Tony Spychalla Farms, Inc. v. Hopkins Agr. Chemical Co., No. 87-1942

CourtCourt of Appeals of Wisconsin
Writing for the CourtMYSE
Citation151 Wis.2d 431,444 N.W.2d 743
Parties, 10 UCC Rep.Serv.2d 734, Prod.Liab.Rep. (CCH) P 12,221 TONY SPYCHALLA FARMS, INC., Plaintiff-Respondent-Cross Appellant, v. HOPKINS AGRICULTURAL CHEMICAL COMPANY and Agri-Chem Insurance Company, Ltd., d Defendants-Appellants-Cross Respondents.
Docket NumberNo. 87-1942
Decision Date20 June 1989

Page 743

444 N.W.2d 743
151 Wis.2d 431, 10 UCC Rep.Serv.2d 734,
Prod.Liab.Rep. (CCH) P 12,221
TONY SPYCHALLA FARMS, INC., Plaintiff-Respondent-Cross Appellant,
v.
HOPKINS AGRICULTURAL CHEMICAL COMPANY and Agri-Chem
Insurance Company, Ltd., d
Defendants-Appellants-Cross Respondents.
No. 87-1942.
Court of Appeals of Wisconsin.
Argued May 11, 1989.
Opinion Released June 20, 1989.
Opinion Filed June 20, 1989.

Page 745

[151 Wis.2d 433] Russell T. Golla of Anderson, Shannon, O'Brien, Rice & Bertz, Stevens Point, for defendants-appellants-cross respondents.

Joseph J. Beisenstein of Menn, Nelson, Sharratt, Teetaert & Beisenstein, Ltd., Appleton, for plaintiff-respondent-cross appellant.

[151 Wis.2d 434] Before CANE, P.J., and LaROCQUE and MYSE, JJ.

MYSE, Judge.

Hopkins Agricultural Chemical Company appeals a judgment awarding Tony Spychalla Farms, Inc., $227,050 under a strict liability theory for damages to seed potatoes caused by Captan dust that Hopkins manufactured. Hopkins asserts that Spychalla cannot recover in strict liability for damage to property and that Spychalla does not have a cause of action for economic damages based upon loss of expectation of performance of Hopkins' product. Hopkins also raises a variety of other issues regarding the sufficiency of the evidence on both liability and damages. Spychalla cross-appeals, arguing that the jury erroneously reduced his damage award by five percent, the amount of negligence it attributed to him. He also contends that he is entitled to recover $75,920 in interest expenses.

We conclude that Wisconsin law recognizes a cause of action in strict liability for actual damages a defective product causes to property, and that Spychalla's loss involved such damage. Because we also reject the parties' remaining arguments, we affirm the judgment.

Spychalla has been a potato farmer in Antigo for over thirty years. He is a certified seed grower, i.e., the potatoes he grows are generally sold to other farmers to be planted as seed the following year. There are two kinds of seed. Whole seed, or "B" seed, consisting of relatively small tubers that are planted whole, and cut seed, consisting of larger tubers cut into pieces and planted.

After harvesting his potatoes in fall, 1982, Spychalla treated his crop with a chemical called Fusarex before storing it

Page 746

for the winter. Fusarex is a dust that forms a gas around the treated potatoes and acts as a sprout suppressant. He planted as usual in the spring of 1983. [151 Wis.2d 435] However, before planting the cut seed, he treated it with Hopkins' Captan dust to prevent the seed from rotting before it had a chance to sprout. This treatment is apparently done when the weather is cold and wet, rendering the seed more susceptible to rot.

In mid-June, Spychalla noticed that there was little or no plant emergence in some portions of his fields, and that some of the plants appeared stunted. He dug up some of the seed potatoes and found that they were petrifying. Spychalla's 1983 potato crop was substantially reduced.

In December, 1983, Spychalla filed suit against Hopkins, which manufactured and distributed the dust, and Allen Supply Co., the retailer who sold the dust to Spychalla. The complaint alleged that the dust caused "extensive damage and loss of production to the plaintiff's potato crop resulting [in] loss of income, increased production costs, increased costs in attempting to mitigate the loss, and serious cash flow shortage to the plaintiff's business." The theories advanced were express and implied warranty, strict liability and negligence (failure to warn of product's effects). However, the case was only submitted to the jury on the strict liability theory. The jury found that:

1. The Captan dust sold to Spychalla in 1983 was defective so as to be unreasonably dangerous to the potato seed;

2. This defect was a cause of crop damage sustained by Spychalla Farms in 1983;

3. The Fusarex was not defective so as to be unreasonably dangerous to the potato seed;

4. Spychalla Farms was negligent with respect to its 1983 potato crop; and

[151 Wis.2d 436] 5. This negligence was a cause of crop damage sustained by Spychalla Farms in 1983.

(Paraphrased from special verdict.) In apportioning negligence, the jury found Hopkins ninety-five percent causally negligent and Spychalla five percent causally negligent. It then awarded $239,000 as the sum that would fairly and reasonably compensate Spychalla Farms for damages to its 1983 crop.

Hopkins first argues that Wisconsin law permits no recovery under the strict liability theory for damages Spychalla sustained. This presents a question of law that we review independently of the trial court's determination. Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 148 Wis.2d 910, 915, 437 N.W.2d 213, 215 (1989). Hopkins argues that the strict liability theory was adopted solely to create a cause of action where a product causes personal injury, and that expanding the theory to encompass property damage is an unnecessary and undesirable extension of current law. We disagree that the application of the theory in this case represents an extension of current law.

The theory of strict liability was adopted in Wisconsin in Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967). In Dippel, the supreme court specifically adopted the rule of strict liability as set forth in sec. 402A of the Restatement (Second) of Torts (1965). Section 402A provides:

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 or to his property is subject to liability for physical [151 Wis.2d 437] 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 product, 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. (Emphasis supplied.)

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The adoption of sec. 402A allows recovery for both personal injury and property damage caused by a defective product that is unreasonably dangerous to the user or his property. Hopkins argues that this rule was modified in Sunnyslope so as to preclude recovery here.

We do not find Sunnyslope authoritative as to whether strict liability may be used to recover for property damage caused by a defective product that is unreasonably dangerous when the defective product damages other property. The court in Sunnyslope held that "a commercial purchaser of a product cannot recover solely economic losses from the manufacturer under negligence or strict liability theories, particularly, as here, where the warranty given by the manufacturer specifically precludes the recovery of such damages."

The product under consideration in Sunnyslope was a backhoe, a piece of construction equipment. Certain parts of the backhoes broke or wore out, but these failures did not cause any personal injury, nor did they [151 Wis.2d 438] damage any...

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  • State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., No. 97-2594
    • United States
    • United States State Supreme Court of Wisconsin
    • May 4, 1999
    ...the plaintiff's damages stemmed from the failure of the product to perform as expected); and Spychalla Farms v. Hopkins Agr. Chem., 151 Wis.2d 431, 444 N.W.2d 743 (Ct.App.1989) (allowed tort damages because the defective product caused physical damage to other Recovery for economic loss is ......
  • Grams v. Milk Products, Inc., No. 2003AP801.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 8, 2005
    ...of that damage was entirely unanticipated. ¶ 38. The 1989 case of Tony Spychalla Farms, Inc. v. Hopkins Agricultural Chemical Company, 151 Wis. 2d 431, 444 N.W.2d 743 (Ct. App. 1989), is often cited as the prime example of the corollary principle ... the "flip side" of D'Huyvetter. See Rich......
  • Wausau Tile, Inc. v. County Concrete Corp., No. 97-2284
    • United States
    • United States State Supreme Court of Wisconsin
    • May 28, 1999
    ...216 Wis.2d at 402, 573 N.W.2d 842; Northridge, 162 Wis.2d at 937, 471 N.W.2d 179; Tony Spychalla Farms, Inc. v. Hopkins Agric. Chem. Co., 151 Wis.2d 431, 438, 444 N.W.2d 743 (Ct.App.1989). Similarly, claims which allege economic loss in combination with non-economic loss are not barred by t......
  • Godoy ex rel. Gramling v. E.I. Du Pont De Nemours & Co., No. 2006AP2670.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 14, 2009
    ...of Schilling v. Blount, Inc., 152 Wis.2d 608, 449 N.W.2d 56 (Ct.App. 1989); • Tony Spychalla Farms, Inc. v. Hopkins Agr. Chemical Co., 151 Wis.2d 431, 444 N.W.2d 743 (Ct.App. • St. Clare Hosp. of Monroe v. Schmidt, Garden, Erickson, Inc., 148 Wis.2d 750, 437 N.W.2d 228 (Ct.App. 1989); • O'B......
  • Request a trial to view additional results
42 cases
  • State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., No. 97-2594
    • United States
    • United States State Supreme Court of Wisconsin
    • May 4, 1999
    ...the plaintiff's damages stemmed from the failure of the product to perform as expected); and Spychalla Farms v. Hopkins Agr. Chem., 151 Wis.2d 431, 444 N.W.2d 743 (Ct.App.1989) (allowed tort damages because the defective product caused physical damage to other Recovery for economic loss is ......
  • Grams v. Milk Products, Inc., No. 2003AP801.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 8, 2005
    ...of that damage was entirely unanticipated. ¶ 38. The 1989 case of Tony Spychalla Farms, Inc. v. Hopkins Agricultural Chemical Company, 151 Wis. 2d 431, 444 N.W.2d 743 (Ct. App. 1989), is often cited as the prime example of the corollary principle ... the "flip side" of D'Huyvetter. See Rich......
  • Wausau Tile, Inc. v. County Concrete Corp., No. 97-2284
    • United States
    • United States State Supreme Court of Wisconsin
    • May 28, 1999
    ...216 Wis.2d at 402, 573 N.W.2d 842; Northridge, 162 Wis.2d at 937, 471 N.W.2d 179; Tony Spychalla Farms, Inc. v. Hopkins Agric. Chem. Co., 151 Wis.2d 431, 438, 444 N.W.2d 743 (Ct.App.1989). Similarly, claims which allege economic loss in combination with non-economic loss are not barred by t......
  • Godoy ex rel. Gramling v. E.I. Du Pont De Nemours & Co., No. 2006AP2670.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 14, 2009
    ...of Schilling v. Blount, Inc., 152 Wis.2d 608, 449 N.W.2d 56 (Ct.App. 1989); • Tony Spychalla Farms, Inc. v. Hopkins Agr. Chemical Co., 151 Wis.2d 431, 444 N.W.2d 743 (Ct.App. • St. Clare Hosp. of Monroe v. Schmidt, Garden, Erickson, Inc., 148 Wis.2d 750, 437 N.W.2d 228 (Ct.App. 1989); • O'B......
  • Request a trial to view additional results

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