Submitted under sec. (Rule) 251.54 June 5, 1974.
HALLOWS, C. J.
Hunt argues there is not sufficient evidence to sustain the verdict finding it liable for the injuries sustained by Powers. Hunt raises two other questions, i.e., the verdict is contrary to law or evidence and it was error not to grant its motion to dismiss and for a directed verdict. These latter two questions are premised upon the insufficiency of the evidence. Powers was employed as a cook at Curley's Restaurant and it was his duty to make noon lunches and to order food stuff necessary therefor. He regularly ordered food stuff from Dairy State Butter and Egg Company which included a case of Hunt's ketchup per week. The ketchup was delivered in a sealed cardboard carton with sheets of cardboard separating the 24 bottles contained therein. The cartons were carried into the basement storeroom by the deliveryman and placed on the floor. The case was opened and inspected and the bottles placed on the shelf in the storage room by the porter of Curley's. Each day the porter or a waitress would carry as many bottles of ketchup as were needed from the storage room and place them on a shelf upstairs in the restaurant between the grill and the lunch counter.
On Saturday, May 7, 1966, while engaged in making the noon lunch, Powers took a full bottle of Hunt's ketchup from the shelf and tried to turn the cap to open the bottle; he was unsuccessful and so tapped the cap end of the bottle twice lightly on his cutting board, then tried to turn the cap again but was unsuccessful. He then lightly
In Dippel v. Sciano (1967), 37 Wis.2d 443, 155 N.W.2d 55, this court adopted the rule of strict liability in tort as set forth in sec. 402A of Restatement, 2 Torts 2d, pp. 347, 348 (at p. 459):
"`(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer to his property is subject to liability for physical 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
"`(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.'"
In adopting the rule of this section, this court neither accepted nor rejected any of the comments. The rule as stated is broad enough to cover as its basis public policy to support absolute liability or negligence to support strict liability. The court was careful to point out in Dippel that the term "strict liability" might be misconstrued as "absolute liability" and, if so, would be a misnomer. It was clearly pointed out that strict liability does not make the manufacturer or seller an insurer nor does it impose absolute liability. Absolute liability is imposed for public policy reasons and admits of no exceptions or defenses. Strict liability in this state at least means negligence as a matter of law or negligence per se, and the effect of the adoption of the rule of strict liability based on this negligence in effect shifts the burden of proof from the plaintiff of proving specific acts of negligence to the defendant to prove he was not negligent in any respect. In this respect, the rule in Wisconsin impliedly qualifies the Restatement of Torts 2d in sec. 402A, which states the rule of sub. (1) "applies although (a) the seller has exercised all possible care in the preparation and sale of his product." One must read this section as meaning the Restatement rule in sec. 402A (1) is the starting point and is prima facie liability based on negligence but does not foreclose the defendant from proving he was not negligent.
Consequently, in Wisconsin where we have comparative negligence, many defenses including contributory
". . . the plaintiff must prove (1) that the product was in defective condition when it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause (a substantial factor) of the plaintiff's injuries or damages, (4) that the seller engaged in the business of selling such product or, put negatively, that this is not an isolated or infrequent transaction not related to the principal business of the seller, and (5) that the product was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was when he sold it."
There is no question from the evidence that the defect in the bottle was a substantial factor in the case of Powers' injuries or that Hunt engaged in the business of selling such product and this was not an isolated or infrequent transaction not related to the principal business of Hunt. Likewise, the ketchup bottle was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was when it was sold. This leaves for consideration the question of whether the product was in a defective condition when it left the possession or control of Hunt and whether it was unreasonably dangerous to the user or consumer.
We make no distinction between the ketchup, i.e., the contents of the bottle and the bottle; there was nothing
Hunt argues the jury must have reasoned there was a defect in the bottle from the fact the bottle broke and this was the application of the doctrine of res ipsa loquitur as laid down in Weggeman v. Seven-Up Bottling Co. (1958), 5 Wis.2d 503, 93 N.W.2d 467, 94 N.W.2d 645, and Zarling v. La Salle Coca-Cola Bottling Co. (1958), 2 Wis.2d 596, 87 N.W.2d 263. It was expressly stipulated the doctrine of res ipsa loquitur would not be the subject of an instruction to the jury. We see no violation of the stipulation. The stipulation was merely that there would be no instruction on res ipsa loquitur, not that the jury could not reason along the same lines. With the doctrine of strict liability based on negligence per se, there is no need to apply the doctrine of res ipsa loquitur because the doctrine itself places negligence upon the manufacturer. In proving the ketchup bottle was in a defective condition when it left the possession or control of Hunt, Powers had to prove it was in a defective condition when he used it and that condition existed when it left the control of Hunt. The uncontradicted testimony in this case is that when Powers used the bottle, it was in the same condition as when it left the control of Hunt. Since there was no evidence of its being damaged in transit from Hunt to Powers, it is necessary to determine whether the bottle was defective at the time Powers used it. While this court has held a defect in a product cannot be determined solely from the
Since the evidence in this case negates any other possible cause of the bottle's failure since it left Hunt's control other than the product's own defective condition and since the evidence also shows Powers' use of the bottle was reasonable and in accordance with the usage of mankind and since the other bottles in the carton and in prior cartons had not broken, a circumstantial inference may be drawn by the trier of the fact that the bottle which broke in Powers' hands was defective.
By the Court.—Judgment affirmed.
". . . `Intended use' is but a convenient adaptation of the basic test of `reasonable foreseeability' framed to more specifically fit the factual situations out of which arise questions of a manufacturer's liability for negligence. `Intended use' is not an inflexible formula to be apodictically applied to every case. Normally a seller or manufacturer is entitled to anticipate that the product he deals in will be used only for the purposes for which it is manufactured and sold; thus he is expected to reasonably foresee only injuries arising in the course of such use.
"However, he must also be expected to anticipate the environment which is normal for the use of his product and where, as here, that environment is the home, he must anticipate the reasonably foreseeable risks of the use of his product in such an environment. These are risks which are inherent in the proper use for which his product is manufactured."
See also: 2 Frumer, Products Liability, Scope of Strict Liability, pp. 3-297 to 3-301, sec. 16A (4) (d) where it is said that "[i]f the plaintiff can be shown to have used the product in a manner other than its intended use, and particularly if that abnormal use related to the occurrence of the injury, liability should not follow unless the abnormal use was itself foreseeable." (Emphasis supplied.)