Sophisticated Case Analysis

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The policy reasons given by the court for adopting the sophisticated user defense are, as the court concluded, sound. As the court found, the foundry is in a far better position to ensure workplace safety, and in a better position to communicate safety information to the employees.

However, it is likely that, should this decision receive further review in the Wisconsin Supreme Court, those policy reasons will have to stand on their own, because the Wisconsin cases cited by the court only weakly support the court’s holding.

Admittedly, in Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, 236 Wis.2d 435, 613 N.W.2d 412, the Wisconsin Supreme Court did adopt Section 388 of the Restatement.

However, the court interpreted the provision very differently than in the case at bar. At issue in Strasser was the open and obvious danger doctrine, not the sophisticated user defense.

Quoting Comment (k) to the section, the court stated, “It is not necessary for the supplier to inform those for whose use the chattel is supplied of a condition which a mere casual looking over will disclose, unless the circumstances under which the chattel is supplied are such as to make it likely that even so casual an inspection will not be made.”

Applying that comment in Strasser, the court held a manufacturer of a ladder was not negligent for not warning that the ladders had no safety treads. The court reasoned, “It was not necessary for Transtech to inform Strasser abut the absence of stair treads because Strasser’s actions made clear that ‘a mere casual looking over’ or ‘casual inspection’ disclosed that the treads were not there.”

The open and obvious danger defense and the sophisticated user defense may be similar, but are different in a very fundamental way — the danger in an open and obvious danger case is obvious to the ultimate “user,” while the ultimate “users” of silica sand are not the sophisticated purchaser, but the numerous unsophisticated employees.

Under the language in Section 388, a foundry employee could be considered a person “whom the supplier should expect to use the chattel,” but who is not a sophisticated user, and thus, will not “realize its dangerous condition.”

Accordingly, the mere fact that the Wisconsin Supreme Court has adopted Section 388 of the Restatement does not necessarily mean it would adopt the sophisticated user defense.

Another case cited by the court, Nigh v. Dow Chem. Co., 634 F.Supp. 1513 (W.D.Wis.1986), does not address the sophisticated user defense, either, but another related defense — the bulk supplier doctrine.

The bulk supplier doctrine recognizes that a manufacturer may be unable to control the packaging, and therefore, the warning communicated to the ultimate user, when the labels of an intermediate seller are affixed to the product.

The court in Nigh concluded, “Dow supplied a product that would carry the label of another. It could not, or did not, expect that the product would reach the ultimate user with any warnings that it might apply.” Nigh, 634 F.Supp. at 1517.

The doctrine is similar, because any warnings Badger may have given to Neenah may not necessarily reach the employees, anyway, just as any warnings Dow gives to the buyers of its products may never reach the packaging when the buyers resell the products.

It should be noted, however, that, in Nigh, the court did not grant a directed verdict to the defendant, as was done in the case at bar, but only instructed the jury on the bulk packaging doctrine.

The court in Nigh noted, “The [bulk supplier] instruction did not, as plaintiff asserts, eliminate the duty to warn. The jury was also instructed that the defendant was required to give adequate warnings to the intermediary with the reasonable expectation that they would be passed along to the ultimate user.” Nigh, 634 F.Supp. at 1517.

In contrast, when the sophisticated user defense applies, the manufacturer has no duty to warn the intermediary (foundry) at all, but places all responsibility on the intermediary to warn the ultimate users (employees).

Only Shawver v. Roberts Corp., 90 Wis.2d 672, 280 N.W.2d 226 (1979), provides meaningful support for the sophisticated user defense, but even in that case, the support is limited. There, a conveyor manufacturer sold a conveyor to Beloit Corporation, a foundry, and an employee of the foundry was injured when it started to move while he was standing on it.

	Links Wisconsin Court of Appeals Related Article Court adopts sophisticated user defense

Upholding a jury verdict finding the manufacturer not negligent, and not liable for strict products liability, the Wisconsin Supreme Court found, “the duty to warn would not apply. … The Beloit Corporation had its own engineering department, and incorporated products safety features in equipment in products it manufactured.

Ordinarily there is no duty to warn members of a trade or profession about dangers generally known to that trade or profession.”

The court continued, however, stating that the manufacturer also owes a duty to the employees of an industrial purchaser of equipment. The court found that a warning would have been “ineffectual” to prevent the injury at issue, however.

Thus, in Shawver, the court’s ultimate holding rested on causation grounds, not lack of duty to the employees of the sophisticated purchaser. Thus, while Shawver and the other cases are instructive, they do not necessarily require the result reached by the court of appeals in the case at bar.

– David Ziemer

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David Ziemer can be reached by email.