PUBLISHED
OPINION
Case No.: 95-2689
Complete Title
of Case:
STEVEN POMPLUN,
Plaintiff-Appellant,
v.
ROCKWELL INTERNATIONAL CORPORATION
and ALLEN-BRADLEY COMPANY, INC.,
Defendants-Respondents,
CLEARING INTERNATIONAL, INC.,
CLEARING-NIAGARA, INC.,
PRODUCTION EQUIPMENT, INC.,
VERSON INTERNATIONAL GROUP, INC.,
U.S. INDUSTRIES, INC.,
ABC INSURANCE COMPANY,
XYZ INSURANCE COMPANY,
EFG INSURANCE COMPANY, and
FIREMAN'S FUND INSURANCE COMPANY,
Defendants.
Submitted on Briefs: May
13, 1996
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: June
25, 1996
Opinion Filed: June 25, 1996
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If “Special”, JUDGE: PATRICK J. MADDEN
so indicate)
JUDGES: Wedemeyer,
P.J., Sullivan and Fine, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of
the plaintiff-appellant, the cause was submitted on the briefs of Mark J.
Goldstein of Padway & Padway, Ltd., of Milwaukee.
Respondent
ATTORNEYSOn behalf of
the defendants-respondents, the cause was submitted on the briefs of Donald
H. Carlson and Mary E. Nelson of Crivello, Carlson, Mentkowski
& Steeves, S.C., of Milwaukee.
|
COURT OF APPEALS DECISION DATED AND RELEASED June 25, 1996 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2689
STATE
OF WISCONSIN IN COURT OF
APPEALS
STEVEN POMPLUN,
Plaintiff-Appellant,
v.
ROCKWELL INTERNATIONAL
CORPORATION
and ALLEN-BRADLEY
COMPANY, INC.,
Defendants-Respondents,
CLEARING
INTERNATIONAL, INC.,
CLEARING-NIAGARA,
INC.,
PRODUCTION EQUIPMENT,
INC.,
VERSON INTERNATIONAL
GROUP, INC.,
U.S. INDUSTRIES, INC.,
ABC INSURANCE COMPANY,
XYZ INSURANCE COMPANY,
EFG INSURANCE COMPANY,
and
FIREMAN'S FUND
INSURANCE COMPANY,
Defendants.
APPEAL from an order of
the circuit court for Milwaukee County:
PATRICK J. MADDEN, Judge. Affirmed
in part and reversed in part.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
FINE,
J. Steven W. Pomplun appeals from an order granting summary
judgment and dismissing his claim against Rockwell International Corporation
and Allen-Bradley Company, Inc. This
action arises out of an injury Pomplun received while operating a punch press
during the course of his employment with Phoenix Products Company, Inc. On appeal, Pomplun argues that the trial
court erred in granting Rockwell International and Allen-Bradley's motion for
summary judgment.[1] We affirm in part and reverse in part.
I.
Pomplun was injured
while operating a press using a foot switch manufactured by Allen-Bradley to
punch circles from sheets of plastic.
He inadvertently hit the foot switch and activated the press as he
reached for a sheet of plastic. He
claims that both the punch press, which the complaint alleges was manufactured
and sold by Clearing International, Inc., Clearing-Niagara, Inc., and Verson
International Group, Inc., and the foot switch were dangerously defective and
that the defendants were liable in negligence and strict liability. Pomplun also alleged that Allen-Bradley and the
others failed to warn about the dangers posed by the foot switch and punch
press.
Allen-Bradley filed a
motion for summary judgment seeking dismissal of Pomplun's claims. The trial court granted the motion,
concluding that there were no genuine issues of material fact, that the foot
switch on the punch press was not defective, and that Allen-Bradley was under
no duty to warn Pomplun about any possible dangers inherent in the foot switch.
II.
Summary judgment is
appropriate only when the moving party establishes that there are no genuine
issues of material fact and that the movant is entitled to judgment as a matter
of law. Grams v. Boss, 97
Wis.2d 332, 338, 294 N.W.2d 473, 476-477 (1980). The trial court may not base its ruling on its assessment of the
weight of the evidence or the witnesses' credibility, but must deny summary
judgment sought by a defendant if the plaintiff presents any evidence upon
which a jury could reasonably find in the plaintiff's favor. Id., 97 Wis.2d at 338–339, 294
N.W.2d at 476–477.
1. Design
Defect.
Pomplun's expert
presented sufficient evidence to compel a trial on the issue of whether the
design of the foot switch was defective.
Pomplun's expert submitted an affidavit in which he opined that the foot
switch “had inadequate foot pressure resistance, allowing for inadvertent
operation of the press.” He also
concluded that “the travel of the footswitch [sic] was inadequate to
minimize inadvertent tripping of the footswitch [sic].” Summary judgment was improvidently granted
on the design-defect issue.
2. Failure
to Warn.
Failure-to-warn is a
theory of recovery that is separate from a claim alleging defective
design. See Gorton v.
American Cyanamid Co., 194 Wis.2d 203, 221, 533 N.W.2d 746, 754
(1995). Whether a manufacturer has a
legal duty to warn users of dangers related to the use of its product is a
question of law that this court decides de novo. Estate of Schilling v. Blount, Inc.,
152 Wis.2d 608, 617–618, 449 N.W.2d 56, 60 (Ct. App. 1989). Pomplun argues that Allen-Bradley had a duty
to warn him of the dangers involved in using the foot switch. On the other hand, Allen-Bradley contends
that as a mere component-part manufacturer—it manufactured the foot switch and
not the entire punch press—it did not have a duty to warn Pomplun of any
possible operating hazards inherent in the use of the switch in the punch
press. We agree with
Allen-Bradley.
Although Wisconsin
courts have not addressed this issue previously, authority elsewhere supports
the logic of Allen-Bradley's contention.
In Shanks v. A.F.E. Industries, Inc., 416 N.E.2d 833 (Ind.
1981), the court concluded that A.F.E., a manufacturer of an automatic grain
dryer, a component part in a grain elevator, had no duty to warn that an
elevator leg was about to be activated during the “unload” phase of the
dryer. Shanks had argued that there was
a defect in the dryer because it did not have a safety device that would
indicate that the elevator was about to activate. Shanks ruled that component manufacturer had no
duty to warn, and reasoned:
Because
the dryer could be used as a component in a multifaceted complex such as the
one created here by Whittington, to allow a jury to examine, in retrospect, the
wisdom of A.F.E.'s incorporating some lights or bells into the dryer is to
permit nothing more than speculation. A
complex operation such as this one could have taken many forms, depending on
the needs of the owner and the imagination of the designer.... The need for any warning devices, and the
circumstances surrounding their use, would, of course, depend upon the
operation of the whole complex, based upon the features of its design. Thus, because the dryer could be
incorporated into a variety of grain handling systems, the desirability or need
for such devices could be determined only after any given type of complex had
been chosen and created. Of course,
A.F.E. here had no way of knowing exactly how Whittington would employ its
dryer and, hence, the specific context in which such warning devices could or
should be used relative to the operation of an elevator leg.
Id., 416
N.E.2d at 838. By the same token here,
there is nothing in the record to show that Allen-Bradley either knew or had
reason to know how the manufacturer of the press would incorporate the foot
switch into the overall design of the press.
Indeed, an uncontroverted affidavit submitted on behalf of Allen-Bradley
noted that the foot switch “was an `off the shelf,' general purpose, on/off
switch for foot activation [that was] not manufactured and sold specifically
for the Clearing press which [Pomplun] was operating when he was injured.” Thus, Allen-Bradley had no duty to warn
Pomplun of possible dangers that might or might not result, and that might
depend on the operation of components other than the foot switch. The trial court properly granted
Allen-Bradley's motion for summary judgment on the duty-to-warn issue.
By the Court.—Order
affirmed in part and reversed in part.