Summary
The Supreme Court of Wisconsin held that Restatement (Third) of Torts § 5 was inapplicable to the plaintiff's strict products-liability claim involving silica sand and did not determine whether Wisconsin had adopted or rejected that provision. The court affirmed dismissal because the sand underwent a material and substantial change after leaving Badger Mining Corporation's control, becoming respirable only after being fractured during the foundry process. The court also rejected foreseeability as a basis for avoiding the substantial-change rule in strict-liability claims.
Topics
Practice areas
Questions Presented
- Whether the Wisconsin Supreme Court should adopt and apply Restatement (Third) of Torts § 5 to Haase's strict products liability claim.
- Whether Haase presented sufficient evidence under Restatement (Second) of Torts § 402A to establish strict liability despite the silica sand's substantial change after leaving Badger's possession.
Holdings
- Restatement (Third) of Torts § 5 was inapplicable because Badger's sand was not integrated into the finished metal castings, the sand itself—not the castings—was alleged to be defective, and no defect in the castings caused Haase's injury. Wisconsin therefore neither adopted nor rejected § 5 in this case.
- A seller cannot be held strictly liable under § 402A when the product undergoes a material and substantial change after leaving the seller's possession and the change is linked to the injury. Haase's claim therefore failed because Badger's sand was not respirable when sold and became respirable only after Neenah fractured it into fine particles.
Key quotations
“Thus, the status of Restatement (Third) of Torts § 5 (1998) in Wisconsin is that we have neither adopted nor rejected it.” (274 Wis. 2d 153)
“Manufacturers or sellers cannot be held strictly liable if the condition of the product substantially changes in a way that is material to the accident after the product leaves their control.” (274 Wis. 2d 156)
“Foreseeability is not an element considered in strict products liability claims, but instead is an element of negligence.” (274 Wis. 2d 160)
Factual background
Badger supplied silica sand to Neenah Foundry from 1980 to 1996. Haase worked at Neenah in molding, cleanup, and grinding positions and was exposed to silica dust; he was diagnosed with silicosis in 1999. Expert testimony established that the sand leaving Badger consisted of granules too large to be inhaled and could become respirable only after being fractured into smaller particles during Neenah's foundry processes.
Procedural history
Haase sued Badger Mining Corporation and other defendants, alleging that exposure to silica sand caused his silicosis. The circuit court dismissed the claims against Badger at the close of Haase's case-in-chief, relying in part on the Restatement (Third) of Torts § 5 and concluding that the evidence did not support strict liability. The court of appeals affirmed. The Wisconsin Supreme Court held that § 5 was inapplicable but independently affirmed because the sand had undergone a material and substantial change after leaving Badger's possession.