Contrary to Popular Belief, the Consumer-Contemplation Test Still Applies in Wisconsin to Design Defect Claims
Richard T. Orton and Aaron R. Wegrzyn, Gass Turek LLC

The Wisconsin Supreme Court closed out 2022 with a question of first impression—how to interpret Wisconsin’s “new” products liability statute (enacted in 2011), Wis. Stat. § 895.047. The most notable (and to many, surprising) ruling in Murphy v. Columbus McKinnon Corp.,[1] is that the legislature created a unique, hybrid products liability claim and did not simply adopt § 2 of the Restatement (Third) of Torts: Products Liability wholesale. Instead, the court concluded that Wisconsin’s statute incorporates elements from § 2 of the Restatement (Third) as well as from Wisconsin’s common law precedents founded in § 402A of the Restatement (Second) of Torts.[2] The decision breathes new life into the consumer-contemplation test in Wisconsin, thought by many to have been discarded by the legislature with its adoption of § 895.047.

1. I.              The History

To understand Murphy properly, a brief review of the development of Wisconsin’s products liability law is necessary. Historically, strict liability claims arose out of the problems plaintiffs faced in pursuing products liability claims based in negligence and warranty.[3] While several court decisions and law review articles led to the development of strict products liability,^[4] none had more impact than the 1963 California case Greenman v. Yuba Power Products, Inc.—the first decision to establish a cause of action for strict liability in tort.^[5]

Just two years later, in 1965, the American Law Institute embraced the principles in Greenman when it published § 402A of the Restatement (Second) of Torts.[6] Between the mid-1960s to the mid-1980s, § 402A “spread like wildfire from state to state,” with courts and legislatures around the country adopting the new doctrine of strict products liability in tort for the sale of defective products.[7] Wisconsin was no exception, with our Supreme Court adopting § 402A in 1967 in Dippel v. Sciano.[8]

Section 402A requires a plaintiff to show that the subject product was “defective” and “unreasonably dangerous” when sold.[9] Comment g. to § 402A explains that a product is “defective” when it is “in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him.”^[10] Further, Comment i. states that a product is “unreasonably dangerous” only if it is “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.”^[11] This became known as the “consumer-contemplation” test.^[12]

While the Wisconsin Supreme Court in Dippel did not specifically adopt or reject any of the comments to § 402A, it adopted Comments g. and i. eight years later in Vincer.[13] Thus, for several decades after the adoption of § 402A, Wisconsin followed the consumer-contemplation test in determining whether a product was defective and unreasonably dangerous.

By the 1990s, support for the consumer-contemplation test began to erode, particularly in cases claiming defective design and failure to warn.[14] Among its detractors were Professors Twerski and Henderson, the Reporters for the Restatement (Third) of Torts: Products Liability published in 1998,[15] who called the use of the consumer-contemplation test for design defect claims an “abject failure” that is “thoroughly discredited today.”[16] Among other things, they argued that the consumer-contemplation test embodied in Comment i. of § 402A was “clearly intended … to apply only to manufacturing defects,” and was therefore inappropriate as applied to design defect claims.[17]

Thus, the Restatement (Third) set forth in § 2 separate definitions for each of the three types of defect: manufacturing, design, and inadequate instructions or warnings.[18] As it relates to design defects, § 2 replaced the consumer-contemplation test with the risk-utility test as the standard for determining whether a product was defective.[19]

However, the Wisconsin Supreme Court, which in Dippel wasted no time in adopting § 402A of the Restatement (Second) shortly after its publication, twice resisted adopting § 2 of the Restatement (Third) shortly after its publication.[20] In Green, Justice Sykes filed a dissent stating that the majority was “seriously out of step with product liability law as it has evolved since” adopting § 402A in Dippel, and “blurs the distinctions between design, manufacturing, and failure-to-warn product defects.”[21] Justice Sykes advocated for the adoption of § 2, rather than keep “Wisconsin in the much-criticized and rapidly dwindling minority of jurisdictions that rely exclusively on a consumer contemplation test to determine liability in design defect cases.”[22]

The disagreement within the court on this issue was highlighted again in two cases decided on the same day in 2009, Godoy and Horst.[23] Adherents to § 402A’s consumer-contemplation test saw abandoning it for § 2 of the Restatement (Third) as a “sea change” that “would discard over forty years of precedent.”^[24] At the same time, the proponents of § 2 echoed Justice Sykes’ dissent in Green, explained the need for the change, and argued that the adherents to § 402A “restate[] Wisconsin's peculiar position on alleged design defects without mustering the intellectual firepower to defend it.”[25]

It was against this backdrop that, in 2011, the legislature adopted Wis. Stat. § 894.047.[26] The statute set out in subsection (1)(a) different tests for manufacturing, design, and inadequate-instructions defect claims that mirror § 2 of the Restatement (Third).[27] With respect to design defect claims, § 894.047(1) states that a manufacturer is liable if the plaintiff can establish that: 

(a)   the product is defective because “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the manufacturer and the omission of the alternative design renders the product not reasonably safe;”

(b)  “the defective condition rendered the product unreasonably dangerous to persons or property;”

(c)   “the defective condition existed at the time the product left the control of the manufacturer;”

(d)  “the product reached the user or consumer without substantial change in the condition in which it was sold;” and

(e)   “the defective condition was a cause of the claimant's damages.”[28]

Many saw the adoption of § 894.047(1) as the legislature stepping in to resolve the disagreement among the justices of the Wisconsin Supreme Court and establish § 2 of the Restatement (Third) as a wholesale replacement for § 402A of the Restatement (Second) and the consumer-contemplation test developed by Wisconsin common law.[29] Following the statute’s enactment, commenters described its impact on design defect claims as follows: “Whether one agrees or not, the new standard means that consumer expectations (as such) no longer are relevant to findings about whether a product’s design is defective or unreasonably dangerous.”[30] Indeed, the Wisconsin Jury Instructions were not only amended to reflect the new standards in § 894.047(1), but also to include a comment suggesting that the statute “apparently discard[ed]” the consumer-contemplation test for design defect cases.[31] 

1. II.            Murphy: The Consumer-Contemplation Test Never Left

This brings us to the Wisconsin Supreme Court’s recent decision in Murphy, which arose out of an accident involving the transportation of old electrical line poles. The plaintiff, a utility company technician, used a truck-mounted boom equipped with specialty “Dixie” tongs to hoist downed electrical poles onto a truck bed. As the plaintiff moved a pole using the tongs, the tongs lost their grip and the pole fell onto the plaintiff, causing severe injuries. He brought both a strict product liability design defect and common law negligent design claim against the manufacturer of the Dixie tongs. The trial court granted summary judgment to the defendant on both claims, which the court of appeals reversed.

Murphy offered the supreme court its first opportunity to interpret § 895.047. Although the court issued a splintered decision with majority, concurring, and dissenting opinions, there was cohesion on several key points. Most significantly, despite § 895.047(1)’s apparent adoption of § 2 of the Restatement (Third) and the belief by many that the consumer-contemplation test had been discarded, all of the justices agreed that the statute did not entirely abolish the consumer-contemplation test recognized under Wisconsin common law and derived from § 402A of the Restatement (Second).

The majority opinion explained that the consumer-contemplation test under § 402A and Wisconsin common law previously applied to assess whether a product was (a) defective and (b) unreasonably dangerous.[32] The court unanimously held that the language in subsection (1)(a) of the statute concerning defectiveness clearly mirrors the language from the Restatement (Third) § 2.[33] Therefore, to prove a design defect, the statute requires plaintiffs to demonstrate a reasonable alternative design, the omission of which renders the product at issue “not reasonably safe.”[34] 

However, as to the second element of the statute under subsection (1)(b)—that the defective condition must render the product “unreasonably dangerous”—the court also unanimously held that the term “unreasonably dangerous” is part of the common law consumer-contemplation test.[35] The majority opinion rejected the defendant’s argument that § 895.047 constituted a wholesale adoption of the risk-utility test under the Restatement (Third) and a rejection of the consumer-contemplation test under the Restatement (Second). The Court instead adopted the “plain language reading” of § 895.047 advanced by the plaintiff and found that the statute “remains loyal to Wisconsin’s roots in the common law consumer-contemplation test.”[36] It is here that the court “recognize[s] the legislature’s retention of the consumer-contemplation test in the statute.”[37] 

The majority based its conclusion on the structure of § 895.047(1), recognizing that the legislature copied much of the language in subsection (a) from the Restatement (Third) while interpreting subsections (b) through (e) as codifying elements of the common law test applied by Wisconsin courts for decades.^[38] The Court rejected the defendant’s argument that the adoption of the Restatement (Third) language in subsection (a) impacted the test for whether a product is “unreasonably dangerous,” a requirement separately set forth in paragraph (b) of § 895.047(1) with language the court determined was taken by the legislature from Wisconsin case law precedent rather than the Restatement (Third).^[39] The justices largely agreed that the legislature intended to create a “unique hybrid test,” incorporating § 2 of the Restatement (Third) for determining whether a product is “defective” while retaining the consumer-contemplation test of § 402A of the Restatement (Second) for determining whether a product is “unreasonably dangerous.” Justice Roggensack was the only justice to suggest that Wisconsin’s pre-statute common law (presumably including that concerning the consumer-contemplation test) would continue to provide persuasive authority concerning the “defectiveness” element under § 895.047(1)(a).[40]

None of the justices chose to adopt any specific comments from the Restatement (Third) in order to interpret subsection (1)(a) concerning defectiveness.[41] However, six justices noted that the comments may prove persuasive and useful in applying the statute in future cases, although the legislature did not expressly incorporate any comments from the Restatement (Third) into the statute and the court did not need to adopt any to resolve the case at bar.[42]

Finally, all the justices agreed that the plaintiff’s negligence claim should proceed to trial, noting that § 895.047(6) expressly disclaims altering the common law analysis of negligence claims.

1. III.          Design Defect Post-Murphy

The most important takeaway from Murphy is the conclusion that the consumer-contemplation test is still alive and well in Wisconsin strict products liability design defect cases. Unlike the common law before § 895.047(1), plaintiffs must now meet both the risk-utility standard of § 2 of the Restatement (Third) under subsection (1)(a) and the consumer-contemplation test under subsection (1)(b).

Interestingly, in Murphy,plaintiff and an amicus brief submitted by the Wisconsin Association for Justice advocated for this “hybrid ” approach requiring both tests be met.[43] One might think that the plaintiffs’ bar would prefer not to have to satisfy two tests to prevail in design defect cases. But the justices’ split in Murphy when applying the consumer-contemplation test to the facts of the case may suggest why they advocated for the hybrid approach. It highlights how different judges will approach the consumer-contemplation test from different perspectives, with varying interpretations of what an “ordinary consumer” looks like or expects in a particular context. Indeed, some say the test “is amorphous and defies precise definition when used in a products liability case.”[44] As a result, perhaps plaintiffs’ advocates concluded that—seeing as they could not avoid the Restatement (Third) test under subsection (a)—injecting the consumer-contemplation test into the statute will result in more judges finding issues of fact to be left for a jury, and therefore fewer cases lost on summary judgment. 

Whether the court accurately interpreted the legislature’s intent to create this “hybrid” approach in adopting § 895.047 is debatable. The decision in Murphy makes clear, however, that the consumer-contemplation test remains alive and well in Wisconsin. It will likely be up to the legislature to make another change if it feels Murphy misinterpreted its intention. 

Author Biographies:

Richard T. Orton is a trial attorney and the managing partner of Gass Turek LLC in Milwaukee. Rich handles a diverse range of civil trials and appeals in Wisconsin and throughout the country, including products liability and catastrophic injury, professional liability, and commercial, construction and insurance litigation.

Aaron R. Wegrzyn is a litigator with Gass Turek LLC who assists clients with navigating high-stakes lawsuits in the financial services, manufacturing, and health care sectors. Aaron possesses considerable experience defending against fraud, breach of warranty, product liability, statutory consumer protection, and cybersecurity claims, particularly in nationwide class actions.