Westlund v. Werner Co., 95-C-907-C.

• Citation: 971 F.Supp. 1277
• Decision Date: 15 July 1997
• Docket Number: No. 95-C-907-C.,95-C-907-C.
• Parties: Carl WESTLUND and Bernadine Westlund, Plaintiffs, and Donna Shalala, Secretary of Department of Health and Human Services Office of General Counsel and Community Financial and Insurance Corporation, Subrogated Plaintiffs, v. WERNER CO. and Manufacturers Indemnity and Insurance Company of America, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

971 F.Supp. 1277

Carl WESTLUND and Bernadine Westlund, Plaintiffs and Donna Shalala, Secretary of Department of Health and Human Services Office of General Counsel and Community Financial and Insurance Corporation, Subrogated Plaintiffs, v. WERNER CO. and Manufacturers Indemnity and Insurance Company of America, Defendants.

No. 95-C-907-C.

United States District Court, W.D. Wisconsin.

July 15, 1997.

Kirtt E. Godager, Coyne, Niess, Schultz, Becker & Baue, Madison, WI, for Carl Westlund, Bernadine Westlund.

Mark A. Cameli, Asst. U.S. Atty., Madison, WI, for Donna Shalala.

Donald P. O'Meara, Mitchell, Baxter, O'Meara & Mathie, Milwaukee, WI, for Community Financial and Ins. Corp.

Allen C. Schlinsog, Jr., Kravit, Gass & Weber, S.C., Milwaukee, WI, for Werner Co., Manufacturers Indem. and Ins. Co. of America.

OPINION AND ORDER

CRABB, District Judge.

Plaintiff Carl Westlund was injured when a ladder that he was using collapsed and he fell to the ground. Westlund and his wife, Bernadine Westlund, filed this civil action against defendant Werner Co., the manufacturer of the ladder, and its insurer, Manufacturers Indemnity and Insurance Company of America, alleging that Werner Co. was negligent in designing the ladder and strictly liable for Mr. Westlund's injuries as well because the ladder was unreasonably dangerous. Defendants have moved for summary judgment, contending that plaintiffs are barred from recovery because the danger posed by the ladder was open and obvious. I conclude that the open and obvious danger doctrine is part of a comparative negligence analysis under Wisconsin law and that a jury rather than a court should make the negligence comparison in this case, even if it is clear that plaintiff bears considerable responsibility for his injuries. Accordingly, defendants' motion for summary judgment will be denied.

From the parties' proposed findings of fact and for the purpose of deciding this motion, I find the following facts to be undisputed.¹

UNDISPUTED FACTS

Plaintiffs Carl and Bernadine Westlund are citizens of the state of Wisconsin. Defendant Werner Co. is a Pennsylvania corporation with its corporate headquarters in the state of Pennsylvania. Defendant Manufacturers Indemnity Insurance Company of America is a foreign insurance company with its principal place of business in the state of Colorado. Subrogated plaintiff Donna E. Shalala is the Secretary of the United States Department of Health and Human Services, which is responsible for the Health Care Financing Administration that administers Medicare benefits. Subrogated plaintiff Community Financial and Insurance Corporation is an insurer with a place of business in the state of Wisconsin that at all times relevant to this action provided an insurance policy covering plaintiff Carl Westlund.

In the mid-1980's, plaintiff Carl Westlund purchased a model F366 Job Master II ladder designed and manufactured by defendant Werner Co. The F366 Job Master II is considered a "flip-up" ladder because it can be used as a step ladder or one side can be "flipped-up" to create a longer straight ladder. Defendant Werner Co. is the only company that manufactures this type of ladder. When the F366 Job Master II is employed as a straight ladder, its two locking clamps are to be engaged to hold the "flipped-up" side in place. The ladder contains at least three separate labels warning users to engage the locking clamps. One warning label has a diagram showing how to engage the locks. The ladder can be collapsed in only one direction.

On August 28, 1994, plaintiff Carl Westlund placed his F366 Job Master II as a straight ladder against the side of his home to enable him to reach the roof. He had read all the warning labels and knew that he was supposed to engage the locking clamps but forgot to do so. Mr. Westlund's wife was going to steady the ladder for him, but when she left and did not return quickly, he climbed the ladder to the roof by himself. When he started to climb down, the ladder collapsed, he fell and was rendered a paraplegic.

At the time of the accident, Westlund had worked as a professional mason for over 25 years and had used a variety of ladders and scaffolds. He had used his F366 Job Master II on prior occasions as a straight ladder without engaging the locks and had not been injured. Even if the locking clamps are not engaged, the ladder may be used without collapsing if the user keeps his weight on the ladder in a normal fashion. On the day of the accident, the locking clamps on plaintiffs' ladder were in working condition.

In designing the F366 Job Master II, defendant Werner Co. considered various alternative locking mechanisms, including a spring clip that would lock automatically, but did not incorporate the spring clip because it was prone to damage and defendant did not think it had any advantages over the locking clamps. Defendant knew that the ladder could collapse if the locking clamps were not engaged but did not believe that anyone would use the ladder without engaging the clamps. Alternative automatic locking systems are available that would not change the inherent usefulness of the ladder or render it unduly expensive.

OPINION

I. DIVERSITY JURISDICTION AND THE ERIE PRINCIPLE

I begin with a familiar principle: federal courts hearing cases pursuant to their diversity jurisdiction, 28 U.S.C. § 1332, must apply state substantive law, commonly that of the forum state. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Both sides agree that Wisconsin substantive law governs the resolution of this case. Where a question of state law is unclear, a federal court must predict how the highest court of the state would decide the question today. See Boland v. Engle, 113 F.3d 706, 710 (7th Cir.1997); McGeshick v. Choucair, 72 F.3d 62, 65 (7th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1834, 134 L.Ed.2d 937 (1996). In making that prediction, decisions of the lower state courts may be helpful. See King v. Damiron Corp., 113 F.3d 93, 95 (7th Cir. 1997); Arnold v. Metropolitan Life Ins. Co., 970 F.2d 360, 361 (7th Cir.1992).

II. OPEN AND OBVIOUS DANGER DOCTRINE

Plaintiffs contend that defendant Werner Co. was negligent in designing the F366 Job Master II and is strictly liable for Carl Westlund's injuries because the ladder was unreasonably dangerous. Defendants counter with the argument that the danger posed by the ladder was open and obvious and that plaintiff is barred from recovery under both his claims. See Griebler v. Doughboy Recreational, Inc., 160 Wis.2d 547, 560, 466 N.W.2d 897 (1991) (open and obvious danger defense applies whether action sounds in negligence or strict products liability). The resolution of defendants' motion requires a careful look at the application of the open and obvious danger doctrine in this state.

Historically, the open and obvious danger doctrine has had two distinct meanings under Wisconsin law. Hertelendy v. Agway Ins. Co., 177 Wis.2d 329, 334, 501 N.W.2d 903 (Ct.App.1993). The first has its roots in the common law doctrine that landowners are immune from liability for injuries caused to invitees by conditions or activities that present obvious dangers. Id. at 334-35, 501 N.W.2d 903. The theory is that a landowner owes no duty to warn or protect an invitee who should be able to protect himself from obvious dangers. The most common application of this version of the open and obvious danger doctrine has been to cases involving plaintiffs who were injured by diving into shallow water or water of unknown depth. See Scheeler v. Bahr, 41 Wis.2d 473, 164 N.W.2d 310 (1969) (plaintiff barred from recovery); Wisnicky v. Fox Hills Inn & Country Club, Inc., 163 Wis.2d 1023, 473 N.W.2d 523 (Ct.App.1991) (same); Davenport v. Gillmore, 146 Wis.2d 498, 431 N.W.2d 701 (Ct.App.1988) (same); Colip v. Travelers Ins. Co., 141 Wis.2d 363, 415 N.W.2d 525 (Ct.App.1987) (same). The courts have held consistently that landowners owe no duty to protect invitees from the dangers of diving into shallow water. In addition to landowner-invitee relationships, the doctrine's first embodiment has been extended to cases involving manufacturer-consumer relationships in products liability cases. See Griebler, 160 Wis.2d 547, 466 N.W.2d 897 (affirming summary judgment against plaintiff who had sued pool manufacturer when he was injured after diving into water of unknown depth). Thus, under the first meaning of the doctrine, a defendant has no duty to protect a plaintiff from a danger that is open or obvious. A plaintiff who is injured by an open and obvious danger cannot recover from defendant because the defendant did not breach its duty of care.

Because the determination that a defendant owes plaintiff no duty runs contrary to the general presumption of Wisconsin negligence law that all persons owe one another a duty of care, see A & E Invest. Corp. v. Link Builders, Inc., 62 Wis.2d 479, 483, 214 N.W.2d 764 (1974), the first meaning of the open and obvious doctrine has been limited to landowner-invitee or manufacturer-consumer cases. The doctrine has developed a second meaning with respect to "ordinary negligence" cases, that is, those not involving a landowner-invitee or manufacturer-consumer relationship. In ordinary negligence cases, the open and obvious danger doctrine does not absolve the defendant of its duty to the plaintiff. Instead, a plaintiff's confrontation of an open and obvious danger is merely an element to be considered by the jury in apportioning negligence under Wisconsin's comparative negligence law, Wis. Stat. § 895.045. See Kloes v. Eau Claire Cavalier Baseball Ass'n, 170 Wis.2d 77, 86-87, 487 N.W.2d 77 (Ct.App.1992). When the plaintiff's disregard of an open and obvious danger shows that his negligence clearly outweighs the defendant's negligence, the court may rule as a matter of law that the plaintiff may not recover. Hertelendy, 177 Wis.2d at 339, 501 N.W.2d 903....