WILKIE, C. J.
This is a "crashworthiness" products liability case arising from an automobile accident in which plaintiffs-appellants, Jane and Raymond Arbet were burned following the rupture of their vehicle's gasoline tank and ignition of the fuel. The Arbets sued defendant Mark Gussarson, the driver of the car that rear-ended their car, and defendant-respondent American Motors Corporation, the manufacturer of the Arbets' car. Gussarson is not a party to this appeal. The Arbets allege American Motors negligently designed and manufactured their car and that such negligence, while not causing the collision itself, did proximately cause the burn injuries. The trial court sustained American Motors' demurrer to plaintiffs' second amended complaint and judgment was entered accordingly. Plaintiffs appeal and we reverse.
The sole issue raised by this appeal is whether an automobile manufacturer may incur liability for injuries to occupants of a car arising from the manufacturer's negligence in designing the car such that it is unreasonably unsafe in an accident.
We conclude that the automobile manufacturer may, and we therefore uphold the complaint as against the demurrer of American Motors Corporation.
The second amended complaint alleges the following facts: On February 15, 1972, in Kenosha county, Raymond Arbet was driving and his wife Jane was a passenger in a 1967 Rambler Station Wagon that the couple had purchased new directly from American Motors. Raymond was waiting to make a left turn when the allegedly intoxicated defendant Gussarson allegedly negligently rammed his car into the rear of the Arbets' car. The sequence of events following the collision was as follows: The front seat failed, causing Jane Arbet to be propelled
The second amended complaint attempts to state causes of action against American Motors based upon ordinary negligence and upon strict liability.
This complaint states a cause of action for strict liability under Wisconsin products liability law.
The doctrine of strict products liability under sec. 402A of the Restatement of Torts 2d
In the instant case, plaintiffs primarily allege that the car was defectively designed so that it was unreasonably dangerous in an accident. Plaintiffs do not ask that cars be built like Sherman tanks; rather, merely that they not contain design features rendering them unreasonably unsafe in an accident.
There is no question that the complaint alleges facts showing the car to be "unreasonably dangerous" in an accident—particularly the allegations concerning the plastic apparatus retaining gasoline in the passenger compartment indicate unreasonable danger.
The fact that the defect relates to design rather than negligent manufacture makes no difference. In Schuh v. Fox River Tractor Co.
"We are of the opinion that there is credible evidence upon which the jury could find that the positioning of the lever was unusual and misleading. There is credible evidence that the location of the clutch lever contradicted the custom and practice of other manufacturers, who designed their machines in accordance with the accepted functional design engineering rule explained by Dr. Wardle. The jury could well have concluded that the placement of this lever could lead a potential user of the machine to believe he was stopping both the auger and the fan when he pulled the lever. In the absence of a warning to the contrary, the jury could well conclude
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 sues 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. To be an "unreasonably dangerous" defect for strict products liability purposes, comment i to sec. 402A, Restatement, 2 Torts 2d, says in part:
". . . 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."
Thus, under this definition, 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.
Additionally it is not important that the defect did not actually cause the initial accident, as long as it was a substantial factor in causing injury as alleged in plaintiffs' complaint. As this court held in Schnabl v. Ford Motor Co.:
". . . Appellant is not suing for total injuries, but for the death alleged to have been caused by the incremental injury which occurred because of the faulty seat belt.
"This court has held that `The test of cause in Wisconsin is whether the defendant's negligence was a substantial
Defendant argues that there can be no liability here because plaintiffs misused the car, i.e., cars were not intended to be "used" to have an accident. Defendant argues that even though accidents are foreseeable, that does not establish a duty on the part of the manufacturer to design a reasonably safe car.
For two reasons, however, defendant is wrong. First, plaintiffs did not misuse the car. They did not intentionally have an accident or use the car to knock down trees in a forest. The accident occurred while plaintiffs were using the car for the purpose for which it was intended, normal driving on the highway. Second, even if the plaintiffs did misuse the car, that would not ipso facto defeat their claim if the misuse, or risk of an accident, was reasonably foreseeable. Clearly the risk that a car may be in a rear-end accident is reasonably foreseeable by defendant. Therefore, defendant has a duty to anticipate that risk. As the court said in Schuh:
"`. . . "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
However, as the court also noted in Schuh, misuse of a product may be considered contributory negligence:
". . . Every manufacturer intends his machinery to be used safely. But it is not necessarily a complete defense to liability to show that the machine was being used otherwise. Under certain circumstances, misuse may constitute contributory negligence and thus be a factor in the comparison of negligence."
Thus it is clear that plaintiffs' complaint states a cause of action for strict products liability under Wisconsin law. In view of our conclusion, it is unnecessary to extensively examine the numerous cases cited by the parties from other jurisdictions.
In Larsen, plaintiff sued General Motors for injuries caused by the allegedly negligent design of a Corvair's steering column which, in a head-on collision, allegedly acted as a spear propelled with great force directly at the driver's head. The court reversed the trial court's grant of summary judgment, and allowed plaintiff to proceed to trial. Concerning the problem of misuse the court said:
Concerning the problem of imposing liability based upon design as opposed to construction defects, the court said:
". . . We perceive of no sound reason, either in logic or experience, nor any command in precedent, why the manufacturer should not be held to a reasonable duty of care in the design of its vehicle consonant with the state of the art to minimize the effect of accidents. The manufacturers are not insurers but should be held to a standard of reasonable care in design to provide a reasonably safe vehicle in which to travel. . . .
". . . The duty of reasonable care in design should be viewed in light of the risk. While all risks cannot be eliminated nor can a crash-proof vehicle be designed under the present state of the art, there are many commonsense factors in design, which are or should be well known to the manufacturer that will minimize or lessen the injurious effects of a collision. The standard of reasonable care is applied in many other negligence situations and should be applied here.
Defendant finally argues that several public policy considerations dictate that no liability should flow from injuries caused by an automobile designed so that it is unreasonably dangerous. We disagree.
First, defendant raises the spectre of a deluge of litigation flooding both the courts and automobile manufacturers. It seems doubtful that a large number of additional actions would be commenced, although it does seem likely that automobile manufacturers will more frequently be joined as parties defendant. However, regardless of the amount of increased litigation that might arise it would be highly inequitable to create a special exception to the products liability doctrine for automobiles.
Second, defendant asserts that unsophisticated juries would not be able to properly evaluate the complex economic and engineering data that would be presented at trial. However, juries are always called upon to make decisions based upon complex facts in many different kinds of litigation. Skillful trial lawyers should be able to reduce complicated concepts to ideas readily understandable to lay juries. The problems presented in products liability jury trials would appear no more insurmountable
Finally, defendant argues that the national character of the automobile industry dictates that automobile design not be subject to piecemeal regulation by different juries in different states. Defendant argues that the problem of designing safe cars is for the Congress, not state courts, and that federal safety regulations established by the National Highway Traffic Safety Administration, pursuant to the National Traffic and Motor Vehicle Safety Act of 1966,
"Continuation of common law liability
"(c) Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law."
Thus Congress felt that federal regulations should be supplementary to the common law of products liability. Defendant's argument that the problem of automobile design is exclusively legislative must therefore be rejected.
By the Court.—Order and judgment reversed; cause remanded for further proceedings not inconsistent with this opinion.
DAY, J., took no part.
"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 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." Restatement, 2 Torts 2d, pp. 347, 348, sec. 402A.