162 Wis. 2d 918 471 N.W.2d 179

NORTHRIDGE COMPANY, a partnership and Southridge Company, a partnership, Plaintiffs-Appellants, v. W.R. GRACE & COMPANY, Defendant-Respondent.

Supreme Court

No. 90-1406.

Argued May 29, 1991.

Decided June 24, 1991.

(Also reported in 471 N.W.2d 179.)

*921For the plaintiffs-appellants there were briefs (in the court of appeals) by John A. Busch, James E. Bauman, Paul F. Linn and Michael, Best & Friedrich, Milwaukee and oral argument by Mr. Busch.

For the defendant-respondent there was a brief (in the court of appeals) by Thomas G. Cannon, William A. Wiseman, Dean P. Laing and O'Neil, Cannon & Holl- *922 man, S.C., Milwaukee and oral argument by Thomas G. Cannon.

SHIRLEY S. ABRAHAMSON, J.

This is an appeal from an order of the circuit court for Milwaukee County, John E. McCormick, Circuit Judge, dismissing the complaint for failure to state a claim upon which relief can be granted. This court took the appeal on the plaintiffs' petition to bypass the court of appeals. Section 808.05 and sec. (Rule) 809.60, Stats. 1989-90.

The plaintiffs, Northridge Company and Southridge Company, filed a complaint against the defendant, W.R. Grace and Company, alleging breach of warranty and several tort claims based on the defendant's sale of Monokote, a fireproofing material, to the plaintiffs' general contractor for use in the construction of the plaintiffs' shopping centers. The complaint alleges that the Monokote was in a defective condition and, because it contains asbestos, presented unreasonable danger to persons and property. The plaintiffs assert that the asbestos contaminated the building and they suffered damages by incurring expenses for inspection, testing and removal of Monokote and by a diminished value of the property.

The question we consider in this case is whether the plaintiffs' complaint states a tort claim for relief in strict products liability or negligence.

The circuit court determined that the plaintiffs' claimed damages in this case did not result from "damage to other property" but instead were solely economic losses unrelated to any physical harm to property. Relying on Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 148 Wis. 2d 910, 437 N.W.2d 213 (1989), and East River Steamship Corp. v. Transamerica Dela-val Inc., 476 U.S. 858 (1986), the circuit court concluded that the "doctrine of economic loss" precludes the plain*923tiffs' tort claims of negligence and strict liability. According to the circuit court, "the doctrine of economic loss . . . provides that 'a commercial purchaser of a product cannot recover solely economic losses from the manufacturer under negligence or strict liability theories,' " citing Sunnyslope. The circuit court thus denied recovery in tort when the only damage in this case was, in its view, to the product sold. The circuit court concluded that only a contract action for breach of warranty lies and that the statute of limitations barred the plaintiffs' warranty claim. The circuit court dismissed the plaintiffs' complaint, holding that it presented no claim upon which relief could be granted.

We conclude that the complaint in this case can be interpreted as alleging that a defect in the product has caused physical harm to property, property other than the product itself. The alleged physical harm to other property consists of the contamination of the plaintiffs' buildings with asbestos from the defendant's product, posing a health hazard. Accordingly we conclude that the complaint states a tort claim for relief in strict products liability and negligence. We reverse the order of the circuit court and remand the cause to the circuit court for further proceedings consistent with this opinion.

The question whether the plaintiffs' complaint has stated a claim for relief is a question of law we decide independently without deference to the circuit court. The facts set forth in the complaint must be taken as true and the complaint dismissed only if it appears certain that no relief can be granted under any set of facts that the plaintiffs might prove in support of their allegations. Kranzush v. Badger State Mut. Cas. Co., 103 Wis. 2d 56, 82, 307 N.W.2d 256 (1981). The reviewing court must construe the facts set forth in the complaint and all *924reasonable inferences that may be drawn from those facts in favor of stating a claim. Evans v. Cameron, 121 Wis. 2d 421, 426, 360 N.W.2d 25 (1985).

The plaintiffs' shopping centers were built in 1970 and 1972 by a general contractor who is not a party to this action. The defendant sold Monokote to the general contractor, who applied it to the beams and columns of the buildings. Monokote contains asbestos. Because of an alleged health hazard created by the asbestos, the plaintiffs apparently initiated an asbestos abatement program in the shopping centers sometime in the mid-1980's. The plaintiffs subsequently sold the shopping centers in 1988. The plaintiffs allege that they expended funds in the asbestos abatement program, that the Monokote reduced the value of their property, and that they received a lower price on the sale of the shopping centers because the Monokote damaged the buildings.

It is well-established law that under Wisconsin strict products liability law a plaintiff may recover for physical harm to property caused by a defect in the product that presents an unreasonable danger to persons or property. The rule of strict products liability set forth in the Restatement (Second) of Torts (1965), sec. 402A, and in Dippel v. Sciano, 37 Wis. 2d 443, 459, 155 N.W.2d 55 (1967), provides:

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property . . . (emphasis added).

Numerous cases support the rule that strict products liability law1 and negligence law2 apply to physical *925harm to property as well as to personal injury.

The parties assume that Wisconsin has adopted some form of the "economic loss doctrine" which may preclude recovery in a negligence or strict products liability torts claim when the complainant's claim is characterized as solely economic loss.3 "Economic loss" may be defined generally as "the diminution in the value of the product because it is inferior in quality and does not work for the general purposes for which it was manufac*926tured and sold." Comment, Manufacturers' Liability to Remote Purchasers for "Economic Loss" Damages — Tort or Contract?, 114 U. Pa. L. Rev. 539, 541 (1966). Economic loss has also been described in terms of direct economic loss and consequential economic loss.

Direct economic loss may be said to encompass damage based on insufficient product value; thus, direct economic loss may be 'out of pocket' — the difference in value between what is given and received — or 'loss of bargain' — the difference between the value of what is received and its value as represented. Direct economic loss also may be measured by costs of replacement and repair. Consequential economic loss includes all indirect loss, such as loss of profits resulting from inability to make use of the defective product.

Note, Economic Loss in Products Liability Jurisprudence, 66 Colum. L. Rev. 917, 918 (1966). A complainant's remedy for economic loss alone, without a claim for personal injury or physical harm to property other than the defective product itself, generally lies in a breach of warranty claim, not in a claim in tort.

We held in Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 148 Wis. 2d 910, 921, 437 N.W.2d 213 (1989), that "a commercial purchaser of a product cannot recover solely economic losses from the manufacturer under negligence or strict liability theories, particularly . . . where the warranty given by the manufacturer specifically precludes the recovery of such damages."4 The defective product in Sunnyslope was a backhoe, a piece of construction equipment. Certain *927parts on the backhoe broke or wore out. The manufacturer and dealer repaired defects covered by the warranty. Sunnyslope sought damages for additional replacement parts, labor charges, down-time expenses and lost profits associated with repairs the warranty specifically excluded. The "economic losses" that were not recoverable in Sunnyslope consisted, of these repair expenses and lost profits. We limited oúr holding to "the question of whether damages to the product itself and economic losses flowing therefrom are recoverable in tort when a warranty exists in a commercial setting . . .." 148 Wis. 2d at 911.5 The court held in Sunnyslope that "a commercial purchaser of a product cannot recover solely economic losses from the manufacturer under negligence or strict liability theories, particularly, as here, where the warranty given by the manufacturer specifically precludes the recovery of such damages." 148 Wis. 2d at 921. We expressly did not decide in Sunnyslope "whether a warranty can limit amounts recoverable due to damage to property other than the product itself." Id. *928at 911. In Sunnyslope the defective product did not cause injury to another person or other property;6 the case involved a product that failed to function as expected or anticipated by the purchaser.7

*929Our holding in Sunnyslope was limited and does not resolve this case in which the plaintiffs argue that their property was harmed and the defendant argues that the parties are not in privity. The defendant's attempt to extend Sunnyslope to resolve this case focuses on the characterization of the plaintiffs' alleged damages.

The plaintiffs assert that the Monokote caused asbestos contamination that has injured its other property. The plaintiffs argue that the contamination of the shopping centers with asbestos from the Monokote constitutes actual physical harm to their property. The plaintiffs urge that the complaint is not that Monokote has broken down or failed to perform the functions for which it was purchased. The plaintiffs assert that the complaint focuses on what Monokote has done to the shopping centers: It has physically harmed the property causing an unreasonable risk to health and safety. The plaintiffs contend that these allegations of harm to property other than the Monokote itself are sufficient to defeat the motion to dismiss and to entitle the plaintiffs to an opportunity to prove their claims.

The defendant argues that the plaintiffs have not alleged any physical harm to either persons or property. The defendant argues that the plaintiffs' alleged losses are solely "economic," that is, that the product was allegedly of inferior quality. The defendants contend that the *930plaintiffs complain about damage to the product itself for which they are limited to contract remedies, not a tort remedy. According to the defendant, any losses suffered by the plaintiffs were incurred because the plaintiffs were dissatisfied with the product itself. Any expenses the plaintiffs incurred for asbestos abatement or any losses they incurred in the sale of the shopping centers were, according to the defendant, unrelated to "asbestos contamination" of the shopping centers and constitute solely economic losses which may not be recovered in strict products liability or negligence suits unless there is injury to person or property. The defendant emphasizes language in the plaintiffs' complaint referring to damage caused by the "mere presence" of the Monokote in the shopping centers. The defendant implies that any asbestos abatement programs the plaintiffs initiated were unnecessary and that the plaintiffs are using the asbestos as an excuse for disappointment in the sale price for their shopping centers. The defendant supports its argument with factual claims that the asbestos in Monokote poses no property or health risk and that the plaintiffs did not allege injury to any person by exposure to asbestos in the shopping malls.

We must assume, for the purposes of this review, that the plaintiffs' factual allegations and reasonable inferences drawn therefrom are true.8 We must assume *931that the asbestos in Monokote creates a contaminant in the building that is a health hazard to the occupants of the building.

Our task, then, is to determine whether the plaintiffs have alleged a tort claim for physical harm to property (property other than the allegedly defective product itself) or whether the losses complained of by the plaintiffs are only recoverable under a theory of contract. We must examine the complaint in light of the defendant's arguments on economic loss and the plaintiffs' assertion of physical harm to property.

The alleged damages in this case have characteristics associated with both economic loss and physical harm to property. The allegedly hazardous characteristic of the Monokote is its contamination of the buildings with asbestos. In this kind of case, no outwardly visible evidence of physical harm to the property exists. We infer from the complaint that the harm claimed is that the Monokote causes the air to contain particles of asbestos which are injurious to occupants of the buildings but invisible to the naked eye.

In addition, the plaintiffs' claimed damages — expenses incurred to remove or replace the Monokote and the diminished value of their property due to the presence of the Monokote — appear to be the kind of damages typically associated with defects in the product itself and considered economic losses. The plaintiffs' strict products liability claim is not barred, however, simply because the plaintiffs seek damages for repair costs, replacement costs, decreased value, and lost profits in the sale of the centers. While economic loss is measured by repair costs, replacement costs, loss of prof*932its, or diminution of value, the measure of damages does not determine whether the complaint is for physical harm or economic loss. City of Manchester v. National Gypsum Co., 637 F. Supp. 646, 651 (D.R.I. 1986). In other words, the fact that the measure of the plaintiffs' damages is economic does not transform the nature of its injury into a solely economic loss. Town of Hooksett School Dt. v. W.R. Grace & Co., 617 F. Supp. 126, 131 (D.N.H. 1984). Physical harm to property may be measured by the cost of repairing the buildings to make them safe.

Commentators caution that distinguishing between economic loss and physical harm to property other than the product itself is often a difficult task, especially in cases involving substances whose hazardous qualities are disputed.9 Several courts have commented on the difficulty of trying to fit a claim for asbestos damage within the framework of physical harm or economic loss which has been established for more traditional tort and contract actions.10 Nevertheless commentators and courts recognize the necessity of drawing a distinction between contract claims for economic loss and tort claims for physical harm to property. The parties' rights and defenses, such as notice, privity, and the statutes of limi*933tations, may turn on whether the claim sounds in tort or contract.

We look to the principles and policy that are the basis for the distinction between tort actions and contract actions to determine into which category the plaintiffs' alleged injury in this case fits. See Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660 (1985).

The distinction between physical harm (tort actions) and economic loss (contract actions) is based on the traditional distinction between tort law and contract law. Tort law rests on obligations imposed by law; contract law rests on obligations imposed by bargain.

The gist of a strict products liability tort case is that the plaintiff has suffered personal injury or property damage caused by a defective product that posed an unreasonable risk of injury to person or property. Tort law is premised on safety. Public policy demands that the manufacturer and seller bear the responsibility for such injury to person or property.

The principle of economic loss, on the other hand, is derived from the law of contract. Recovery for economic loss is intended to protect purchasers from losses suffered because a product failed in its intended use. Recovery for economic loss necessarily focuses on the bargain struck between the parties; warranty law is premised on protection of the bargain. Economic loss is defined, as we stated previously, as damages for inadequate value, because the product is inferior and does not work for the general purpose for which it was manufactured or sold. Liability for economic loss is based on express or implied representations manifesting the manufacturer's or *934seller's intent to guarantee the product. Prosser and Kee-ton on Torts, secs. 95-95A, p. 677 (5th ed. 1984).

Thus defects of suitability and quality are redressed through contract actions and safety hazards through tort actions.11

*935Both parties cite decisions from other jurisdictions in which the courts struggled with characterizing the harm in cases alleging asbestos contamination of buildings. Many courts have upheld such complaints to be physical harm to property within strict products liability and negligence.12 Other courts have concluded that *936where the complaining party has not really alleged contamination or physical harm to the building or where the risk of future injury from the product is remote and conjectural, the losses are economic losses, actionable in contract, not in negligence or strict products liability.13

*937With these principles in mind we examine the complaint in this case to determine whether the damages the plaintiffs allege are more akin to economic loss or physical harm to property.

The plaintiffs do not appear to assert in their tort counts in the complaint that the Monokote itself was inferior in quality or did not work for its intended purpose, the essence of a claim for economic loss. The plaintiffs are not dissatisfied with the quality of the Monokote as a fireproofing material. The plaintiffs' loss did not arise from deterioration or insufficient product value. The plaintiffs are not claiming damages because of injury to the product itself.

The essence of the plaintiffs' claim is that Monokote releases toxic substances in the environment thereby causing damage to the building and a health hazard to its occupants. The plaintiffs claim that their property has been physically altered by the defendant's product, whether or not such alteration is outwardly visible.

We conclude that the plaintiffs' allegation that the defendant's asbestos-containing product physically harmed the plaintiffs' building is the type of injury which is actionable under claims for relief in strict prod*938ucts liability and negligence. The principles and policies underlying strict products liability actions, namely, public safety and risk sharing, justify recognizing the tort claims.

We conclude that the plaintiffs are entitled to offer evidence to support their claims. Whether the plaintiffs will ultimately prevail on their claim that the defendant's unreasonably dangerous product caused injury to property other than the product itself is a question of fact to be determined at trial, not on a motion to dismiss.14 Accordingly we hold that the plaintiffs in this case have stated a claim under which relief can be granted.15

For the reasons set forth, we reverse the order of the circuit court and remand the cause for further proceedings consistent with this opinion.

*939 By the Court. — The decision of the circuit court is reversed and the case remanded.

JUSTICE BABLITCH, WILLIAM A., took no part.

Northridge Co. v. W.R. Grace & Co.
162 Wis. 2d 918 471 N.W.2d 179

Case Details

Name
Northridge Co. v. W.R. Grace & Co.
Decision Date
Jun 24, 1991
Citations

162 Wis. 2d 918

471 N.W.2d 179

Jurisdiction
Wisconsin

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