Interpreting for the first time the product liability statute adopted in 2011, the Wisconsin Supreme Court refuses to adopt Restatement (Third) of Torts Section 2(b) and holds that the consumer-contemplation test remains the standard for determining whether a product is “unreasonably dangerous” in a strict liability claim.

Last month, in Murphy v. Columbus McKinnon Corp., 2022 WI 109, — N.W.2d —, 2022 WL 17972321 (Dec. 28, 2022), the Supreme Court of Wisconsin interpreted the Wisconsin product liability statute for the first time following the enactment of the statute in 2011. The Court held (4-3) that in enacting the 2011 law, the legislature did not adopt the risk-utility balancing test from the Restatement of Torts (Third), and that it retained the common law consumer-contemplation test as one of the elements a plaintiff must satisfy in bringing a strict liability claim alleging a design defect. In reaching this conclusion, the Court held that considering the “foreseeable risks of harm” in a product’s design and whether there is a “reasonable alternative design” – both of which are expressly included within the risk-utility balancing test of Restatement Section 2(b) – are express elements of a design defect claim under Wis. Stat. § 895.047(1)(a). The Court further held that whether a design was “unreasonably dangerous” must be evaluated under the consumer-contemplation test to satisfy an element of a design defect claim under Wis. Stat. § 895.047(1)(b). Importantly, in a warning to practitioners and circuit courts, the Court stated that it was problematic and incorrect that the comments to jury instruction Wis. JI-Civil 3206.1 suggested that the legislature had abandoned the consumer-contemplation test. 2002 WI 109, ¶36 n.21. Citing Wis. Stat. § 895.047(6), the Court further held that the legislature’s adoption of the product liability statute did not abolish common-law product liability claims based on negligence and breach of warranty theories.

Justice Roggensack wrote the majority opinion, joined by Justices Ann Walsh Bradley, Dallet, and Karofsky (in all but two paragraphs), with Justice Hagedorn writing a separate opinion concurring in part and dissenting in part, joined by Chief Justice Ziegler and Justice Rebecca Grassl Bradley.

Click here to read more in the extended blog post.

Stafford Rosenbaum LLP is a full-service law firm with two convenient office locations in Madison and Milwaukee, Wisconsin. Over 140 years of dedication to businesses, governments, nonprofits, and individuals has proven that effective client communication continues to be the heart of our practice.

Find a Professional