## Facts

- Curt Vincer, age two, visited his grandparents’ home, where an above-ground swimming pool had been manufactured by Esther Williams and sold/installed by Banner Builders.
- The pool used a retractable ladder for access; at the time of the incident, the ladder was left down and the pool area was unattended.
- Vincer, unsupervised, climbed the ladder, fell into the pool, and suffered serious injuries.
- The complaint alleged a design defect: failure to include a self-closing, self-latching gate or similar safety device to prevent children’s access via the ladder.
- Plaintiffs sued the manufacturer, the seller/installer, and their insurers under strict products liability and negligence theories.

## Issues

1. Whether the complaint alleged facts sufficient to state a claim that the pool was in a defective condition unreasonably dangerous for strict products liability.
2. Whether the complaint alleged facts sufficient to state a negligence claim against the manufacturer and seller for failing to include a self-latching, self-closing gate or similar safety device.

## Decision

- The Wisconsin Supreme Court affirmed the order sustaining defendants’ demurrers and dismissing the claims.
- The court held the complaint failed, as a matter of law, to allege a “defective condition unreasonably dangerous” under Restatement (Second) of Torts § 402A.
- The negligence claim failed for the same reason because plaintiffs did not allege facts showing the product itself was dangerous and defective in the required sense.

## Legal Principles

- Strict products liability under Restatement (Second) of Torts § 402A requires that, when the product left the seller’s hands, it was in a “defective condition unreasonably dangerous” to the user or consumer.
- A “defective condition” for § 402A purposes involves a condition not contemplated by the ordinary consumer and that renders the product unreasonably dangerous.
- A product is not defective merely because additional safety devices could be added; the pleaded defect must describe a product condition beyond ordinary consumer contemplation.
- A manufacturer or seller may be liable in negligence for specific negligent conduct, but negligence recovery still requires allegations (and proof) that the product causing the injury was dangerous and defective.

## Conclusion

Because the pleaded hazard—child access to an above-ground pool via a ladder and the attendant drowning risk—was treated as an obvious and expected danger rather than a product defect, the complaint did not state a cause of action in strict liability or negligence, and dismissal on demurrer was affirmed.


Vincer v. Esther Williams All-Aluminum Swimming Pool Co., 230 N.W.2d 794 (Wis. 1975)