Vincer v. Esther Williams All-Aluminum Swimming Pool Co.
1975 Wisc. LEXIS 1529, 230 N.W.2d 794, 69 Wis. 2d 326 (1975)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A product is not considered defective or unreasonably dangerous under a strict liability theory if the danger it presents is open and obvious to the ordinary consumer. The test for an unreasonably dangerous defect is whether the product is dangerous to an extent beyond that which would be contemplated by the ordinary consumer with ordinary community knowledge about the product's characteristics.
Facts:
- Esther Williams All-Aluminum Swimming Pool Company manufactured an above-ground swimming pool that was installed by Banner Builders, Inc.
- The pool's design included a retractable ladder as the means of entry and exit.
- The pool was not designed with a self-latching or self-closing gate to prevent unsupervised access.
- A small child was injured after gaining access to the pool.
- At the time of the injury, the pool's retractable ladder had allegedly been left in the down position.
Procedural Posture:
- The parents of an injured child (plaintiffs) filed a complaint against Esther Williams All-Aluminum Swimming Pool Company and Banner Builders, Inc. (defendants) in a Wisconsin trial court.
- After the plaintiffs filed a second amended complaint alleging strict liability, the defendants filed a demurrer, arguing that the complaint failed to state a cause of action.
- The trial court sustained the demurrer, dismissing the plaintiffs' complaint.
- The plaintiffs appealed the trial court's order and judgment to the Supreme Court of Wisconsin.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does an above-ground swimming pool that lacks a self-latching gate but includes a retractable ladder constitute a product in a 'defective condition unreasonably dangerous' for the purposes of a strict liability claim?
Opinions:
Majority - Connor T. Hansen, J.
No. An above-ground swimming pool lacking a self-latching gate is not unreasonably dangerous because the risk of harm is open and obvious to the average consumer. The court applies the consumer expectation test from Restatement (Second) of Torts § 402A, which defines an unreasonably dangerous product as one containing a danger beyond what an ordinary consumer would contemplate. The absence of a gate is an obvious, not latent, condition. An average consumer would be completely aware of the risk posed to unsupervised small children by an accessible swimming pool, especially when its retractable ladder is left down. Therefore, as a matter of law, the product does not contain an unreasonably dangerous defect.
Dissenting - Wilkie, C. J.
Yes. A complaint alleging injury from a pool lacking a self-latching gate states a valid cause of action because the question of whether the design is defective should be a factual determination for a jury, not a legal ruling by a judge. The majority's 'open and obvious danger' rule improperly uses the concept of assumption of risk as a complete bar to recovery, when it should be treated as a factor of contributory negligence. Following the reasoning of the California Supreme Court, the 'unreasonably dangerous' requirement should be eliminated, requiring a plaintiff to prove only that the product was defective. Any negligence by the parents in supervising the child should be imputed to the child and compared with the manufacturer's fault.
Analysis:
This decision solidifies the jurisdiction's adoption of the 'open and obvious danger' rule as a component of the consumer expectation test in strict products liability. It establishes that a manufacturer is not liable for injuries resulting from product features whose dangers are readily apparent to an average consumer, thereby limiting the scope of design defect claims. This ruling places a significant burden on plaintiffs injured by obvious hazards and stands in contrast to the trend in other jurisdictions to either reject the rule or treat the obviousness of a danger as only one factor in a comparative fault or risk-utility analysis.
