author: VERGERONT, J.

text:
    Michael J. Mohr, Jeffrey T. Mohr and Kathy D. Mohr, Plaintiffs-Appellants, State of Wisconsin Department of Health and Family Services, Sheboygan County Department of Health and Human Services and Plastics Engineering Group Health Plan, Plaintiffs, v. St. Paul Fire & Marine Ins. Co., Wisconsin Interscholastic Athletic Association, United National Ins. Co. and KDI Paragon, Inc., Defendants-Respondents, National Union Fire Ins. Co. of Pittsburgh and National Federation of State High School Associations, Defendants, West Bend Mutual Ins. Co., Defendant-Respondent, Walters' Swim Supplies, Inc., Defendant.
    Court of Appeals

      No. 02-1728.

      Submitted on briefs June 9, 2003.

      Decided December 18, 2003.

    2004 WI App 5
    (Also reported in 674 N.W.2d 576.)

      On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Mark S. Young, Virginia M. Antoine, and Molly C. Lavin, Habush Habush & Rottier, S.C., Milwaukee.
    On behalf of the defendants-respondents Wisconsin Interscholastic Athletic Association and St. Paul Fire & Marine Ins. Co., the cause was submitted on the brief of Samuel J. Leib, Douglas S. Knott, and Katherine A. Kuchan, Leib & Katt, S.C., Milwaukee.
    On behalf of the defendants-respondents United National Insurance Company and KDI Paragon, Inc., the cause was submitted on the brief of Donald H. Carlson, Mary E. Nelson, and Ryan G. Braithwaite, Crivello, Carlson & Mentkowski, S.C., Milwaukee.
    Before Deininger, PJ., Vergeront and Lundsten, JJ.

       Petition to review denied 3-23-04.

   VERGERONT, J.

¶ 1. Michael Mohr was injured while practicing a racing start from a starting platform at the shallow end of his high school's swimming pool. He appeals the summary judgment in favor of the manufacturer of the platform, KDI Paragon, Inc., and the Wisconsin Interscholastic Athletic Association (WIAA). He contends there are disputed issues of fact on his negligence and strict product liability claims against KDI and on his negligence claim against the WIAA and he is therefore entitled to a jury trial.

¶ 2. We conclude there are disputed issues of fact on Mohr's negligence and strict product liability claims against KDI, as well as on his negligence claim against the WIAA. We also conclude the trial court erred in granting summary judgment in the WIAA's favor on public policy grounds. We therefore reverse and remand for a trial on these claims.

BACKGROUND

¶ 3. Certain of the background facts are not disputed. At the time of the accident in February 1997, Mohr was on the Sheboygan North High School varsity swim team. The shallow end of the pool is 3.5 feet deep and there are six starting platforms at that end, all purchased in 1991 and manufactured by KDI. The platforms are eighteen inches high. At the time of the purchase of the platforms, they contained a label stating: "FOR USE BY TRAINED COMPETITIVE SWIMMERS ONLY. EXECUTE SHALLOW RACING DIVES ONLY. IMPACT WITH POOL BOTTOM CAN CAUSE SERIOUS INJURY." Mohr had used the starting platforms on many occasions. When the accident occurred, he was warming up prior to his team's supervised practice. He had taken one dive off a platform into the pool and dove again, apparently striking his head on the pool bottom.

¶ 4. At the time of the accident, a rule promulgated by the National Federation of State High School Associations (Federation), Rule 2-7-2, provided as follows:

SECTION 7 Equipment for Swimming Events
ART. 2. Starting Platforms.
Water Depth MAXIMUM Height of
at Starting End Platforms/Deck
Above Water Surface
4' or more 30"
3 1/2 - 4' 18" or Start from
deck/in water
Less than 3 Vz' Start in water

The Federation is an association of state athletic associations, including the WIAA. The Federation formulates and publishes rules governing competition (playing rules) in interscholastic sports, including swimming and diving. The Federation promulgated the current Rule 2-7-2 in 1991 after learning of serious injuries to swimmers using starting platforms in shallow water. The 1996-97 Federation rule book, like prior Federation rule books, included this "Point of Emphasis":

Water Depth in Starting End: Issues of participant safety have been a primary issue of concern. Over the years water depth and starting platform height have been subjects of review and discussion.
The risk of injury however, is an inherent aspect of "dives" into a pool. Supervisory personnel should direct swimmers on how and when to enter the water in a safe and prudent manner.

Before 1991 the applicable Federation rule had permitted thirty-inch starting platforms for pools with water depths of 3.5 feet or less.

¶ 5. The WIAA is a voluntary association of Wisconsin high schools that coordinates and promotes interscholastic athletic competition among Wisconsin schools. The WIAA is not required by the Federation to adopt the Federation's playing rules, but the WIAA's general policy is to do so for all sports. In 1996-97, the WIAA adopted Rule 2-7-2. It did not make recommendations to any school district or participant on which option to choose of those specified in the rule.

¶ 6. Mohr's complaint alleged that KDI was negligent and the platform defective and unreasonably dangerous because KDI failed to warn purchasers and users: (1) that serious injuries could result if the starting platforms were placed at the shallow end of a pool, (2) that the platforms should be placed at the deep end of the pool, and (3) about the types of dives swimmers should avoid if the starting platforms were placed at the end of a swimming pool where the water depth is 3.5 feet. Against the Federation, Mohr alleged negligence in promulgating Rule 2-7-2 and in leading its members to believe its rules were safe. Against the WIAA, Mohr alleged negligence in adopting Rule 2-7-2, in requiring its members to follow the rule, in leading its members to believe it was safe to use platforms with 3.5 feet of water, and in encouraging them to do so.

¶ 7. The three defendants moved for summary judgment. The trial court denied the Federation's motion and granted the motions of KDI and the WIAA. With respect to the Federation, the court held that it had a duty to promulgate a safe rule, it was foreseeable that injuries could result if the rule were wrong, and there were disputed issues of fact whether the Federation was negligent in promulgating the rule.

¶ 8. With respect to KDI, the court decided as a matter of law that KDI was not negligent for the following reasons: KDI sold these platforms to athletic directors, the platforms were used by experienced swimmers, there had been no accidents at the school with this platform, the warning on the platform satisfied KDI's duty of reasonableness, and KDI had no duty to "look beyond" the Federation's rule on what was safe. For essentially the same reasons, the court also decided as a matter of law the platform was not defective due to an inadequate warning; in addition, the court stated, everyone, including Mohr, knew there was a danger in using the product.

¶ 9. In granting summary judgment in favor of the WIAA, the court ruled the WIAA was not negligent because it was simply a conduit for the Federation rule, it acted reasonably in relying on the expertise of the Federation, harm to Mohr resulting from the WIAA's adoption of the rule was not foreseeable, and the rule did not mandate use of starting platforms. Alternatively, the court ruled, the negligence claims against the WIAA should be dismissed on grounds of public policy because liability was out of proportion to the WIAA's conduct and would impose a "horrendous obligation" on state athletic associations.

DISCUSSION

¶ 10. A party is entitled to summary judgment if there are no genuine issues of material fact and that party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (2001-02). We apply the same methodology as the trial court and review de novo the grant or denial of summary judgment. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315-17, 401 N.W.2d 816 (1987). In deciding whether there are genuine issues of material fact, we view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Burkes v. Klauser, 185 Wis. 2d 308, 328, 517 N.W.2d 503 (1994).

Claims Against EDI

1. Negligence

¶ 11. Wisconsin has adopted Restatement (Second) of Torts § 388 (1965) regarding a manufacturer's duty to warn about its products. Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶ 58, 236 Wis. 2d 435, 613 N.W.2d 142. This section provides:

Chattel Known to be Dangerous for Intended Use.
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to he dangerous.

Restatement (Second) of Torts § 388.

¶ 12. Mohr contends the trial court erred in granting summary judgment to KDI because there were disputed issues of fact concerning whether KDI exercised reasonable care in not warning the high school that a minimum of five feet of water was needed in order to safely use the platform. In support of his position, Mohr submitted opinion evidence that it is unreasonably dangerous to perform any competitive racing start from a platform of any height in water less than five feet deep. According to one of Mohr's experts, because of variability in size, skill, and human nature, any swimmer performing a competitive racing dive has the potential of going as deep as 4.5 feet; with water depth of 3.5 feet, the risk of striking the pool bottom and sustaining a catastrophic injury is essentially the same whether the swimmer performs a racing start from a thirty-inch platform or an eighteen-inch platform, because it is the water depth, not the height of the platform, that is critical.

¶ 13. Mohr also asserts that KDI had a duty to warn him, although in his main brief he does not differentiate between that duty and KDI's duty to warn the high school about the safe water depths for use of the platform. In his reply brief, Mohr points to the allegations in the complaint that KDI failed to warn users and purchasers about the types of dives that swimmers should avoid if the starting platforms were placed at the end of a swimming pool where the water depth is 3.5 feet. However, in neither brief does Mohr point to evidence in the record that there were certain types of dives KDI should have warned purchasers or swimmers to avoid and that its failure to warn of these dives caused Mohr's injury. Indeed, such a position is flatly inconsistent with the evidence Mohr presented— that he was doing precisely the flat racing start he had been taught by his coaches — and with his assertion that he was using the starting platform exactly as intended by KDI. In addition, Mohr does not explain why KDI had a duty to inform swimmers of the depth of water necessary for safe use of the platforms. There is no evidence that the swimmers had any role in choosing where to locate the platforms or that they could move the platforms once the high school installed them. Accordingly, we confine our analysis to Mohr's argument that KDI was negligent in failing to warn the high school that a minimum of five feet of water was needed in order to safely use the platforms.

¶ 14. In response, KDI contends that it did not have a duty to warn the school about the depth of water necessary for safe use of the platforms because the high school was knowledgeable on the topic and because the danger of injury was open and obvious. On these two points, according to KDI, there are no facts in dispute. KDI does not contend there are no disputed facts on the question of the minimum depth at which the platforms can be used safely for competitive racing starts. Therefore, for purposes of analyzing KDI's two defenses, we will assume the view of the evidence on safe water depth most favorable to Mohr — that at least five feet of water is needed to safely use the eighteen-inch platforms for competitive racing dives.

¶ 15. Whether KDI had a duty to warn the high school given the school's level of knowledge implicates Restatement (Second) of Torts § 388(b). Under this subsection, KDI did not have a duty to warn the high school that the platforms were likely to be dangerous when used in water less than five feet if KDI had "reason to believe" that the high school would realize that danger. When this subsection is applied in the context of a user who allegedly has the knowledge to realize the dangerous condition of the product, it is often called the "sophisticated user" doctrine. See Haase v. Badger Mining, 2003 WI App 192, ¶ 21, 266 Wis. 2d 970, 669 N.W.2d 737. In Haase, we considered § 388(b) in the context of a negligence claim that the supplier of silica sand failed to adequately warn the foundry about the dangers of inhaling silica dust from the sand. Id., ¶¶ 1, 21. The supplier had successfully moved in the trial court for dismissal at the close of the plaintiffs case on the ground that the supplier reasonably expected the foundry, a sophisticated user of the sand, to institute the necessary safeguards for its employees. Id., ¶¶ 13-14. We rejected the plaintiffs argument that Wisconsin law does not recognize the "sophisticated user" doctrine and concluded that, based on the evidence the plaintiff presented, there was no dispute that the foundry, with whom the supplier had been dealing for years, had extensive knowledge of the hazards of inhaling silica dust, the disease of silicosis, and proper duct control methods. Id., ¶ 24. We therefore concluded it was reasonable for the supplier to expect that the foundry would institute the necessary safety precautions. Id.

¶ 16. Mohr contends that Haase does not support the application of a sophisticated user defense in this case because Haase addressed an employer-employee situation and did not hold the defense was appropriate in other situations. We do not agree. While it is true that some of our reasoning in Haase related specifically to the workplace, the broader analysis was that the sophisticated user doctrine was "embodied" in Restatement (Second) of Torts § 388, which Wisconsin had adopted. Id,., ¶ 21. We can see no reason to limit the application of subsec. (b) to an employer. This subsection is simply an expression of the general negligence principle that what is reasonable depends on the circumstances. Gritzner v. Michael R., 2000 WI 68, ¶ 22, 235 Wis. 2d 781, 611 N.W.2d 906 (" 'Ordinary care is the care which a reasonable person would use in similar circumstances.'") (quoting Wis JI — Civil 1005). Thus, what the supplier or manufacturer had reason to know of the user's or purchaser's knowledge of the dangers of a product affects whether the supplier or manufacturer exercised reasonable care with respect to warnings about the product. We therefore conclude KDI may raise as a defense under § 388(b) that KDI had reason to believe the high school would realize the platforms were likely to be dangerous if used in less than five feet of water.

¶ 17. We next examine the evidence to determine whether there are disputed issues of fact on this point. The athletic director at the high school from 1986 to 1994 averred that he was responsible for deciding to purchase the eighteen-inch platforms from KDI and to use them in the shallow end of the pool; he made that decision in consultation with the school district staff and the principal. In making that decision, he relied on the Federation's rule and the WIAA's adoption of the rule because he understood they were promulgating the safest rules. Since the rule gave high schools the option of using eighteen-inch platforms in a minimum of 3.5 feet of water, he believed the organizations had evaluated that option and concluded it was safe. He also relied on KDI's advertising literature for the eighteen-inch platforms, which quoted from the Federation's then-new rule, "In pools with water depth less than 4 ft. at the starting end, starting platforms shall be no more than 18" above the water surface or be located at the deep end of the pool," and then stated: "Limit your risk. Also let your team become accustomed to the new racing height now." Prior to Mohr's injury, the athletic director had no knowledge of research reporting injuries to competitive swimmers performing forward racing dives from starting platforms, of the depths swimmers may reach in executing such dives, or of the minimum depths needed to provide a margin of safety. He had no knowledge that organizations other than the Federation and the WIAA had greater minimum depths.

¶ 18. The girls' swimming coach at the high school was involved with the athletic director in discussions concerning purchase of the eighteen-inch platforms after learning at the WIAA meeting that Rule 2-7-2 had been changed. She wrote a memo regarding the need to make a change to comply with the new rule because the platforms the school had then were at the shallow end of the pool and were 25.5 inches high. This coach testified that at the time of the rule change, she had heard there had been several serious injuries to swimmers diving off starting platforms, and she understood this was the reason for the rule change, but she did not know the specifics of those accidents. She also testified that Chuck Walters of Walters Swim Supplies, Inc., with whom she had previously done business, recommended the eighteen-inch platforms so that the school would be in compliance with the Federation and the WIAA rule, and she relied on his recommendation because he had more knowledge of starting platforms than she did.

¶ 19. According to KDI, because this evidence shows that the high school employed "swimming professionals," was a member of organizations providing "swimming expertise," and the swimming coach was aware generally of the risks of injury from racing dives from starting platforms, KDI had no duty as a matter of law to warn the school. We disagree.

¶ 20. We first observe that the issue under Restatement (Second) of Torts § 388(b), correctly framed, is whether KDI had reason to believe that the high school had knowledge the platforms were likely to be dangerous if used in less than five feet of water, not whether the high school actually did have that knowledge. Thus, the actual knowledge of this particular high school is relevant if KDI knew of it or if the knowledge of this high school may be reasonably inferred to be the knowledge of high schools in general who purchase this product; but, in and of itself, this high school's actual knowledge is not dispositive under § 388(b). This reading of § 388(b) is consistent with Haase, in which we framed the issue as whether it was "reasonable for [the supplier] to expect that [the foundry] would institute the necessary safety precautions based on its own specific use of [the supplier's] sand." 669 N.W.2d 737, ¶ 24.

¶ 21. With this clarification, we examine the evidence. There is very little evidence on what KDI had reason to believe regarding the knowledge of this high school or high schools in general on the safe water depths for these platforms. There is no evidence that KDI knew of this high school's level of knowledge on safe water depths, and the evidence, in any event, is that the coach who participated in the decision to purchase the platforms had very little knowledge on the subject and the athletic director had none. However, one can reasonably infer from the evidence that KDI knew high schools in general belonged to the Federation and knew that the Federation considered safe water depths in making the rule change on platform heights. From this one might reasonably infer that KDI had a reason to believe the Federation would make available to member schools the information the Federation considered on safe water depths with eighteen-inch platforms. However, that is not the only reasonable inference: since there is no specific evidence that the Federation shared the information with high schools, one could also conclude KDI did not have a reason to believe high schools in general were knowledgeable on the topic of safe water depths for these platforms. We therefore conclude that KDI is not entitled to summary judgment on this ground.

¶ 22. We now turn to KDI's assertion that it is entitled to summary judgment because, as a matter of law, diving into shallow water is an open and obvious danger. KDI appears to rely on the "open and obvious danger" doctrine both as a reason it did not have a duty to warn, beyond the warning that was on the platforms, and as a basis for finding that Mohr was more negligent than KDI.

¶ 23. The open and obvious danger doctrine is distinct' from the question of whether a supplier or manufacturer exercised ordinary care under Restatement (Second) of Torts § 388 with respect to warnings. Strasser, 236 Wis. 2d 435, ¶ 60. The open and obvious danger doctrine is an affirmative defense and an element to be considered by the fact finder in apportioning negligence, if the supplier or manufacturer has failed to exercise ordinary care. Id. However, because the duty to warn depends under § 388(b) on whether the supplier or manufacturer has reason to believe the user will realize the danger involved, some of the facts relevant to an open and obvious danger defense may be relevant to the issue of the supplier's or manufacturer's duty. As the court explained in Strasser, one of the situations under § 388(b) in which a supplier or manufacturer has no duty to warn of a danger is when " 'a mere casual looking over will disclose [the dangerous condition] unless the circumstances under which the chattel is supplied are such as to make it likely that even so casual an inspection will not be made.'" Id., ¶ 58 (quoting Restatement (Second) of Torts § 388 cmt. k). When danger is obvious from a mere casual looking over, the supplier or manufacturer has reason to believe that the user will realize the danger. See id., ¶ 59.

¶ 24. In this case, whether a "mere casual looking over" would disclose the likely danger of using the platforms in less than five feet of water is one of the issues in determining whether KDI had a duty to warn the high school of that danger, whereas whether doing competitive racing starts from the platforms located at a depth of 3.5 feet is an open and obvious danger is an issue in allocating negligence, if the negligence issue is resolved against KDI.

¶ 25. As to the first issue, we conclude there are factual disputes. The testimony KDI relies on is that of Mohr and some swimming coaches at his school that they were aware of the need to do shallow racing dives from the platforms in order to avoid hitting the bottom of the pool. However, it is not clear from this testimony whether they understood that there was a danger of injury in diving from the platforms into 3.5 feet of water even if one executed a proper shallow racing dive, which is what Mohr is contending. In addition, it is reasonable to infer from other testimony of the girls' swimming coach that she was not aware of this. Finally, Mohr submitted testimony from his expert that the danger of doing a shallow racing dive from an eighteen-inch starting platform in 3.5 feet of water would not be obvious to coaches.

¶ 26. As to the issue whether there is an open and obvious danger for purposes of allocating negligence, we also conclude there are disputed issues of fact. There is conflicting evidence on whether Mohr was executing the type of shallow racing dive he was taught to do when he was injured or instead was attempting to dive into the water at a steeper angle. There is also, as we have noted above, a conflict in the evidence over whether Mohr understood that there was a danger in 3.5 feet of water even if he did the shallow racing dive as he had been instructed. Finally, from the evidence that the school placed the platforms at the shallow end of the pool specifically for the use of swimmers like Mohr, one can infer that he reasonably believed it was not dangerous to do a shallow racing dive from the platforms as he had been taught by his coaches.

¶ 27. KDI relies on cases in which the court granted summary judgment or a motion to dismiss against persons who dove into water of unknown depths, concluding that they confronted an open and obvious danger as a matter of law. These cases are not applicable. Mohr was supposed to be doing a shallow racing dive off the platform into the water, which everyone knew was 3.5 feet deep. Whether he was negligent in the manner in which he dove is, at this stage, in dispute; but there is no basis for concluding as a matter of law that he acted unreasonably in diving into the pool.

¶ 28. The parties also debate whether, if Mohr did confront an open and obvious danger, he would on that basis be more negligent than KDI as a matter of law or if that would be only a factor in allocating negligence. Because this issue will likely arise at trial, we address it now.

¶ 29. KDI relies on Wagner v. Wisconsin Municipal Mutual Insurance Co., 230 Wis. 2d 633, 638, 601 N.W.2d 856 (Ct. App. 1999), for the proposition that "[w]ithin the context of comparative negligence principles, the application of the open and obvious danger doctrine is tantamount to a determination that the plaintiffs negligence exceeds the defendant's negligence as a matter of law." However, this statement is difficult to reconcile with the supreme court's holding in Rockweit v. Senecal, 197 Wis. 2d 409, 423, 541 N.W.2d 742 (1995), in which the supreme court reaffirmed that it had in previous cases

abrogated the common law immunity [for owners of premises] by subsuming the concept of open and obvious danger into the consideration of common law negligence. In the ordinary negligence case, if an open and obvious danger is confronted by a plaintiff, it is merely an element to be considered by the jury in apportioning negligence and will not operate to completely bar the plaintiffs recovery.

The statement from Wagner is also inconsistent with Strasser, which relied on Rockweit in explaining the distinction between the question of ordinary care and the open and obvious danger doctrine, and expressly recognized that "the doctrine operates ... to allocate a plaintiffs contributory negligence." 236 Wis. 2d 435, ¶ 60. When a decision from this court conflicts with a decision of the supreme court, the latter controls. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). We therefore follow Rockweit and Strasser. Under those cases, whether Mohr confronted an open and obvious danger in diving into the pool is an element for the jury to consider in deciding if and to what extent he is contributorily negligent. The determination that he did confront an open and obvious danger does not result in a conclusion as a matter of law that he was more negligent than KDI.

2. Strict Product Liability

¶ 30. Since 1967 Wisconsin has adhered to the rule of strict product liability set forth in Restatement (Second) of Toets § 402A (1965). Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶ 23, 245 Wis. 2d 772, 629 N.W.2d 727. To prevail on a claim of strict product liability, a plaintiff must prove all the following elements:

(1) that the product was in defective condition when it left the possession or control of the seller, (2) that it was unreasonably dangerous to the user or consumer, (3) that the defect was a cause ... of the plaintiffs injuries or damages, (4) that the seller engaged in the business of selling such product or, put negatively, that this is not an isolated or infrequent transaction not related to the principal business of the seller, and (5) that the product was one which the seller expected to and did reach the user or consumer without substantial change in the condition it was when he [or she] sold it.

Id.

¶ 31. Wisconsin has adopted comments g and i to Restatement (Second) of Toets § 402A. Green, 245 Wis. 2d 772, ¶ 29. These explain that a product is defective if it is "in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him [or her]"; and that for a product to be considered "unreasonably dangerous," it must be "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Id. (quoting Restatement (Second) of Torts § 402A, cmts. g & i (1965)).

¶ 32. " 'In order to prevent [a] product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use.'" Westphal v. E.I. du Pont de Nemours & Co., 192 Wis. 2d 347, 363, 531 N.W.2d 386 (Ct. App. 1995) (quoting Restatement (Second) of Torts § 402A cmt. j). A warning is required when the seller has "reason to anticipate that danger may result from the particular use ... and a product sold without such warning is in a defective condition." Id. (quoting Restatement (Second) of Torts § 402A cmt. h). The warning must be adequate and appropriate under the circumstances. Tanner v. Shoupe, 228 Wis. 2d 357, 367, 596 N.W.2d 805 (Ct. App. 1999). A manufacturer must anticipate the environment that is normal for the use of the product. Id. In other words, the manufacturer has the duty to foresee all reasonable uses and misuses and the resulting foreseeable dangers. Id. The duty to warn arises when the manufacturer has, or should have, knowledge of a dangerous use. Id. An inadequate warning on a product can, by itself, render the design defective. Id. Whether a warning is adequate is generally an issue of fact to be determined by the jury. Id. The jury is to consider all pertinent factors, such as the likelihood of a particular accident taking place and the seriousness of the consequences, in deciding whether the warning is sufficient to apprise the user of the particular hazard. Id.

¶ 33. Mohr contends there are disputed issues of fact on the adequacy of the warning on the platform. His position is that the warning was inadequate because neither the label on the product nor the instructions contained information that five feet of water was needed to use the platform safely and, thus, the platform was defective and unreasonably dangerous. KDI's response is essentially the same as its response to the negligence claim: the warning was adequate because the high school was knowledgeable on the topic and the danger of injury was open and obvious.

¶ 34. KDI appears to assume that the "sophisticated consumer" doctrine applies in a strict product liability case, but it cites no Wisconsin cases addressing this issue. Haase was a negligence claim under Restatement (Second) of Torts § 388. 669 N.W.2d 737, ¶ 21. In Shawver v. Roberts Corp., 90 Wis. 2d 672, 676, 280 N.W.2d 226 (1979), see supra note 6, the inadequate warning issue was also addressed in the context of a negligence claim. While we have acknowledged the difficulty of distinguishing between a negligence claim and a strict product liability claim when both are based on an allegedly inadequate warning, see supra note 10, we are reluctant, without more guidance from the supreme court, to import doctrines from the former into the latter. We will therefore analyze KDI's arguments within the framework of Restatement (Second) of Torts § 402A only.

¶ 35. We conclude that whether KDI had a "reason to anticipate that danger may result from the particular use" — that is, the use of the platforms to perform racing starts in less than five feet of water— encompasses what KDI knew or should have known about how the ordinary high school that purchased the platforms would use them. The level of knowledge on safe water depths of ordinary high school purchasers is relevant to this inquiry. However, as we have explained in the context of the negligence claim, the evidence on this point is conflicting.

¶ 36. We also conclude that KDI's contention that the danger was open and obvious involves evidence relevant to the adequacy of the warning. If the danger of performing racing starts from the platforms in less than five feet of water is apparent to the ordinary high school purchaser, then KDI has reason to believe that high schools will place them accordingly and does not have reason to anticipate danger from placement in water that is too shallow. However, as we have already explained, the evidence on whether this danger was apparent to the ordinary high school is conflicting.

¶ 37. As for the asserted obviousness of the danger as it relates to the question of Mohr's contributory negligence, contributory negligence may he a defense to a strict product liability claim. Green, 245 Wis. 2d 772, ¶ 59; see also Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, ¶ 24, 244 Wis. 2d 758, 628 N.W.2d 833 (explaining that the act to which the seller's responsibility attaches in a strict product liability case is not negligence but rather placing a defective product in the stream of commerce; therefore, when contributory negligence is an issue, the comparison is between the extent to which the plaintiffs injuries are attributable to his or her negligence and the extent to which they are attributable to the product's defective condition). For the reasons we have explained in our discussion on the negligence claim, there are disputed issues of fact concerning whether Mohr was contributorily negligent and, if so, to what degree.

Claim Against the WIAA

¶ 38. Mohr contends there are disputed issues of fact both as to whether the WIAA was negligent in adopting Rule 2-7-2 and as to whether public policy precludes imposing liability on the WIAA even if it was negligent. The WIAA responds that the trial court correctly ruled that, as a matter of law, the WIAA had no duty to independently assess the adequacy of Rule 2-7-2 and, in any event, based on the undisputed facts it would be against public policy to impose liability on the WIAA for Mohr's injuries.

¶ 39. In Wisconsin, the rule is that every person has a duty to use ordinary care in all of his or her activities, and a person is negligent when that person fails to exercise ordinary care. Alvarado v. Sersch, 2003 WI 55, ¶ 14, 262 Wis. 2d 74, 662 N.W.2d 350. Under the general framework governing the duty of care:

Ordinary care is the care which a reasonable person would use in similar circumstances. A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property.

Gritzner, 235 Wis. 2d 781, ¶ 22 (quoting Wis JI — Civil 1005).

[Thus] the particular conduct of a defendant is not examined in terms of whether or not there is a duty to do a specific act, but rather whether the conduct satisfied the duty placed upon individuals to exercise that degree of care as would be exercised by a reasonable person under the circumstances.

Id., ¶ 24.

¶ 40. The WIAA's argument that it had no duty as a matter of law overlooks the distinction between the issue of duty and the issue of liability. Although courts have sometimes used the language that a defendant had "no duty" to the injured person, they are in reality making a decision that there should be no liability as a matter of public policy. Id., ¶ 24 n.4. More recently, the court in Alvarado clarified the distinction:

The question of duty is nothing more than an ingredient in the determination of negligence. Once it has been determined that a negligent act caused the harm, the question of duty is irrelevant and a finding of nonliability can be made only in terms of public policy.
The "duty" ingredient of negligence should not be confused with public policy limitations on liability. The doctrine of public policy, not the doctrine of duty, limits the scope of the defendant's liability.

262 Wis. 2d 74, ¶¶ 15-16 (citations and footnote omitted).

¶ 41. Thus, the crucial question with regard to the WIAA's duty is not, as the WIAA frames it, whether it had a duty to make its own assessment of the adequacy of Rule 2-7-2 before adopting it, but, rather, whether its conduct in not doing so was consistent with its duty to exercise reasonable care. See Gritzner, 235 Wis. 2d 781, ¶ 25. With this formulation of duty in mind, we examine the evidence to determine whether there are disputed issues of fact.

¶ 42. The evidence and reasonable inferences from the evidence, viewed most favorably to Mohr, include the following. The WIAA executive director was aware that schools rely on the WIAA to have safe playing rules. The WIAA was not obligated to adopt the Federation's rules, and had in the past adopted a more restrictive rule with regard to the minimum depths for spring diving boards. The Federation rule provided for a nine-foot minimum, but, because of a change in the way diving boards were manufactured, divers were able to go deeper than previously, and there was one or more instances of divers hitting the bottom of the pool. The WIAA asked the Federation Swimming and Diving Rules Committee to change the rule to require a ten-foot minimum, but that committee declined to change the Federation rule, so the WIAA adopted its own rule requiring a ten-foot minimum depth.

¶ 43. With respect to Rule 2-7-2, the WIAA personnel knew that the Federation had changed the rule in 1991 because of injuries under the prior rule. The executive director of the WIAA knew that in 1994 the Federation considered a proposal to adopt a minimum depth of five feet, that two states had enacted legislation requiring five feet and another 4.5 feet, and that the Federation decided to conduct research on the topic. The WIAA did not make its own inquiries on the topic because the director decided to rely on the Federation's undertaking of the research. A Federation questionnaire asked the state associations whether it would recommend that schools move starting platforms to the deep end or to more than six feet deep, and 45% answered yes. Based on the research the Federation did, it decided there was no need to change Rule 2-7-2, and the WIAA therefore made no change in the rule.

¶ 44. Mohr's expert opined that, prior to Mohr's injury, there were many well-publicized reports of catastrophic injuries to swimmers performing competitive racing starts in the shallow end of swimming pools, and these reports provided information to the WIAA, as well as to the Federation, that 3.5 feet of water was not a safe depth for competitive racing starts regardless of the platform height.

¶ 45. We conclude that, if a jury chose to believe this evidence, it could reasonably decide that the WIAA did not exercise reasonable care in adopting Rule 2-7-2 without making any inquiry into whether a competitive racing start in 3.5 feet of water was safe. There is, of course, evidence that would support the opposite determination, but we cannot conclude as a matter of law that the WIAA was not negligent. The cases the WIAA relies on for its argument to the contrary are so factually different that they offer no support for its argument. See, e.g., McNeese v. Pier, 174 Wis. 2d 624, 631, 497 N.W.2d 124 (1993) (no evidence to support jury determination that family acquaintance breached her duty of care by waiting in her car parked across the street from the child's home to take the child to school; child injured while crossing street to get to the car).

¶ 46. We next consider whether the WIAA is entitled to summary judgment on public policy grounds. The public policy considerations that a court applies to decide if it should preclude liability are:

(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 resulted in the harm; (4) allowing recovery would place too unreasonable a burden on the tortfeasor; (5) allowing recovery would be too likely to open the way for fraudulent claims; [or] (6) allowing recovery would enter a field that has no sensible or just stopping point.

Alvarado, 262 Wis. 2d 74, ¶ 17.

¶ 47. As the court in Alvarado has recently reaffirmed, in most cases the better practice is for the court to submit the case to the jury before determining whether public policy considerations preclude liability. Id., ¶ 18. Only in those cases where the facts are simple to ascertain and the public policy questions have been fully presented may a court review public policy and preclude liability before trial. Id. The court in Alvarado explained that a jury's determination of negligence includes an examination of whether the defendant's exercise of care foreseeably created an unreasonable risk of harm to others, and public policy factors can also implicate the concept of foreseeability. Id., ¶ 19. Thus, evidence regarding foreseeability may play a dual role. Id. Besides having the aid of the jury's opinion when assessing liability, a judge will be aided by the facts brought to light during the jury trial. Id.

¶ 48. We are satisfied this is not one of those simple cases where a public policy determination can be made before trial. Whether the WIAA exercised reasonable care in adopting Rule 2-7-2 without making its own inquiry depends in part on what information was available to it on safe water depths for competitive racing starts and how readily available that information was to the WIAA, given the size of the WIAA staff and its resources. These are factual disputes that cannot be resolved on summary judgment, and their resolution is relevant to the application of the first four policy considerations, which appear to be the most relevant of the six.

¶ 49. We therefore conclude the trial court erred in granting summary judgment to the WIAA on the ground of public policy as well as on the ground that it was not negligent as a matter of law.

By the Court. — Order reversed and remanded.

       Michael's parents are also plaintiffs and appellants, although we refer only to Michael.

       Restatement (Second) of Toets § 388 addresses the duty of a supplier of chattel, but Restatement (Second) of ToRts § 394 provides that the duty of a manufacturer is the same as the duty of a supplier of chattel.

        Haase v. Badger Mining, 2003 WI App 192, 266 Wis. 2d 970, 669 N.W.2d 737, was decided after the parties in this case completed their briefs on appeal; both KDI and Mohr submitted commentary on the application of Haase to this case.

       For example, we observed that the purchaser employer was in the best position to ensure workplace safety and it was therefore sound policy to place the duty to warn on that entity rather than the supplier of the material. Haase, 669 N.W.2d 737, ¶ 21.

       Mohr also argues that the sophisticated user defense does not apply to Mohr himself. KDI does not contend that it does. However, as we have explained above, Mohr has not developed an argument that KDI was negligent in failing to warn Mohr as opposed to the high school, and therefore it is of no consequence that this defense does not apply to Mohr.

       Our reading of Restatement (Seoond) of Torts § 388(b) is also consistent with Shawver v. Roberts Corp., 90 Wis. 2d 672, 686, 280 N.W.2d 226 (1979), on which KDI relies. In that case, the court concluded the manufacturer of a conveyor belt did not have a duty to warn the foundry that purchased the conveyor belt of dangers regarding the controls, because it was the foundry's own engineering department that designed and placed the controls. Id. The court did not cite to § 388(b), but stated: "Ordinarily there is no duty to warn members of a trade or profession about dangers generally known to that trade or profession." Id. It is not the mere fact that a user of a product is a member of a trade or profession that is significant — as portions of KDI's argument suggest — but that the trade or profession, in generad, has knowledge of the danger of the product. In such a situation, there is a reason for the supplier or manufacturer to believe that a member of the trade or profession will realize the danger of the product.

        Griebler v. Doughboy Recreational Inc., 160 Wis. 2d 547, 466 N.W.2d 897 (1991); Colip v. Travelers Ins. Co., 141 Wis. 2d 363, 415 N.W.2d 525 (Ct. App. 1987).

        Scheeler v. Bahr, 41 Wis. 2d 473, 164 N.W.2d 310 (1969).

       Restatement (Second) of ToRTS 402A (1965) provides:
      Special Liability of Seller of Product for Physical Harm to User or Consumer.
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his [or her] property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his [or her] property, if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in Subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his [or her] product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

       Because we determine whether a warning is required on a strict product liability claim by considering whether the seller has reason to anticipate that danger may result from the particular use, Restatement (Seoond) of Tobts § 402A cmt. h, this court and the supreme court have used the phrase "duty to warn" for strict product liability claims. See Schuh v. Fox River Tractor Co., 63 Wis. 2d 728, 738, 742-43, 218 N.W.2d 279 (1974), Tanner v. Shoupe, 228 Wis. 2d 357, 367-68, 596 N.W.2d 805 (Ct. App. 1999), Westphal v. E.I. du Pont de Nemours & Co., 192 Wis. 2d 347, 362, 531 N.W.2d 386 (Ct. App. 1995), Krueger v. Tappan Co., 104 Wis. 2d 199, 206-07, 311 N.W.2d 219 (Ct. App. 1981). Using "duty" terminology blurs the distinction between a negligence claim and a strict product liability claim when the issue is the adequacy of a warning. Indeed, this court has stated that the proof requirements for an inadequate warning on a strict product liability claim are the same as for breach of the duty to warn on a negligence claim. Tanner, 228 Wis. 2d at 365 n.3, see also Krueger, 104 Wis. 2d at 207 n.3.
      We recognize that there is language in Green v. Smith & Nephew AHP, Inc., 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727, that appears inconsistent with defining the need for a warning in terms of whether the seller had reason to anticipate danger from a particular use. In Green, in the context of a claim that a product was defective and unreasonably dangerous because of excessive amounts of a particular substance, the court declined to replace the consumer contemplation test. In emphasizing the distinction between negligence and strict product liability, the court quoted earlier cases stating, "It is not necessary [in a strict product liability case] to show duty in terms of foreseeability," and "[floreseeability is not an element considered in strict product liability claims, but instead is an element of negligence." Green, 245 Wis. 2d 772, ¶¶ 57, 61 n.14 (citations omitted). The dissent in Green pointed out what it viewed as the inconsistency in the consumer contemplation test and the standard applied when the product is allegedly defective because of an inadequate warning. Id., ¶¶ 130, 133 & n.3 (Sykes, J., dissenting).
      Because Green did not specifically address a defect resulting from an inadequate warning, we do not read Green to overrule the cases from this court that hold, based on Restatement (Second) of Torts § 402A cmts. h & j, that a warning is required when the seller has reason to anticipate that danger may result from the particular use. We therefore use that standard here. The question remains, however, whether there is any practical significance between the elements of a claim that a seller has breached its duty to warn under Restatement (Second) of ToRts § 388 and a claim that the seller is strictly liable under § 402A because its product was defective and unreasonably dangerous due to an inadequate warning. Not surprisingly, although the parties here each properly recite the distinct standards for each claim, we are unable to tell from their arguments whether they believe there is a practical difference in the two claims in this case.
      We believe litigants and courts would benefit from a clarification by the supreme court of the differences, if any, between the proof required for a negligence claim and for a strict product liability claim when the assertion underlying both claims is that the warning was inadequate.

       We observe that on the topic of the adequacy of warnings, Restatement (Third) of ToRts: Products Liability (1998) appears to adhere to the same fundamental concept that a warning is required when a manufacturer has "reason to anticipate that danger may result from the particular use," but it is significantly more detailed. See Restatement (Third) of Torts: Products Liability § 2(c) & cmts. j-m. However, because the supreme court in Green, 245 Wis. 2d 772, ¶ 74, declined to adopt Restatement (Third) of Torts: Products Liability with respect to design, § 2(b), we are uncertain whether adopting § 2(c) on warnings would be consistent with Green. Accordingly, we do not adopt § 2(c).

       KDI also argues that as a matter of public policy it should not be held liable for Mohr's injuries. Mohr objects to our consideration of this issue because KDI did not raise it in the trial court. In any event, because we have concluded there are disputed issues of fact regarding both the negligence and strict product liability claims against KDI, a public policy determination should be made only after a full factual resolution of these claims. See Alvarado v. Sersch, 2003 WI 55, ¶ 20, 262 Wis. 2d 74, 662 N.W.2d 350; see also infra ¶¶ 47-48.


source: Caselaw Access Project

license: Public Domain

text:
    City of Stoughton, Plaintiff-Respondent-Cross-Appellant, v. Thomasson Lumber Company, Defendant-Appellant-Cross-Respondent.

    Court of Appeals

      No. 02-2192.

      Oral argument July 14, 2003.

      Decided December 23, 2003.

    2004 WI App 6
    (Also reported in 675 N.W.2d 487.)

      On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the briefs of Edward A. Corcoran, Brennan, Steil, Basting & Mac-

      Dougall, Madison, and T. Gregory Slother, Barr, Mur-man, Tonelli, Slother & Sleet, Florida. There was oral argument by Edward A. Corcoran.

    On behalf . of the plaintiff-respondent-cross-appellant, the cause was submitted on the briefs of Richard J. Delacenserie, Alan G.B. Kim, Jr., and Michael A. Dodge, Davis & Kuelthau, S.C., Madison. There was oral argument by Alan G.B. Kim, Jr.

    Before Deininger, EJ., Dykman and Vergeront, JJ.

       Petition to review dismissed 2-10-04.

   VERGERONT, J.

¶ 1. The City of Stoughton filed this action for breach of implied warranty against Thomasson Lumber Company, claiming that 225 telephone poles the City purchased from the company were not merchantable at the time of delivery. After a trial to the court, the court entered judgment against Thomas-son Lumber, and Thomasson Lumber appeals. We conclude: (1) the trial court did not erroneously decide that an implied warranty could contain a warranty on future performance of the poles, but rather properly considered the generally expected service life of like poles in determining whether these poles were merchantable at the time of delivery under Wis. Stat. § 402.314(2) (2001-02); (2) the trial court did not err in evaluating the expert testimony; (3) the trial court did not erroneously exercise its discretion in treating pleadings of Thomasson Lumber as admissions of a party opponent; (4) the evidence supported the trial court's findings that the poles did not meet the requirements for merchantability at the time of delivery; and (5) the evidence supported the trial court's finding that the City mitigated its damages. We therefore affirm the judgment against Thomasson Lumber.

¶ 2. The City cross-appeals the trial court's decision to limit recovery for replacement costs to only 189 of the 225 poles replaced. This limitation was a sanction for the City's failure to mark for identification purposes poles it had to cut up for removal. For the reasons we explain below, we reverse and remand for further proceedings on this issue.

BACKGROUND

¶ 3. In 1990 and 1991, the City purchased 225 utility poles from Thomasson Lumber. The poles were treated for Thomasson Lumber with copper/ naphthenate (copper nap) at a facility owned by Olon Belcher Lumber Company. The purchase specifications drafted by the City required that the poles be southern yellow pine, be treated with copper nap to a .06 retention, meet the standards of the American National Standards Institute (ANSI) and American Wood Preservers Association (AWPA), and be independently inspected prior to delivery to the City. Thomas-son Lumber selected McCallum Inspection Company to perform the independent inspection. The City installed the poles for use to support electrical lines for homes and businesses in the City.

¶ 4. In January 1993, the Rural Electrification Administration, a United States government agency, sent a warning to electric utilities, including the City's electric utility, advising that the agency had received reports from three electric cooperatives that poles treated with copper nap were deteriorating after only two to three years; the agency advised purchasers of such poles since 1988 to visually inspect and sound the poles. The next month Thomasson Lumber sent its own alert to its copper nap pole customers recommending that they inspect their poles promptly because some customers had experienced premature decay in their poles. In June, a Thomasson Lumber employee performed an inspection of the City's copper nap poles, which consisted of Sounding and boring approximately thirty to forty poles. He found one decayed pole and offered to refund the City the purchase price of the rotting pole.

¶ 5. In April 1994, three poles broke in a windstorm. They broke off about ten feet from the top of the poles, and the poles were rotten inside. The City notified Thomasson Lumber of this. That same month Hugh Thomasson of Thomasson Lumber inspected the poles, as did an employee of Olon Belcher. The substance of the conversations between Thomasson and the City and between the Olon Belcher employee and the City concerning these inspections was disputed at trial.

¶ 6. On August 4, 1994, another copper nap pole collapsed, causing a fire, and the City filed this lawsuit shortly thereafter. After consulting with a pole inspection company, Osmose Wood Preserving, Inc., and with Forester Engineering, the City ultimately removed and replaced all but one of the poles in 1995. When the City discovered the remaining pole in 1999, it replaced it.

¶ 7. Prior to trial, Thomasson Lumber filed a motion in limine requesting that the City be precluded from presenting any evidence or argument regarding poles that were not produced by the City for inspection by Thomasson Lumber, and also requesting that the City be precluded from requesting any damages regarding those poles. The City in response filed an affidavit averring that some of the poles had to be cut for safe removal and replacement of the poles, but that all those that had been removed were made available to Thomas-son Lumber. The court, the Honorable Judge Robert Pekowsky presiding, concluded that, while some of the poles had to be cut up for removal, the City did not meet its responsibility to preserve evidence because it failed to mark the cut poles so that Thomasson Lumber could determine the specific pole from which a cut piece came. The court therefore ruled that the City was "precluded from introducing evidence regarding the thirty-two [sic] poles which were not adequately preserved for litigation."

¶ 8. The trial was to the court, the Honorable Diane Nicks presiding. The court issued a lengthy-written decision analyzing the factual and legal disputes of the parties. The court applied Wis. Stat. § 402.314, which governs implied warranties of merchantability, and determined that the City had shown that at least three of the six requirements for merchantable goods were not met: (1) the poles would not pass without objection in the trade under the contract description; (2) they were not of fair average quality within the description; and (3) they were not fit for the ordinary purposes for which such goods were used. Section 402.314(2)(a)-(c).

¶ 9. The court rejected Thomasson Lumber's argument that the City had not mitigated its damages because it removed and replaced all the poles instead of inspecting each pole and then remedially treating each pole based on the results of the inspection. The court determined that Thomasson had not shown that a single inspection and single treatment would suffice to ensure that the poles left standing would reliably perform for a significant period of time. Therefore, the court found, the City would need to continue to incur the costs of repeating this process in an attempt to have the poles safely and reliably perform over the customary thirty-year pole life. The court also determined that it was reasonable for the City to replace all the poles rather than incur the risk to persons and property from decaying poles. However, the court agreed with Tho-masson Lumber that it should not award damages for the City's cost of replacing the poles that were not available for inspection because the City had cut them up without marking them. The court awarded the City a total of $223,394.76 for the cost of replacing 189 poles, plus the interest on the loan the City took out in order to pay for replacement of those poles, plus the costs for paying the two companies for inspection and consultation.

DISCUSSION

I. Appeal

A. Post-Delivery Performance

¶ 10. Thomasson Lumber contends the trial court erred in considering the post-delivery performance of the poles when the court determined whether the requirements of Wis. Stat. § 402.314(2) were met. According to Thomasson Lumber, Selzer v. Brunsell Brothers, Ltd., 2002 WI App 232, 257 Wis. 2d 809, 652 N.W.2d 806, holds that implied warranties do not contain any warranty of future performance, and the court here found a warranty of future performance when it found the poles had an "expected service life . . . between 30 and 40 years." The City responds that Selzer is not applicable because it addressed an issue not present in this case: whether the exception in Wis. Stat. § 402.725(2), governing the accrual of a cause of action when "a warranty explicitly extends to future performance of the goods," applies to an implied warranty.

¶ 11. This issue presents a question of law, because it involves statutory construction, and our review is therefore de novo. Hughes v. Chrysler Motors Corp., 197 Wis. 2d 973, 978, 542 N.W.2d 148 (1996).

¶ 12. We agree with the City that our analysis in Selzer is not applicable to this case. Thomasson Lumber relies on the statement in Selzer, quoted from Marvin Lumber & Cedar Co. v. PPG Industries, Inc., 223 F.3d 873, 879 (8th Cir. 2000), that " '[i]mplied warranties, cannot, by their very nature, explicitly extend to future performance.'" 257 Wis. 2d 809, ¶ 24. When placed in context, this statement simply means that an implied warranty by definition is not an "explicit" warranty of anything and thus is not a warranty that "explicitly extends to future performance of goods" within the meaning of Wis. Stat. § 402.725(2).

¶ 13. Thomasson Lumber's reliance on Selzer confuses the legal question of whether an implied warranty may contain a warranty that "explicitly extends to future performance of the goods" with the factual questions involved in determining whether the requirements of Wis. Stat. § 402.314(2) are met. Evidence that the goods break or physically deteriorate after delivery may be relevant to whether the goods were fit at the time of delivery for the ordinary purpose for which they are used; but consideration of such evidence for that purpose does not impose an express warranty for future performance, as Thomasson Lumber contends. Indeed, we recognized in Selzer the very distinction that Tho-masson Lumber blurs when we said: "While all warranties in a general sense apply to the future performance of goods, the future performance exception [in Wis. Stat. § 402.725(2)] applies only where the warranty 'explicitly extends to future performance.1 " 257 Wis. 2d 809, ¶ 20 (quoting § 402.725(2)). As the City points out, Wisconsin courts have considered evidence of what happens to goods after delivery to decide whether they are fit for the ordinary purposes under § 402.314(2)(c), see Titus v. Polan, 72 Wis. 2d 23, 24-26, 240 N.W.2d 420 (1976) (evidence that pump installed in November 1973 failed in August 1974 because the motor was defective establishes that pump was not fit for ordinary purpose) or fit for a particular purpose under Wis. Stat. § 402.315, see Calumet Cheese Co. v. Chas. Pfizer & Co., 25 Wis. 2d 55, 58-59, 63, 130 N.W.2d 290 (1964) (substance was not fit for the particular purpose of use as an additive to cheese because it caused the cheese to develop a bad odor and flavor).

¶ 14. The trial court's analysis here is consistent with these decisions. The court did not find that Tho-masson Lumber had expressly warranted that the poles would last between thirty and forty years. Rather, the court found, based on the evidence, that this was the expected service life of like utility poles, and the court considered this evidence along with other evidence in finding that the poles were not fit for the ordinary purpose for which such poles are used.

B. Expert Testimony

¶ 15. The City and Thomasson Lumber each presented expert testimony that was in direct conflict on critical points. The City's expert, Dr. William Smith, reviewed the investigation of all the poles conducted by Osmose Wood Preserving in 1994 and the results of the investigation of 188 poles conducted by Thomasson Lumber's expert, Dr. Darryl Nicholas, in 1997. Smith also inspected those 188 poles himself and randomly tested them. He opined that the poles were an "abnormal" population because they had an "irrationally" high rate of decay, irregular penetration, and decay toward the top rather than at the ground line, and this abnormal character made it impossible to predict which poles would fail in the future. In contrast, Smith described a pole properly treated with copper nap as having an average service life of thirty to fifty years, meaning that a majority of the individual lives would cluster in the middle, and a failure before fifteen years would not be expected. According to Smith, the City's poles were not fit for their ordinary purpose, were not of fair, average quality, were not of even quality, and did not meet the industry standards as represented by the brand.

¶ 16. In contrast, Nicholas testified that the City's poles would pass in the trade without objection, were of fair and average quality, were fit for their ordinary purpose, and were of even kind, quality, and quantity under applicable industry standards. Based on his inspection of the 188 poles in 1997, and taking into account the passage of time and the manner in which the poles had been stored after removal, he opined that the poles had been treated to appropriate penetration and retention levels.

¶ 17. The trial court analyzed in detail the testimony of both Smith and Nicholas, explaining why it did not consider Nicholas's testimony persuasive on several points and why it accepted Smith's opinions rather than Nicholas's.

¶ 18. Thomasson Lumber contends the trial court erred in relying on Smith's testimony. According to Thomasson Lumber, Smith "disavowed" his status as an expert because he did not conduct an adequate investigation of the poles. Thomasson Lumber relies on Green v. Smith & Nephew AHP, Inc., 2000 WI App 192, ¶ 23, 238 Wis. 2d 477, 617 N.W.2d 881, in which we concluded that opinion testimony was erroneously admitted because the witness admitted that the opinion was outside his area of expertise. Green has no relevance to this case because Smith made no admission of a lack of expertise. Once the relevancy of evidence is established and the witness qualifies as an expert, whether to credit that expert's testimony and the weight to give it are judgments for the fact finder to make. See State v. Peters, 192 Wis. 2d 674, 690, 534 N.W.2d 867 (Ct. App. 1995). That includes the judgment whether Smith's investigation was adequate to support the opinions he gave.

¶ 19. Thomasson Lumber also relies on Weber v. White, 2003 WI App 240, ¶ 15, 267 Wis. 2d 862, 672 N.W.2d 151, review granted, 2004 WI 1 (Wis. Dec. 16, 2003) (No. 03-0471), which it brought to our attention as a supplemental authority. Weber, too, is inapplicable. In Weber, an expert expressly stated on cross-examination that he could not give an opinion to a reasonable degree of chiropractic certainty on future health care expenses; we therefore concluded there was no evidence properly before the jury of future health care expenses. Id. In this case, Smith testified that in his opinion to a high degree of scientific certainty or probability, the decay in the poles was caused by fungi that were introduced at or prior to the treatment process in one or more of three primary ways; but he acknowledged he could not, on the basis of the investigation he had made, opine to the requisite degree of certainty which of these three caused the decay in a specific pole. Smith's inability to give an opinion to the requisite degree of certainty on the cause of decay in a specific pole does not render inadmissible the opinions he did give to the requisite degree of certainty. Whether to accept the opinions he gave to the requisite degree of certainty in view of the opinions he could not give is a judgment for the trial court as fact finder to make. See Peters, 192 Wis. 2d 674 at 690.

¶ 20. On much the same basis, we reject Thomas-son Lumber's contention that the trial court improperly disregarded and mischaracterized Nicholas's testimony. The court did not disregard his testimony but chose to rely instead on Smith's opinion on certain points where their opinions were in conflict. That is properly the role of the fact finder. See Gegan v. Backwinkel, 141 Wis. 2d 893, 901, 417 N.W.2d 44 (Ct. App. 1987). Thomasson Lumber presents explanations for aspects of Nicholas's testimony that the trial court found not persuasive or inconsistent with other evidence. However, whether there is a more favorable assessment of Nicholas's testimony is irrelevant: it is the trial court's role to decide how to assess his testimony and how to reconcile it with other evidence.

C. Admissions Based on Pleadings

¶ 21. In deciding whether the poles would pass without objection in the trade under the contract description and were of fair average quality within the description, Wis. Stat. § 402.314(2)(a)-(b), the court considered pleadings Thomasson Lumber had filed against Olon Belcher and McCallum: a complaint filed in June 1994 in a federal district court in Alabama against both companies and the cross-complaint filed against Olon Belcher in this action. The complaint in the Alabama lawsuit alleged that Thomasson Lumber had delivered untreated utility poles to Olon Belcher to be treated with copper nap in accordance with an agreement with Olon Belcher dated January 20, 1989, and had entered into a contract with McCallum to inspect the poles after treatment by Olon Belcher to confirm that the copper nap adequately penetrated the poles. The complaint further alleged that Thomasson Lumber had received numerous complaints from its customers that utility poles treated by Olon Belcher and inspected by McCallum were degrading in service, and inspections by Thomasson Lumber confirmed that these poles had become rotten and decayed. The poles were rotting and decaying, the complaint alleged, because of improper treatment by Olon Belcher and inadequate inspection by McCallum and were "defective and [could not] be used for their intended purpose." Thomasson Lumber's cross-claim in this action makes similar allegations.

¶ 22. The trial court rejected the City's position that the court should treat these pleadings as conclusively establishing the facts alleged and should preclude Thomasson Lumber from presenting any evidence to the contrary. However, the court did decide to treat the pleadings as admissions by Thomasson Lumber that at least the most severely rotten and decayed of the City's poles were defective and could not be used for their intended purpose. Thus, the court did not treat the pleadings as conclusively establishing any fact, but instead treated them as evidence to be considered along with other evidence.

¶ 23. Thomasson Lumber contends the trial court erroneously exercised its discretion in considering these pleadings as admissions because, as the court itself recognized, it could not determine the number of poles Thomasson was referring to in the pleadings.

¶ 24. "A positive statement of an evidentiary fact made by a party in a pleading in another case may be sufficient to constitute an admission," in which case the admission is substantive evidence of the facts admitted. Kraemer Bros., Inc. v. United States Fire Ins. Co., 89 Wis. 2d 555, 569, 278 N.W.2d 857 (1979). Generally, the question of the admissibility of evidence is a matter within the trial court's discretion. See Martindale v. Ripp, 2001 WI 113, ¶ 28, 246 Wis. 2d 67, 629 N.W.2d 698.

¶ 25. We see no erroneous exercise of discretion here. The pleadings are not inadmissible hearsay. Under Wis. Stat. § 908.01(4)(b)4, a statement made by a party's agent within the scope of the agency and offered against the party is not hearsay. Thomasson Lumber's objection appears to go to relevancy, but we conclude a reasonable court could decide they were relevant. Although the allegations in the Alabama complaint did not specifically identify the poles complained of as those sold to the City, the evidence was that when Thomasson Lumber filed the lawsuit, it knew of the City's problems with the poles and knew the City was requesting replacement of all poles. The trial court could therefore reasonably infer that the Alabama complaint related to the poles Thomasson Lumber sold the City, which had been treated by Olon Belcher and inspected by McCal-lum. It is also logical to conclude that Thomasson Lumber's cross-complaint against Olon Belcher was complaining of the poles that were the subject of the City's complaint against Olon Belcher. The fact that neither pleading specifies the number of poles that Thomasson Lumber asserted had been negligently treated by Olon Belcher does not mean that the pleadings are not admissible as evidence that Olon Belcher's inadequate treatment of poles sold by Thomasson Lumber resulted in decay of those poles.

¶ 26. Thomasson Lumber also relies on Fletcher v. Eagle River Memorial Hospital, Inc., 156 Wis. 2d 165, 177, 456 N.W.2d 788 (1990), but that case is not applicable. Fletcher addresses a "judicial admission," which occurs when the court treats a statement by a party or a party's attorney as a concession that forecloses the party from submitting evidence to contradict the concession. Id. The court in Fletcher cautioned that in exercising discretion whether to treat a statement as a judicial admission, trial courts must make a "searching inquiry" before reaching "the conclusion that a party has voluntarily foregone the opportunity to prove or to contest a critical factual element of the lawsuit." Id. Thomasson Lumber relies on this statement. However, as we have already explained, the court did not preclude Thomasson Lumber from submitting evidence that might contradict the statements in its pleadings, and the court's analysis in deciding to admit the pleadings as evidence against Thomasson Lumber was a proper exercise of discretion.

D. Sufficiency of Evidence Regarding Each Pole

¶ 27. Thomasson Lumber contends the evidence did not establish that each of the 189 poles for which the court awarded damages was not merchantable at the time of delivery. According to Thomasson Lumber, because some poles showed no signs of decay when the City removed them, the court erred in finding that all 189 poles were defective at the time of delivery.

¶ 28. When we review a trial court's factual findings, we affirm unless the finding is clearly erroneous. Wis. Stat. § 805.17(2). We do not consider the evidence that might have supported contrary findings, but instead search the record for evidence to support the findings the trial court did make. Becker v. Zoschke, 76 Wis. 2d 336, 347, 251 N.W.2d 431 (1977). When the evidence supports the drawing of either of two conflicting inferences, the trial court, not this court, decides which inference to draw. State v. Friday, 147 Wis. 2d 359, 370-71, 434 N.W.2d 85 (1989). In addition, judgments on the weight of the evidence and on the credibility of the witnesses are for the trial court sitting as finder of fact to make, not this court. State v. Douglas D., 2001 WI 47, ¶ 100 n.36, 243 Wis. 2d 204, 626 N.W.2d 725.

¶ 29. The trial court here chose to accept Smith's testimony that the poles had incipient decay at the time of delivery as a result of deficiencies in the treatment process. The evidence was that incipient decay, as well as decay, is a prohibited defect under the ANSI standards, which defines incipient decay as "an early stage of decay that has not proceeded far enough to soften or otherwise perceptibly impair the hardness of the wood... [and] is usually accompanied by a slight discoloration or bleaching of the wood." There was testimony that properly treated utility poles should have no decay or failures for fifteen to twenty years after being placed in service, and that a failure of even 1% of a pole population within the first five years meant that something was drastically wrong with that pole population. From this evidence, as well as much other evidence the circuit court carefully explained in its decision, a reasonable fact finder could infer that each of the poles was defective at the time of delivery and that, as a result of the defect, the first three requirements of Wis. Stat. § 402.314(2) were not met.

¶ 30. Thomasson Lumber apparently believes the City had to prove that each pole was observed to have exhibited decay, but this confuses the nature of the evidence with the fact to be proved. Evidence that a particular pole was rotten within five years of delivery may be one way to prove that particular pole was defective at the time of delivery, but it is not the only way. Evidence, including reasonable inferences from the evidence, that all poles were subject to a deficient treatment process is another way to prove that each of the poles was defective at the time of delivery.

¶ 31. Thomasson Lumber incorrectly relies on J.I. Case Plow Works v. Niles & Scott Co., 90 Wis. 590, 607-08, 63 N.W. 1013 (1895), for support of its argument that the City must prove that each pole exhibited decay. In that case, the court concluded there was no basis in the record for inferring that goods that had not been returned were defective. Id. That court did not have before it, as we do, a record that provides a basis for a reasonable inference that all the goods were defective because of a deficiency in a process that all were subject to.

E. Mitigation of Damages

¶ 32. Wisconsin Stat. § 402.714 governs damages for a breach of implied warranty in this case. As in cases where there is a breach of a contract, the party aggrieved by a breach of implied warranty has an obligation to take reasonable steps to minimize damages. See Sprecher v. Weston's Bar, Inc., 78 Wis. 2d 26, 42, 253 N.W.2d 493 (1977) (discussing breach of contract). The burden is on the breaching party to establish that the aggrieved party has not reasonably minimized damages. Id.

¶ 33. Thomasson Lumber contends that the only credible evidence relating to what steps were reasonable for the City to take was that of Osmose Wood Preserving, which recommended the immediate removal of seven poles that were dangerous and the remedial treatment of others that showed signs of decay. However, the trial court explained in detail why it determined that the City acted reasonably in not following this recommendation: (1) Osmose found decay in 65% of the poles when testing from ground to a foot above the brand; however the poles that had broken had typically broken toward the top. (2) A pole not recommended by Osmose for removal broke and fell down shortly after its inspection. (3) Osmose itself recommended against traditional inspection and treatment methods because there was no consistent pattern on where the severe decay was located and, in the majority of poles, decay was found above the locations that would be covered by traditional methods. (4) There was no evidence that a single "top to bottom" inspection and treatment as recommended by Osmose would be sufficient to solve the problem of the premature decay.

¶ 34. The trial court also discussed in detail the information the City gathered in deciding whether it needed to replace all the poles and determined, based on that information, that the City acted reasonably in replacing the poles. Thomasson Lumber makes a number of objections to the court's analysis and characterizes them as questions of law. However, we are satisfied that Thomasson Lumber is simply urging us to take a different view of the evidence than did the trial court. That, as we have already explained, is not our function.

¶ 35. Thomasson Lumber also asserts that the court made an error of law in considering the risk of defective poles as a factor in analyzing whether the City acted reasonably in replacing all of the poles. According to Thomasson Lumber, the risk of injury to persons or property is not admissible in this context under the economic loss doctrine. Thomasson Lumber cites Selzer, 257 Wis. 2d 809, ¶ 39, and Northridge Co. v. W.R. Grace & Co., 162 Wis. 2d 918, 933, 471 N.W.2d 179 (1991), but neither supports Thomasson Lumber's position. The economic loss doctrine, when it applies, bars recovery in tort for damages resulting from a product not performing as intended, including damages to the product itself or economic losses caused by the defective product. Selzer, 257 Wis. 2d 809, ¶ 33. The plaintiff in Selzer sought recovery in tort for damage to his house caused by defective windows, and we concluded those damages were barred by the economic loss doctrine. Id., ¶ 39. (Earlier in the opinion in Selzer, we held that recovery for breach of warranties was barred by the statute of limitations. Id., ¶¶ 23-24.) In Northridge, the plaintiff sought recovery in tort for damages caused by asbestos and the court decided the claims were not barred by the economic loss doctrine because the alleged damage was physical injury to other property. 162 Wis. 2d at 923.

¶ 36. The City here is not seeking damages in tort, but for breach of implied warranty. It is not seeking damages for injuries to person and property, but for the cost of replacing the poles and related expenses. In any event, the economic loss doctrine does not bar the recovery of damages for injury to persons or other property resulting from a defective product; in fact, Wis. Stat. § 402.715(2)(b) specifically allows it when caused by a breach of warranty. Most importantly for the purposes of this case, nothing in the economic loss doctrine precludes the trial court from considering the risk of injury to persons and other property from decaying poles when considering whether the City acted reasonably in replacing the poles.

II. Cross-Appeal

¶ 37. The City's cross-appeal challenges the trial court's decision not to award damages for thirty-six of the poles that had been cut up when removed and not marked. The City contends Judge Nicks erroneously construed Judge Pekowsky's ruling, because he simply excluded evidence of the thirty-six poles and did not preclude the recovery of damages for replacing them. The effect of Judge Nicks's decision, the City argues, is dismissal of its claim for damages for those thirty-six poles. According to the City, such a sanction requires egregious conduct, which is not present here. Thomas-son Lumber responds that Judge Pekowsky did intend to preclude damages for the thirty-six poles, and the record shows egregious conduct by the City because the poles were cut without being marked after this litigation began, when the City was well aware of the need to identify the poles that samples were taken from.

¶ 38. As both parties recognize, the decision whether to impose a sanction for the spoliation of evidence is committed to the trial court's discretion. Garfoot v. Fireman's Fund Ins. Co., 228 Wis. 2d 707, 717, 599 N.W.2d 411 (Ct. App. 1999). We affirm discretionary rulings if the trial court examined the relevant facts, applied a proper standard of law, and utilizing a demonstrably rational process, reached a reasonable conclusion. Id. In Garfoot, we reaffirmed the proposition that dismissal as a sanction for destruction of evidence requires a finding of egregious conduct, which means a conscious attempt to affect the outcome of litigation or a flagrant knowing disregard of the judicial process. Id. at 724. We arrived at this reaffirmation after reconciling Milwaukee Constructors II v. Milwaukee Metropolitan Sewerage District, 177 Wis. 2d 523, 502 N.W.2d 881 (Ct. App. 1993), in which we had applied this standard, with a later decision, Sentry Insurance Co. v. Royal Insurance Co., 196 Wis. 2d 907, 539 N.W.2d 911 (Ct. App. 1995), which could arguably be read as requiring only negligence for the sanction of dismissal. Garfoot, 228 Wis. 2d at 722-24.

¶ 39. Thomasson Lumber appears to agree with the City that not allowing damages for replacement of the thirty-six poles is effectively the same as dismissing a claim as to each of those poles and is permissible only if there was egregious conduct by the City. We accept this concession because we can see no meaningful distinction between dismissal of a claim as a sanction and not allowing the recovery of damages for a particular number of goods.

¶ 40. We consider first Judge Pekowsky's ruling. We do not agree with Thomasson Lumber that Judge Pekowsky found the City had engaged in egregious conduct in cutting up some of the poles. Thomasson Lumber's motion in limine did not argue that the City's conduct was egregious. Rather, it argued that the poles were in the City's control, and for that reason the City should be precluded from presenting evidence or argument on the poles that were cut up and from recovering damages for them. As noted above, Judge Pekowsky accepted the City's explanation that it was necessary to cut up some poles to remove them, but concluded that, by not marking the poles, the City had not met its responsibility to preserve evidence. This ruling can be reasonably read only as a determination that the City was negligent in not marking the poles.

¶ 41. However, on the issue of whether Judge Pekowsky intended to preclude damages for the thirty-six poles as well as exclude evidence of them, we conclude his ruling is ambiguous. The ruling does not expressly refer to damages, stating only that the City could not introduce evidence regarding the cut-up poles. Although it is certainly reasonable to infer that if there is no evidence permitted on these poles, there can be no damages, his ruling did not state that, even though Thomasson Lumber specifically requested that relief.

¶ 42. We now turn to Judge Nicks's ruling. The parties debated in their trial and post-trial briefs whether Judge Pekowsky intended to preclude damages as well as evidence, but the City never raised the issue it now raises on appeal — that precluding damages for some poles was effectively a dismissal, which requires egregious conduct. Not surprisingly, therefore, Judge Nicks did not make a finding on whether the City had engaged in egregious conduct. Rather, she found that there was nothing in the trial record to call into question the finding Judge Pekowsky had made — that the City had not met its responsibility to preserve evidence.

¶ 43. With respect to the effect on damages of Judge Pekowsky's ruling, we are uncertain whether Judge Nicks construed his ruling to preclude an award of damages for the cut-up poles and decided that result remained fair; or whether she recognized his ruling did not address damages but concluded it was fair to preclude them for the cut-up poles. In either event, it is evident that Judge Nicks precluded damages because of her judgment that it would unfair to allow them. We therefore conclude that we should review Judge Nicks's decision on this point as a discretionary decision made by her, rather than attempt to construe the ambiguous ruling of Judge Pekowsky.

¶ 44. Judge Nicks explained that as a result of the City's failure to mark the poles, Thomasson Lumber was deprived of its right to inspect all 225 poles, and her factual findings "[were] based on evidence derived from the inspection of available poles." She stated that it would be unfair to Thomasson Lumber to award damages to cover poles that were not available for inspection.

¶ 45. The difficulty we have with Judge Nicks's explanation is that the evidence she chose to rely on to establish that the poles were defective did not, as we explained above, depend upon on a visual inspection of each pole. Rather, Smith's testimony on the deficiencies in the treatment process was based on his expertise as applied to the results of Osmose's inspection of all the poles standing in 1994, the results of Nicholas's inspection of 188 poles in 1997 after they were removed, and his own random inspection of those same 188 poles. It is not apparent to us how the opportunity for Thomasson Lumber to inspect the additional thirty-six poles, with the knowledge of which pieces made up one pole, would have affected the trial court's findings. That is, even assuming that all thirty-six poles would not have shown signs of decay — and we recognize that there is evidence that some of the pieces did — we are uncertain that would have affected Smith's opinions or the trial court's decision to credit his opinions. We recognize that the trial court is in the best position to decide how an inspection of the thirty-six poles might have affected its view of the evidence and its findings. We also agree that, in the absence of evidence to the contrary, it is fair to assume that those poles that were not inspected because the City did not mark them would have provided evidence favorable to Thomasson Lumber. Nonetheless, in spite of having carefully reviewed the record in light of Judge Nicks's expressed rationale, we are unable, without more explanation of her analysis, to conclude that her decision to preclude damages for the thirty-six poles is a proper exercise of discretion.

¶ 46. We are therefore persuaded that the best course is to reverse Judge Nicks's award of damages for only 189 poles and remand on this issue. This will provide the court with the opportunity to consider how Thomasson Lumber's lack of opportunity to inspect the thirty-six poles affected the court's findings of fact and to provide a fuller explanation of the conclusion it arrives at. Because we are remanding for this purpose, the City will have the opportunity to raise the issue of whether its conduct meets the standard established in Garfoot. We point out that under Garfoot, a finding of prejudice is not necessary in order to impose the sanction of dismissal — or, in this case, no damages — when the conduct is egregious; rather, that is a matter for the trial court to consider in the proper exercise of its discretion. 228 Wis. 2d at 730-31.

By the Court. — Judgment affirmed; cross-appeal reversed and cause remanded.

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       Thomasson Lumber also challenges the trial court's findings that the requirements of Wis. Stat. § 402.315 were met and therefore this statute applied as well as Wis. Stat. § 402.314. Under § 402.315, if certain conditions are met, there is an implied warranty that the goods shall be fit for a particular purpose for which the goods are required. The trial court found the particular purpose was the same as the ordinary purpose under § 402.314(2)(c) — use as utility poles — and that the City succeeded in showing lack of fitness for the ordinary purpose for the same reasons that it succeeded in showing lack of fitness for the particular purpose. Because we affirm the trial court's findings under § 402.314(2)(c), it is not necessary for us to separately address § 402.315.

       ANSI sets forth minimum industry standards for untreated utility poles and AWPA sets forth minimum industry standards for wood preserving.

       Given the trial court's finding that the City purchased 225 poles, and the evidence that when Thomasson Lumber inspected the poles in 1997 there were 188 identifiable poles, with the 189th pole discovered in 1999, it appears there were thirty-six poles that were cut but not adequately marked.

       Wisconsin Stat. § 402.314(l)-(2) provide:
      Implied warranty: merchantability; usage of trade. (1) Unless excluded or modified (s. 402.316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
      (2) Goods to be merchantable must be at least such as:
      (a) Pass without objection in the trade under the contract description; and
      (b) In the case of fungible goods, are of fair average quality within the description; and
      (c) Are fit for the ordinary purposes for which such goods are used; and
      (d) Run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and
      (e) Are adequately contained, packaged, and labeled as the agreement may require; and
      (f) Conform to the promises or affirmations of fact made on the container or label if any.

       Thomasson Lumber cites a number of cases from other jurisdictions which, like Selzer v. Brunsell Bros., Ltd., 2002 WI App 232, 257 Wis. 2d 809, 652 N.W.2d 806, were concerned with the application of statutes based on U.C.C. § 2-725(2) to a claim for a breach of implied warranty. We consider them inapplicable for the same reason that Selzer is inapplicable.

       We also held in Selzer that an express promise of "permanently protecting against rot and decay," like promises of "reliability" and "long service," did not constitute an "explicit" warranty of "future performance" because it did not make a specific reference to a future, determinable time. 257 Wis. 2d 809, ¶¶ 19-23.

       Wisconsin Stat. § 402.714 provides:
      Buyer's damages for breach in regard to accepted goods. (1) Where the buyer has accepted goods and given notification (s. 402.607 (3)) the buyer may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable.
      (2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
      (3) In a proper case any incidental and consequential damages under s. 402.715 may also be recovered.
      Wisconsin Stat. § 402.715 provides:
      Buyer's incidental and consequential damages. (1) Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commer-dally reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
      (2) Consequential damages resulting from the seller's breach include:
      (a) Any loss resulting from general or particular requirements and needs of which the seller at the time ofcontraeting had reason to know and which could not reasonably be prevented by cover or otherwise; and
      ft)) Injury to person or property proximately resulting from any breach of warranty.

       In this case, as we have already stated, the City did not destroy the thirty-six poles but cut them up without identifying which pieces were part of which pole. The City implicitly concedes that this constitutes spoliation of evidence.

       The factual materials Thomasson Lumber submitted in support of the motion were not directed at the City's conduct and motives; rather, they established that when its expert examined the poles the City made available, he observed poles that were cut up but did not include them in his inspection because he could not identify which poles they were from.

       In its ruling, the court relied on Sentry Insurance Co. v. Royal Insurance Co., 196 Wis. 2d 907, 539 N.W.2d 911 (Ct. App. 1995), for the proposition that a party has a duty to preserve evidence essential to the claim litigated. Our decision in Garfoot v. Fireman's Fund Insurance Co., 228 Wis. 2d 707, 599 N.W.2d 411 (Ct. App. 1999), was issued after the briefing on the motion in limine and shortly before Judge Pekowsky made his decision. From this timing and Judge Pekowsky's reliance on Sentry in his decision, it appears his decision was made without benefit of our decision in Garfoot.