Danger of Hot Beverage is Open and Obvious: Failure to Warn Not Negligent According to Wisconsin Court of AppealsApril 03, 2006
On-product warnings play a crucial role in both the safe use of products and the defense of claims arising from their use. In the use context, properly formulated warnings educate users about potential risks associated with the product. In litigation, a manufacturer, supplier or insurer can, in many jurisdictions, use the presence and nature of on-product warnings as a shield against claims that a user was not properly warned of the product’s risks. The warnings also may be used as evidence of a user’s misuse, fault or negligence. Warnings are rarely dispositive of the issue of a defendant’s liability, but their absence or inadequacy can be a dagger in the heart of the defense. Triggering the duty to warn varies by jurisdiction, but as a matter of negligence law in Wisconsin, the hazard’s conspicuity plays a central role.
In Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, the Wisconsin Supreme Court defined and limited a manufacturer’s duty to warn of a product’s dangerous condition, in the negligence context, by adopting the Restatement (Second) of Torts § 388 (1965), including comment k, which clarifies that a duty to warn of a potentially dangerous product exists only if the supplier has no reason to expect that users will discover the condition and realize the danger involved. It is also noteworthy that the Wisconsin Court of Appeals, in Mohr v. St. Paul Fire & Marine Ins. Co., assumed that the proof requirements for an inadequate warning claim in strict product liability (under Restatement § 402A) are the same as for a breach of the duty to warn in a negligence claim. 2004 WI App 5, ¶ 32, n.10. In Mohr, the court of appeals encouraged the Supreme Court to clarify the differences, if any, between strict product liability and negligence claims alleging inadequate warnings. Thus far, the Supreme Court has not done so.
Kessel v. Stansfield Vending
On March 16, 2006, in Kessel v. Stansfield Vending, et al., the Wisconsin Court of Appeals affirmed a trial court ruling that the danger of a hot beverage was open and obvious. Therefore, the vendor supplying a hot beverage dispenser (and the owner of the property where it was installed) had no duty to warn users of the potential danger posed by the liquid in the dispenser. The court also ruled that the failure to supply a lid for insulated cups provided at the beverage dispenser, even if negligent, was exempt from liability on public policy grounds.
In January 2003, 15-month-old Zakary Kessel and his 3-year-old sister were with their parents at the Franciscan Skemp Medical Center where their mother was preparing to give birth. Zakary’s father retrieved two cups of hot water from a beverage dispenser, added powdered cocoa, and returned to his wife’s room, setting the two lidless cups of cocoa on a tray table. Then, as Zakary’s father turned his back looking for ice to cool the beverages for the children, Zakary tipped one of the cups, spilling the hot cocoa on his chest and neck and sustaining serious burns.
The Kessels sued Stansfield Vending, which provided the beverage dispenser, and Franciscan Skemp, alleging that both defendants negligently failed to warn them of the danger of the hot liquid. They also sued Franciscan Skemp for failing to provide lids for the cups supplied at the dispenser. The defendants moved for summary judgment, arguing that the open and obvious danger of the hot liquid precluded liability for negligence and that, even if they were negligent, public policy precluded holding them liable for Zakary’s injury. The circuit court, seizing upon the open and obvious nature of steaming hot water, agreed and granted summary judgment without addressing the public policy arguments. The Court of Appeals affirmed, and its decision is examined below.
Users of Hot Water Dispensers Know Risk of Hot Water; Suppliers’ Standard of Ordinary Care Does Not Include Duty to Warn
The Kessel court expanded the list of openly and obviously dangerous products for which a failure to warn will not be deemed negligent. Prior reported decisions dealt only with hazards such as the absence of safety treads on ladders (Strasser) and the risk of silica sand (Haase v. Badger Mining Corp., 2003 WI App 192).
Placing Stansfield Vending and Franciscan Skemp in the class of "suppliers" whose duties are addressed by the Restatement, the Kessel court analyzed the nature of the hot liquid and the plaintiffs’ knowledge that it was extremely hot. The court concluded that the "only reasonable inference…is that the user of the dispenser would know that the water was hot enough to cause some level of injury if it came into contact with skin…." 2005AP1037, 2006 WL 645126, ¶ 25 (Wis. Ct. App. Mar. 16, 2006) (publication recommended).
The Kessels countered that neither they, nor any user, would appreciate the degree of injury that could result and, therefore, there was a duty to warn of the severity of the potential harm. Noting that the Kessels’ argument had been rejected by every court but one that had decided such a case, the court commented that such a complex warning would not be more helpful than "the critical point, already known to the average consumer, that precautions should be taken to avoid spilling…hot liquid on the skin." Id., ¶ 28. The court then concluded, as a matter of law, that in this context, "a warning is not necessary to satisfy the standard of ordinary care when the condition at issue is known to the user." Id. ¶ 31. Therefore, neither Stansfield Vending nor Franciscan Skemp were negligent for failing to warn about the hot water in the dispenser. Id., ¶¶ 31--32.
Public Policy Precludes Liability for Negligent Failure to Provide Lid for Hot Beverages
Addressing the Kessels’ claim that Franciscan Skemp was negligent in failing to provide lids for the cups available at the hot water dispenser, the court assumed for purposes of its decision that the failure was negligent, and then analyzed the public policy grounds for relief from liability for negligence.
The court concluded that two of the six potential public policy justifications for precluding liability applied: first, the injury was too remote from the negligence; and, second, allowing recovery would have no sensible or just stopping point. Id., ¶ 38. (Recovery against a negligent tortfeasor may be barred on public policy grounds for the following reasons: (1) the injury is too remote from the negligence; (2) the injury is too wholly out of proportion to the tortfeasor’s culpability; (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; (4) allowing recovery would place too unreasonable a burden upon the tortfeasor; (5) allowing recovery would be too likely to open the way to fraudulent claims; or (6) allowing recovery would have no sensible or just stopping point. See Smaxwell v. Bayard, 2004 WI 101, ¶ 41.)
The court based its decision that the injury was too remote on the following facts: Zakary’s father chose to carry the hot beverage back to the private room and did so without any spill causing injury; his father never intended that Zakary have contact with the hot beverage before cooling it with ice; and, he tried to prevent just such an injury. Id. The court summed up the remoteness by characterizing the accident as "the result of a chain of events occurring after [Zakary’s father] carried the cups without spilling…none of those subsequent events were under the control of Franciscan Skemp." Id. Finally, in deciding that permitting recovery would have no sensible stopping point, the court identified a series of scenarios in which hot beverages might injure someone and concluded that it could see "no principled way to distinguish…between [those] situations and [Franciscan Skemp’s negligence for failure to provide lids]; and [the court was] satisfied it would not be reasonable to impose liability in any of these situations." Id., ¶ 39.
Impact of the Kessel Decision
The court’s decision that the standard of care for a supplier (extended, presumably, to a manufacturer as well) of a hot beverage dispenser does not include a duty to warn that its liquids will be hot is well within the bounds of the Strasser and Restatement analysis and will provide guidance for litigants and courts in subsequent cases involving allegations that a party was negligent in failing to warn of known dangers. It may also extend to strict product liability as well, if the Mohr court was correct.
The public policy analysis, which one might argue supports the position that the failure to provide a lid for a hot beverage cannot subject one to liability for negligence unless a spill and injury occur as the beverage is handed from vendor to customer, may well see harsher scrutiny if the Wisconsin Supreme Court accepts a petition for review (one has not yet been filed).
Whatever the end result in Kessel, it is a reminder to manufacturers to ensure that their products carry complete, conspicuous and appropriate on-product warnings. It also encourages manufacturers, suppliers and their insurers to be aggressive in presenting warnings-related defenses in product liability litigation.
For more information about any this case and how it may affect your business, please contact Josh Johanningmeier (firstname.lastname@example.org) or any member of the Godfrey & Kahn Product Liability Team.