Behrendt v. Gulf Underwriters Insurance Co.

Silvan Industries, Inc. (Silvan) (defendant) made tanks to be used under pressure, such as recreational diving tanks filled with oxygen. The tanks were subject to strict manufacturing codes and inspection requirements. Silvan had a policy of allowing employees to use company equipment and scrap materials to make items for personal use. However, because of the strict rules related to pressurized tanks, Silvan cut holes in scrapped tanks to make them unusable as pressurized vessels. A Silvan employee modified a scrapped tank for Kenneth Behrendt (plaintiff) to use in his automobile oil-change business. The Silvan employee fixed the hole cut in the tank to make the tank pressurized so that oil could be quickly sucked from a vehicle into the tank. After years of use, the tank suddenly exploded, causing Behrendt to suffer injuries. Behrendt filed suit against Silvan and its insurer, Gulf Underwriters Insurance Company (Gulf) (defendant), seeking damages. The trial court granted Silvan’s motion for summary judgment. Behrendt appealed. The court of appeals affirmed and held that Silvan did not owe Behrendt a duty of care and that it was unforeseeable that a non-pressurized tank taken by a Silvan employee would later be fabricated to become pressurized again and used for years before suddenly exploding and causing injuries. The Wisconsin Supreme Court granted certiorari to review.