98-2419 Fuchsgruber, et al. v. Custom Accessories, Inc., et al.

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Strict liability for injuries caused by defective and unreasonably dangerous products, as adopted by this court in Dippel v. Sciano, 37 Wis.2d 443, 155 N.W.2d 55 (1967), is liability in tort, not liability for negligence. The Dippel adaptation of the comparative negligence statute to product liability theory was a conceptual expedient intended to ensure the availability of the defense of contributory negligence in the newly-recognized tort doctrine of strict product liability.

Although Dippel analogized strict product liability to negligence per se, it did not establish the tort as a species of negligence such that the comparative negligence statute applies to require a comparison of the plaintiff’s negligence to the defendant’s, as in an ordinary negligence action. Rather, the comparison in a product liability action is plaintiff-to-product, and secondarily, in multiple defendant cases, the defendants to each other, for purposes of contribution.

As such, the 1995 amendment to the comparative negligence statute – codifying the requirement that the negligence of the plaintiff is compared against the separate rather than the combined negligence of the defendants, and modifying joint and several liability in negligence cases – does not apply to strict product liability actions.

Plaintiff bought a jack, and was injured when the handle broke as he was lifting it out of the packing box. His expert opined that the handle broke because of a manufacturing defect. The only viable defendants were the distributor and its insurer.

We reject distributor’s claim that the new statute, as applicable to product liability cases, operates to protect from liability a defendant who is merely an “innocent member of the chain of distribution,” who did nothing to cause or contribute to the defective condition of the product; we affirm denial of distributor’s motion for summary judgment.

Affirmed.

Review of a Decision of the Circuit Court for Milwaukee County, Wells, J, Sykes, J.

Attorneys:

For Appellant: Stanley J. Lowe, Waukesha

For Respondent: Michael W. Fleming, Milwaukee