 N.W.2d at 921. In other words, the manufacturer has the duty to foresee all reasonable uses and misuses and the resulting foreseeable dangers. Schuh, 63 Wis. 2d at 742-43, 218 N.W.2d at 286-87. The duty to warn arises when the manufacturer has, or should have, knowledge of a dangerous use. Krueger v. Tappan Co., 104 Wis. 2d 199, 207, 311 N.W.2d 219, 223 (Ct. App. 1981).

[9, 10]

An inadequate warning on a product can, by itself, render the design defective. Westphal v. E.I. du Pont de Nemours & Co., 192 Wis. 2d 347, 363, 531 N.W.2d 386, 391 (Ct. App. 1995); Krueger, 104 Wis. 2d at 206, 311 N.W.2d at 223 (citing RESTATEMENT (SECOND) OF TORTS § 402A cmts. h and j). Whether a warning is adequate is generally an issue of fact to be determined by the jury. See, e.g., Schuh, 63 Wis. 2d at...