We granted St. Clare Hospital leave to appeal a nonfinal order dismissing its products liability claim against Pipkorn Corporation, the supplier of bricks for an addition to the hospital facility. The order also dismissed claims for contributions from Pipkorn brought by the architect for the project (Schmidt, Garden, Erikson, Inc.) and the general contractor (J.P. Cullen & Son Construction). While Schmidt, Garden, Erickson (SGE) and Cullen agree with the trial court's resolution of the issues, they have filed cross-appeals in order to protect their contribution claims in the event of an appellate ruling that the claims were improperly dismissed.
The issue is whether a release given by St. Clare to Pipkorn pursuant to a settlement agreement released all claims, and all liability, involving the defective condition of the bricks. The trial court answered the question in the affirmative, as do we. We therefore affirm the order.
Pipkorn and St. Clare executed a "Pierringer"-type release
Based on the release, Pipkorn moved for dismissal of St. Clare's complaint against it, and also for dismissal of the cross-claims for contribution filed by SGE and Cullen. The trial court granted the motion, holding that the agreement between St. Clare and Pipkorn released all liability for the defective brick—including that of the non-party manufacturer, Locher. St. Clare contends that this was error and that, despite Pipkorn's release, it still should be able to seek recovery from the remaining negligent tortfeasors, SGE and Cullen, for Locher's share of responsibility for placing the bricks in the stream of commerce.
A release is a contract and is construed as such. Peiffer v. Allstate Ins. Co., 51 Wis.2d 329, 336, 187 N.W.2d 182, 185 (1971). The document must be considered in its entirety, and the intent of the parties ascertained from its language and from the surrounding circumstances. Brown v. Hammermill Paper Co., 88 Wis.2d 224, 233-34, 276 N.W.2d 709, 713 (1979).
The first quoted paragraph of St. Clare's release does two things, and it does them in undeniably plain language. First, it satisfies any liability for negligence that ultimately may be attributed to Pipkorn. Second, it releases Pipkorn from any and all liability arising from the defective bricks—that is, from any strict liability resulting from its role in the sale or distribution of the bricks. And because Pipkorn is the only party to the action against whom any strict liability claims exist, the trial court held that the effect of the release was to satisfy all such liability.
Under the trial court's ruling, only the negligence claims remain in the action; and while they remain as to all defendants, any negligence that may be found against Pipkorn has already been settled by St. Clare. As a result, SGE and Cullen will pay only such proportion of St. Clare's damages as the jury ultimately may assess for their negligence, and St. Clare may not look to them for such damages in strict liability as may be assessed against Locher.
St. Clare argues, however, that its "strict liability" claim based on the defective condition of the bricks is really a claim based on negligence—"negligence per se"—and that the non-party manufacturer, Locher, is thus a "joint tortfeasor" with SGE and Cullen. As a result, St. Clare contends that, should SGE and Cullen
The concept of strict products liability, as adopted by the supreme court in Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967), "focuses not on the failure to exercise ordinary care, but on whether the seller has marketed a dangerously defective product." Shawver v. Roberts Corp., 90 Wis.2d 672, 682, 280 N.W.2d 226, 231 (1979). Strict liability is "products liability." Dippel, 37 Wis. 2d at 449, 155 N.W.2d at 57. It is a liability based not on the violation of any standard of care, or any other negligent act, but solely on the defective condition of a product. Id. at 459, 155 N.W.2d at 63. And it is imposed only on manufacturers, distributors and sellers—those who place or maintain the product in the stream of commerce. Id. Indeed, it has been said that the two concepts—strict liability and negligence—are "mutually exclusive," Ghiardi & Koehn, Punitive Damages in Strict Liability Cases, 61 Marq. L. Rev. 245, 247 (1977), and the supreme court has held that the rule of strict liability "does not impose liability for negligence at all. It imposes liability for tort...." Greiten v. La Dow, 70 Wis.2d 589, 603, 235 N.W.2d 677, 685 (1975).
St. Clare disagrees and quotes from Dippel to the effect that strict liability is "akin" to negligence per se and that "[c]omparison of [ordinary negligence] and negligence per se is so common and widely approved in our jurisdiction as to need no citation." Dippel, 37 Wis. 2d at 462, 155 N.W.2d at 64. In St. Clare's words, "negligence is negligence."
Taking the Dippel quote in context, however, it is apparent that the court's reference to negligence per se was for the sole purpose of finding a way to fit the "new" concept of strict products liability into Wisconsin's comparative negligence system. And the way the court chose to do so was to analogize strict liability to the historic concept of negligence per se which, like strict liability, is not dependent upon foreseeability or "fault" in the usual sense of the term. Id., 37 Wis. 2d at 461-62, 155 N.W.2d at 64. This limited purpose was made clear in Greiten, 70 Wis. 2d at 603, 235 N.W.2d at 685, where the court stated:
The occasional, sometimes unexplained, references to negligence per se in strict liability cases, and the jury instruction and verdict forms which ask jurors in strict liability cases to take a leap of logic, if not faith, by treating the "defective condition" of a product as
Neither SGE nor Cullen were in the chain of distribution of the defective bricks, and thus they could not under any circumstances be held strictly liable for the bricks' entry or movement in that chain. And, consistent with the "deep pocket" rule of joint and several liability (which allows a plaintiff to recover all damages from any one of several jointly-responsible parties), Pipkorn, as the only solvent party in the chain of distribution, would be liable for all damages arising
Unlike the negligent tortfeasor whose liability is based on his or her acts (or failure to act), the liability of strictly liable tortfeasors arises not from any conduct on their part, but from the nature or condition of a product. As a result, where a settling plaintiff assumes the strictly liable tortfeasor's share of responsibility for the damages, leaving only ordinarily negligent tortfeasors as defendants, the plaintiff has assumed all of the liability attributable to the product. Here, Pipkorn is the only party potentially liable to St. Clare based on strict liability for the defective condition of the bricks. Because St. Clare has released Pipkorn from all liability arising from the condition of the product, it has, in effect, released the product from the lawsuit.
As to the negligent (as opposed to strictly liable) tortfeasors, SGE and Cullen—and Pipkorn, if any negligence on its part can be proved—St. Clare's right to pursue and recover from them, in proportion to their responsibility for its damages, remains intact. Obviously, because of the settlement agreement, any such liability on Pipkorn's part has been settled. But St.
By the Court.—Order affirmed.