Vincer v. Esther Williams All-Aluminum Swimming Pool Co.

• Decision Date: 30 June 1975
• Docket Number: No. 454,ALL-ALUMINUM,454
• Parties: Curt VINCER, by his guardian ad litem, Robert L. Habush et al., Appellants, v. ESTHER WILLIAMSSWIMMING POOL COMPANY et al., Respondents.
• Court: Wisconsin Supreme Court

Page 794

230 N.W.2d 794

69 Wis.2d 326

Curt VINCER, by his guardian ad litem, Robert L. Habush et al., Appellants, v. ESTHER WILLIAMS ALL-ALUMINUM SWIMMING POOL COMPANY et al Respondents.

No. 454.

Supreme Court of Wisconsin.

June 30, 1975.

This is a products liability case. The second amended complaint alleges that Curt Vincer, the injured plaintiff-appellant, who was two years old at the time of the July 13, 1970, incident, fell into a swimming pool in the backyard of the home of his grandparents, whom he was visiting. The complaint alleges that a retractable ladder to the above-ground pool had been left in the down position, that the pool was unsupervised, and that Curt climbed the ladder, fell into the water and remained there for an extended period of time, resulting in severe brain damage causing permanent and total disablement. On behalf of Curt, suing by his guardian ad litem, the complaint seeks five million dollars of damages from the manufacturer of the pool, defendant-respondent Esther Williams All-Aluminum Swimming Pool Company, and from defendant-respondent Banner Builders, Inc., who sold and installed the pool. In addition, Curt's parents seek damages of one million dollars for medical expenses and loss of society and companionship. Esther Williams demurred to the complaint on the grounds of failure to state facts sufficient to constitute a cause of action, and filed a third-party action against the grandparents. The appeal is from the trial court's order and judgment sustaining the demurrer and dismissing the complaint.

The complaint states causes of action based upon both negligence and strict liability, due to the defendants' failure to equip the pool with a self-closing gate. To state a cause of action for negligence, the complaint alleges, in part:

'10A. That the defendants could have taken the entirely feasible and law-cost precaution of extending the pool fencing across the deck at the ladder opening, with a sufficient jog to clear that ladder in its up position, and with a self-closing, self-locking gate which latch could not be reached and unhooked by children the age of Curt Vincer;

'11. That the defendants, Esther Williams All-Aluminum Swimming Pool Company and Banner Builders, Inc., were careless, reckless and negligent in the following respects:

'(a) That they knew or should have known that the ladder on the pool which they sold would on occasion be left down when the pool was unguarded and when young children the age of Curt Vincer were never the pool.

'(b) That they failed to use reasonable care because they failed to provide a self-latching and self-closing gate to prevent entry into the pool area by young children the age of Curt Vincer when the ladder designed for access to the pool was in the down position, and that as a result of such negligence Curt Vincer was able to enter the pool when the pool was unsupervised;

'(c) That they were otherwise negligent in failing to give proper and adequate instructions as to use of the pool;'

To state a cause of action for strict liability, the complaint alleges, in part:

'(a) That the swimming pool was defective and unreasonably dangerous because they failed to take the reasonable and low-cost precaution of building the swimming pool so that the fencing extended across the deck at the top of the ladder opening, with a self-closing, self-latching gate on the deck of the swimming pool so as to prevent access to the swimming pool area by children of the age of Curt Vincer, even when the ladder from the deck to the ground was in the down position,

'(b) That such defect was the cause of Court Vincer's injuries '(c) That Esther Williams All-Aluminum Swimming Pool Company and Banner Builders, Inc., were in the business of selling swimming pools,

'(d) That the pool was expected by Esther Williams All-Aluminum Swimming Pool Company and Banner Builders, Inc., to and did reach the customer without substantial change and was in substantially the same condition at the time of the accident;'

Habush, Gillick, Habush, Davis & Murphy, Milwaukee, for appellants; Howard A. Davis and Jean Seaburg, Milwaukee, of counsel.

Borgelt, Powell, Peterson & Frauen, Milwaukee, for Esther Williams All-Aluminum Swimming Pool Co. and Ins. Co. of No. Amer; Thomas H. Knoll, Milwaukee, of counsel.

Kasdorf, Henderson, Dall, Lewis & Swietlik, Milwaukee, for Banner Bldrs., Inc., and Employers Mut. Cas. Co.; Kenton E. Kilmer and S. Raymond Spitz, Milwaukee, of counsel.

CONNOR T. HANSEN, Justice.

The sole issue on this appeal is whether the complaint states a cause of action against the Esther Williams All-Aluminum Swimming Pool Company and the Banner Builders, Inc., and their insurers. We conclude that it does not. Therefore, we affirm the trial court in its decision sustaining the demurrer.

In Dippel v. Sciano, ¹ this court adopted sec. 402A of Restatement, 2 Torts 2d, ² pertaining to strict liability in tort. Under this section, where the plaintiff proves he was injured by a product 'in a defective condition unreasonably dangerous to the user' and establishes the other requisite elements listed in the section, he is relieved of the burden of proving specific acts of negligence by the manufacturer who is then deemed negligent per se. ³ Where a plaintiff is unable to prove the elements necessary to recovery under a theory of strict liability, the manufacturer or seller may still be liable under a negligence theory where the plaintiff is able to prove specific negligent conduct. However, even under negligence law, the plaintiff still must prove that the product causing the injury was dangerous and defective.

Comment g to sec. 402A of Restatement, 2 Torts 2d, defines 'defective condition' in part as follows:

'g. Defective condition. The rule stated in this section applies only where the product is, at the time it leaves the seller's hands, in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.' ⁴

The particular defect in the design of the swimming pool, as alleged in the complaint, is the absence of a self-latching and closing gate to prevent entry to the pool. We are satisfied that the swimming pool is not defective in this respect because, as a matter of law, the swimming pool was as safe as it reasonably could be since it did contain a retractable ladder, which unfortunately was allegedly left down and led to the injury of the small child.

Even if a product is defective, it must be shown to be unreasonably dangerous to the user or consumer. Comment i to sec. 402A of the Restatement defines 'unreasonably dangerous' in part as follows:

'i. Unreasonably dangerous. The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by 'unreasonably dangerous' in this Section. The article sold 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.' (Emphasis supplied.) ⁵

This emphasized language has been cited with approval in the strict liability cases of Netzel v. State Sand & Gravel Co. ⁶ and Arbet v. Gussarson. ⁷

In Arbet the court upheld as against a demurrer the complaint of two automobile accident burn victims alleging that their car was unreasonably dangerous and defective because of a plastic gas line apparatus retaining gasoline in the passenger compartment. The court commented that the alleged defect in the car was a latent defect:

'. . . It must be noted also that the design characteristics complained of in the instant case were hidden dangers, not apparent to the buyer of the car, and not the subject of a manufacturer's warning. This is a different case, therefore, than a case where a plaintiff uses the manufacturer of a Volkswagen and complains that the car was designed too small to be safe. Such a defect could hardly be said to be hidden. . . . since the ordinary consumer would expect a Volkswagen to be less safe in an accident than, say, a Cadillac, the smallness of the car with the attendant danger would not per se render it inherently dangerous. Rather it must contain a dangerous defect whose presence an ordinary consumer would not reasonably expect.' ⁸

Thus, the test in Wisconsin of whether a product contains an unreasonably dangerous defect depends upon the reasonable expectations of the ordinary consumer concerning the characteristics of this type of product. If the average consumer would reasonably anticipate the dangerous condition of the product and fully appreciate the attendant risk of injury, it would not be unreasonably dangerous and defective. This is an objective test and is not dependent upon the knowledge of the particular injured consumer, although his knowledge may be evidence of contributory negligence under the circumstances. ⁹ In Schuh v. Fox River Tractor Co. ¹⁰ for example, the court held that the positioning of the clutch lever on a crop blower machine constituted an unreasonably dangerous defect because a potential user might be misled as to its function. However, the court held the particular injured plaintiff's contributory negligence greater than any negligence of the manufacturer because the plaintiff was an experienced operator of the machine and knew of the potential dangers, yet failed to exercise due care.

Based upon the principles discussed above, we conclude that the swimming pool described in plaintiff's complaint does not contain an unreasonably dangerous defect. The lack of a self-latching gate certainly falls within the category of...